Ancient Codes and the Epoch of Customary Law
T[p. 45]he most celebrated system of jurisprudence known to the world begins, as it ends, with a code. From the commencement to the close of its history, the Roman Law was governed by written ordinances; and the landmark which separates its archaic period from the epoch of unwritten custom is the Twelve Tables. When primitive law has once been embodied in a code, the monumental epoch is reached; but behind the written tables lies a prolonged period of unrecorded legal evolution.
Concordance Note: Margin anchors represent verified page boundaries in the original 1861 John Murray first edition (Internet Archive: ancientlawofsigh00mainuoft). Citations copied match physical library shelf copies precisely.
[p. 46]In the infancy of the Aryan race, law does not precede judgment; judgment precedes law. The earliest notions connected with the conception of a legal rule are those contained in the Homeric words Themis and Themistes. When a king decided a dispute by a sentence, the award was assumed to be the result of direct divine inspiration. The divine agents who breathed the award into the monarch's heart were the Themistes, the daughters of Zeus; and thus each judgment stood by itself as an isolated inspiration, not derived from any preexisting rule of human fabrication.
Aristocracies as Depositaries of Law
[p. 47]When kingly rule decayed and was succeeded by oligarchies, the monopoly of legal knowledge passed from the monarch to the council of chiefs or patrician orders. At this stage, law was strictly unwritten; it existed in the memory and observance of a privileged caste. This was the true era of Customary Law. The claims of the patrician oligarchy to sole knowledge of the customs formed the principal grievance of the plebeians, and precipitated the great struggle which resulted in the demand for written codes.
[p. 48]The value of the Twelve Tables to Roman society did not consist in any novel philosophical principle which they enunciated; their preciousness lay solely in their being written. The laws were carved on bronze or oak and exposed in the Forum, so that the humblest citizen might inspect the rules by which his life and property were measured, rescuing jurisprudence forever from the arbitrary discretion of aristocratic pontiffs.