LECTURE XXIII.

OF THE CIVIL LAW.

THE great body of the Roman or civil law was collected and digested by order of the Emperor Justinian, in the former part of the sixth century. That compilation has come down to modern times, and the institutions of every part of Europe have felt its influence, and it has contributed largely, by the richness of its materials, to their character and improvement. With most of the European nations, and in the new states in Spanish America, in the province of Lower Canada (a) and in one of the United States, (b) it constitutes the principal basis of their unwritten or common law. It exerts a very considerable influence upon our own municipal law, and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate's or consistorial courts. (c)

The history of the venerable system of the civil law is peculiarly interesting. It was created and gradually matured on the banks of the Tiber, by the successive wisdom of Roman statesmen, magistrates, and sages; and after governing {516} the greatest people in the ancient world for the space of thirteen or fourteen centuries, and undergoing extraordinary vicissitudes after the fall of the western empire, it was revived, admired, and studied in modern Europe, on account of

(a) Real property law in Canada, under French grants, was established upon the basis of the Coutume de Paris, with feudal burdens. The French civil law, as it existed in Canada at the time of the conquest of the province, still prevails, without any of the ameliorations of the Code Napoleon.

(b) See the Civil Code of the State of Louisiana, as adopted in 1824.

(c) The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed into the hands of the English, justice was directed to be administered according to the former system of laws in the Dutch courts; and Van Leeuwen's Commentaries on the Roman Dutch law were translated into English in 1820, expressly for the benefit of the English judiciary in that island.

the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland, and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of D'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus to the establishment of the twelve tables.

1. Early Roman Law. — The fragment of the Enchiridion inserted in the Pandects (a) is the only ancient history of the first ages of the Roman law now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoek has republished {517} it, and endeavors to restore the integrity of the original text by emendations and a critical commentary. (a) From this fragment we learn that Sextus, or Gaius Papirius, who was a Pontifex Maximus about the time of the expulsion of Tarquin, made a collection of the reges legiæ, or laws and usages of the Romans under their kings, and which was known by the name of the Jus Civile Papirianum. Very few, if any, fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws. (b) Such a work was evidence of great progress in

(a) Dig. lib. 1, tit. 2. De Origine Juris.

(a) Prætermissa ad leg. 2 D. De Origine Juris. Opera, i. 301.

(b) Heinecc. Antiq. Rom. Jur. Proæm. sec. 1 and 2; Hist. Jur. Civ. i. sec. 15, 16.

jurisprudence under the kings, and it must have contained an account which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world. (c)

The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. The Roman people were originally, or very early in their history, divided into three tribes and thirty curiæ, and the patrician order and the Roman senate were instituted under Romulus, and that last body became in process of time the most powerful and majestic tribunal in all antiquity. (d) The general assemblies of the people or comitia were {518} a part of the primitive government, and a very efficient portion of the legislative power, and they met in their curiæ, parishes or wards, and the vote of every citizen belonging to the curiæ was equal in these comitia curiata. The senate was a select body of three hundred of the elder citizens, from the heads of the clans or gentes, and regard was had to rank, birth, property, honor, and age. The king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the powers of a civil and military chief. (a) The fecial and other colleges

(c) Gibbon, in his History, viii. 5, note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats much of the early Roman history as a legend, says, that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. History of Rome, i. 211. I am Incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer; and it is assumed to be so by such master critics as Bynkershoek and Heineccius; and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.

(d) Cic. de republica, b. 2. In hoc orbis terræ sanctissimo gravissimoque concilio. Cic. in Cat.

(a) I have followed Dionysius of Halicarnassus, Livy, Cicero, and the other authors of the classical ages, in respect to the early political and legal history of Rome; and I hare not been inclined to adopt the historical scepticisms of some modern antiquaries (of whom Niebuhr may be placed at the head), so far as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, i. 290-295, English ed. Camb. 1828. He holds, however, contrary to the received opinion, that the curiæ were assemblies of the patricians, or gentes, or heads of families, and not of the whole people; and that the Plebs were landholders of the neighboring towns and country, and field-laborers, who were free, and above the degree or condition of the

established by Numa bound the Romans to religious discipline. (b) Servius Tullius divided the people into six classes, and one hundred and ninety-three centuries, and this was a most important change in the Roman polity. The first class contained the patricians, knights, and rich citizens, {519} and ninety-eight centuries; the Plebs were also now admitted to a vote in the legislature, and when the people assembled by centuries in their comitia centuriata (as they generally did thereafter when called by the consuls or senate), they voted by centuries; and the first class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into the hands of the patrician order, and of men of property. (a)

After the establishment of the republic, all the higher magistrates were elected by the burghers or patricians in their curiæ, or by the whole people in the comitia centuriata, which were con-clients attached to the patricians, but that they had no vote. Niebuhr's work is so intermixed with true and fabulous story, and he goes so deeply into the "tangled thickets of the forest," that it becomes rather difficult to know what is and what is not to be deemed genuine history, amid his incessant scepticisms and complicated narration. I am quite reconciled to the observation of Dr. Arnold, in his profound and learned History of Rome, i. 100, that, "although the legends of the early Roman story are neither historical nor yet coeval with the subjects which they celebrate, still their fame is so great, and their beauty and interest so surpassing, that it would be unpardonable to sacrifice them altogether to the spirit of inquiry and of fact, and to exclude them from the place which they have so long held in Roman history."

(b) Numa religionibus et divino jure populum devinxit. Tac. Ann. 3, 26. According to Cicero, the auspices, religious ceremonies, courts of justice, appeals to the people, the senate, and the whole military discipline, were instituted by royal authority, as early as the foundation of the city. He imputes the institution of the auspices and the senate particularly to Romulus. Tusc. Quæst. lib. iv. 1; De Repub. lib. ii. sec. 9, 10, 14. He says, further, that Numa was the author of laws which were then extant! Ib. lib. v. sec. 2. He regarded the office of augur as one of the most important in the commonwealth; for the augurs, as he observed, had power to dismiss the comitia, and to command the consuls to lay down their office, and to grant or refuse ' permission to form treaties, and to abrogate laws not legitimately executed. No edict of the magistrates, relating to domestic or foreign affairs, could be ratified without their authority. Ib. lib. 2. Fuss on Roman Antiquities, ed. Oxf. 1840, 164, 165. (a) Eosque ita disparavit. says Cicero (that is, he so distributed the citizens in classes), ut suffragia non in multitudinis, sed in locupletium potestate essent; curavitque, quod semper in republica tenendum est, ne plurimum valeant plurimi. De Repub. lib. ii. sec. 22. Cicero seems to have been aware of the danger to property from universal and equal suffrage, — Ita nec prohibebatur quisquam jure suffragii: et is valebat in suffragio plurimum, cujus plurimum intererat esse in optimo statu civitatem. Ib.

voked by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, the assemblies of the people were frequently convoked by tribes, and there all the people met on an equality, and voted per capita. In the comitia tributa, the people, after violent struggles, elected the tribunes and subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians. (b)

As the whole administration of justice, civil and criminal, had been transferred from the kings to the consuls, it soon became necessary to control the exercise of this formidable power. This was done by the Valerian law, proposed by {520} the consul Valerius Publicola, granting to persons accused of capital crimes a right of appeal from the judgment of the consuls to the people. It then became an established principle in the Roman constitution, that no capital punishment could be inflicted upon a Roman citizen without the vote of the people, though the consuls retained the power of inflicting very severe imprisonment. (a) The Valerian law became an imperfect palladium of

(b) Dig. 1. 2. 2. 8; Gravina, de Ortu et Prog. Jur. Civ. sec. 28. The plebiscita, prior to the Hortensian law, required the sanction of the senate and of the assembly of the curiæ to be binding on all orders in the state. As the comitia curiata were assemblies of the patricians and plebeians, and in which all the great offices and powers of sovereignty were conferred, the comitia tributa were assemblies of the plebeians only, and were held independently of patrician magistrates and influence. They could be held without a previous senatus consultum, and were not subject to the check of the auspices, which were under the management of the patricians. The comitia centuriata embraced all the orders of the state, and all persons of an age for military service, and the patricians and their clients, and plebeians, all found a place in them. In the comitia tributa the votes were taken by tribes, and in the comitia curiata by curiæ. The patricians exercised controlling influence in the comitia centuriata by means of the votes of their clients. The increase of the numbers and wealth of the clients of the burghers or patricians gave the comitia centuriata in which they voted, in the progress of time, a popular character and influence; for though the clients lost their order and tribe by becoming dependent clients, they became wealthy, for they could follow retail trade and manufactures; and the comitia of centuries, in which the commons formed every century except six, grew to be assimilated, in a great measure, to those of the tribes. Arnold's Hist. of Rome, i. 140, 141.

(a) Dig. 1. 2. 2. 16. The Roman dominion was absolute after a mile beyond the walls of the city, and the magistrates wielded the sword with full sovereignty. Arnold's Hist. iii. 10.

civil liberty, and was in some respects analogous to the habeas corpus act in the English law; but the appointment of a dictator was a suspension of the law. (b)

As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules, (c) they began to suffer the evils of uncertain and unsteady laws, and of the absolute and capricious power of the consuls beyond the walls of the city. The call for a written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the senate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence. (d)

(b) This great law of appeal was reënacted in the fifth consulship of M. Valerius Corvus.

(d) The Enchiridion of Pomponius says, that the deputies were commissioned to geek laws from the Grecian cities (Dig. 1. 2. 2. 4); and the original historians (Livy, b. 3, c. 31, 32), and Dionysius of Halicarnassus (Antiq. Rom. b. 10), say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina (De Ortu et Prog. Jur. Civ. sec. 32, and De Jure Nat. Gent et XII. Tabularum, sec. 23), Heineccius (Hist. Jur. Civ. sec. 24, and Antiq. Rom. Jur. Proæm. sec. 3), Voet (Com. ad Pand. 1. 2. 1), Dr. Taylor (Hist. of the Roman Law, 8), Pothier (Præfatio seu Prolegomena in Pandectas Justinianeas, part i. c. 1; De Legibus Antiquis), and the generality of modern writers on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3, 27) observes generally, accitis quæ usquam egregia, and the deputies must have visited at least the Grecian cities in lower Italy. M. Bonaby, a learned French writer, has, however, written three dissertations upon the origin of the laws of the twelve tables, and he considers the story of a Roman deputation to Athens as fabulous. He endeavors to maintain, by an able discussion concerning the early history of the Roman constitution and laws, and by a critical and even profound examination of the laws of the twelve tables, that they were not borrowed from the jurisprudence of Athens, but that they were essentially a restoration of the ancient Roman laws under Romulus, Numa, and Servius Tullius, and which had gone into disuse under the consuls. He admits, however, that the plan of the mixed monarchy, and many of the Roman usages under the kings, had their origin in the usages of Athens and Sparta. (Mem. de l'Acad. des Inscriptions et Belles-Lettres, xviii. ed. Amst. 1743.) It is worthy of observation, that this sceptical as well as learned writer does not hesitate to assume, on the authority of Dionysius of Halicarnassus, the authenticity of the history of the Roman kings. Gibbon (Hist. viii. 8) is also decidedly of opinion that the deputation

2. The Twelve Tables. — {521} The twelve tables were digested by ten decemvirs, appointed, with the consent of the commons, out of the patrician order, on the return of the deputies from Greece. They were ratified by the consent equally of the patricians and plebeians, (a) and they consisted partly of laws transcribed from the institutions of other nations, partly of such as were altered and accommodated to the manners of the Romans, partly of new provisions, and mainly, perhaps, of laws and usages under their ancient kings. (b) They {522} were written

never visited Athens, and he gives plausible reason for his belief; and though Cicero says (De Leg. b. 2, c. 23 and 26) that the regulations in the twelve tables concerning funerals were translated from the laws of Solon, and the decemviri had adopted almost the very words of Solon, yet M. Bonaby very ingeniously relies upon Cicero, as one of the authorities in support of his hypothesis. Niebuhr, in his History of Rome (ii. ed. Phil. 1835, by Hare and Thirlwall, pp. 228-231), concludes that the deputies visited Athens, but that there is no resemblance between the Attic civil law and the twelve tables, either as to personal rights or judicial proceedings. But Niebuhr was evidently in an error when he says (ii. 231, note 7), that "nowhere does Cicero give the least hint that there was any Greek element in the twelve tables." He must have forgotten the passages from Cicero, de Legibus, to which I have referred.

(a) Niebuhr (Roman History, ii. 235, ed. Phil. 1835), says that the code of the decemvirs, being approved by the senate, was brought before the centuries, and their assent was ratified by the curiæ, under the presidency of the colleges of priests, and the sanction of happy auspices.

(b) Gravina, de Ortu et Prog. J. C. sec. 32; Niebuhr's Hist. of Rome, ii. 248, 251, note, 253. Niebuhr says that the twelve tables were nothing more than the ancient statutes consolidated. A learned writer of our own country, in the New York Review for October, 1839, who avows his education and shows his acquirements in the European schools of the civil law, gives very solid reasons for his opinion that the code of the twelve tables was essentially declaratory of ancient laws and usages. Fragments of the twelve tables were collected, and distributed with great accuracy under their original and proper divisions, by J. Gothofred, in a work entitled, Quatuor Fontes Juris Civilis, printed in 1653; and his collection, Heineccius says (Antiq. Jur. Rom. Proæm. sec. 5), is to be preferred to that of all others. His collection, distribution, and interpretation of the tables has been followed by Gravina, who has inserted the originals with a paraphrase at the conclusion of his treatise De Jure Naturali Gentium et XII. Tabularum. He has also given a copious commentary upon that collection. They were redigested and inserted at length in a voluminous L'Histoire Romaine of the Jesuits Cotrou and Rouille, and copied from them into Hooke's Roman History, b. 2, c. 27. A summary of this curious and celebrated code, which had such permanent influence on Roman jurisprudence, and is so constantly alluded to by Roman jurists, will not be unacceptable to the American student.

The 1st table related to law suits, and regulated the right of citation of the defendant before the prætor. The creditor, of his own authority, seized his debtor, where he found him in public, and carried him before the praetor, and if the debtor resisted, the creditor might seize and drag him. Ambula in jus — Te in jus voco; and

in a style exceedingly brief, elliptical, and obscure; and they show the great simplicity of Roman manners, and are evidence

if old or infirm, the plaintiff was to provide him with a jumentum, or open carriage. (But even this provision was reprobated in after ages for its severity. A. Gell. Noct. Att. 20, 1.) The debtor, if he wanted time, was obliged to give a caution or bail for his appearance at a future day. The prætor was to decide the cause promptly by daylight; and if the accuser wanted witnesses, he was allowed to go before his adversary's house, and to repeat his demand for three days together by loud outcry. Mr. Justice Ware, of the District Court of Maine, has given, in the case of Lane v. Townsend, Ware, 299, a brief account of the commencement and progress of a Roman suit in its first stages. It is an interesting examination, and sheds much learning and light on the obscure subject; and points out inaccuracies not only in Brown's Civil and Admiralty Law, but in Blackstone's Commentaries, in respect to the stipulation or bail required of the defendant in the suit. Dr. Arnold, in his History of Rome, i. 280, says, that our whole knowledge of the old actions at law is derived from the Institutes of Gaius, which, in their original form, were discovered by Niebuhr in 1816.

The 2d table related to robbery, theft, trespass, and breaches of trust. It allowed the right to kill a robber by night. It inflicted corporal punishment and slavery on conviction of robbery, unless the parties settled with each other. Slaves, guilty of robbery, were to be thrown down the Tarpeian rock. Thefts and trespasses were punished by pecuniary mulct. Trespassers by night, on harvest or cornfields, were punished capitally, as victims to Ceres. No term of prescription gave a right to stolen goods, nor any right of a foreigner to the goods of a Roman citizen. Breaches of trust were punished with the forfeiture of double the value of the deposit.

The 3d table related to loans, and the right of creditors over their debtors. It prohibited more than one per cent interest for money. The weight of authority would seem rather to be in favor of one per cent a year, though Montesquieu insists that interest at the time of the twelve tables was twelve per cent a year, and that the law reducing it to one per cent was passed many years afterwards. Esprit des Lois, liv. 22, c. 22. In this construction he is supported by Livy, b. 7, c. 27. But Tacitus says that the twelve tables restrained usury to one per cent a year. Tacit. Ann. lib. vi. 16. And this is the construction given to the words Si cui unciario fænore amplius fænerassit, by the generality of commentators. Pothier's Pandectæ Justinianeæ, i. Frag. XII. Tab.; Gibbon, viii. 86, note. It is, however, a doubtful question whether the twelve tables allowed only one or twelve per cent a year. Professor Hugo, of the University of Göttingen, in his History of the Roman Law, see. 126, inclines to the latter opinion. A recent writer on this vexatious point in Roman history holds it to be quite clear that the uncial rate of interest of the Romans was an ounce in every as for the cyclic year of ten months, that is, eight and a half per cent, equivalent to ten per cent for the civil year of twelve months. Foreign Quarterly Review, No. 22, art. 6. This is the conclusion to which Niebuhr and Dr. Arnold arrive. (History of Rome, by N. iii. 53, 57; History of Rome, by A. i. 284.) The debtor was to have thirty days after judgment to pay his debt; and if he did not then pay or give security, or sell himself by entering into the nexum, his creditor had a right to seize him, load him with chains of a certain weight, and treat him as a slave, on a prescribed scanty allowance; and if he failed to pay after being sixty days in prison, he was to be brought before the people on three market days, and the debt proclaimed; if no friend appeared, he was either to be put to death or sold as a slave into Etruria; and if there were several creditors, he might at their elec-

of a people under a rugged police, {523} and very considerably advanced in civilization. They contain a great

tion be sold beyond the Tiber, or his body cut into pieces. Gibbon (Hist. viii. 92) takes this law in the literal sense, and so does Gravina, de Jure Nat. Gent. et XII. Tab. sec. 72; and he adopts the argument of Sextus Cæcilius, in A. Gell. Noct. Att. 20, 1, who maintained that the law was only cruel in appearance, and that he had never read or heard of its being executed, for its extreme severity prevented the creation of debt. Montesquieu well observes that, upon such reasoning, the most cruel laws would be best; and he thinks the better construction to be, that the law only related to the division of the debtor's property. Esprit des Lois, b. 29, c. 2, Bynkershoek, Observ. Jur. Rom. lib. i. c. 1, and Heineccius, Antiq. Rom. lib. iii. tit. 30, sec. 4, are of the same opinion. Pothier, in his introduction to his Pandectæ Justinianeæ, has inserted the fragments of the twelve tables, as they were restored by Gothofredus, and he has illustrated them by brief notes and commentaries. He is for a literal construction of this part of the twelve tables, and he says this was the construction of all the writers of antiquity who make mention of them, such as Quintilian, Tertullian, and A. Gellius. Professor Hugo is also obliged to renounce the metaphorical, and follow, with the ancients, the literal interpretation of the twelve tables on this subject. Histoire du Droit Romain, par G. Hugo, traduite de l'Allemand par Jourdan, i. 233, sec. 149. Niebuhr, in his History of Rome, ii. 597, takes the law literally, and says that no sound-headed person ought to construe it otherwise. He says its severity was designed to compel the debtor to redeem himself, or to enter into a nexum, by which he became liable to pay interest, and to work out his debt by labor. Gravina, de Jure Nat. Gent. sec. 21, says there are grounds to conclude that the leges regies, with the exception of such as relate to regal domination, were incorporated into the first three of these twelve tables.

The 4th table related to the rights of fathers and families. It gave to fathers the power of life and death and of sale over their children, and the right to kill immediately a child born deformed. On the other hand, and as some compensation for these atrocious provisions, it declared that if a father neglected to teach his son a trade, he was not obliged to maintain his father when in want; nor was an illegitimate child bound to maintain his father.

The 6th table related to inheritances and guardianships. It declared that if the father died intestate (for he had a right to dispose of his property by will), and had no children, his nearest relations were to be his heirs; and if he had no relations, a man of his own name was to be his heir. He had the right to appoint guardians to his children. If a freedman died intestate and without heirs, his effects went to the family of his patron. The heirs were to pay the debts of the ancestor in proportion to their share of his estate. It also provided, in the case of lunatics and prodigals, that the relations, and if none, that one of the name, was to have the care of the person and estate. If he left children, the sons and daughters inherited equally; but though daughters inherited on an equal footing with the sons, yet they became wards to their brothers; and all women were, at all times of their lives, and under all circumstances, under guardianship and civil disabilities. (Dr. Arnold, in his History of Rome, i 257-295, has examined the state of the Roman law, as left by the decemvirs, with great research and ability.)

The 6th table related to property and possession. It declared that the title of goods should not pass on sale and delivery, without payment. Two years' possession amounted to a right of prescription for lands belonging to private individuals, provided the possession was not obtained by force or fraud, and one year for movables.

deal of wisdom and good sense, intermixed with folly, injustice, and cruelty. They were engrossed {524} on tablets

It likewise declared that, in litigated cases, the presumption should always be on the side of the possessor; and that in disputes about liberty and slavery, the presumption should always be on the side of liberty. All sales of land or movables were by delivery (mancipatio) verbally, in the presence of witnesses.

The 7th table related to trespasses and damages. It provided that compensation be made for trespasses; and that for arson or maliciously setting fire to a house, or to grain near to it, the offender was to be scourged and burnt to death. The lex talionis was applied to losses of limb, unless the injured party accepted some other satisfaction. A pecuniary fine of three hundred pounds of brass was declared for dislocating a bone, and twenty-five asses of brass for a common blow with the fist. (It is related in the Noct. Att. 20, 1, that one Lucius Neratius, in after times, when the city became wealthy, and such a fine insignificant, amused himself with striking freedmen in the face as he met them in the street, and then ordering his servant, who followed him for the purpose with a hag of brass money, to count out and tender the twenty-five pieces, as the compensation fixed by law ) It was provided, also, by this table, that slanderers, by words or verses, should be beaten with a club. False witnesses were to be thrown headlong from the capital, and parricides were to be sewed up in a sack and thrown into the Tiber. Whoever wilfully killed, or poisoned, or prepared poison for a freedman, or used magical words to hurt him, was punishable as a homicide. Guardians and patrons who acted fraudulently in their trust were to be fined and held odious.

The 8th table related to estates in the country. It required a space of two and a half feet to be left between every house; and it allowed societies or private companies to make their own by-laws, not being inconsistent with the public law. The prætor was to assign arbitrators in eases of disputes about boundaries; and it provided redress for nuisances to fields by the shade of trees, or by watercourses. It required roads to be eight feet wide, and double at corners. It allowed travellers to drive over the adjoining land, if the road was bad.

The 9th table was concerning the common rights of the people. It prohibited all special privileges to any person, and it restored debtors, who had been redeemed from slavery, to their former rights. It made bribery, in a judge or arbitrator, or the holding or attending seditious assemblies in the city by night, or delivering up a Roman citizen to a foreigner, or soliciting a foreigner to declare himself against Rome, capital offences. It declared that all causes relating to the life, liberty, or rights of a Roman citizen should be tried in the comitia centuriata. The people were to choose quæstors to take cognizance of capital cases. (The burghers of the city of Rome, in the early period of the Commonwealth, engrossed the wealth and the foreign commerce, and were the patricians and money-lenders, while the free commoners, who were agriculturists on small farms in the country, adjoining the city, were forbidden to engage in commerce, and were the money-borrowers, and suffered greatly from hostile incursions, and were poor and oppressed. Arnold's History of Rome, i. 135.)

The 10th table related to funerals. It prohibited the dead to be interred or burnt within the city, or within sixty feet of any house. It prohibited all excessive wailings at funerals, and women from tearing their faces or making hideous outcries on such occasions. It regulated and limited the expense of funeral piles, and all costliness at funerals, such as the dress of the deceased, the players upon the flute, the perfumed liquors, the gold thread, the crown, festoons, &c.

The 11th table made part of the jus sacrum, or pontifical law. All the other tables

of wood, or brass, or ivory, (a) and were exposed to destruction, though unquestionably preserved, when the city was burner! by the Gauls. (b) They existed entire in the third, {525} but did not, as Heineccius supposes, survive the sixth century of the Christian era. This code obtained, in the

related to civil rights, but this related to religion and the worship of the gods. It required all persons to come with purity and piety to the assemblies of religion; and no person was to worship any new or foreign gods in private, unless authorized by public authority. Every one was to observe his family festivals, and the rites used in his own family, and by his ancestors, in the worship of his domestic deities. Honor was to be paid to those heroes and sages whom their merit had raised to heaven. The commendable virtues were to be ranked among the gods, and to have temples erected to them, but no worship was to be paid to any vice. The sacrifices to the gods by the priests were to be the fruits of the earth and young animals, and with the most authorized ceremonies. No one was to be initiated in any mysteries but those of Ceres. Stealing of what was devoted to the gods, and incest, were declared to be capital crimes.

The 12th table related to marriage and the rights of husbands. It prescribed freedom of divorce at the pleasure of the husband; and it allowed the husband, with the consent of his wife's relations, to put her to death, when taken in adultery or drunkenness; and it declared it to be unlawful for patricians to intermarry with plebeians.

Mr. Prescott, in his learned and excellent History of the Conquest of Mexico, has given a short but interesting view of the judicial system, and of the code of laws in the Aztec or Mexican monarchy, prior to the overthrow of it by Fernando Cortez. He says that the Aztec code, though stamped with the ferocity of a rude people, evinced a profound respect for the great principles of morality. Their military usages had a remarkable resemblance to those of the early Romans, and their political institutions denoted a degree of civilization not much short of that enjoyed by the Anglo-Saxons under Alfred. I should think that their legal code might bear a favorable comparison with much that is to be found in the celebrated twelve tables of the Roman law. The superior judges were wholly independent of the monarch, and held their offices for life, and were maintained from the produce of the crown lands. Punishments were, generally, like the laws of Draco, capital; but their application to crimes showed a solicitude for the rights of property and of good order. Murder, even of a slave, was punished with death; so was the conviction of adultery, removing the boundaries of another's land, altering the established measure, abuses of guardian's trust, drunkenness, prodigal waste of patrimony, and theft. Hospitals were established in the principal cities for the cure of the sick, and the permanent refuge of the disabled soldier. Public defaulters were liable to be sold as slaves. The marriage institution was protected and respected. Prescott's Hist. i. 29-38, 44, 49.

(a) Heineccii Hist. Juris Civilis, lib. 1, sec. 26. Niebuhr says they were graven on ten tables of brass, and posted up in the Comitium.

(b) Livy, b. 6, c. 1, says, Quæ in commentariis pontiflcum, aliisque publicis privatisque erant monumentis, incensa, urbe, pleraque interiere. N. Hook's Diss. on the credibility of the first five centuries of Rome. Cicero speaks of them as being in his time on tables of brass, and as having been injured by lightning, — legum æra liquefacta. Oral, in Cat. 3, 4.

subsequent ages of the republic, from the most distinguished {526} philosophers, historians, and statesmen, the blind tribute of patriotic veneration, and the most extravagant eulogy, as being a system inculcating the soundest principles of ethics and civil polity, and surpassing in value the jurisprudence of Solon and Lycurgus, the twelve books of the laws of Plato, and whole libraries of Grecian philosophy. (a) As Rome increased in territory, wealth, arts, and refinement, her laws were progressively enlarged and improved, and adapted to the progress of society, and its increasing wants and vices. The obligation of the twelve tables was gradually diminished or destroyed by the multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.

{527} After many struggles, the patricians were obliged, by the lex Hortensia, to submit to the authority of the plebiscita, enacted by the plebeians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. (a) The senate also frequently promulgated laws under the name of senatus consulta, by their own authority. (b) A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Gaius Cornelius, the senate could not exercise their dispensing power

(a) Cic. de Orat. b. 1, c. 43, 44; De Leg. 2, sec. 23; Livy's Hist. 3, 34; Tacit. Ann. 3, 27; A. Gell. Noct. Att. 20, 1. In the newly discovered treatise of Cicero, de Republica, lib. ii. c. 36, 37, he insists that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting marriages between plebeians and senatorial families was a most infamous law.

(a) The Hortensian law abolished the senate's veto upon plebiscita, after the Publilian law had done away with the authority of the curiæ respecting them; and Niebuhr considers the Hortensian law as the commencement of the destruction of the constitution. Niebuhr's Hist. iii. 419-421.

(b) Inst. 1. 2. 4; Dig. 1. 2. 9. The proofs are abundant, that even before the Augustan age the senatus consulta had become one of the regular sources of the Roman law. Cicero, de Legibus, b. 3; Histoire du Droit Bom. par G. Hugo, sec. 174, 175, 176. Qui consulta Patrum, qui leges juraque servat. Hor. Epist. 1. 16. v. 41.

unless two hundred senators were present. By the Publilian law, passed in the year of the city 416, the comitia of the curiæ were deprived of their veto or power as a branch of the legislature in passing upon laws enacted by the comitia of tribes, and their consent was no longer requisite to laws submitted by the senate to the comitia of the centuries. But the senate, which now consisted of the most eminent men, and was a mixed body of both patricians and commoners, continued to be the great national council. (c) Within a very few years after the adoption of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was effected by the institution of legal forms of judicial proceeding, called legis artiones, and by means of the pontifices, who regulated the calendar, and were the repositories of the laws and annals, and assumed the power of fixing the lawful days of business, and dies fasti et nefasti. These judicial forms and solemnities gave order and uniformity to the administration of justice; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to interpret them belonged to the pontifical college, and the patricians had retained {528} the exclusive right of being eligible to the offices of the priesthood. (a) The forms remained confused and undigested until Appius Claudius Cœcus, a member of the pontifical fraternity, reduced them into one collection, which his scribe, Cnæus Flavins,

(c) Arnold's Hist. of Rome, ii. 155, 158. It was the province of the censors to revise the list of senators and add to the roll, as well as to revise the rolls of the several tribes. The censorship was an office of the highest rank and power, with a command of the public moneys, and with the power of commencing and conducting public works, such as roads and aqueducts. Ib. 282-287; Cicero, de Legibus, b. 3. With respect to the senate, the Hortensian law, prior to the year of Rome 474, deprived the senate of its veto, and declared the people assembled in their tribes to be a supreme legislative power. The tribes in the forum and the senate were placed on a footing of equality; neither had a veto on the enactments of the other, and the tribunes had a veto upon both alike. The enactments of both were considered as equal to laws. The senate, in its original form, was only a select assembly of the patres, whose great assembly was the comitia curiata. Ib. 383-385.

(a) Dig. b. 1, tit. 2; De Orig. Jur., sec. 6. Gravina says, De Ortu et Prog. J. C. sec. 33, that they were established by the policy of the ancient lawyers.

surreptitiously published, together with the calendar, or fasti, to the great satisfaction of the people. (b) It acquired the title of the Jus civile Flavianum; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Ælianum. (c) This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious. (d)

3. The Prætorian Law. — The edicts of the prætor became another very important means of the increase and improvement of the Roman law. By the Licinian law, passed in the year of Rome 384, the office of consul was no longer confined to the patrician order, and a plebeian consul was elected in the centuries, and confirmed by the curiæ. But as a compensation for this loss of patrician power, the judicial was separated from the consular office, and a prætor was instituted, who was always to be a patrician. (e) The judicial decisions of the prætors, or edicta prætorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honor of the prætor. (f) There had been, from the foundation of the city, a magistrate called præfectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city prætor, and they confined his province to the administration of justice; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties. (g) The prætor was at first a patrician, and {529} elected in the comitia centuriata, though the office in time became accessible to plebeians. Business soon required a second prætor to preside over the causes of foreigners, called prætor peregrinus, (a) and

(b) Cic. pro Muræna, sec. 11; De Orat. 1, 41.

(d) Leguleius quidam cautus et acutus præco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. 1, 55. See also Cod. 2. 58. De formulis et impetrationibus actionum sublatis.

(e) Dr. Arnold gives an interesting history of the struggles which produced this great innovation in the Roman constitution. History of Rome, ii. 33-61. The institution of the office of prætor was in A. U. C. 387.

(f) Dig. 1. 1. 7, and 1. 2. 10.

(g) Dig. 1. 2, sec. 26, 28.

(a) Professor Hugo, in his History of the Roman Law, sec. 158, attributes to the

prætors were afterwards allotted to the provinces as the empire widened. Under Augustus the prætors had multiplied to sixteen: and in the time of Pomponius there were eighteen, and one of them judged de fideicommisso. (b) Every prætor, on entering into office, established and published certain rules and forms, as the principle and method by which he proposed to administer justice for the year. He had no power to alter these rules, and this jus prætorium vel honorarium tempered the ancient law by the spirit of equity and public utility, and it was termed the living interpreter of the civil law. (c) The edicts of the prætor were generally declaratory of the customary or unwritten law and practice of his predecessors. But as the prætor was apt to vary from his annual edict, and to change it according to circumstances, which opened the way to many frauds, it was provided, by a law enacted at the instance of the tribune Gaius Cornelius, that the prætor should adhere to his edicts promulgated on the commencement of his magistracy. These prætorian edicts were studied as the most interesting branch of Roman law, and they became a substitute for the knowledge of the twelve tables, which fell into neglect, though they had once been taught as a carmen necessarium, and regarded as the source of all legal

discipline. (d)

4. Responsa Prudentum. — {530} The opinions of lawyers,

called the responsa or interpretations prudentum, composed another and very efficient source of the ancient Roman jurisprudence.

The most ancient interpreters were the members of the college of pontifices, composed of men of the first rank and knowledge.

institution of the prætor peregrinus the rise and growth of the jus gentium, which had a propitious influence even upon the Roman municipal jurisprudence. The civilians used the jus gentium as synonymous with reason and natural law, and in contradistinction to the jus civile, which was considered as local, peculiar, and exclusive to one particular people. It was their municipal law; the other was international. To the authority of the jus prætorium the edicts of the prætor urbanus and the prætor peregrinus seem to have equally contributed. Ib. sec. 188, 189. (b) Dig. 1. 2. 32.

(d) Cic. de Leg. b. 1, c. 6, and b. 2, c. 23; Cic. de Orat. b. 1, c. 10; Gravina, de Ortu et Prog. J. C. sec. 38. The edicta magistratuum, or jus prætorium, was not only a fruitful, but a legitimate source of the Roman law, as Hugo has labored to prove. Hist du Droit Rom. sec. 177, 178, 179. He compares this prætorian law to the English equity jurisprudence. Many of the edicts bore a resemblance to the modern ordinances, or Codes de Procédure Civile.

Civil statesmen and eminent private citizens followed their example, and sometimes debated in the forum. Their answers to questions put were gradually adopted by the courts of justice, by reason of their intrinsic equity and good sense; and they became incorporated into the body of the Roman common law under the name of fori disputationes and jus civile, or responsa prudentum. (a) This business, undertaken gratuitously by persons of the highest distinction, grew into a public profession, and law became a regular science, taught openly in private houses as in schools. The names of the principal lawyers who became, in this way, public professors of the law, are to be found in the work of Pomponius, (b) and in the writings of Cicero, Horace, Tacitus, and the other authors of the classical ages. Their opinions were preserved by their successors, and fragments of them are, no doubt, dispersed in different parts of the Pandects, without the sanction of their names. (c) Cicero speaks of {531} this employment of distinguished jurists with the greatest encomiums, and as being the grace and ornament and most honorable business of old age. The house of such a civilian becomes a living oracle to the whole city; and this very accomplished orator and statesman fondly anticipated such a dignified retreat and occupation for his declining years. (a) The philosophy and policy and wisdom of Greece were collected together, says Gravina, (b) by the Roman civilians, and all that was useful introduced into the Roman law; and if it were really true that the twelve tables were not drawn by the rough agents who compiled them directly from Grecian fountains, we are assured that

(a) Dig. 1. 2. 5. (b) Dig. 1. 2.

(c) In the times of the republic, the practice of the law was gratuitous and highly honorary. All employment for hire was prohibited by a law enacted in the year of the city 550, at the instance of the tribune Marcus Cincius. The profession at length became a business of gain, and was abused, until Augustus revived the Cincian law, with additional sanction by a decree of the senate. But as a reasonable compensation was necessary to advocates who devoted their time and talents to the profession, the compensation was allowed and regulated by a decree of the senate in the time of Claudius (Tacit. Ann. b. 11, c. 5, 6, 7); and afterwards, according to the law of the Pandects, b. 50, tit. 13, c. 1, sec. 5, 10, 12, the judges in the province were to determine on, and allow, a reasonable charge to the advocate. [Kennedy v. Broun, 13 C. B. N. S. 677.]

(a) Cic. de Orat. 1, 45; De Legibus, b. 1. See also Quintilian's Inst. lib. 12, c. 11, where he alludes to Cicero, and strongly approves of this employment of the orator when he retires from practice at the bar.

(b) Orig. Jur. Civ. b. 1, Proæm

the omission was abundantly supplied in after ages; and the institutions of Greece were studied by more enlightened statesmen, and contributed to perfect and adorn the Roman law. (c)

In the Augustan age, the body of the Roman law had {532} grown to immense magnitude. (a) It was composed of the leges, or will of the whole Roman people declared in the comitia centuriata; the plebiscita, enacted in the comitia tributa; the senatus consulta, promulgated by the single authority of the senate; the legis actiones; the edicta magistratuum; the responsa prudentum; and, subsequent to the age of Cicero, is to be added the constitutio principis, or ordinances of the Roman emperors. (b) The Roman civilians began very early to make collections and digests of the law. The book of Sextus Ælius contained the laws of the twelve tables, the forms of actions, and the responsa prudentum. Publius Mucius, Quintus Mucius, Brutus, and Manilius, all left volumes upon law, and the three books of the latter existed in the time of Pomponius, as monuments of his fame. (c) Servius Sulpicius left behind him nearly one hundred and eighty volumes upon the civil law. Many distinguished scholars arose under his discipline, who wrote upon jurisprudence; and Aufidius Namusa digested the writings of ten of those scholars into one hundred and forty books. Antistius Labeo, under Augustus, surpassed all his contemporaries, and he compiled four hundred volumes, many of which, Pomponius says, he possessed. (d) The noble design of reducing the civil law into a

(c) The Grecian philosophy was not more fatal to the ancient Roman superstition, than Grecian forensic eloquence was to the severity of the Roman civil law. Hugo's Histoire du Droit Romain, sec. 161. Cicero was of opinion that his countrymen excelled the Greeks in laws and institutions, as well as morals and manners. Mores et instituta vitæ, resque domesticas ac familiares nos profecto et melius tuemur et lautius; rem vero publicam nostri majores certe melioribus temperaverunt et institutis et legibus. Tuscul. Quæst. lib. 1, c. 1. He supposes that the early Romans had imbibed a tincture of the philosophy of the Greeks from the doctrines of Pythagoras, who dwelt in southern Italy at the time of the expulsion of the Tarquins. Ib. lib. 4, 1. But it was Cicero himself, who, by his writings, transferred into his own vernacular tongue the great body of the Grecian philosophy.

(a) Immensus aliarum super alias acervatarum legum cumulus. Livy, 3, 34. Heineccius applied this passage of Livy to the civil law, but Hugo says he was in an error, and that the most part of the laws referred to by Livy were political regulations, and had no concern with private right. Hist. du Droit Rom. par Hugo, sec. 167.

(b) Dig. 1. 1. 7, and 1. 2. 12; Inst. 1. 2. 3; Gaius, 1. 2.

convenient digest was conceived by such great men as Cicero, (e) Pompey, and Julius Cæsar; (f) though it is certain that no systematic, accessible, and authoritative treatise on the civil law appeared during {533} the existence of the republic; and Cicero says that the law lay scattered and dissipated in his time. (a) The Roman jurisprudence was destined to continue for several centuries under the imperial government, a shapeless and enormous mass, receiving continual accumulations; but it was fortunately cultivated under the emperors by a succession of illustrious men, equally distinguished for their learning, wisdom, and probity.

Before the time of Augustus, the responsa prudentum were given viva voce, and they had not the force of any authority in the forum, and the business was free to all persons. The character of these responsa was abused and discredited by the crude opinions of pretenders, and Augustus restrained the profession of the jurisconsults to such as he should select as most worthy, and they were to be first approved of and commissioned by him. They then began to give their opinions in writing, with their reasons annexed. (b) This raised their influence, and reduced the prætors to a state of comparative dependence upon those living oracles of law, who were under the influence of the emperor, and who obtained, by their means, the control of the administration of the law. (c) Heineccius says that Augustus instituted this college of civilians in order that he might covertly assume legislative power, and adapt the republican jurisprudence to the change in the government. He likewise instituted a cabinet council, which was called the consistory, by succeeding princes. It was composed of the consuls, several other magistrates and jurists, and a certain number of senators chosen by lot. (d) Ulpian was a member of this royal council under

(e) Cicero says he had long thought of the task of digesting and reducing the civil law into a few elementary and definite principles, and thereby relieving it from difficulty and obscurity. De Orat. lib. 1, c. 42.

(f) Suet. J. Cæsar, sec. 44.

(a) Cic. de Oral. lib. 2, c. 33; Heineccii Elementa Juris Inst. Proæm. sec. 2; Dr. Taylor's Elements of the Civil Law, 14.

(b) Dig. 1. 2. 47; Heinecc. Hist. Jur. Civ. lib. 1, sec. 157, 158, 180.

(d) Gravina, de Romano Imperio, sec. 17. This imperial consistory was imitated by the provincial governors. History of the Roman Law during the Middle Ages, by Savigny, i. 87.

Alexander {534} Severus. It was the imperial legislature. The power of the comitia was transferred to this shadow of a Roman senate, for the old constitutional senate, not being able conveniently to govern all the provinces (according to the courtly language of the Pandects), (a) gave to the prince the right to make laws.

5. Imperial Rescripts. — The judgments of the prince were called imperial constitutions, and they were usually enacted and promulgated in three ways: 1st. By rescript, or letter in answer to petitions, or to a distant magistrate. (b) 2d. By decrees passed by the emperor on a public hearing in a court of justice; and Paulus collected six books of those decrees, and from which he for the most part dissented. (c) 3d. By edict, or mere voluntary ordinances. Gravina says that these imperial constitutions proceeded not as from a single individual, but as from the oracle of the republic, by the voice of the senators, who were consulted, and were the visible representatives of the majesty of the commonwealth. (d) Many of these imperial ordinances were suggested by the best of the civilians, and do great honor to their authors; and with regard to private and personal rights, the Romans enjoyed, to a very great degree, under the emperors, the benefit of their primitive fundamental laws, as they existed in the times of the republic. The profession of the law was held in high estimation under the emperors; and during the second and third centuries, the science of jurisprudence was elevated higher than it ever has been in any other age, or among any other people. Hadrian took off the restriction of Augustus, and gave the privilege of being {535} a public interpreter of the law to the profession at large. (a) It was restored by the emperor Severus, and the responsa prudentum assumed an air of great importance. Though in the first instance they were received as mere opinions, they gradually assumed the weight of authority. The opinions were sent in writing to the judges, and in the time of Justinian they were bound to determine according

(a) Dig. 1. 2, sec. 11.

(b) Code, 1. 14. 3; Gravina, de Ortu et Prog. sec. 123, 124.

(d) Gravina, de Romano Imperio, ib. The imperial rescripta thus assumed the character and weight of judicial precedents, and were entitled to at least equal authority with the responsa prudentum.

(a) Dig. 1. 2. 2. 47

to those opinions. (b) These responsa (of which many are preserved in the Pandects) were not of the same authority as the constitutional leges, but they were law for the case, and they were applied to future cases under the character of principles of equity, and not of precepts of law. In the ages immediately preceding Justinian, the civil law was in a deplorable condition, by reason of its magnitude and disorder; and scarcely any genius, says Heineccius, was bold enough to commit himself to such a labyrinth. As a remedy for the evil, the Emperor Theodosius the younger and Valentinian III. addressed to the senate of the city of Rome an imperial constitution, which confirmed, by decree, the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, by name, and directed that they alone be permitted to be cited in the courts of justice, with the exception of such extracts as they had transferred into their books from the ancient lawyers, and with some other qualified exceptions in favor of Scævola, Sabinus, Julianus, and Marcellus. The opinion of the majority of these five legislative characters was to govern; and where there was in any case an equal division of opinion, that of Papinian was to be preferred. (c)

{536} The first authoritative digest of the Roman law which actually appeared was the Perpetual Edict, compiled by Salvius Julianus, under the orders of the Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofrede, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority. (a) The prætorian edicts had been so controlled under the government of the emperors by the

(b) Inst. 1. 2. 8.

(c) Heinecc. Antiq. Rom. Jur. lib. 1, tit. 2, sec. 41; Histor. Jur. Civ. lib. 1, sec. 378. Heineccius says, that Papinian was everywhere called juris asylum et doctrinæ legatis thesaurus, and he far surpassed all his brethren, omnes longo post se intervallo reliquerit. Gaius (Inst. lib. 1, sec. 2) refers to a rescript of the Emperor Hadrian, in which the responsa prudentum were to be received as law, if they were unanimous, and if not, the judge was at liberty to follow his own judgment. At the period of Valentinian, the writings of the great jurists and the constitutions of the emperors were alone consulted as authorities. Savigny's History of the Roman Law, i. 7.

(a) Gibbon's History, viii. 16. The plebiscita had ceased under Augustus, but the senatus consulta did not absolutely cease with Hadrian. They continued to enrich the civil law in matters of private right long afterwards. Hugo, Hist. du Droit Rom. sec. 284, 307.

opinions of the civilians, that they lost the greater part of their ancient dignity, and Hadrian projected the design of reducing the whole Roman law into one regular system. All that he, however, lived to perform, was to procure the compilation of those edicts of the prætors which had stood the test of experience on account of their authority and equity, and had received the illustrations of civilians. (b) Many able professors undertook, from time to time, a digest of the civil law. Papirius Justus collected some of the imperial constitutions into twenty books, and Julius Paulus compiled six books of decrees, or imperial decisions. Gregorius made a collection of a higher character, and he digested into order the chief, if not the whole of the imperial rescripts, from Hadrian down to the reign of Diocletian and his colleagues, and which was called the Gregorian Code, and attained great authority in the forum. Hermogenes continued this collection under the name of the Hermogenian Code. (c) Theodosius the younger {537} appointed a committee of eight civilians to reduce the imperial constitutions, or the edicts and rescripts of a succession of emperors, from the time of Constantine, into a methodical compendium; and this Theodosian Code became a standard work throughout the empire, and it was published in six folio volumes in 1665, with a vast and most learned commentary by Gothofrede. (a) Another century elapsed before Justinian directed Tribonian, who was an eminent lawyer and magistrate, to unite with him a number of skilful civilians, and to assume the great task of collecting the entire body of the civil law, which had been accumulating for fourteen centuries, into one systematic code. Whether the Roman law at that period exceeded or fell short of the number of volumes in which the English law is now embodied it is not easy to determine. Tribonian represented to the emperor, that, when he and his learned associates undertook the business of digesting the civil law, he found it dispersed in two thousand books, and in

(b) Gravina, de Ortu et Prog. Jur. Civ. sec. 38.

(a) The great merit of this edition of the Theodosian Code, and the fitness of Gothofredus for the task, by his extraordinary industry, erudition, and judgment, are forcibly stated by Dr. Irving, in his Introduction to the Study of the Civil Law, 4th ed. London, 1837, — a work well worthy of the attention of the student in the civil law, for its historical and biographical learning, and the critical sagacity of the author.

upwards of three millions of verses, (b) detached from the writings of the sages, which it was necessary to read and understand in order to make the selections. The size of these volumes, and the exact quantity of matter in these verses, we cannot ascertain. (c) It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us (c?) that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human capacity to digest.

6. Justinian. — {538} The compilations made under Justinian, and which constitute the existing body of the civil law, consist of the following works, and which I shall mention in the order in which they were originally published.

Sis Code. — The Code, in twelve books, is a collection of all the imperial statutes that were thought worth preserving, from Hadrian to Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates, was, that they should extract a series of plain and concise laws, omitting the preambles, and all other superfluous matter; and they were likewise intrusted with the great and hazardous power to extend, or limit, or alter the sense, in such a manner as they should think most likely to facilitate their future use and operation. (a)

His Institutes. — The Institutes, or Elements of the Roman Law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that age, and shed great lustre on the Roman jurisprudence. (b) It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions,

(b) Duo pene millia librorum esse conscripta, et plus quam trecentiens decem. millia versuum a veteribus effusa. Secund. Præf. Dig. sec. 1.

(c) Professor Hugo, in his History of the Roman Law, sec. 318, reduces by computation the Roman laws to 580 volumes, of a moderate size. He allows 24 of the three millions of verses to a page, and 400 pages to a volume. The 2000 books, judging from the books in the Pandects, will give only 280 volumes. This reasonable estimate takes away every appearance of the marvellous from the magnitude of the Roman law.

(d) Prima Præf. Dig. sec. 1.

(a) Prima Præf. Cod. sec. 2.

(b) Justinian had forbidden all schools of law but the three mentioned in the text.

and received the most copious and laborious illustrations. It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law. The Institutes were compiled chiefly from the writings of Gaius; and a discovery by M. Niebuhr, so late as 1816, of a rewritten manuscript of the entire Institutions of Gaius has given increased interest to the Institutes of Justinian. (c)

{539} His Pandects. — The Digest, or Pandects, is a vast abridgment, in fifty books, of the decisions of prætors, and the writings and opinions of the ancient sages of the law. This is the work which has principally excited the study and reflections and commentaries of succeeding ages. It is supposed to contain the embodied wisdom of the Roman people in civil jurisprudence for near 1200 years; and the European world has ever since had recourse to it for authority and direction upon public law, and for the exposition of the principles of natural justice. The most authentic and interesting information concerning the compilation of the Pandects is to be found in the ordinances of Justinian, prefixed, by way of prefaces, to the work itself.

In the first ordinance addressed by Justinian to his quæstor Tribonian, he directs him and his associates to read and correct the books which had been written by authority upon the Roman law, and to extract from them a body of jurisprudence in which there should be no two laws contradictory or alike, and that the collection should be a substitute for all former works; that the compilation should be made in fifty books, and digested upon the

(c) See an account of that discovery in N. A. Review for April, 1821. The Institutes of Gaius are the prototype of Justinian's Institutes. They were discovered by Niebuhr, the historian, in 1816, in the Cathedral Library at Verona. The manuscript was a codex rescriptus, and in 62 out of 251 pages iterum rescriptus. The original text had, during the dark ages, been obliterated for other matter, which, in its turn, was supplanted by the Epistles of St. Jerome. The original work was restored to the world by the skill and perseverance of Professors Göschen, Bekker, and Hollweg, of Berlin, who, upon Niebuhr's report, went to Verona. The work appeared for the first time in 1820. It awakened renewed zeal, bordering on enthusiasm, in Germany, for the study of the civil law. It led to dissertations from every quarter; and M. Boulet, in the preface to his French translation of Gaius's Institutes, says that no work ever produced a more remarkable revolution in the study of the Roman law. Institutes de Gaius, par J. B. E. Boulet, Pref. Professor Hugo makes great use of the Institutes of Gaius, as shedding new and bright light on many branches of the civil law. See Histoire du Droit Romain, par G. Hugo, sec. 329, et passim.

plan of the perpetual edict, and contain all that is worth having in the Roman law for the preceding 1400 years, bo that it might {540} hereafter be regarded as the temple and sanctuary of justice. He directed that the selection be made from the civilians, and the laws then in force, with such discretion and sagacity as to produce in the result a perfect and immortal work. And, in the anticipation of the result, he declared that no commentaries were to be made upon the digest, as it had been found that the contradictions of expositors had disturbed the whole body of the ancient law.

In about three years after the publication of this first ordinance, Justinian issued another upon the completion of the work. In the latter ordinance, addressed to the senate and people, he declared that he had reduced the jurisprudence of the empire within reasonable limits, and within the power of all persons to possess at a moderate price, and without the necessity of expending a fortune in acquiring useless volumes of law. He stated that, in the compilation of the Pandects, Tribonian and his associates had drawn from authors of such antiquity that their names were unknown to the learned of that age. If defects should be discovered, recourse must be had to the emperor; and he pointedly prohibited all persons to have any further recourse to the ancient laws, or to institute any comparisons between them and the new compilation. And to prevent the system from being disfigured and disordered by the glosses of interpreters, he declared that no citations were to be made from any other books than the Institutes, the Pandects, and the Code; and that no commentaries were to be made upon them, upon pain of being subjected to the charge of the crimen falsi, and to have the commentaries destroyed.

The Pandects are supposed to have been compiled with too much haste, and they were very defective in precision and methodical arrangement. The emperor allowed ten years, and Tribonian and his sixteen colleagues finished the work in three years. It is said that the Pandects were composed of the writings of forty civilians, the principal part of whom lived under the latter Cæsars, and the doctrines only, and not the names of the more ancient sages, were {541} preserved. (a) If the

(a) Professor Hugo concludes that the compilers of the Pandects had never seen the original writings of Mucius Scævola, though they are referred to as if they had

work had been executed with the care and leisure that Justinian intended, it would have been an incomparable monument of human wisdom. There are, as it is, in the compilation, a great many contradictory doctrines and opinions on the same subject, and too much of that very uncertainty which Justinian was so solicitous to avoid. But with all its errors and imperfections, the Pandects are the greatest repository of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation. Justinian has given it the venerable appellation of the temple of human justice. The excellent doctrines and the enlightened equity which pervade the work were derived from the ancient sages, who were generally men of distinguished patriotism, and sustained the most unblemished character, and had frequently been advanced to the highest offices in the administration of the government. The names of Gaius, Scævola, Papinian, Ulpian, Paulus, and Modestinus may be selected from a multitude of civilians, as models of exalted virtue, and of the most cultivated reason and philosophy, drawn from the precepts and examples of freer and better ages. It is owing to their writings that the civil law, for the purity and vigor of its style, almost rivals the productions of the Augustan

age. (b)

{542} His Novels. — The Novels of Justinian are a collection of new imperial statutes, which constitute a part of the body of the civil law. These ordinances were passed subsequent to the date of the Code, and had been required in the course of a long reign and by the exigencies of succeeding times. They were made to supply the omissions and correct the errors of the preceding publications; and they are said, by competent judges, to show the declining taste of the age, and to want much of that brevity, dignity, perspicuity, and elegance which distin-

really been read and consulted. Hist. du Droit Rom. sec. 320. He is further of opinion that the merit of the order which is so visible in the civil law is to be attributed to Servius Sulpicius, the friend of Cicero. Ib. sec. 322. In the preface to Pothier's Pandects, the number of jurisconsults whose writings were employed in the compilation of the Pandects, or whose opinions are therein referred to, amounts to ninety-two, and sketches of their lives are given.

(b) According to Hommel, a writer cited by Professor Hugo, of the 1800 pages of which the Pandects are composed, 600 were taken from the writings of Ulpian, 300 from Paulus, 100 from Papinian, 90 from Julian, 78 from Scævola, 72 from Pomponius, 70 from Gaius, 41 from Modestinus, and so on to other civilians of leas note in diminished proportions.

guished the juridical compositions of the ancients. Some of these novels are of great utility, and particularly the 118th novel, which is the groundwork of the English and American statutes of distribution of intestates' effects. (a) The Institutes, Code, and Pandects were afterwards translated into Greek, and the Novels were generally composed in that language, which had become the vernacular tongue of the eastern empire; and, as evidence of the universality of that tongue, Justinian declared that one of his constitutions was composed in the Greek language, for the benefit of all nations. (b)

7. Loss of the Civil Law. — When the body of the civil law, as contained in the Institutes, the Pandects, and the Code, was ratified and confirmed by Justinian, it became exclusively the law of the land; and the various texts from which the compilation was made fell speedily into oblivion; and all of them except the Theodosian Code, and fragments of the other parts, disappeared {543} in the wreck of the empire.(a)(x) The great

(a) Sir William Blackstone, Comm. ii. 516, does not seem willing to admit that the statute of distributions was taken from the civil law; but when Lord Holt and Sir Joseph Jekyll declare (1 P. Wms. 27; Prec. in Chan. 593) that the statute was penned by a civilian, and is to be governed and construed by the rules of the civil law, and when we compare the provisions in the English statute with the Roman novel, the conclusion seems to be very fair and very strong that the one was borrowed essentially from the other.

(b) Inst. 3. 8. 3. The Latin language, in the time of Justinian, was the official language, but it was spoken only by a small portion of the inhabitants, and the language of the Church and of literature was Greek.

(a) Pothier, in his preface to his Pandectæ Justinianeæ, has given a rapid view of the Progress of the Roman jurisprudence, from the Jus Civile Papyrianum, under Tarquinius Priscus, to the time of Justinian, and an interesting sketch of the series of Roman lawyers, from the earliest notice of them far beyond the age of Cicero, down to the compilation of the Pandects. And notwithstanding the efforts of Justinian to supersede and destroy the admirable materials of the civil law, from which he was enabled to erect the splendid and ever-enduring monument of his reign, yet from the remains of the works of the civilians there has been compiled the Jus Civile Antejustinianeum, which is a collection of great interest and currency on the continent of Europe. It has now received an addition of the utmost value in the newly discovered Institutions of Gaius.

(x) The law books issued at Constantinople by Justinian for the lands surrounding the Eastern half of the Mediterranean Sea, in the beginning of the sixth century of our era, are directly or indirectly a large, or even the principal, source of private law

in all the civilized countries of the world in the nineteenth century. "We in England do not stand in the same close and direct connection with them that our continental neighbors do. No part of the Digest or Code is law with us, or is now of more

work itself was in danger of being involved in the general destruction which attended the irruption of the northern bar-

than illustrative or casual bearing on the decisions of our courts. But partly through the early law-writers, much more through the Chancellor's jurisdiction, and partly, perhaps in an increasing degree, through intercourse with other nations and through literary and professional training, the Roman law has materially helped, and is still helping, to form our rules for the business of life." Roby's Introduction to Justinian, p. xv.

Prior to Justinian's compilations (565 A. D.) "the only systematic collections were the Codices Gregorianus and Hermogenianus, both compiled about A. D. 450, and the Codex Theodosianus, published in A. D. 438; and these, besides being published after the Roman legions had left Britain, only extended in operation over the Eastern Empire. This, the Justinianean body of law, appears to have had no force in Western Europe, and indeed, with the exception of a partial and temporary application in Italy, to have been almost unknown until the revival of its study by the Bolognese Law School about the year 1150. The collections of law in the Western Empire, which was overrun by Goths, Vandals and Huns, were as follows: — I. The Edictum Theodorici, issued at Rome A. D. 500, and imposed on the conquered Romans, and conquering Ostrogoths. Though this was derived almost entirely from the Roman Law, and especially from the Codex Theodosianus, the sources were used so arbitrarily and with such freedom, that the character of the Roman Law can scarcely be traced in them. — II. The Breviarium Alaricianum, current among the Visigoths; published in 506 by Alaric, and also derived, with modifications, from Roman sources. — III. The Lex Romana Buryundiorum, published between the years 517-534; and largely compiled from Roman Law; in-

tended for the Roman subjects of the Burgundian Empire. — This Roman Law, ante-Justinianean in character, and much altered in the different collections, was the only source which could modify, by Romanizing, the Saxon institutions. The comparison, until the twelfth century, is not with the Corpus Juris of Justinian, but with a much mutilated code of earlier date, largely added to from barbarian sources. The Roman Law seems never to have been very popular among the early Western Nations." Scrutton's Roman Law in England, p. 10. See also, upon the Romano-Barbarian Codes, Muirhead's Roman Law, p. 397. Mr. Scrutton further says (p. 48): "The earliest Teutonic civil procedure is purely executive. There is no trace in Anglo-Saxon sources of any period of usucaption, or adverse possession giving ownership or protection from actions. The first trace of such an institution is in the Laws of the Conqueror. Anglo-Saxon procedure, civil or criminal, owes nothing in its origin to the Roman Law, and is but slightly influenced in its development. The introduction of charters and writings as modes of proof is clerical, and probably Roman." (p. 67.) "Justinianean Law was almost unknown in the Western Empire until the teaching of the Law School at Bologna in the twelfth century brought it into prominence." (p. 152.) "While the judges of the Common Law Courts after the fourteenth century recognized no authority in the Civil Law, and the English people were led by the financial exactions of the Papal Court, and the controversies of the Reformation, to regard with suspicion and dislike everything savoring of Rome, three important courts in the Kingdom were largely influenced by the Civil Law, if their procedure was not entirely derived from it. These were the Court of Chancery, the Court of

barians into the southern provinces of Europe. The civil law maintained its ground a long time at Ravenna, and in the Illyrian

Admiralty, and the Ecclesiastical Courts. The Court of the Constable and Marshal also proceeded according to the Civil Law; and Duck also states that the Universities of Oxford and Cambridge proceeded according to the civil law, though these are of small importance." (p. 163.) As to such part of the jurisdiction of the ecclesiastical courts as related to the English Church, "the separation of the civil and clerical courts under William I. ensured for the latter a peculiarly Roman and canonical law and procedure."

The revival of letters in the fifteenth century led to a revival of the study of Roman law in the sixteenth. The Corpus juris civilis was never published in Germany as a law binding on that country; only such of its provisions are there in force as have been actually received by usage, and these provisions only subject to such modifications as have been imposed upon them in actual use. Sohm's Institutes, pp. xvii, xxii.

"In Scotland the Roman law was much more favorably received than it was in England. In consequence of the close alliance that so long subsisted with France, Scotland borrowed many of its institutions from that country, besides importing a large portion of Roman jurisprudence to make up the deficiencies of a municipal law, long crude and imperfect, and which had made little progress as a national system till some time after the establishment of the Court of Session in 1532.... All the best writers on the law of Scotland, such as Stair, Bankton, Erskine, and Bell, were able civilians." Mackenzie's Roman Law (5th ed.), pp. 42, 43.

European civilization has been extended afar by colonization. Following the extensive discoveries and enterprises of Spain in the East and West Indies, in Mexico

and South America, the Spanish laws were transported to the newly discovered countries, where, upon their throwing off the Spanish yoke, the civil law of Spain with its Roman ingredients remained as an important element. In their colonial settlements in India, Java, and Japan, the Dutch organized local governments, and their laws became introduced into the East, the most important example being the Dutch laws of Ceylon, which contained a large Roman element. Although the French lost their possessions in North America, a deposit of French civil law remained in the customary law of Lower Canada, and also in Louisiana, whose code of 1824 is regarded by many as the most faithful and systematic compendium of the modern civil law. Morey's Outlines of Roman Law, 210.

In an excellent article on "The Roman law in Legal Education," 51 Albany L. J. 183, Mr. John J. Dolan says in part and in substance: The victory of feudalism in England did much to place the common law at variance with the Roman jurisconsults; and by a historic accident the contest of English laymen for supremacy over the ecclesiastics led to a violent and ill-founded hatred of the very name of Roman law. But as this unreasoning prejudice is fast dissolving, of recent years in England there has been a growing regard for the civil law, fostered largely by the eminent civilians, Brice and Maine. None of the great nations, says Markby (Elements of Law, § 85), founded on the continent of western Europe after the fall of the Roman empire has constructed an independent legal system of its own. France, Italy, Austria, Germany, Holland, and Spain, have each adopted the Roman law as their general or common law, and have only departed from it so far as particular occasions might require. Every gap not

borders; but all Italy passed at length under the laws, as well as under the yoke of the barbarians; belluinas atque ferinas immanesque Longobardorum leges accepit. (b) There was but one circumstance that could give anything like compensation to the inhabitants of Europe for the absence or silence of the civil law, during the violence and confusion of the feudal ages; but that circumstance was the redeeming spirit of civil and political liberty which pervaded the Gothic institutions, and tempered the fierceness of military governments, by the bold outlines and rough sketches of popular representation. (c) It was an

(b) Gravina, de Ortu et Prog. Jur. Civ. sec. 139. The law school at Rome was transferred to Ravenna, where it existed even in the 11th century, and was then removed to Bologna.

(c) The German nations were associations of freemen prior to their invasion of the Roman empire, and their governments were mixed, or limited and elective monarchies, which continued to exist for a time, even after they had established themselves by conquest in the Roman provinces. All the Gothic governments in Europe, whether in Germany, Denmark, France, Spain, or England, were originally under the control of popular assemblies, or national councils of the aristocratic class, which gave their assent to laws, and were the basis of all lawful authority. (x) [Freeman's Growth of the English Constitution.]

filled up by special legislation, or specially recognized custom, has been supplied from the Roman law, and even modern codes largely contain only the ideas of the corpus juris in a nineteenth century dress. The law of obligations (contracts and delicts), of the theory of possession, of the natural modes of acquisition of property by occupancy, accession, specification, is taken entirely from the civil law. As early English law was chiefly a law of real estate, commercial rules and principles, as they rose into importance, were developed from the civil law. Trial by jury, the challenge and the compulsory unanimity of jurors have close analogies in the Roman law; and from the civil law were also derived many common-law writs, much of our present technical phraseology, and all those common-law maxims which are not restricted to feudal institutions.

(x) In the early German Empire, the imperial legislation, which was binding on

every German, and which was mainly occupied with questions affecting the public peace, dealt only to a very limited extent with municipal law; but the tribal systems of law, which were not numerous, then separately prevailed in extensive territories, — in the North, the Frisian and the Saxon; in the middle, the Thuringian and the Frankish; in the South, the Alamannish and the Bavarian. But after the thirteenth century, these few tribal systems were succeeded by the peculiar national or "state" law prevailing in each of about 260 little states consisting of princes, counts of the empire, and imperial cities; and confusion resulted from the over-lapping of these new authorities and of the old tribes, while princes, associations, leagues, parishes, and communes, each added their own rules. Recourse was had to the Roman law as the common law of the country only when the "state" law supplied no principle by which the question could be solved, and

indelible and foul blot on {544} the character of the civil law as digested under Justinian, that it expressly avowed and inculcated the doctrine of the absolute power of the emperor, and that all the right and power of the Roman people were transferred to him. (a) This had not till then been the language of the Roman laws; and Gravina, with much indignation, charges the introduction of the lex regia to the fraud and servility of Tribonian. (b) Be that as it may, the claim of despotism became afterwards a constitutional principle of imperial legislation.

8. Its Revival. — It has been made a question, whether the Pandects were for many ages so entirely lost to the western parts of Europe as has been generally supposed. (c) It is certain, however, that about the time of the assumed discovery or exhibition of a {545} complete copy of them at Amalphi, in

(a) Inst. 1. 2. 6; Prima Præf. Dig. sec. 7; Secund. Præf. Dig. sec. 18, 21; Dig. 1. 4. 1; Code, 1. 14. 12; Dig. 32. 1. 23.

(b) De Romano Imperio, sec. 23, 24. Mr. Gibbon, in his History, viii. 17, 18, seems to think that lex regia was created by the fancy of Ulpian, or, more probably, of Tribonian himself. The lex regia, as mentioned in the Pandects, 1, tit. 4 de constitutionibus principum, lib. 1, and in the Institutes, 1. 2. 6, declares: Quod principi placuit legis habet vigorem; utpote cum lege regia quæ de imperio ejus lata est, populus ei, et in eum omne suum imperium et potestatem conferat. Selden, in his dissertation annexed to Fleta, c. 3, sec. 2, 3, 4, discusses the character of the lex regia; and he says it is evident that it stripped the people of all legislative power; and he places the origin of it back to the time of Augustus Cæsar, when the Roman people transferred all their power and authority to him. In the Institutes of Gaius, recently discovered, it is affirmed that the lex regia was not an interpolation by Tribonian, but was a law actually passed nec unquam dubitatum est guin id (constitutio principis) legis vicem obtineat, cum ipse imperator per legem imperium accipiat. Gai. Instit. Com. lib. 1, sec. 5. But Hugo, in his Hist. du Droit Rom. sec. 277, considers the question on the origin of this law as still wrapped in impenetrable darkness.

(c) The university of Bologna had its professors of the civil law, and the Pandects were the subjects of legal studies there and elsewhere, prior to the era of the discovery of the Florentine copy of them at Amalphi, about the year 1135.

the extent to which Roman doctrines were thus applied, varied greatly in the different states. See Professor Dahn's article, translated in 2 Jur. Rev. 15.

The Code Napoleon (1807), which was based on pre-existing Germanic customary laws, and the Roman law, to the exclusion of feudal law, and which was quite generally the basis of the European Codes until Napoleon's fall, has continued substantially in force in Belgium, a part of Baden,

Holland, and Russian Poland, and of the Grand Duchy of Berg, and similar codes have been adopted in Hayti, the Ionian Islands, Louisiana, and certain of the Swiss cantons. It has been adopted in Wallachia and in Moldavia, and also in Turkey, so far as it is not inconsistent with local customs and the precepts of the Koran. See address of Hon. U. M. Rose, 35 Albany L. J. 446, and Senator Dolph's address, 49 id. 42.

Italy, near the middle of the twelfth century the study of the civil law revived throughout Italy and western Europe with surprising ardor and rapidity. The impression which the science of law, in so perfect a state of cultivation, made upon the progress of society, and the usages of the feudal jurisprudence, was sudden and immense. (a) In defiance of the command of Justinian to abstain from all notes or comments upon his laws, the civil law, on its revival, was not only publicly taught in most of the universities of Europe, but it was overloaded with the commentaries of civilians. From among the number of distinguished names, I would respectfully select Vinnius on the Institutes, Voet on the Pandects, and Perezius on the Code, together with the treatises on the civil law which abound in the works of Bynkershoek, Heineccius, and Pothier, as affording a mass of instruction and criticism most worthy of the attention and diligent examination of the student. (b)

The civil law had followed the progress of the Roman power into ancient Britain, and it was administered there by such an illustrious prætorian prefect as Papinian; and Selden thinks he was¹ also assisted by Paulus and Ulpian. (c) After the Roman

(a) Esprit des Lois, liv. 28, c. 42. The original copy of the Pandects, supposed to have been found at Amalphi, has always been held in profound veneration. It was carried to Pisa, and from thence removed to Florence, and vigilantly guarded. This celebrated manuscript reposes at this day in the Lorenzo-Medicean Library.

(b) Since the beginning of the present century, a new historical school of the civil law has been instituted in Germany, which, in the opinion of some writers, has quite cast into the shade the illustrious jurisconsults of the 18th century. Among the most eminent of this new school may be placed the names of Hugo, Savigny, Niebuhr, Eichhorn, Haubold, &c., who have made profound researches into the antiquities of the Roman law, as well prior to the time of the decemvirs as during the feudal ages. They have undoubtedly enriched the science with acute and searching criticism, and enlarged and philosophical views, which shed light upon the character, wisdom, and spirit of the more ancient institutions. But I cannot but be of opinion (though with much deference) that the importance of the new Germanic school, as contradistinguished from that of the old professors, is greatly exaggerated; and that the Institutes and Pandects of Justinian, with the commentaries and writings of Voet, Vinnius, Heineccius, Pothier, and other illustrious civilians of the old school, furnish quite as much matter for reflection and useful application as the American student of our own common law can well attend to, and at the same time become a thorough master of his profession. It is said that Savigny has in course of publication a large work on the Pandects, in which he goes over the wide field of the Roman law. Such a work, and from so distinguished a scholar and jurist, will undoubtedly be of eminent utility, and a great improvement on the commentaries of the old civilians to whom I have alluded.

jurisprudence had been expelled by the arms of the northern barbarians, and supplanted by the crude institutions of the Anglo-Saxons, it was again introduced into the island, upon the recovery of the Pandects, and taught, in the first instance, with the same zeal as on the continent.

But the rivalship and even hostility which soon afterwards arose between the civil and common law, between the two universities and the law schools or colleges at Westminster, between the clergy and laity, tended to check the {546} progress of the system in England, and to confine its influence to those courts which were under the more immediate superintendence of the clergy. (a) The ecclesiastical courts and the Court of Chancery accordingly adopted the canon and Roman law; and the Court of Admiralty, which was constituted about the time of Edward I., also supplied the defects of the laws of Oleron from the civil law, which was generally applied to fill up the chasms that appeared in any of the municipal institutions of the modern European nations. (b) A national prejudice was early formed against the civil law, and it was too much cultivated by English lawyers. Lord Coke mentions, by way of reproach, that William de la Pole, Duke of Suffolk, in the reign of Henry VI., endeavored to bring in the civil law, which gave occasion to Sir John Fortescue to write his work in praise of the English law; and the same charge was made one of the articles of impeachment against Cardinal Wolsey. (c) But the more liberal spirit of modern times has justly appreciated the intrinsic merit of the Roman system. Sir Matthew Hale, according to the account of Bishop Burnet,(d) frequently said, that the true grounds and reasons of law were so well delivered in the Digest, that a man could never well understand law as a science without first resorting to the Roman law for information, and he lamented that it was so little studied in England. And in Lane v. Cotton (e) that strict English lawyer, Lord Holt, admitted that the laws of all nations were raised out of the ruins of the civil law, and that the

(a) Blackst. Comm. i. Introductory Lecture; Reeves's History of the English Law, i. 81, 82; Millar's Historical View of the English Government, b. 2, c. 7, sec. 3.

(b) 3 Reeves's Hist. 198. [But see Notara v. Henderson, L. R. 7 Q. B. 225, 233.] .

(d) Life of Sir M. Hale, 24. (e) 12 Mod. 482.

principles of the English law were borrowed from that system,

and grounded upon the same reason. (f)

{547} The value of the civil law is not to be found in questions which relate to the connection between the government and the people, or in provisions for personal security in criminal cases. In everything which concerns civil and political liberty, it cannot be compared with the free spirit of the English and American common law. (a) But upon subjects relating to private rights and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice. I prefer the regulations of

(f) As the Roman jurisprudence, polity, and government existed in ancient Britain, as a Roman province, for upwards of three centuries and a half, the Roman civilization, with its laws, usages, language, arts, and manners, must have left a deep and permanent impression, and have become intermixed and incorporated with Saxon laws and usages, and constituted the body of the ancient English common law. A learned and able article in the Law Review and Quarterly Journal of British and Foreign Jurisprudence [v. 99], for November, 1846, entitled "Origin of the Common Law," concludes that the political government, the civil jurisprudence, and the judicial establishments which prevailed in England in the Anglo-Saxon period, had their main source in the Roman Law. This was the result of Mr. Spence's researches, in his Equitable Jurisdiction of the Court of Chancery, and which the very learned and candid author to whom I have alluded adopts, after a full investigation.

(a) The principles of the English common law, and the freedom and spirit which pervaded its institutions, civil and political, guided and sustained the American Revolution. The Congress of 1774 claimed and asserted, as their indubitable right, the rights of free and natural-born subjects, — such as the rights of life, liberty, and property, and the common law of England, to which their ancestral emigrants, and they, their descendants, were entitled; the right of the people to participate in the legislative power, and to be tried by their peers of the vicinage; and the benefit of such English statutes as existed at the time of their colonization, and were applicable to their circumstances. (Journal of Congress of October 14, 1774.) The fundamental English statutes, and which are the basis of English freedom, and clothed with the sanctity of constitutional provisions, are Magna Charta, the abolition of military tenures, the petition of right, the habeas corpus act, the bill of rights; and if I were reduced to the alternative of choosing for my protection of life, liberty, and property, between the Roman civil law and those common-law and statutory institutions to which I have alluded, I should infinitely prefer the latter, even to the entire compilation of the Institutes, the Pandects, and the Code of the Emperor Justinian. I agree entirely with the English judges at Westminster, in their answers to the celebrated articles, the articuli cleri, exhibited against them by Archbishop Bancroft, in the time of J. I., in which they assert the superiority of trial of fact by a jury, and the viva voce evidence of witnesses to the paper proofs in the civil-law courts, and in their duty to issue writs of habeas corpus in cases of undue imprisonment. See 2 Co. Inst. on the statute of 3 Ed. III., where a copy of the articles, and the answers to them, are given.

the common law upon the subject of the paternal and conjugal relations, but there are many subjects in which the civil law greatly excels. The rights and duties of tutors and guardians are regulated by wise and just principles. The rights of absolute and usufructuary property, and the various ways by which property may be acquired, enlarged, transferred, and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Roman law, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So the rights and duties flowing from personal contracts, express and implied, and under the infinite variety of shapes which they assume in the business and commerce of life, are defined and illustrated with a clearness and brevity without example. In all these respects, and in many others, which the limits of the present discussion will not permit me to examine, the civil law shows the proofs of the highest cultivation and refinement; and no one who peruses it can well avoid the conviction, that it has been the fruitful source of those comprehensive views and solid principles which have been applied to elevate and adorn the jurisprudence of modern nations.

The Institutes ought to be read in course, and accurately studied, with the assistance of some of the best commentaries {548} with which they are accompanied. Some of the titles in the Pandects have also been recommended by Heineccius to be read and reread by the indefatigable student. The whole body of the civil law will excite never-failing curiosity, and receive the homage of scholars, as a singular monument of wisdom. It fills such a large space in the eye of human reason; it regulates so many interests of man as a social and civilized being; it embodies so much thought, reflection, experience, and labor; it leads us so far into the recesses of antiquity, and it has stood so long "against the waves and weathers of time," that it is impossible, while engaged in the contemplation of the system, not to be struck with some portion of the awe and veneration which are felt in the midst of the solitude of a majestic ruin.¹

¹ There are several later works than perhaps better for the reading of a student, those mentioned by the author, which are La Cité Antique, by Fustel de Coulanges,

Maine's Ancient Law, and the chapters on Roman Law in Austin on Jurisprudence, are all famous and all full of light Among the best manuals of the law are Ortolan's Explication Historique des Instituts de I'Empereur Justinian, and Demangeat's Cours Élémentaire de Droit

Romain. A good short one is Scheurl's Lehrbuch der Institut., and Heineccius's Recitationes is still very valuable. The best history is said to be the German one of Walter. Other German works of reputation are Windscheid's Pandekten and Ihering's Der Geist des Römischen Rechts.

END OF VOL. I.