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VV HEN I first undertook to publish Justinian's Institutes (that I might Dot entirely renounce my accustomed studies) I contemplated nothing more than a republication of Harris's Edition, which has now become scarce; together with some additional notes, and a brief history of Roman Jurisprudence, by way of preface. On reading with attention Harris's Translation, I found the language so verbose, that I sat down to translate the first Book of the Institutes in my own way. It is true, my ear was better satisfied with my own performance; but I found so many co-incidences of expression, and so little room to improve the fidelity of Harris's Version, that I determined to adopt it as the groundwork of the present publication; and alter it no further, than to condense the expressions where they seemed to me needlessly diffuse. By so doing, I have abridged it to the amount of about one fifth of the whole, without sacrificing any thing necessary to the sense. Some few periphrases I have retained, and some I have added, when the original seemed to require elucidation; but, upon the whole, my aim has been to render this a faithful translation in as few words as possible. Perhaps I may be blamed for taking this liberty with Dr. Harris's work. Had it been a piece of poetry, I should have left it untouched; but meaning to give to the public as good a translation as I could furnish, I saw no reason why I should needlessly occupy the time of the reader, or increase the bulk of the book, by religiously retaining all its redundancies and imperfections.
I have inserted most of Harris's Notes, citing him where I have done so; but they are few and meagre. I have generally consulted the paraphrase of Theophilus, the short comments to the Corpus Juris Civilis of Gothofred, the translations and notes of Ferriere, Wood's Institutes, and Taylor's Elements of the Civil Law. I would gladly have procured, if I could, more sources of information, and I have taken much pains for that purpose, but in vain. The want of books has not been the only difficulty I have met with. All the notes and references I had collected, •were consumed by fire on my road from Northumberland hither, last November. An accident afterwards deprived me of my eye-sight for about a week, and rendered exertion painful to me for a considerable time. I could ill spare these defalcations from the occasional leisure which m\ chemical lectures allowed me, but I have endeavoured to make the best use of the opportunities that remained.
Unable to procure the books I sent for, I have declined for the present any history of the Roman law. Those who cannot resort to the vi PREFACE.
more voluminous and laborious works enumerated in the appendix, may collect much useful knowledge from the shorter and more popular compilations of Ferriere, whose History of the Roman Law was translated by Dr. Beaver, and published in 1724—from Gibbon's eighth volume of his Koman History, and Butler's Horae Juridical Subse'civae: together with the Roman Antiquities of Kennet and Adams: all of them works of merit, and not scarce.
A knowledge of the Civil Law, sufficient for the purposes of an American Lawyer, north of New-Orleans, may be obtained from Domat and Wood, and the Treatises of Drs. Ayloffe, Schomberg, Halifax and Browne: but neither Domat nor Wood, are superseded by any or all the rest. Indeed a condensed digest of the Civil Law, is yet a desideratum; which if the present publication should be approved of, I may be tempted to undertake.
"The civilians of the darker ages," (says Gibbon, 8 Rom. Hist. 2.) "have established an absurd and incomprehensible mode of quotation, *' which is supported by authority and custom. In their references to the "Code, the Pandects, and the Institutes, they mention the number, not "of the book but only of the law, and content themselves with reciting •'the first words of the Title to which it belongs: and of these titles "there are more than a thousand. Ludewig, (Vit. Justiniani, p. 268,) "wishes to shake off this pedantic yoke; and I have dared to adopt the "simple and rational method of numbering the book, title, and law."
The English writers generally follow the mode of citation recommended by Gibbon, and as I think it the most convenient, I have also adopted it. Thus, Inst 4. 15. 2, means, Institutes, book 4, title 15, section 2. Dig. 41. 9. 1. 3, means Digest, book 41, title 9, law 1, section 3, which the foreign jurists would cite thus, 1. 1. § 3, or § 3.1. 1. Dig. pro dote: or ff pro dote: Dig. aw&ff being equivalent: that is, section 3 of law 1, of the book and tide of the Digest or Pandects which is entitled pro dote. The two letters ff" designate nothing but a careless mode of writing the Greek letter *, the first letter of *u,}tXT*i, Pandects, " General Receivers;" which was a common title of the Greek miscellanies. Plin. Prasf. ad Hist. Natur., 8 Gibbon's Rom. Hist. p. 37. 76.
So, D. or Dig. 18. 4. 2. 7, is the same with § 7.1. 2. Dig. (or ff) de hocredit, vel act. Or, the 7th section of the 2d law of the book and title of the Digest or Pandects, that begins De hareditate velactione vendita.
In like manner, Cod. 7. 68. 2, means the 7th book, 68th title, and 2d law of the Justinian Code. The foreign writers would cite it, 1. 2. Cod. si units ex pluribus appellaverit. In like manner Cod. 8. 32. 1. would be cited by the civilians on the continent of Europe, 1. 1. Cod. si unus ex pluribus heredibus creditoris, &?c; meaning the first law of the Codex that is entitled with those words.
Again, 1. 1. tit. 52. Cod. de his qui ante. I should cite thus, Cod. 6. 52. 1, meaning the 6th book, 52d title, and 1st law of the Justinian Code.
It may be noted, that the Code, the Digest, and the Institutes, form one system; of which the Code was first compiled and published in the third year of Justinian. Then the Digest was compiled, and published PREFACE. vii
m the seventh year of that emperor's reign; the Institutes were compiled after the Digest, bat published a month before, to wit, 21st November, A. D. 533. Wyndham v. Chetwind, 1 Burr. Rep. 426. The Edicta, the Novell* Constitutiones or Authenticce. the Basilica, &c. were subsequent additions or innovations. 8 Gibb. 45- 46.
In citing the Authentics, there may appear some ambiguity. The Novels are entitled, Authenticae, seu Novellae Constitutiones. These are cited either by the collation, title and chapter, or by the number of the novel, or by the beginning words of the title of the collation. Thus, Novell. 8. 1. Nov. tit. 8. ch. 1. Auth. Collat. 2. 2. 1. ch. 1. tit. ut judices, Auth. Coll. 2, mean the same thing; viz. the first chapter of the 8th Novel Constitution, being the first chapter of the second title, (beginning utjudices) of the second collation.
But a summary of the Authentics is inserted in the Justinian Code, usually in italic character, and these are referred to by the Code under which they are inserted. Thus in the instance given by Ferriere, Authentica cum testator, Codice ad legem Falcidiam, means the summary of the Authentics beginning sed cum testator, inserted in the 50th title of the Justinian Code, ad legem Falcidiam. These observations are necessary to an English student, in addition to Ferriere's directions, which I have inserted as a second appendix. The double index to the generality of editions, will render these remarks intelligible.
As to the Edicts of Justinian, the Leonine Constitutions, the Basilica, and other tracts sometimes published with the Corpus Juris, they are easily distinguished, by a mode of reference that involves no ambiguity.
Generally speaking, I have actually consulted all the passages referred to in the Code and Digest by numeral figures, after the English mode of citation. The most part of the passages referred to by the foreign mode of reference, I have taken at second hand. Generally speaking also, the references to the English and American reporters, have been made after actually consulting the cases, for the point to which they are applied.
I shall insert as an appendix, Ferriere's Chap, on the mode of citation, and the abbreviations in use, in order to'render more intelligible to the English reader, the references of foreign jurists.
I intendtd also to have inserted the Latin text of the Leges Regice, or Jus Papirianum, and the laws of the Twelve Tables. But I greatly doubt about the authenticity of the Jus Papirianum; and I incline to th.nk with Gibbon, 8 Rom. Hist. 5< that the Caius (Sextusj Papirius, who is said to have revised the Laws of Numa, left nothing written; and that the Jus Papirianum of Granius Flaccus (Lacinianus) was compiled in the time of Csesar. Gibbon speak3 very slightingly of the attempt to restore these laws, (thirty-six altogether) by the Abbe Tera3son. Nor do I give any credit to the tables, from whence Franciscus Bukluinus, and Paulus Manutius have given us eighteen of these laws, to which Pandulphus Prateius has addc d six. The twelve more collected from various sources by Terasson, I have had no opportunity of examining. Those I have mentioned, I find in Rosiiii Antiq. Rom. Corp. quto, 1685. Amstcl. page 556. who has given us a collection of laws of vm PREFACE.
Romulus and Numa, of no moment; and whether the collection be as complete as the sources of information will furnish, I have no means of investigating.
The laws of the Twelve Tables are collected from scattered passages in Cicero—Dionysius Halicarnasseus—Livy—Sextus Ppmpeius—Festus—Pliny—Macrobius—Agellius—Pomponius—and from the Justinian Digests. The Latin is obsolete and obscure, and stands in need of a good comment.
I have before me in Rosinus, the collection and arrangement of Franciscus Hotomannus, and Joannes Crispinus; another of Justus Lipsius; another of Ludovicus Charondas; and another of Theodorus Marcilius; as well as the edition and arrangement of the same laws by D. Gothofred at the end of his Corpus Juris Chilis.
That the reader, (in the words of Gothofred) mav not be entirely ignorant, rather than that he may be accurately informed what the Laws of the Twelve Tables were, non tarn ut ea Lector cognosceret, auamne ignoraret, I shall insert Hooke's translation from Catrou and Rouille. It is, as the subject requires, paraphrastic; but after perusing the Latin text, and attending to the comments collected by Rosinus, and those of D. Gothofred, I am satisfied that the text is as accurately paraphrased as can reasonably be expected; and therefore I have inserted the translation in the appendix.
Lastly, I have given a catalogue of the best writers on the Roman law, collected from the Bibliotheque of Camus, the notes and observations of Gibbon in his Roman History, of Butler in his Norte Juridica Sub.secivce, and my own reading.
I have said nothing about the utility of a knowledge of the Civil Law. Professional men who carefully peruse the reported cases, whether of the British or the American courts, will find from the frequency of reference to the Justinian Collections, that a competent knowledge of the general principles of the Civil Law, is expected as a matter of course among the Bar, as well as upon the Bench. Indeed the earliest authors on the Laws of England, Bracton, Fleta, &c. borrow greatly from the Civil Law. I refer for instance to the first twenty or thirty pages of Bracton, who borrows not only his arrangement, but the substance and frequently the expressions from the Civil law. Nor can I see how any man can be considered as a well read lawyer, who is ignorant of a system, matured by the experience of the most polished and powerful nation of antiquity, and which still forms the body of modern Law, in almost every nation on the continent of Europe.
September 30th, 1812.
$CT* The reader is requested to note the references to the Addenda e.t Corrigenda.