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whose History of the Roman Law was translated by Dr. Beaver, and pnblishedin 1724—from Gibbon's eighth volume of Iiis Roman History, and Butler's Horse Jurídica? Subseciva;: 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 Ayloffe, Schömberg, Halifax, and Browne: but neither Domat nor Wood, are superseded by any or all the rest.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 the titles there are more than a thousand. Ludewig, (Vit. Justiniani, p. 2(58,) wishes to shake off this pedantic yoke; and 1 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. 41.5). 1. 3, means Digest, book 41, title 9, law 1, section 3, which the foreign jurists would cite thus, L 1. § 3, or § 3. 1. 1. Dig. pro dote: or ff. pro dole: Dig. and ff being equivalent: that is, section 3 of law 1, of the book and title of the Digest or Pandects which is entitled pro dole. The two letters ff designate nothing but a careless mode of writing the Greek letter л, the first letter of nardixrui, Pandects, "General Receivers;" which was a common title of the Greek miscellanies. Plin. Picef. 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. (orff) de httredit vtl act. Or, the 7th section of the 2d law of the book and title of the Digest or Pandects, that begins De hrereditale vcl actione vendita.
In like manner, Cod. 7. 68. 2, means the 7th book, G8lh title, and 2d law of the Justinian Code. The foreign writers would cite it, 1. 2. Cod. ii vmis ex pluribus appellaverit. In like manner Cod. 8. 32. 1. would be cited by the civilians on the continent of Europe, I. 1 Cod.fi units ex pluribus heredibus créditons &ic.; meaning the first law of the Codex that is entitled with those wordsi Again, 1.1. tit 52. Cod. dt hit guiante.. 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 in the seventh year of that emperor's reign; the Institutes were compiled after the Digest but published a month before, to wit, 21st November, A. D. 533. Wyndham v. Chetwind, 1 Burr. Rep. 426. The Edicta the .Yovelle Constitutionen or Auhenticce, the Basilica, &c. were subsequent additions or innovations. 8 Gihb. 45. AG. lu citing the Authentics, there may appear some ambiguity. The Novels are entitled, Authenticœ, seu Novell» Constitutione». These are cited either by the collation, title and chapter, or by the uumber of the novel, or by the beginning words of the title of the collation. Thus, Novell. 8. 1. Nov. tit. 8. ch. L Auth. Collat. 2. 2. 1. ch. 1. tit. ut judices, Auth. Coll. 2, mean the same tiling; viz. the first chapter of the 8th Novel Constitution, being the first chapter of the second title, (beginnig vi judices,) of the second collution.
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 Fernere, Aulhentica cum testator Codice ad legem Falcidiam, means the summary of the Authenticœ beginning ted 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 Ferrier'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 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 intended a/so to have inserted the Latin text of the Leges Rcgite, 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 think with Gibbon, 8 Rom. Hist. 5, that the Caius (Sextus) Papirius, who is said to have revised tbe Laws of Numa, left nothing written; and that the Jus Papirianum of Granius Flaccus (Lacinianus) was compiled in the time of Cœsar. Gibbon speaks very slightingly of the attempt to restore these laws, (thirty-six altogther) by die Abbe Terasson. Nor do I give any credit to the tables, from whence Franciscu/Balduinns' and Paulis Manutius have given us eighteen of these laws, to which Pandulphus Prateius has added six. The twelve more collected from various sources by Terasson, I have had no opportunity of examining. Those I have mentioned, I find in Rosini Aniiq. Rom. Corp. quto. 1G85. Amete!, page 556. who has given us a collection of laws of Romulus and Numa, of no moment; and whether the collection be as complete as the sonrces of information will furnish, I have no means of investigating.
Tbe laws of the Twelve Tables are collected from scattered passages in Cicero—Dionysius Halicarnasseus—Livy—Sextus Pompéis—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 Franciscos Hotomannus, and Joannes Crispinus; another of Justus Lipsius; another of Ludovicus Charandas; and another of Theodorus Marcilius ; as well ns the edition and arrangement of the same laws by D. Gothofred at the end of his Corpus Juris Civilis.
That the reader, (in the words of Gothofred) may not be entirely ignorant, rather than that he may be accurately informed what the Laws of the Twelve Tables were, non tan ut ea Lector cognoscerit, qnam ne ignorarct, I shall insert Hooke's translation from Cutrou 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 bave inserted the translation in the appendix.
Lastly, I have given a catalogue of the best writers on the Roman law, collected from the Bibliothèque of Camus, the notes and observations of Gibbon in his Roman History, of Butler in his Herœ Juridicœ SvbttevKB, 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, Braoton, 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.
Sepieniber 30th, 1812.
05a* The reader is requested to uote the references to the Addenda et Cor» rigendft.
The Roman state was nt first governed solely by the authority of Romulus; but, when the people were increased, he divided them into thirty Curia;, which he constantly assembled for the confirmation of his laws: and this practice of consulting the people was afterwards followed by the Romin kings, all whose laws were collected by Sertus Papirius, and called jus Papirianum, from the name of their compiler. But, after the expulsion of Tarquín and the establishment of the republic, the greatest part of those regal laws soon bee :me obsolete; and those, which still remained in force, related chiefly to the priesthood. It thus happened, that the Romans for many years labored under great incertainty in respect to law in general; for, from the commencement of the consular suite to the time of establishing the xti tables, they were not governed by any regular system. But ot length, the people growing uneasy at the arbitrary power of their magistrates, it was resolved, after much opposition from the patricians, that some certain rule of government should be fi <ed upon: and, to effect this purpose, a decemvirate was first appointed, composed solely of senators, who, partly from the laws of Greece and part y from their own laws still subsisting, framed ten tables, which, in the year of Rome 303, wore submitted to the inspection of the people, and highly approved of. These however were still thought to be deficient; and therelbre m the year following, when a new decemvirate was appointed, which consisted of seven patricians and three plebeians, they added two tables to the former ten: and now the whole was regarded but as one body of law, and entitled, by way of eminence, the twelve tub'es. But, although these new collected laws were most deservedly in the highest esteem, yet their number was soon found insufficient to extend to all matters of controversy, their conciseness was often
Curia] Vid. Pomponium, ft". 1. t. 2. Were submitted to the inspection of De origine juris. the people.] "Tum legibus condendis
opera dabatur, ingentique hominum ex
Jus Papirianum '] *• Is liber appella- pectatione prcpositis decern tabulis, poptar jus civile Papirianum, non quia Pa- ulum ad concionem advocaverunt; et, pirlus de suo quicquam adjecit, sed quod quod bonum, faustum, felixque repub■eges sine ordine latas in unum compos- lies?, ipsis, liberisque eorum esset, ire et nit." vid. ft". I. t. 2. 1.2. This body of legere leges propositas jussere : se, quanlaw is not now extant, nor any part of turn decern hominum ingeniis provideri it, except a short extract of 8 or 10 lines, potuerit, omnibus, summis, infimisque which may be read in the 3d book of jura ajquasse; plus pollere multoruin inMacrobius's Saturnalia, cap. 11. genia consiliaque. Versarent in animii
sec um unamquninque rem; agitarent
From the commencement of the con- deinde sermonibus; atquc in medium, ■ular state ] The consular state was es- quid in quaque re plus, minuave eiset, tablished in the year U. С 245, and the conferrent. Eas leges habiturum populaws of the xii tables were not perfected, lum Romanum, quas consensus omnium till the year 304. non jusaisse latas magis, quam tulisw,
vidert posset." Liv. 1. iii. cap. 33, 34.
the occasion of obscurity, and their extraordinary severity called aloud for mitigation. It therefore became a conséquence", that the twelve tables continually received some explanation, addition, or alteration, by virtue of a new law, a senatorial decree, or a plebiscite. And here it will be proper to observe, how they differ: a plebiscite was an ordinance of the plebeians or commonalty, which had the force of a law, without the authority of the senate; and a senatus-consullum, or senatorial decree, was an order made by the senators assembled for that purpose; but to constitute a law, properly so called, it was necessary, that it should first be proposed by some magistrate of the senate, and afferwards lie confirmed by the people in general? Recourse was also had to the interpretation and decisions of the learned, which were so universally approved of, that, although they were unwritten, they became a new species of law, and were called auctoritas prudentum and jus civile. It must here be observed, that, soon niter the establishment of the twelve tables, the learned of that time composed certain solemn forms, called actions of law, by which the process of all courts and several other acts, as adoption, emancipation, &c. were regulated. These forms were, for above a century kept secret from the public, being in the hands only of the priests and magistrates; but about the year U. C. 448 they were collected and published by one Flavius, a scribe; and, from him, called the Flavian law; for which acceptable present the people in general showed many instances of their gratitude. But, as this collection was soon found to be defective, another was afterwards published by Seztus JE!iu3, who made a large addition of many new forms, which passed under the title of/us JElianum, from the name of the compiler.
And their extraordinary severity ] One of the laws, here hinted at, is the following: ast, si plurcs crunl rci, tertiis nundims partis seeanto; si plus minusve secuerint, se fraude esto: si volent uls Tiberirn peregre renundanto. Grav, op. p. 284. i. e. u If a debtor is insolvent to several creditors, let his body be cut in peices on the third market-day. It amy be cut into more or fewer pieces with impunity; or, if his creditors consent to it, let him be sold to foreigners beyond the Ti/ber." Hook's Roman kist. vol. 1. p. 316. »
Such is the sense, in which this law has been generally understood by both ancients and moderns. But it lias lately received quite a new construction, very much to the honor of ancient Home, from two authors, not loss distinguished for their abilities in literature than their knowledge in the civil law, who from many authorities interpret the word seeanto, as implying simply a diviston, and the word partis, as denoting the parts of the debtor's estate, and not the parts of his body; so that they understand the expression partis stranto, not as a direction, that the body of an insolvent debtor shall be cut into pieces, but as if it meant, that his estate and services should be divided among his creditors in proportion to their respective claims, vid. Bijnher.shoelí's works, vol. 1. obs. 1. and Dr. Taylor's commentary, Dé inope debitare dissecando.
Bat the reader il left to frame hii own
judgment of this interpretation, when he has read the apology for this law, which Aulns Gcllius has given us in the person of Cwcilius; and also the opinion of Tertullinn, who was a lawyer by profession. "Nihil profecto [says Crrct/ius] "immitius, nihil immanlus, nisi, ut re ipsa apparot, eo consiliu tanta immanitas рсешв denunciata est, ne ad earn unquam perveniretur: addiei nanique nunc et vinciri inultos videmua; disscctum esse antiquitus neminem, equidem neque legi ñeque audivi." Autus Gell. lib. xx. cap. 1. Grav. lib. vii. cap. 72.
And Tcrtullian writes as follows: "Sed et, judicatos in partes sccari a creditoribus, leges erant; consensu tarnen publico crudelitas postea erasa est." Apologet, cap. 4.
Solemn forms.] "Civile jus, repositum in penetralibus pnntificum, Cn. Flavius evulgavit, fnstosque circa forum in albo proposuit, ut, quando lege agi posset, sciretnr." Lin. lib. ix. cap. 46. "Veteres, qui huic sciential prœfuerunt, obtinendui alque augendœ potential sure causa, pervulgan artein suam noluerunt, &c.'' Cic. de orat. lib. 1. c. 46. u Jus civile per multa saicula inter sacra ca?remoniasque Deorum immorlalium sol.sque pontificibus notum." Val. Max. 1. ii. c. 5.
The Flavian law.] "Postea, cum Appius Claudius proposuisset, et ad formam rede gisset has actiones, Cnœus Flavius