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 Pompeius-Festus-Pliny-Macrobius-Agellius-Pomponius-and from the Justi nian 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 The Latin is obsolete and obscure, and stands in need of a good comment.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 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 tam ut ea Lector cognosceret, quam ne 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 ji, the appendix.

Lastly, I have given a tatalogue of the best writers on the Roman law, collected from the Bibliotheque of Camus, the notes and observations of Gibbon in his Ronta History, of Butler in his Hora Juridica Subseciva, 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.

THOMAS COOPER.

The reader is requested to note the references to the Addenda et Corrigenda.

A BRIEF ACCOUNT

OF THE

Rise and Progress of the Roman Law.

(Dr. Harris.)

THE Roman state was at 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 Roman kings, all whose laws were collected by Sextus Papirius, and called jus Papirianum, from the name of their compiler. But, after the expulsion of Tarquin and the establishment of the republic, the greatest part of those regal laws soon became obsolete; and those, which still remained in force, related chiefly to the priesthood. It thus happened, that the Romans for many years laboured under great incertainty in respect to law in general; for, from the commencement of the consular state to the time of establishing the XII tables, they were not governed by any regular system. But at 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 fixed upon: and, to effect this purpose, a decemvirate was first appointed, composed solely of senators, who, partly from the laws of Greece and partly from their own laws still subsisting, framed ten tables, which, in the year of Rome 303, were submitted to the inspection of the people, and highly approved of. These however were still thought to be deficient; and therefore in 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 intitled, by way of eminence, the twelve tables. But, although these new collected laws were most deservedly in

Curia.] Vid. Pomponium, ff. 1. t. 2. De origine juris.

Jus Papirianum.] "Is liber appellatur "jus civile Papirianum, non quia Papirius "de suo quicquam adjecit, sed quod leges "sine ordine latas in unum composuit." vid. ff. 1. t. 2. 1. 2. This body of law is not now extant, nor any part of it, except a short extract of 8 or 10 lines, which may be read in the 3d book of Macrobius's Saturnalia, cap. 11.

b

the highest esteem, yet their number was soon found insufficient to extend to all matters of controversy, their conciseness was often the occasion of obscurity, and their extraordinary severity called aloud for mitigation. It therefore became a consequence, 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-consultum, 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 afterwards be 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 after the establishment of the twelve tables, the learned of that time composed certain solemn forms, called actions of law, by

66

66

"liberisque eorum esset, ire et legere leges "propositas jussere: se, quantum decem "hominum ingeniis provideri potuerit, om"nibus, summis, infimisque jura æquasse; "plus pollere multorum ingenia consiliaquè. Versarent in animis secum unamquamque rem; agitarent deinde sermoni"bus; atque in medium, quid in quaque re "plus, minusve esset, conferrent. Eas leges habiturum populum Romanum, quas consensus omnium non jussisse latas magis, quam tulisse, videri posset." Liv. 1. iii. cap. 33, 34.

And their extraordinary severity.] One of the laws, here hinted at, is the following: AST, SI PLURES ERUNT REI, TERTIIS NUNDINIS PARTIS SECANTO; SI PLUS MINUSVE SECUERINT, SE FRAUDE ESTO: SI VOLENT ULS TIBERIM PEREGRE VE

NUNDANTO. Grav. op. p. 284. i. e. "If a "debtor is insolvent to several creditors, "let his body be cut in pieces on the third "market-day. It may be cut into more or "fewer pieces with impunity; or, if his 'creditors consent to it, let him be sold "to foreigners beyond the Tyber." Hook's Roman hist, vol. 1. p. 316.

66

Such is the sense, in which this law has heen generally understood by both ancients and moderns. But it has lately received quite a new construction, very much to the honour of ancient Rome, from two authors, not less distinguished for their abilities in literature than their knowledge in the civil law, who from many authorities interpret the word secanto, as implying simply a division, 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 secanto, 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. Bynkershoek's work's, vol. 1. obs. 1. and Dr. Taylor's commentary, De inope debitore dissecando.

But the reader is left to frame his own judgment of this interpretation, when he has read the apology for this law, which Aulus Gellius has given us in the person of Cacilius; and also the opinion of Tertullian, who was a lawyer by profession. "Nihil profecto [says Cæcilius]" immitius, nihil immanius,

66

nisi, ut re ipsa apparet, eo consilio tanta "immanitas pœnæ denunciata est, ne ad eam unquam perveniretur: addici namque 66 nunc et vinciri multos videmus; dissectum esse antiquitus neminem, equidem neque "legi neque audivi" Aulus Gell. lib. xx. cap. 1. Grav: lib. vii. cap. 72.

66

And Tertullian writes as follows. "Sed et, judicatos in partes secari a creditori"bus, leges erant; consensu tamen publico "crudelitas postea erasa est." Apologet. cap. 4.

Solemn forms.] "Civile jus, repositum "in penetralibus pontificum, Cn. Flavius "evulgavit, fastosque circa forum in albo 66 proposuit, ut, quando lege agi posset, "sciretur." Liv. lib. ix. cap. 46. " Veteres, "qui huic scientiæ præfuerunt, obtinendæ 66 atque augendæ potentiæ suæ causa, per"vulgari artem suam noluerunt, &c." Cic. de orat. lib. 1. c. 46. "Jus civile per multa "sæcula inter sacra cæremoniasque Deo

which the process of all courts and several other acts, as adoption, emancipation, &e. 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 Sextus Elius, who made a large addition of many new forms, which passed under the title of jus Elianum, from the name of the compiler.

In process of time there also arose another species of law, called the pratorian edicts; which, although they ordinarily expired with the annual office of the prætor, who enacted them, and extended no further than his jurisdiction, were yet of great force and authority; and many of them were so truly valuable for their justice and equity, that they have been perpetuated as laws.

These were the several principal parts of the Roman law, during the free state of the commonwealth; but, after the re-establishment of monarchy in the person of Augustus, the law received two additional parts; the imperial constitutions and the answers of the lawyers.

The constitutions soon became numerous, but were not framed into a body, till the reign of Constantine the great; when Gregorius and Hermogenes, both lawyers of eminence, collected in two codes the constitutions of the pagan emperors, from the reign of Adrian to that of Dioclesian inclusive: but these collections were not made by virtue of any public authority, and are not now extant.

Another code was afterwards published by order of the emperor Theodosius the younger, which contained the constitutions of all the christian,

"rum immortalium solisque pontificibus "notum." Val. Max. l. ii. c. 5.

The Flavian law.] "Postea, cum Ap"pius Claudius proposuisset, et ad formam "redegisset has actiones, Cnaus Flavius "scriba ejus, libertini filius, subreptum li"brum populo tradidit; et adeo gratum fuit "id munus populo, ut Tribunus plebis fieret, "Senator, et Edilis curulis, &c." ff 1. t. 2. De orig. juris. Liv. lib. ix. sub fin. Val. Max. lib. ii.cap. 5. Aul. Gell. lib. vi. c. 9.

Tully, in his oration for Muræna, is remarkably severe upon these forms, and treats both them and their abettors with that just contempt, which they most certainly deserve. "Primum dignitas in tam tenui "scientia quæ potest esse? res enim sunt

" parvæ; prope in singulis literis atque in"terpunctionibus occupatæ, &c. Ti. Tc." Pro Murana, cap. 6. Epist. ad Att. lib. vi. ep. 1. De oratore, lib. 1. cap. 41.

But, notwithstanding this, the use of particular forms was very strictly adhered to, till the reign of Constantine the emperor, who, to his great honour, put an end to these subtilities. His rescript to Marcellinus is in these words. "Juris formulæ, aucupatione "syllabarum insidiantes, cunctorum acti"bus radicitus amputentur." Cod. 2. t. 58.

Gregorius and Hermogenes.] vid. Gothafredi prolegom. ad cod. Theodosianum, cap. 1. et Heineccii hist. jur. civ. lib. 1. cap. 5. sect. 368, &c.

emperors, down to his own time; and this was generally received both in the eastern and western empires.

But these three codes were still far from being perfect; for the constitutions, contained in them, were often found to be contradictory; and they wanted, but too plainly, that regulation, which they afterwards underwent through the care of Justinian; who in the year of Christ 528 ordered the compilation of a new code, which was performed and published the year following by Tribonian and others; the three former codes being suppressed by the express ordinance of the emperor. When this work was thus expeditiously finished, the emperor next extended his care to the Roman law in general, in order to render it both concise and perfect. The answers and other writings of the ancient lawyers had long since acquired the full force of a law, and were now so numerous as to consist of near two thousand volumes; from which, by command of Justinian, the best and most equitable opinions were chosen; and being first corrected, where correction was necessary, were afterwards divided into fifty books, called digests or pandects: and, that they might be the more firmly established, the emperor not only prohibited the use of all other law-books, but also forbad, that any comment should be written upon these his new digested laws, or that any transcript should be made of them with abbreviations. But, during the time of compiling the di

By the express ordinance.]" Hunc igitur "codicem in æternum valiturum judicio tui "culminis intimare perspeximus, ut sciant "omnes tam litigatores quam disertissimi "advocati, nullatenus eis licere de cætero "constitutiones ex veteribus tribus codici“bus, vel ex iis, quæ novellæ constitutiones "ad præsens tempus vocabantur, in cogni❝tionalibus recitare certaminibus, sed so"lum, eidem nostro codici insertis, consti"tutionibus necesse est uti; falsi crimini "subdendis his, qui contra hoc facere ausi "fuerint," &c. De Justinianeo codice confirmando.

digestis, et constitutionibus a nobis com"positis, aliquid vel recitare vel ostendere "conetur; nisi temerator velit falsitatis cri"mini subjectus una cum judice, qui eorum "audientiam patiatur, pœnis gravissimis la"borare." Cod. 1. t. 17. 1. 2. § 19.

"Hoc autem tempestivum nobis videtur "et in præsenti sancire, ut nemo neque eorum, qui in præsenti juris peritiam ha"bent, neque, qui postea fierent, audeat commentarios his legibus adnectere; nisi "velit eas in Græcam vocem transformare "sub eodem ordine eademque consequen tia, sub qua et voce Romana positæ sunt; "hoc quod Græci xara roda dicunt," &c. Cod 1. t. 17. 1. 2. § 21.

Near two thousand volumes.] "Postea vero, maximum opus aggredientes, ipsa "vetustatis studiosissima opera, jam pene "confusa et dissoluta, eidem viro excelso “(Triboniano) permisimus tam colligere "quam certo moderamine tradere. Šed, "cum omnia percontabamur, a præfato viro "excelso suggestum, duo pene millia libro66 rum esse conscripta, quæ necesse esset "omnia et legere et perscrutari; quod cœ"lesti fulgore, et summæ trinitatis favore, "confectum est, secundum nostra mandata, 66 quæ ab initio ad memoratum virum'excel"sum fecimus, et in quinquaginta libros cr omne, quod utilissimum erat, collectum "est; et omnes ambiguitates decisæ, nullo "seditioso relicto; nomenque libris impo"suimus digestorum seu pandectarum." Cod. 1. t. 17. 1. 2. De vet. jur. enucl.

With abbreviations.] "Eandem autem pœnam falsitatis constituimus et adversus eos, qui in posterum leges nostras, per "siglorum obscuritates, ausi fuerint con"scribere; omnia enim, id est, et nomina "prudentum, et titulos, et librorum nume"ros, per consequentias literarum volumus,