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PREFACE.

WHEN I first undertook to publish Justinian's Institutes (that I might not 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, thās; to condense the expressions where they seemed to me. jeedlessly;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 whoke, 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 my chemical lectures allowed me, but I have endeavoured to make the best use of the opportunities that remained. Unah'-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 Roman History, and Butler’s Horae Juridicae Subsecovae: 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 Pando, and the Institutes, they mention the number, not ** of the book but only of the law, and content themselves with reciting “the first-opods of the Title to which it belongs: and of these titles “there aroort than a thousand. Ludewig, (Vit. Justiniani, p. 268) “wishes to Shake othoedantic yoke; and I have dared to adopt the “simple and zations oneo.of numbering the book, title, and law.” The Englist:<\erogońlly, follow the mode of citation recommended by Gibbāo; and as Tothink 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. i. 3, means Digest, book 41, title 9, law 1, section 3, which the foreign jurists would cite thus, l. 1. § 3, or § 3. l. 1. Dig. pro dote: "... dote: Dig, and f being equivalent: that is, section 3 of law 1, of the book and title of the Digest or Pandects which is entitled pro dote. The two letters f designate nothing but a careless mode of writing the Greek letter w, the first letter of war?izra, Pandects, “General Receivers;” which was a common title of the Greek miscellanies. Plin. Praef. ad Hist. Natur., 8 Gibbon's Rom. Hist. p. 37.76. So, D. or Dig. 18, 4.2. 7, is the same with $ 7. l. 2. Dig. (or f) de haredit, vel act. Or, the 7th section of the 2d law of the book and title of the Digest or Pandects, that begins De hareditate vel actione 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, l. 2. Cod. si unus ex pluribus appellaverit. In like manner Cod. 8. 32. 1. would be cited by the civilians on the continent of Europe, l. 1. Cod. si unus ex pluribus heredibus creditoris, &c.; meaning the first law of the Codex that is entitled with those words. Again, l. 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

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 Novelle Constitutiones or Authentica, 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 ut judices) 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 Authenticae 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 intlex to the generality of editions, will render these remarks intelligible. .....'...'.. As to the Edicts of Justinian, the Leonine Cónstitutions, the Basilica, and other tracts sometimes published with the Corpus Jüris, they are easily distinguished, by a mode of reference that involves no ambiult V. - “. 8 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 intended also to have inserted the Latin text of the Leges Regia, 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 the Laws of Numa, left nothing written; and that the Jus Papirianum of Granius Flaccus (Lacinianus) was compiled in the time of Caesar. Gibbon speaks very slightingly of the attempt to restore these laws, (thirty-six altogether) by the Abbé Terasson. Nor do I give any credit to the tables, from whence Franciscus Balduinus, and Paulus 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 Antiq. Rom. Corp. quto. 1685. Amstel. page 556. who has given us a collection of laws of

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