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tent, except those connected with the peculiar tenure of landed property, which does not breathe the spirit of the Roman law. I care nothing for the class of resemblances, on which writers are fond of dwelling, or the pages which Bracton and Glanville, and the author of “ Fleta,” are said to have taken from the books of the civil law, and which they might have better left where they found them. I care nothing for the curt phrases which our own great lawyers were too fond of using, sometimes, perhaps, for the not very wise or very honest, though very convenient purpose, of answering a fool according to his folly, and terminating a discussion,--not much to their own honour or that of the science they professed, -by a dogma substituted for a principle, an exorcism for an argument. Such dogmas and such practice, I fear they might have found examples enough of in the books and among the practitioners of the civil or any other code of laws or body of lawyers. Sometimes, however, and, I believe, more often, learned and modest men resorted to this device for the purpose of clothing with a show of authority their own deductions from the principles of natural justice,—if they could they seized some stray sentence, little caring where it came from, so that it sounded like a proverb. These were the fancies and the fashion of the time, when great and original thinkers were fond of this ostentatious, playful, pedantry. Read any part of Lord Bacon's works, and see how often he illustrates some deepest truth by a sentence taken from every-day familiar discourse, wishing to circulate truth as if it were common-place; as, in a later day, Swift used absolutely to invent proverbs when he wished to say something so original as to be likely to be disputed if it did not assume this shape of admitted truth. I disregard entirely such instances as our great lawyers sometimes are found to exhibit of this use of the Civil Law. A sentence of Seneca
or Boethius would answer their purpose as well, and, no doubt, often did. I find some of the old writers, whose works are quoted to prove the resemblances between the Civil Law and our's, are scarcely recognised as writers of any authority. You will find an important case reported in Plowden; when Bracton is cited, “it is not," I use the language of the argument, “ as an author in our laws, but as an ornament to discourse when he agrees with the law."* In similar language Glanville is dealt with. Of such coincidences as these old books exhibit, whether accidental or designed, I think nothing. I do not attach quite as much value as, perhaps, I ought, to the occasional praises which I now and then meet, and now and then hear, of the Civil Law, nor will I bring forward any of those panegyrics, partly because some of the passages in which they occur are not unlikely to be fainiliar to you; partly because I am not quite satisfied of the sincerity with which they have been uttered, as I see little trace of the Civil Law having been the subject of any serious study with some of those who have lavished on it these loud panegyrics; partly because, where the praise has been in name given to the Civil Law, I believe the Roman Civil Law was not meant, but some of the various systems derived from it, that prevail in one country or another, and which I rather hope than believe to deserve the praise so lavishly given. I incline to think, also, that the fact of the Roman Civil Law having been arranged and systematized, and its leading principles very distinctly stated in a good many books affecting logical precision, at a time when the student of our common law had little helps of the kind, has led to a good deal of what has been said. Still, diminish to as great an extent as you can those praises, there will remain such admi
* Stowel against Lord Zouch, Plowden, 358, 359.
ration as Lord Brougham and Lord Campbell, men perfectly knowing the system, have expressed; there will remain a fact yet stronger than their admiration, I mean the fact of their having urged it, not unsuccessfully, on the public mind, as the proper object of study for every man who thinks of the Bar as a profession. This is no perishable praise. There will remain, too, for ever, the recorded Judgments of Lord Stowell, expressing the principles of this law in language of scientific precision. To use the words of one who was here nurtured and trained up for future emi. nence, who was here and everywhere admired, who is still by many of us remembered, and mourned, and loved, I speak of North,the reports of Lord Stowell's judgments may be almost said to be “ a part of the general literature of the country." There will, I say, remain the judgments of Lord Stowell, determining rights where the most important relation of private life is affected by what would seem conflicting municipal laws; and those scarcely more important decisions of his, recognised by the world as deciding great controversies where Nations may be described as the litigating parties. There will remain the Decrees of Lord Hardwicke resting on principles of the Civil Law. There will remain the Judgments of Holt, resting on principles of the Civil Law. There will remain the whole doctrine of Personal Property, and its transmission by will, and the rules which determine the distribution of such property, where intestacy has occurred; much of this, no doubt, resting now on statute, and none of it, at any time, depending on any other principle for its support than its being recognized by a free nation as a portion of its laws—the King's Ecclesiastical Law is the language of Coke,– but still all derived from the old Roman legislation. There will remain the Commercial Law of England, — the creation of Lord Mansfield,--everywhere resting on broad principles of jus
tice between man and man, which he said he found best illustrated in the Imperial Civil Law. But, above all, in our system of Real Property (where the old law of tenures would seem to defy its introduction), in the doctrine of uses, and in the separation of the legal from the equitable estate. In all this, in every part of the system, I trace the deeply marked lines of the Roman jurisprudence.
How the Roman law has influenced our's I hope hereafter to exhibit to you in particular detail. Our present business is with that law itself. Of the divisions of the Jus Civile, which I have given you from Justinian, it will be convenient in the first instance to consider those which most correspond with our notions of positive laws, with which, as similar in character and binding force, the Imperial Constitutions are to be classed. The lex is thus defined :-“ Lex est quod populus Romanus senatorio magistratu interrogante (veluti consule), constituebat.” “ Plebiscitum est quod plebs plebeio magistratu interrogante constituebat.” We had better read the rest of the paragraph: “ Plebs autem a populo eo differt quo species a genere; nam, appellatione populi, universi cives significantur, connumeratis etiam patriciis et senatoribus. Plebis autem appellatione, sine patriciis et senatoribus cæteri cives significantur sed et plebiscita, lege Hortensiâ latâ, non minus valere quam leges cæperunt." The distinction which Justinian gives when explaining these words is not true of the words in their early meaniny, but was the way in which they had been used by legal writers of three centuries before his time (for the sentence is transcribed from Gaius) and, in popular language, the word plebs had even passed to a lower meaning. Little more was meant by the words plebs and plebeii, than the poor, as distinguished from the rich. Its meaning, at the earlier period of which Justinian speaks, and when the Plebs possessed a power equivalent to legislation, for nei
ther Justinian nor Gaius gives its scita the precise name of “ leges,"_" non minus valere quam leges” is Justinian's phrase; “ legibus exæquata sunt” is Gaius's,ếwas, as you know, widely different.
We are interested in the structure of early Roman society, chiefly as it aids us to understand their mode of legislation. It is scarce possible to resist the temptation of examining the modes in which different nations seek to come at the same result of obtaining the laws most conducive to the general welfare of the community; and the one greatest service, perhaps, which can be effected by individuals, or by institutions, is the creation or promotion of one common law .of opinion, which can be chiefly, if not alone, effected by the freest discussion. The various interruptions by the discussions of the same subject-in different assemblies, in many of which were seen the same men, but in different relations to each other and to third parties,-in the same assembly at different times,—the obstacles which, in one of the Roman Comitia, the Patricians could interpose to the passing of any measure, or the transaction of any public business, by describing the auguries as unfavourable, — the delay occasioned by the “ dies fasti” and “ dies nefasti,"—the impediments of the intercessions of the Tribunes,—all ended in something that tended to create one body of opinion, or rather one standard of the common welfare to which all opinion would be more or less referred,- for respect to the rights and the opinions and feelings of others, was enforced by those numberless delays and debates, and one body of law. The Roman system failed and passed through many stages, till it ended in despotism and in ruin from one want. They seem in no one part of their institutions to have even verged on the thought of the people acting through representatives, and not collectively.
There is something deeply mournful in the beautiful