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REFERENCES.

PROEMIUM, OR PREFACE.

DE CONFIRMATIONE INSTITUTIONUM...Page 1.

THIS amounts to an imperial constitution, giving a Sanction, to this compilation by Tribonian and his associates. In nomine Domini nostri jesu Christi. This is elsewhere used, as in the second and third confirmations of the digests, in the confirmation of the code, and of several of the novels. In nomine Domini nostri jesu Christi, ad omnia consilia omnesque actus semper progredimur. Cod. 1. 27. 2. pr: Hence the usual solemn form of beginning last wills and testaments, IN THE NAME of GoD, AMEN. That the ancient Romans, seldom entered on a business of importance sine consilio deorum et ope-invocata, I am aware; but I suspect this practice, was rather of Christian origin: 3 Coloss. 17. “Whatever ye do in word or deed, do all in the name of the Lord Jesus, giving thanks to God, and the father by him.” See Dr. Taylor's observations on the proemium of the Institutes, Elem. Civ. Law. qto. 28. This form of testamentary introduction, cannot be necessary, unless under some precise and positive institution; of which I know none in the English or American law. I refer to Taylor, (loc. cit.) for a full dissertation on the titles assumed by the emperor, of which the following is a concise account. ' Emperor. Imperator. Originally conferred on victorious generals, but first assumed as an imperial title by Augustus Cæsar.

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Caesar. A name that belonged to the family of Julius Caesar as a Cognomen; and adopted by the emperors from Augustus to Nero. It was then given to the next in succession (destinati imperio) who were denominated nobilissimi Casares : it was reassumed by the emperors, on the removal of the government from Rome to Byzantium. Flavius. Borrowed from the Vespasian family, and retained by many of the emperors after Vespasian ; it was then dropt for some time, and reassumed by the fourth predecessor of Justinian. justinian. The proper name of the emperor. Allemanicus, Geticus, &c. From the nations he claimed to have subdued. - Pius. A sir-name or agnomen, first imagined for Tiberius, the heir of Augustus, but not assumed. It was afterwards used by Antoninus and his successors. Felix. A name which Sylla first took to himself after the death of the younger Marius: among the emperors, first assumed by Commodus. Triumphator. From having triumphed in consequence of victories over the Persians and Vandals. Victor and Triumphator, were titles commonly assumed from the time of Constantine the Great. Justinian was also often in camp, saluted CALLIN1cus by acclamation: a greek title“of the same import as victorious. Triumphator, was never given for the recovery of territory, but only when there was accession by conquest. So Go. Fulvius and L. Opimius were denied a triumph, because they only recovered Capua, and Fragellae. 2 Val. Max. 8. 4Augustus. A question arose in the senate, (anno urb. cond. 727) whether the title Romulus, or Augustus, should be conferred on Octavian. From 63 Dion. Cassius, it should seem, he would have preferred the former title, but on the motion of Munatius Plancus, the name Augustus was preferred; and adopted by his successors. Though it was also assumed by several of the imperial family (as by Germanicus) who were not emperors. After the time of Diocletian, it was changed into Semper Augustus. De usu Armorum et legum. Imperiam Majestatem. Majestas, during the time of the republic, meant somewhat like the modern phrase, the majesty of the people: implying the ultimate source of political power. It was afterwards applied to delegated authority, as that of praetors, judges, &c. Then to parental authority when it included the power of life and death : Majestas Patria. xxxiv. Livy. 2. has majestas matronarum; Pliny is. 60 majestas pueritiae. When the people by the

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lex regia conferred all power on the emperor, the word majestas was applied to the authority they delegated; as majestas Augusti,Tiberii, &c. Imperatoria majestas, was introduced by Galienus, and from his time continued. (Taylor.) § 1. De bellis et legibus, &c. Barbarica gentes. A name given by the Romans to all other nations but themselves and the Greeks. The five provinces of Africa here alluded to, had been possessed by the Vandals ninety-five years. Cod. 1. 27. de off. Praef. Praet. Af. § 2. De Compositione Codicis et Pandectarum. In the second year of his reign, A. D. 528, Justinian began his reformation of the law. The Justinian code was finished by Tribonian 529. A new edition (Codex repetita prailectionis) was published by Justinian in 534. In 530, the Digest was begun. On the 16th December 533 it was finished. The digest is also called the PANDEcts from ray and 2.xeus, to include all. Hence the usual reference to the digest (ff.) : being a careless writing of the greek letter or. On the 21st Nov. 533, the Institutes appeared in their present form. Souasi per medium profundum euntes. The books then published on the Roman law, amounted to upwards of two thousand ax#3 octawaw aroxxa” : many camel loads. § 3. De tempore, auctoritatibus, &c. magistro et exquastore sacri palatin nostri. Magister Palatii or Officiorum, was an officer, some what, like the lord Chamberlain, or perhaps Master of the Household of England. The officers of the lower ages of the empire were generally called magistri, as magistri libellorum, scriniorum, officiorum. Hence the master of the rolls, masters in chancery, master of the Crown office, &c. of the English system. The great officers of the republic, and of the early times of the empire, are described in several titles of the first book of the digest: the officers of the lower empire, in the first and last book of the code. - - Exquastore, is an undeclinable ablative: the other cases, exquaestor, exquestoris, exconsulis, &c. do not appear to be used. The quaestor. of the Palace, was somewhat like the lord Chancellor, os imperatoris, armarium legum, &c. That is under the emperors: for the office of quaestor at first, was of the same kind with our secretary of the treasury. (Taylor 38. 228.) Constantine instituted the office of Guastor Palatii. The Guacsitores or Inquisitors, were magistrates long known, whose jurisdiction embraced only criminal cases. (Zozimus and Procopius de bello Persico.) Antecessor, a teacher and professor of law the jurisperiti, were practitioners. Post ouadriennium. Five years, seem formerly to have been the

term usually (indeed universally) allowed for the study of the law.
For the instructions, as to the division of time allotted for studying
the various parts of the civil law, viz. the Dupondii, Edictales, Papi-
nianistae, Lytae, and Prolytae, see the constitution (omnem republica:
zostra, &c.) prefixed to the digests.
§ 6. Ex quibus libris Noster Caius. Caius lived under the emperor
IMarcus Aurelius, and his institutes were read in the schools. Be-
side the institutes of Caius, there were the institutes of Paulus, of Ul-
pian, of Callistratus, Florentinus, and Marcian. There were also
prior codes, and digests : as the digests of Alfenus, Julianus, Celsus,
Marcellus, Ulpian, the Pandects of Modestinus, &c.
Constitutional authority. I have retained Harris's expression, al-
though there may be some ambiguity attached to it in this country,
where the term implies something founded on our written constitutions,
or fundamental laws, paramount to legislative acts: a distinction, that
does not seem likely to last very long, in states where the power of
the legislature like the power of the British parliament, is omnipotent.
But in this passage, the word must be understood secundum subjectam
7materiem, as alluding to a particular species of Roman law. Inst.
L. 1 Tit. 2. § 6. page 9. of the present work.
L. 1. (page 5.) DEFINITIo justitia. Justice, is used, not only
for the disposition to render every man his due, but sometimes also
for the act by which this is done : as when we do a man justice.
§ 1. Definitio jurisprudentia. This definition is very convenient
for the alliance between church and state: an alliance that I hope
will never take place in these states. I know of no things that ought
to be kept more distinct, because they are so, than the affairs of this
world, and those of the world to come : nor do I know of any two
things that despotism has so sedulously laboured to intertwine. I
would not so construe the old advice, Deorum Injuria. Diis cura, as
to protect gross violations of public decorum on religious subjects, or
to pass over, irritating and offensive outrages against the religious opi-
nions, or ceremonies of any persuasion. The defendant in The people
against Ruggles, 8 Johnson’s New York reports, 290, deserved to
be punished ; but the doctrine laid down in that case by the court,
may be carried to a length, that would authorize any species of eccle-
siastical tyranny, and prohibit any kind of religious discussion. Nor
is it strengthened by citing cases from the jurisprudence of a coun-
try where there is a religion by law established; or by quoting the pre-
sent passage from the civil law. It will have little weight with those
who have perused the ecclesiastical history of the times of Justinian,

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and the three or four centuries immediately preceding, and subsequent. Are we at this day, to regulate the rights of conscience, and modify our system of religious toleration, by the notions of a Roman emperor of the 6th century 2 or adopt the church-and-state law of Great Britain : Tit. 2. De jure naturali. Jus, here, is taken for the general system of natural, national and civil law, in contra-distinction, to the positive laws of each species. I consider all law, of whatever kind, as deduced, either from extensive and long-adopted usage, furnishing presumptive evidence of general expedience—or from reasonings founded on the nature and circumstances of huma: society, and pointing out the conclusions best adapted to general expedience. jus, jussum, jura, jussa, mean a rule of action including an obligation, or duty to conform to it: therein differing from advice. Or, it may mean an attribute or quality of actions or persons; what we use synonimously sometimes with right : as the rights of a conqueror, the rights of war and peace; the right of using, enjoying, suing, defending, &c. the rights of persons, the rights of things, all of which are called jura. Under this meaning, may be included the rights belonging to particular situations in life, as the rights of magistrates and of citizens, master and servant, parent and child, husband and wife, &c. Or, among the Romans, it might mean the administration of justice. De in jus vocando. The other subordinate varieties of meaning of the word jus, appear to me, all referable to those above enumerated. The law of nature, and of nations, is collected from, 1st the practice of civilized nations, 2ly the opinions of the best writers on the subject. The writers usually cited in the British and American courts, are Albericus Gentilis, Puffendorf, Grotius with the annotations of Barbeyrac, Vattel, Burlamaqui, Heineccius, Bynkershoek and Rutherforth. § 2. Ab appellatione et effectibus, page 7. Quirinus. From the Sabine word Quiris, a spear: or from Quiris, Mars, reputed father of Romulus: or from Cures, Quires a Sabine city, which furnished Rome with early settlers. Ovid Fasti II. 475. § 3. Divisio juris. See Pandects or Digest 1.6. 1. de Just. et Jure. Alterum enim expresse sancitur, et scripto promulgatur ; alterum tacito populi consensu introducitur. See also so de leg. as to written and common law. All this is conformable to the doctrine of the English and American writers. For even in this country, we adopt in every state, all our legal maxims and institutions not contained in constitutional or legislative acts, as the common law of the state. , Nor can common law be entirely dispensed with even in the code of the

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