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PRFFACE. 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, 2 @ A. D. 533. Wyndham v. Chetwind, 1 Burr. Rep. 426. The Edicta, the Novellæ 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 Authentica, 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 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 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 Regiae, 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 Teras. son. 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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viii PREFACE.

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 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 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, #. me ignoraret, I shall insert Hooke's translation from Catrou and ouillé. 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 in the appendix. Lastly, I have given a catalogue of the best writers on the Roman law, collected from the Bibliotheque of Camus, the notes and observations of Gibbon in his Roman 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. THOMAS COOPER.

September 30th, 1812.

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

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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 x11 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 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 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 Sextus Aëlius, who made a large addition of many new forms, which passed under the title of jus Ælianum, from the name of the compiler.

Curiae..] Vid. Pomponium, fl. 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. l. 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

From the commencement of the consular state.] The consular state was established in the year U. C. 245, and the laws of the xii tables were not perfected, till the year 304.

Were submitted to the inspection of the people..] “ Tum legibus condendis opera “dabatur, ingentique hominum expectatio“ne propositis decem tabulis, populum ad “concionem advocaverunt; et, quod bo“num, faustum, felixque reipublicae, ipsis,

o:

- * liberisque eorum esset, ire et legere leges “propositas jussere: se, quantum decem “hominum ingeniis provideripotnerit, om“nibus, summis, infimisque jura aequasse; “plus pollere multorum ingenia consilia“que. Versarent in animis secum unam“quamoue rem; agitarent deinde sermoni“bus; atque in medium, quid in quaque re “plus, minusve esset, conferrent Easle“ges habiturum populum, Romanum, quas “consensus omnium non jussisse latasma“gis, quam tulisse, videri posset.” Liv. l. “iii. cap. 33, 34.

And their extraordinary severity.] One of the laws, here hinted at, is the following: Ast, s1 PLU R Es E. Ru N'r RE1, or ERT 11s N UN DIN 1s PART1S SECAN To; S1 PLUs Mi Nusve secu ERINT, SE FRA UD E EST of s1 vol. ENT uls T1 BERIM PERE GRE veN UN DANTo: Grav. op. p. 284. i. e. “If a “debtor is imsolvent 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.

Such is the sense, in which this law has been 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 Cecilius; and also the opinion of Tertullian, who was a lawyer by profession. “Nihil profecto [says Cecilius] “immitius, nihil immanius, “nisi, utre ipsa apparet, eo consilio tanta “immanitas poenae denunciata est, ne ad “eam unquam pervenireturi addici namdue “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.

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 “proposuit, ut, quando lege agi posset, “sciretur.” Liv. lib. ix. cap. 46. “Veteres, “quihuic scientiae praefuerunt, obtinendae “at que augendae potentiae suze causa, per“vulgari artem suam noiuerunt, &c.” Cic. de orat. lib. 1. c. 46. “Jus civile per multa “saecula inter sacra caeremoniasque Deo

In process of time there also arose another species of law, called the practorian edicts; which, although they ordinarily expired with the annual office of the praetor, 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, Cnaeus 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, 85 c.” f. 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 Muraena, 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 qua: potest esse? res enim sunt

“parvae; prope in singulis literis atque in-
“terpunctionibus occupatae, &c. &c. &c.”
Pro Murcna, cap 6. Epist. ad Art. lib. vi.
ep. 1. De oratore, lib. 1. cap. 41.
But, notwithstanding this, the use of par-
ticular 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 formulae, aucupatione
“syllabarum insidiantes, cunctorum acti.
“bus radicitus amputentur.” Cod. 2. t. 58.

Gregorius and Hermogenes.] vid. Gotho

fredi prolegom, ad cod. Theodosianum, cap.

1 et Heineccii hist. jur. civ. lib. 1. cap. 5. sect. 368, 8.5'e,

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