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Unable 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 more voluminous and laborious works enumerated in the appendix, may collect much useful knowledge from the shorter and more popular compilations of Ferriere, whoso 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 |Horac Juridicae Subsecva3: 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 Ayloffe, Schomberg, Halifax and Browne: but neither Domat nor Wood, are superseded by any or all the rest.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 bo 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 Pandects, and the Institutes, they mention the number, not of the book but only of the law, and content themselves with reciting the first words of the Title to which it belongs: and of these titles there are more than a thousand. Ludewig, (Yit. Justiniani, p. 268,) wishes to shake off his pedantic yoke; and I have dared to adopt the simple and rational method of numbering the book, title and law."
The English writers generally follow the mode of citation recommended by Gibbon, and as I think it the most convenient, T have also adopted it. Thus, Inst. 4. 15. 2, means, Institutes, book 4, title 15, section 2. Dig. 41. 9. 1. 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: orff pro dole: Dig. and ff 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 let:crs ff, designate nothing but a careless mode of writing the Greek letter ^, the first letter of nuv8exlat, 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 ff) de liceredit, vel act. Or, the 7th section of the 2d law of the book and title of the Digest or Pandects, that begins De hcereditate 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, Sfc., meaning the first law of the Codex that is entitled with those words.
Again, l. 1. tit. 12. Cod. de Ids 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 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. -126. The Edicta, the Novella Constitutiones, or Authenticce, the Basilica, &x. were subsequent additions or innovations. 8 Gibb. 45, 46.
In citing the Authenties, there may appear some ambiguity. The Novels are entitled, Authenticae, seu Novella} 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 fL-st 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 Authenties 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 arc necessary to an English student, in addition to Ferriero'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 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 (8extus) 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 Abbe 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 Romulus and Numa, of no moment; and whether the colleotion 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— Dionesius Halicarnassous—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 Kosinus, the collection and arrangement of Franciscus Hctomannus, 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 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 Horce Judicee Subsecivee, and my own reading.
I have said nothing abcut 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.
A BRIEF ACCOUNT
0 OF THE
RISE AND PROGRESS OF THE ROMAN LAW.
(D E . 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 Curice, 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 xn 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
Curia.] Vid. Pomponium, ff. 1. t. 2. short extract of 8 or 10 lines, which may
Dc origins juris. be read in the 3d book of Macrobius's Saturnalia, cap. 11.
Jus Papirianum.] "Is liber appellatur From the commencement of the consular
"jus civile Papirianum, non quia Papirius state.] The consular state was established
"de sao quicquam adjecit, sed quod leges in the year U. C. S45, and the laws of the
"sine ordine latas in unumcomposuit." vid xii tables were not perfected, till the year
ff. 1. t. 2. l. 2. This body of law is not 304. now extant, nor any part of it, except a
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 insuiHbient to extend to all matters of controversy, their conciseness was often the occasion of obscurity. and their extraordinary severity railed aloud for miti
Were submiued to the inspection of the people.] "Tum legibua condendis opera "dabatur, ingentique hominum expectatio"ne propositis decem tabulis, popu'um ad "coneionem advocaverunt; et quod bo"num, faustum, felixque reipublicae, ipsis, "liberisque eorutn esset, ire et legeie leges "propositas jussere: se, quantum decent "hominum ingeniis provided potuerit, otn"nibus, summis, infimisque jura ffiquasse; "plus pollere multorum ingenia consilia"que. Versarent in animis secum unani"quamque rem; agitarent deinde sermoni"bus; a;quo in medium, quid in quaque re "plus, minusve esset, conferrent. Eas le"ges habilurnm populum Rnmanum, quas "consensus omnium non jnssisse latas ma"gis, imam lulisse, videti posset." Liv. 1. iii. cap. 33, 31.
And their extraordmary severity.] One of the laws, here hinted at, is the following:
1ST, SI FLURES ERt7NT REI, TERTIIS NUNDIN1S PARTIS SECALTO; SI TLUS MINUSVE SECUEKINT, SE FRAUDE ESTO: SI VOLENT L'LS TiBP.RIM PEREGRE VENUNDANTO. Grav. op.
p. 284. i. c. "If a debtor is insolvent to "several creditors, let his body be cut in "pieces on the third market-day. Jt may "be cut into more or fewer pieces with im"punity; or, if his creditors consent to "it, let him be sold to foreigners beyond "the Tybcr." 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 honor 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 mterpret the word sccarUu.as implying simply a division, and the word partis, as denoting the patls of the debtor's estate, and not the patts of his body ; so that they understand the expression partis sccanlo, 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 ctedilors in proportion to their respective claims. Vid. Bynkershoek's work's, vol. 1. obs. 1. and Dr. Taylor's commentary, Dc inope debuorc dissecando.
But the reader is left to frame his own judgment of this interpretation, when he has read the apology for this law, which Aul us Gellius has given us in the person of Cfficilias; and also the opinion of Tertullian, who was a lawyer by profession. "Ni"hil profecto [says Csecilius] immitius, ni"hil immanius, nisi ut re ipsa appaiet, eo "consilio tanta immanitas pcena denunciata "est, ne ad eam unquam perveniretur . ad- • "did namque nunc et vinciri multos vide"mus; dissecuon esse antiquitus neminem, "equidem neque legi neque audivi." Au