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Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Civil Law
THE great body of the Roman or civil law was collected and digested by order of the Emperor Justinian, in the former part of the sixth century. That compilation has come down to modern times, and the institutions of every part of Europe have felt its influence, and it has contributed largely, by the richness of its materials, to their character and improvement. With most of the European nations, and in the new states in Spanish America, in the province of Lower Canada, and in one of these United States,1 it constitutes the principal basis of their unwritten or common law. It exerts a very considerable influence upon our own municipal law, and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate’s or consistorial courts.2
The history of the venerable system of the civil law is peculiarly interesting. It was created and gradually matured on the banks of the Tiber, by the successive wisdom of Roman statesmen, magistrates, and sages: and after governing the greatest people in the ancient world, for the space of thirteen or fourteen centuries, and undergoing extraordinary vicissitudes after the fall of the western empire, it was revived, admired, and studied in modern Europe, on account of the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Germany, Holland, and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of D’Aguesseau, that “the grand destinies of Rome are not yet accomplished; she reigns throughout the world, by her reason, after having ceased to reign by her authority.”
My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity, and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which press upon every branch of the inquiry.
That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus, to the establishment of the twelve tables.
The fragment of the Enchiridion inserted in the Pandects,3 is the only ancient history of the first ages of the Roman law now extant. It was composed by Pomponius in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoek4 has republished it, and endeavors to restore the integrity of the original text by emendations and a critical commentary. From this fragment we learn that Sextus or Caius Papirius, who was a pontifex maximus about the time of the expulsion of Tarquin, made a collection of the leges regiae, or laws and usages of the Romans under their kings, and which was known by the name of the Jus Civile Papirianum. Very few, if any, fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws.5 Such a work was evidence of great progress in jurisprudence under the kings, and it must have contained an account, which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world.6
The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. Romulus divided the people into tribes and curia, and instituted the patrician order and the Roman senate, which last body became in process of time the most. powerful and majestic tribunal in all antiquity. The general assemblies of the people were a part of the primitive government, and a very efficient portion of the legislative power, and they met in their curiae or parishes, and the vote of every citizen belonging to the curiae was equal in these comitia curiata.7 The fecial and other colleges established by Numa, bound the Romans to religious discipline.8 Servius Tullius divided the people into six classes and one hundred and ninety-three centuries, and this was a most important change in the Roman polity. The first class contained the patricians, knights, and rich citizens, and 98 centuries; and when the people assembled by centuries in their comitia centuriata, (as they generally did thereafter when called by the consuls or senate,) they voted by centuries; and the first class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into hands of the patrician order, and of men of property.
After the establishment of the republic, all the higher magistrates were elected in the comitia centuriata, which were convoked by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, they convoked the assemblies of the people by tribes, and there all the people met on an equality, and voted per capita, and the comitia tributa were the same in effect and substance as the comitia curiata.9 They elected the subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians.10
As the whole administration of justice, civil and criminal, had been transferred from the kings to the consuls, it soon became necessary to control the exercise of this formidable power. This was done by the Valerian law, proposed by the consul Valerius, and granting to persons accused of crimes a right of appeal from the judgment of the consuls to the people. It then became an established principle in the Roman constitution, that no capital punishment could be inflicted upon a Roman citizen without the vote of the people, though the consuls retained the power of inflicting very severe imprisonment.11 The Valerian law became an imperfect palladium of civil liberty, and was in some respects analogous to the habeas corpus act in the English law; but the appointment of a dictator was a suspension of the law.
As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules,12 they began to suffer the evils of uncertain and unsteady laws. The call for written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the senate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence.13
The twelve tables were ratified by the consent equally of the patricians and plebeians, and they consisted partly of entire laws transcribed from the institutions of other nations, partly of such as were altered and accommodated to the manners of the Romans, partly of new provisions, and partly of the laws and usages of their ancient kings.14 They were written in a style exceedingly brief, elliptical, and obscure; and they show the great simplicity of Roman manners; and are evidence of a people under a rugged police, and very considerably advanced in civilization. They contain a great deal of wisdom and good sense, intermixed with folly, injustice, and cruelty. They were engrossed on tables of wood, or brass, or ivory, and were destroyed when the city was burnt by the Gauls. They were afterwards collected, and existed entire in the third century; but did not, as Heineccius supposes, survive the sixth century of the Christian era. This code obtained, in the subsequent ages of the republic, from the most distinguished philosophers, historians, and statesmen, the blind tribute of patriotic veneration, and the most extravagant eulogy, as being a system inculcating the soundest principles of philosophy and civil polity, and surpassing in value the jurisprudence of Solon and Lycurgus, and the ten books of the laws of Plato, and whole libraries of Grecian philosophy.15 As Rome increased in territory, wealth, arts, and refinement, her laws were progressively enlarged and improved, and adapted to the progress of society, and its increasing wants and vices. The obligation of the twelve tables was gradually diminished or destroyed by the multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.
After many struggles, the patricians were obliged, by the lex Horatia, to submit to the authority of the plebiscita, enacted by the plebians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. The senate also frequently promulgated laws under the name of senatus consulta, by their own authority.16 A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Caius Cornelius, the senate could not exercise their dispensing power, unless 200 senators were present. Within a very few years after the adoption of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was affected by the institution of legal forms of judicial proceeding called leges actiones, and by means of the pontifices who regulated the calendar, and assumed the power of fixing the lawful days of business, the dies fasti et nefasti. These judicial forms and solemnities gave order and uniformity to the administration of justice; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to interpret them belonged to the pontifical college.17 They remained confused and undigested until Appius Claudius Coecus, a member of the pontifical fraternity, reduced them into one collection, which his scribe Cnaeus Flavius surreptitiously published, to the great satisfaction of the people. It acquired the title of the Jus Civile Flavianum; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Aelianum.18 This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious.19
The edicts of the praetor became another very important means of the increase and improvement of the Roman law. The judicial decisions of the praetors, or edicta praetorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honor of the praetor.20 There had been, from the foundation of the city, a magistrate called praefectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city praetor, and they confined his province to the administration of justice; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties.21 The praetor was at first a patrician, and elected in the comitia centuriata, though the office in time became accessible to plebeians. Business soon required a second praetor to preside over the causes of foreigners, called praetor peregrinus, and praetors were afterwards allotted to the provinces as the empire widened. Under Augustus, the praetors had multiplied to sixteen; and in the time of Pomponius, there were eighteen, and one of them judged de fidei commissa.22 Every praetor, on entering into office, establish ed and published certain rules and forms, as the principle and method by which he proposed to administer justice for the year. He had no power to alter these rules, and this jus praetorium vel honorarium, tempered the ancient law by the spirit of equity and public utility, and it was termed the living interpreter of the civil law.23 But as the praetor was apt to vary from his annual edict, and to change it according to circumstances, which opened the way to many frauds, it was provided by a law, enacted at the instance of the tribune Caius Cornelius, that the praetor should adhere to his edicts promulgated on the commencement of his magistracy. These praetorian edicts were studied as the most interesting branch of the Roman law, and they became a substitute for the knowledge of the twelve tables, which fell into neglect, though they had once been taught as a carmen necessarium, and regarded as the source of all legal discipline.24
The opinions of lawyers, called the responsa, or interpretationes prudentum, composed another and very efficient source of the ancient Roman jurisprudence.
The most ancient interpreters were the members of the college of pontifices, composed of men of the first rank and knowledge. Civil statesmen, and eminent private citizens, followed their example, and sometimes debated in the forum. Their answers to questions put, were gradually adopted by the courts of justice, by reason of their intrinsic equity and good sense; and they became incorporated into the body of the Roman common law, under the name of fori disputationes, and jus civile, or responsa prudentum.25 This business, undertaken gratuitously by persons of the highest distinction, grew into a public profession, and law became a regular science, taught openly in private houses as in schools. The names of the principal lawyers who became, in this way, public professors of the law, are to be found in the work of Pomponius,26 and in the writings of Cicero, Horace, Tacitus, and the other authors of the classical ages. Their opinions were preserved by their successors, and fragments of them are, no doubt, dispersed in different parts of the pandects, without the sanction of their names.27 Cicero speaks of this employment of distinguished jurists with the greatest encomiums, and as being. the grace and ornament, and most honorable business of old age. The house of such a civilian becomes a living oracle to the whole city, and this very accomplished orator and statesman fondly anticipated such a dignified retreat and occupation for his declining years.28 The philosophy, and policy, and wisdom of Greece, were collected together, says Gravina,29 by the Roman civilians, and all that was useful introduced into the Roman law; and if it were really true that the twelve tables were not drawn by the rough agents who compiled them directly from Grecian fountains, we are assured that the omission was abundantly supplied in after ages; and the institutions of Greece were studied by more enlightened statesman, and contributed to perfect and adorn the Roman law.
In the Augustan age, the body of the Roman law had grown to immense magnitude.30 It was composed of the leges, or will of the whole Roman people declared in the comitia centuriata; the plebiscita, enacted in the comitia tributa; the senatus consulta, promulgated by the single authority of the senate; the leges actiones; the edicta magistratuum; the responsa prudentum; and, subsequent to the age of Cicero, is to be added the constitutio principis, or ordinances of the Roman emperors.31 The Roman civilians began very early to make collections and digests of the law. The book of Sextus Aelius contained the laws of the twelve tables, the forms of actions, and the responsa prudentum. Publius Mucius, Quintus Mucius, Brutus, and Manilius, all left volumes upon law, and the three books of the latter existed in the time of Pomponius as monuments of his fame.32 Servius Sulpicius left behind him nearly 180 volumes upon the civil law. Many distinguished scholars arose under his discipline, who wrote upon jurisprudence; and Aufidius Namusa digested the writings of ten of those scholars into 140 books. Antistius Labeo, under Augustus, surpassed all his contemporaries, and he compiled 400 volumes, many of which, Pomponius says, he possessed.33 The noble design of reducing the civil law into a convenient digest, was conceived by such great men as Cicero, Pompey, and Julius Caesar; though it is certain that no systematic, accessible, and authoritative treatise on the civil law, appeared during the existence of the republic; and Cicero says, that the law lay scattered and dissipated in his time.34 The Roman jurisprudence was destined to continue for several centuries under the imperial government, a shapeless and enormous mass, receiving continual accumulations, but it was fortunately cultivated under the emperors by a succession of illustrious men, equally distinguished for their learning, wisdom, and probity.
Before the time of Augustus, the responsa prudentum were given viva voce, and they had not the force of any authority in the forum, and the business was free to all persons. The character of these responsa was abused and discredited by the crude opinions of pretenders, and Augustus restrained the profession of the jurisconsults to such as he should select as most worthy, and they were to be first approved of and commissioned by him. They then began to give their opinions in writing, with their reasons annexed.35 This raised their influence, and reduced the praetors to a state of comparative dependence upon those living oracles of law, who were under the influence of the emperor, and who obtained by their means the control of the administration of the law.36 Heineccius says that Augustus instituted this college of civilians, in order that he might covertly assume legislative power, and adapt the republican jurisprudence to the change in the government. He likewise instituted a cabinet council, which was called the consistory, by succeeding princes. It was composed of the consuls, several other magistrates, and a certain number of senators chosen by lot.37 Ulpian was a member of this royal council under Alexander Severus. It was the imperial legislature. The power of the comitia was transferred to this shadow of a Roman senate, for the old constitutional senate not being able conveniently to govern all the provinces, (according to the courtly language of the Pandects38), gave to the. prince the right to make laws. The judgments of the prince were called imperial constitutions, and they were usually enacted and promulgated in three ways; 1st. By rescript, or letter in answer to petitions, or to a distant magistrate.39 2. By degrees passed by the emperor on a public hearing in a court of justice; and Paulus collected six books of those decrees, and from which he for the most part dissented.40 3d. By edict, or mere voluntary ordinances. Gravina says, that these imperial constitutions proceeded not as from a single individual, but as from the oracle of the republic by the voice of the senators, who were consulted, and were the visible representatives of the majesty of the commonwealth.41 Many of these imperial ordinances were suggested by the best of the civilians, and do great honor to their authors; and with regard to private and personal rights, the Romans enjoyed to a very great degree, under the emperors, the benefit of their primitive fundamental laws, as they existed in the times of the republic. The profession of the law was held in high estimation under the emperors, and Hadrian took off the restriction of Augustus, and gave the privilege of being a public interpreter of the law to the profession at large.42 It was restored by the Emperor Severus, and the responsa prudentum assumed an air of great importance. Though in the first instance they were received as mere opinions, they gradually assumed the weight of authority. The opinions were sent in writing to the judges, and in the time of Justinian, they were bound to determine according to those opinions.43 These responsa (of which many are preserved in the Pandects) were not of the same authority as the constitutional leges, but they were law for the case, and they were applied to future cases under the character of principles of equity, and not of precepts of law. In the ages immediately preceding Justinian, the civil law was in a deplorable condition, by reason of its magnitude and disorder; and scarcely any genius, says Heineccius, was bold enough to commit himself to such a labyrinth. As a remedy for the evil, the Emperors Theodosius and Valentinian confirmed by decree the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, by name, and directed that they alone be permitted to be cited in the courts of justice, with the exception of such extracts as they had transferred into their books from the ancient lawyers, and with some other qualified exceptions in favor of Scaevola, Sabinus, Julianus, and Marcellus. The opinion of the majority of these five legislative characters was to govern; and where there was in any case an equal division of opinion, that of Papinian was to be preferred.44
The first authoritative digest of the Roman law which actually appeared was the Perpetual Edict, compiled by Salvus Julianus under the orders of the Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofred, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority.45 The praetorian edicts had been so controlled under the government of the emperors by the opinions of the civilians, that they lost the greater part of their ancient dignity, and Hadrian projected the design of reducing the whole Roman law into one regular system. All that he, however, lived to perform, was to procure, the compilation of those edicts of the praetors which had stood the test of experience, on account of their authority and equity, and had received the illustrations of civilians.46 Many able professors undertook from time to time a digest of the civil law. Papirius Justus collected some of the imperial constitutions into twenty books, and Julius Paulus compiled six books of decrees or imperial decisions. Gregorius made a collection of a higher character, and he digested into order the chief, if not the whole of the imperial edicts from Hadrian down to the reign of Dioclesian and his colleagues, and which was called the Gregorian Code, and attained great authority in the forum. Hermogenes continued this collection under the name of the Hermogenian Code.47 Theodosius the younger appointed a committee of eight civilians to reduce the imperial constitutions, from the time of Constantine, into a methodical compendium; and this Theodosian code became a standard work throughout the empire, and it was published in six folio volumes in 1665, with a vast and most learned commentary by Gothofrede. Another century elapsed before Justinian directed Tribonian, who was an eminent lawyer and magistrate, to unite with him a number of skillful civilians, and to assume the great task of collecting the entire body of the civil law, which had been accumulating for fourteen centuries, into one systematic code. Whether the Roman law at that period exceeded or fell short of the number of volumes in which the English law is now embodied, it is not easy to determine. Tribonian represented to the emperor, that when he and his learned associates undertook the business of digesting the civil law, he found it dispersed in two thousand volumes, and in upwards of three millions of small tracts or fragments,48 detached from the writings of the sages, which it was necessary to read and understand in order to make the selections. The size of these volumes, and the exact quantity of matter in these small pieces or texts, we cannot ascertain. It is, however, a fact beyond all doubt, that the state of the Roman law rendered a revision indispensable. Justinian himself assures us,49 that it lay in such great confusion, and was of such infinite extent, as to be beyond the power of any human capacity to digest.
The compilations made under Justinian, and which constitute the existing body of the civil law, consist of the following works, and which I shall mention in the order in which they were originally published.
(1.) The Code, in twelve books, is a collection of all the imperial statutes that were thought worth preserving from Hadrian w Justinian. In the revision of them, the direction to Tribonian, and his nine learned associates, was, that they should extract a series of plain and concise laws, omitting the preambles, and other superfluous matter, and they were likewise entrusted with the great and hazardous power to extend, or limit, or alter the sense, in such manner as they should think most likely to facilitate their future use and operation.50
(2.) The Institutes, or Elements of the Roman law, in four books, were collected by Tribonian and two associates. They contain the fundamental principles of the ancient law in a small body, for the use and benefit of students at law. This work was particularly adapted to the use of the law schools at Berytus, Rome, and Constantinople, which flourished in that age, and shed great luster on the Roman jurisprudence. It is such an admirable compendium of the elements of the civil law, that it has in modern times passed through numerous editions, and received the most copious and laborious illustrations. It had been a model for every modern digest of municipal law. The institutes were compiled chiefly from the writings of Gaius; and a discovery by Mr. Niebuhr so late as 1816, of a re-written manuscript of the entire Institutions of Gaius, has given increased interest to the Institutes of Justinian.51
(3.) The Digest, or Pandects, is a vast abridgment in fifty books of the decisions of praetors, and the writings and opinions of the ancient sages of the law. This is the work which has principally excited the study, and reflections, and commentaries of succeeding ages. It is supposed to contain the embodied wisdom of the Roman people in civil jurisprudence for near 1200 years, and the European world has ever since had recourse to it for authority and direction upon public law, and for the exposition of the principles of natural justice. The most authentic and interesting information concerning the compilation of the Pandects, is to be found in the ordinances of Justinian, prefixed, by way of prefaces, to the work itself.
In the first ordinance addressed by Justinian to his quaestor Tribonian, he directs him and his associates to read and correct the books which had been written by authority upon the Roman law, and to extract from them a body of jurisprudence in which there should be no two laws contradictory or alike, and that the collection should be a substitute for all former works; that the compilation should be made in fifty books, and digested upon the plan of the perpetual edict, and contain all that is worth having in the Roman law for the preceding 1400 years, so that it might thereafter be regarded as the temple and sanctuary of justice. He directed, that the selection be made from the civilians, and the laws then in force, with such discretion and sagacity as to produce in the result a perfect and immortal work. And, in the anticipation of the result, he declared, that no commentaries were to be made upon the digest, as it had been found that the contradictions of expositors had disturbed the whole body of the ancient law.
In about three years after the publication of this first ordinance, Justinian issued another upon the completion of the work. In that latter ordinance, addressed to the senate and people, he declared that he had reduced the jurisprudence of the empire within reasonable limits, and within the power of all persons to possess at a moderate price, and without the necessity of expending a fortune in acquiring useless volumes of laws. He stated, that in the compilation of the Pandects, Tribonian and his associates bad drawn from authors of such antiquity that their names were unknown to the learned of that age. If defects should. be discovered, recourse must be had to the emperor, and he pointedly prohibited all persons to have any further recourse to the ancient laws, or to institute any comparison between them and the new compilation. And to prevent the system from being disfigured and disordered by the glosses of interpreters, he declared, that no citations were to be made from any other books than the Institutes, the Pandects, and the Code; and that no commentaries were to be made upon them, upon pain of being subjected to the charge of the crimen falsi, and to have the commentaries destroyed.
The Pandects are supposed to have been compiled with too much haste, and they were very defective in precision and methodical arrangement. The emperor allowed ten years, and Tribonian and his sixteen colleagues finished the work in three years. It is said that the Pandects were composed of the writings of forty civilians, the principal part of whom lived under the latter Caesars, and the doctrines only, and not the names of the more ancient sages, were preserved. If the work had been executed with the care and leisure that Justinian intended, it would have been an incomparable monument of human wisdom. There are, as it is, a great many contradictory doctrines and opinions in the compilation on the same subject, and too much of that very uncertainty which Justinian was so solicitous to avoid. But with all its errors and imperfections, the Pandects are the greatest repository of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation. Justinian has given it the venerable appellation of the temple of human justice. The excellent doctrines, and the enlightened equity which pervade the work, were derived from the ancient sages, who were generally men of distinguished patriotism, and sustained the most unblemished character, and had been frequently advanced to the highest offices in the administration of the government. The names of Gaius, Scaevola, Papinian, Ulpian, Paulus, and Modestinus, may be selected from a multitude of civilians, as models of exalted virtue, and of the most cultivated and enlightened human reason. It is owing to their writings that the civil law, for the purity and vigor of its style, almost rivals the productions of the Augustan age.
(4.) The novels of Justinian are a collection of new imperial statutes, which constitute a part of the body of the civil law. Those ordinances were passed subsequent to the date of the code, and had been required in the course of a long reign, and by the exigencies of succeeding times. They were made to supply the omissions and correct the errors of the preceding publications; and they are said by competent judges to show the declining taste of the age, and to want much of that brevity, dignity, perspicuity, and elegance which distinguished the juridical compositions of the ancients. Some of these novels are of great utility, and particularly the 118th novel, which is the groundwork of the English and our statute of distribution of intestates’ effects.52 The institutes and pandects were afterwards translated into Greek, and the novels were generally composed in that language, which had become the vernacular tongue of the eastern empire; and as the evidence of the universality of that tongue, Justinian declared that one of his constitutions was composed in the Greek language, for the benefit of all nations.53
When the body of the civil law as contained in the Institutes, the Pandects, and the Code, was ratified and confirmed by Justinian, it became exclusively the law of the land; and the various texts from which the compilation was made, fell speedily into oblivion; and all of them, except the Theodosian code, and fragments of the other parts, disappeared in the wreck of the empire. The great work itself was in danger of being involved in the general destruction which attended the irruption of the northern barbarians into the southern provinces of Europe. The civil law maintained its ground a long time at Ravenna and in the Illyrian borders; but all Italy passed at length under the laws as well as under the yoke of the barbarians; belluinas, atque ferinas immanesque Longobardorum leges accepit.54 There was but one circumstance that could give any thing like compensation to the inhabitants of Europe for the absence or silence of the civil law during the violence and confusion of the feudal ages; and that circumstance was the redeeming spirit of civil and political liberty, which pervaded the Gothic institutions, and tempered the fierceness of military governments, by the bold outlines and rough sketches of popular representation. It was an indelible and foul blot on the character of the civil law, as digested under Justinian, that it expressly avowed and inculcated the doctrine of the absolute power of the emperor, and that all the right and power of the Roman people was transferred to him.55 This had not been until then the language of the Roman laws s and Gravina, with much indignation, charges the introduction of the lex regia to the fraud and servility of Tribonian.56 Be that as it may, the claim of despotism became afterwards a constitutional principle of imperial legislation. It has been made a question, whether the Pandects were for many ages so entirely lost to the western parts of Europe as has keen generally supposed. It is certain, however, that about the time of the assumed discovery or exhibition of a complete copy of them at Amalphi in Italy, near the middle of the twelfth century, the study of the civil law revived throughout Italy and western Europe with surprising ardor and rapidity. The impression which the science of law in so perfect a state of cultivation made upon the progress of society, and the usages of the feudal jurisprudence, was sudden and immense.57 In defiance of the command of Justinian to abstain from all notes or comments upon his laws, the civil law, on its revival, was not only publicly taught in most of the universities of Europe, but it was overloaded with the commentaries of civilians. From among the number of distinguished names, I would respectfully select Vinnius on the Institutes, Voet on the Pandects, and Perezius on the Code, together with the treatises on the civil law which abound in the works of Bynkershoek, Heineccius, and Pothier, as affording a mass of instruction and criticism, most worthy of the attention and diligent examination of the student.
The civil law was introduced and taught, in the first instance, in England, with the same zeal as on the continent; but the rivalship, and even hostility, which soon afterwards arose between the civil and common law; between the two universities, and the law schools or colleges at Westminster; between the clergy and laity, tended to check the progress of the system in England, and to confine its influence to those courts which were tinder the more immediate superintendence of the clergy.58 The ecclesiastical courts, and the Court of Chancery, accordingly adopted the canon and Roman law, and the court of admiralty, which was constituted about the time of Edw. I. also supplied the defects of the laws of Oleron from the civil law, which was generally applied to fill up the chasms that appeared in any of the municipal institutions of the modern European nations.59 A national prejudice was early formed against the civil law, and it was too much cultivated by English lawyers. Lord Coke mentions, by way of reproach, that William De la Pole, Duke of Suffolk, in the reign of Hen. VI endeavored to bring in the civil law, which gave occasion to Sir John Fortescue to write his work in praise of the English law; and the same charge was made one of the articles of impeachment against Cardinal Wolsey.60 But the more liberal spirit of modern times has justly appreciated the intrinsic merit of the Roman system. Sir Matthew Hale, according to the account of Bishop Burnet,61 frequently said, that the true grounds and reasons of law were so well delivered in the digest, that a man could never well understand law as a science without first resorting to the Roman law for information, and he lamented that it was so little studied in England. And in Lane v. Cotton,62 that strict English lawyer, Lord Holt, admitted, that the laws of all nations were raised out of the ruins of the civil law, and that the principles of the English law were borrowed from that system, and grounded upon the same reason.
The value of the civil law is not to be found in questions which relate to the connection between the government and the people, or in provisions for personal security in criminal cases. In every thing which concerns civil and political liberty, it cannot be compared with the free spirit of the English and American common law. But upon subjects relating to private rights and personal contracts, and the duties which flow from then, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice. I prefer the regulations of the common law upon the subject of the paternal and conjugal relations, but there are many subjects in which the civil law greatly excels. The rights and duties of tutors and guardians are regulated by wise and just principles. The rights of absolute and usufructuary property, and the various ways by which property may be acquired, enlarged, transferred, and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Roman law, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So, the rights and duties flowing from personal contracts, express and implied and under the infinite variety of shapes which they assume in the business and commerce of life, are defined and illustrated with a clearness and brevity without example. In all these respects, and in many others which the limits of the present discussion will not permit me to examine, the civil law shows the proofs of the highest cultivation and refinement; and no one who peruses it can well avoid the conviction that it has been the fruitful source of those comprehensive views and solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations.
The institutes ought to be read in course, and accurately studied, with the assistance of some of the best commentaries with which they are accompanied. Some of the titles in the Pandects have also been recommended by Heineccius to be read and re-read by the indefatigable student. The whole body of the civil law will excite never-failing curiosity, and receive the homage of scholars, as a singular monument of wisdom. It fills such a large space in the eye of human reason; it regulates so many interests of man as a social and civilized being; it embodies so much thought, reflection, experience, and labor; it leads us so far into the recesses of antiquity, and it has stood so long “against the waves and weathers of time,” that it is impossible, while engaged in the contemplation of the system, not to be struck with some portion of the awe and veneration which are felt in the midst of the solitudes of a majestic ruin.
1. See the Civil Code of the State of Louisiana, as adopted in 1824.
2. The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed to the hands of the English, justice was directed to be administered according to the former system of laws in the Dutch courts; and Van Leeuwen’s Commentaries on the Roman Dutch Law were translated into English in 1820, expressly for the benefit of the English judiciary in that island.
3. Dig. lib. 1. tit. 2. De origine juris.
4. Praetermissa ad leg. 2. D. De origine juris. Opera, tom. 1. 301.
5. Heinecc Antiq. Rom. Jur. Proaem. sec. 1. and 2.
6. Mr. Gibbon. in his History, vol. 8. p. 5. note, denies altogether the fact of any such original compilation by Papirius. I am incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer, and it is assumed to be so by such master critics as Bynkershoek and Heineccius, and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.
7. I have followed Dionysius of Halicarnassus, and the Roman authors of the classical ages, in respect to the early history of Rome. It may be that Rome was built and adorned by the Etruscans long before the time of Romulus, but I have not been inclined to follow the historical skepticisms of some modern writers so far, as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans.
8. Numa religionibus et divino jure populum devinxit. Tac. Ann. 3, 26.
9. The comitia tributa were free from the restraints placed upon the comitia curiata, inasmuch as they could be held without a previous senatus-consultum, and were not subject to the check of the Auspices, which were under the management of the patricians.
10. Dig. 1. 2. 2.8. Gravina de Ortu et Prog Jur. Civ. sec. 28.
11. Dig. 1. 2. 2. 16.
12. Incerto magis jure et consuetudine quam per latam legem. Dig. 1. 2. 3.
13. The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities; (Dig. 1. 2. 2. 4.) and the original historians, Livy (b. 3 ch. 31, 32.) and Dionysius of Halicarnassus, (Antiq. Rom. b. 10.) say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina, (de Ortu et Prog Jur. Civ. sec. 32. and De jure nat. gent. et XII. Tabularum, sec. 23.) Heineccius, (Hist. jur. civ. sec. 24. and Antiq. Rom. Jur. Proaem, sec. 3.) Voet, (Com. ad Pand. l. 2. 1.) Dr. Taylor, (Hist. of the Roman Law, p. 8.) and the generality of modern writers on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3. 27.) observes generally, accitis quae usquam egregia, and the deputies must have visited at least the Grecian cities in lower Italy. A learned French writer has, however, written three dissertations to prove there was no such thing as a Grecian embassy. Dr. Taylor has referred to them, but they failed to convince him. Mr. Gibbon (Hist. Vol 8. p. 8.) is also decidedly of opinion, that the deputation never visited Athens, and he gives very plausible reasons for his belief; but I think the weight of the opinion of Cicero alone is not easily to be surmounted; and he says (De Legg. b. 2. ch. 23. and 25.) that the regulations in the twelve tables concerning funerals, were translated from the laws of Solon, and the decemviri had adopted almost the very words of Solon.
14. Gravina de Ortu et Prog. J. C. sec. 32. Fragments of the twelve tables were collected, and distributed with great accuracy under their original and proper divisions, by J. Gothofred, in a work entitled Quator Fontes Juris Civilis, printed in 1653; and his collection, Heineccius says, (Antiq. Jur. Rain. Proem. sec. 5.) is to be preferred to that of all others. His collection, distribution, and interpretation of the tables has been followed by Gravina, who has inserted the originals, with a paraphrase, at the conclusion of his treatise de Jure Nuturali Gentium et XlI. Tabularum. He has also given a copius commentary upon that collection. They were redigested and inserted at length in the voluminous L’Historie Romaine of the Jesuits Controu and Rouiile, and copied from them into Hooke’s Roman History, b. 2. ch. 27. A summary of this curious and celebrated code, which had such permanent influence on Roman jurisprudence, and is so constantly alluded to by Roman jurists, will not be unacceptable to the American student.
The 1st table related to law suits, and regulated the right of citation of the defendant before the praeter. He was allowed to give bail for his appearance, and if old or infirm, the plaintiff was to provide him with a jumentum, or open carriage. But even this provision was reprobated in after ages for its severity. A. Gell.Noct. Att. 20. l) The praeter was to decide the cause promptly by daylight; and if the accuser wanted witnesses, he was allowed to go before his adversary’s house, and to repeat his demand for three days together, by loud outcry.
The 2d table related to robbery, theft, trespass, and breaches of trust. It allowed the right to kill a robber by night. It inflicted corporal punishment and slavery on conviction of robbery, unless the parties settled with each other. Slaves guilty of robbery were to be thrown down the Tarpeian Rock. Thefts and trespasses were punished by a pecuniary mulct. Trespasses by night on harvests or cornfields were published capitally, as victims to Ceres. No term of prescription gave a right to stolen goods, nor any right of a foreigner to the goods of a Roman citizen. Breaches of trust were punished with the forfeiture of double the value of the deposit.
The 3d table related to loans, and the right of creditors over their debtors. It prohibited more than one per cent. interest for money, and the debtor was to have thirty days after judgment to pay his debt; and if he did not then pay or give security, his creditor had a right to seize him, and load him with chains of a certain weight, and maintain him on a prescribed scanty allowance: and if he failed to pay after being sixty days in prison, be was to be brought before the people on three market days, and the debt proclaimed: and if: there were several creditors, he might at their election be sold beyond the Tiber, or his body cut into pieces. (Mr. Gibbon, Hist. vol. 8.92. takes this law in the literal sense, and so does Gravina, de Jure Nat. Gent. et XII. Tab. sec. 72.: and be adopts the argument of Sextus Caecilius in A. Gell. Noct. Att. 20. 1., who maintained, that the law was only cruel in appearance, and that he had never read or heard of its being executed, for its extreme severity prevented the creation of debt. Montesquieu well observes, that, upon such reasoning, the most cruel laws would be best: and he thinks the better construction to be, that the law only related to the division of the debtor’s property. Esprit des Loix, b. 29. ch. 2. Bynkershoek, Observ. Jur. Rom. lib. I. c. 1., and Heineccius, Antiq. Rorn. lib. 3. tit. 30. sec. 4. are of the same opinion. Gravina, ibid. sec. 21. says, there are grounds to conclude that the leges regias, with the exception of such as related to regal domination, were incorporated into the three first of these twelve tables.)
The 4th table related to the rights of fathers and families. It gave to fathers the power of life and death and of sale over their children, and the right to kill immediately a child born deformed. On the other hand, and as some compensation for these atrocious provisions, it declared, that if a father neglected to teach his son a trade, he was not obliged to maintain his father when in want; nor was an illegitimate child bound to maintain his father.
The 5th table related to inheritances and guardianships. It declared, that if the father died intestate, and had no children, his nearest relations were to be his heirs: and if he had no relations, a man of his own name was to be his heir. He had the right to appoint guardians to his children. If a freedman died intestate and without heirs, his effects went to the family of his patron. The heirs were to pay the debts of the ancestor in proportion to their share of his estate It also provided, in the case of lunatics and prodigals, that the relations, and if none, that one of the name was to have the care of the person and estate
The 6th table related to property and possession. It declared that the title of goods should not pass on sale and delivery, without payment. Two years possession amounted to a right of prescription for lands, and one year for moveables. It likewise declared, that in litigated cases, the presumption should always be on the side of the possessor: and that in disputes about liberty and slavery, the presumption should always be on the side of liberty.
The 7th table related to trespasses and damages. It provided, that compensation be made for trespasses, and that for arson or maliciously setting fire to a house, or to grain near it, the offender was to be scourged and burnt to death. The lex talionis was applied to losses of limbs unless the injured party accepted some other satisfaction. A pecuniary fine of three hundred pounds of brass was declared for dislocating a bone, and twenty-five asses of brass for a common blow with the fist (It is related in the Noct. Att. 20. 1. that one Lucius Neratius, in after times, when the city became wealthy, and such a fine insignificant, amused himself by striking freemen in the face as he met them in the street, and then ordering his servant, who followed him for the purpose with a bag of brass money, to count out and tender the twenty-five pieces as the compensation fixed by law.) It was provided also by this table, that slanderers, by words or verses, should be beaten with a club. False witnesses were to be thrown headlong from the capitol, and parricides were to be sewed up in a sack and thrown into the Tiber. Whoever wilfully killed, or poisoned, or prepared poison for a freedman, or used magical words to hurt him, was punishable as a homicide. Guardians and patrons who acted fraudulently in their trust, were to be fined and held odious.
The 8th table related to estates in the country. It required a space of two and a half feet to be left between every house, and it allowed societies or private companies to make their own bylaws, not being inconsistent with the public law. The praetor was to assign arbitrators in cases of disputes about boundaries: and it provided redress for nuisances to fields by the shade of trees, or by water courses. It required roads to be eight feet wide, and double at corners. It allowed travelers to drive over the adjoining lands, if the road was bad.
The 9th table was concerning the common rights of the people. It prohibited all special privileges to any person, and it restored debtors who had been redeemed from slavery to their former rights. It made bribery in a judge or arbitrator, or the holding seditious assemblies in the city by night, or delivering up a Roman citizen to a foreigner, or soliciting a foreigner to declare himself against Rome, capital offenses. It declared that all causes relating to the life, liberty, or rights of a Roman citizen, should be tried in the comitia centuriata. The people were to choose quaestors to take cognizance of capital cases.
The 10th table related to funerals. It prohibited the dead to be interred or burnt within the city, or within sixty feet of any house. It prohibited all excessive wailings at funerals, and women from tearing their faces or making hideous outcries on such occasions. It regulated and limited the expense of the funeral piles, and all costliness at funerals, such as the dress of the deceased, the players upon the flute, the perfumed liquors, the gold thread, the crown, festoons, etc.
The 11th table made part of the jus sacrum, or pontifical law. All the other tables related to civil rights, but this related to religion and worship of the gods. It required all persons to come with purity and piety to the assemblies of religion; and no person was to worship any new or foreign gods in private, unless authorized by public authority. Every one was to observe his family festivals, and the rights used in his own family, and by his ancestors, in the worship of his domestic deities. Honor was to be paid to those heroes and sages whom their merit had raised to heaven. The commendable virtues were to be ranked among the gods, and to have temples erected to them, but no worship was to be paid to any vice. The sacrifices to the gods by the priests were to be the fruits of the earth and young animals, and with the most authorized ceremonies. No one was to be initiated in any mysteries but those of Ceres. Stealing of what was devotee to the gods, and incest, were declared to be capital crimes.
The 12th table related to marriage, and the rights of husbands. It prescribed freedom of divorce at the pleasure of the husband, and it allowed the husband, with the consent of his wife’s relations, to put her to death when taken in adultery or drunkenness, and it declared it to be unlawful for patricians to intermarry with plebeians.
15. Cic. de Orat. b. 1. ch. 43, 44. De Legg. 2. sec. 23. Livy’s Hist. 3. 34. Tacit. Ann. 3. 27. A. Gell. Noct. Att. 20. 1. In the newly discovered treatise of Cicero, De Republica, lib. 2. ch. 36, 37, he insists, that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting marriages between plebeians and senatorial families was a most infamous law.
16. Inst 1.2.4. Dig. 1. 2. 9.
17. Dig. b. 1. tit. 2. De Orig. Jur. sec. 6. Gravina says, de Ortu. et Prog. J. C. sec. 33. that they were established by the policy of the ancient lawyers.
18. Dig. 1. 2. 7. Livy’s Hist. 9. 46. Gravina de Ortu Jur. Civ. sec. 33. and de Jur. Nat. et XII. Tab. sec. 79, 80.
19. Legulejus quidam cautus et acutus praeco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. l. 55. See also Cod. 2. 58. De formulis et impetrationibus actionum sublatis.
20. Dig. 1. l. 7. and 1. 2. 10.
21. Dig. 1. 2. sec. 26. 28.
22. Dig. 1. 2. 32.
23. Dig. 1. 1. 7. and 8.
24. Cic. de Legg. b. 1. c. 5. and b. 2. c.23. Gravina de Ortu. et Prog. J. C. sec. 38.
25. Dig. 1. 2. 5.
26. Dig. 1. 2.
27. In the times of the republic, the practice of the law was gratuitous, and highly honorary. All employment for hire was prohibited by a law enacted in the year of the city 550, at the instance of the Tribune Marcus Cincius. The profession at length became a business of gain, and was abused until Augustus revived the Cincian law with additional sanction by a decree of the senate. But as a reasonable compensation was necessary to advocates who devoted their time and talents to the profession, the compensation was allowed, and regulated by a decree of the senate in the time of Claudius: (Tacit. Ann b. 11. c. 5, 6, 7.) and afterwards, according to the law of the Pandects, b. 50. tit. 13. c. 1. sec. 5. 10. 12. the judges in the provinces were to determine on, and allow a reasonable charge to the advocate.
28. Cic. de. Orat. 1. 46. See also Quinctilian’s Inst. lib. 12. c. 11. where he alludes to Cicero, and strongly approves of this employment of the orator when he retires from practice at the bar.
29. Orig. Jur. Civ. b. 1. Proaem.
30. Immensus aliarum super alias acervatarum legum cumulus. Livy 3. 34.
31. Dig. 1. 1. 7. and 1. 2.12.
32. Dig. 1. 2. 36. and 39.
33. Dig. 1. 2. sec. 41, 43, 44, 46, 47.
34. Cic. de Oral. lib. 2. c. 33. Suci. J. Caesar, sec. 44. Heineccii Elementa Juris Inst. Proaem. sec. 2. Dr. Taylor’s Elements of the Civil Law, 14.
35. Dig. I. 2. 47. Heinecc. Histor. Jur Civ. lib. I. sec. 157, 158. 180.
36. Gravina de Ortu. et Prog. sec. 42. Heinecc. Antiq. Rom. lib. 1. tit. 2. sec. 39.
37. Gravina, de Romano Imperio, sec. 17.
38. Dig. l. 2. sec. 11.
39. Code. 1. 14. 3. Gravina de Ortu. et Prog. sec. 123, 124.
40. Gravina, ibid. sec. 112. De Romano Imperio, sec. 20.
41. Gravina, de Romano Imperioribis.
42. Dig. 1. 2. 2. 47.
43. Inst. 1. 2. 8.
44. Heinece. Antiq. Rom. Jur. lib. l. tit. 2. sec. 41. Histor. Jur Civ. lib. 1. sec. 378. Heineccius says, that Papinian was everywhere called Juris asylum et Doctrinae legalis thesaurus, and he far surpassed all his brethren, omnes longo post se intervallo reliquerit.
45. Gibbon’s history, vol. 8. p. 16.
46. Gravina de Ortu et Prog. Jur. Civ., sec 38.
47. Heinec. Hist. Jur. Civ. lib. 1. sec. 368-372.
48. Duo pene millii librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa, Secund. Praef. ad Dig. sec. 1.
49. Prima Praef. ad Dig. sec. 1.
50. Praef. prima. ad Cod. sec. 2.
51. See an account of that discovery in N. A. Review for April, 1821.
52. Sir William Blackstone, Com. vol. 2, 516. does not seem willing to admit that the statute of distributions was taken from the civil law: but when Lord Holt and Sir Joseph Jekyll declare, (1 P W m. 27. Prec. in Chan. 593.) that the statute was penned by a civilian, and is to be governed and construed by the rules of the civil law: and when we compare the provisions in the English statute and the Roman novel, the conclusion seems to be very fair and very strong, that the one was borrowed essentially from the other.
53. Inst. 3. 8. 3.
54. Gravina de Ortu et Prog. Jur. Civ. sec. 139.
55. Inst. l. 2. 6. Prima praef ad Dig. sec. 7. Praef. secund. ad. Dig. sec. 18. 21.
56. De Romano Imperio, sec. 23, 24. Mr. Gibbon, in his History, vol. 8. 17, 18. seems to think that the lex regia was created by the fancy of Ulpian, or more probably of Tribonian himself. The lex regia, as mentioned in the Pandects, l. 1. tit. 4. de constitutionibus principum, lib. 1. and in the Institutes, 1, 2. 6. declares: quod principi placuit legis habet vigorum; ubpote cum lege regia quae de imperior ejus lata est, populous eiet in eum, omne suum imperium et potestatem conferat. Selden, in his dissertation annexed to Fleta, ch. 3. sect. 2, 3, 4. discusses the character of the lex regia, and he says, it is evident that it stripped the people of all legislative power, and he places the origin of it back to the time of Augustus Caesar, when the Roman people transferred all their power and authority to him.
57. Esprit des Loix, liv.28. ch. 42.
58. Blacks. Com. vol. 1. Introductory Lectures. Reeve’s Hist. of the English Law, vol. 1. 81, 82. Millar’s Historic View of the English Government, b. 2. c. 7. sec. 3.
59. 3 Reeve’s Hist. 198.
60. 3 Inst. 208.
61. Life of Sir M. Hale, p. 24.
62. 12 Mod. 482.