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and purchasers ; and though the treatise is written in bad taste, it is a useful digest of the law on that subject. Powell's Essay upon the learning of devises contains a systematical and valuable view of an important branch of the law concerning title to real property, and it is enlivened with some spirited discussions; but neither that essay, nor the one of his upon mortgages, are to be compared to the clear, succinct, and masterly analysis of the cases under similar titles, in the great work of Mr. Cruise. Fearne's Essay on Contingent Remainders and Executory Devises is a performance of a very superior character. It is eminently distiuguished for the ability and perspicuity with which it unfolds and explains the principles of the most intricate parts of the law. Mr. Preston's recent essays on Estates and Abstracts of Title contain sound and clear views of the law of real property, and they have already attained the authority of works of established reputation.
I have thus attempted, for the assistance of the student, to unfold, in this and the preceding lecture, the principal sources from which we derive the evidence and rules of the common law. There is another source still untouched, from which a great accession of sound principles, particularly on the subject of personal contracts, has been received, to enlarge, improve, and adoro our municipal codes. I allude to the body of the civil law, contained in the Institutes, Digest, and Code of Justinian ; and our attention will be directed to that subject in the next lecture,
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, 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.
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 go
a See the Civil Code of the state of Louisiana, as adopted in 1824.
6 The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed into 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.
verning 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 presses 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 Pan dects," 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 Bynkershoeck” has republished
Early Ro. man law.
a Dig. lib. 1. tit. 2. De origine juris.
it, and endeavours 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 regia, 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. 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.”
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. The Roman people were divided into tribes and curiæ, and the patrician order and the Roman senate were instituted under Romulus, and that 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 curiæ or parishes, and the vote of every citizen belonging to the curiæ was equal in these comitia curiata. The senate was a select body of the elder citizens, and the king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the powers of a civil and military chief. The fecial and other colleges established by Numa, bound the Romans to religious discipline. 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,
a Heinecc. Anliq. Rom. Jur. Proæm. sec. 1 and 2. Hist. Jur. Civ. lib. 1. sec. 15, 16.
6 Gibbon, in his History, vol. 8. p. 5. note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats the early Roman history as a poetical legend, says that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. Hislory of Rome, vol. 1. 211. 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 Bynkershoeck and Heineccius, and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.
a I have followed Dionysius of Halicarnassus, Livy, Cicero, and the other authors of the classical ages, in respect to the early history of Rome; and I have not been inclined to adopt the historical scepticisms of some modern antiquaries, (of whom Niebuhr may be placed at the head,) so far, as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, vol. 1. 290—295, English edit. Camb. 1828. He holds, however, contrary to the received opinion, that the curiæ were at first assemblies of the patricians, and not of the whole people ; and that the Plebs were landholders of the neighbouring towns and country, and fieldlabourers, who were free, and above the degree or condition of the clients attached to the patricians, but that they had no vote. Niebuhr's work is so intermixed with true and fabulous story, and he goes so deeply into the "tangled thickets of the forest,” that it becomes rather dfficult to know what is and what is not to be deemed genuine history, amidst his incessant scepticism and complicated narration.
b Numa religionibus et divino jure populum devinxit. Tac. Ann. 3. 26. According to Cicero, the auspices, religious ceremonies, courts of justice, appeals to the people, the senate, and the whole military discipline, were instituted by royal authority, as early as the foundation of the city. He imputes the institution of the auspices and the senate particularly to Romulus. Tusc. Quæst. lib. 4. 1. De Repub. lib. 2. sec. 9, 10. 14. He says, further, that Numa was the writer of laws which were then extant! Ibid. lib. 5. sec. 2.