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THE

HISTORY

OF THE

DECLINE AND FALL

OF THE

ROMAN EMPIRE.

CHAP. XLIV.

Idea of the Roman Jurifprudence.—The laws of the Kings.-The Twelve Tables of the Decemvirs.-The Laws of the People.-The Decrees of the Senate.-The Edicts of the Magiftrates and Emperors.-Authority of the Civilians.-Code, Pandects, Novels, and Inftitutes of Juftinian :I. Rights of Perfons.-II. Rights of Things.III. Private Injuries and Actions.-IV. Crimes and Punishments.

CHAP.

HE vain titles of the victories of Juftinian XLIV. THE vain titles of

are crumbled into duft: but the name of the legislator is inscribed on a fair and everlasting Under his reign, and by his care, the civil jurisprudence was digested in the immor

monument.

VOL. VIII.

B

tal

The Civil or Roman law.

XLIV.

CHAP. tal works of the CODE, the PANDECTS, and the INSTITUTES': the public, reafon of the Romans has been filently or ftudiously transfused into the domestic institutions of Europe, and the laws of Juftinian still command the respect or obedience of independent nations. Wife or fortunate is the prince who connects his own reputation with the honour and intereft of a perpetual order of men. The defence of their founder is the first caufe, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; diffemble or deny his failings; and fiercely chastise the guilt or folly of the rebels who prefume to fully the majesty of the > purple. The idolatry of love has provoked, as it ufually happens, the rancour of oppofition; the character of Juftinian has been expofed to the blind vehemence of flattery and invective, and the injuftice of a fect (the Anti-Tribonians) has refused all praise and merit to the prince, his ministers,

The civilians of the darker ages have established an abfurd and incomprehenfible mode of quotation, which is fupported 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 (Vit. Juftiniani, p. 268.) wifhes to shake off this pedantic yoke; and I have dared to adopt the fimple and rational method of numbering the book, the title, and the law.

* Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reafon; in France, Italy, &c. they poffefs a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Juftinian (Duck. de Ufû et Auctoritate Juris Civilis, 1. ii. c. 1. 8-15. Heineccius, Hift. Juris Germanici, c. 3, 4. N° 55-134. and the legal historians of each country).

and

I

XLIV.

and his laws. Attached to no party, interested CHAP. only for the truth and candour of hiftory, and directed by the moft temperate and skilful guides", enter with just diffidence on the subject of civil law, which has exhaufted fo many learned lives, and clothed the walls of fuch fpacious libraries. In a fingle, if poffible, in a short chapter, I fhall trace the Roman jurisprudence from Romulus to Juftinian, appreciate the labours of that emperor, and pause to contemplate the principles of a fcience fo important to the peace and happiness of fociety. The laws of a nation form the most inftructive portion of its hiftory; and, although I have devoted myself to write the annals of a declining monarchy, I fhall embrace the occafion to

3 Francis Hottoman, a learned and acute lawyer of the xvith cen. tury, wifhed to mortify Cujacius and to please the Chancellor de l'Hopital. His Anti Tribonianus (which I have never been able to procure) was published in French in 1609; and his fect was propagated in Germany (Heineccius, Opp. tom. iii. fylloge iii. p. 171 düş 183.).

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4 At the head of these guides I shall respectfully place the learned and perfpicuous Heineccius, a German profeffor, who died at Halle in the year 1741 (see his Eloge in the Nouvelle Bibliotheque Germanique, tom. ii. p. 51-64.). His ample works have been collected in eight volumes in 4to, Geneva, 1743-1748. The treatifes which I have feparately used are, 1. Hiftoria Juris Romani et Germanici, Lugd. Batav. 1740, in 89. 2. Syntagma Antiquitatum Romanam Jurifprudentiam illuftrantium, 2 vols. in 8o, Traject. ad Rhenum. 3. Elementa Juris Civilis fecundum Ordinem Inftitutionum, Lugd. Bat. 1731, in 8°. 4. Elementa J. C. fecundum Ordinem Pandectarum, Traject. 1772, in 8o, 2 vols.

s Our original text is a fragment de Origine Juris (Pandect. 1. i. tit. ii.), of Pomponius, a Roman lawyer, who lived under the Antonines (Heinecc, tom. iii. fyll. iii. p 66-126.). It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279-304.).

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CHAP. breathe the pure and invigorating air of the re

XLIV.

Laws of

the kings

public.

6

The primitive government of Rome was comof Rome. pofed with fome political skill, of an elective king, a council of nobles, and a general affembly of the people, War and religion were administered by the fupreme magiftrate; and he alone proposed the laws, which were debated in the fenate, and finally ratified or rejected by a majority of votes in the thirty curia or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold divifion of Jurifprudence'. The laws of marriage, the education of children, and the authority of parents, which may feem to draw their origin from nature itself, are afcribed to the untutored wifdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the feven claffes of citizens; and guarded, by fifty new regulations, the obfervance of contracts and the punishment of crimes. The state, which he had inclined towards a democracy, was changed by the last Tarquin

6 The conftitutional hiftory of the kings of Rome may be ftudied in the first book of Livy, and more copioully in Dionyfius Halicarnaffenfis (1. ii. p. 80-96. 119-130. iv. p. 198-220.), who fometimes betrays the character of a rhetorician and a Greek.

This threefold divifion of the law was applied to the three Ro man kings by Juftus Lipfius (Opp. tom. iv. p. 279); is adopted by Gravina (Origines Juris Civilis, p. 28. edit. Lipf. 1737); and is reluctantly admitted by Mafcou, his German editor.

XLIV.

into lawless defpotism; and when the kingly office CHAP. was abolished, the patricians engroffed the benefits of freedom. The royal laws became odious or obsolete; the mysterious deposit was filently preferved by the priests and nobles; and, at the end of fixty years, the citizens of Rome still complained that they were ruled by the arbitrary sentence of the magiftrates. Yet the pofitive inftitutions of the kings had blended themselves with the public and private manners of the city; fome fragments of that venerable jurifprudence were compiled by the diligence of antiquarians, and above twenty texts still speak the rudeness of the Pelafgic idiom of the Latins1o.

8

I fhall

8 The most ancient Code or Digest was styled Jus Papirianum, from the first compiler, Papirius, who flourished somewhat before or after the Regifugium (Pandect. 1 i. tit. ii.). The best judicial critics, even Bynkershoek (tom. j. p. 284, 285.) and Heineccius (Hift. J. C. R. 1. i. c. 16, 17. and Opp. tom. iii. fylloge iv. p. 1-8.), give credit to this tale of Pomponius, without fufficiently adverting to the value and rarity of fuch a monument of the third century, of the illiterate city. I much fufpect that the Caius Papirius, the Pontifex Maximus, who revived the laws of Numa (Dionyf. Hal. l. iii. p. 171.), left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect 1. L. tit. xvi. leg. 144.) was not a commentary, but an original work, compiled in the time of Cæfar (Cenforin. de Die Natali, l. iii. p. 13. Duker de Latinitate J. C. p. 157:).

9 A pompous, though feeble attempt to restore the original, is made in the Hiftoire de la Jurifprudence Romaine of Teraffon, p. 22-72. Paris, 1750, in folio; a work of more promise than performance.

10 In the year 1444, seven or eight tables of brass were dug up between Cortona and Gubio. A part of thefe, for the reft is Etrufcan, represents the primitive state of the Pelafgic letters and language, which are ascribed by Herodotus to that district of Italy (1. i. c. 56, 57,58.); though this difficult paffage may be explained of a Creftona in Thrace (Notes de Larcher, tom.i. p. 256—261.). The favage dialect of the Eugubine tables has exercised, and may still elude, the divination of criticism; but the root is undoubtedly Latin, of the

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