■^ ''^! IMAGE EVALUATION TEST TARGET (MT-S) % 1 I 1.0 I.I u ^ ;f 1^ iiiM ■- !■■ 12? I" 1^ ^ - lis iilio 1.8 1.25 1.4 1.6 6" ► '/ Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 .■■iM,;t.^^' I Is 5? ..^^ P^> z i i r ,1^ ■fi i r CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Instltut Canadian de microreproductions historiques sTT'ti;;,/- :p'&J5&.^i"--- District or Psnnsvlvavia, to wjt : BE IT REMEMBERED, That on the twenty-wvenlh day of Jami • ary, in the thirty-second year of the Indcppndenre of the SEAL. United States of America, A a 1809, William 1'. Farrand of the said District, hath deposited in this Office, the title of 8 book, the right whereof he claims as Proprietor, in the words fol- lowinjf, to wit! " Farrand and Go's Premium Edition. Hora; Jiiridicx Subseciv*- a connected series of notes, respecting the KCOL'raphx, chionoloirv' and literary historv, of the principal codU and oriViifald^^^^^^^ tl.eGrec,aH.Komai,, Feudal und Canon Law By Charles Butler, eW of Lincoln's Inn. With additional notes and illustrations U an enr?. trT HoT" *"*" *"' qxAdam prodire tenns, si non'datur iil- t.ill"d''""*r.?'oVV''rK'"'* "'■ ^^^ Congress of the United States, inti- tuled, An act for the encouraiftment of learninir, by securinir the copies of maps, charts, and booCs, to the authors and proprietors of ST"a '"/"'*' t''""*''"*"""^""""«-d =" Ai'il alsotothcact, entitled. An act supplementary to an act, entitled, « An act for the booksTf.l?;"' ?f '^'"•"'"»?' »>> "-""•inP the copies of maps, charts, and thrrpi'n 1 ?• ^T" "l"" l""Pr.'etors of such copies duriuK the times therein mentioned,' and extending the benefits thereof to the arts of designmg, engraving, and etching historical and other prints." D CALDWELL, ■ — ■ Clerk of the District of Pennsylvania. i L L. " 63 1 i A ) MAY 18 \jA2\ to the public. .— ~.,.^ 4#(-«i-der to insure correctness the publishers of this book have subjected it to a critical examination in the following manner—Two proof-sheets have been put up for public ex- amination ; one at the publishers' counting-house, the other at the city library in Philadelphia, and a premium of one dollar has been offered for every error that might be discovered: hence it is designated a /iremium .edition. PniNTED BY FRY AND KAMMEHEn, Printers of William P. Farrand and Co.'s premium editions. /tW- h«lay orjami- idenre of the m 1*. Farraiul, ice, the titlp of the wordii foK ex Subsocivie: } , clirnnology, (lociimeiits, of ■s Butler, E.s" '"- t^«'i^'siK^a«B-'*- ■ftS^ ''""(*-':■_ INTRODUCTION. The following sheets complete a very imperfect execution of a design, which, almost in the first moments of his engaging in the study of the law, the writer formed, of committing to paper, A Succinct Literary Histouy of the Princital Codes extant of Sacred and Profane Law. Such a work, executed with ability, would be curious, interesting and instruc- tive: the writer's projecting it shews his equal ignorance, at the time, of its nature and extent, and of his inability to execute it. It has not, however, been wholly out of his mind ; so that, for a great number of years, he lias been in the habit of employing his leisure hours, in the study of these codes, and in committing to paper, his observations on them. Encouraged if n '!,■; 'irstt' i ! 1. ; I ! I !■ , 'I # '^ VIII I INTUODUCTION. Kticouragcd by tlu- reception, which a private impression of it had received among his friends, he pnhlished, in 17i>9, something in the nature of a Literary Hi\tory of the Old and JVnu Tfstnmnits, (on man} uccou'nts, the most im- portant of all codes of law) under the title, '* Jlorct liihlica, hchifr a amtwcti'd Series of Mis- '* rellanenns Notes on the Orif^inal Text, Early " Versions, and printed Editions, of the Old and ** A'eiv Testaments.'''' He has since circulated among his friends, u pri- vate impression of « similar series of Notes on the Coran, the Zend-Avesta, the Fedas, the Kittgs, and the Edda, the sacred Codes of the Mahometans, the Parsccs, the Hindoos, the Chinese, and the Scandinavians. The following sheets, containing a similar series of his Notes on the Grecian, Roman, Feudal and Ca- non Law, now solicit the reader's attention. As some excuse for the imperfections of these compilations, he begs leave to mention, that he has had little leisure to bestow on them, bevond occa- sional bits and scraps of time, which a very labori- ous discharge of the unceasing duties of a very la- borious profession has left at his command ; and which he has always found it a greater relaxation to emplov in this manner, than in anv other. What nt. lyo. INTROnuCTION. ix What is here said on TiiKflnKciAN Law, may be found to contain Monie uicount of I. The Clco^raphical Limits of (Jrcrco • I II. Of its Lcnislati"" 1 . In its ralniUnis 2. Heroic 3. And Historical Ajjo S26. III. Of the Laws of LyciirmiH 624. 594. IV. Draco and Solon ib. 190. V. And of the Decline of the Laws of Athena and Laccdacmon - - - 1» What is said on The Roman Law, may be found to contain some account I. Of the Degree of Credit due to the Histories which have reached us, of the live First Ages of Rome - - 20 II. Of the Geographical Limits of the Coun- tries in which the Roman Law has prevailed: 1. Italy - ... 22 2. The Roman Conquests in Kuropc - 24 3. And the Roman Conquests out of Europe 25 III. Of the different Classes of Roman Subjects ib. I. Citizens, or those who had Jus Civitatis 25 ft B 1. Latins, U> Before Chritt. 753. 309. 453. 451. INTRODUCTION. 2. Latins, or those who had Jus Lain 3. Italiuns, or those who had Jus Italicum 4. And of the Provincis, Municipia, Prsfectu- rse 8t Civitates Foederatx IV. Of the Government and Form of Roman Legislation - " " 1. As originally constituted 2. And as successively altered .1. Of the Titles of their laws V. Of the History of the Roman Law V. 1. Its First Period — From the Foundation of Rome, till the .Era of the Twelve Tables - - '^^' Jus Civile Papyrianum 46. Papte 28 29 After Clirisi V20 ib. 'J84 1 ,•50 31 306 33 36 408 37 438 306 V. 2. Second Period — The Twelve Tables 39 V. 3. Third Period — The Laws of Rome during the re- maining Period of the Republic 42 43 1. Jus Honorarium 2. Actioncs Leges h Solemnes Legum For- 47 muloc 3. Disputalioncs Fori k Responsa Pruden- ib. turn V. 4. Fourth Period — . „ '. - 50 JuUus Caesar V. 5. Fifth ,)28. 533. 534. 566. 368. Page 2B tu- 29 ib. nan :ome, welve ib. 38 39 ihe re- iblic 42 . 43 m For- 47 'ruden- ib. •• 50 V. 5. Fifth Aftfr Cliriiit. INTRODUCTION. V. Fifth Period— Adrian Edictum Perpctuiim Codex Gregorianus Codex Hermogenianns 30 V. 6. Sixth Period— 31 306. Constantine the Great 33 36 V. 7. Seventh Period— 408. Thoodosiiis the Younger ST 438. Coucx Theodosianus : 506. Brcviarium Aniani V. 8. Eighth Period — Justinia;. - - - 1. Codex Prims Prxlectionis 2. Digestum, or Pandectae 3. Inslitutiones 4. Codex Repetitx Praleclionis 5. Novellx ... 6. Volumen Authenticum 7. Libri r'cudorum, and other Articles forming the Decima Collatio 8. General Merit of Justinian's Collection V. 9. Ninth Period — The Fate of Justinian's Law. 1. In the Western Empire 2. In the Eastern Empire The Basilica The Extinction of the Roman law in the East, in conbe<|uence of the taking of Constanti- nople by Mahomet the Second V 60 61 ib. 62 10. i ". ):.>" After Christ. ^ij INTRODUCTION. V. 10. The Tenth Period- Revival of the Roman Law in the West, in consequence of the Discovery of the Pan- dccts at Amalphi Collations and editions of the Pandects VI. Principal Schools of the Civil Law 1. School of Irnerius 2_ Accursius 3_ Bartolus and Baldus 4. AndCujas Vn. Influence of the Civil Law on the Jurispru dencc of the principal States of Europe Page 62 ib. 63 6T 6S ib. ib. 69 What is said on the Feudal Law, may be found to contain some accoimt I. Of the original Territories of the Nations by whom it was established. 1. Scythians 2. Celts 3. Sarmatians 4. Scandinavians 5. Germans 6. Huns 7. Sclavonians / 3 76 ib. ib. ib. 76 77 U. Of the gradual Extension and Dates of the prin- cipal Conciuests made by them - ^'i' in. And of the principal written Documents of the Learning of Foreign Feuds - *** 1, Codes 300. 185. 451. I 560. '■)92. 62 ib. 6S 6T 68 ib. ib. 69 After Christ. INTRODUCTION. 1 . Codes of Law 2. Capitularies 3. Customary Law xiu Page 83 86 88 What is said on The Canon Law, may be found to give some account I. 1. Of the Ancient Religion of Rome - 97 2. Of the Gods worshipped by the Romans 98 3. And of the Colleges of Priests dedicated to their Service - - - 99 II. Of their Toleration of Foreign Worship 101 III. Of the Christian Hierarchy 105 75 V 76 V ib. :oo. ib. 300. ib. 76 185. 77 451. 560. 692. 77 IV. Of the General Materials of the Canon Law 105 Of the History of the Canon Law - 106 1 . The Ancient Period of the Canon Law - ib. 1. Canons of the General Church - 107 The Apostolic Constitutions - ib. 2. Canons of particular Churches 108 Codex Ecclesix Orientalis - ib. Codex Ecclesix Universal - ib. Nomo-Canon of Joannes Scholasticus - 109 Synod in TruUo - - ib. Nomo-Canon of Photius - - ib. 3. Vetus Canonum Latinorum Editio, by Diony- sius Exiguus - - - 110 u M it u o i 1. 1 i 4. Collection t 1 . t*' After Christ. 760, 845. 906. 1000. 1100. 1150. xir INTRODUCTION. 4. Collection of Canons of the African Church 1230. 1298. 1313. 1340. 1483. J 590. Church of Spain 110 111 V. 2, 1, The Middle Period of the Canon Law. Isidore Peccator, or Mercator's Collection of Decretals - - - ib. Capitularies of Adrian - - 112 Collection of Rhe^inon Abbot of Prumia ib. Burchardus's Mi.gnum Decretorum seu Cano- num V'oliinien Decretum Cunoimm, and Panomia of Ivo 2. Decictuiii flratiuni Brcviuruiii Bern.iali Papiensis Collcxiioiis of Johannes Galensis and Peter Bcnoventanus Libri ijuinque Decretalium Gregorii Noni Liber Sextus Dccrct.ilium Liber Septimus Decretalium Extravagantcs Johunnes xxii. Extravagantes Comnuines Collection of Matthxi Institutioncs Lancellotti 3. Of the Modem Period of Canon Law; 1. Transactions and Concordates between Sove reigns and the See of Rome 2. Councils of Basil, Pisa, Constance, and Trent 3. Bullarium 4. Regula Cancellariae Romanx — Decrees and Ordinances of the various congregations of Cardinals at Rome; and Decisions of the Rota ib. 5. Legatine 113 ib. ib. 115 ib. ib. 116 ib. ib. ib. 117 ib. 118 ib. 130 !(■.■¥*»**«•"¥—■ --5-': ^^,*Ra«>«^-*.#^*«^^'--i*«^1»*rs«-- ;h Pa(?e no 111 5n of -ano- Peter ib. 112 ib. 113 ib. ib. 115 ib. ib. 116 ib. ib. ib. 117 ib. Sove- 118 rrenl ib. 120 ;s and ons of e Rota ib. 1. Legatine INTRODUCTION, 5. Legatine and Provincial Constitutions VI. Authority of the Canon Law XV PaRC 120 121 APPENDIX. Note I. On the Right of the Crown of England to the Ex- clusi\c Dominion and Property of the Dritish Seas. Note II. On the Geographical Division of the Alps. Note III. On the Prsetor's Judicial Power, from Dr. Bever's History of the Legal Polity of the British State. Note IV. On the Modes of quoting the Civil and Canon Laws, from Dr. Hallifax's Analysis of the Roman Civil Law. Vf"*-»*'g^^7^fr^- J^i 'T m i .1' ' \ i,..' "^tv" "-^r^ef r-^=7 - THE GRECIAN LAW. I. When the space, which Greece fills in history, is considered, it is impossible to view, without sur- prise, the small extent of its GEOGRAPHICAL jLiuns. In the largest sense of the word, Greece denotes the territories between* Illyricum and Mcesia, to the north; the Ionian Sea, to the west; the Cre- tan, to the south; and the iEgaean, to the east. It is divided into the Regnum Macedonicum, which, in the time of Philip, consisted of Mace- don, Thessaly, Epirus, and Thrace ; and of the Grsecia Vera, which was divided into three parts, Achaia, Peloponnesus, and the Islands. It is highly probable that Greece was originally peo- pled by the Pelasgi, an Asiatic horde, who, in successive emigrations, passed the Caucasus, the Don, the Neister, and the Danube, and spread themselves over a great pajt of Greece. At subse- quent periods, it was peopled by various colonies C from H i'l, n nT jU ^ a t W jgl l 4', W f ^T riii W M i i iiiftB i W J ^ . 2 THE GRECIAN LAW. from iEgypt and Phoenicia. For a considerable time, all its inhabitants lived in a wild and barba- rous state. Afterwards its fabulous, heroic, and historical ages successively follow- II. II. 1. Its LEGISLATION maybe traced toit!> ■^''tnTheTythology of the Greeks, the following Js the genealogical history of justice. Ckios was the first of beings, and gave birth to Coelum and Tellus, and to Erebus and Nox: Ccelum and Tellus were the parents of Jusjurandum and Themis; Erebus and Nox were the parents of Nemesis. Jupiter had Astraea and Dice by The- mis —when the deities itsided on earth, m the golden age, Astr«a presided over the administra- tion of justice; and when, in consequence of the vices of men, the deities fled to heaven she was the last of them who remained on earth; but, at length, quitted it, and was translated into the sign Virgo, next to Libra, her balance. Ceres, the daughter of Saturn and Ops. taught niankind tillage, the worship of the gods, the use and rights of separate property, respect to parents ^d ten- derness to animals: on this account, both m the Greek and Latin writers, she is called the law- bearing Ceres; and both^n Greece and Rome, she was worshipped, and had temples dedicated to her, under that name. ^^^ I I. mi i*ft i| | »" i «'J« '* iM -^ *' ' »Bj»«.^j»»#iwi ^^ » > .: W * »w"4; ^' '' ^' ' t|'-' '^ ^ ^ijJU l -Wg*. " ■li THE GRECIAN LAW. 9 The earliest account of the fabulous age, onBcfor* which any reliance can be placed, commences about 1970 years liefore Christ; when Argos, from which the north-eastern territory of Pelo- ponnesus received its denomination, first began to acquire political eminence. It is said to have been founded by Inachus, in - • • 1970 His descendants filled the throne, till Gelanor, the tenth of them in succession, was expelled by Danaiis, a prince of /Egypt. - - 1586 He is mentioned by some writers, as the first legislator of the Greeks; from him, the people of the peninsula, till then called Pelasgiaiis, received the name of Danaans, which they retained in Homer's time. 41. 2. From that period, some appearance of real history being discernible in the accounts we have of what is generally called the fabulous age of Greece, it is supposed to verge to a conclusion, and the heroic age of Greece, is supposed to begin. The regular history of Grecian legislation com- mences with Theseus, one of the celebrated per- sons from whom that age received its appellation. In a military expedition to the kingdom of Crete, undertaken by him, to deliver the Athe- nians from an ignominious tribute, paid by them to the monarch of that island, he had become ac- quainted with the laws of Minos. The excel- Icnrc of those laws is highly celebrated by the writers The .| |ii i' ijn |ii t i njnTj^a , ti i 4{n, 'i »i ! i > t( 'i ; i fwij i fr U'L ^ THE GRECIAN LAW. writers of antiqdity : to us, they are chiefly kno>vn, as the foundation on which Theseus, and after him Lycurgus, built their respective systems of legislation. In the public education of their chil- dren, in the public repasts of the people, at which the rich and the poor promiscuously attended, in the division of the inhabitants into freemen and slaves, and in some other institutions of Minos, wc trace the general system of legislation, adopted by the Spartan legislator. It is observable, that Minos was the first sovereign, to whom the splen- did prerogative of the Dominion of the Sea* was assigned; but probably it was confined to the Cretan and a small part of the JEgxan Seas. On his death it was assigned to the princes of Argos. On the return of Theseus from Crete, he abo- lished private jurisdictions, and subjected the whole territory of Athens to one common system of legislation; he divided the commonwealth into nobility, husbandmen, and artificers; and esta- blished an uniformity of religious rites and sacri- fices. To the nobility and husbandmen he ap- propriated the executive powers, with the super- intendency of religion : but a share in the legislation was given to all; no distinction prevailed, as in every other Grecian province, and afterwards in the Roman world, between the people in the capital, and the rest of the people; all were » See Appendix, Note I. united, |Mf W'->^ ' >-'^- ^ ' ** ii ..iji« ! J ' *^i'^ ' Tft W ""* ' ^ ' ^ ' ''^ ' THF, GRECIAN LAW. S united, under the general name of Athenians, in Before the enjoyment of every privilege of Athenian citizens, and the monarch was rather their first magistrate than their sovereign. In consequence of these wise regulations, the Athenians seem to have acquired more civilized manners than the rest of the Greeks; they were the first who dropt the practice of going constantly armed, and thus introduced a civil dress in contradistinclioa from the military'. The subject leads to the mention of nothing of importance before the taking of Troy. - 1282 In his description of the shield of Achilles, Ho- mer gives a striking account of a trial at law, in his times. " The people were assembled in the market- " place, when a dispute arose between two men, " concerning the payment of a fine for man- " slaughter: one of them addressed himself to the ♦' bystanders; asserted that he had paid the whole; " the other insisted, that he had received nothing; " both were earnest to bring the dispute to a ju- «' dicial determination. The people grew noisy in " favour, some of the one, some of the other; but " the heralds interfering, enforced silence; and " the elders approaching, with sceptres of heralds " in their hands, seated themselves on the polished " marble benches in the sacred circle. Before them, the litigants, earnestly stepping forward, "pleaded t( i "\ t i! u t ll^nl iril f. 6 THE GRECIAN LAW. " plcadtcl by turns: while two talents of gold Iny " in the midst, to ht awardid to hini, who should " support his cause by the cltarcst testimony and " the clearest argument." Wc find From Homtr's writings, that, in his time, the rights of primogci\iturc were consider- able; that, murder was punished rather by privat.. revenge than public justice; that, conjugal . » delity, on the woman's part, was estre.ivd ufi heinous offence ; that, on the man's, 't wa^ little regarded; and that, the breach of viq^ln honour w as scarcely thought a crime. It is observable that Homer makes no menlion either of a pure republic, or of the absolute rule of one man : he is supposed to have Ijcen favour- able to monarchical government; but it is said to be discoverable from his works, that, when he wrote, the general tendency of the public mind of Greece was democratic. In the course of time, democracy obtained a complete victory over monarchy, in every part of Greece. The Heraclidae, having acquired a settle- ment in Doris, invaded and made themselves masters of all Peloponnesus, except Arcadia. At first, they established a limited monarchy in the different provinces they conquered ; but, having quarrelled among themselves, and confusion uni- versally prevailinfT, monarchy was almost every where abolished, ■■•' l-e \vords, Tyrant and King, became synony , ,nh. II. 3. Here THE GRECIAN LAW. f II. 3. Hcrt- the hc..;ic ago of the history of Grccci draws to onclusiou, and \vc perceive ihc duwii of its historical tcra. From this tiuu-, Greece must f>e considered -w formed of a multitude of iiide|K>nd« ni statrs, ex- ercising complete sovereignty within their resp( c- tive territories; l)oimd together by no fcdt ral uiiion, but connected by language, by their notion of a descent from a common stock, by a -similitude of religious belief, and by frequent meetings ut public games. But nothing contributed to this general union more than the council of the Airphictyons : it is supposed to have been instituted b\ Aniphictyon, the son of Deucalion. It met someti ues at Ther- mopyls, sometimes at Delphi; the members of it were chosen by the principal cities of Greece. The object of the institution was to decide the differences, which happened among tue Grecian states. Their determinations were alwavs held in great veneration ; and their influence ib supposed to have continued till the reign of Antoninus Pius. During the whole of the historical aera oi Greece, except when some singular event raises a particular state into notice, Lacedaemon and AtheiiS alone engage the attention of the historian or civilian. i;. \tM a THE GRECIAN LAW. VI III. THE ara of Grecian legislature begins with Bef«« the LAWS OF LYCURGUS, the most singular institution recorded in history. - - ^26 He established two Kings, and a Senate of twenty-eight members, appointed for life; the Kings were chosen by the people, were heredi- tary senators, high priests of the nation, and commanders of their armies ; but they were con- trolled, in the exercise of their power, by five Ephori, created annually. With the senate, all laws were to originate; the general assembly of^ the people had the power of confirming them ; but public debate was wholly forbidden the general assembly. Lycurgus effected an equal division of land among all the citizens ; he abo- lished the use of gold and silver ; and ordained, that all children should be educated in public : every citizen was to be a soldier ; all sedentary trades, and even agriculture, were forbidden them ;- the ground was cultivated by -the Helotze, akind of slaves, whom the Lacedaemonians treated with the greatest cruelty. Thus, Lycurgus efiected a total revolution of ^ law, property, and morals, throughout the whole of the Spartan territory : no legislator ever at- tempted so bold a plan. It has been observed, that, tvt^ ^ ,..rHlf t-i i »^ l} ^ i fjf »*j: .^;,^.5g5^^5J^«^SSW^^ ^ii«*B!»e*'-; with BcfbM , Christ,. igular - 926 ite of ; the eredi- , and e con- y five te, all bly of^ them ; 1 the equal e abo- lained, mblic : lentary them y kind of iththe tion of ^ ; whole ver at- served, that, THE GRECIAN LAW. 9 that, if he had merely been a legislator in specu- Before lation, his scheme would have been thought more visionary than Rato's; it may be added, that, if the existence and continuance of his institutions were not proved, bejond argument, by the highest degree of historical evidence, the relations of them would be pronounced a fiction, on account of what would be termed their evident impracticability. Yet, the first establishment of them was attended with little resistance, and with no political convul- sion; they remained in vigour longer than any political institution of antiquity known to us, and were respectable even in their decay. IV J . DRACO was the first legislator of ATHENS : of his laws we know little more than that their ex- treme severity was proverbial. He made all crimes capital, on the ground, that a breach of any positive law was a treason to the state. Solon framed for his countrj^men, a new and milder system of law. . . - - Mr. Tytler's Elements of Ancient History, 1st vol. 49 52, gives us the following concise and clear view of Solon's Legislation. " Solon, an illustrious Athenian, of the race '« of Codrus, attained the dignity of Archon 594 D 'B.C.; 624 594 r tf.\ ■ 1 ' \i ■ .1 m JO TlIEfJKKCIANLAW. " li. C; and was intrusted with the care of fram- " in^, for his country, a new form of government, " and a new system of laws. He possessed ex- " tensive knowledge, but Avanted that intrepidity " of mind, which is necessary to the character " of a great statesman. His disposition was mild, " and temporising, and, without attempting to " reform the manners of his countrymen, he ac- *' commodated his s}'stem to their prevailingTiabits " and passions. " The people claimed the sovereign power, " and they received it: the rich demanded offices " and dignities: the system of Solon accommo- " dated them to the utmost of their wishes. He " divided the citizens into four classes, according " to the measure of their wealth. To the three " first, (the richer citizens,) belonged the offices " of the commonwealth. The fourth, (the poorer " class,) more numerous than all the other three, " had an e(iual right of suffrage with them, in " the public assembly, where all laws were fram- " ed, and measures of state were decreed. Con- " sequently the Aveight of the latter decided every " question. " To regulate, in some degree, the proceed- " ings of tlieir assemblies, and balance the weight " of the popular interest, Solon instituted a senate «' of 400 members, afterwards enlarged to 500 '' and 600.) with whom it was necessary that " everv j.-_,«<;;(^».^..— i -■■i^a»i.r='='^«'i""*PW,!Sf'wC'"S* THE GRECIAN LAW 11 fram- «( iment, ii ;d ex- «( epidity aracter C( s mild, (( ing to (( he ac- <( '"habits <( (( power, (( offices il -ommo- n les. He cording n le three (( ; offices iC i poorer (( :r three, (( tiem, in (( re fram- (( d. Con- (( ;:d every l( (( proceed- a e weight t< a senate n to 500 sary that (I " cverv every measure should originate, before it became the subject of discussion in the asscn\biy of the people. " To the court of Areopagus he committed the guardianship of the laws, and the power of enforcing them, with the supreme administra- tion of justice. To this tribunal belonged, like- wise, the custody of the treasures of the state, the care of religion, and a tutoral power over all youth of the republic. The number of its judges was various, at diflerent periods, and the most immaculate purity of character was essential in that high office. " The authority of the Senate and Areopagus imposed some check on the popular assemblies; but, as these possessed the ultimate right of de- cision, it was ever in the power of ambitious demagogues to sway them to the worst of purposes. Continual factions divided the peo- ple, and corruption pervaded every department of the state. Their public measures, the result of the interested schemes of individuals, were often equally absurd as they were profligate. Athens often saw her best patriots, the wisest and most virtuous of her citizens, shamefully sacrificed to the most depraved and most aban- doned. " The particular laws of the Athenian state were more deserving of encomium than its " form ' : '.'>■ '^ ,;'? ,ii^' jtmmmmMsi^^issfi^^ If 'i'" 12 THE GRECIAN LAW. m " form of government. The laws relating to ♦' debtors were mild and equitable, as were those " which regulated the treatment of slaves. But " the vassalage of women, or their absolute sub- " jection to the control of their nearest relation, " approached near to a state of servitude. The " proposer of a law, found on experience impolitic, " was liable to punishment; an enactment appa- " rently rigorous, but probably necessary in a " popular government. ** One most iniquitous and absurd peculiarity " of the Athenian, and some other governments " of Greece, was the practice of the ostracism, " or a ballot of all the citizens, in which each " wrote down the name of the person in his opi- " nion most obnoxious to censure; and he was " thus marked out by the greatest number of voices, " and, though unimpeached of any crime, was " banished for ten years from his country. This " barbarous and disgraceful institution, ever capa- " ble of the grossest abuse, and generally subser- " vient to the worst of purposes, has stained the " character of Athens with many flagrant ' in- " stances of public ingratitude." A full account of the laws of Athens may be found in Archbishop Potter's Archajologia Graeca, B. 1. The frag- ments of them were published by Petitus, with an excellent commentary. A splendid edition of iho work, with his own notes and those of Palmerius. - ^ - ^..^i,,^jyypg*^iy ^ >!» - y ; f giyg *y^ft-; r-^^ mm ^ u i ^i^i .s f.'mimt. ^mmm m^^^^ •«r'- "«% THE GRECIAN LAW. 13 Palmerius, Salvinius, and Duker, was published by Wesseling, in 1742. IV. 2. This may be considered a succinct view of the constitution of Athens, as it was established by Solon. The following is a short account of their Forensic proceedings in the civil administration of justice. All cases, respecting the rights of things, be- longed to the jurisdiction of the Archon: he had six inferior magistrates, of the same name for his assessors. The person who sought redress in a court of justice, denounced the name of his ad- versary, and the cause of his complaint to the sitting magistrate; and, if the sitting magistrate thought the cause of action maintainable, he per- mitted the complainant to summon the defendant: if the defendant disobeyed the summons, he was declared infamous; if he obeyed it, the parties were confronted, and were at liberty to interrogate one another. If the magistrate thought there was a probable cause of action, he admitted the cause into court; here the pleadings began, and were continued till the parties came to some fact, or some point of law, asserted on one side, and denied by the other; this brought them to issue: then, all the pleadings and evidence in the causes were shut up in a vessel, which was carried into court. The Archon then assigned the judges to try tht cause, and they decided not only upon the fact, but upon the law of the case. ^ One ..^■ 14 thi:(;ri:cian law. !fl One mode of process in use at Athens, bears a resemblance to the modern practice of trying the title to the freehold by ejectment. That, in its original state, was an action ijrought by a lessee for years, to repair the injury done him by dispos- sessing him of his term. To make it serve as a legal process for recovering the freehold, the law now supposes, that the party dispossessed has en- t'-red on the land ; that he has executed a lease of it; and that his lessee has been dispossessed: for this injury, the lessee brings his action of eject- ment to recover the term granted by the lease : now, to maintain his title to the lease, he must shew a good title in his lessor ; and thus incivlen- tally and collaterally the title to the freehold is brought before the court. In the jurisprudence of Athens, the guardian and ward were so far iden- tified, that the latter could not maintain an action against the former; so that, for any injury done to his property, the ward, during the term of jjupilage, was without remedy. For his relief, the law authorised the Archon to suppose a lease had been executed by the ward to a stranger; then, the stranger, a kind of next friend, was to bring his action against the guardian, for the injury done to his property during tlie term; and, if he re- covered, he became trustee of what he recovered for the award. Thus, in each case, a fictitious lease was used as a legal process for bringing the real merits of the case to trial. Sir .i4tt i ,w, i if!ai j i.ai:\r ' !g'MS Ja»^ '-'!m-as^^ ^^l^v0f»i^% i ^'''^l^^t 'iJ^'^-'''is ^- '-i ^ - ■ Sir THK GRECIAN LAW. 15 Sir Matthew Hale, in his History of the Com- ^^ mon Law, and Sir William Jones, in the Notes to his translation of Isaeus, make particular men- tion of the law of succession at Athens. It is observable, that, though a general eciuality of pro- perty was one of the principal objects of Lycur- gus's legislation, he assigned to the eldest son almost the whole of his parent's property, with an obligation of providing for his sisters and younger brothers. • V. WITH the death of Solon, the sera of Gre- cian legislation finishes, and the iera of her mili- tary glory begins. But, early in this brilliant pe- riod of her history, THE DECLINE OF THE 490 LAWS OF ATHENS AND LACED/EMON is discernible. With respect to Mhem, it has been mentioned, that, by the laws of Solon, the lowest class of citizens had been excluded from offices of state. These, on the motion of Themistocles, were opened to them: this lessened the general dignity of the magistrature, and introduced venality and disorder into every department of the administra- tion. Here, however, the mischief did not rest. As the poor were under a necessity of giving almost the whole of their time to the labour, on which their daily sustenance depended, they had i; r u {1 !l ; I ::;( r il . i 16 TllECiRECIAN LAW. had scarcely any opportunity of attending theBdorj- public assemblies of the people ; but, on the mo- tion of Pericles, every Athenian, who assisted at a public assembly, received three oboli for his attendance : this increased the tumult and corrup- tion of the public assemblies : and this was not the only instance in which Pericles sacrificed much of Solon's law to the caprice of the people. In respect to Lacedfemon, the victories of Ly- sander and AgesilaUs carried the Spartans into foreign countries, and brought the wealth of fo- reign countries into Sparta. The consequence was, that what the Lacedaimonians gained by their military successes, they lost in consequence of the decline, which those very successes occasioned, of the principles and habits of heroic virtue, which the legislation of Lycurgus had inculcated among them, and which had made them the won- der of Greece. Insensibly the glor}' of Athens and Laced?emon expired. At the battles of Leuctra and Mantinaea, they received a check, from which they never re- covered. At the battle of Cheronaea, king Philip of Ma- 387 cedon obtained a complete triumph over the Athe- nians ; and, by degrees, the laws of Solon fell into disuse. By the direction of Antipater, to wh.om the general superintendence of the affairs of Greece was '■•'J^^^''J5S!I'''.?* m^m^Si?^" ■SSsWSiBir' IK theBeforr "^ Clirinl. le mo- tted at or his ;orrup- not the much of Ly. IS into of fo- f their of the sioned, virtue, ulcated le won- d?emon ntin%a, ver re- of Ma- 387 £ Athe- Pell into om the Greece was THE GRFXIAN LAW. was committed by Alexander the Great, when he Befi.ie set out on his expedition to Persia, they were re- stored, with some modifications, by Demetrius Phalereus, and continued in that state, while Greece was subject to Alexander's successors. - ^80 When the Romans conquered Greece, they allowed to the different states the use of their laws ; insensibly the Romans acquired a taste for the arts and literature of Greece, and this particularly re- commended the Athenians to them. On a complaint by the Athenians, that too many After^ changes had been made in the laws of Solon, the Emperor Adrian accepted the office of Archon, and restored the ancient law. - - 130 The Emperor Constantine was not so favourable to the Athenians ;— in the Emperor Julian, they had a zealous friend. - - 360 By an edict of the Emperor Justinian, the schools of Athens were shut up : this is generally assigned as the »ra of the extinction of Paganism, and of the absolute decline of the philosophy and jurispru- dence of Athens. - - - - 529 With the history of the decline of the Laws of Lycurgus, we are less acquainted. Though in a state of decay, their appearance was venerable in the time of Polybius : perhaps they suffered less than the Laws of Athens, during tlie Mace- donian influence in Greece ; and probably they engaged less of the attention of the Romans; but E we H n f\ V ! ' . 1 1 ^ 1 •■ |y \ 18 THKCiRECIAN LAW. wc have no reason to suppose they long ^"rvivcd AU^r^ the Athenian Law. On the division of the empire between the sons of Theodosius, Greece was allotted to the Kmperor of the Kast: it sufiered much from the incursions 395 of the Goths under Alaric. In the twelfth century, the emperor MiUuicHlOO divided Peloponnesus between his seven sons: before this time, from the resemblance of its shape to that of a mulberry tree, called Morca in Greek, and Morus in Latin, it had received the appellation of The Morea. In the next ccn- 1200 tury, when Constantinople was taken by the Western Princes, the miu-itime cities of Pelopon- nesus, wiUi most of the islands, submitted to the Venetians. In the fifteenth century, the whole 1460 Morea fell an easy prey to Mahomet II., after his conquest of Constantinople. Towards the close of the sevoiteenth century, the Ottomans were expelled from it by the Venetians, and it was formally ceded to them by the Porte, at the treaty of Carlowitz : but, about fifteen years afterwards, 1699 it was regained by the Porte, and now forms a part of their empire, under the appellation of the Bcglergbeg of Greece. It is governed by a mi- litary officer, called a Sangiac, who resides at Modon. Such have been the rise, progress, and decline of the Laws of Greece. The THE GRECIAN LAW 19 irvivcd AUcr Christ \c sons mp'Tor ursions 395 MiuuiclllOO' 1 sons: of its Morca cccivcd xt ccn- 120n by the *elopon- J to the ; whole 1460 after his he close ins were . it was lie treaty envards, 1699 fornr\s a n of the 3y a mi- sides at Iccline of The The great influence of the Roman Law on the jurisprudence of modem nations is striking!) dis- cernible, in every part of their laws:— if it be true, that Rome derived her law from the Athenian code, the " GrsEcia capta ferum victorem cepit," is as applicable to the legislation as it is to the arts of Greece.* « This arliclf is principally oxtraclccl from Ulifio F.mmiuii'ii VetUH Gracia I//ustrata, 3 vol. Hvo, the best ncom-uphical ac- count of (ircccc, which has yit appeared; from Jrchhinhofi Polter'H jlntu/uitirH ofCirnn; a w.jrk of ^reat IcaniinK; from Jirunin^'g Com/icndiutn ytnth/uitalum (irrSr?SS3^?S^^ ?5S(a3?£iS5'.'«J*^ THl, IIOMAN LAW. 31 ol" some of their relations, utul from the contra- dictions and absurdities, with which they fre- quently abound, he shews that, at least, where they descend into particulars, they should be read with a considerable degree of distaist. What they mention of the populousness of Rome, which, before the end of her second century, contained, by their accoiuits, 500,000 persons, appears in- credible: but a smaller number would not have suflicedto construct the pjiblic works, with which, even then, Rome abounded. This circumstance has struck some modern Avriters so forcibly, that, to account for it, they have supposed, that Rome was raised on the ruins of a city, which, though now wholly forgotten, was once populous and magnificent, and the seat of a powerful empire. In pursuing this research, some have found such an empire among the Hctruscans. Witli tlie particulars of the history of that people, \ve are little acquainted; but we have certain informa- tion,* that, long before the jera of the foun • Sec the ApjH'iuUx to tlic ancient Universal History, vol. 18. p. 187., and Maffei's Veronti llhistrata, 1). 1. The ex- pression of Livy, h. 1. c. 2., is very strong?, " Tanta opibu . " Etruria, ut jam non tefras solum, sed mare ctiam per totam " Italiae longitiulincm, ah Alpihus ad I'retum Siculuni, fanifi " nominis svii iniplcssct." On the other hand, the silence ol Herodotus nuiy he thought a strong argument against the existence of such a city in his time. dation ( ; . ,>*■" teV»* I m li' 22 THE ROMAN LAW. dation of Rome, they were a flourishing state, ex- cellent in arts and arms. II. THE first object in the study of the Roman Law, is to obtain an accurate view of the LIMITS OF THE COUNTRIES, in which it prevailed, be- fore the dismemberment of the empire. They may be dividedinto Italy, theconquests of tl>e Romans in the other parts of Europe, and their conquests out of Europe. II. 1. Italy lies 7. 19. East long., and 38. 47. North lat.: the Alps divide its northern part from France, Switzerland and Germany; on every other side, it is washed by the Mediterranean. Its natural separation is into its northern, central, and southern divisions. Its northern division con- tains the modern Lombardy and the territories of Venice and Genoa, and reaches on every side to the Alps, from a line which may be supposed to be drawn from the Rubicon on the eastern, to the Macra on the western side of Italy.* Its central division extends from the Rubicon to the Trento, near the Fortori, on the eastern sea, and from the Macra to the Silaro, on the western and comprises Etruria, Umbria, Picenum, Sabinia, Latium, Lavinium, and Campania, or Tuscan , » Sec Appendix, Note II. the -r— f'T*"-" THE ROMAN LAW. 23 te, ex- Roman [MITS led, be- ey may nans in ;sts out / 38. 47. irt from 1 every san. Its ral, and m con- tories of side to posed to I, to the bicon to ern sea, ivestern Sabinia, \iscan , the Ecclesiastical State, and the territory of Na- ples : its southern part contains the remainder of Italy, the Marsi, the Samnites, the Apulians, and the Lucanians. Before the Roman conquests of it, the northern division of Italy had been occu- pied by a colony of Gauls: on that account, it was known to the Romans, by the name of Gallia Cisalpina ; and, from its being intersected by the Po, the northern division, made by that river, was called by them the Transpadanan, the southern was called the Cispadanan Gaul. The southern part of Italy was peopled by colonies from Greece; on that account it was called Magna Graicia, by the Romans: — the part be- tween Gallia Cisalpina and Magna Graecia, was called Italia Propria, or Italy Proper. The part of the Mediterranean, on the eastern side of the peninsula, was called the Higher, and afterwards the Hadriatic Sea ; the part on its western side, was called the Lower or Tyrrhenean Sea. With respect to its Ancient State, it is probable, that the greatest part of Italy was in possession of the Hetruscans, when, about the year 964 before Christ, Evander arrived in Latium, and built a small town calkd Palantium. It is sup- posed, that Latinus reigned there, about the time of the Trojan war; that, in his reign, ^^neas landed in Italy, married Lavinia liis daughter, and built Lavinium; that Ascanius, the son of Apneas, built Alba; that Romulus descended from him, and ) 1 E*^^-ifcC-i:';i— ^■'_:-.^s; :- ,J0^ 24 THE ROMAN LAW and laid the fouiKlation of Rome, 753 years befort Christ. The monarchical government of Rome subsisted about 250 years ; during the whole of this time, Rome ^vas engaged in war with her neighbours; and perhaps the utmost extent of her conquests did not exceed a circumference of fifteen miles. In the next 250 years, the Romans conquered the remaining part of Italy, from the Alps to its southern extremity: then the conflict between her and Carthage commenced. From the destruction of Carthage, the a;ra of her foreign conquests may be dated;' in the reign of Augustus, they reached the Atlantic, on the west; the Euphrates, on the cast; the Rhine and the Danube, on the north; and Mount Atlas and the Catai-acts of the Nile, on the south: under Domitian, they were carried to the Frith of Forth and the Clyde; and, under Trajan, over the Danube into Dacia; and over the Euphrates, into Mesopotamia and Armenia. II. 2. The European part of this spacious conquest contained Hispania, or the kingdoms of Spain and Portugal: Gaul, which comprised the whole country between the Pyrenees, the Ocean, the Rhine, and the Alps, or the present territory of France, with the addition of Switzerland: Bri- tannia, which comprised all England, Wales, and the lowland parts of Scotland, up to the Frith of Forth and the Clyde: the Rhoetian and V in- delician provinces, which nearly comprised the Orisons, •si^^ .sm» ,^,f^^j^it^i»i^litlf,)imf-t^yffi^^-<^}«'. ;•"•* 1 J' THE ROMAN LAW. 25 Grisons, the Tyrolese, and a part of Bavaria: the Norican, Pannonian and Dalmatian provinces, which, under the general name of lUyricum, filled the country between the Danube and the Hadriatic, up to ancient Greece: Moesia, which comprised Scrvia and Bulgaria: and Dacia, which comprised Temeswar and Transylvania, the only part of the Roman territory beyond the Danube; and Thrace, Macedonia, and Greece, the Roume- lia of the Turks. II. 3. The Roman conquests out of Europe reached over Minor Asia, Syria, Phcnicia, and Palestine; over iEgypt, as far as Syene; and over the whole northern frontier of Africa. It should be added, that the countries on the northern shores of the Euxine, from the Danube on the west co Trebizond on the east, were tributary to the Ro- mans, received their kings from Rome, and had Roman garrisons.* M, III. THESE were the limits of the Roman empire; her subjects may be classed under the following divisions. • This article is chiefly extracted from the second chapter of the first volume of Mr. Gibbon's history; the geography of that work is unquestionably entitlort to the highesj. '*"'"'• T?. III. l.Tht" a-y .y^ >^i ii i 'i fi.a i 2^i . THK ROMAN LAW III. 1. The highest class of subjects was that of Roman citizens, or those who had the Jus Cwitatis. At a distance of about fourteen miles from the sea, the city of Rome stands on a cluster of small hills, contiguous to each other, rising out of an extensive plain, washed by the Tiber. At first, it was confined to the Palatine Hill: the Capitol was added to it by Titus Tatius ; the Quirinal, by Numa; the Celian, by Tullus HostUius; the Aventine, by Ancus Martins; and the Viminal and Esquinal by Scrvius Tullius. The city was surrounded by a wall; a slip of ground, on each side of it, was called the Pomaerium; the walls and Pomjerium were sacred: whoever extended the limits of the empire, had a right to extend the walls of the city : its last and greatest exten- sion, was in the time of the Emperor Aurelian: he inclosed the Mons Pincius and Campus Mar- tins within its walls. In 850, Pope Leo added to it the Mons Vaticanus. At first, it was divided into four districts or regions; Augustus divided them into fourteen; modern Rome is divided into the same number; but the sites of the ancient and modern districts or regions, considerably differ. At first, all who fixed their residence in any part of the Roman territory, had the Jus Civitatis, or the rights of Roman citizens: afterwards, the Jus Ci^•itatis was conferred on kw, and generally with 'y'??- -; • ^i5 :t ^gE i?^;?g'i'^^^sS;''^ ' ''^^''m^^mm. ras that ;he Jus om the >f small It of an first, it Capitol •inal, by us ; the Viminal :ity was on each le walls xtended ) extend it exten- Lurelian : us Mar- o added divided divided ided into ; ancient iiderably s in any Civitatis, ards, the e!;enerally vitii THE ROMAN LAW. 27 with limitations; in the course of time, it was granted to all of the Latin name. After the civil war, it was conferred on all of the inhabitants of Italy, south of the Rubicon and Lucca: then it was granted to the Cisalpine Gaul, which, from this circumstance was called Gallia Togata : final- ly, Caracalla comnumicated it to all the inhabi- tants of the Roman world. The Jus Civitatis conferred on those, who possessed it, the public rights attending the census, or the right of being enrolled in the censors' books; the Militia, or the right of serving in the army; the Tributa, or the right of taxation; the ^ Suffragium, or the right of voting in the different assemblies of the people; the Honores, or the right of bearing the public offices of the state i and the Sacra, or a right to participate in the sacred rights of the city: it conferred on them the private rights of liberty, family, marriage, parcn- tal authority, legal property, making a will, sue ceeding to an inheritance, and tutelage or ward- ship. The citizens of Rome were divided into Patricians or nobles, and Plebeians or inferior persons, and the middle order, called the Equites. At an immeasurable distance beneath the Plebei- ans, were the slaves : their masters might set them free, they were then called freed-men; but, even after they were set free, their masters retained some ritfhts over them. ^ The fp .k>^ 28 THE ROMAN LAW. *1 III liJI ii The Romans were divided into gentes or clans; their clans into families; their families into indi- viduals. Each individual had a prasnomen, by which he was distinguished from others; a nomen, which denoted his clan; and a cognomen, which denoted his family; sometimes an agnomen was added, to denote the branch of the family to which he belonged. Thus, in respect to Aulus Virgi- nius Tricostua Coelimontanus, — Aulus, the prae- nomen, denoted the individual; Virginius, the nomen gentilitium, denoted that he was of the Virginian clan; Tricostus, the cognomen, de- noted, that he was of the Tricostan family of * that clan; and Coelimontanus, the agnomen, denoted, that he was of the Coelimontan branch of that family: sometimes a further name was acquired, as Cunctator by Fabius, and Africanus by Scipio, in consequence of an illustrious deed. Hi. 2. Next to the Citizens of Rome, were the Latins, or those who had the Jus Lati't. An- cient Latium contained the Albani, Rutuli, and iEqui; it was afterwards extended to the Osci, Ausones, and Volsci: the difference between the right of the city and the right of Latium is not precisely ascertained: the principal privilege of the Latins seems to have been, the use of their own laws, and their not being subject to the edicts of the Prjetor; and that they had occasional access to the freedom of Rome, and a participa- tion in her sacred rites. III. 3. The mm ifi ' clans; o indi- en, by nomen, which en was 3 which Virgi- le prae- us, the of the en, de- iiiiily of ;nomen, branch me was .fricanus i deed, le, were itii. An- tuH, and tie Osci, veen the n is not ,'ilege of of their t to the ccasional participa- [. 3. The THE ROMAN LAW. 29 III. 3. The Italians, or those who had the Jus Italicum, followed. All the country, except Latium, between the Tuscan and Hadriatic seas, to the rivers Rubicon and Macra, was, in this sense of the word, called Italy: the Italians had not access to the freedom of Rome, and did not participate in her sacred rites; in^ other respects, they were nearly on a footing with the Latins. III. 4. Those countries were called Provinces, which the Romans had conquered, or, in an) other way, reduced to their power, and which were governed by magistrates, sent from Rome. The foreign towns, which obtained the right of Roman citizens, were called Miinicipia. The cities or lands, which the Romans were sent to inhabit, were called Colonia; some consisted of Citizens, some of Latins, and some of Iturums, and had therefore different rights. Prafectura, were conquered townis, governed by an officer called a Praefect, who was chosen in some instances by the people, in others by the; Praetors. Cwitates Fxderata, were towns in alliance with Rome, and considered to be free. All who were not Citizens, Latins, or Italians, were called Pen- grini or foreigners; they enjoyed none of the pri- vileges of Citizens, Latins, or Italians.* • This article is extraclcd from the first appendix lo ff'i. nccciu.'i's .Intiquitutum Komamriun SinUagmu ; and (iravi- ',„\ r.o^i-L Dr Orlu r.' fru^n-.^m Jnrh Chilix, and liis Liber ninffiilarh m »'■ ■■■!.. :l: [f M. SK*»iwr .1>J' 30 THE UOMAN LAW. IV. SUCH were the limits of the Roman empire, and the different classes of Roman subjects;— with respect to its GOVERNMENT AND FORM OF LEGISLATION. I'he ROMAN LAW, in the most extensive import of those words, denotes the system of jurisprudence, by which the Roman empire was governed, from its first foundation by Romuhis, to its final subversion in the East, in consequence of the taking of Constantinople by Mahomet IL THE CIVIL LAW denotes that part of the Ro- man Law, which consists of the body of law, compiled bv the orders of the Emperor Justinian, and of the laws subsequently enacted by him, and called his Novells. The writers on the History of the Roman Law, generally divide it into three aeras, — the Jurisprudentia Antiqua, Media, and Nova. The first commences with the foundation of Rome, and extends to the aera of the twelve tiibles; the ^iiigularia dc Romano Imlierio: It will be found difficult to mention many works, which a practical lawyer, who wishes to relieve his mind from his professional labours by the peru- sal of a work of taste, on a subject connected with them, will read with so much pleasure as these three treatises: and from S/tanheim'a Orbis Romanus. second l i^'HiJiag' , 'fei.te ^to^a A^^;^M.^k :^^^W. i ^au^^!i'- " "^"^ • • " ■^iHMfl THK ROMAN LAW. 31 second ext«* ds to die reign of the emperor Adrian ; the third to the reign of the emperor Justinian. IV. I. Js it was constituted by Romulus, the Roman government consisted of an elective King; a Senate or Council, first of one hundred, and af- terwards of two hundred nobles; and a general assembly of the people. The command of the army, the administration of Justice, the superin- tendence of religious concerns, with the office of high priest, belonged to the King; the Senate de- liberated on all public business, and prepared it for the people; to them the right of final deter- mination upon it belonged. The number of Sena- tors was successively increased, to three hundred, by Tarquinius Priscus; to six hundred by Sylla; to nine hundred by Julius Caesar; Augustus re- duced it to six hundred. That, during the mo- narchy, the King had the right of appointing the Senators, is clear : how they were chosen during the sera of the republic, has been the subject of much dispute : some, with M. de Vcrtot, M. dc Beaufort, and Lord Hervcy, contend that, as the Consuls succeeded to the royal power, they en- joyed the royal prerogative of filling up the Senate, till the creation of the Censors, to whom it then devolved: others contend, with Dr. Middleton, and Dr. Chapman, that the Kings, Consuls, and Censors, only acted in these elections, ministe- rially and subordinately to the supreme will of the people ; 't- .,i._iti. !•! 1| .: ill 32 Tin: ROMAN l.AW. 'i '^1 ■p i' ■'' . people-; with whom the proper and absoUite power of creating Senators always resided The people were divided by Romulus into three Tribes, and caeh tribe into three Curia. Their public assemblies were called the Comitia Curiata: every member had an equal right of voting at them; and the votes were reckoned by the head. Thus, the issue of all deliberations depended on the poor, as they formed the most numerous por- tion of the community. To remedy this, Servius Tullius, the sixth King, divided the people into six classes, according to a valuation of their estates, and tb mi subdivided the classes into an huiidred and ninetv-threc centuries, and threw ninety- eight of the centuries into the first class ; twenty- two, into the second; twenty, into the third; twenty-two, into the fourth; thirty, into the fifth; and the remaining part of the citizens into the sixth. The first class consisted of the richest citizens; the others followed in a proportion of wealth ; the sixth consisted wholly of the poorest citizens. Each century, except the last, was obliged to furnish an hundred men in the time of war; the sixth was exempt from all taxes; and, to compensate this privilege to the rich, Servius enacted that, in the assemblies of the people, they should no longer count the votes by head, but by centuries, and that the first century should have the first vote. This arrangement, while it seemed to give every citizen an equal right of suffrage. '■as.* .»a . . « P f L »> mf ffj imim^>ti^* ' ; * i - ■ t power to three . Their Curiata: jting at le head, jded on nis por- Servius iple into • estates, hundred ninety - t^venty- le third; the fifth; into the 2 richest i5rtion of 2 poorest ast, was e time of ices; and, , Servius ; people, by head, ry should , while it I right of suffrage. THE ROMAN LAW. suffraKC, as all voted in their respective centuries, virtually gave the richer classes the sole authority : but it was generally acceptable, as it conferred power on the rich, and immunity from taxes and the other burthens of the state, on the poor. These assemblies were called the Comitia Centu- riata. For some purposes, however, particularly for the choice of inferior magistrates, and, in the time of the republic, for vesting military power in the Dictator, the Consuls, and the Praetors, the Comitia Curiata continued necessary. On the expulsion of the last Tarquin, the Se- nate seems to have been permitted to retain, for some time, the constitutional power, under the regal state, of the monarchs whom they had dethroned: and to have used all means within their reach to secure to them the enjoyment of it. During this period, the form of Roman legislation appears to have been, 1st, that the Senate should convene the Assembly, whether of Curiae, or Centuriae; 2dly, that the Consul should propound to them the matter to be dis- cussed; 3dly, that the Augur should observe the omens, and declare whether they were favourable or unfavourable; — in the last case the assembly was dissolved; 4thly, that the assembly should vote; Sthly, that the Consul should report the resolution of the people to the Senate; and, 6thly, that the Senate should confirm or reject it. IV. 2. These were the rights of the Consuls, G the k^^ ;m Tin: ROMAN 1-A\V. i the Sciuite, uiid thr people, at the commencement of the republic ; si-ueral alteration HuccxsHfvely took place, in llivour of the people, at the expence ol" the Consuls and tjje Senate. With respect to the ('omuls, their dignity and power were, hy degrees, parcelled out among various magistrates: thus their power of deciding in civil matters was assigned to the Praetors; their power of setting criminal prosecutions on foot was assigned to the Questors; their care of the police to the Edilcs; their general superin- tendence of morals and manners to the Censors. After this, little more remained to the Consuls, than th'-ir right to assemble the Senate, convene the Comitia, and command tlu armies of the republic. The Consuls and higher magistrates were chosen by the people ; at first, their choice was confined to the Patrician order: after much contest, it was extended to the people. The influence of the Patricians on the delibe- rations of the Comitia Centuriata was soon thought a grievance by the people: hence, upon every occasion which oftcred, they endeavoured to bring the business before die Comitia Curiata: but with this, they were not satisfied; for, as a patrician magistrate only could preside at ihe Comitia Curiata, and before the assembly pro- ceeded to business, the omens were to be con- sulted, and none but Patricians were admitted to the rank of Augur, the Comitia Curiata, though \\\ iccment yely took )cncc; oi" nity and amonp; deciding Praetors; tions on r cure of superin- Censors. Consuls, convene s of tlie agistratcs ir choice ter much e delibc- rcLH soon ice, upon leavoured I Curiata: for, as a [e at ihe nbly pro- 3 be con- Imitted to a, thougli in THF, ROMAN I-AW 35 in a less degree than the Comitia Centnriata, were still subject to PatriciuM influence. 'I'o nuike the people entirely independent of the Patricians, at their general assemblies, the Trilnnies insisted, that the public deliberations should lie brought before the assemblies of the tribes, at whirh »-vcry Roman citizen had an ( qual right to vote, and at which neither the presence of a magistrate, nor the taking of the omens was essential. To this, the Senate and Patricians found it necessary to submit. At first, they contended that thej- were not bound by the laws passed at these assemblies, but they were soon forced to acknowledge their authority. These assemblies were called the Comitia Tributa. Some important privileges, however, still re- mained to the Senate: they had the direction of all concerns of religion; the appointment of am- bassadors, of governors of the provinces, of the generals and superior officers of the army, the mana^ment of the treasury; and, speakiig gtne- r . , they had the direction of all ihc religious, civil, and military concerns of the state, subject tu the control of the people, and subject also to the control of any tribune of the people, who, by his veto, might at any time prevent the re- solution of the Senate from passing into a decree: but, when the people did not interfere, the Sc- natus-Consulta generall) were ()be)e(l; and it seldom happened that, in .uttters of weight, the people M, ■ iy* ' " !*^ * ^ M ■ill iUi I 2g THE ROMAN LAW. people enacted a law, without the autlriority oi the Senate. Thus the constitutional language ot ancient Rome was, that the Senate should de- cree, and the People order. By the senators themselves, it was deemed an heinous offence, that any of their body, without their leave, should propose a measure to the people: but, m the decline of the Republic, the leadmg men of Rome, and their creatures, paid no attention to this notion, and frequently obtained from the people, what they knew would be refused them by the Senate. The writings of Cicero abound with complaints against this practice. Ihe ^e- termination of the people, at the Comitia Cen. turiata, Comitia Curiata, or ComiUa Tnbuta, was equally /ex, or a law of the state; but when it passed in the Comitia Tributa, as it ongma ed wilh the people, it was cMpleb.c^tun^: i^c decrees of the Senate, were called Semtus-Con. *" IV 3 The laws were distinguished, sometimes by the name of the person who proposed them as the law Emilia: sometimes, by the names of the Consuls, if they were proposed by both the Consuls, as the law PapiaPopp^a: and sonietimes, . a mention of the nature of the law was added, as the Lex Fannia Sumptuaria.* ^^^ . Sec M. de Beaufort, La Ref^ublique Romaine; Pari., J:ir.....LeUer....enLor.Her.eya^.^nr. - ■ '^^-^^^mmFm'mm^m^'Tmsi •i"«IS*!fc rity oi lage of lid de- lenators offence, leave, but, in men of ition to om the :d them abound rhe de- tia Cen- Tributa, ut when riginated um: the '.tus-Con- )metimes ed them, names of both the metimes, added, as FOR ine; Parte, y and Dr. Middkton THE ROMAN LAW. V. FOR obtaining an exact view of the HIS- Before TORY OF THE ROMAN LAW, it may be divided into nine periods, severally be- ginning with the following epochs; 1st, the foundation of Rome; 2d, the Twelve Ta- bles; 3d, the abolition of the Decemvirs; 4th, the reign of Augustus; 5th, the reign of Hadrian; 6th, the reign of Constantine the Great; 7di, the reign of Theodosius the Second; 8th, the reign of Justinian; 9th, the reign of his successors, till the fall of the Empire of the East ; and 10th, the revival of the study of the civil law, in consequence of the discover}' of the Pandects at Amalphi. A short view should be hud of the principal schools in which the civil law has been taught, and a short account of its influence on the ju- risprudence of the modem states of Europe. V. 1. V. 1. THE FIRST OF THESE PE RIODS contains the state of Roman ju- risprudence from the foundation of Rome, till the »ra of the Twelve . Tables. As r5:3 Middkton concerning the Roman Senate; London 1778, Mo, and the 12, 13, 14, om/ H Cfia/ifer^ of Montesquieu, I. U. Rome S?^fp» M 38 THE ROMAN LAW. Rome was a colony from Alba, it is pro- Bef^^^ bable that her laws originated in that city . Several of them are actually traced to her first kings; particular mention is made of laws enacted by Romulus, Numa, and Ser- vius Publius. Historians ascribe to Romulus the primitive laws of the Romans, respecting marriage, the pov/er of the father over his child, and the relation between patron and client : to Numa, their primitive laws, re- specting property, religion, and intercourse Avith foreign states ; to Servius TuUius, their primitive laws respecting contracts and obli- gations. It is supposed that, in the reign of the last of these kings, a collection of their laws was promulgated by public authority. The scanty materials which have reached us, of the regal jurisprudence of Rome, lead to a conjecture that the Romans had attained a high degree of legislative refinement before the abolition of royalty. Tarquin, the last king of Rome, was ex- pelled in - - - - Not long before or after his expulsion, u body of the Roman law, as it then stood, was collected by Papyrian, and from him was called Jus Civile Papyriantim. The president Terrasson, in his Histoire de la Jurisprudence Romainc, Paris, 1750, in folio. Anno Urbis Condttz. 509 a45 .«#'»»'■ Before Anno Christ. Urbis Conditz. 509 245 folio, THE ROMAN LAV/. folio, p. 22—73, professes to restoic the ori- ^^^^ ginal of this compilation, as far as the mate- rials, which have reached us, allow: he has given us thirty-six laws, fifteen of them as original texts, twenty-one as the substance or sense of texts which are lost. V. 2. THE SECOND PERIOD OF THE HISTORY OF THE ROMAN LAW is, the £era of the Twelve Tables. During the first half century which fol- lowed the expulsion of the Tarquins, the civil government of the Romans was in great confusion: on their expulsion, much of the ancient law was abrogated or fell into disuse, and some new laws were enacted by the Consuls. The arbitrary and undefined power of the Consuls in framing laws growing very odi- ous, three persons were sent into Greece, and probably to some of the most civilized states of Magna Grjecia or Lower Italy, to obtain copies of their laws and civil institu- tions. - - . - - They returned in the third year after their mission. Ten persons, called from their number Decemvirs, were then ap- pointed to form a code of law for the go- vernment 453 301 :i ;■ 4' 4y rHE ROMAN LAW. vernnv^nt of the state, both in private and b«^j« public concerns. This they effected, and di- vided their code into ten distinct tables : two were added to them in the following year. They were a mixture of the laws of other nations, and of the old Roman law, adapted to the actual circumstances of the state of the 1 45 people - - * " They were inscribed on twelve tablets of brass; and, from that circumstance, were called the Laws of the Twelve Tables. The twelve tablets were exposed to the view of every person, in a public part of the market place. In the sack of Rome, by the Gauls, they perished: immediately after the expul- sion of the Gauls, they were restored, and the whole text of them was extant in the time of Justinian: fragments only of them have reached us. Gothofrcd's edition of these fragments, in his work intituled Fofites Qua- fuor Juris Civilis, Geneva, 1653, in octavo, has obtained the universal applause of the learned • the fragments of them have also been published by the president Terrasson; and Pothier has inserted them in his Pandectse Justinilnea;, with an interpretation, and an excellent commentary. The legislative wisdom of the Twelve Tables i.as been highly praised; but it has Anno Urbiii Condlti 303 been ^ »■ /""-mii \ Bet'ci-e Christ. Anno Urbiii Conditz 451 303 THE ROMAN LAW. 41 been thought, in some instances, immoderately severe. Thus, in respect to an insolvent debtor — after the debt was proved or admitted, they al- lowed him thirty days to raise the money, or find surety for the payment of it: at the end of the thirty days, the law delivered him into the po\vcr of his creditor, who might confine him for sixty days in a private prison, with a chain of fifteen pounds weight, on a daily allowance of fifteen pounds of rice : during the sixty days, he was to be thrice exposed in the market-place, to raise the compassion of his countrymen: at the end of sixty days, if he was sued by a single creditor, the creditor might sell him for a slave beyond the Tyber; if he was sued by several, they might put him to death, and divide his limbs among them, according to the amount of their several debts. Nothing can be urged in defence of this savage provision, if, as appears to be its true con- struction, [a] the division, which it directs to be made, is to be understood literally' of the body, and not of the price of the debtor: but if, before the Twelve Tables, an insolvent debtor became the slave of the creditor, so that his liberty and life were immediately in the power of the creditor, the ultimate severity of the provisions of the Tivelve Tables should be ascribed to the harsh spirit of the people, and the intermediate delays in favour of the debtor should be ascribed to the humane policy of the Decemvirs. It may be added, that, fa 1 See on this subject Bynkershoek Ohservat. Jur. Ro- /HOW. Book 1. ch. I. where this question is discussed in a very iiitcrtstinff manner. H about V*'t t-' 42 THE ROMAN LAW. about t\vo hundred years afterwards, the Petilian law provided that the goods, and not the body of the debtor, should be liable to his creditor's de- mands; and, at a subsequent period, the Julian law provided, in favour of the creditor, the Cessio Bononirn, by which the debtor, on making over his property to his creditors, was wholly liberated from their demands. [6] Upon the whole, if we con- sider the state of society, for which the laws of the Twelve Tables were formed, wc shall find reason to admit both their wisdom and their hu- manity. The journey of the Decemvirs into Greece has been questioned by M. Bonamy, Mem. de r Academic, 12 vol. p. 27, 51, 75; and his doubts have been adopted by Mr. Gibbon; but the fact is either related or alluded to by almost every Ro- man author, whose works have come down to us: and some writers have professed to track the jurisprudence of Greece, even in the legislative provisions of the Prcetors, Consuls and Emperors. o. V. In proportion as Rome increased in arms, arts, and the number of her citizens, the insuf- ficiency of the laws of the Twelve Tables was felt, and new laws were passed. This insensibly produced, during the remaining part of the period of [bl Ti'C ceit.no bonorum or cesnio miaerabilis, was indeed esta- blished at Rome by the Julian law, but it did not, as our learned author supposes, wholly liberate the debtor from his i rcditor's demands. It merely freed his person from impri- sonment, THE ROMAN LAW. 43 of the republic, which forms THE THIRD PE- RIOD OF THE HISTORY OF THE ROMAN LAW, that immense collection of laws, from which the civil law, as the Justiniancan body of law is called, was extracted, and which, on that ac- count, deserves particular consideration. It was divided, like the law of Greece, into the written and unwritten law. The written compre^ hended the Leges, Plebiscita, and Scnatus-Consul- ta, which have been mentioned. 1. The first, and most important branch of the unwritten law of Rome was the Jus Honorarium, the principal part of which was the EdictuHt Pratoris. During the regal government of Rome, the administration of justice l^elongcd ' to the king: on the establishment of the republic, it devolved to the Cftnsuls, and from them to the Prator. At first, there was but one Praetor; af- terwards, their number was increased to two; the PraJtor Urbanus, who administered justice among citizens only; and the Praetor Pcregrinus, who ad- ministered justice between citizens and foreigners, or foreigners only : the number of Prstors was afterwards increased, for the administration of justice in the provinces and colonies. When the ■prator entered on his office he published an edict, or system of rules, according to which he pro- fessed to administer justice for that year. In con- sequence of his often altering his edicts, in the course of the year, hu\s were passed, ^^hich en- joined sonmcnt. and the property uWch he aftcruurcls acquired, .vuis liable to the puvmentolhis debts, us it is under our Pennsyl- vania Insolvent' Law. It is clear that u was so from the ex- press words of thv code: Qui bonis ct'dcrmt, msi aohdumcie. I ' i ■ i. I ,' 44 THE ROMAN LAW; joined him not to deviate fiom the form, whicli he should prescribe to himself, at the beginning of his office. All magistrates who held the offices, which were ranked among the honours ot the state, had the same right of puhlishuig edicts ; and, on this account, that branch of the law, which was composed of the edict of the Prajtor, and the edicts of those other magistrates, Avas called the Jus Honorarium : but the edicts of the Trajtor formed by far the most important part of this branch of the Roman law. Such were his rank and authority in Rome, and such the in- fluence of his decisions on Roman jurisprudence, that several writers on the Roman law mention Iiis edicts in terms, which seem to import that he possessed legislative, as well as judicial power ; and make it difficult to describe with accuracy, what is to be understood by the Praetor's edict. Perhaps the following remarks on this subject %vill be found of use, and show an analogy be- tween some parts of the law of which the hono- rary law of Rome was composed, and some im- portant branches of the law of England. — 1st. By the Praetor's edict, as those words apply to the subject now under consideration, civilians do not refer to a particular edict, but use the words to denote that general body of law, to which the , edicts of the Praetors gave rise. — 2dly. It is to be observed, that the legislative acts of any state, form a very small p oportion of its laws : a much greater ditor recefrr it^non sunt liberati. In eo enim tantum modo hoe hm-Jicium H» /irodesl, ne judicati detrahentur in carcerem. " Those who have made a cession of their property (ceasio boTwrum) are not discharged from their debts unless their creditors >vas TIIK IIOMAN l-AW. 15 greater proportion of them consists ol" that ex- plaiutioii of the Kcneral body of the national law, which is to be collected from the decisions ofits courts of judicature, and which has, there- fore, the appearance of being framed by the courts. A consideral)le part of the law, distin- guished l)y the name of the Pra-tcir's edict, was of the last kind; and, as it wfc a consequence of his decisions, received the general name of his law. In this respect, the legal policy of Eng- land is not unlike that of Rome; for, volumi- nous as is the statute book of England, the mass of law it contains bears no proportion to that which lies scattered in the volumes of reports, ^vhich fill the shelves of an English lawyer's library: and perhaps it would be difficult to find, in any edict of a Prietor, a more direct contra- diction of the established law of the land, than the decisions of the Juiglish judges, which, in direct opposition to the spirit and language of the statute de donis, supported the effect of common recoveries in barring estates tail.— 3dly. Expe- rience shews, that the provisions of law, on ac- count of the general terms, in which they are ex- l)ressed, or the generality of the subjects to ^vhich ihey are applicable, have frequently an injurious opJration in particular cases, and that circum- stances frequently arise, for which the law has made no provision. 'I'o remedy these inconveni- ences, the courts of judicature of most countries, which ( rccUtors are paid in full. Tlu- only benefit which they derive from it, is tliat after judgment, they cannot be thrown into prison." Cod. li. 7. Tit. 7\. L 1. Ibe same doc- triiic is laid down ia the digest: h qui boms cemt, « y«"^ floated %i ,.Wii 40 THE ROMAN LAW. *l 11 vliich have attained a certain degree of politic al refinement, haVL assumed lo themselves a right of •administering justiee in particular instances, by certain equitable principles, which they think more likel)' to answer the general ends of justice, than a rigid adherence to law; and, where law is silent, to supply its defects by provisions of tluir own. These* privileges were allowed tin; IVcKtor by the law of Uome; in virtue of them, he pronounced decrees, the general object of which had sometimes a corrective, and some- times a suppletory operation on the subsisting laws. They were innovations; but it may be (pies- tioned, whether any part of the Prastor's law was a greater innovation on the subsisting juris- prudence of the country, than the decisions of Knglish courts of equity on the statute of uses and the statute of frauds.— 4thly. The laws of every countrv allow its courts a considerable de- gree of power and discretion in regidating the Forms of their proceedings, and carrying them into effect; further than this, the Prstor's power of publishing an edict, signifying the rules by which he intended the proceedings of his courts should be directed, does not appear to have ex- tended.— These observations may serve to explain the nature of the Prcetor's jurisdiction, and to shew that the exercise of his judicial authority was not so extra\a«2;ant or irregular as it has some- limes been described.*"' * Sec ApptiuliK, Xtiti: ni 2. A second lioatca uduuhicril, in (jmntifm facvrr /;,.',..■, r.nvcvitur. |' If hr who has made a ccssio bonoruw shuulil ultorwavds acquire any property, he mav be sued and c.n.pellufUo pay to the extent pf his means." 'm^- /r u. nt. :>. .'■ 4 1 Siiu WWW^mmmm»mAm-Jim'^«' rilF ROMAN LAW. 47 politKul right of CCS, by Y think justice, crc law sions of vcd tlic jf the in, bjcct of I some- inj; hiws. )c qucs- or's law ig juris- sions of ; of uses laws of rable cle- iting the ng them •'s power rules by is courts have ex- o explain I, and to authority vas somc- A second imr. " If he acquire any the cKteni 2. A second source of the \im\ritten law of Rome was, the Jctiones Legis, and Suleiwus Lvi^inn For/nula, or the Actions at Law, and Forms of I'orcnsir proceedings, and of transacting legal acts. These, for some time, were kept a pro- found secret by the Patricians; but, Appius Claudius having made a collection of them for his private use, it was published by Cna:us Fla- vius, his secretary. The Patricians then devised new forms, and those were made public by Sextus ^lius. These publications were called the Fla- vian and JVWhn ColU( tions; all we have of them is to be found in Brisson's celebrated work, De Formulis( t Solemnibus Populi Romani V^crbis. 3. A third source of the unwritten law of Rome was derived from the Disptitatmws Forty and the Responsa Prudentum. Mention has been made of the relation introduced by Romu- lus between patron and client;— to give his client legal advice was among the duties of the patron ; insensibly, it became a general practice, that those, who wanted legal assistance, should apply for it to the p( rsons of whose legal skill they had the greatest opinion. I'his was the origin of the Jurisconsult! or Civilians of Rome; they were, generally, of the Patrician order ; and, from succeeding to this branch of the duty of patronage, received ihe name of patrons, while those, by whom they were consulted, were called qlients. The patron received his client with a solemnity When a person applied for the henefit of the Julian Law, the creditors hud their election either to grant to the insol- vent a letter of licence for five years, or to take a general as- signment of all hiij property on condition that he bhould not l-t ^ When 48 rili; ROMAN I-A\V i!^ II solemnity horckriiig on maRistcriiil dignity; and ginirally delivered, in a lew words, his opinion on tlic case ivhich was sulMnitlcd to his conside lation; but he somctinus accompanied it with his reasons. These consultations usually took place at an early liour in the morning: the broken slumbers of the Civilians arc mentioned by every Roman poet whose muse has led him to describe the inconveniences which attend distinction and fiime. Legal topics were often subjects of the conversations of Civilians; and the forum, from their iVeciuent resort to it, being the usual scene of these friendly disputations, gave its name to them. They also published treatises on legal suljjects. Their opinions and legal doctrines were highly respected; but, till they were ratified by a judicial elecision, they had no other weight than what they derived from the degree of public estimation, in whicli the persons who delivered them were held. The Civilians arc commonly divided into three classes ; those, who flourished between the cera of the Twelve Tables, and the age of Cicero; those who flourished from the age of Cicero, to the reign of Severus Alexander ; and those who flourished from the beginning of his reign, to that of the EmpeK.i- Justinian. The second, is the golden period of Antejusti- nianean jurisprudence. From the fragments which have reached us, of the. works of the Civili- ans who flourished during that period, modern writers have thought themselves justified in de- scribing be inipiiboncd, ■■^mioro cnntr ror/ioris cntciatu. Cod. B. 7. Tu. 7.1.«. - '.'KAit'::^ - ty ; and opinion consitlf it with lly took 2 broken t)y every describe ion and i of the im, from I ill scene name to on legal doctrines re ratified er weight of public delivered ommonly flourished and the from the lexandcr ; inning of Justinian. Antejusti- nts which le Civili- l, modern ed in de- scribing id. B. 7. Tit. THE ROMAN LAW. 'ly scribing them as men of enlarged minds, highly cultivated understandings, and great mode!»ty. In their judicial studies tiu y availeil themselves of tlu learning and philosophy of the Greeks, Ciir- ried the disputes of the schools of Athens intd the Forum; and, early in the period we arc i.peakinrj of, branched iiUo two sects, whose opposite ter.<'ts were founded on principles, not uuiike those, which gave rise to the distinctive doctrine; of the disciples of Zeno and I'picuru.s. Aulistius Lubeo was the founder ol the former sect; Ateias Capito of the latter: from Prooulus and Pegasus, two eminent followe's of J.jibeo, the former were called Proculeians or I'egasiai ^\ from Masurius Sabinitis and Cassius Longii i;j, two eminent followers of Capito, the laiter were called Sabinians or CussiaMs. The io.Mer con- tended for a strict adhciencc to tue letter and forms of the law; the latter for a benign inter- pretation of it, and for allowing great latitude in the observance of its forms. Attempts were made to compromise the difference bctweei. them: they gave rise to a third sect, the Jurisconsulli ercis- cundi or miscallioncs. Something of the dif- ference which subsisted between the disciples of Labco and Capito, has long subsisted \\\ the ju- risprudence of England, !^"t the good sense of the English bar has prev^tLcd the maintainers of the different opinions from forming themselves into sects. Till the reign of Augustus every I person 1 i !■' 1 ^^ THE ROMAN LAW. person was at liberty to deliver judicial opinions; Augustus confined this privilege to particular persons, with a view, it is supposed of their pro- pagating those rl, ctrines of law, which were fa. vourable to his political system: the Emperor Adrian restored the general liberty ; the Emperor Severus Alexander assigned it the hm.ts withm which it had been circumscribed by A^ «t»^; These .vrc the materials of which the written and unwritten law of Rome was principally formed. V.4. THE FOURTH PERIOD OF THE ^^l HISTORY OF THE ROMAN LAW, is that which fills the space between the time when Julius C«:sar was made perpetual Dic- tator, and the reign of the Emperor Adrian. The power of Julius Ca:sar, in consequence of his perpetual dictatorship, placed him above law; but it does not appear that he mademany innovations, of a general nature m the Roman jurisprudence. 1 ^at was left to Augustus, his heir and successor. At different periods of his reign, the people conferred on Augustus the various titles of Perpetual Tri- bune, Consul, Proconsul, Censor, Augur, Anno Urbis Conditi 46 708 unions; rticular eir pro- fcve fa- Imperor Imperor ( within stus. written formed. rF Before Anno Christ, I IS me le- an, ice lim he :,in tto •ent L on rri- Urbis Condlti 46 708 THE ro:man law. 16 735 and High Priest: thus, in effect, he ac- ^^J^^ qnired both the civil and military power of the state; but, as he professed to exerciic it in virtue of those offices, his acts had the appearance of being the acts of the different magistrates, whose offices had been confer- red on him. Finally, in the year of the city, 735, power was given him to amend or make whatever laws he should think pro- per. This was tlie completion of the Lex Regia, or of those successive laws, which, >vhile they permitted much of the outward form of the republic to remain, invested the the emperor with absolute power. During the whole of Augustus's reign, the forms of the Leges and Senatus-con- sulta, those vestiges of dying liberty, as they are called by Tacitus, were preserved. For the Senate, Augustus uniformly pro- fessed the greatest deference; he attended their meetings, seemed to encourage their free discussion of every subject, which came before them; and, when a law was approved of by them, he permitted it, agreeably to the ancient forms of the republic, to be referred to the people. The reference of laws to the people was abolished by Tibe- rius; so that, from his time, the laws of Rome originated and were completed in the Senate. At first their deliberations had an appearance Anno ITrbis Cuiiditsc III' 52 THE ROMAN LAW. appearance of free discussion; by degrees, even that vanished, and insensibly the Senate served for little more than a nominal council of the Emperor, an office to register his ordinances, and a court ot judicature for great public causes. V. 5. THIS memorable revolution in the functions of the Senate, with which even the forms of Roman liberty expired, must be dated from tlie Emperor Adrian, and forms the FIFTH PERIOD OF THE HISTORY OF THE ROMAN LAW. He was the first of the Emperors who exercised, without disguise, the plenitude of legis- lative power. With him therefore, the Imperial Constitutions, under the various names of Rescnpta, Epistolas, Decreta, Edicta, Pragmatics Sanc- tiones, Orationes and Annotationes, ongmated; they had th- ^orce of law in every part of the Roman state. I'nder his reign, Julian, a la^yyer of great eminence, digested the Prstor's edicts, and other parts of the Jus Honorarium, mto a regular system of law, in fifty books. This com- Dilation was much esteemed; it was referred to as authority, and obtained the title of Edictiim Per- petuum; all the remains of it, which have come down to us, are tlie extracts of it in the digest; they have been collected with great attention, by Simon .ii -f^ THE ROMAN LAW. 53 Simon Van Leeuwen, at the head of the Digest, Af\er^ in his edition of Gothofred's Corpus Juris Civihs, Lugd. Batav. 1663. It was a remarkable effect of the Edictum Per- petuum, to put an end to the legal schism of the Sabinians and Proculeians. By countenancing the former, in the dictum Perpetuum, the Empe- ror Adrian terminated the dispute. After this came the Codex Gregorianus; a collec- tion of imperial constitutions, from Adrian to Dio- clesian, by Gregorius or Gregorianus, Praetorian Preefect to Constantine the Great. This was succeeded by the Codex Jlermogenia- mis, a continuation of the former code, by Her- mogenes, a contemporary of Gregorius or Gre- gorianus. Y. 6. THE SIXTH PERIOD OF THE ROMAN LAW extends from the reign of Constantine the Great to that of the Emperor Theodosius the Second. It is particularly remarkable for having furnished many new articles of great importance to the jurisprudence of Rome. They chiefly arose from the foundaition of Constantinople, the new forms of civil and mili- tary government introduced by Constantine, the legal 120 284 306 H w h r g^ THE ROMAN LAW . legal establishment of Christianity, and the divi- Aftot-^ sionof the empire between the sons of Theodosius the Great. To the first may be referred numerous laws, respecting the priv>)e^s and police of the imperial city; to the second, an abundance of leeal provisions, respecting the various officers of the empire, and the ceremonial of the Byzantme court; to the third, a succession of impcrud edicts, bv which Christianity was first tolerated, then le- galized, and afterwards became the established re- ligion of the state. The division of the empire between the sons ol Theodosius, in 395, was attended with still more important effects on Roman jurisprudence. 395 V. 7. THE variety of laws, principally occasioned Iw the circumstances which have been mentioned, introduced a considerable degree of confusion into the Roman jurisprudence. To remedy it, Theo- dosius the Second, the Emperor of the East, pub- lished, in 438, the celebrated code of law, called from him the Theodosian Code, which forms THE SEVENTH PERIOD OF THE HISTORY OF THE ROMAN LAW. It comprises all the imperial constitutions from 312, the year in which Constantine was supposed to have embrarcd Christianitv, to the time of its publication. It 438 has f THE ROMAN LAW. 55 k. ; dlVl- Aftci- , . Christ (UOSIUS nerous of the nee of icers of zaiitine edicts, then le- hed re- sons of ill more 395 :asioncd ntioned, iion into , Theo- ist, pub- V, called IS THE STORY rises all : year in mbrared ition. It 438 has has not rer^ched us entire: an excellent edition Aft- of the remains of it was published by James Gothofred, at Lyons, in 1668, in six volumes folio, generally published in four. It is accom- panied with Prolegomena, introductory chapters a perpetual commentary and notes ; the labour ol thirty years ; and no one, as Dr. Jortin justly re- marks, ever thought the time throAvn away. No work perhaps can be mentioned, which contanis more information on the antiquities of the early ages of the lower empire. In addition to the Theo- dosian Code, it comprises the subsequent novells of the Emperors Valentinian, MartiLo. Majorian, Severus and Anthemius. Immediately after the publication of the Thco- dosian Code in the eastern empire, it was received into the empire of the west, by an edict of Va- lentinian the Third. In the east, it retained its force till it was superseded by the Justimaneau collection. . It retained, but indirectly, its authorit)' longer in the west. The Barbarians, who invaded the empire, permitted the Romans to retain the use of their laws. In 506 Alaric, king of the Visi- 506 goths in Gaul, ordered a legal code to be prepared, in which the Roman and Gothic lawG and usages should be formed into one body of law, for the ge> oral use of all his subjects; this was accordingly done in the twentv-second year of his reign; and from Anianus, his Rcferendray, or Chancellor, bv ! ! il' Pl| rr 3 i U^i j6 TIIK ROMAN LAW. by whom it was either coiupikd or published, it was called the Brcviartum Aniajd. I». is an extract from the Gregorian, He ''MOgeniarijai^d Theodosian Codes, the novells of the subseqvu m Emperors, the sentences of luuUu:,, ihc li.stit. iu- of Gains, and the workr;. •;! Pa,)inian. It superseded the use oftl»e: 'brmerlavu so far, that, in a short time, they ceased to be cited in the courts, or by writers on subjects of Jaw; uud Anianus's collection, under the name oi' the Roman oi' Theodosian law, became the only leg; 1 workof r.;ithori«y. To this period also, must be ascribed the cele- brated Collatio Mosaicarum et Romanarum Legum: the object of it is to shew the resemblance be- tween the Mosaicai institutions and the Roman law: the best ( dition of it is F. Desmare's in 1089. ^ ■;«- V. 8. THE EIGHTH, AND MOST IMPOR- TANT, PERIOD, of the history of the Roman law, comprises the time in which the body of law, compiled by the direction of the Emperor Justinian, was framed. 1. By his order, Trebonian, and nine other persons of distinction, in the first yeai' of his reign, made a collection of the most useful laws, in the Codex Theodosianus, the two earlier codes of %^^.imX^^''^^^^^' ■' " I'll I THE ROMAN LAW 57 533 m. ;!, « il:. * 'i of Gregorius and Hermogenes, and the constitu- ae^lJ* tions of some succeeding emperors. It was imme- diately published by Justinian, and is called the Codex Justineaneus Prima Pralectionis. - 528 2. But his great work is his Digest or Pandects. By his direction, Trebonian, with the assistance of sixteen persons, eminent either as magistrates or professors of law, extracted from the works of the former civilians, a complete system of law, and digested it into fifty books. 3. Previously to its publication, an elementary treatise, comprising the general principles of the system of jurisprudence, contained in it, was pro- |, , mulgated, by the Emperor's direction, in four | | books. From its contents, it was caUed The Insti- | tutes. ' Thus the Digest, and Institutes were formed vato a body of law, by the authority of the Empe- ^| ror. He addressed them, as imperial laws, to his tribunals of justice, and to all the academies, where the science of jurisprudence was taught: they were to supersede all other law, and to be the only legitimate system of jurisprudence throughout the empire. ' 4. In the following year, he published a corrected edition of the code, under the title Codex Repe- tita Pralectionis. This wholly superseded the first code; and, except so far as it has been pre- served in the latter, it is wholly lost. - 534 K 5. The IIP 56 THK ROMAN IJVW. 5. The edicts which he promulgated, after the a „cw edition of the Codex, were colleclcd into one volume, in the last year of his reign, and published under the name of Novcllcr. 6. Most of the Novell^ xvcre written in the Greek language. In the last year of Justinian's life, a Latin translation was made of them; and, by the fidelity with which it was executed, ob- tained the appellation of the Volumen Authenti- cum. - - - ' ' . ' * Other translations of the Novella have ap- peared: that, published at Marburgh, in 1717, by John Frederick Hemburgh, has the character o'' being extremely well executed, and is uccom- t lied with a valuable commentary and notes. ' 7. In most editions of the Corpus Juris Civilis, the novells are followed by the books of Fiefs, the Constitutions of Conrade the Third, and the Emperor Frederic, under the title of Dectma Collatio, and some other articles. But they make no part of what is called the Corpus Juris Civilis: that consists solely of the Pandects, the Institutes, the Codex Repetitse Praelectionis and the Novells. 8. On the genenii merit of Justinian's Collection, as a body of written law, able judges have dif- fered: the better opinion seems to be tliat it is executed with great ability, but that it is open to much objection, the Responsa Prudentum some- times being unfaithfully given in it, contradictory doctrines having found their way into it, its style being 5Gb 56H tcr thcAfur dins'. ^tO one blislied 5Gb in the itinian's n; and, ed, ob- uthenti- ave ap- n 1717, ;haracter uccom- 3tes. J Civilis, yf Fiefs, and the Decima ley make i Civilis: nstitutes, Novells. Collection, have dif- tliat it is is open to im some- tradictory t, its style beinij 56H THE ROMAN LAW. .SD being often too flowery, and its innovations on the old law, sometimes being injudicious. Heincccius, whose testimony, in this case, is of the greatest weight, at first judged of it unfiivourabiy : but afterwards changed his opinion: he mentions, in high terms of commendation, the defence of it by Huberus and the Cocceii, and asserts that the cause must now be considered as decided in its favour. Hist. Juris Romani, Lib. I. $ eccc. The very attempt to lesst;n, by legislative pro- visions, the bulk of the national law of any country, where arts, arms and commerce flou- rish, must appear preposterous to a practical lawyer, who feels how much of the law of such a country is composed of received rules and re- ceived explanations. What could an act of the Imperial Parliament substitute in lieu of our re- ceived explanations of the rule in Shellv's Case? The jurisprudence of a nation can only be. essen- tially abridged by j udge's pronouncing a bf^ntencc which settles a contested point of law, on a Ic^^al subject of extensi^'e application, as Lord Hard- wicke did by his decree in the case of Willoughby versus Willoughuy; or by a writer's publishing a work on one or more imporUmt branches of law, which, like the Essay on Contingent Remainders, has the unqualified approbation of all the pro- fession. « , . • One circumstance, however, may be urged, as an unqueslonable proof of toe Justinia^c-u Col- lection's ill it . aWM* 'II' 60 THK ROMAN LAW. lection's possessing a very high degree of intrinsic merit. Notwithstanding the different forms of the governments of Europe, and the great variety of their political and judicial systems, the civil law has obtained either a general or partial admittance into the jurisprudence of almost all of them: and, wh*!-* 't has been least favourably received, it has been pnnoui. xd n collection of written wisdom: this couH ijot have happened, if it had not been deeply and extensively grounded on principles of justice and equity, applicable to the public and private concerns of mankind, at all times, and in every situation. V. 9. '.>. THE fhte of thi;, ?ncrablc body of law, pro- mulgated with so much pomp, and possessing so much intrinsic merit, is singular, and fo ms THE NINTH PERIOD OF THE HISTORY OF THE ROMAN LAW. The reign of the third sue cessor of Justinian, was the last, in which it main- tained its authority in the west After that time, all law and regular government were rapidly destroyed by the Barbarians who inva'ded and overturned the Roman empire. The exarchate of Ravenna, the last of their Italian victories, was conquered by them in 753; and that year is assigned as the wra m trinsic of the riety of vil law ittance and, 1, it has wisdom : ot been :iples of }Hc and , and in law, pro- :8sing so lis THE )RY OF hird suc- i it main- t time, all lestroyed irned the ;nna, the uered by d as the wra ■ I THE ROMAN LAW. 61 ara of the final extinction of the Roman law^h'^^^ in Italy 753 It lingered longer in the east: in strictness even, it cannot be said to have wholly lost its authority, in that part of the empire, till the taking of Constan- tinopi**, by Mahomet the Second. In the lifetime of Justinian, the Pandects were translated into Greek by Thaleleus; a translation of the Code was made, perhaps by the same hand, and the Institutes were translated by Theophilus. The successors of Justinian published diflfercnt laws, some of which have reached us. In the reign of Basilius the Macedonian, and his s<9ns Leo the philosopher, and "^^onstantine Porphyro- geneta, an epitome, in sixty books, of Justinian's Code, and of the constitutions of succeeding em- perors, was framed, under the title of Basilica. 906 Forty-one of the sixty books were splendidly pub- lished by Fabrotti, at Paris, in 1647, in seven tomes in folio; four more have been published in Meerman's Thesaurus. That the Basilica superseded, in the eastern empire, the immediate authority of the Justi- nianean collection, is true ; but that the Justini- anean collectiii ««*l* » " i«imj " Tin: ROMAN LAW. 63 nt of Its cl.riHl t wholly ar 1137, them, at us forms sTORY iphi the ing sub- ;opy was By the 1, it was and de- ls gene- crly they presence [iks, with 1 succes- id Anto- ivas pub- >; for its h among ! accom- gustimis, lished by ;ar 1710, Henr\ - ' j1'V.'. i "t i yj ' Henry Brcnchman, a Dutcliman, was permitted, at the earnest solicitation of our Oeorge the First, to collate the manuscript. He employed ten years upon it, and in the investigation of various topics of literature connected with the Justiniancan C(k1c. His elegant and curious Historia Pandoctarum, published at Utrecht, in 1712, gives an interesting account of his labours; and shews, like the labours of Wetstein and Mill, that great fire of imagina- tion, exquisite taste, minute and patient investiga- tion, and the soundest judgment, may be found in the same mind. — Some have supposed that the Florentine manuscript, is the autograph of the Pandects; for this opinion there is no real ground or authority ; but Brenchman refers it to the sixth century, a period not very remote from the a^ra of Justinian. Brcnchman's work forms a small part of an original design, and is so ably executed that all must lament his having left any part of lus design unfinished. Three editions of the Pandects are particularly distinguished: the Norican edition published by Holoander, at Neuremburgh, in 1529, in thice volumes, quarto; the Florentine, published by Taurellus, at Florence, in 1553, in two volumes folio, often bound in three; and the Vulgate, under which name every edition is comprised, which is not taken from the Norican or Floren- tine edition. The best editions for general use ' appear m\ im fii J0" i*!*'^-' 64 THE ROMAN LAW. appear to be Pothicr's Pandectse Justinianea:, pub- lished at Lyons in 1782, in three volumes folio; and that of Dionysius Gothofred, published by Simon Van Leeuwen at Leyden in 1663, in one large volume, generally bound in two : It contains the Institutes, the Digest, the Code, the Fasti Consulares, Freher's Chronologia Imperii UtriUs- que, Gothofred's Epitome of the Novells of Justi- nian, various other edicts and novell constitutions, Frederici II. Imp. Extravagantes, Liber de Pace Constantise, Gotihofred's Epitome of the books of the Fiefs, an extensive synopsis of Civil Law, tlie fragments of the Twelve Tables, the Tituli of Ulpian, and the opinions of Paulus, with notes, and copious indexes to the whole.* ^.^..- . . THESE • This article is extracted from Pom/ioniua'a short treatise de Origine Juris et omnium tnagistratuum et auccessione firudentum, Big. TUt. 2.; the Preface to the Institutes ; the firsty second, and third Prefaces to the Pandects ; the first and second Pr^aces to the Codes Heineceius's Historia Juris Civilis. Romani ac Germanici, Lug. Bat. 1740, 8vo; the Antiquitatum Romanarum Syntagma, of the same author, Strasburgh 1724, Svo.— The writings of Heineccius are a striking proof of the truth of Mr. Gibbon's observation, vol. 4. 395, note 160, '< that the universities of IloUand « and Brandenburgh, in the beginning of the last centurj, " appear to have studied the civil law on the most just and " liberal principles:"— /Ac vtorks i i i l W*i>' ti i fW ^»^,,^»- ;8e, pub- is folio; shed by , in one contains he Fasti i UtriUs- of Justi- titutions, de Pace books of Law, the Tituli of th notes, THESE .ort treatise aucceasione ititutea; the I i the Jirat atoria Juria , Sro ; the me author^ ccius arc a observation, of IloUand ist century, ost just and m the Civil ticularly hi» the Leges apd ■M THE ROMAN LAW. VI. 65 THESE lead to an inquiry respecting THE PRINCIPAL SCHOOLS IN WHICH THE CIVIL LAW HAS BEEN TAUGHT since its revival in Europe. In the early days of tlie republic, it was usual for such as desired to gain a knowledge of the laws of tneir countr}', to attend on those, who were and Senatua Conaulta is particularly interesting: Brunguellua'a Historia Juria Romano-Germanici, Ams. 1730, 81^0, per- haps the completest historical account extant of the civil law; Struviua'a Hiatoria Juria Romani, Jevx^ 1718, 4fo; Pothier'a Prolegomena to his Fandecta Juatinianea, Lyons, 3 vola./ol.; Terraaaon's Hiatoire de la Juria/irudence Romaine^ Paria, 1750, said by Mr. Gibbon, 4th vol. note 9, to be « a work of more promise than performance ;" Thomaaiua's Delineatio Hiatorite Juria Romani n Germanici, Er/ordia, 1750,"] 8vo; and hia JVavorum Juriafirudentia Romana Li- bri duOf Halte Magdeburgicx, 1707, 8t>o;— .they contain a severe attack on the Justinianean collection, the emperor, and all other persons concerned in it : Monteaguieu'a Eafirit def> Loix, a work entitled to all the pi-aise it has received ; no one, who has not travelled through the Corpus Juris and the Capitularies, can form an idea of the comprehensive brevity and energy with which it is written. Dr. Bever'a History 0/ the Legal Polity of the Roman State, Lond, 1781, \to;Dr. Tayior'a Elementa of the Civil Law, Camb. 1755, Ato, a work, if we acquiesce Li Mr. Gibbon's opinion of it, 4th vol. note 132, « of amusing, though various reading; L « but ..*«ii>i* ill t: 'V , -f \i ■ifmm'M.;'^m&^:-: ^j^fe* Iteii' )m QQ THE ROMAN LAW. were consulted on le^l subjects, at the hours, iu which these consultations generally took place. Tiberius Coruncanius is said, by Cicero, to have been the first among the Romans, who professed to give regular instructions on legal subjects. Afterwards, 'public schools of jurisprudence were established; the most celebrated were those at Rome and Constantinople; Justinian founded u third at Berytus, and used all means in his power, to promote its success: he gave the professors large salaries, and advanced some of them to offices of high distinction in the state;— as the authority of his law decreased, they fell into decay. With the discovery of the Pandects at Amalphi, the study of the civil law revived: it was intro- duced into several universities, and exercises were performed, lectures read, and degrees conferred in « but which cannot be praised for philosophical precision;" The four Books of Justinian, translated by the late Dr. Harris, with notes and a preface} the translation is excellent, and it is much to be lamented, tliat the preface is not longer, . and the notes more copious; Ferriere's Histoire du Droit Romaine, Paris, 1783, ivo; Beaufort's Refmblique Ro- maine, Paris, 1767, 6 vols. 8vo ; an excellent constitu- tional history of the Roman Government: The Uth Cha/iter qf the Ml Volume of Mr. Gibbon's History ; M. Bouchaud's Recherches Historiques sur lea Edits de/> Magistrals Romaina, Quatrieme Memoire, Mem. dc I'Jcadcmie, -list Vol. Jt. \. and Mr. Schomberg'a Elements qf Roman latv, London, 1786, Svo. this, THE ROMAN LAW. 67 lours, m k place. , to have professed subjects, nee were those at lunded u lis power, professors I to offices authority Amalphi, vas intro- ^iises were nferred in [ precision;" •Dr. Harris, xellent, and not longer, 're du Droit ublique Ra- nt Gonstitu- t4?A Chafiter r, Bouchaud'i •ats Romaina, ''ol. ft. \. and n, 1786, 8vo. this, this, as in other branches of science, and several nations of the continent, adopted it, as the basis of their several constitutions. From this time, there has been a regular succession of civil law- yers, distinguished by some circumstunce or other into different classes, or as it is usually expressed, into different schools. ■ ' ' I. The first, is the school of Irnerius, a learned German, who had acquired his know- ledge of the civil law, at Constantinople. He taught it at Bologna, with great applause: the legal schism which had divided the Sabinians and Proculeians, was revived, in some degree, among liis scholars: one of them, was the celebrated Azo, a Proculeian, whose writings, Montesquieu is said to have preferred to all other on the sub- ject of civil law. A more important subject, the contest between the emperors and popes, produced a more serious warfare among the disciples of Imerius. The German emperors, who pretended to succeed to the empire of the Caesars, claimed the same eTr-cnt of empire in the west, and with the same priv .^ges, as it had been held by the Caesars; to this claim, the spirit and language of the civil law being highly favourable, the emperors encoump-ed the civilians; and, in return for it, had their pens at command. The popes were supported by the canonists, and the canonists found, in the decree of Gratian, as much to favour the pretensions of the popes, as the civilians I: I'i km 58 THE ROMAN LAW. civilians found, in the law of Justinian, to favour the pretensions of .he emperors. Thus, generally speaking, the civilians were Ghibelins, the name given to the partisans of the emperors, and the canonists were Guelphs, the name given to the partisans of the popes. But this distinction did not prevail so far, as to prevent many canonists from being Ghibelins, or many civilians from being Guelphs; those among the civilians, who sided with the canonists in these disputes, were called, from the decree of Gratian, Decretistro, in opposition to tl ; rest of the body, who assumed the appellation of Legistffi, from their adherence to the supposed Ghibelin doctrines of the civil law. ', •!' 2. J new school began with Accursius: — his Gloss is a perpetual commentary on the text of Justinian : it was once considered as legal authority, and was therefore usually published .vith the text: it is even x\q\v respected as ^ useful commentary. Accursius had many disciples, whose glosses had great celebrity in their day, but are now wholly for- gotten. 3. Bartolus, andBaldus his disciple and rival, gave rise to a new school, famous for copious commenta- ries on Justinian's text; for the idle subtleties with which they abound, and their barbarous style. 4. Andrew Alciat was the first who united the btudy of polite learning and antiquity, with the Study .4f(^^iV^;.Ji.,-_ ,_ THE ROMAN LAW. 69 favour jenerally le name and the 1 to the tion did canonists im being ded with ed, from jsition to ipellation supposed ius: — his e text of LUthority, the text: imentary. osses had holly for- hal,gave )mmenta- eties with yle. mited the with the Study study of the civil law: he Avas the founder of a new school which is called the Cujacian from Cujas, the glory of civilians. Of him it may be said trulv, that he found the civil law of wood, and left it of marble. That school has subsisted to the present time ; it has never been without writers of the greatest taste, judgment and erudition; the names of Cujacius, Augustinus, the Gothofredi, Heineccius, Voetius, Gravina, and Pothier, are as dear to the scholar, as they are to the lawyer. An Englishman, however, must reflect with pleasure, that his countryman, Mr. Justice Blackstone's Commentaries on the Laws of England, will not suffer in a comparison with any foreign work of ju- risprudence; — perhaps it will be difficult to name one of the same nature, which will bear a compari- son with it.* VII. IT remains to give some account of THE IN- flup:nce of the civil law on the JURISPRUDENCE OF THE MODERN STATES OF EUROPE. On the degree of its influence on the law of Germany, the German lawyers are not agreed: but it is a mere dispute of words; all of them • This article is chiefly taken from the .'.ted works of Crovina and Brunqiiellns. allow M^ X k.L ■ * 'J 70 THE ROMAN LAW. allo\v that more causes are decided in their courts, by the rules of the civil law, than by the laws of Germany; and thft, where the laws of Germany do not interferf ac iject in dispute must be tried by the cl . ; after these con- cessions, it is not material j mquire, whether, to use the language of the German lawyers, the civil law be the dominant law of Germany, or sub- sidiary to it. The sanu- may be said of its influence in Bohe- mia, Hungary, Poland and Scotland. At Rome, and in ;^il the territories of the pope, it is received without limitation; in most other parts of Italy, including Naples and the two Sici- lies, it has iiearly the same influence ; except where the feudal policy intervenes. Its influence in Spain and Portugal is more qua- lified ; but it appears to be admitted, that where the law of the country does not provide the contrary, the civil law shall decide : and it is the settled prac- tice, that no person shall be appointed a judge or received an advocate in any of the courts of law, who has not been a student in some academy of civil or canon law for ten years. The provinces of France, which lie nearest to Italy, were the first conquered by the Romans, and the last conquered by the Franks. At the time of the conquest of them by the Franks, tlicy were wholly governed by the Roman law: thev ^^'-T^^^A^;- ^i^vsfe*:; 'i<'^ii^'i THE ROMAN LAW. 71 tlicy are the provinces of Guyenne, Provence, Dauphine, and speaking generally, all the pro- vinces, under the jurisdiction of Toulouse, Bour- deaux, Grenoble, Am, and Pau; the Lyonnois, Forez, Beaujolois, and a great part of Auvergne. Their Frankish conquerors permitted them to retain the Roman law; where it has not been al- tered, they are still governed by it: and, from this circumstance, they are known under the general name of the Pays du Droit ecrit. The remaining part of France is governed by the different laws and customs of the provinces of which it is com- posed, and from this circumstance, is called. Pays coutumier.* The Venetians have always disclaimed the autho- rity of the civil law. It was introduced into PLngland by Theobald, a Norman Abbot, who was elected to the see of Canterbury. He placed Roger, surnamed Vaca- rius, in the university of Oxford: students flocked to him in such abundance, as to excite the jealousy of government, and the study of the civil law was prohibited by King Stephen. It continued, however, to be encouraged by the clergy, and became so favourite a pursuit, that almost all, who aspired to the high offices of church or state, thought it necessary to go through a regular course of civil law, to qualify them- Sec Appendix, Note IV m selves 72 THE ROMAN LAW ;>J| '} ^ VM selves lor them : it became a matter of reproach to the clergy, that they quitted the canon for the civil law; and pope Innocent prohibited the very reading of it by them. Notwithstanding this opposition, the study of the civil law has been encouraged in this country : [c] in each of our universities there is a pro- fessor of civil law, and, by general custom and im- memorial usage, some of the institutions of the ci- vil law have been received into our national law. In the spiritual courts, in the courts of both the univer- sities, the military courts, and courts of admiralty, the rules of civil law, and its form of legal proceed- ing greatly prevail. But the courts of common law have a superintendency OAcr these courts, and from all of them, an appeal lies to the King in the last re- sort. " From these strong marks and ensigns of " superintendency it appears beyond doubt," sayc, Mr. Justice Blackstonc, " that the civil and canon " laws, though admitted in some cases by custom, " and in some courts, are only subordinate and le- ''ges sub graviori lege.'' Theshort but very learned treatise of Arthur Duck, de Usu et Auctoritate juris civilis in Dominiis principum christianorum, conveys, in elegant language and a pleasing manner, complete information on the nature and extenl of the influence of the civil law, on the jurisprudence of the modern states of Europe. [r] It is to be it fretted that the study of the civil law is not at M cncovira<)Ut few lawyers who have made it in any deforce the object of study. Perhaps it is to h< attributed to tiie waiit of ^ood ele- mcr.u"v books, tiierc being l)iit few extant in the Knt^lish langiiuj^e, and those mostly out of print. I'dward Livin^;;ston, Ms(|. of New Orleans, has uiidertaiien, we heai', to publish u translation of the whole body of the civil hiw; but though we do not in the least dowbt that gentleman's abilities, we ron- < eive that so iniuK-nsf and laborious a work is too nuich for any one man, hoM'cve • leurned and Industrious, who is not entirely free from professional avocations ; and we should have been more p ' iscd to hear that he had devoted his lei- sme to some less extensive work on the same subject. Sucb would be, for instance, an edition of the English translation of Domat on the i'.Wil Law. It is undoid)tcdly the most ex- cellent elen\cntary book extant on the Roman system of ju- risprudence ; but a great part of it relates merely to the lo- cal laws of Erancc, and would be useless in this country. If that part were extracted from ihe work, and the remainder pvdilished in two haa Isome octavo volumes, it would proba- bly meet with a ready -ale in the United .States, and greatly promote the study and knowledge of the Roman law. The body of the civil law h.is been entirely translated into the French language; I -'t by diRcrem authors. The InstitiUes by Ftrrierc, the Digest by Ilulot, the Code and Novells by . The collec '>n Is to be had of Tissot, Rue llonord Chevalier, I<'auxbourg Ht. Germain, and of Le A'orfnanc/, book- sellers at Paris. There is a translation into English of the Institutes only, by Harrin. A curious anecdote concern- ing Huht's translation of the Digests, is related by Mons. (^AUXWi, liibliothequc dc Droit, :^.xmi 30. Ilulot issued propo- M sals SV , 72 l THE UOMAN LAW. sals ill 1764, to publish a completi' iianslution of ihc Cor/ju* Jurhy but the luwy( ^ that day raised a vurjcty of objec- tions against it : they saul that it was impossible to render accu- rately into French the text of the Roman law; and besides thut, that text, by becoming too common, and being put within the reach of every practitionei-, would greatly rrniltiply lawsuits. Hulot saw the storm which was gathering against hun, and prudently withdrew his proposals. It was not until the period of the French revolution, that his translation of 1 1" Digests was published. It docs not appear that any part of the Cor/ius, except the Institutes, has been hitherto translated into any other living language. li ll; iJ) 1» 1:1 P' fe THE FEUDAL LAW An attempt sheets to gi\ g'uial tcrriioiics FEUDAL LAW first progress and chk t made in the following ount, L Of the ori- tions by whom THE .tublished; IL Of their Attkments in the Roman territories; and IIL Of the principal written docu- ments of the Feudal Jurisprudence of foreign coun- tries. It is principally taken from a note . of the Editor, in that part of the 14th edition of Coke upon Littleton, which was executed by him. — That note contains also some observations on the peculiar marks and qualities of the feudal law; some account of the principal events in the early his- tory of the feuds of foreign countries; and of the revolutions of the feud in England. But, as the researches which gave rise to that note were chiefly made with a view to the law of real property, the observations in it are principally directed, through every branch of the inquiry, to the influence of the feud on that species of property, particularly where the writer treats of the feudal jurisprudence of Engknd. Under that head some general observations are oiFered, on the f i' m m 74, THK IIX'DAI, I.AU . the lime when liucls may In- supposed to have Ixiii first cstabli^lud in Kii^iand; on ihc fruits aiul iniicUnts of the feudal tenure; and on the feudal polity of this country, with respect to the inlieiilance and alienation of huul: under this head an attempt is made to state the principal points of dilli rcnee hetween the Ronum and feudal jurisprudence in the • ticks of heirship, the order of succession, and the nature of feudiJ estate: an attempt is then made to shew the means hy which some of the general restraints upon the alienation of real property, introduced by the feud, luive been removed; some account is then given of entails, and of the means l)y which the restraints created by entails were eluded or remo\ed. Havinj^ thus treated of that species of alienation, which, being the act of the party himself, is termed voluntary alienation, notice is taken of that species of alienation, which, being forced on the party, is termed in- voluntarj'. Under that head are briefly considered the attachment of lands ibr debt; fust, in regard to its effect upon them, while they eontiiuic in the possession of the party himself; then, in re- spect to its effect upon them, when in possession of the heir or de\isee; and afterwards, in respect to the prerogative remedies for the recovery of Crown debts. Some observations are then offered on testamentary alienation ; and an account of some of ■*r-*-" •>f'.'.V- 0'-'^-2X^WB-^'- •ys to have c fniits on the t Xo the kr this principal uin anil liiirship, )!" IVntlal hew the estraints trodnccd account means lils were I of that ct of the lienation, lienalion, rniecl in- jnsidercd n regard itinue in n, in re- ossessioii ti respect :overy of n ottered t of some of y:^^,MM^ ^J •^. v".'^ ▼• „o. .Q^. %^>^Z^. IMAGE EVALUATION TEST TARGET (MT-S) y A *^^ ^ A W /. (do A ^ 1.0 I.I ■/fl^ IIIIM Hf I4£ 12.0 2.2 Muu — 6" 1.8 IL25 1111.4 IIIIII.6 -► ^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 :,^,^:,-^-i,jj,rra,^.r^-53,^,s;^:i5g^,55^ • ,Vf VI CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques --Mmm^mlmiiSMmi •»■'"";■.'', i| 1 t Y c s t I ti V li o g ill A b li si S ai THE FEUDAL LAW. 75 of the principal circumstances in the history of the decline and fall of the feud in England. I. In respect to the ORIGINAL TERRITO. F.IES of the nations who introduced the feudal law; — they may be considered under the names of Scythians, Sarmatians, Scandinavians, Germans, Huns and Sclavonians, which they acquired as they extended their conquests. Till lately, the in- habitants of the shores of the Baltic were consi- deied to be their parent stock: subsequent re- searches seem to have traced it to the spot where the common stock of all nations is found,— the Plain of Sennaar. I. 1. For the eiu-ly state of the Northern na- tions we must look to Herodotus. Of the north- western parts of Europe, he seems to have had little knowledge: the word Germjuiy does not occur in his writings; Scythia is a general name given by him to the north-eastern parts of Europe, and to all he knew of the north-western parts of Asia, till he reached the Issedones, a nation who, by Major Rennel's account, occupied the present seat of the Oigur or Eluth Tartars. The European part of this extensive territory lies on the western, its Asiatic part on the eastern, side of the Volga. On the south, the European Scythia extended to the Carpathian mountains and the mouths of the Danube: and the Asiatic Scvthia the Marck of Bradenburgh invaded the Higher Italy, and founded an empire, called the kingdom of the Lombards. After this, little re- mained 395 406 4i; 431 449 476 493 I,.. X THE FEUDAL LAW. 81 a, was as- a^*J^ 395 md Alani, 406 n the Bul- Guul they 1. 1 5 ; they IS, and in- dom. - 413 maiini and these na- verful, and hers, made \i extensive the name 431 2red by the cia, by the ; at'terwiirds ritain. The 449 2 commiuid i-rturned the 476 :lled by the 493 ds, issuing nvaded the , called the lis, little re- mained remained in Europe of the Roman empire, besides Aftoi the Middle and inferior Italy. These, from die time of the emperor Justinian's eonquest of Italy by the arms of Belisarius and Narsi , belonged to the emperor of the east, who governed them by an Exarch, whose residence was lixed at Ravenna, and by some subordinate officers, called Dukes. 5fi8 In 752, the Exarchate of Ravenna, and all the remaining possessions of the emperor in Italy, were conquered by the Lombards. This, as it was the final extinction of the Roman empire in Europe, was the completion, in that quarter of the globe, of those conquests which established the law of the feud. - - . - . 752 The nations by whom these conquests were made, came, it is evident, from dift'erent countries, at different periods, spoke different languages, and were under the command of separate leaders; yet appear to have established, in almost every state, where their polity prevailed, nearly the same system of law. This system is known by the appellation of the Feudal Law. — Modern researches have shown that something very like feudalism has im- memorially prevailed in India. III. THE principal written documents, which are the sources from M'hich the learning of foreign feuds ^li / |).tj s/jj I gg THK FEUDAL LAW. feuds is derived, mjiy Ijc divided into Codes of Laws, Capitularies, and Collections of Customs. With respect to FEUDAL LEARNING ill general, it was long after the first revival ol letters in Europe, that the learned engaged in the study of the laws or antiquities of modern na- tions. When their curiosity was first directed to them, the barbarous style in which they are written, and the rough and inartificial state of manners they represent, were so shocking to their classical prejudices, that they appear to have turned from them with disgust and contempt. In time, however, they became sensible of their im- portance. They were led to the study of them, by those treatises on the feudal laws, which are generally printed at the end of the Justinianean Collection. These are of Lombard extraction, and naturally gave rise to the opinion, that fiefs appeared first in Italy, and were introduced by the Lombards. From Italy, the study of juris- prudence was imported into Germany; and this opinion accompanied it thither. At first, it ap- pears to have universally prevailed: but, when a more extensive knowledge of the antiquities of the German empire was obtained, there appeared reason to call it in question. Many thought the claims of other nations, to the honour of having introduced the feudal polity, were better founded: some ascribed them to the Franks; others, denying the Codes of ustoms. fVRNING revival ol' ged in thi- odern na- lirectcd to they arc il state of ng to their • to have ktempt. Ill f their im- r of them- which are ustinianean extraction, I, that fiefs "oduccd by y of juris- )", and this first, it ap- ut, when a tiquities of re appeared thought the r of having er founded: ;rs, denying the THE FEUDAL LAW 83 the exclusive claim of any particular nation, ascrib- ed them to the German tribes in genml, and as- serted, that the outlJm of the law of feuds iS clearly discoverable in the habits, manners, and laws of those nations, while atill inhabitants of the Hercy- nian wood. The time, when feuds first made their appearance, has equally been a subject of contro- versy. The word itself is not to be found in any public document of authenticity before the eleventh century. III. L The most ancient, and one of the most import ant, CODES OF LAW, in use among the feudal nations, is the Salic Jmw. It is thought to derive its appellation from the Salians, who inhabited the country from the Leser to the Carbornarian wood, on the confines of Brabant and Hainault. It was probably written in the Latin language, about the beginning of the fifth century, by Wisogastus, Bo- dogastus, Salogastus and Windogastus, the chiefs of the nation. It received considerable additions fromClovis,Childebcrt, Clotaire, Charlemagne, and Lewis the Debonnaire. There are two editiftns oi it: they differ so considerably, that they have been sometimes treated as distinct codes. 2. The »Si^^«^iii,yeffi!fcf.s 'J>if^->0^^-irki:imimi, 84 THE I IXDAl- i,AW. 2. 'I'lif Franks, who occupied the country upon the Khinc, the Mcusc, and the Scheldt, were known by the name of the Ui|)uarians, and were governed by a collection of laws, which from them was called the JiipiKtrian Law. They seem to have been first promulgated by Thcodoric, and to have been auKmented by Dagobert. The pu- nishments inflicted liy the Uipuarian are more severe than the punishments inflicted by the Salic hiw; and the Uipuarian law mentions the trial by judgment of God, md by duel. Thcodoric also appears to have first promulgated f/ic law of the Jhmanm. 3. The law of the Biirgundians is supposed to have been promulgated about the beginning of the fifth century; that nation occupied the country which extends itself from Alsace to the Medi- terranean, between the Rhone and the Alps. This was the most flourishing of the Gallic pro- vinces invaded by the Germans; they established themselves in it, with the consent of the emperor Honorius. An alliance subsisted for a considerable time, between them and the Romans; and some parts of their law appear to be taken from the Roman law. 4. One of the most ancient of the German codes is that by which the Angliones and the JVerini were governed. The territories of these nations were contiguous to those of the Saxons; and THE I'KUDAL LAW. 85 try upon :lt, were iiul were ch from ley seem oric, and The pn- ire more the Salic e trial by mulgated >posed to ing of the country lie Medi- he Alps, allic pro- stablished : emperor isideral)le lome parts 9man law. ; German and the s of these : Saxons; and and the Angliones are ^jenerally supposed to be the nation known in our history by the name of Angles. A considerable portion of thv Jaiw oj' the Saxons has reached us. The Goths also had their laws, which were ])ro- mulgated by the Ostrogoths in Italy; by the Visi- goths in Spain. The Goths were dispossessed of their conquests in Italy by the Lombards. No ancient code of law is more famous than t/w Law of t/ie Lombards ; none discovers more eviv!t;nt traces of the feudal polity. It survived the destruction of that emi)ire by Charlemagne, and is said to be in force even now, in some cities of Italy. These were the principal laws, which the foreign nations, from whom the modern governments of Europe date their origin, first estal)lished in the countries, in which they formed their respective settlements. Some degree of analogy may be dis- covered between them and the general customs, which, from the accounts of Caesar and Tacitus, we learn to have prevailed among them, in their supjwsed aboriginal state. A considerable part also of them is evidently borrowed from, the Roman law, by which, in this instance, we must under- stand the Theodosian code. This was the more natural, as, notwithstanding the publication of the Ripuarian and Salic codes, the Roman subjects in Gaul were indulged in the free use of the Theo. dosian \: h #irl'«fei',.itfia<-H - 4^ > -* S< ^, r 8j6 THE FEUDAL LAW. dosian laws, especially in the cases of marriage, inheritance, and other important transactions of private life. In their establishments of magistrates and civil tribunals, an imitation of the Roman po- lity is dicoverable among the Franks; and, for a considerable time after their first conquests, fre- quent instances are to be found, in their history, of a difference, and, in some instances, even of an acknowledgment of territorial submission to the emperors of Rome. III. 2. In die course of time, all these laws were, in some measure at least, superseded by the CAPI- TULARIES. The word Capitulary is generic; and denotes every kind of literary composition, divided into chapters. Laws of this description were promulgated by Childebert, Clotaire, Carlo- man, and Pepin: but no sovereign seems to have promulgated so many of them as Charlemagne. That monarch appears to have wished to effect, in a certain degree, an uniformity of law through- out his extensive dominions. With this view, it is supposed, he added many laws, divided into small chapters or heads, to the existing codes, some- times to explain, sometimes to amend, and some- times to reconcile or remove the difference be- tween them. They were generally promulgated, in public assemblies, composed of the sovereign and -ITt^' i'; ^'it'^^'*'''- -^^^ • THE FEUDAL LAW. 87 marriage, ictions of lagislrates Loman po- ind, for a uests, fre- ir history, even of an ion to the s were, hi the CAPI- is generic; )mposition, description aire, Carlo- ;ms to have larlemagne. d to effect, iw through- s view, it is d into small )des, some- and some- iference be- romulgated, le sovereign II nd and the chief men of the nation, as well ecclesi- astics as secular. They regulated, equally, the spiritual and temporal administration of the king- dom. The execution of them was intrusted to the bishops, the counts, and the missi regii. Many copies of them were made, one of which was ge- nerally preserved in the royal archives. The au- thority of the Capitularies was very extensive ; it prevailed in every kingdom, under the dominion of the Franks, and was submitted to in many parts of Italy and Germany. The earliest collection of the Capitularies is that of Angesise, abbot of Fontenelles. It was adopted by Lewis the Debonnaire and Charles the Bald, and was publicly approved of, in many councils of France and Germany. But, as An- gesise had omitted many Capitularies in his col- lection, Benedict, the Levite or Deacon of the church of Mentz, added three books to them. Each of the collections was considered to be authentic, and of course appealed to as law. Subse* quent additions have been made to them. The best edition of them is that of Baluze in 1697; a splen- did republication of this edition was begun by M. de Chiniac in 1780; he intended to comprise it in four volumes. Two only have yet made their ap- pearance. In the collection of ancient laws, the capitu- laries are generally followed by the Formularia, or forms of forensic proceedings and legal instru- P ments. m M'^ f Qg THE FEUDAL LAW. ments. Of these, the formulaic of Marculphus is the most curious. The formulariu generally close the collections of ancient laws. With the Merovingian race, the Salic, Burgundian and Visi- gothic laws expired. The capitularies remained in force in Italy longer than in Germany; and in France, longer than in Italy. The incursions of the Normans, the intestine confusion and weak- ness of government under the successors of Char- lemagne, and, abo^'e all, the publication of the Decretum of Gr.aian, which toUiUy superseded them in all religious concerns, put an end to their audiority in France. III. 3. They were in some measure succeeded by the CUSTOMARY LAW. 1, It is not to be supposed, that the codes of law, of which we have been speaking, entirely abrogated the usages or customs of the countries in which they were promulgated. Those laws only were abrogated by them which were abro- gated by the regulations they established. In other respects, the codes not only permitted, but, in some instances, expressly directed, that the Jncient Customs should remain in force. Thus, in all the countries governed by the ancient codes, there existed at the same time, a written body of law, sanctioned by public authority, and usages or customs. , . ,«irf.*^J*£««r-M».n^*«**-'" K,^*>*t>n**i««S«**'^' ,^^i*«#S^ ■*»■% J^*s*T'>*-^-^ THE FEUDAL LAW. 89 arculphus generally With the I and Visi- remained lany ; and incursions and vveak- s of Char- ion of the superseded nd to their icd by the le codes of ig, entirely le countries rhose laws were abro- ad. In other ted, but, in ; the Ancient s, in all the :ode5, there ody of law, I usages or customs, customs, admitted to be of public authority, by which those cases were frequently governed, for which the written body of law contained no pro- vision. After the ancient codes and capitularies fell into desuetude, these customs were multiplied. 2. By degrees JFritten Colkctiom of them were made by public authority; others, by individuals, and, depended, therefore, for their weight on the private authority of the individuals, by whom they were made, and the authority which they insensi- bly obtained in the courts of justice. Collections of this nature committed to writing by public authority form a considerable part of the law of France, and are a striking feature of the jurisprudence of that kingdom. The origin of them may be traced to the beginning of the Capetian race. Tiie monarchs of that time, in the charters by \vhich they granted fiefs, pre- scribed the terms upon which they were to be held. These, they often abridged, enlarged, and explained, by subsequent charters: they also publislied charters of a more extensive nature. vSome of them contained regulations for their own domain; others contained general regulations for the kingdom at large. In imitation of their mo- narch, the great vassals of the crov.n granted their charters for the regulation of the possessions held of them. In the same manner, when allodial land was changed to feudal, charters were granted for the regulation of the tiefs; and, ^vhen villeins were enfranchised. ill li ^-»*f4f»«*MR^^»^-^^****' -m^^^^m^^smm^^^^^x^^^mii. 90 THE FEUDAL LAW. enfranchised, possessions were generally given them, and charters were granted to regulate these possessions. Thus, each seignoryhad its particular usages. Such was their diversity, that throughout the whole kingdom, there could hardly be found two seignories, which were governed, in every point, by the same law. 3. With a view more to ascertain than to produce an uniformity in these usages, though the latter of these objects was not quite neglected, Charles the Seventh and his successors caused to be reduced to writing the different local customs. In 1453, sometime after Charles the Seventh had expelled the English from France, he published an ordinance, by which he directed that all the customs and ordinances should be committed to writing, and verified by the practitioners of each place, then examined and sanctioned by the great council and parliament; u.id that the customs, thus sanctioned, and those only, should have the force of laws. Such were the obstacles in the way of this measure, that forty-two years elapsed before the customs of any one place were verified. From that time the measure lingered, but it was resumed in the reign of Lewis the XII; and about the year 1609, it was completed. The customs of Paris, Orltans, Normrcudy, and some other places, were afterwards reformed. Those of Artois and St. Omer were reformed within the last hundred years. The r .^^v.f^rTS»^<»*"*-:-*? &)-ji;^'rt'*****^'=>''«^' •^iiMtm^set^^'ti^"^ lj,^»iK^->?t4**flr*»4 -#«!Ni«r^'*:^-««- THE FEUDAL LAW. 91 Uy given lute these particular liroughout found two { point, by I than to hough the neglected, caused to il customs. ;venth had published hat all the nmitted to ^rs of each ly the great L' customs, d have the :les in the ;ars elapsed ire verified. but it was ; and about customs of ther places, tois and St. idred years. The The manner of proceeding, both in reducing the customs and reforming them, was, generally speaking, as follows. The king, by his letters patent, ordered an assembly of the three states of each province. When this assembly met, it directed the royal judges, greffiers, maires and syndics, to prepare memoirs of all the customs, usages, and forms of practice, they had seen in use, from of old. On receiving these memoirs, the states chose a certain number of notables, and referred the memoirs to them, with directions to put them in order, and to frame a cahier or short minute of their contents. This was read at the assembly of the states; and it was there con- sidered, whether the customs were such as they were stated to be in the cahier: at each luticle, any deputy of the state was at liberty to mention such observations as occurred to him: the articles were then adopted, rejected, or modified, at the pleasure of the assembly, and, if they were sanctioned, were taken to parliament and re- gistered. The customs of each place, thus reduced to writing and sanctioned, were called the Coutu- mier of that place: they were formed into one collection, called the C( utumier de France, or the Grand Coutumier. The best edition of it is Richebourgh's, in four volumes, in folio. It con- tains about one hundred collections of the customs of provinces, and two hundred collections of the customs of cities, towns, or villages. Each cou- tumier li^ '^^^^^^^f^^ma&^ism^^M^ix^m&m^s^ii 92 THE FEUDAL LAW. tumicr has been the subject of a commentary: five and twenty commentaries, (some of them voUiminoUM), have appeared on the coutumier of Paris. Of these commentaries, that of Dumoulin has the jjreatest celebrity. Lcs Etahlisements de St. Louis, hold a hiirh rank for the wisdom with which they are Avritten, and the curious matter they contain. The Coutumier de Normividie, for its high antifiuity, and the relation it bears to the feudal jurisprudence of England, is particularly interesting to an English reader : Basnage's edition, and his learned commentary upon it, are well known. 4. These are the princii)al sources of the Feudal Jurisprudence of France; it remains to take some notice of the civef cotvpilations, by which the feudal policy of other kingdoms is regulated. The most curious of all collections of feudal law is that entitled Assizes de Jerusalem. In 1099, the object of the first crusade was eftccted by the con- quest of Jerusalem. Godfrey of Bouillon, who was elected king of Jerusalem, Init refused the title, called an assembly of the states of- his new- kingdom. The patriarch, the chief lords, their vassals, and their arriere- vassals attended. With general consent, the collection in question was formed, under the title of " Les Loix, Statuts, is' " Coutumes, accordces au Roi/aume de Jerusalem, ''par Godefroi de Bouillon, Van 1099; par Vavis " du Patriarche et des Barons."" As this collection Ava;* r ^^iiipBt^.t>.,»^*»-^vsa?>i9Mri*'i!i*i«-=is --«iiiirtet5._-.vH--.Aiw-^ »«»ftea^^:**B' ,4t^.^P?»BBlf'^»rt«*5**«^t*^^f^^i^*f^*^ 'm^^m^^sm^ms^mmm&pmmmMi^mm^im'Smmmms^fm. ■'■^^tf^ 94 THE FEUDAL LAW. t relate to the law of feuds. As this edition is scarce, and it may happen, that some English reader may be desirous of seeing all these passages, the following short account of Calvinus or Calvus's selection of them, is transcribed from Hoffman's Dissertatio de Unico Juris Fcudalis L^ jbardici Libro.— " Jurisprudentiam feudalem, sex libris " comprehensam, sive potius consuetudines feu- " dorum, secundum distributionem Cujacianam, " cdidit, et sub titulo libri fcudorum VI. addidit, " quidquid law, and may serve to clear up many obscure points in En- glish j>uisprudence ; we clearly truce there the nature and origin of the ancient trial by jury, and we find the hypothesis of lord Kaims fully established, to wit: that trial by jury was originally nothing more than a trial by twelve •witnen^es who defiotied of facts within tlivir own knowledge, and not judges of fact deciding as they now do on extraneous proofs. We invite our readers to turn to that passage of the celebrated Scotch jurist. Law Tracts, page 85. and then take, together with his strong, and, in our opinion, conclusive arguments, the follow- ing text out of the first book, Tit. 10. of the Conauetudinet feudorum, or book of feuds: SI contentiofuerit inter dominum etjidelem de inveatiturdfeudi, fier /tares curia dirimatur: Alii ENiM TESTES, etsi idonct, admittendi non sunt. " If there should « be a' controversy between the lord and his vassal, let it be <« tried by the fiares curiae, and let no other witnesses, " though competent, be admitted." To which we may add the following passages out of Glanville, who wrote in England in the twelfth century, about the same time that Obertus de Ort'j , ,^.„.,,^,.,.<^.»,,«l,5^f!»«-l*W:-.VTt«'K^««*WW „ ,*«m»»>rt1!»^irt*'^«l«•**m««lJffJ-'B'te■I!-'J-3l'^ IS scarce > h reader ages, the Culvus's loffman's jbardici ex libris lines feii- jacianam, [. addidit, quidquid sints in En- nulure and ; hypothesis by jury was tncsses who ot judges of !. We invite ated Scotch hcrv/ith his I, the follow- onauiftudtnei ter dominum matur: Alii there should sal, let it be WITNESSES, we may add e in England it Obertus di: Ort'j •TTi THE FEUDAL LAW. 94 a u (I t< <( u l( (t (( (( quidquid alicujus de hac materia momenti, in universo corpore juris canonici expressum in- venerat; hoc est totum titulum decretalium Gregorii IX. sive capitula, Insinuatione L Etex parte tua 2. X. de feudis porro cap. c?eteruni, 5. et novit; 13 de Judiciis, cap. Qua: in Eccle- siarum, 7 de Constitutionibus, cap. Ad dures, 10 in quibusdam, lii et Gravem, 53 de Sent, ex- comm. cap. Ex transmissa, 6 et veruni, 7 de foro competente corumque summaria." 7. The Orto wrote in Lombardy, about three hundred years br/or-e Littleton. In his second book, after describing the manner of proceeding in the trial by the grand assize, hecocnitione duodecim wilitum, he says, § 21. Si vero rcfieriantur nulli mili- tes de vicineto nee in comilatu i/mo, qui uei vehitatem indr SCI A NT, (/uid juria erit? 8cc. "If there cannot be found any " knights in the vicinage, nor in the county itself, who know " the truth qf the fact, what then is to be done? Is the dc- '' mandant in that case to be nonsuited ?" Glanvillc thus states the question, but does not solve it ; he seems to think that under certain circumstances, the Duel perhaps may in that case be awarded. He appears, however, to consider the milim tea, who in a trial by the grand assize, were called to recog- nize the right of the parties, merely in the light of the de- mandant's witnesses, as the comfiurgatora in a law-wager, were witnesses in behalf of the tenant. And again, book 2. § 12. he tells us that jurymen at common law are liable to the same exceptions that witnesses are in the ecclesiastical courts: Mxci/ii auteni poitmnt jttratoreH i/iai eiadein modia .nr. As we arc^ no, ,i.in« a ,r.sn-ta,inu, wc- shall not carry -'-i-^"^'; ^^ , J ■ I 1 -.n -...vof the nlli-ctions which naturally now ':: t K imsin pointing out the way U. one o. the nu.^ o,r ous and interesting clisc.uisitions wh.ch the study o t Ic n" sh law afford. It is highly worthy the attention ote .^,La,„ Jurist, particularly at this ^-^l^^f^^^^^^^^^Zd ruble institution of trial by jury is attacked on all ««>"' ''"^ Clous mnid may discern wii«i i „rps,-nt state . 1 ,.»• timo • what are ess suited to the prest.ni siu"^ r,X t riaTomc time, r„r which . ..><^m.^<'^ skilful, thouBl. „lv™,-.mml.l.n(!h.."'l». ^ "''"";,; llrm m Iw s.cr«l touml.uo.» .0 the .-emolest ,>«cr..> ri*;^-'f^' 'S'.'./.SW**'^- '''^'' ..t^*Wff^.j?^JS^ c^fW^ttsawni'^*^ -j.U^^s Tin: IF.UDAI, LAW. 95 d is, the Lindcr the v. It was 708, with jc when it ain that it )ctbrc the ot written as written To these must s we arc not itions farther, lUiirally How followcil the ; of the most study «f the ;cntion of the hen the vene- all sides, and by Vundal rc- Dn, its ancient the perspica- sufteied from present state was first esla- : performed by it it may stand ijoslerity. nuist l)e added, the Jus Fntdair Saxnnirum, w hieh seems to he a part of, or an appendix to, a treatise of jrreat eelehrity in (lermany, intitled the iSpr. viilum Saxouwum. The Jus Ffudule Saxoniciitn, is said by Struvius to have been transhited by tiol- dastiis from the German into the Latin langtia^^e, for the benefit of tlie Poles. It is supposed to have beenpubUshed between the year 1215 and the year 1250. The Spnultim Suiv'tcum seems to have been composed, in imitation of the Specuhim Sax- onicum, probably between tiie year 1250 and the year 1400. To this is added the Jus Feudale Atemannicum, composed about the same time, and probably by the same author. But none of these collections acquired the same authority us the Books of the Fiefs. Those were known by the name of the Lombard Law: by deforces they were adniitted as authority by most of the. courts, and tauf^ht in most of the academies of Italy and (lermany. 8. Like the civil and canon law, they became the subject of innumerable Glosses. Those oS Columbinus were so much esteemed, that no one, it is said, published any after him. About the end of the thirteenth century, James of Ardezene pub- lished a new edition of the gloss of Columbinus, and i-idded, under the title of Capitula Extraordi- naria, a collection of adjudged cases on feudal mat- ters. This is inserted in some of the latter editions of the Corpus Juris. Aboiit the year 1430, Min- euccius 4*1 ! vf Brunquctlui t the tlialoria Jmfit, Gh> '«« Ro- mani rt Ger^ama of ffritierciu*, a/rradii nfHi tp m > "Urn- bro/fiua't I'r ' gomma to Mm Codfx Legvr Franl{fort, \ uol. fot. 1613; Baluziut'n Prr/acr (aria lirgum / Vfl/uorum, 1677 and 1780; thr > dalin qfJitUchi , fiublithed at Frankfort on ' Ato, 1750; Str. viu«'a ftiatoria Jurit, Jen^y 4to, Ffudalia 'if Th. -naMUiy tlalU, 8vo, 1728; Fleuru' Droit Franfah, /'arii, 3 vol. 8vo; generally /iri/j ttitution ail Droi FranfuU d'Jrgou; md the artau wntby M. Henrion to the French Jim ^dofiedia. 't^mmrunit '■II.', -'eu- n, ,t voU. Sin'cta ■oiri du he In- lutmmei I ,^«. , -.. - , n ,.. ff. i y f| . .ff vyer, by vc a new glcss uf t\e cmpc- wpcror in 'he [ 97 J THE CANON LAW. urtf Roma- , Ro. n "'«<» ■1, 3 T0&. iW^nirr du K A/- /«• The following sheets, after some introcliictorj matter respecting, I. the religious worship and hierarchy of Pagan Ronie; II. respecting the rise and progress of Christianity, from its being the most persecuted uect, to its becoming the establish- ed church of the Roman empire; and III. respect- ing the principal orders of the Christian hierarchy; will contain, IV. a mention of the general materials, and V. an historical account of the j)artieular do- cuments, of which the CANON L.\\\ is com- posed. I. I. 1. It seems generally understood that the ANCIENT RELIGION OF ROME was of Cehic extraction, without linages, without temples, and with few religious rites; that Numa esta- blished many ceremonies, and built a temple for sacrifices to the one eternal God; that, in other respects, he left the religion of Rome in its ori- ginal n r gg THE CANON LAW. ginal simplicity; and that Tarquinius Priscus in- troduced into it the superstitions of the Greeks and Hetruscans. I. 2. THE GODS, whom the Romans wor- shipped, were divided into the Dii Majorum Gen- fmm, or the great coclcstial deities, with the Dti Selecti: and the Dii Mlnorum Gentium, or the ui- ferior gods. The coelestial deities were twelve in number: Jupiter, the king of gods and men; Juno, his sister and wife; Minerva, the goddess of wisdom; Vesta, the goddess of fire; Ceres, the goddess of corn and husbandry; Neptune, the god of the sea; \^enus, the goddess of love and beauty; Vulcan, the god of fire; Mars, the eod of war; Mercury, the god of eloquence and trade; Apollo, the god of music, poetry, medicine and augury; and Diana, the goddess of the woods. The Dii Selecti were Saturn, the eod of time; Janus, the god of the year and Rhea his wife; Ruto, the king of the mfernal regions; Bacchus, the god of wine; Sol, the sun- Luna, the moon; and Genius, each man and each place's tutehu-y god. The Dii Minonun Gentium were the Dii Indigetes, or heroes ranked among the gods on account of their heroic virtues, as Hercules, Castor and Pollux, iEneas and Ro- mulus; the Dii Semones, or Semihommes, less than gods and greater than men, as Pan, Pomona, Flora, Terminus, the Nymphs. I. 3. lo . •jim-^tf.sjs'ii-oswsas^?''?-*^-' «"«*««S5 -«»j6»!s*#»aift>****'---- ■•*«*■-•* TT* THE CANON LAW. 99 riscus in- c Greeks lans wor- rum Gen- h the Dii or the in- re twelve and men; e goddebs re; Ceres, Neptune, ss of love Mars, the eloquence c, poetry, le goddess iaturn, the year, and lie infernal Sol, the each man i Minoriim oes ranked oic virtues, IS and Ro- mines, less 1, Pomona, 1. 3. To ij33««S»!iW: :Tr«?rSf r ' I. 3. To the service of these gods several col- leges of priests wcr^ dedicated: — Fifteen Pontiffs, whose office it Was to judge and determine on all sacred things; fifteen Augurs who, from the flight, chirping or feeding of birds, and fifteen Aruspices who, from entrails of victims, derived omens of futurity; the Quindecemviri, who had the care of the Sibylline books; the Septemviri, who prepared the sacred feasts; the Fratres Am- bervales, who offered up sacrifices for the fertility of the grounds; the Curiones, who officiated in the Curiae; the Feciales, or sacred persons em- ployed in declaring war and making peace; the Sodales Titii, whose office it was to preserve the sacred rites of the Sabines; and the Rex Sacro- rum, to whom that title was given from his per- forming certain sacred rites, which could only be performed by royal hands. In addition to these, each god had his Flamines, or particular priests. The six vestal virgins had the care of the sacred fire in the temple of Vesta, and the secret pledges of the eternal duration of Rome were intrusted to them. Ever}^ part of the empire abounded with temples and statues, and in every temple and statue a divine something was supposed to reside. When we consider the general absurdity of the pagan creed, we find it difficult to suppose, that any rational mind could seriously believe its doc- trines, or that it should become the national religion of m 100 Jlli: CANON LAW of a great and sensible people. Those doubts in crease on us, when we Fee how often the religious prejudices of the Romans were used by the leading men of Rome as an engine for political purposes; when we consider the ridicule with which the less and even the greater deities were treated by their poets, philosophers, and historians; and when we read the passages in the works of Cicero and other writers, in which, often indirectly, and sometimes in the most direct terms, they deliver it as their opinion, that, in religion there are many truths which it is not expedient the vulgar should know; iind many falsehoods which it is useful for the people to receive as truths. But there is reason to believe, that till the Greek philosophy found its way into Rome, the general body of the Romans was sincere in the worship of their gods; and that, even after the introduction of the Greek phi- losophy, the number of those who gave up the whole of the national creed was very small. A freedom, even from the lowest kind of superstition, is often mentioned by their writers as a great ef- fort of the human mind: and the writings of Cicero demonstratively prove, that those who re- jected the popular superstition, had no settled sys- tem of religious belief to substitute in its place. The total extirpation of pagan superstition, which pagan philosophy could not effect, it is the triumph of Christianity to have accomplished; and to havt introduced at the same time, a simple and sublimi religion. THE CANON LAW. 101 oubts in ! religious le leading purposes; ;h the less d by their when we and other sometimes it as their my truths uld know; ul for the is reason J found its e Romans ; and that, Irreek phi- ,ve up the small. A iperstition, a great ef- i^ritings of se who re- settled sys- 1 its place, ion, which he triumph ind to have nd sublimr religion. religion, accommodated to all persons, all times, and all circumstances, on which the weak and the strong may equally rely. * II. BY the law of Athens, the act of introducing foreign deities was punished with death. The la\\ of Rome was not so severe : Mosheim and Bynker- shoek seem to prove, that though the Romans would not allow any change to be made in the reli- gions which were publicly professed in the empire, nor any new form of wofship to be openly intro- duced, yet that, except when it threatened danger to the state, they granted a FREE TOLERA- TION OF FOREIGN WORSIHP not only to individuals but to bodies of men. The Christians, whose mild, unassuming, and benevolent morality entitled them to universal good will, were alone denied the benefit of this general toleration. From the reign of Nero, till tlie triumph of Constantine the Great over his rival Licinius, they were always treated with harshness, and re- peatedly suffered the severest persecutions. The favour of Constantine to them was, im- mediately after his first successes, shown by his • Beaufort, Rep. Rom. 1. 1. Adams's Roman Antiquities, 281—303. _ Q repealmg 1 I- 102 THE CANON LAW. repealing of the laws enacted against them. By the edict of Milan he restored them to all their civil and religious rights, and allowed them, in common with the rest of his subjects, the free choice and exercise of their religion. In the gene- ral dispensation of his favours, he held, v.ith an impartial hand, the balance between his christian and heathen subjects. His successors, except dur- ing the short interval of Julian's reign, strongly encouraged Christianity and discountenanced hea- thenism; and finally, by the edicts of Theodosius, the ancient worship of Rome was proscribed, and Christianity became t:ie established religion of the empire. Till those edicts, the spirit of polytheism, had lingered among the principal nobility of Rome; after them, it lingered among the Grecian philoso- phers: but by his edict in 5:^9, Justinian silenced the schools of Athens, and to that aera the final extinction of Paganism is always assigned.* * Francis Balduinua^ Conmentarim ad edicta im/ieralorem in CMitianoa, Edit. GundUng; Bynkershoek, Dissertatio de CuUuP.eresrintt ReSgionia afiud Romanoa, in 0/iuaculia, Lugd. Bat. 1719. Moaheim, de Rebua ChiHianorumante Conatanti- num Magnum, Commentarii, Helmstadii, 4to, 1753, c.\. sect. «.; Seculum firimunif 27—32. In his Six Lettera on Intole- rdnee, London, 1791, Sir Geo. Colebrooke has collected many curious facts to show, that the religious toleration of the Ro- mans was by no means so perfect as is generally thought. III. IN ^.^^vff!W7-"'"' ■ ■■'^^m^^r^f^TS^^^^^^'^^^^^^^^^^^^-' ^em. By I all their them, in I, the free the gene- l, with an > christian xept dur- 1, strongly need hea- lieodosius, •ibed, and ion of the olytheism, of Rome; m philoso- m silenced I the final £d.* im/ieralorem Dhaertatio de laculisf Lugd. te Constanti- i3, f. 1. sect, era on Intok' llected many on of the Re- thought. III. IN THE CANON LAW. III. 103 IN respect to the CHRISTIAN HIERAR- CHY, the Roman empire, at the time vvlien Chris- tianity obtained in it a legal establishment, under Constantine the great, had reached its utmost li- mits. It was divided into four Praefectures : the Easteni, which comprised the country between Thrace and Persia, the Caucasus and the Cataracts of the Nile; the Prsefecture of Illyricum, which comprised Pannonia, Dacia, Macedonia, and Greece ; the Praefecture of Italy, which comprised Italy, Rhoetia, the Islands of the Mediterranean, and the part of Africa from the westernmost mouth of the Nile to Tingitana ; and the Prefecture of the Gauls, which comprised Spain, Britain, and the part of Africa from Tingitana to the western ocean. Each praefecture was divided into several dioceses; each diocese into several provinces ; and in each province there was one, and sometimes more than one mother-town, on which other towns depended. The dioceses were thirteen in number, the pro- vinces one hundred and twenty. In the establishment of her hierarchy, the Chris- tian church, particularly in the east, appears to have conformed very much to this model. Before the translation of the seat of the Roman empire to Constantinople, the church had the three Partri- archates of Rome, Antioch, and Alexandria; after hs ai 104 THE CANON LAW. its translation, the bishops of Constantinople ac- quired importance ; by degrees they obtained eccle- siastical jurisdiction over Thrace, Asia, and Pontus, and were elevated to the rank of patriarch: after- wards, the same rank was conferred on the bishop of Jerusalem : and, according to Mr- Gibbon's ob- servation, (vol. 6. p. 378.), the Roman bishop wus always respected as the first of the five patriarchs. Thus, speaking generally, the patriarchs corre- sponded in rank with the prefects; in each diocese there was a primate ; in each province, one or more than one metropolitan; imd each metropolitan had under him a certain number of suffragan bishops. Regular funds, proportioned to their re- spective ranks, were appropriated for their support : except in cases of singular enormity they were exempted from the civil jurisdiction of the magis- trate ; and, in many other important articles, a dis- tinction between the clergy and the laity, wholly unknown in the law of heathen Rome, was ad- mitted into the Codes of the Cliristian emperors.* • Frederici Sfianhemif., Geografi/na Sacra, Distributio Dia- ceseon et Prm,inciarum, inde a Temtionbua Constantini Magnt in orbeutroque, orientaU et occidcntaU; inter Ofiera Omma, Lugduni Batavorum, fol. 1 vol. 75—204 ; Bingham's Anti- 'i/uitiea of the Christian Church, London, 1726. foL 2 vol. Hb. 9.; DuPin,de Antigud Eccleaix Discifilind, Par. 1686; .'<■- trua de la Marca, Concordia Sacerdotii atque Imjierii, fol. Paria, 1704. .IV. THE I «'*^l■ ■ '■ « ' ^ f ».:S i f9m :\ 'H%V<*f " ' ""T* THE CANON LAW. 107 STORI- f LAW, lent, the gins witl» ry, when made its century, 409; the (tends to HISTO- After kable for NERAL is called iputed to Clement, is the col- ;ally pro- reason for ice in the it; but, of the the ancient fathers, St. John Damascene alone has After done them that honour. From their being omit- ted in the canon of the New Testament, from the universal silence of the fathers of the three first ages respecting them', from the mention in them of many offices and customs, which there is every reason to suppose of a later origin, from no ap- peals having been made to them in the contro- versies which arose in time subscfjuent to them, and on which their language is decisive, and from no mention having been made of them in the synod held at Rome in 496, which mentions all the writ- ings of the Old and New Testament, they are now considered to have been fabricated. Bishop Beveredge, who has published them with learned notes, supposes they were framed under the sanc- tion of bishops, who held the sees founded by the apostles, and that they were collected towards the end of the second or beginning of the third cen- tury'. The first regular mention of them is found in the second council of Constantinople. The Greek church, at least since the synod in Trullo, in 692, has singularly respected them, and considered the 85 first of them as authentic: the Latin church seems to have admitted the 50 first of them. They were first printed at Venice in 1563, in 4to, and have often been reprinted. - 200 The Apostolic Constitutions are of high antiquity, have been much interpolated, and are of no au- thority. u? M mw •^ **i**«^'? -.i-'- .**«v* ■ ■m". log Tin: CANON LAW thority. It is supposed that they first appeared inj,';;^;, the fourth eentury. - - • 800 2. Hitherto, the canons spoken of are the canons of the general church : there also are CANONS OF PARTICULAR CHURCHES. In respect to the Greek Church, the first collec- tion of canons which has come down to us from the Greek church, is the Codex Ecclesia Ortentalts. It is supposed to have been first published in - 385 This collection contains 165 canons: 20 of them are canons of the general council of Nice; 24 arc canons of the council of Ancyra; U, are of the council of Neocesarsca; 20, of the council of Gan- gris- 25 of the council of Antioch; 59, of the council of Laodicca; and three of the first council of Constantinople. The council of Chalcedon men- tions this collection with' approbation. The second collection of canons of the Greek church is, the Codex Eccle,tce Universal. - 45 1 It comprises the canons in the precedmg collec- tion, with the addition of some .niitted canons of the council of Constantinople, some of the council ol Ephesus, and some of the council of Chalcedon. Both these collections are confined to the canons of the councUs of the orientiiU churches; but they bv Tin: CANON LAW WJ pcarcd in ^^^ 300 \Q canons ONHOF •St colicc- i from the entalis. It n - 385 of them ;; 24, arc ire of the il of Gan- )9, of the •st council edon men- thc Greek ing coUec- nons of the council of alcedon. the canons s; but they by 451 hy no means inchidc all the canons (jf all the AOtr touiuilsofthosc churches. c inst. About the middle of the M\th ccntur), John, tlien a priest of Antioch, afterwards patriarcli of Constantinople, published a collection of the Clitek canons, digested under fifty heads, atxordinj^ to the subjects of them. He afterwards puhlisiud an abridgment oi' it: the first is called his Cof/nfion of Canons; the second his A«we«6!*JB9«W«Wt'««*tw»''»-'' • ■ # IIQ THK CANON LAW wore published, at Oxford, by Dr. BevcrcdRC, Jit-^ aluruards Bishop ol St. Asaph, under the tule, ♦♦ PiimU'ctiC Canomtm Sanctorum J/mtnhrum ft •' Cnuciliorum nb Ecclesid Gra-cd nrt'ptorum.'' «' 'J'hose," says Van Espen, " who will read with " attention, the notes of the learned editor, will " find much very learned exposition of the canon •♦ law, and much instructive matter on other sub- »' jects, connected with the learning of the canons." " Bishop Beveredge's works," says L'Advocat, ♦* are written with so muc h dignity, majesty, learn- •' ing, and modesty, that he is thought, with reason, •• to be one of the greatest and most learned men ♦' whom England has produced. An epistolary cor- «* respondence was carried on between him and " Bossuet." .1. In the LATIN CHURCH, frequent mention is made of the Vetus Canonum Latinorum Edith. It was superseded by the collection made by Diony- siusExignus, about the beginning of the sixth cen- tury. That collection was afterwards enlarged by the decrees of Pope Symir- "hus, Pope Hormisdas, and Pope Gregory the Second. This collection was of great authority both in the Greek and the Latin churches. 4 Other Churches had their Collections of Canons. The CHURCH OF AFRICA had hers: ihtBreviatio Canonum of Fulgentius Ferran- (ItiSy and the Breviar'tum and Concordia Canonum of Cresconius are added to it. The -TtisT'^r-^i^^s^Br^w^^^^'i®®" fS^^m^msssM^^s^f^'^^^^^^^^ THE CANON LAW. Ill vcrcdffc, AfW' . . CliriX the title, hntm ft rtatl with itor, will the canon ither sub- cunoiiii." 'Advocat, ity, learn - th reason, rned men ;olary cor- [ him and it mention J Editio. It by Diony- : sixth cen- nlarged by [lormisdas, lection was i the Latin lections of RICJ had ius Ferrari- Canonum of The The CHURCH OF SP.IIX also had her col- Att.. Clirisf lection of canons. It is attributed to St. Isidore the Bishop of Seville ; from his diocese, he is fre(|uently distinguished by the appellation of Hispalensis. In 790, Pope Adrian presented Charlemagne with a collection of canons. It was composed of the collection of Dionysius Exiguus, and the epis- tles of several popes. At the council held at Canterbury in 873, a book of canons was produced and approved of; but we do not know what canons it contained. V. 2. 1. The MIDDLE PERIOD OF THE HIS- TORY OF THE CANON LAW commences with the ninth century, at the beginning of which, or towards the end of the preceding century, t/w col- lection of Isidore Peccator or Mercator probably made its appearance. - - - 750 It was brought from Spain into Germany by Riculphus, the bishop of Mayence. Who the compiler of it was, and why he assumed the name of Peccator or Mercator, are merely matters of conjecture. It sets out with describing the manner in which a council should be held ; then, the fifty first of the canons of the apostles follow: " De- " inde," says the author, *' quarumdam cpistolarum " decrcta !flS« ""'^fflSH^ -mstiss^ 'i:ss*»»a!M^ti»^a*%'^'93T3ft:nwisr*;."^ijffiji'^^^^^ ■ ! limp —-HI, il IJ2 THE CANON LAW. "dccrcta virorum apostolicorum inseruimus, idAfte>^ " est, Clementis, Anacleti, Evaristi, et c^eterorum "apostolicorum, quas potuimus hactenus repe- " lire, epistolas usque ad S} vestrem Papam." These are the celebrated decretals, concerning which, since the beginning of the sixteenth century, there has been so much dispute among the learned. They seem to kive made their first appearance m Germany: afterwards, to have been received m France; and, bv degrees, to have been received m everv part of the western church. For seven cen- turies after their first appearance, neither their au- thenticity nor their authority appears to have been questioned. . mi They were first attacked by MarciUus of Padua, then bv Cardinal Nicholas of Cusa, during the Council of Basil, and afterwards by Erasmus. In the celebrated Centuriators of Magdeburgh, in Blondel, and, lastly, in Van Espen, they have met with most powerful adversaries: in the author of the celebrated treatise, " Quis est Petrus," they have found both a zealous and an able advocate: but he seems to concede, that so much spunous- ness is proved on them as to make them, when they standalone, of no authority. They are followed by what are called the Capitularies of Adrian. - - ^ " . ^^^ The tenth century was famous for the Collection ^^^ qfRhegihon,AbhotofPrumia. - - ■fimmi^^mcmss^fi^w^^^^si^^f^*^''^^^^^^^^^ THE CANON LAW. 11: mUS, idAftei Christ iterorum IS repe- ti." ncerning century, ; learned, arance in reived in ceived in :ven cen- their au- lavc been Df Padua, aring the smus. In urgh, in have met author of us," they advocate : spurious- when they called the 845 Collection 906 The The eleventh, for the collection of Burchardus, After ' Christ. bishop of Wormes, entitled Magnum Decretorum seu Canonum Folumen. • - -^ 1000 The twelfth, for the collection of St. Ivo, the good lawyer. Two works are attributed to him : the Decretum Canonum, certahily belongs to him ; his right to the second, the Panomia, is uncertain. 1 100 2. We now come to the celebrated Decretum Gratiani, or the Concordia Discordantium Canonum. Gratian was a Benedictine monk, in a monastery of Bologna. His work is an epitome of Canon Law, drawn from the decrees of councils, the letters of pontiffs, and the writings of ancient doctors. Pope Eugenius the third was extremely satisfied with the work : and it was soon adopted in every part of the western church. - - 1150 It is divided into three parts: the first contains 101 distinctions or heads, and treats of the origin and different kinds of law, and particularly of the sources of ecclesiastical law, of persons in holy orders, and the hierarchy. The second contains 36 causes, as they are called, or particular cases, on which questions of difficulty arise: the third is divided into five distinctions, and contains a col- lection of canons relating to the consecration of churches, the sacraments, and the celebration of the divine office. The whole contains about 3000 canons or capitularies. Some are entitled Paleoe, ■ .s«s#»^Maci ^'i ^^ w s&nmt ^m m !&» ii s ^ sS ^ ^.W!as^!!i ^&msi^ ^^!^^«i^si^^ r" 114 THE CANON LAW. Palcoe, the meaning of which word is not yet as- certained by the learned. This celebrated collection abounds with errors. Towards the middle of the sixteenth century, An- tonius Demochares and Antonius Contius, the former a divine, the latter a canonist, published a corrected edition of it. A more correct edition of it we owe to the council of Trent. By a decree of that council, it was ordered that correct editions of missals, bre- viaries, and otacr books relating to ecclesiitstical matters should be published. In consequence of this decree, pope Pius the fourth engaged several learned men in the correc- tion of the decree of Giatian. The work was con- tinued through the pontificate of Pius the fifth. Gregory the thirteenth, the immediate successor of Pius the fifth, when a cardinal, had been em- ployed on the work: under his auspices, it was finally published about the year - - 1580 Several faulty passages still remain in the work. - Many of them have been pointed out by Antonius Augustinus, the Archbishop of Tairagon, in his learned and entertaining dialogues on the Emenda- tion of Gratian. Such is the celebrated decree of Gratian, which for 800 years, has, in every country in Christendom, been considered a valuable repository of Canon I,.,^v. —To the compilations of Isidore and Gratian, onfi **iii. THE CANON LAW. 115 Dt yet as- Afler Christ th errors, tury, An- itius, the iblished a i^e to the :ouncil, it isals, bre- :lesijistical Pius the le correc- was con- the fiftli. successor been ern- es, it was the work. Antonius ;on, in his ; Emenda- ian, which ristendom, of Canon id Gratian, one 1580 one of the greatest misfortunes of the church, the Aftei^^ claim of the popes to temporal power by divine right, may in some measure be attributed. That a claim so unfounded and so impious, so detrimen- tal to religion, and so hostile to the peace of the world, should have been made, is strange — stranger yet, is the success it met with. It was soon observed, that the author had omit- ted in his collection several important arti s. This gave rise to subsequent collections, i ne principal of them are the Breviari hi of Bernardus Papiensis, and the Collections of Jc'iomics Galensis and Peter Bentfventanus. Of these, the last only was formally approved by the see of Rome. Pope Innocent the third published a collection of his own decretal epistles. His example was followed by Honorius the third, his immediate successor. From these five collections, and from some de- cretals of his own, pope Gregory the ninth com- missioned St. Raymond of Pennafort, a Domini- can, to form a new collection of canons. He executed the work greatly to the satisfaction of his holiness; and, under his auspices, it was pub- lished about the year 1230, under the title Libri qu'mque Decretaliiim Gregorii Noni. It contains all the decrees of the council of Lateran, and the de- cisions of many popes on particular cases. It is divided into five books. - - 1230 A further addition to the code of Canon Law was made bj' pope Boniface the Kighth. It con- tains • ~iwm«!>(i%s-,>wa8«a-#«»fe»«ww?w»w»«^ss*«sa™«sw^!nsEP«E^^ Uj^ THE CANON LAW. tains the decretals of all the popes, subsequent to Aik.^ Gregory the Ninth, and the decretals of that pope. It is called Liber Sextus Decretalium, and was published in - - On account of the differences between pope Bo- niface and Philip the Fair, it was not received in France. The Liber Sextus Decretalium is followed by the collection, called sometimes Liber Septimus Decretalium, and sometimes dementis Papa; Con- stitutiones. It was framed by pope Clement the Fil:h; and consists of his own decretals, particularly the canons of the council of Vienne, at which he presided. He promulgated it in - - 1313 The last article in the code of Canon Law is the Extravagautes. At first, every collection of Canoii Law, except the decree of Gratian, was ranked among the Extravagantes. In the course of time, that name remained only to the collection of which we are now speaking. It is divided into two ar- tides, the Extravagantes Joannis XXIL, or the decretals of that pope, published by him about the year 1340 And the Extravagantes Communes, consisting ot the decrees of popes from Urban the Sixth to Sixtus the Fourth. It was published about the year - 1483 Neither of them is considered to be of autho- rity. The first, (published under the name of pope John the twenty-second,) was never ' ^ formally «•" •mmf THE CANON LAW. 117 quent toAiiei ^ Christ. [lat pope, and was pope Bo- 131;5 :,eived in owed by Septimus apa Con- ment the Tticulurly which he ^aw is the of Canon js ranked ; of time, I of which two ar- /., or the about the 1340 nsisting of 1 to Sixtus ear - 148o of autho- name of 'as never formally formally approved of or sanctioned by him, and the After author of the latter collection is wholly unknown. ^*'"'*- A collection by Peter Matthtei was published in 1590 In some modern editions of the Corpus Juris Canonici, it is inserted under the title of the Liber Septimus Decretalium. With these, what is called the Corpus Juris Canonici and the middle period of the history of the Canon Law closes. But mention sWuld also be made of the Insti- tutioncs Juris Canonici, a compendium of Canon Law, published by Lancellot, a lawyer of Perugium, in 1563. By the direction of pope Pius the fifth, but without any confirmation of it by him, it was subjoined to the Corpus Juris Canonici, and has been published with it. " The Roman pontiffs,*' says Arthur Duck, (de Auctoritate Juris Civilis, lib. 1. c. 6. tit. 8.) " effected that, in the church, " which Justinian effected in the Roman empire : " they caused Gratian's Decree to be published itt " imitation of the Pandects; the Decretals, in •' imitation of the Code; the Clementinae and " Extravagantes, in imitation of the Novells; and " to perfect the work, Paul the Fourth ordered " Lancellot to compose the Institutes; and under " Gregory the Thirteenth, they were published " at Rome, and added to the Corpus Juris Ca- " nonici." In the edition of the Institutifxis of S Lancellot, ^^:^m^'~ 5*«aSite**»«*9«-,#tftSS«tt,^^te*rv»ft^€r<,.it:.Ja^^=^^ 118 THE CANON LAW Lancellot, published in 1584, and in several sub- sequent editions, it is accompanied with a perpetual closs, and followed by a commentary, written by Lancellot, which gives an account of the rise and progress of the work; and by a comparison ot the Civil and Canon Law, also written by him. „■ . . V. 3. THE MODERN PERIOD OF THE CA- NON Z*///r begins with the Council of Pisa, and extends to the present time. The principal articles of canonical learning, which have appeared during this jjeriod, are, . 1 The various Transactions [e] and Concordats be- tweensovereigns, and the See of Borne' ;-'^^nccmcl and impartial history of them is wanting: the i«i- pal arrangements wiUi Bonaparte would not be the least curious parts of such a work. 2. The Councils of Basil, Fisu, Constance, and Trent. i ' * ••? Separate histories have been written of the councils of Basil, Pisa, and Constanqe, by M. L'Enfant, a Lutheran minister: that of the coun- cil of Constance is the best written; it contains an account of a fact of importance to the English nation, but not generally mentioned by her ns- torians —that the French ambassadors contended, before 'the council of Constance, tli^.t Christendom ^e^ The word Tramaction here means an agreement in uhich controvened matters are finally settled; it is a techni^ ral law term in the civil law, synonymous to the word>. at common law. Concordat is a word of similar import; both ancan a settlement or compromise,^««/«co«corrf/«, 2 BUckst. Com. 351. was ■-wmrtm ^^smm^^s^^^ THE CANON LAW. 119 'eral sub- perpetual vritten by rise and ion of the "HE CA- • Pisa, and learning, are, icordatsbe- -a succinct g: tl'.e pu- uot be the stance, and ten of the [;e, by M. the coun- it contains he English by her his- contended, ;hristendom agreement in it is a techni- le word, fine at import; both rrf/'«,2 Blackst. nas divided into the four great nations of Europe, Italy, Germany, France, and Spain; and that all the lesser nations, among which they reckoned England, were comprehended under one or other of them ; but the English asserted, and their claim was allowed by the council, that the British Islands should be considered a fifth and co-ordinate na- tion, and entitled to an equal vote with the others. — In the different atmospheres of Venice and Rome, the history of the council of Trent has been written by the celebrated Fni Paolo, (the translation of whose work, with notes by Dr. Courayer, is more valued than the oiiginal), and by cardinal Pallavicini. The Cardinal does not dissemble, that some of the iei*-ai!#aip!m^ 122 TIIK CANON LAW. « in parliament, it has been solemnly adjudged " upon the principles of law and the constitution, " that where they are not merely declaratory of ♦' the ancient Canon Law, but are introductory of " new regulations, they do not bind the laity ; " whatever regard the clergy may think proper to "pay them." » . i. ^ %. 'U '>< VI. ',»',s"rii^j{i With respect to the AUTHORITY OF THE CANON LAW, from which, in the present case, the part of it anterior to Gratian's decree, and sub- sequent to the Extravaguntes Communes, must be excluded; it is composed of texts out of the Bible, passages from the writings of the fathers, the canons of genera! and particular councils, the decrees and rescripts of popes, and various other insertions and extracts. In each of these particulars, it possesses all the authority, which the extract itself has; besides which, it possesses all the weight and authority, which it has acquired, by its having been so much adopted by courts, appealed to in disputes, taught in the schools, and praised and commented upon by the learned men of every state of Christendom. With more or less limitation, it forms the basis of the ec- clesiastical law of every country, where the Roman Catholic religion is professed; and, speaking gene- rallv, -yi^'^^s THE CANON LAW. lS.'i idjiidgcd lititution, ratory of Lictory of le laity ; proper to DF THE sent case, , and sub- i, must be the Bible, ;he canons crees and rtions and )ssesses all i; besides authority, 1 so much i, taught in ipon by the )m. With s of the ec- the Roman king gene- rallv, rally, in protcstant countries, it has t»- force of law, when it is not repugnant to the law of the land.* • The works, principally used in framing this account arc, Fieury'fi Irmtiiuliont, tin Droit Mrclfiiia»ti(/ue i hU Diacour* Hur I'HiHtoirf Kcclmiaaliijue; bUlio/i (iibaott'ii teamed but very high-church Preface to hit Coder Juris Eccleaiattici jIngH- cuni s lord Hardwicke'a argument in the cane qf Mtddleton v. Crq/it, 2 ^tt. 650; Pehem'a Pralectionea in Jua Ecclena»ti- cum Univertum, Luvanii, 4 vol. Hvo, 1787; Boehner, Jut Kccleaiatticum Protentuntium Hultt Mugdeburgict, 6 voi. 4to^ 1756; Gerhard Von Afaalricht Iliatoria Juria Eccleaiaatici et Pontijicii, Duiaburgii ad Phenum, Oct. 1676; Doujat'a Ilia- toire du Droit Canoni(/ue, Paria, 8vo, 1677; Van Pa/ien'a Jua Krcleaiaaticum Univeraum, I.ovanii, 6 vol. fol. 1753, a work, which, for depth and extent of research, clearness of method, and perapicuity of style, equals any work of ju- risprudence which has issued from the press ; but which, in some places, where the author's dreary Jansenism prevails, must be read with disgust : — a methodical and learned work with this tit;e, " Quia eat Petrua? Seu Qualia Petri Prima- " tua? lAber Theologico-Canonico Catho/icua. Editio aecunda, " correctior et emendatior, cum ^fi/irobatione, Hatiabonae, " 1791 ;".the ablest work, in support of the papal preroga- tives against the doctrines of the Sorbonnc, which has come to the writer's knowledge. His account of Isidore's Decre- tals is particularly interesting. The Religionia Xaturalia et Rn>elatt Prind/iia of Doctor Nooke, Paria, 3 vola. 8vo, 1774; the third volume of this work is, perhaps, the best treatise extant, on the ecclesiastical polity of the church, ac- cording to the notions of the Sorbonnists. It deserves to be more known in this count ly ; it must have given the Fiencli divines an high opinion of the perspicuity and preribjon of English writing. ' 'lr^^ -• i^• < t \>ml»>^|u:r-^4iy.^i,l*>H^•>^,^~>*ln^n^ ^ APPENDIX. NOTE I. The exclusive dominion and property OF THE BRITISH SEAS U one of the most splendid and v«luabl0 prerogatires of the Crown of England^The fol- lowing account of it is token from a note to that part of the fourteenth edlUon of Coke upon Uttleton, which was executed by the present writer. « The Jus MAHts of the king may be considered under the two-fold distinction, of the narA< of jurisdiction, ytYach. he exercises by his admiral, ond hi, right qffirofiriety or own- eriUfi. Wtrn MBSPBcr ro rug mcHt or sfURiaotcrios, the sub- ject is elaborately discussed by Mr. Selden, in his Mare Clau- ,um, a noble exer ion of a vigorous mind, fraught with pro- found and extensive erudidon. In the first part of it, he attempts to prove, that the sea is susceptible of separate dominion. In Uas, he has to combat the opposite opirion of almost all civilians, and particularly the celebrated decla- ration ofoneoftheAntonines,(L. 9. D. De Lege Rhodift) « Ego (juidem mundi dominut, lex autem nuiris, tsV." by which the emperor has been generally considered to have <\h .Aimed any right to the dominion of the sea. For a dif- ferent interpretation of this law, Mr. Selden argues witii great ingenuity. In this, he is followed, in some measure, bv • :3;^jfef ;;5Jj ^g^m'^^^msm^^i^-^ AFPKNUIX. '.25 3PERTY Icndid and -The fol- lart of the I executed ired under , which he ty or own- Sf the sub- Mare Clau- i with pro- t of it, he of tepamte opirion of ated decla- re KhodiJL) red to have , For a dif- argues with ne measure, by l>y Byiikershoek, in his ircutiHc I)r Lrgr Hhodid : «' Plus momenti," says he, " adferre videntur " gentium testinumia, quae illud Anglorum imperium ag- « novcre. De cot\fessionihus loquor non injuria extortis, " sed libcrc c. sponte foctis. Esse autem hujusmodi " qii uidam confessiones, neutiquam negari poterit." After • his acknowledgment, corroborated »^ it is by other argu- 'I' nicnts i ..•mmmmimmm J26 APPENDIX. ments used by Mr. Sclden, many will think his positions completely established. The chief objection made by Byn- kershoek to the right of the crown of England to the domi- nion of the sea is, the want of uninterrupted possetision, as he terms it, of that dominion. " So long as a nation has pos- u session of the sea, just so long," says Bynkershoek, « she « holds its dominion. But to constitute this possession, it is u necessaiy tnat her navies should keep from it the navies of u all oilier nations, and should themselves completely and « incessantly navigate it, avowedly in the act or for the « purpose of asserting her sovereignty to it." This, he con- tends, has not been done by the English; on this ground therefore he objects to the right of dominion of the Enghsh sea ; and on the same ground he objects to the right of the Ve- netians to the dominion of the Adriatic, and to the right ol the Genoese to the dominion of the Ligustic. But this seems carrying the matter too far. If it be admitted, (of which there unquestionably are many instances), that the sovereign pow- er of a state may restrain her own subjects from navigating particular seas, she may also engage for their not doing it, in her treaties with other nations. It can never be contended, that after such a treaty is entered into, the acts of possession mentioned by Bynkershock are necessary to give it effect and continuance, unless this also makes a part of the treaty. It is sufficient, if the acts of possession are so often repeated, as is necessary to preventthe loss of the right, from the want of exercise of it. In those cases, therefore, where the treaty itself, establishing the exclusive dominion we are speaking of. ^'-r -mi-^vmiMS^ s positions ie by Byn- 1 the domi- iseiision, as on has pos- loek, " she ession, it is le navies of pletely and or for the lis, he con- this ground the English It of the Ve- the right of it this seems ■ which there 'ereign pow- tn navigating >t doing it, in e contended, of possession rive it effect if the treaty, ftcn repeated, from the want ;re the treaty are speaking of. APPENDIX. 127 oi, is procUiced, the continued and uninterrupted possession mentioned by Bynkershock cannot be necessary. But public rights, even the most certain and incontestible, dcjiend often on no other foundations than presumption and usage. The boundaries of territories by land, freciuently depend on no other Utle. Then, if Bynkershoek be right in his position, that the sea is susceptible of dominion, should not mere pre- scription and usage in this, as in any other case, be sufficient to constitute a right? Upon what ground are the continued and uninterrupted acts of possession, mentioned by BynUer- shoek, required to constitute a title in this, more than in any other case of public concern ? If this be thought a satisfactory answer to the objection made by Bynkershoek, the remaining difference between him and Mr. Selden, respecting the right of the British monarch to this splendid and important royalty ^v^\] be inconsiderable. It is to be added, that Mr. Seldcn's treatise was thought so important to the cause, in support of which it was written, that a copy of it was directed to be de- posited in the Admiralty. Those who wish to procure it, in an English translation, should prefer the translation pub- lished in 1633, by a person under the initials of J. H. to that by Marchemont Needham. On this subject (with the excep- tion of Sir Philip Medows) subsequent writers have done little more than copy from Selden. The subject, however, is far from being exhausted. The system adopted by Sir Philip Medows, in his Observations concerning the Dominion and Sovereignty of the Seas, printed in 1,689, is more mode- rate than Mr. Selden's. He calls in question, at least indi- recllv, **wnj*lV^'^i-v*aiK vjiTs " *v^J^^- i^jipT^i."'.,^l.lis;^SS5jM(ti.5B^ ;L*;^ Jy ^^y^i^tlUAtfl'. ■-:?s~-,;ry(K*.w^»*^si«^iv,*iiW.,Vi^^U^.,V: » wn ^ - pia ww— wa.a J28 APPKNDIX. rcclly, a material part of Mr. ScUlen's positions, and place, the ri.'htof the kings of England to the dominion of the sea upon a much narrower ground. He confines it to a right ol excluding all foreign ships of war fron. passing upon any of the seas of England, without special licence for that purpose first obtained; in the sole marine jurisdiction, within those seas; and in an appropriate fishery. He denies that the salu- taUon at sea, by the flag and topsail, has any relation to the do- minion of the sea ; and he asserts, that, it was never covenant- cd in any of the public treaties, except those with the United Netherlands, and never in any of these till the year 1654; he contends it is not a recognition of sovereignty, but at most an acknowledgment of preeminence. His t.eatise is deservedly held in great estimation." NOTE II. THE ALPS begin with Col del Angentera, which lies t» the west of a supposed line from Monaco to the Mons V isu- lus, or Monte Viso. Thence, they proceed, in a semicircular Unl of about 500 miles, first on the south-eastern limits of France, afterwards on the southern limits of Swisserland, the Orisons, and the Tyrol, and then on the western limits of Sty- ria, Carinthia and Carniola to the Sinus Flanaticus, or the Chilph of Corncro on the Hudriatic. 1. Tho APPENDIX. 129 ind places of the sea a right of pon any of lat purpose ithin those lat the salu- )n to the do- ;r covenant- ithe United ar 1654; he It at most an } deservedly which lies t« Mons V'isu- i semicircular tern limits of dsserland, the limits of Sty- laticus, or the 1. The iS^^& 1. The Alfxes Maritime take their name from the sen of Genoa, and extend from it up to Mons Visuhis or Monte Viso. The most noted mountains in this part of the Alps are the Camcilon and the Tendfi. 2. The Cottian Mfm reach from Monte Viso to Mount Cenis ; they received their appellation from a territory of that name, of which Suza was the metropolis ; they contain the Mons Matrona, or the Mont Genevre, where the river Durance springs. 3. The Mfiea Grata extend over Le Petit St. Bernard, the scene of the martyrdom of the Theban legion, to the Mons Jovis, or Le Grand St. Bernard. Hitherto the direction of the Alps is to the" north. 4. On the northern side of that part of the Rhone, whicli flows over the Valais into the lake of Geneva, are the Jlfiex Helvetica i on its southern side are the jll/ie Penninx, tlic eastern chain of which is called Mfiea Lefiontince : they ex- tend to the Mons Summus, or Mont St. Gothard. 5. The Mfiea Rhxticx extend from Mont St. Gothard over the Mons Adula, or the Adule, where the two fountains ol the Rhine arise, to the source of the Drave. A motmtainous country to the south of them, where the town of Trent lies, was called the Mfies Tridentinx. 6. The jll/tea Mricte lie on the north of the Drave, and extend over parts of Austria, Styria, and Carinthia ; not Au from the close of them the Alfiea Pannonica or Kahlemburgh mountains rise. The M/iea Baatamka are the Carpathian mountains, the boundary of Hungary on the norlli and east. 7. The Al/iea Camica lie on the south of the Drave, and reach to Nauportus or Leyback, where the Alpine heights of 130 APPENDIX. of Italy properly close. Two ranges of mountains proceed from them ; the Allies Venette, which extend into the Vene- tian possessions on the Terra Firma, and the Al/ies Julia which are spread over the country from I'orum Julii, or Friuli, to the eastern extremity of the Hadriatic. Where the Alpes Caniicx end, the Mona Mbim begins : the Jtljies Sebiang, or the W elebitchian, or Murlakan moun- tains proceed from it, and extend southerly in a line of about •lOO miles over Illyricum to Mona Orbelus, whence they branch into the Rhodope and Haemus. Such is the chain of the Alps. The Jfienninea are of equal celebrity. They rise in the Col della Tenda; after stretching on the east of the supposed line from the Portus Monxci to Mons Vesulus, along the Gulph of Genoa, at no great dis- tance from the coast, they proceed eastwardly to the centre of Italy, and afterwards to the south, always approaching near- er to the eastern than to the western coast. After they arrive at the MoasGargarous, they take acouth-wcsternly direction, and reach the Calabrian extremities of Italy. This account of the Alps is taken from Cluveriua'a Ital. Ant. lib. 1. ch. 30, 31, 32 ; Cellariua'a Geog. Ant. lib. 2; Busching'a Geografihy ; Cliau- chard'a Math tmbliahed by Stockdale ; Bergier'a Hiatoire des Granda Chemins de I'Jim/tire Komain, 2 vol. 4to, Bruaaellea, .1738; and Mr. Pinkerton'a Geograj.hy, a work of great merit. NOTE III. THE following account of the PRiETOR's JUDICIAL POWER, and its variations, is given by Doctor Bevcr, in "Sycsi Ufiea Julix ti Julii, or M« begins : kan moun- ne of about lence they re of equal r stretching Monxci to » great dis- > the centre ching near- ley arrive at irection, and count of the . 30,31,32; fihy ; ChaU' Histoire de» , BruaselleSf 'great merit. JUDICIAL DCtor Bevcr, in APPENDIX. 131 in his History of the Legal Polity of the Roman State, B. ii. c. 6. " Originally, no more than one prsetor was appointed ; but, as the splendour and reputation of this illustrious city daily drew to it a vast conflux of strangers, the judicial bu- siness increased beyond the power of a single magistmte to dispatch. This demanded, therefore, the creation of a second, to preside over the causes of foreigners; from whence he was called " Praetor Peregrinus," to distinguish him from the former, who, from the particular objects of his magistraf cy, was styled « Urbanus." When the empire received a fur- ther augmentation from the conquered provinces, each of these was allowed its provincial judge, with similar title and power. Another centuiy introduced a new refinement upon this institution. As Uie objects of judicature, both criminal and civil, multiplied apace, and a great variety of new causes arose, very distinct in their nature from each other, for the more easy and expeditious adr.iinistration of justice, it was found necessaiy to throw them into distinct classes, called «< Qusstioncs," and to assign particular jurisdictions and judges to each, who were intituled Prstors and Quaesitors. These were obliged to exercise their respective jurisdictions within the city for the space of one year, after which they were dismissed into their several provinces, under the cha- ra. ter of Propraetors. These great ofiictrs, of whatever rank or denomination, were first elected by the people, in the " comitia centuriata ;" but the right of assigning them to their particular provinces belonged to the senate. The ^i 132 APPENDIX The pi-jEtoriun edicts, which constitute that branch of the old civil law now under consideration, were certain rules ov forms, published by cvei7 praetor at the entrance upon his office, on the calends of January, signifying the methods whereby he p-oposed to administer justice during that year. These were hung up in the public court in a white table, for the inspection of suitors and practitioners; but the authority cf them lasted no longer than the office itself, unless they re- ceived a fresh ratification from the successor, and in that case they were called " Edieta Translatitia." The praetor had no power to abrogate or alter the laws, but only to temper them with equity, to apply them to the particular cases before him, according to his own ideas of justice, and to supply whatever was wanting, to give them their full and proper effect. His edicts, therefore, were consi- dered only as the voice of the law, but not law in its most comprehensive meaning, unless they happened to be adopted and continued by succeeding magistrates; under which qua- lified chai-acter only they are considered by Justinian him- self. But notwithstancUng their inferiority of rank in the scale of legislation, they were yet held in the highest esteem by some of the greatest princes and statesmen in after times, and by none more than himself, as appears from his in- serung so large a r"mber of them in the Digest. In process of time, indeed, as the age grew more corrupt, and as these judges were more intent upon their own private views and emoluments than upon a punctual and faithful ad- ministration of justice, they were very apt to vary even from their own edicts, when it happened to suit the convenience and ^^si^^^B^i ■J«8s*i»S5;; ■ brdiich of the ertain rules or •ance upon his f the methods iring that year white table, for It the authority unless they re- )r, and in thai APPENDIX. J 33 und interest of their friends or themselves. This opened a door to many shameful acts of injustice, and once more called forth that truly patrioUc tribune, Caius Cornelius, un- der whose influence a law was enacted, to oblige the pr«tors to adhere to certain established rules, and not to depart from those which they themselves had laid down, at the entrance upon their respective magistracies." alter the laws, y them to the is own ideas of , to give them are, were consi- aw in its most ed to be adopted nder which (lua- Justinian him- of rank in the ! highest esteem n in after times, irs from his in- gest. w more corrupt, heir own private 1 and faithful ad- 3 vary even from the convenience and NOTE IV. THE following account of THE MODES OF QUOTING THE CIVIL AND CANON LA\\\i is taken from Dr. Halitfax'H Analysis of the Roman Civil Law, Camb. 1775, Note on page 2. It may not be amiss, for the sake of beginners, to explain here the method of quoting the several parts, which now compose the Corpus Juris Romano-Civilis. The Institu- TiONs are contained in Four Books: each Book is divided into Titles; asid each Title into Paragraphs; of which the first, described by the Lettera fir. or Mncifi. is not numbered. The Digests or Pandects are in Fifty Books: each Book is distributed into Titles; each Title into Laws; and, very frequently. Laws into Paragraphs, of which the first is not numbered. The Code is comprized in Twelve Books; each of which is divided, like the Digests, into Titles and Laws ; and, sometimes. Laws into Paragraphs. The Novels are dis- tinguished bjr their Number, Chapter and Paragraph. ^' The m- 134 APPENDIX. The old way of quoting was much morr troublesome, by only mentioning the Number, or initial Words, of the Para- graph or Law, without expressing the number either of Book or Title. Thus, § i>i advermta 12 lm\ dr J'fufitih means the 12th Paragraph of the Title in the Institutions d'- JVu/i:ih, which paragraph begins with the Words « adveraun i and which a motlem Civilian would cite thus, I. I. 10. 12. So /. 30 n. dr R. J. signifies the .30th Law of the Title in the Di- gests df Regulis Juiin: according to the modern way, thus, D. .0. ir. .-JO. Again, /. 5. § 3. J. de Jurejur. means the 3d paragraph of the .".th Law of the Title in the Digests de Jurejurando: better thus, D. 12. 2. 5. 3. And here note, that the Digests are sometimes referred to, as in the last instance, by a double/; and at other times by the Greek n or «. [/] The method of quoting the Roman Canon Law is as fol- lows. The Decree, as said above, consists of Three Parts; of which the first contains 101 Distinctions, each Distinction being sub-divided into Canons: thus 1 dUt. c. 3. Lrx (or 1 d. Lex) is the first Distinction, anff 3d Canon, beginning with the word Lex. The second part of the Decree contains 36 Causes ; each Cause comprehending several Questions, and each Question several Canons: thus 3. nu. 9. c. 2. Cavrant is Cause the 3d, Question the "^th, and Canon the 2d, begin- ning with Caveant. The third part of the Decree contains i Distinctions, and is quoted as the first part, with the addition of the words de Con sec rati one, thus de Coruecr. diat. 2. can. Quit' or/tua (or can. Quia ro pus 35 dist. 2. d. Con«e'cr.) means [/I The mavkiT by wliicli the DiKests are now generally quoted, ovlginated From an error of the first law printers, who mistook the C'.rcck II li.-istih v.iitlenfor adoiiWe fl'. the lublesome, by I, of the I'ara- either of Hook »V« means the »n» dr JVu/i.iin, idveroun ; and 10. 12. So /. 'itle in the Di- em way, thus, means the 3d the Digests de here note, that le last instance* k n or «. [/] Law is as fol- f Three Parts; ich Distinction . 3. Lfx (or 1 beginning with ree contains 36 Questions, and ». f. 2. Cavrant I the 2d, begin- ;ree contains i ith the addition :r. (list. 2. can. Con«tfcr.) means generally quoted, who mistook the APPENDIX. 135 the 3d Distinction, and the 35th Canon, of the Treatise d, Connecraimu; which Canon begins with Quia cor/im. The Dkcretals are in Three Parts; of which the first contains Gregory's Decretals in 5 Books; each Ixwk being divided into Titles, and each Title into Chapters : And these are cited by the name of the Title, and the number of the CJjapter, with the addition of the word Extra, or the capital letter X : thus r. 3. Kxtra de Usuris is the 3d Chapter of the Title in Gregory's Decretals, which is inscribed de Uau- ri»i which Title, by looking into the Index, is found to be the 19th of the 5th Book. Thus also, c. cum contingat 36. X. de Offic. is- Pot. Jud. Del. is the 36th Chapter, beginning with Cum contingat, of the Title, in Gregory's Decretals, which is inscribed de Officio et Potestaie Judicin Delegati; and which, by consulting the Index, we find is the 29th Title of the 1st Book. The Sixth Decretal, and the Clementine Constitutions, each consisUng of 5 Books, arc quoted in the same manner as Gregory's Decretals; only, instead of F.xtra or X, there is subjoined in sexto, or in 6. and in Clementinis or in Ckni. according as either part is referred to: thus, c. «i ^-^atio^ie 5. de Uracri/it. in 6. is the 5th Chapter, beginning with Si gra- tioae, of the Title de Rencri/itia, in the 6th Decretal; the Title so inscribed being the 3d of the 1st Book: And Clem. 1. de Sent, et Re Judic. (or de Snit. .i R. J. ut caliimnii,. in Clem.) (or c. ut calumniii,. 1. de sent, et R. J. in Clem.) is the 1st Chapter of the Clementine Constitutions, under the Title de Srn.entid et '-'r Judicata; which Chapter begins with Uf calumniin, and bcjfmgs to the I Ith .Title of the 2d Book, • the the m" r 135 APPENDIX. The ExTliAVAaAMTiiof John the 33d arc coiiUtncd in one Book, divided into U Titlen: thus Hxtravug. M Conditorem. Joh. 22. df V. S. means the Chapter, beginning with ^ Con- (Ulorrm, of the Extravagantsof John i2d; Title, de Vrrborum Stgmjicatiombut. Lastly, the ExtravaRants of later Popes are called Communm: being distribute*! into 5 Books, and these again into Titles and Chapters : thus Exiravafc- Commun. c. Salvator.