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Bouchette, Esq., • " • • •• « u* ••••• •»• ••• • •••• li THE JUSTINIAN PANDECTS-THEIR ORIGIN, PROGRESS AND COMPLETION. Paper read before the Society, By R. S. M. Boucjiettb, Esq., 2sd V. P. The subject which it is my intention to bring under your consideration this evening is, as announced in the public notice given by the Society, "The Justinian Pandects." As thus foreshadowed, however, the subject assumes so broad and comprehensive a shape, that I hasten to explain that the paper which I am about to read, aims not at any recondite investigation into or learned exposition of the laws themselves, contained in those renowned volumes of legal wisdom, known as the Corpus Juris Civilis ; my pre- sent purpose aspires to nothing beyond giving a brif^ and succinct historical outline of the origin, progress and com- pletion, of that great legal work as achieved by the Emperor Justinian in the early part of the 6th Century of the Chris- tian Era. Myself, but a very humble, though somewhat ardent, vo- tary on the threshold of that vast Temple of Jurisprudence reared by Justinian, I have little more than contemplated with admiration some of its legal and philosophical splen- dours ; but I was early taught to reverence the laws of the Roman Empire, and to make a knowledge of those laws the foundation of my professional studies. — 4- The humble disciple of an eminent Jurist and Orator, one who would have ranked with the Sc^volas in the Eternal City during the palmiest days of its forensic glory, I had at least the inestimable advantage of finding in him a guide and patron, who was at once an accomplished Scholar and profound Legist ; one to whom and to whose teachings I am indebted for the deep interest I so early felt in the study of the Civil Law. I need but mention his name to a Canadian audie'ice, and especially in Quebec, to obtain universal assent to this passing estimate of his trans- cending forensic powers, to which he added great benevo- lence of heart. I allude to the late lamented Andrew Stuart, Solicitor General, whose memory is still so fondly cherished in Canada. Apologizing for this digression, I will, with your leave, proceed with my subject. The Code, the Pandects and the Institutes, of which I shall more fully ppeak in the sequel, appeared in Cons/ an ti- nople, and were promulgated as the Laws of the Roman Empire, between the years 527 and 534 of the present Era, or nearly thirteen Centuries after the foundation of Rome. By the Code and the Pandects all other antecedent laws were solemny abrogated, and so rigorous, indeed, was the injunction to abstain from any application of the repealed laWs, that the breach of that injunction was declared to be a crime amounting to Fraud or Forgery — fahi reus est qui ahrogatis legibus utitur. It will ,be, however, neither uninteresting nor uninstruc- tive, to take a brief retrospect of Roman Jurisprudence, antecedently to the days of Justinian, and to examine what were tliclaws thus bodily consigned to oblivion, after escap- ing that wide and desolating ruin which the ruthless hand of the barbarian spread over fair Italy, and which shook the — 6 — "Western Empire to its very foundaticns and succeeded at last in its total overthrow towards the close of the 6th Century. Nor had the new Code which had been gleaned from the wisdom of the ancient legal lore of Rome, perils of a less imminent character to encounter from the degenerate and barbarized Greeks, the Persians, the Tartars and other Asiatic nations who consummated the extinction of the Empire of the East in 1458, when Mahomet the Second stormed and plundered Constantinople, banished the insignia of the Cross, and in the place of that emblem of Christianity exalted the Crescent which now adorns the Mosques and Minarets of the far famed Byzantium. That these abrogated laws were voluminous, we are justi- lied in believing upon the authority of Justinian himself, who informs us in his solemn confirmation of the Pandects, that nearly 2000 Books, containing upwards of 3,000,000 of lines {tricenties dena millia versuum) were necessarily ex- plored by the compilers of the Digest and condenbed within the compass of 50 books and about 150,000 lines. In the first book of the Digest, we find a succinct a'icount of the origin and progress of the Civil Law, and of the succession of magistrates and eminent Jurists who flourished from the days of Papirius down to the time of Justinian. BoiTOwed from the writings of the celebrated Pomponius and followed by Gains, this title offers at once a clear and compendious sketch of the inception, advancement and completion of that herculean legal achievement transmitted to the present generation as the Corpus Juris Civilis. I could not therefore, follow a more judicious course than by adopting as my text, this passage of the Pandects, in tracing an outline of the History of Civil Jurisprudence. Although the primitive Government of Rome was an absolute monarchy, the wisdom and magnanimity of RoMUi^us, admitted the people, at an early period, to a voice — 6 — in Legislation. The Sovereign, indeedf reHerved to himself the exclusive right of proposing laws ; but these laws were submitted to the assent of the people assembled in the thirty Curice or Wards into which the City was divided. It was not until the reign of Taiiq,uin the Proud, whose tyranny and vices provoked the expulsion of the Kings, that any attempt seems to have been made, of which at least we have any knowledge,, to collect and arrange into some- thing like Order, the Eoyal ordinances or enactments, and such other laws as had obtained the sanction of Magisterial decisions or had grown out of universal usage. The compilation of PuflLius or Skxtus Papiriuh, in the reign of Tarquin the Proud, is the earliest essay of the kind we have on record ; but we have at this day a few fragments only of the labours of this eminent lawyer, whose Digest was denominated the Jus CiviHs Papirianum, =* which has transmitted his name with honor to posterity. The expulsion of Royalty seems to have been succeedevl by a species of legal anarchy, the Lex Tribunitia, or tribu- nitial law, having formally annulled at one fell stroke all the Royal laws, and therefore subverted the authority of the Papirian Code or Digest, leaving the Romans, during a period of nearly 20 years, without any positive Rule for their go ^remance, and compelling them to resort to the sole moral force of such customs, as naturally resulted from the complex relations arising out of a state of society. • OiBBOX, (from whom I have frooly borrowed) in n learned cbajjtor on Roman Juriiprudenoe, 8th Vol. of hii " Doeline and Fall of the Roman Empire," in a note on page 5, seems to doubt the oxistonco of this code, and thinks that the Ju» Papirianum of Qraniiis Flacoui, quoted in the Digest. (1. L., Tit. XVI, leg. 14-1,) was not a oommontary, but au original work compiled in the time of C.«8ar. But wo may fairly believe that the profound Paul, from ;vhom this law is borrowed, would be exact in this respect, and would not use the positive language " Oraniut Flaecui in libra dt Jure Papiriauo," wer« he not (quoting the oommentary. -7 — This order of things co; Id not be long protracted in an age when the fame of SoLON and Lycubous had already given to Athens and Laokd^mon so much celebrity as the favored seats of Legislative wisdom and moral philosophy. Under the solemn sanction of public authority, a mission to the Athenian Republic was therefore devised and carried out, for the purpose of acquiring a knowledge of their mu- nicipal laws, and of afterwards engrafting them upon the legal institutions of Rome. The laws thus copied, in so far as they were deemed applicable to the genius of the Roman people and the state of Roman society, were inscribed by the Decemvirs on Ten Tables of Brass, or Ivory or Wood, {roboreas primum deinde JEreas,) which were set up in the Forum for public instruction and commentary. To these were added, the following year, two other Tables, which supplied the omissions or deficiencies of the first Ten, and hence arose the denomination of the 12 Tables of THE Roman Laws, so famous in the annals of History, and into which had been transferred so many of the wise precepts of the prince of GrecSn Sages, f Nor t I have followed in this passage, Pothier'g prolegomena to the Justinian Pan- dects. QiBBON, in his famous work already quoted, (Decline and Fall of the Roman Empire loc. cit.) rejects the truth of the Roman mission of the Decemvirs to Athens, and ho founds his rejection upon the fact that the Qrecian Historians of that period appeared ignorant not only of that famoua Embassy, but even of the name and exist- ence of Rome ! He cites Herodotus, Thucydidcs, (A. U. C. 330, 350,) Theopompus, (A. U. C. 400,) and others ; and adds that Pliny (III. 9) gives to Theophrastus, who wrote A, U. C. 440, the credit of being the first Greek who diligently wrote anything of or concerning the Romans. Gibbon also thinks it improbable that the Patricians of Rome would have taken much trouble to copy the austere laws of a pure demo- cracy. In a note by Profeator Warukoniy, which is cited by Milman, in his learned Ed. of Gibbon, in reference to this passage, vol. 4, p. 303, it would appear that Gib- bon's opinion upon this point ic " almost universally adopted," and he particularly mentions yiebuhr and Hugo as supporting it. Nevertheh ss, the account of this mission is so circumstantially given, that it is difficult to treat it as fabulous : " Sed " tandem ex T. Romilii sententia senatus consulto facto, quod plebiscite oonfirmatum " est, missi Legati Athenas Sp. Postruvius, A. Manlius, kt P. Sulpitius ; jussique " inclytas Solonis leges deacribere, et aliarum Grsecise oivitatum instituta, mores, — 8 — should I omit here the mention of the wise Ephesian who about this time was thrown as an exile upon the Italian shores, to whom is ascribed the honor not of the profound exposition only, of the lore of the 1 2 Tables, but the merit also of having contributed to the amelioration and amend- ment of the laws they proscribed. The name of Hermodo- BUS is honorably recorded in the Pandects, and is mentioned with veneration by ancient and modern Historians, The legal discussions of the Foram, the interpretation of the laws by learned Jurists, the judgments of Koman Ma- gistrates pronounced in particular cases, subsequently gave rise to the Lex Non Scripla or common law, or what was specially designated and understood as the /«.< Civile , just as in England or the United States of America the legal arguments of eminent Counsel, the dicta of Judges, and the decisions of Courts, combine to produce the law of prece- dents, and to engraft on the Lex Scripta or positive law, as possessing a quasi binding authority, the vast accumulations of legal opinions and speculations col- lected in the voluminous reports of adjudged cases ; reports which threaten, from their magnitude and rapid increaao, to involve future generations in that confusion of law as a science, which preceded, in the Roman Empire, the com- pilations of Tiibonian and his associates, and which even- tually led to the necessity of that comprehensive and lucid system of codification, of which so brilliant an example is contained in the Pandects and the Code. "juraquo nosooro ; undo logos Romanoriim in!K of Laws. The reign of the Emperor Hadrian was rendered famous as the epoch of the Perpetual Edict, * and i he name i;he Sdicts law * In Milman's "New Edition" of Gibbon, (Deel. and Fall R. E-,) wo find the foUov ing notes in Vol. IV pp. 312-313, in roferonco to the Pkrpktual Edict. The 1st r.oto 13 the learned Editor's; the 2nd is one borrowed frcm Professor WamMnig., to be found in a French tr msiatiou of Chap. XLIV of Gibbon's work, cited : Ist. "Gibbon," gbservos Milman, "has fallen into an error, with Heinoccius, and almost the whole literary world, concerning the real meaning of wliat is caUed the perpetual <:(Uct of Hadrian. Since the Corneliap law, the edicts were perpetual, but only in this sense, that the prretor could not change them during the year of hi« magistracy. And although it appears chat under Hadrian, the civihun Julianui made, or assisted i:^ U'akiug, a complete collection of the edicts, (which certainly had been done likcrise befori' Hadrian, for example, by Ofllliis, ((ui diligontor odiotum oompoBuit,) we have no sufficient proof to admit the common opinion, that the PriB* toriap edict was declared perpetually unalterable by Hadrian. Tho writers on law subsoquonl to Hadrian (and among /ho rest l'om]Kmius, in his Summary of tho Roman Jurisprudonco) spoak of tho edict as it existed in tho time of Cicero They would not cor'ainly have passed over in silence so rumi-rliablc a change in tho moat importint source of tho civil law. — M. 2nd. Hugo has oonclusivly shown that tho various passages in authors like Eutropiu^, are not sufficient to estublish the opinion introduced by llcincccius. Compare Hugo, vol. ii. p. "S. A new proof "f this is found in tho Instiiutcs of Gaius, who, in the first books of hi;i work, exprcfsos himself in the same manner, without mentioning any change made by Hadrian. Nevertholoxs, if it had taken place, he must have notiuud it, as ho does 1. i. 8, tho responia prudenaim, on the occasion of » rescript of Hadrian. There is no lacuna in tlio text. Why then should Gains main- tain silnnco conoorning an innovation so much more important than that of which he apoaks ? After atl, tho question booomos of (light interest, since, in fact wo And no change in tho perpetual edict inserted in tho Digest, from the time of Hadrian to the end of that epoch, except that made by .Julian, (compare Hugo, I. c,) Iho later lawyers appear to follow, in their commentaries, the same ^«xt as their predecessors. It is natural to suppose, that, after the labors of so many men distingiMshed injurisprudonoe, the framing of the edict must have attained auoh porfuction, that it would have been -12- Salvids Julianus, the Roman Praetor, will be handed down with glory to civilized nations as the author of that celebrated ordinance. From this period, the power of making laws for the Empire seems to have passed wholly into the hands of the Emperors. From the reign of Augustus to that of Trajan, the Ciesars appear to have contented themselves with the promalgation of their Edicts, through the intervention of Roman Magistrates or as Magistrates themselves, and in the decrees of the Senate we frequently find inserted with marks of peculiar respect, the Epistles and Orations of the Prince. H.\I)RIAN, was the first of the Emperors who, at the beginning of the second century, yielding to the dictates of ambitior, boldly assumed the plenitude of Legislative power. Hence arose that multitude of Constitutions, Rescripts, Edicts and pragmatic sanctions which composed that large body of Roman Law, which was afterwards methodized and condensed into the throe famous compilations known under the respective names of the G-REt+oiiiAN, the Hkrmo- GENTAN and the Theodosian Codes. The Gregorian covers the period from Hadrian in 117 to Valeiuan in 254: The Hermogenlan commences with the reign of Claudius in 268 and comes down to the time of DioCLESiAX in 284 ; and the last, the Theodosian includes the period from Gon- STANTINK, in 306, to i'liEODosius, in 421. Of these three Codes, the last, only, seems to have been partially preserved to the present time, and among its difficult to have made any innovation. Wo nowhere find thpt the jurists of the Pandects disputed concerning the wordu, or the drawing up of the edict. What difTcroncc would, in fact, result from this with regard to our codes, and our modern legislation? Coinpaic the learned Dissertation of M. Biener, I>o Salvii ouliani mgritis in Ddietum Priotorium rocto tcstiniandia. Lipstc, 1809, Ito.— W, — 18 — compilers we find the names of Caius, Papinian, Paul, Ulpian and Modestinus, who were so pre-eminent in their day that by a special Edict of Theodosius the Younger, they were solemnly pronounced to be the Oracles of Jurisprudence throughout the Empire. Now, in glancing back at what has been said in the preceding pages we gather that, the laws which governed the Eternal City, from the early period of its history down to the age of Justinian were : lo. The Jus Civile Papirianum, under the Kings. 2o. The Lex Tribunitia, which abrogated th.^ Jus Papi- riarmm. 3o. The Laws of the 12 Tables. 4o. The Jus Civile, or common law. 5o. The Legis Actiones, called also Jus Civile Flavianum and Jus jElianuni. 60. The Plebiscita, or popular laws, which vere after- wards luerged in the Lex Hortensia. 7o. The Senatus Consulta, or decrees of the Senate. 80. The Jus Honorarium, or Priutorian Edicts, or rut] km- the Perpetual Edict, which was or is presumed to have been a Digest of them all., 9o. And lastly, the Constitutions, Rescripts, Edicts and Pragmatic Sanctions of the Emperors, which wore comprised in the G-reoorian, Hermooinian and Theodosian compilations. A. D. 527— Thus stood the great body of the Roman Law in the beginning of tho 6th Century, vvhou the genius of Justinian conceived and devised the Herculean design of collecting and condensing that vast undigested mass of legal learning and moral philosophy (the mere manuscripts of which are represented to have been burthen enough for many Camels MuUorum Camelorum Onus}, into the com- paratively narrow compass of the Code, the Pandects and the Institutes, — 14 — The immortal Tribonian, the most laborious at least, if not also the most profound Jurist of his age, was the master spirit to whom this great and momentous work was in- trusted ; and he and his learned associates, 9 in number, in the preparation of the Code, and 6 in the compilation of the Digest, achieved their arduous task, much within the period assigned for it^, performance ; such were the zeal, the abili- ty and the genius that were brought into action in the ful- filment of the Imperial mandate. The Justinian Code first appeared A. D. 529, not quite a twelve months after the work was commenced, * and the Magnum Opus, the Digest or Pandects, for the comi^ilation of which ten years had been computed as necessary, were presented to the world in their present shape within the astonishing short period of three years. — (A. D. 533.) The Code embodies the Constitutions and Rescripts of the Roman Emperors from the reign of Trajan and is derived chiefly from the three Codes of which we have already spoken i. e., the G-regorian, the Hermogiiiian and the Theodosian. It is divided into 12 Books, each Book into Titles, and these again are sub-divided into latos, primipia and paras;raphs. The Digest, the most precious of the great Works be- queathed to posterity by Justinian, contains the solemn record of the dicta and opinions of Magistrates and Lawyers of eminence who flourished under the Republic and the Empire, whose names are afl5.x.ed to their respective laws for the laudable reasons stated in the confirmation of the Pandects, §10 & 20, ''Quia," says that law, '' uEquum erat tarn sapientinm hominum nomina taciturnitate, non obliterari, * A seoond promulgiitiun howovor took plaoo in 6.'!4 cuutaining eleven new oon- 8tituUon8, 6 of which partially rovokod or amondod furiiier laws. — 16 — tarn ut manifestum esset ex quihus legislatoribvs, quibusque, eorum libris hoc Jmtitim Romance Templum cedijicatum esseC ' The Digest is arranged under 7 principal heads or divi- sions called Parts, which comprise in all 60 Books. These are divided into Titles, Laws and Principia, in an order at once simple and lucid. It contains copious and well digest- ed Tables of Contents, which render a reference to its authority a task of little or no difficulty. The Institutes to which the name of Justinian has emphatically attached, prol)abIy from the supposition which atone time prevailed, that the Emperor was himself the writer of the work — were meant to contain, as they really do, the elements of Civil Jurisprudence. Inferior in magnitude and importance to the Code and the Digest, yet have they no less than these elicited in all Countries the admiration of the Lawyer and the Philosopher. They are stated by classic judges to be written with somewhat imequal elegance, the passages ascribed to Justi- nian being distinguishable by the comparative barbarism of their style from those copied from a similar wc.;k by Gaius, ^ datuig as far back as the r ?ign of Marcus Aurelius, or Antoninus Pius, the latinity of ^'hich is esteemed in the highest decree classic. The Institutes, as we now have them, are the result of the combined labours of Tribonian, Theophilus and Dorotheus. They are composed of four Books, and divided into Titles and Paragraphs. To the Code, the Pandects and the Institutes were sub- sequently added a series of ConslUulions and Ediets of the Emperor Justinian himself These Constitutions were call- ed Novetlte or Novels, and are 168 in number. These • The Instituteti of Oitiun were discovered complete some oO years ago, iiad wor« printed in Uerliu 1824, (Qaii Institutiones ed. UoeBcbon.) — 16 — Novels, it seems, made their appearance in rapid succession, and wore sometimes written in Greek, the language in whicL they are still extant in the Corpus Juris CiviUs, We have thus traced, though in a very cursory and ! fear a very imperfect manner, the origin, progress and comple- tion of the Code, the Pandects and the Institutes ; and if we pause for a moment to contemplate the vast treasury of human wisdom and experience from which they have been derived, it will be no theme of surprise that those immortal compilations should have received the sanction of all civil- ized nations, and have been bodily adopted as texts of law by most European Countries, and ri'ceived partially by all. The reference to them as written reason, in the Courts of all enlightened communities, even in those in which they possess no authority as law, is the highest order of appro- bation and praise which could be conferred upon th(^m. and the xiniversal assent of mankind to those branches of Roman Jurisprudence which are generally applicable to the transactions of civilized societies— such as the large subject of contracts, bailmcnits, servitudes, prescription, and many others, fixes indelibly the stamp ol' wisdom on laws that could thus happily have generalized and settled the Rules of action by which men should be and are in truth governed. That these invaluable repositories of legal learning should have been preserved to us amidst the vicissitudes that marked the History of Eiirope and Asia-Minor, during the barbarous and the middle ages, seems almost providen- tial, especially when w^e consider that down to the middle of the fifteenth century, when the art of printing was in- vented, they existed, but in M. S. S., exposed not only to the destruction of the elements and the depradations of barbarian waifare, but were even threatened by the cupi- dity or ignorance of idle scriviners, poets or novellists, who not unfrequently obliterated inestimable M. S. S. of the de- 8ci"iption of the Institutes or the Pandects, for the purpose — 17 — of applying the parchments or papyrus on which they we ■ originally written, to their own useless and oftentimes fri volous effusions. Numerous instances of these profane and vandalic obli- terations of useful chronicles and scientiiic essays have been discovered within the last four or five centuries, although the practise itself, of erasing manuscripts to use the parch- ments for other literary compositions, seems to have obtain- ed at a much earlier period, and is stated to be coeval with the days of Catallus, or about the end of the 7th century of the foundation of Rome. The restoration of Palimpsests— which is the name under which these defaced papyri are known— has now long been the favorite study of some of the most learned men in Ger- many, Italy and other parts of Europe, ^ ' sc researches may yet bring to light new and importani historical dis- coveries, and eventually realize the hope expressed by Gibbon, that some of the lost passages of the Perpetual Edict— of which we now possess but a few scattered frag- ments—may still be restored. Justinian, the Atlas on whom rests the ponderous tomes of Roman Jurisprudence, the legal Hercules of his age, if the expression may be allowed as applicable to the magnitude of the works accomplished under him ; Justinian°after a reign of 38 ytars died A. D. 565. The epoch becomes the more memorable, from the events which followed, for scarcely had his clay mouldered in the dust than ^he glory of the splended Monument of Roman Law whka he had reared became eclipsed, and the Code and the Pandects gave way to barbarian power and barbarian laws, that usurped their place and well nigh . threatened them' with complete annihilation. They in fact disappeared and remained in a partial state of oblivion until towards the middle of the 12th 3 ■''li: — 18 — Century, wken suddenly, and as by a divine miracle, such is the language of Pothier in his preface to the Digest, a complete Copy of the Pandects resuscitated, emersit tandem e tepuleri ienebris, and appeared in 1136 at Amalphi, an Italian City, near Salerno. From Amalphi this celebrated Copy wiis transferred to Pisa; and linally in 1440 Was solemnly deposited in the Library at Florence. From this famous M. S. it is, that the most approved editions of the Pandects have been since copied and collated. Thanks to the ingenius and all important discovery of Guttenberg and Faust, which, from the wonderful facilities which it has afforded for the dissemination of thou ht, forms perhaps the most remarkable and eventful epoch in the modern annals of mankind, the great works, of which we are now speaking, as well as those which have since that epoch, sprung from the pens of the literary and the learned of all nations, are now placed beyond the chance or proba- bility of lof s or destruction. The press has multiplied copies of the Justinian compilations to such an extent as to justify the belief that posterity can never be bereft of those invaluable treasures, and that they will go down to future ages amended, polished and perfected by the experience, erudition and wisdom of the eminent lawyers and Philoso- phers, whose pecular study they have been, and whose splendid commentaries are no less precious in the eyes of the lettered and the learned world, than the text Books themselves which their commentaries have enlarged and expounded. J Among the various editions of the C. J. C. which are now extant, the most accurate and approved is the famous Amsterdam Edition of 1663 in 2 Vols, folio with Notes by D. Gothofred. This is the edition in the Library of the t Among the most emiaont of these Commontators uro Cajaciut, Oiuti.na, Vik- RIUB, Eetrardm, NoouT, 8chultin«ius, and Ueinnrciijs. r — 19 — Association of tho Montreal Bar. Of tho C. .7. C. »um fj^lossis, there are many editions, but the most enteemeci are those of 1589 and 1627 in 6 Vols, folio. The Corpus Juris Academi- cum is of later date and is usually labelled alphabetically at tho beginning of each Book. The Commentators of the Civil Law whose Works em- brace the whole or most of the subjc^cts of the Code, the Pa)ulects, and the Institutes, are CuJAOiUS, Duarenus, Fabrus, Heineccius, Noodt, Voet and Vinnius. They have written in latin ; their Works are voluminous, and he indeed would be an ardent and indomitable Student who would seek to become acquainted with their pro- found exposition of the text ^hey i admitted to have mos* learnedly commented. Thiis far we have considered the Corpus Juris Civilis as it came from the hands of Tribonian and his coadjutors ; and it may be remembred that in speaking of the Digest in particular, some liusion was made to discrepancies and imperfections which had crept into it, through the over haste probably with which it was completed. These con- sisted in some measure in the confounding of existing with obsolete laws, in theadbj)tion in different places of the oppo- site opinions of the Proculeans and the Sabinians,* and in the obscurty of many passages that imparted perplexity to the laws ; but the principal defect was to be found in the wrong collocation of divers laws under heads to which they had no immediate affinity. These faults did not escape the acu- men of that great wid virtuous French Jurist, the profound and venerated Pothier, w?io at an early stage of hid legal studies conceived the plan of removing from the Pandects • Alao called tho I'vgdatianii and CaKainnn, two logal schools in tho time of Au- gustus* at tho head of the first of which was Astistius Laiiko, who looked to tho spirit and equity of the Law in its interpretation — whilst Attkius Capito, the head of the second school, olung inflexibly to its letter. — 20 — those blemishes he had detected in them, without neverthe- less altering the general order and meth'jd of the Work. To the achievement of this object, his life seems to have been in a j^nuit mi'asure devoted ; and althouj>'h he sometimes despaired of the accomplishment of his task, he was en- couraged by liis distinguished contemporary, the immortal D'Aguesseau, to persevere to the end, and linally his elabor- ate work appeared in 3 Vols, folio with this title : Pan- deelw Jusfininnfc in novem ordinem digeslcc, cum legibns codi- cis, qufcj'us pandeclarum confirmnnt, explkanl aul abrof^ant. In this great work the order of the Books and Titles, as adopted by Tribonian, has been scrupulously preserved; l)ut in the details of each Title, the economy of the subject matter has undergone considerable improvements, and the defetjts of the original to which I have already alluded have been materially, if not wholly, corrected. This he has accomplished at immense labour, by recalling, und»>r their i)roper heads, the laws scattered over the whole work, and gleaning from the Code and the Novels, addi- tional laws to support his position and enrich his compila- tion. His Titles are not un frequently divided into sections, these into articles, and these again into paragraphs and principia. Each Title retains its original heading ; but the sections, articles mid paragraphs are preceded by brief ex- planatory denominations, which add to the facilities of re- ference, and give to the whole subject of the Title, the coherence and consistency of a Treatise. Nor ought it to be overlooked, — for this indeed is one of the conspicuous merits of his work, — that Mr. Pothier should have engrafted these large and important improvements on the Justinian compilations, without detracting from the usefulness of these ; for, although the order of the particular laws is often inverted in the same Book, or transferred from one Book or — 21- Titlo to another ; yet, at the end of each Volume is found a Table in which the laws and paragraphs whicjh are 80Ufl;ht for, are indicated under the Book, Title, law or paragraph in which they stand in both compilations, the 1st number being that of the Tribonian Arrangement ;— the 2nd, that of the New Collocation, as found in Pothier's Pandeclw in novum ordinem digeiUc ; and thus a reference to the original, is rendered both clear and easy. Pothier's Pandects have gone thro' several editions in the various forms ofTolio, 4o. and 80. The Paris folio edition of 1818, which is the fourth, is printed with remarkable neatness and accuracy ; and besides being adorned by the portrait of the author, contains interesting /fl«-smi7r.s of his M. S., and of the famous Florentine M. S., of tlie Digest from which the celebrated G-othofred edition was copied. The Corpus Juris Ciii/is has been partially translated by various French writers. Ferrikrk's translation oi tlie Instituted is familiar to the legal professic The Code was translated by TissoT in 1807, and the Nov.'lJes l)y BjiR.4N(tER, Ills, in 1811. Of the Digest, we have a French translation by Hulot of the first 44 Books, and by Ber- THELOT of the remaining 6. There is also a complete translation of Pothier's Pandects with the text and tran- slation on opposite pages, 24 Vols., Royal 80., by L'Abbe de Breard-Neuville, Paris, 1818. (a) The Institutes have also been translated into English by Dr. Taylor, LL.D., whose version is much esteemed. The object with which I set out in the present lecture, I haA'^e now brought to a close. It has been my endeavour (whatever the success of my design) to convey to you a general but clear historical outline of that great body of (n.) This edition is to be founij in tUe valuable I,aw Library of the Ho.v. Chibj- Justice Duval. --22^ JuHtiniaii Legislation, to which soiiu' vt^l'i'ionco In made in almost I'vory pa^'o oi" iho works consultiHl by thf Bar ol" Lowor Canada, in their daily prolesBional 8tudi«^s and pur- suits; and, by tracing, however rapidly, to their sources, the laws contained in the Code, the Pandec.ts and the Insti- tutes, and dwelling upon the singular and providential event ol" their presiTvation down to our own times, it has been my aim far more to excite, than to gratify, your curio- sity in relation to these colossal and enduring monuments of Roman intellect and greatness. If the ancients are constantly hold up to us as the models we are to imitate in the various departments of literature and philosophy, they are no less deserving of our unweaiied study in the important department of their laws. It is in the study of the Civil Law alone that the student can hope to lay the foundations of a sound knowledge of Jurispru- dence. Our early impressions, derived from tht; History of Rome, are those of admiration for the heroism, the independtuice, the genius, the literature, the laws and the power of its peojde. These impressions become deeper as wo after- wards investigate, more philosophically, their claims to this admiration, and we have the highest aiithority for saying, that this sentiment of reverence we feel for Roman institu- tions, is one to which those institutions are, with few ex- ceptions, fully entitled. One of the legal luminaries of modern times, the Great Chancellor d'Aquesseau, thus beautifully expresses him- self in one of his famous orations en the Science of the Ma- gistrate, when speaking of Roman Jurisprudence : " Tout " y respire encore," says this eminent jurist and orator, " cette hauteur de sagesse, cette profondeur de bon sens, et " pour tout dire, en un mot, cet esprit de legislation, qui a ♦' §16 le caractere propre et singulier des njaitres du nionde, '• Commo HI los griuidos tl<'8tiu('os do Rome n'etaiont pas '* cncon< accomplies, elle rdtfiie sur toute la torro par sa " raison, apr^s avoir pohnc' d'y rigjicr par sou autorite. On " dirait oi flFel ([iioda justico n'u pleinouuint d6 voile ses " my.storos qu'aux .Turisconsiiltos Itomaiiirt. Lr "islatourN " encore plus (juo .TuriHffousultt's, do sini})lcs p.nticiiliors " daU8 I'oh.scurit*'; dt; hi vio privoe, ont mtrite, par la supC- " rioritl' do leurs luniioreH, do donnor dos lois a toute la " postorito ; lois aussi 6tenduo8 que durables; toutos les " nations Ics intorrogont encore, ct chacuno en revolt des " reponses d'uno 6ternelle vcrito !" * With this eloquent testimony before us, of the wisdom which pervades the laws bequeathed by the Romans to mankind, and comini;-, as that testimony does, from a source 80 exalted and of so unquestionabh^ an authority, it would be indeed presumptuous in me to add anything of my own to press upon the attention of my hearers, the importance of the study of those laws, by him whc would aspire to be- come either eminent as a Jurist or wise as a Magistrate or Legislator. I therefore, with this citation, take leave of my subject, more than ever convinced that there is as much triith as elegance in the thought and the language of Pothior, when he tells us that, with reference to her laws, Rome is our common country- -jRomawi communem legum t'ATRiAM con- fessus est. * " Everything in it (Unman Jurinpniiifnco) still lircathos that exalted tune of Wisdom, that prufound good sonsc, in short that ipirit of logislation which has been the ospeoial and distini^ inhing charactcristio o? the masters of the World. As if the great destinies of Romo liaj not yet been fulfilled, she still reigns through the empire of her reason, after having ceased to reign thro' the conquests of lier legions. It would indeed seem as if the mysterioj of the Temple of Justice had been revealed in their plenitude but to the favored Jurists of the Eternal City. Legislators far more than Jurisconsults, mere citizens dwelling in the retirement of private life, were, through the superiority of their enlightmont, found worthy uf givinq; laws to all pos- terity, laws as vast and comprehensive in their scope as they are enduring ; all nations consult them stii:, and each reoeivcs from them responses stamped with eternal truth."