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'# H ' 1 -* X /■■ HOR^ JURIDICiE SUBSECIViE, &c. &c. / If :( ^*:<,,'V ) .^'r'fy. .^'"y , [ Ol ■■X- :^,y "^> w i/^>^ oil HOILE JURIDICiE SUBSECIViE ; BEING A COWmCTIO SERIES OF NOTES RliriCTINO THE GEOGRAPHY, CHRONOLOGY, LITERARY HISTORY or THt PRINCIPAL CODES AND ORIGINAL DOCtlMENTS OP THB GRECIAN, ROMAN, FEUDAL AND ^ CANON LAW. r By CHARLES B UTLER , Esq. ^ OF lincolm's-inn. . ' Est qubdam prodire tenus, si noa datur ultra. HOR. THE SECOND EDITION. iV •^' LONDON: PRINTED FOR J. WHITE, FLEET STREET, HY T. BENSUY, BOLT COURT. 1807. &■ ■*•■■,.',. Quare quis tandefn me reprehendat, s\ quantum cceteris ad fettos din ludorum cv-lebrandosi quantum ad alias voluptatetf et ad ipsam requiem animi et corporin conceditur temporis ; quantum alii tempestivis conviviis, quantum alese, quantum pilse, tantuni mibi egomet, ad hnc studia re- colcnda, sumpscro. CiC. PRO Archia. Le changcment d'etude est toujour^ un delassenient pour moi. D'AOUESSEAU. ' V . ; < ' • = I J ' ' y. >' i -rf >\ TO ad fettos din isam requiem vis conviviis, •c studia re- tHE RIGHT HONOURABLE JOHN LORD ELDON, THIS ESSAY WITH HIS LORDSHIP'S PERMISSION, RESPECTFULLY DEDICATED. .t . { ■•: ■;<,.■':' ■5,r.;V^^^.,.-r> • v'-^:ii^j,Af|^'fe:,;r'^,^; ■;:, 1 ^' '■ -' ::■ '■■' ^J■ '. .-;:■ '''■/ .^.. -it^ ■ * ' - r ■■ ■' ,^ ^ '_ . •^^-., ■■■ . ', ;■>' '' " ;. '■',''_, % : ■i Th e following sheets contain a series of Notes on the Grecian, Roman, FeudaI AND Canon Law. Befbre ChrUt. 1970. 1586. W02. What is said in them, oti The Gre- . ciAN Law, may be found to con- tain some account of L The Geographical lAmits (f Greece II. Of its Legislation Page 1 1. In its Fabulous 2 £. Heroic 4 3. And Historical Age • . . . 10 9S6. III. Of the Laws of Lycurgus U 624. IV. Draco 13 594.; • >'' ' attd Solon .> 14 490. V. And of the Decline of the Laws of Athens and Lacedcemon 22 , V *^' What is said on The Rokax Law, may be found to contain some ac- count . \, Of the Degree of Credit due to the Histories which have reached usy of the Five First Ages of Rome. ... 29 I !i ■:■ # ■ ^.| . .>V ▼iii Before CbrUt. >:.';* CONTENTS. Page II. Of the Gtograf'iical Limits of the Coimtrics in which the Jiontan Law has prevailed: 1. Italy 31 2. The Roman Conquests in Europe 35 3. And the Roman Conquests out of Europe ^6 III. Of the different Classes of Roman Subjects 37 1. Citizens, or those who had Jus Civitatjs ib. 2. Latins, or those who had Jus 3. Italians, -or those who hod Jus Italicum ih. '..■'. 4. Andof theProvinciae, Municipia, V Praefecturae & Civitates Foede- " " i^' t, ratse , 42 ■ ' ' ' ■ ■ ,• A V * ' IV. Of the Government and Form of , Roman Legislation 43 1. As originally constituted 44 2. And as successively altered 49 ■i-. 3. Of the Titles of their Laws 53 V. Of the History of thQ Roman Law ib. j^>,. Page the man • • • • SI rope 35 utof t • • • ^6 man t • • • 37 Jus • • • • ib. Jus * * * * 41 Jus • • • • ih. ipia, •,.- Etle- • • • * 42 I of • • • 43 ■ • • 44 • • • 49 • • • 53 \jm ib. CONTENTS. Ix Before Chriit. Faga 753. V. \. Its First Period-^ From the Foundation of Rome, till the JEn of the Twelve Tables. ... 54 509« Jus Civile Papjrrianum . 56 453. V. 2. Second Period.— 451. The Twelve Tables ... . ib, V. 3. Third Period.^ " % The Laws of Rome dur- ^'* : ' ing the remaining Pe- f * - riod of the Republic . 6l t'H 1 . Jns Honorarium (Ja '.i- 2. Actiones Leges & Solemues Le- '^>f •»,"' gum Formula} 6? ;^ 3. Disputationes Fori Sc Responsa Prudeiitum 68 V. 4. Fourth Period. — 4G. Julius CsBsar 72 « cSSt. ^' 5. Fifth Period.— ■' ' ^^. ' Adrian 75 120. Edictum Perpetuum.... 76 . 284. Codex Gregorianus .... ib. ' , Codex Hermogenianus . 77 V t . r^' After Christ. 306w 438, 438. 506. 588. 533. 534. 566. 568. 7553. 906. CONTENTS. Pag6 V. 6. Su!th Period^— Coostantine the Great . . 77 t t V. 7. Sffcentk Period. — Theodosius the Younger 78 Codex .Theodosianus. ... 79 Breviaruni ABiani. ^ . . . . 01 V. 8. Eighth Period.-- Justinialk. 82 1 . , Codex Prims Praelectionis ib. 2. Digestum, or Pandectee ib. 3« Institutiones 83 4. Codex Repetitse Praelectionis. .. . 84 5. Novellas ib. 6. Volumen Authenticum ib. 7. Libri Feudoruni, and other Ar- ticles forming the Decima Colla- tio 85 8. Grenerai Merit of Justinian's Col- lection ib: V; 9. Ninth Period. — The Fate of Justinian's Law. K In the Western £mpire . . ^ 88 & In the Eastern Empire . . 89 The Basilica ib. . comssm. sat.. • 77 anger 78 9* • ft • 79 • • • • 81 82 • • • • ib. • • • • ib. 83 s. ... 84 • • • • ib. • • • • ib. r Ar- :olla- 85 Col- • • • • ib. Afttr Christ. 1453. Ml TKe Extincdon of tbe Roman Xmit in the East, in consequence of the taking of Constantinople by Mahomet the Second go Y.iQ. The Tenth JPMotk^ Revival of the RoaMWt £aw in the West, in consequence of the Discovery of the Piandects ait Amalphi..... 90 Collations and' Editions of the Pa:idt?cts gi VI. Principal Sbhoott of the Cml Law. • • gs 1. School. of Imerius gg ST. Accurrias^ gg 3'. BartoHis^and Baldus . . lOO 4^ .... And Cuje». ....•^. ib. Vl\. Influence of the CivH Zam ortythe Juri^rudenee of the princ^l States of Europe, »* * loi MA r! jii ■f J W' xii After Christ. CONTENTS. Page What is said on the Feudal Law, may be found to contain some account I. Of the original Territories of the Nations hif wham it was esta- ^M- blished. 1. Scythians j jq «• Celts ii, 3. Sarmatians m 4. Scandinavians..... Hg 5. Germans j-j. 6. Huns J 22 7. Sclavonians j jg II. Of the gradual Ejetension and Dates of the principal Conquests made by them.. 77 III. And of the principal written Docu- ments of the Learning of Foreign Feuds. 1 . Codes of Law S. Capitularies tg 3. Customary Law |i CONTENTS. m Page After What is said on The Canon Law, may Christ. '' be found to give some account I. 1. Of the Ancient Religion of Rome 144 2. Of the Gods worshipped by the Romans 145 3. And of the Colleges of Priests de- dicated to their Service. 146 II. Cff their Toleration of Foreign Wor- ship 150 III. Cff the Christian Hierarchy 152 :fe >j IV. Of the General Materials of the Canon Law • • • • 155 V. Cff the History of the Canon Law 156 ,. V. 1. The Ancient Period of the Canon ^/ . ,-, % • ■ M4(*U/ ••••••••••••••••••••••••• lO/ 200. 1. Canons of the General Church. . 300* The Apostolic Constitutions . . .^.,.V. 2. Canons of particular CJ- .ches.. 159 siv- After ChfMt. 385. 451. 560, 692. 760. 845. 906. 1000. 1100. 1150. II ■ • CONTENTS. Page 'Codex Ecclesite Orientals ....... i60 Codex EcclesisB Universse ib, Nomo-Canon of Joannes Scholas- ticus . • • l6l Synod in TruUo * ib. Nomo-Canon of Phofius. 162 3. Vetus Cauonutn Lal^norum Edi- tio, by Dionysius Exiguus 16$ 4. Collection of Canons of the Afri- can Church 164 V. % The Middle Period cf the Camn i. Isidore Pecicator, or Mercalor's Collection of Decretals 165 Capitularies <^ Adrkn 167 Collection of Rhe^giaon Abbot of Prumia ib. Bttrchardus's Magnum Decreto- rum seu Canonum Volumen. . ib, Decretum Canonum, and Panno- mia of Ivo ib, 2. Decretum Gratiani , 168 Breviarium Bernardi Papiensis. . I71 ^^mm Collections of Johetines Galensis aad P«ter Beneventanus ...... ib. p^ After Christ. ,.... 160 1230. ib. bolas- 1298. ..... 161 ib. 162 lEdi. 1313. 1340. 1483. 1590. 163 Afri- 164 '^anm , »tor'8 167 botof ib. i creto- T'j . nen. . ib. ■■"".'■'-•.' - . .1 *anno- ..... ib. 168 nsis. . .171 _ " . > * - tlensis ' . :■"■ ib. ■'i-'i ■ CONTENTS. XV Page Libri quinque Dccretalium Gre- gorii Noni 172 Liber Sextus Decretalium ib. Liber Septimus Decretalium. . . . 173 Extruvagantes Johannis xxii. . . . ib, Extravagantes Communes ...... 174 Collection of Matthsei. ib. Institutiones Lancellotti 175 V. 3. Of the Modem Period of Canon Law; 1. Transactions and Concordats be- tween Sovereigns and the See of Rome 176 2. Councils of Basil, Pisa, Constance and Trent 177 3. Bullarium 180 4. Regulae Cancellariae Romanae — Decrees and Ordinances of the various Congregations of Car- dinals at Rome; and Decisions of the Rota • ib. 5. Legantine and Provincial Consti- tutions ib. VI. Authority of the Canon Lata. ... 182 '.■FT _ .^;>i'' A^-; ■: ■■ .: i ■ ;^-_-'^if ,;'['- j^^t%i,yi : ] :__ ■ .r,. . ^•! J i ■ • a APPENDIX. PagP Note I. On the Right of the Crown of Eng- land to the ExcliHsive Don^inion and Property of the British Seas 185 Note II. On the Geographical Division of the Alps 191 Note III. On the Praetor's Judicial Power, from Dr. Bever's History of the v: • Legal Polity of the Roman State. . . 194 Note IV. On the Modes .of quoting the Civil and Canon Laws, from Dr. Halifax's Analysis of the Roman Civil Law. . . 1 97 :,^^.^<.(^:(,. Sketch of the Professional Character of Lord Mansfield 201 *. ■ - ,Vf k,'. —'■'A •-'..-.i.^;v?•>:.;^■ii' r -7 •% • I ; .:;-,./,v,^.-v>^ ^i^ -^'\m^'. /--H'^ '^^y.-:-^:i m& ' '. !; THE GRECIAN LAW. IV I- When the space, which Greece fills in history., is considered, it is impossible to vieW} without surprize, the small extent of its GEOGRAPHICAL LIMITS. In the largest sense of the word, Greece denotes the territories between Ill3rricum and Moesia, to the north; the Ionian Sea, to the west: the Cretan, to the south; and the ^gean, to the east. It is divided into the Regnum Macedonicum, which, in the time of Philip, consisted of Macedon, Thes- saly, Epirus, and Thrace; and of the Gi'secia Vera, which was divided into three parts, Achaia, Peloponnesus, and the i li I" f i . THE GRECIAN LAW Islands. It is highly probable that Greece was originally peopled by the Pelasgi, an Asiatic Horde, who, in successive emigra- tions, passed the Caucasus, the Don, the Neister, and the Danube, and spread them- selves over a great part of Greece. At sub- sequent periods, it was peopled by various colonies from -^gypt and Phoenicia. For a considerable time, all its inhabitants lived in a wild and barbarous state. Afterwards its fabulous, heroic, and historical ages suc- cessively follow. ,' . " ''■^'^'i-:,C_^f'':rS:., ./ •■..■. :^ -. - "^ IT - .•:.-'..■- • .. II. 1. Its legislation may b6 traced to its Fabulous Age, : -^ In the mythology of the Greeks, Chaos was the first of beings, and gave birth to Ccelum and Tellus, to Erebus and Nox: Coelum and Tellus were the parents of Jus- jurandum and Themis; Erebus and Nox were the parents of Nemesis. Jupiter had Astraea and Dic^ by Themis; — when the I I V . THE GRECIAN LAW. ^ ' ' ^ deities resided on earth, in the golden age, Astraea presided over the administration 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 Li- bra, her balance. Ceres, the daughter of Saturn and Ops, taught mankind tillage, the worship of the Gods, the use and rights of separate property, respect to parents, and tenderness to animals : on this account, both in the Greek and Latin writers, she is called the law-bearing Ceres; and both in Greece and Rome, she was wowhipped, and had temples dedicated to her, under that name. ?V' <-fi\.-' '''.f i •»> The earliest account of the fabulous age, on which any reliance can be placed, commences about nineteen hundred and seventy years before Christ; when Argos, from which the north-eastern territory of Pe- loponnesus received its denomination, first , .III iiii ■'J^ ;:#: « THE GRECIAN LAW. ^i"v began to acquire political eminence. Before Christ. It is said to have been founded by Inachus, in 1970 ^ His descendants filled the throne, till Gelanor, the 10th of them in suc- cession, was expelled by Danaiis, a '^* prince of Mgypt, . 1586 V He is mentioned by some writers, ''*^ as the first legislator of the Greeks; '^ ' from him, the people of the penin-| sula, till then called Pelasgians, re- ceived the name of Danaans, which they retained in Homer's time. '^^ V II. 2. From that period, some ap- pearance of real history being dis- cernible in the accounts we have of what is generally called the fabulous age of Greece, it is supposed to verge ito a conclusion, and the Heroic Age * of Greece, is supposed to begin. The •regular history of Grecian legislation commences with Theseus, one of the :i^-,> >'*» ^^,•5.*; ■\- \-- - -;■ .v .» s, ( %*^ 1^ s; ■jm- Q- 'i.**'"* e- i> i<- ch l.Uiii ..^.V>:i P- • >^ r» V is- t ' r-. , *. THE GRECIAN LAW. ''« celebrated persons, from whom that age received its appellation. %t In a military expedition to the kingdom of Crete, undertaken by him, to deliver the Athenians from an ignominious tribute, paid by them to the monarch of that island, he had become acquainted with the laws of MinoH. The excellence of those laws is highly celebrated by the writers of anti- quity: to us, they are chiefly known, as the foundation on which Theseus, and afler him Lycurgus, built their respective sys- tems of legislation. In the public educa- tion of the children, the public repasts of the people, at which the rich and poor promiscuously attended, the division of the inhabitants into freemen and slaves, and some other institutions of Minos, we trace the general system of legislation, adopted by the Spartan legislator. It is observable, that Minos was the first sovereign, to whom the splendid prerogative of the Dominion \ % 1 r ■ t' / M c ii • ' THE GRECIAN LAW. of the Sea " was assigned ; but probably it was confiiied to the Cretan and a small part of the yEgifian Seas. On his deatli it w^.s assigned to the princes of Argos. " •'*' - . On the return of Theseus from Crete, he abolished private jurisdictions, and sub- jected the whole territory of Athens to one common system of legislation; he divit^d the commonwealth into nobility, husbaud- men, and artificers; and established an uniformity of religious rites and sacrifices. To the nobility and husbandmen he appro- priated the executive powers, with the su- perintend pnvilege of Athe- nian citizens, and the monarch was rather ' See Appendix, NOTE I. It THI OUBCIAN LAW. their first magistrate tlmn their sove- reign. In conse([ucuco of these; wise regulations, the Atheniaiiis s€rm to have acquired more civi!i zed manners than the rest of the Greeks ; they were the first who dropt the practice of A going constantly armed, and thus in- troduced a civil dress in contradistinc- tion from the military. .r> >,..;. ,w *. The subject leads to the mention of nothing of importance before the taking of Troy • In his description of the shield of Achilles, Homer gives a striking ac- count 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 by-standers; asserted that he " had paid the whole; the other in- " sisted, that he had received nothing; Before Chriit. M^r 128^ i.H' ^ *i ♦ ; .!.,.(' H 111 f I N ; 'i H If r »'■, m \i fli! *,vi:: m a. THE GRECIAN LAW. ** both were earhest to bring the dispute to « a judicial determination. The people " grew noisy in favour, some of the one, " some of the other; but the heralds Ihter- " fering, enforced silence; and the elders " approaching, with scepters of heralds in " their hands, seated themselves on the *' polished marble benches in the sacred " circle. ^iSe^^ them, the litigants, ear- " nestly stepping forward, pleaded by turns ; " while two talents of gold lay in the midst, ** to be awarded to him, who should sup- *' port his cause by the clearest testimony " and the clearest argument/' , , . : 4 We find from Homer's writings, that, in his time, the rights of primogeniture were considerable; that, murder was punished rather by private revenge than public jus- tice; that, conjugal infidelity, on the wo- man's part, was esteemed an heinous of- fence; that, on the man's, it was little regarded; and that, the breach of virgin honour was scarcely thought a crime, % ^ •; ' THE GRECIAN LAW. 9 It is observable that Homer makes no mention either of a pure republic, or of the absolute rule of one man: he is supposed to have been favourable to monarchical government; but it is said to be discover- able from his works, that, when he wrote, the general tendency of the public mind of Greece was democratic. .^ In the course of time, democracy ob- tained a complete victory over monarchy, in every part of Greece. The Heraclids^, having acquired a settlement in Doris, in- vaded and made themselves masters of all Peloponnesus, except Arcadia. At firstj the}' established a limited monarchy in the different provinces they conquered; but, having quarrelled among themselves, and confusion universally prevailing, monarchy was almost every where aboHshed, and thd words, Tyrant and King, became synony- mous. r/i^^^'^-'W:. ^ II. 3. Here the heroic age of the history \\- l! M I'll /" I ,1; / iiil! Ml III I'l I I JO THE GRECIAN LAW. of Greece draws to a conclusion, and we perceive the dawn of its Historical Mra, From this time, Greece must be con- sidered as formed of a multitude of inde- pendent states, exercising complete sove- reignty within their respective territories; bound together by no federal union, but connected by language, by their notion of a descent from a common stock, by a simi- litude of religious belief, and by frequent meetings at public games. But nothing contributed to this general union more than the council of the Am- phictyons: it is supposed to have been in- stituted by Amphictyon, the son of Deuca- lion. It met sometimes at Thermopylae, 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 the Grecian states. Their determi- nations were always held in great venera- / t v/;-^ THE GRECIAN LAW. ■//.. II tioh; and their influence is sup- Before posed to have continued till the reign of Antoninus Pius. During the whole of the historical aera of Greece, except when some sin- gular event raises a particular state into notice, Lacedaemon and Athens alone engage the attention of the his- torian or civilian." i' ^ ^ v- i; *? j. ; i . ^5 "**■-; •Iri r,-^> nvm^tvl'^' ,^it r;j*H' ' ■ -^ .. III. The aera of Grecian legislature be- gins with the LAWS OF LYCUR- GUS, the most singular institution recorded in history He established two Kings, and a Senate of twenty-eight members, ap- pointed for life; the Kings were chosen by the people, were heredi- tary senators, high priests of the na- tion, and commanders of their armies; but they were controuled, in the exer- cise of their power, by five Ephori, 926 % ' ■f. 1 ; ■ i - 5f iyn ! r m ri'l ilil 11 II III « L dill: ' H THE GRECUN LAW. created annually. With the senate, all laws were to originate; the general assembly of the people had the power of confirm- ing them; but public debate was wholly forbidden the general assembly. Lycur- gus effected an equal division of land among all the citizens; he abolished the > use of gold and silver; and ordained, that all children should be educated in public: every citizen was to be a soldier; all seden- tary trades, and even agriculture, were for- bidden them ; the ground was cultivated by the Helotae, a kind of slaves, whom the Lacedaemonians treated with the greatest cruelty. Thus, Lycurgus effected a total revolu- tion of law, property, and morals, through- out the whole of the Spartan territory: no legislator ever attempted so bold a plan. It has been observed, that, if he had merely been a legislator in speculation, his scheme would have been thought more visionary than Plato's; it may be added, that, if the THE GRECIAN LAW. existence and continuance of his in- stitutions were not proved, beyond ar- gument, by the highest degree of his- torical 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 at- tended with little resistance, and with no political convulsion; they remain- ed in vigour longer than any political institution of antiquity known to us, and were respectable even in their decay. \ •- . ■ ■ " . • ' ''. - ' ■ r . ^. ^M'. .. ; ■, .TV ' - ' ■ '>^^ • ■' 1. DRACO was the first legislator of ATHENS: of his laws, we know little more, than that their extreme severity was proverbial. ....... He made all crimes capital, on the ground, that a breach of any positive law was a treason to the state. M Before ChrUt. t ti 624 [• \ I': '*- *;i m M^* \ ^ / 1 'I Pil I! 'in I i! '^1 mw U THE GRECIAN LAW. Solon framed for his countrymen, a new and milder system of law. . . Mr. Tytler's Elements of Ancient History, 1st vol. 49 — 52, give 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 B.C.; and ' was intrusted with the care of fram* * ing, for his country, a new form of * government, and a new system of ' laws. He possessed extensive know- * ledge, but wanted that intrepidity of * mind, which is necessary to the cha- ' racter of a great statesman. His * disposition was mild, and tempo- * rising, and, without attempting to ' reform the manners of his country^ * men, he accommodated his system ' to their prevailing habits and pas- ' sions. " The people claimed the sove- Before Christ. 594 '/r .H> ■*::.S :i.il '■; > "■ ••."(.• of Ha le -'h/ij id VLi- a* p.-i of r h:i of O'f'h^ r- !.:.i; )f •*'•-,•: 1 THE GRECIAN LAW. U " reign power, and they received it: tho " rich demanded offices and dignities: the " system of Solon accommodated 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 equal right of ** suffrage with them, in the public assem- " bly, where all laws were framed, and " measures of state were decreed. Conse- ** quently the weight of the latter decided " every question. > ;> ; ; ^ i^ < ivi i J/t.a *** " To regulate, in some degree, the pro- " ceedings of their assemblies, and balance " the weight of the popular interest, Solon " instituted a senate of 400 members, (after- " wards enlarged to 500 and 600,) with " whom it was necessary that every mea- " sure should originate, before it became la ' / 'i| 'lull it i i' ill ill' .Jlllil!!! 5 III i mill liiiiji v$ THE GRECIAN LAW. '* the subject of discussion in the assembly " of the people. - .— " To the court of Areopagus he com- ** mitted the guardianship of the laws, and " the power of enforcing them, with the " supreme administration of justice. To " this tribunal belonged, likewise, the\;us- , " tody of the treasures of the state, the care " of religion, and a tutoral power over all " the youth of the republic. The number " of its judges was various, at different pe- " riods, and the most immaculate purity of " character was essential in that high office. " " The authority of the Senate and Areo- " pagus imposed some check on the popu- *' lar assemblies; but, as these possessed " the ultimate right of decision, it was ever " in the power of ambitious demagogues " to sway them to the worst of purposes. " Continual factions divided the, people, and corruption pervaded every depart- ment of the state. Their public mea- « ■.(!'; \- s ic mea- « « « C( « « (( (( « (( (( (C t( u (( « (( (( (( , THE GRECIAN LAW. ' tf sures, ihe result of the interested schcni''^' of individuals, were often equally absurd as they were profligate. Athens often saw her best patriots, the wisest and most vir- tuous 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 of government. The laws relating to debtors were mild and equit- able, as were those which regulated the treatment of slaves. But the vassalage of women, or their absolute subjection to the control of their nearest relation, ap- proached near to a state of servitude. The proposer of a law, found on experi- ence impolitic, was liable to punishment; an enactment apparently rigorous, but probably necessary in a popular govern- ment. " One most iniquitous and absurd pecu- liarity of the Athenian, and some other It THE GRECIAN LAW. * " 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 opinion 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 dis- " graceful institution ever capable of the grossest abuse, and generally subservient to the worst of purposes, has stained the " character of Athens with many flagrant " instances of public i.igratitude." A full account of the laws of Athens may be found in Archbishop Potter's Archteologia Graeca, ]3. 1. The fragments of them were pub- lished by Petitus, with an excellent com- mentary. A splendid edition of this work, with his own notes and those of Palmerius, Salvinius, and Duker, was published by Wesseling, in 1742. IV. 2. This may be considered a suc- (( «c THE GRECrAN LAW. ^^ cinct view of the constitution of Athens, as it was estabhshed by Solon. Tlie following is a short account of their Forensic Proceed- ings in the civil administration of justice. All cases, respecting the rights of things, belonged 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, de- nounced the name of his adversary, and the cause of his complaint to the sitting magis- trate; and, if the sitting magistrate thought the cause of action maintainable, he per- mitted the complainant to summon the de- fendant: 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 pro- bable 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 r Hi! I ! I,,,, III if*] '■: lllf m '•|i! III!' 20 THE GRECIAN LAW. 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 cburt. The Archon then assigned the judges to try the cause, and they decided not only upon the fact, but upon the law of the case. « One mode of process in use at Athens, bears a resemblance to the modern prac- tice of trying the title to the freehold by ejectment. Tliat, in its original state, was an action brought by a lessee for years, to repair the injury done him by dispossessing him of his term. . To make it serve as a legal process for recovering the freehold, the law now supposes, that the party dis- possessed has entered 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 ejectment 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 ^3 THE GRECIAN LAW. ai incidentally and collaterally the title to the freehold is brought before the court. lu the jurisprudence of Athens, the guardian and ward were bo far identified, 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 pupilage, was without remedy. For his re- lief, the law authorized the Archon to sup- pose 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 pro- perty during the term; and, if he recovered, he became trustee of what he recovered for the ward. Thus, in each case, a fictitious lease was used as a legal process for bring- ing the real merits of the case to trial. Sir Matthew Hale, in his History of the Common Law, and Sir William Jones, in the Notes to his translation of Isseus, make particular mention of the law of succession at Athens. It is observable, that, though a "Hi' ' II I! ii II 22 THE GRECIAN LAW. general equality of property was one Before of the principal objects of Lycurgus's legislation, he assigned to the eldest son almost the whole of his parent s property, with an obligation of pro- viding for his sisters and younger bro- thers. X % < . \ _ ' _ V. With the death of Solon, the aera of Grecian legislation finishes, and the aera of her military glory begins. But, early in this brilliant period of her his- 490 tory, THE DECLINE OF THE LAWS OF ATHENS AND LA- CED^MON is discernible. With respect to Athens, 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 tliem : this lessened the ge- neral dignity of the magistrature, and introduced venality and disorder into 23 THE GRECIAN LAW, every department of the administration. Here, however, the mischief did not rest. As the poor were under a necessity of giv- ing almost the whole of their time to the labour, on which their daily sustenance de- pended, they had scarcely any opportunity of attending the public assemblies of the people; but, on the motion of Pericles, every Athenian, who assisted at a public assembly, received three oboli for his at- tendance: this increased the tumult and corruption 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 LacedcbmoUf the victories of Lysander and Agesilaiis carried the Spar- tans into foreign countries, and brought the wealth of foreign countries into Sparta. The consequence was, that what the Lace- daemonians gained by their mihtary suc- cesses, they lost in consequence of the de- cline, which those very successes occasioned, ii 7 i| rii 1!l!l 4 1! i ! ( .;, Ti: ! Ill •m iilililir li IJ 1 &F i:!ii!ll!!|l| 'lii 24 THE GRECIAN LAW. of the principles and habits of heroic Before Christ. virtue, Avhich the legislation of Lycur- gus had inculcated among them, and which had made them the wonder of Greece. - Insensibly the glory of Athens and Lacedaemon expired. At the battles of Leuctra and Mantinaea, they re- ceived a check, from which they never recovered. ^ At the battle of Cheronaea, king 337 Philip of Macedon obtained a com- plete triumph over the Athenians; and, by degrees, the laws of Solon fell into disuse. ' ■ ^ " ^ By the direction of Antipaler, to whom the general superintendence of the affairs of Greece was committed by Alexander the Great, when he set out on his expedition to Persia, they were restored, with some modifica- tions, by Demetrius Phalareus, and continued in that state, while Greece THE GRECIAN LAW. 25 Before Christ. 337 was subject to Alexander's succes- ^^ore •^ Christ sors 280 When the Romans conquered Greece, they allowed to the different states the use of their laws; insensi- bly the Romans acquired a taste for the arts and literature of Greece, and this particularly recommended the ^ Athenians to them. On a complaint by the Athenians, After Christ. that too many 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 Constantino was not so favourable to the Athenians; — in the Eniperor Julian, they had a zea- lous friend 360 By an edict of the Emperor Jus- tinian, the schools of Athens were shut up : this is generally assigned as the sera of the extinction of Pagan- ism, and of the absolute decline of : el m m !.:ii ■ ll'l I I 'I Hill iiii!!i;iil ,iil'i ;! iiii' iii -iliJIilllllllHI llllliliii !f!' ■ 1 ii ! ^^ i;:i!||i !2<5 TIIJE GRECIAN LAW. the philosophy and jurisprudence of ^^^,^ Athens 529 With the history of the decHne of the Laws of Lycurgus, we are less ac- quainted. Though in a state of de- cay, their appearance was venerable in the time of Polybius: perhaps they suffered less than the Laws of Athens, during the Macedonian influence in Greece; and probably they engaged less of the attention of the Romans; but we have no reason to suppose they long survived the Athenian Law. . On the division of the empire be- tween the sons of Theodosius, Greece was allotted to the Emperor of the East: it suffered much from the in- 395 cursions of the Goths under Alaric. In the twelfth century, the em- 1100 peror Manuel divided Peloponnesus among his seven sons: before this tinie, from the resemblance of its shape to that of a mulberry tree, THE GRECIAN LAW. V called Morea in Greek, and Morns m After Christ, Latin, it had received the appellation of the Morea. In the next century, 120p when Constantinople was taken by the Western Princes, the maritime cities of Peloponnesus, with most of the islands, submitted to the Vene- tians. In the fifteenth century, the 1460 whole Morea fell an easy prey to Mahomet II, after his conquest of Constantinople. Towards the close of the seventeenth century, the Otto- mans 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 1699 afterwards, it was regained by the Porte, and now forms a part of their empire, under the appellation of the Beglergbeg of Greece. It is governed by a military oflficer, called a Sangiac, who resides at Modon. I 4 iilii : iJiili!!; ■illiiliisi; 11 :ii i im' f vm ri i r. m\'\ m '1 w lii!l!l ! II ! 1 11 ' ■'"II' mil ll :: I ilil I i'l'ili' |||!||l;!| i-;lll;!' I|l{:{|i n THE GRECIAN LAW. Such have been the rise, progress, and decline of the Laws of Greece. The great influence of the Roman Law on the jurisprudence of modern nations is strikingly discernible, 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 appli- cable to the legislation as it is to the arts of Greece.^ ...,-,. * This article is principally extracted from Ubbo Emmius's Vetus Gracia Jlluatrata, 3 vol. 8vo, the best geographical account of Greece, which has yet appeared; from Archbishop Potter's Antiquities of Greece, a work of great learning ; from Bfuning's Compendiurh Antiquitatum Gra- carum; Francofurti ad Manum, 1 vol. 8vo. 1735^ an useful abridgment of the Archbishop's work ; from various treatises of Meursius, par- ticularly his Themis Attica ; from Mr. Mitford^s and Doctor Gillies's Histories of Greece ; and from Sir William Jones's Translation of Isaus, a lasting monument of his industry^ and his wonderful quickness in the acquisition of accu- rate and extensive knowledge, even of the ab- strusest kind. '/•;.;.-::'; '\r' ri- . ' ' > THE ROMAN LAW. , ':;.->5'J isL- y •A^ I. _ ,. . • • • , ^ ' Those, who wish to trace the ROMAN LAW to its origin, almost immediately find themselves obliged to form an opinion on a point which has been the subject of much discussion, and a decision upon which is not very easy, the degree of credit due to the histories, which have reached us, of the Jive first ages of Rome, The credibility of them was ingeniously attacked by M. de Pouilly, and as ingeniously defended by L'Abb6 de Salier, in their dissertations on this subject, in the M^moires de TAcad^- mie. In his discourses, Sur Vincertitude des cinq premiers siecles de I'histoz^e Momainej M. de Beaufort seems to have determined the question. By a variety of arguments. 1 1 'I'll nil' llill' " l{i|: liililiiill mi ''%ii i P III"' lllllij 30 THE ROMAN LAW. drawn from the scantiness of the materials, from which these histories appear to have been framed, from the romantic nature of several of the exploits recorded in them, the improbability of many, and evident falsehood of some of their relations, and from the contradict ions and absurdities, with which they frequently abound, he. shews that, at least, where they descend into particulars, they should be read with a considerable degree of distrust. "What they mention of the populousness of Rome, which, before the end of her second cen- tury, contained, by their accounts, 500,000 persons, appears incredible : but a smaller number would not have sufficed to con- struct the public works, with which, even then, Rome abounded. This circumstance has struck some modern writers 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 Pwm THE ROMAN LAW. 31 seat of a powerful empire. In pursuing this research, some have found such an em- pire among the Hctiuscans. With the par- ticulars of the history of that people, we are little acquainted; but we have certain information, that, long before the aera of the foundation of Rome, they were a flou- rishing state, excellent in arts and arms.' « See the Appendix to the ancient Universal His- tory, vol. 18. p. 187, and MafFei's Verona II- lustrata, B. I. The exprecaion of Livy, B. I. c. 2, is very strong, " Tanta opibus Etruria, ut " jam non terras solum, sed mare etiam per " totam Italiae longitudinem, ab Alpibus ad " fretum Siculum, famS, nominis sui implesset." On the other hand, the silence of Herodotus may be thought a strong argument against the existence of such a city in his time. ir W 11. ■ ■ 1 i', i • • . ». .. The first object in the study of the Ro- man Law, is to obtain an accurate view of the LIMITS OF THE COUNTRIES, in which it prevailed, before the dismem- berment of the empire. They may be ■ r II 'My k ! III! I ill Mill lill 82 THE ROMAN LAW. divided into Italy, the conquests of the Romans in the other parts of Europe, and their conquests out of Europe. ' ^^ >^ \ . II. 1. Itali^ lies 7* 19* East long, and 38. 47. North lat. : the Alps divide its north- em part from France, Switzerland and Ger- many; on every other side, it is washed by the Mediterranean. Its natural separation is into its northeni, central, and southern divisions. Its northern division contains 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 Ru- bicon to the Trento, near the Fortori, on the eastern sea, and from the Macra to the Silaro, on the vrestern ; and comprises Etruria, Umbria, Picenum, Sabiiiia, La- -tfds^.. * See Appendix, NOTE II. Ill j jliilil 1 1 u \ .m as THE ROMAN LAW. lium, Lavinium, and Campania, or Tus« cany, the Ecclesiastical State, and the ter- ritory of Naples : its southern part contains the remainder of Italy, the Marsi, the Sam- nites, 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 ac- count, 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 Mag- na Graecia, by the Romans : — the part be- tween Gallia Cisalpina and Magna Graecia, was called Italia Propria, or Proper Italy. The part of the Mediterranean, on the east- ern side of the peninsula, was called the Higher, and afterwards the Hadriatic Sea; ri ■iri 34 THE ROMAN LAW. i i M\ V'\' n U ili: i'i! ili the part on its western side, was called the liower or Tyrrhenean Sea. / . •- • ^ With respect to its Antient State, it is pro- bable, that the greatest part of Italy was in possession of the lietruscans, when, about the year C)G4> before Christ, Evander arrived in Latium, and built a small town called Palantiuni. It is supposed, that Latinus reigned there, about the time of the Trojan war; that, in his reign, iEneas landed in Italy, married Lavinia his daughter, and built Lavinium ; that Ascanius, the son of iEneas, built Alba; that Romulus descended from him, and laid the foundation of Rome 753 years before Christ. .. ■ ^ «^ The monarchical government of Rome subsisted about 250 years ; during the whole of this time, Rome was 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 re- lilii fi: I' t liili li ■■ THE ROMAN lAW. $3 maining part of Italy, from the Alps to its southern extremity: then the conflict be- tween her and Caithage commenced. From the destruction of Carthage, the aera of her foreign conquests may be dated; in the reign of Augustus, they reached the Atlan- tic, on the west; the Euphrates, on the east; the Rhine and the Danube, on the north; and Mount Atlas and the Cataracts of the Nile, on the south : under Domitian, they were canied to the Frith of Forth and the Clyde; and, under Trajan, over the Danube into Dacia, and over the Euphrates, into Mesopotamia and Armenia. . , i i II. 2. The European part of this spacious conquest cc^aained Hispania, or the king- doms of ;^|^»ttin and Portugal: — Gaul, which compn^d the whole country between the Pyrenees, the Ocean, the Rhine, and the Alps, or the present territory of France, with the addition of Switzerland: — Britannia, which comprised all England, Wales, and the lowland parts of Scotland, up to the i wM /' "A ! i' I > illill ^''i i ■lilli'i % m $6 THE ROMAN LAW. Frith of Forth and theClyde :-— theRhoetian and VindeHcian provinces, which nearly comprised the Orisons, the Tyrolese, and ^ part of Bavaria:— the Norican, Pannonian and Dalmatian provinces, which, under the general name of Illyricum, filled the coun- try between the Danube and the Hadriatic, up to ancient Greece: — Mcesia, which com- prised Servia and Bulgaria: — and Dacia, which comprised Temeswar and Transyl- vania, the only part of the Roman territory beyond the Danube; and Thrace, Mace- donia, and Greece, the Roumelia of the II. 3. The Roman Conquests out of Europe reached over Minor Asia, Syria, Phenicia, and Palestine ; over -^gy pt, as far as Syene ; and over the whole northern frontier of Africa. It should be added, that the coun- tries on the northern shores of the Euxine, from the Danube on the west to Trebizond on the east, were tributary to the Romans, ^ fe- ^H^^V /: v:.,i*s*. •■"'■■■, ' ' • ' . ' ^ • '' 1 1 ' ■ »' J. • • • ' '.• ^„. • • _ , THE ROMAN LAW. :■'■# 'V • ' received their kings from Rome, and had Roman garrisons.' f .*^ -V ■' -■ * This article is chiefly extracted from the second chapter of the first volume of Mr. Gibbon's his- 'j ,t"\ -is tory ; the geography of that work is unquestion- ., ably entitled to the highest praise. , /^ , .o. -'} These were the limits of the Roman empire ; her subjects may be classed under the following divisions. ' '' * i. . ' III. 1. The highest class of subjects was that of Roman citizens, or those who had the Jus Civitatis, " " .?jAt 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 oiit of an extensive plain, washed by the Tiber. At first, it was con- fined to the Palatine Hill: the Capitol was added to it by Titus Tatiils; the Quirinal, by Numa; the Celian, byTullus Hostilius; the Aventine, by Ancus Martins; and the li'iiiji ■ Hi! 'Ml ii; llil I : ^^! i\ ' 'HLii II il mi S» THE ROMAN LAW. Viminal and Esquinal by Servius Tullius, The city was surrounded by a wall; a slip of ground, on each side of it, was called the Pomcerium; the walls and Pomcerium were sacred : whoever extended the limits of the empire, had a right to extend the walls of the city: its last and greatest ex- tension, was in the time of the Emperor Aurelian: he inclosed the Mons Pincius and Campus Martius within its walls. In 850, Pope Leo added to it the Mons Vati- canus. 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 scites of the an- cient and modern districts or regions, con* siderably difler, ^ , At first, all who fixed their residence in any pait of the Roman territory, had the Jus Civitatisy or the rights of Roman citi- zens: afterwards the Jus Civitatis was con- ferred on few, and generally with limita- tions; in the course of time, it was granted ■ I' m THE ROMAN LAW. 39 to all of the Latin name. After the civil war, it was conferred on all 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: finally, Caracalla commu- nicated it to all the inhabitants of the Ro-' man world. - ^ , ' • The Jus Civitatis attached to those, who possessed it, the public rights and obliga- tions attending the census, or enrolment in t? /: censors' books; the Militia, or serving in the army ; the Tributa, or taxation ; the SufFragium, or voting in the different assem- blies of the people; the Honores, or public offices of the state; and the Sacra, or a participation in the sacred rites of the city: it conferred on them the private rights and obligations of liberty, family, marriage, parental authority, legal property, making a will, succeeding to an inheritance, and tutelage or wardship. The citizens of Rome were divvied into f !<1 ■ ' :i i, Mfm I,,, .L!,;;.,liil| Iff ii.!ln!iiil:!l "iliiili l!!l!ili! ill '!: ^ili i m III ::J 'I '■|i lilij ;!^il: ill; ' ; Nil 40 THE ROMAN LAW. Patricians or nobles, and Plebeians or in- ferior pei^sons, and the middle order, called the Equites. At an immeasurable distance beneath the Plebeians, 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 rights over them. . l^; ^ i : ^r> The Romans were divided into gentes or clans; their clans into families; their fami- lies into individuals. Each individual had a praenomen, by which he was distinguished from others; a nomen, which denoted his clan; and a cognomen, which denoted his farail}'^ ; sometimes an agnomen was added, to denote the branch of the family to which he belonged. Thus, in respect to Aulus Virginius Tricostus Coelimontanus, — Aulus, the praenomen, denoted the individual; Virginius, the nomen gentilitium, denoted that he was of the \ irginian clan; Tricos- tus, the cognomen, denoted, that he was of theTricostan family of that clan; and Coe- ; u ■ i I '''''if'!! THE ROMAN LAW. 4^ limontancs, the agnomen, denoted, that he was of the Coelimontan branch of that fa- mily: sometimes a further name was ac- quired, as Cunctator by Fabius, and Afri- canus by Scipio, in consequence of an If illustrious deed. III. 2. Next to the Citizens of Rome, were the Latins, or those who had the Jus Lata. Ancient Latium contained the Al- bani, Rutuli, and Mqui; 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 Praetor ; and that they had occasional access to the freedom of Rome, and a participation in her sacred rites. III. 3. The Italians, or those who had the Jus Itallcum, followed. All the coun- try, except Latium, between the Tuscan and Hadriatic seas, to the rivers Rubicon ly iJi ' 'VM i''iii;i'^ m 1 1 m ii ' 1' \-\'\\m 4$ THE ROMAN LAW. and Macra, was, in this sense of the worrf, called Italy: the Italians had not access to the freedom of Rome, and did not partici- pate in her sacred rites; in other respects, they were nearly on a footing with ^the Latins. *'^4' III. 4. Those countries were called Fro- unces, which the Romans had conquered, or, in any other way, reduced to their power, and which were governed by ma- gistrates, sent from Rome. The foreign towns, which obtained the rights of Roman citizens, were called Municipia. The cities or lands, which the Romans were sent to inhabit, were called Colonice; some consisted of Citizens, some of Latins, and some of Italians, and had therefore different rights. PrcsfecturcB, were conquered towns, go- verned by an officer called a Praefect, who was chosen in some instances by the people, in others by the Praetors. ^ r^ Civitates Fccderatce, were towns in alliance with Rome, and considered to be free. All illili ! , 4 THE ROMAN LAW. 43 -lip ■n THE ROMAN LAW. man empire was governed, from its first foundation by Bomulus, to its final subver- sion in the East, in consequence of the taking of Constantinople by Mahomet II. THE CIVIL LAW denotes that part of the Roman Law, which consists of the body of law, compiled by the orders of the Em- peror Justinian, and of the laws subse- quently enacled 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 foun- dation of Rome, and extends to the aera of the twelve tables; the second extends to the reign of the emperor Adrian; the third to the reign of the emperor Justinian. ^' .' IV. 1. As it was constituted by Romulus^ the Roman government consisted of an elective King; a Senate or Council, first of one hundred, and afterwards of two hun- dred nobles; and a general assembly of the THE ROMAN LAWl people. The command of the army, the administration of justice, the superintend- ence of religious concerns, with the office of high priest, belonged to the King; the Senate deliberated on all public business, and prepared it for the people; to them, the right of final determination upon it be- longed. The number of Senators was suc- cessively increased, to three hundred, by Tarquiniiis Priscus; to six hundred by Sylla; to nine hundred by Julius Caesar; Augustus reduced it to six hundred. That, during the monarchy, the King had the right of appointing the Senators, is clear: how they were chosen during the aira of the republic, has been the subject of much dispute: some, with M. de Vertot, M. de Beaufort, and Lord Hervey, contend that, as the Consuls succeeded to the royal power, they enjoyed the royal prerogative of filling up the Senate, till the creation of the Cen- sors, to whom it then devolved: others, with Dr.Middleton, and Dr. Chapman, con- ti I;' ill 40 , . THE ROMAN LAW. tend that the Kings, Consuls, and Censors, only acted in these elections, ministerially and subordinately to the supreme will of the people; with whom the proper and absolute power of creating Senators always resided. • ' : . . .,. . U: The people were divided by Romulus into three Tribes, and each tribe into three Curiaj. Their public assemblies were called the Comitia Cur lata : 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 portion of the community. To remedy this, Servius TuUius, the sixth King, divided the people into six classes, according to a valuation of their estates, and then subdivided the classes into an hundred and ninety-three 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 re- THE ROMAN LAW. maining part of the citizens into the sixth. The first class consisted of the richest citi- zens; the others followed in a proportion of wealth; the sixth consisted wholly of the poorest cJHzens. 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 firat century should have the first vote. This arrangement, while it seemed to give every citizen an equal right of suffrage, as all voted in their re- spective centuries, virtually gave the richer classes the sole authority: but it was gene- rally acceptable, as 'v conferred power on the rich, and immunity from taxes and the other burdens of the state, on the poor. These assemblies were called the Comitia Centuriata. For some purposes, however, particularly for the choice of inferior ma- I 'I il-!i:! ! I : V 1^1 ' ; f!l' ! I'll .. '..Ill .i;;li - ''.^i'f i'il'lll i ! ■ ! ;! ' :'!l| !■ (■!'■■ iliil 1 !: 1. -M ili ! '■ ill ii'iiiiii ■;iii); M » THE nOMAN LAW. gifltrates, 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 ihe last Tarquin, the Senate seems to have been permitted to retain, for some time, the constitutional power, under the regal state, of the mo- narchs whom they had dethroned: and to have used all means within their reach to perpetuate it in themselves. — 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 discussed; 3dly, that the Augur should ob- serve the omens, and declare whether they were favourable or unfavourable; — in the last case the assembly was dissolved; 4thly, that the assembly should vote; 5thly, that the Consul should report the resolution of M..'* '■-f ■ .;■ •f'? 'lU^ .o<'i^' if THE ROMAN LAW. 49 the people to the Senate; and, Cthly, that the Senate should confirm or reject it. IV. 2. These were the rights of the Con- suls, the Senate, and the people, at tlie commencement of the republic; several al- terations successively took place, in favour of the people, at the expence of the Consuls and the Senate. With respect to the Consuls, their dignity and power were, by degrees, parcelled c-^t among various magistrates :— thus their power of deciding in civil matters ^vas assigned: > \t ' ^1 ! ■ / «2 I I / iiir 1 1f ' 1 ii THE ROMAN LAW. rally were obeyed; and it seldom happened that, in matters of weight, the people en- acted a law, without the authority of the Senate. Thus the constitutional language of ancient Rome was, that the Senate should decree, and the People order. By the se- nators themselves, it was deemed an heinous offence, that any of their body, without their leave, should propose a measure to the people: but, in the decline of the Re- public, the leading 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. The determination of the. people, at the Comitia Centuriata, Comitia Curiata, or Comitia Tributa, was equally JCe^, or a Law of the '^tate; but when it passed in the Comitia Tributa, as it originated with the people, it was called Flebiscitum : the decrees of the Senate, were called -S'e7ia^Ms-Com'M/^a. vi THE ROMAN LAW. 1^3 IV. 3. The laws were distinguished , some- times by the name of the person who pro- posed them, as the law ^Emilia : sometimes, by the names of the Consuls, if they were proposed by both the Consuls, as the law Papia Poppaea : and sometimes, a mention of the nature of the law was added, as the Lex Fannia Sumptuaria.' ^F^ ^^ *' s^'^H^'h * See M. de Beaufort, La Republique Romaine; Paris, 1767, 6 vol. Svo. Letters between Lord '^ Hervey and Dr. Middleton concerning the Ro- man Senate ; London 1778^ 4to. and the \9,, \S, 14, and 15 Chapters of Montesquieu, 1. 11. .[ ;.. m'^ « ^^^.uhn 3d.hU^y>yr /VHIH i'nk ir.H • - ■ • ■ Fob obtaining an exact view of the HIS- 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, theTwelve Tables ; 3d, the abolition of the Decemvirs; 4th, the reign of Augustus; 5th, the reign of Hadrian : 6th, the reign of Constantine the w it ^1 y / /■ »: Si lit I ;:;i ' .! «4 THE ROMAN LAW. Great; 7th, the reiea of Theodosms Before the Second ; 8th, the reign of Justi- ^ nian; 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 discovery of the Pandects at Amalphi. A short view should be had of the principal schools in which the civil law has been taught, and a short ac- count of its influence on the jurispru- dence of the modern states of Europe. Anno Urbis Con- ditae. V. 1. V. 1. THE FIRST OF THESE PERIODS contains the state of Ro- man jurisprudence from the founda- 753 tion of Rome, till the aera of theTwelve Tables. As Rome was a colony from Alba, it is probable that her laws originated in that city. Several of them are actually traced to her first kings; particular mention is made of ■ I'.. /A. IHE ROMAN LAW. laws enacted by Romulus, Numa, and Before Servius TuUius. Historians ascribe to Romulus the primitive laws of the Romans, respecting marriage, the power of the father over his child, and the relation between patron and client : to Numa, their primitive laws respecting property, religion and in- tercourse with foreign states; to Ser- vius Tullius, their primitive laws re- specting contracts and obligations. It is supposed that, in the reign of the last of these kings, a collection of their laws was promulgated by pub- lic authority. The scanty materials which have reached us, of the regal I jurisprudence of Rom*^. lead to a con- I jecture that the Romans had attained ahigh deg^^e of legislative refinement before tl;e abolition of royalty. Tarquin, the last king of Rome, was expelled in .„..,.... 509 Not long before or after his expul- M *f Anno Uibis Con- ditflB. .5;'i 245 \i :■ ™|1;|. "t I • n m mS m^ if:T :'«!!!! I' ii''':;;:i! m m I mm J',- •■':!'■• 'Ill- n:lilV THE ROMAN LAW. :. , . sion, a body of the Roman law, as it then stood, was collected by Papyrius, and from him was called Jus Cmla PapyrianimL The president Terasson, in his Hisfdre da la Jurisprudence Romaintey Paris, 17«'>0j v\ frUo. p. 22 — 73, professes to lestore the original of this compilation }, ^s far as the mar terials, which have reached us, allow : ije has given us thirty-six laws, — fifteen o • hem as original texts, and twenty»one as the sulistance or sensp of tei^t? \yhich are lost. ''ill > r ■ , .-t 4 .. 1' V. 2, The second PERIOD OF THE HISTORY OF THE ROMAN LAW, is the aera of the Twelve Tables. ,i;3.>iii am During the first half century which fol- lowed the expulsioni 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 dis- use, and some new laws were enacted by the Ponsjuls. .;,"..; ],;.;:■- ,rv;-; .7 e^>::d'i' on I ■■J-". H.-?' , lil rlli' i u. :,,".;': ;h ' . • r /A Anilo Urbii Con- ditae. 'T I/' ■ tlLwM ■^'H-it< H 301 ^.'„ THE ROMA^ LAW. ' . ' 57 The arbitrary and undefined power Before of the Consuls in framing laws grow- ing very odious, three persons were sent into Greece, and probably to some of the most civilized states of Magna Graecia or Lower Italy, to ob- tain copies of their laws and civil in- stitutions 453 They returned in the third year af- ter their mission. Ten persons, called from their number Decemvirs, were then appointed to form a code of law for the government of the state, both in private and public concerns. This they effected, and divided 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 Jaw, adapted to the actual circum- :' ?' stances of the state of the people. ... 451 They were inscribed on twelve ta- '- -'^ ^3 of brass; and, from that circum- i ¥1 :k L ;.! » V^ 303 V i I L'l'n.i^ % ■'„■ 'iV Ni fl ■ 1 { 1 1 as . THE ROMAN LAW. Stance, 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: imme- diately after the expulsion 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. Gothofred's edition of these fragments, in his work intituled Fontes Quatuor Juris Ci- vilis, Geneva, 1653, in octavo, has obtained the universal applause of the learned: the fragments of them have also been published by the president Terasson ; and Pothier has inserted them in his Pandectce JustinianecBj with an interpretation, and an excellent commentary. The legislative wisdom of the Twelve Tables has been highly praised; but it has been thought, in some instances, immo- derately severe, 'i'hus, in respect to an in- solvent debtor, — after the debt was proved It ■ THE ROMAN LAW. 59 or admitted, they allowed him thirty days to raise the money, or find surety for its payment: at the end of the thirty days, the law delivered him into the power of his creditor, who might confine him for sixty days in a private prison, with a chain of fifteen pounds weight on a daily allow- ance of one pound 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 cre- ditor might sell him for a slave beyond the Tyber; if he was sued by several, the;) might put him to death, and divide his limbs among them, according to the amount of their several debts. Not hing can be urged in defence of this savage provision, if, as appears to be its true construction, the di- vision, which it directs to be made, is to b^ understood literally of the body, and not ot' the price of the debtor: but if, before the Twelve Tables, an insolvent debtor became / I I i- i : I y / / iiiil ill 00 . THE ROMAN LAW. the slave of the creditor, so that his liberty and life were immediately in the power of the creditor, the ultimate severity of the p/ovih;Oi.3 of the Twelve Tables should \je ascribed to the harsh spirit of the people, and the intermediate delays in favour of the debtor should Lc uscri^^ed to the humane policy of the Decemvirs. It may be added, that about two hundred years afterwards, the Petilian law provided that the goods, and not the body of the debtor, should be lia- ble to his creditor's demands; and that, at a subsequent period, the Julian law provided, in favour of the creditor, the Cessio Bono- rum, by which the debtor, on making over his property to his creditors, was wholly li- berated from their demands. Upon the whole, if we consider the state of society, for which the laws of the Twelve Tables were formed, v/e shall find reason to admit both their wisdom and their humanity. ■ ' Thejoun yofthe Decemvirs into Greece has been questioiicd by M. Bonamy, Mem. ■I '- ■#= THE GREriAN LAW. m\ 1 tk FAcademie, vol. xii. p. 27, 51, 75; and his doubts have been adopted by Mr. Gib- bon ; but the fact is either related or alluded to by almost every Roman author, whose works have come down to us: and some writers have professed to track the juris- prudence of Greece, even in the legislative provisions of the Praetors, Consuls, ana 'Lm- perors. ■"'* -"■■- ,• x-^t:;"*--^--? '«r'',i;v V. In proportion as Rome increased in arms, arts and the number of her citizens, the insufficiency of the laws of the Twelve Tables was felt, and new laws were passed. This insensibly produced, during the re- maining part of the period of the republic, which forms THE THIRD PERIOD OF THE HISTORY OF THE ROMAN LAW, that immense collection of laws, from which the civil law, as the Justini- anean body of law is called, was extracted, ■1:^ fla THE ROMAN LAW. and which, on that account, deserves par- ticular consideration, n^ ,. \ It was divided, like the law of Greece, into the written and unwritten law. The written comprehended the Leges, Plebis- cita, and Senatus-Consulta, which have been mentioned. , j:;;i^ v rM-.-uM ir r, *h>. 1. The first, and most important branch of the unwritten law of Rome was the Jm Honorarium, the principal part of which was the Edictum Pratoris. During the re- gal government of Rome, the administra- tion of justice belonged to the king: on the establishment of the republic, it devolved to the Consuls, and from them, to the Prae- tor. At first, there was but one Praetor; afterwards, their number was increased to two; the Praetor Urbanus, who administered justice among citizens only; and the Praetor Peregrinus, who administered justice be- tween citizens and foreigners, or foreigners only : the number of Praetors was afterwards increased, for the administration of justice I I II THE ROMAN LAW. * 4l> in the provinces and colonies. When the Pnetor entered on his office he published an edict, or system of rules, according to which he professed to administer justice for that year. In consequence of his oflcn al« tering his edicts, in the course of the year, laws were passed, which enjoined him not to deviate from the form, which he should prescribe to himself, at the beginning of his office. All magistrates who held the offices, which were ranked among the honours of the state, had the same right of publishing edicts; and, on this account, that branch of the law, which was composed of the edict of the Praetor, and the edicts of those other magistrates, was called the Jus Honorarium : but the edicts of the Praetor 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 influence of his decisions on Roman jurisprudence, that several writers on the Roman law men- tion his edicts in terms, which seem to im« r\ ri / .04 THE fiOMAN LAW. port that he possessed legislative, as^ well ai* judicial power; and make it difficult lo de- scribe with accuracy, what is to be under- stood by the Praetor's edict. Perhaps the following remarks on this subject will be found of use, and shew an analogy.^etween some parts of the law of which the hono- rary law of Rome was composed, and some- important branches of the law of England. — 1st. By the Praetor's edict, as those words apply to the subject now under considera- tion, civilians do not refer to a particular edict, but use the words to denote that ge- neral body of law, to which the edicts of the Praetors gave rise. — 2dly. It is to be observed, that the legislative acts of any stat6, form a very small proportion of its laws : a much greater proportion of them consists of that explanation of the general body of the national law, which is to be collected from the decisions of its courts of judicature, and which has, therefore, the appearance of being framed by the courts. n' it lliE ROMAN LAW. 65 A considerable part of the law, distinguished by the name of the Praetor's edict, was of the last kind ; and, as it was a consequence of his decisions, received the general name of his law. In this respect, the legal policy of England is not unlike that of Rome; for, voluminous as is the statute book of Eng- land, the mass of law it contains bears no proportion to that, which lies scattered in the volumes of reports, which fill the shelves of an English lawyer's library: and perhaps it woulc^ be difficult to find, in any edict of a Praetor, a more direct contradiction of the established law of the land, than the deci- sions of the English 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. Experience shews, that the provisions of law, on account of the general terms, in which they are expressed, or the generality of the subjects to which they are applica- ble, have frequently ar. injurious operation !i \ -':-^ M THE ROMAN LAW. I I ■- m :lli tr i in particular cases, and that circaaistance* frequently arise, for which the law has made no provision. To remedy these inconve- niences, the courts of judicature of most countries, which have attained a certain de- gree of political refinement, have assumed to themselves a right of administering justice in particular instances, by certain equitable principles, which they think more likely 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 their own. These privileges were allowed the PrcEtor by the law of Rome ; in virtue of them, he pronounced decrees, the gene^ ral object of which had sometimes a cor- rective, and sometimes a suppletory opera- tion on the subsisting laws. They were innovations; but it may be questioned, whether any part of the Preetor's law was a greater innovation on the subsisting juris- prudence of the country, than the decisions of English courts of equity on the statute THE ROMAN LAW. 07 of frauds. — 4thly. The laws of every coun- try allow its courts a considerable degree of power and discretion iu regulating the forms of their proceedings, and carrying them into effect; further than this, the Praetors power of publishing an edict, signifying the rules by which he intended the proceedings of his courts should be directed, does not ap- pear to have extended. — ThcriC observa- tions may serve to explain the nature of the Prffitor's jurisdiction, and to shew that the exercise of his judicial authority was not so extravagant or irregular as it has sometimes been described.** 2. A second source of the unwritten law of Rome was, the Actiones Lt^is^ and *Sb- lemnes Legnm Formnlce, or the Actions at Law, and Forms of Forensic proceedings, and of transacting legal acts. These, for some time, were kept a profound secret by the Palficians; but, Appius Claudius hav- ing made a collection of them for his pri- * Hee Appendix, NOTE III. 11 j '% Vm v..,;;i;! ! I m ■M fle THE ROMAN LAW. vate use, it was published by Cuaeus Flavius, his secretary. The Patricians then deviced new forms, and those were made public by Sextus ^lius. Those publications were called the Flavian and iElian Collections; all we have of them is to be found in Bris- son's celebrated work, De Formulis et So- lemnibus Populi Romani Verbis. 3. A third source of the unwritten law of Rome was derived irom the Disputationes Foru and the Responsa Prudentum. Men- tion has been made of the relation intro- duced by Romulus 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 persons of whose legal skill they had the greatest opinion. This was the origin of the Jurisconsulti or Civilians of Rome; they were, generally, of the Pa- trician order; and, from succeeding to this branch of the duty of patronage, received THE ROMAN LAW. 69 tHe name of patrons, while those, by whom they were consulted, were called clients. The patron received his client with a solem- nity bordering on magisterial dignity; and generally delivered, in a few words, his opi- nion on the case which was submitted to his consideration; but he sometimes ac- companied it with his reasons. These con- oultations usual!}' took place at an early hour in the morning: the broken slumbers of the Civilians are mentioned by every Roman poet v hose muse has led him to describe the inconveniences which attend distmction and fame. Legal topics were often subjects of the conversations of Civi- lians; and tli^ forum, from their frequent resort to it, bemg the usual scene of these friendly disputations, gave it'i name to them. Thejr also pi*blish*;d treatises on legal sub- jects. Their opinions and legal doctrines were highly rt^peoted ; but, till they were ratified oy a judKrtal decision, they had no ottier w#ight tlian what they derived from . il i ? .; m .k ji I 'iSSlI ill 70 THE ROMAN LAW. the degree of public estimation, in which the persons who dcUvered them were held. The Civilians are commonly divided into three classes ; those, who flourished between the ffira of the Twelve Tables, and the ..ge 6f Cicero; those who flourished from the age of Cicero, to the reign of Severus Alex- ander; and those who floiuished from the beginning of his reign, to that of the Em- peror Justinian. The second, is tlie golden period of Antejustinianeah jurisprudence. From the fragments which have reached us, of the works of the Civilians who flourished during that period, modern writers have - thought themselves justified in describing . them as men of enlarged minds, highly cul- tivated understandings, and great modesty. In their judicial studies they availed them- . selves of the learning and philosophy of the Greeks, carried the disputes of the schools ■1. of Athens into the Forum; and, early in the ' period of which we are speaking, branched . into two sects, whose opposite tenets were '/> THE ROMAN LAW. 71 founded on principles, not unlike those, which gave rise to the distinctive doctrines of the disciples of Zeno and Epicurus. An- tistius Labeo was the founder of the former sect; AteiusCapito of the latter: fromPro- culus and Pegasus, two eminent followers of Labeo, the former were called Proculei- ans or Pegasians; from Masurius Sabinius and Cassius Longinus, two eminent follow- ers of Capito, the latter were called Sabi- nians or Cassians. The former contended for a strict adherence to the letter and forms of the law ; the latter for a benign interpre- tation of it, and for allowing great latitude in the observance of its forms. Attempts were made to compromise the difference between them: they gave rise to a third sect, the Jurisconsulti Erciscundi, or Miscal- liones. Something of the difference which subsisted between the disciples of Labeo and Capito, has long subsisted in the juris- prudence of England; but the good sense of the English bar has prevented the main- i, 7» THE ROMAN lAW. p tainers of the different opinions from form- , . ing themselves into sects. Till the reign of Augustus every person was at liberty to de- liver judicial opinions; Augustus confined this privilege to particular persons, with a view, it is supposed, of their propagating those doctrines of law, which were favour- able to his political system; the Emperor Adrian restored the general liberty; the Emperor Severus Alexander assigned it the limits within which it had been circum- scribed by Augustus, These are tlie materials of which the written and unwritten law of Rome was principally formed, v. 4. THE rOURTH PERIOD OF before Christ THE HISTORY OF THE RO- MAN LAW, is that which fills the space between the time when Julius Caesar was made perpetual Dictator. 46 ftnd the reign of the Emperor Adrian. ■ Anno Urbis Con- ditae. 708 THE ROMAN LAW. 74 7L'he power of Julius Ca?sar, in conse- Before (pence of his perpetual dictatorship, placed him above law ; but it does not appear that he ir, ide many innova- tions, of a general nature, in the Ro- man jurisprudence. That was left to Augustus, his heir and succe^is, . At different periods of his reign, the peo- ple conf-rred on Augustus ine various titles v^f Perpetual Tribune, Consul, Proconsul, Censor, Augur, and High Priest: thus, in effect, he acquired both the civil and military power of the state ; but, as he professed to ex- ercise it in virtue of those offices, his I acts had the appearance cf being the acts of the different magu Urates, whose offices had been conferred on him. Finally, in the year of the city, l6 735, power was given him to amend or make whatever laws he should think proper. This was the comple- tion of the Lex Regia, or of those Anno Urbit Con- dU«. 735 . n 74 THE ROMAN LAW successive laws, which, while they permitted much of the out ward form of the repubhc 10 remain, invested the enip lor with abso- lute power. ; . ' > During the whole of Augustus's reign, the forms of the Leges and Senatus-con- sulta, those vestiges of dying liberty, as they arc called by Tacitus, were pri^served. 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 of free discussion: by degrees, even that vanished, and insensitly the Se- nate served for little more than a nominal THE ROMAN LA^V . " •• / council of the Emperor, an office lo regis- ter his ordinances, and a court of judicature for great public causes. This memorable revo^- % n in the func- tions of the Senate, wii ' even the forms of Roman liberty ..^ ci , must be dated from the Emperor Adrian, and forms the FIFTH PERIOD OF THE HIS- TORY OF THE ROMAN LAW. He was the first of the Emperors who exercised, without disguise, the plenitude of legislative power. With him therefore, the Imperial Constitutions, under the various names of Rescripta, Epistola?, Decreta, Edicta, Prag- malica; Sanctiones, Orationes and Anno- tationes, originated; they had the force of law in every part of the Roman state. Under his reign, Julian, a lawyer of great eminence, digested the Praetor's edicts, and other parts of the Jus Honorarium, into a regular system of law, in fifty books. This n ; ^1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I kiU2A |Z5 |50 "^ 1^ ■^ 1^ 12.2 ^ 11'-^ !'•* < 6" ► Hiotographic Sciences Corporation "^■^^ 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716) 872-4503 4' s ^ ..,1: ^ t,,f \ I f0 THE ROMAN LAW. compilation was much esteemed; it was referred to as authority, and ob- tained the title of Edictum Perpetuiim ; all the remains of it, which have come down to us, are the extracts of it in the digest; they have been collected with great attention, by Simon Van Leeuwen, at the head of the Digest, in his edition of Gothofred's Corpus Juris Civilis, Lugd. Batav. 1663. It was a remarkable effect of the Edictum Ferpetuum, to put an end to the legal schism of the Sabinians and Proculians. By countenancing the former, in the Edictum Perpetuum, the Emperor Adrian terminated the dispute. >jir ^:.- After this came the CodCiV Gregori- anus; a collection of Imperial consti- tutions, from Adrian to Dioclesian, by Gregorius or Gregorianus, Prae- torian Praefect to Constantino the After Chrut. 120 ^MS- '?/■#? '^'^H 284 / ■ THE GRECIAN LAW. n This was succeeded by the Codex After ChrUU Hermogenianus, a continuation of tlie former code, by Hemiogenes, a con- temporary of Gregorius or Oregon- anus. V. 6. The sixth PERIOD OF THE ROMAN LAW extends from the reign of Constantine the Great to that of the Emperor Theodosius the Se- cond. It is particularly remarkable for having furnished many new arti- cles of great importance to the juris- prudence of Rome. . . .V . . . They chiefly arose from the foun- dation of Constantinople, the new forms of civil and military govern- ment introduced by Constantine, the legal establishment of Christianity, and the division of the empire be- tween the sons, of Theodosius the 306 '■J', Et :.-^«f^^^ 'I ■ i if ■I i 78 THE ROMAN LAW. Great. To the first may be referred numerous laws, respecting the privi- leges and police of the imperial city; to the second, an abundance of legal ' provisions, respecting the various offi- cers of the empire, and the ceremo- nial of the Byzantine court; to the third, a succession of imperial edicts, by which Christianity was first tole- rated, then legalized, and afl;erwards became the established religion of the state. The division of the empire between the sons of Theodosius, in 395, was attended with still more important effects on Romar ' ^sprudence. *' < . After Christ. ■•■fiV- .I'i-: '.iuS^-7- The variety of laws, principally oc- casioned by the circumstances which have been mentioned, introduced a considerable degree of confusion into the Roman jurisprudence. To remedy :if "M 395 '■n:'''^' J\""r7"i'' i '■ t' r, ■- « - ' : r' -i THE ROMAN LAW, 79 it, Theodosius the Second, the Em- After Christ. peror of the East, published, in 438, the celebrated code of law, called from him the Theodosian Code, which forms THE SEVENTH PERIOD OF THE HISTORY OF THE RO- MAN LAW. It comprises all the imperial constitutions from 312, the year in which Constantine was sup- posed to have embraced Christianity, to the time of its publication. It has 438 not reached us entire: an excellent edition of the remains of it was pub- , u lished by James Gothofred, at Lyons, 4 i in 1668, in six volumes folio, generally > ; t* bound in four. It is accompanied ./ with Prolegomena, introductory chap- ters, a perpetual commentary and ^ , notes; the labour of thirty yeai-s; and ; , - no one, as Doctor Jortin justly re- . niarks, ever thought the time thrown away. No work perhaps can be men- tioned, which contains more informa- ,il i: I \ trtE ROMAN LAW. i)\ m.l'^y^ tion on the antiquities of the early AAer Christj ages of the lower empire. In addition to the Theodosian Code, it comprises the subsequent novells of the Empe- rors Valentinian, Martian j Majorian, Severus and Anthemius. Immediately after the publication of the Theodosian Code in the east* ern empire, it was received into the empire of the west, by an edict of Valentinian the Third. In the east^ it retained its force, till it was super* seded by the Justinianean collection^ It retained, but indirectly, its au- thority longer in the west. The Bar- barians, who invaded the empire, per- ^ mitted the Romans to retain the use ^ of their laws. In 506 Alaric, king of 506 tlie Visigoths in Gaul, ordered a legal fj^^* code to be prepared, in which the ;^ Roman and Gothic laws and usages should be formed into one body of law, for .the general use of all his sub- i.ifiA'i'-'iJi' 'MA . THE ROMAN LAW. 81 jects; this was accordingly done in the twenty-second year of his reign; and from Anianus, his Referendary, or Chancellor, by whom it was either compiled or pub- lished, it was called the Breviarium AnianL It is an extract from the Gregorian, Her- mogenian, and Theodosian Codes, the no- veils of the subsequent Emperors, the sen* tences of Paullus, the Institutes of Gains, and the works of Papinian. It superseded the use of the former laws so far, that, in ■^. short time, they ceased to be cited in the courts, or by writers on subjects of law; and Anianus's collection, under the name of the Roman or Theodosian law, became the only legal work of authority.'' • ;>' To this period also, must be ascribed the celebrated Collatio Mosaicarum et Romana- rum Legum : the object of it is to shew the resemblance between the Mosaical institu- tions and the Roman law : the best edition of it is F. Desmare's in 1 689. . • '^- ^ See the leaxnedProlegomena ad Codicem Theodo- stanum of Gothofred. G ' i i. i:. ' I. I 1 IB .«i''l »i THE ROMAN LAW. / / i:«iinii n m n V. 8. The eighth, AND MOST IMPORTANT, PERIOD, of the jilstory of the Roman law, comprises the time in which the body of law, compiled by the direction of the Em- peror Justinian, was framed. > 1. By his order, Trebonian, and nine other persons of distinction, in the first year of his reign, made a col- lection of the most useful laws, in the Codex Theodosianus, the two earlier codes of Gregorius and Hermogenes, and the constitutions of some suc^ ceeding emperors. It was immedi- ately published by Justinian, and is called the Codex Justinianeus Primes Prculectionis. . '. .^'. . '. . * • 2. But his great work is his Digest or Pandects. By his direction, Tre- bonian, with the assistance of sixteen persons, eminent either as magistrates Aftei* ChrisU .• ( L "■■/LV/ .. • ■ i ..'. 1 ' ' f I ■ . t 528 THE ROMAN LAW. f^ or professors of law, extracted from After. *^ Christ the works of the former civilians, a complete system of law, and digested it into fifty books. . . . ^ . . . 533 I 3. Previously to its publication, an elementary treatise, comprising the general principles of the system of jurisprudence, contained in it, was promulgated, by the Emperor's direc- tion, in four books. From its con- • * f tents, it was called The Institute$, Thus the Digest, and Institutes were formed into a body of law, by the au- . ^ thority of the Emperor. He addressed them, as imperial laws, to his tribu- nals of justice, and to all theacade- J j mies, where the science of jarispru- ; , ; « dence was taught: they were to su- ' ; ;^ persede all other law, and to be the !*) only legitimate system of jurispru- - ^ dence throughout the empire. * ' • ^^ 4. In the following year, he pub- / -if lished a corrected edition of the code, * i ;;| .-9 f r A ■ m :i •4 THE ROMAN LAW. under the title Codex Repetita: Prelec" tionii. This wholly superseded the first code; and, except so far as it has been preserved in the latter, it is wholly lost 5. The edicts which he promul- gated, after the new edition of the Codex, were collected into one vo- lume, in the last year of his reign, and pttblii^hed Under the name of ^o- veUce, .........< 6. Most of the iJovellse were writ- ten in the Greek language. In the last year of Justinian's life, a Latin trans- lation was made of them; and, by the fidelity with which it was exe- cuted, obtained the appellation of the Volumen Authenticum, •. .' 'iT . . Other translations of the Novelliae have appeared: that, published at Marburgh, in 1717, by John Frede- rick Hemburghj has the character of being extremely well executed, and i» After Christ. 534 ii "■ri^ i; ; ■ !\': :- \ '■ sm S6B THE ROMAN LAW. 85 accompanied with a valuable commentary and notes. 7. In most editions of the Corpus Juris Civilis, the Novells are followed by the Book^ of FiefSf the Constitutions of Conrade the Third, and the Emperor Frederick, under the title of Decima Collatio, and some other articles. But these make no part of what is called the Corpus Juris Civili?: that con- sists solely of the Pandect^, the Institutes, the Codex Repetitee Praelectionis and the Novells. : ■'- •-^'- ' ^' ^'.'■v;...r:,;:v"L...A.,i,....-i^.., . , ...: . 8. -On the general merit of Justinian* s CoU lection, as a body of written law, able judges have differed: the better opinion seems to be that it is executed with great ability, but that it is open to much objection, the Respon^a Prudentum sometimes being un- faithfiilly given in it, contradictory doctrines having found their way into it, its style ber ing often too flowery, and its innovation^ on the old law, sometimes being injudicious. Heineccius, wl^ose te^tiinony^ in this c^^e, ..'■V, ,. ^ / itf THE ROMAN LAW.' is of the greatest weight, at first judged of it unfavourably: but afterwards changed his opinion : he mentions, in high terms of commendation, the defence of it by Hube- rus and the Cocceii; and asserts that the cause must now be considered as decided in its favour. Hist. Juris Romani, Lib. I. J. cccc. •■■' • *' '• • The very attempt to lessen, by legislative provisions, the bulk of the national law of any country, where arts, arms and com- merce flourish, must appear preposterous to a practical lawyer, who feels how much of the law of such a country is composed of received rules and received explanations. ."What could an act of the Imperial Parlia- ment substitute in lieu of our received ex- planations of the rule in Shelly's Case? The jurisprudence of a nation can only be es- sentially abridged by a judge^s pronouncing a sentence which settles a contested point of law, on a legal subject of extensive ap- plication, as Lord Hardwicke did by his «,ii ■• ^K THE ROMAN LAW. «; decree in the case of Willoughby versus Willoughby; or by a writer's publishing a work on one or more important branches of law, which, like the Essay on Contingent Remainders, has the unqualified approba* tion of all the profession. One circumstance, however, may be urged, as an unquestionable proof of the Justinianean Collection's possessing a very high degree of intrinsic merit. Notwith- standing the different forms of the govern- ments of Europe, and the great variety of their political and judicial systems, the civil law has obtained either a general or a partial admittance into the jurisprudence of almost all of them: and, where it has been least favourably received, it has been pronounced a collection of written wisdom : this could not 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. ' u M y 98 I iPPf :f: ,*wV. THE ROMAN LAW. .<;i\'^.o :;.JI V. 9. >^;., ■;://■;; J.t+'4'.'3;iw- - 9. The fate of this venerable body After Christ. of law, promulgated with so much -^ pomp, and possessing so much intrin- sic merit, is singular, and forms THE NINTH PERIOD OF THE HIS- TORY OF THE ROMAN LAW. The reign of the third successor of , * . . . . . ^ Justinian, was the last, in which it ^ maintained its authority in the west. After that timcj all law and regular government were rapidly destroyed by the Barbarians who invaded 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 as- signed as the sera of the final extinc- tion of the Roman law in Italy. . . 753 It lingered longer in the east: in strictness even, it cannot be said to 4 THE ROMAN LAW. «9 have wholly lost its authority, m that After Christ. part of the empire, till the taking of Constantinople, by Mahomet the Se- , i cond. In the life time of Justini^, .. 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. r The successors of Justinian pub- lished ditterent laws, some of which have reached us. In the reign of B»- i silius the Macedonian, and his sons Leo the philosopher, and Constantine Porphyrogeneta, an epitome, in sixty books, of Justinian's Code, and of the constitutions of succeeding emperors, was framed, under the title of Basilica, 906 Forty-one of the sixty books were splendidly published by Fabrotti, at Paris, in 1647, in seven tomes in folio; four more have been published in Meerman's Thesaurus. ^ 111 1^ 90 THE ROMAN LAW. y"" That the Basilica superseded, in the eastern empire, the immediate au- ' thority of the Justinianean collection, is true; ^ut, that the Justinianean col- lection formed a considerable part, and was, in fact, the ground- work of the Basilica, is unquestionable. Thus, through the medium of the Basilica, the code of Justinian, in a great de- gree, directed or influenced the juris- prudence of the eastern empire, to the latest moment of its existence.' • See Appendix, NOTE IV. After Christ. ■t. :y\> 1453 V .. f. . . '. V. 10. The text of the Pandects being al- most wholly lost, accident led, some- time about the year 1137, to the dis- covery of a complete copy of them, at Amalphi, a town in Italy, near Sa- lerno. This forms the TENTH PE- RIOD OP THE HISTORY OF fl\ THE ROMAN LAW. 91 THE ROMAN LAW. From Amal- After Christ. phi the copy found its way to Pisa ; and Pisa having submitted to the Flo- rentines, in 1406, the copy was re- moved in great triumph to Florence. 1406 By the direction of the magistrates of the town, it was immediately bound, in a superb manner, and deposited in ' ' "* a costly chest. This copy of it is ge- nerally called the Florentine Pandects. Formerly they were shewn only by ^ torch light, in the presence of two ^ • 'magistrates, and twoCistercian monks, with their heads uncovered. They have been successively collated by Politian, Bolognini, and Antonius Au- gustinus; an exact copy of them was published, in 1553, by Franciscus Tau- rellus; for its accuracy and beauty, this edition ranks high among the ornaments of the press: it should ' be accompanied, w^'\ the treatise of Antonius Augustinus, on the proper I' '\ 't ' j Hi I i u / ftl THE ROMAN LAW. names in the Pandects, published by him at Tarragona, in 1579- About the year 1710, Henry Brenckman, a Dutchman, was permitted, at the earnest solicitation of our George the First, to collate the manuscript. He employed ten years upon it, and in the investigation of various topics of literature connected with the Justinianean Code. His elegant and curious Historia Pandectanim, 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 imagination, exqui- site taste, minute and patient investigation, and the soundest judgment, may be found in the same mind. — 'Some have supposed that the Florentine manuscript, is the auto- graph of the Pandects; for this opinion there is no real ground or authority; but Brenckman refers it to the sixth century, a period not very remote from the aera of Justinian. Brenckman's work forms a small part of an original design, and is so ably NN THE ROMAN LAW. d'S executed that all mast lament his having left any part of Lis design unfinished. — See Georgii Christiani Gebaveri Narratio de Hen'- rico Brenkmanno, %• de ManuscHptis Brenk- mannianis, Gottingce 1764. The possession of Brenckman's Manuscripts would be a valuable acquisition to a Public Library. Three editions of the Pandects are parti- cularly distinguished, — the Norican Edition published by Holoander, at Nuremburgh, in 1529, in three volumes, quarto: the Flo- rentine, 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 Florentine edition. The best editions for general use appear to be Pothier's Pandectee Justini- aneae, published at Lyons in 1782, in three volumes folio; and that of Dionysius Go- thofred, published by Simon Van Leeuwen at Leyden in 1663, in one large volume^ generally bound in two: — It contains the ': I '. t i n m 9* THE ROMAN LAW. ..R J • Institutes, the Digest, the Code, the Fasti Consulares, Freher's Chronologia Imperii Utriusque, Gothofred's Epitome of the No- vells of Justinian, various other edicts and novell constitutions, Frederici II. Imp. Ex- travagantes, Liber de Pace Constantise, Go- thofred*s Epitome of the books of the Fiefe, an extensive synopsis of Civil Law, the fragments of the Twelve Tables, the Tituli i6f Ulpian, and the opinions of Paulus, with notes, and copious indexes to the whole." i* ■ .■. iji-.f •'• Svo.—'The ^vritings of Heineccius are a striking proof of the truth of Mr. Gibbon's observation^ vol. 4. 395, note 160, " that the universities of " Holland and Brandenburgh, in the beginning * " of the last century, appear to have studied the " civil law on the most just and liberal princfi p[ea:"'—theworksofGravinafqn (he Civil Law^ ( ■ , > .\ •• THE ROMAN LAW. 9^ t t VI. These lead to an inquiry respecting THE PRINCIPAL SCHOOLS, IN WHICH I «" .■ i ^^^' y" ^y Leipsia 1717> in three volumes 4to. particularly his Origines Juris Civilis; Gravina's account of the Leges and Senatus Consulta is particularly interesting: Brunquellus's Historia Juris Ro- mano-Germanicif Ams. 1730^ 8vo. perhaps the completest historical account extant of the civil law ; Struvius's Historia Juris Romani, Jena, 17 18, 4to.Pothier'sProlegomena to hiaPandecta Justinianete,Lyons, Svols.fol. Terasson*sHistoire de la Jurisprudence Romaine, Paris, 1750, said by Mr. Gibbon, 4th vol. note Q, to be " a work " of more promise than performance ;" Thoma- sius's Detineatio Historia Juris Romani et Ger- manici, Erfordia, 1750, 8vo. and his Navorum Jurisprudentia Romana Libri duo. Halts Mag- deburgicee, 1707, 8ro. — they contain a severe attack on the Justinianean collection^ the em- peror, and all other persons concerned it: Mon- tesquieu^s Esprit des Loix, a Work entitled to all the praise it has received; no one, who has not travelled througb the Corpus Juris and the Ca- pitularies, can form an idea of the comprehen- sive brevity and energy with which it is written. Dr. Bever's History of the Legal Polity of the Roman State, Lond. 1781, 4to. Dr. Taylor's Elements of the Civil Law, Camb. 1755, 4to. >' ' I ill • I I / 90 THE ROMAN LAW. THE CIVIL LAW HAS BEEN TAUGHT since its revival in Europe. In the early days of the republic, it was usual for such as desired to gain a know- ledge of the laws of their country, to attend on those, who were consulted on legal sub- jects, at the hours, in which these consulta- tions generally took place. Tiberius Co- runcanius is said, by Cicero, to have been the first among the Romans, who professed a work, if we acquiesce in Mr. Gibbon's opinion of it, 4th vol. note 132, *'of amusing, though " various reading ; but which cannot be praised " for philosophical precision;" The four Booka of Justinian, translated hy the late Dr. Harris, ,; with notes and a preface; the translation is ex- cellent, and it is much to be lamented, that the preface is not longei", and the notes more copi- ous J Ferriere's Histoire du Droit Romnitie, Pa- ris, 1783, 8vo. Beaufort's Republique Romaine, Paris, 1767, 6 vols. Svo. an excellent constitu- tional history of the Roman Government : — The 44th Chapter of the 4th Volume of Mr. Gibbon's ^ , JJistory ; M. Bouchaud's Recherches Historiques $ur les Edits desMagistratsRomains, Quatrieme Memoire, Mem. de V Academie, 4\st Vol. p. 1, and Mr. Schomberg's Elements of Roman Law, London, 1786, 8vo. If THE ROMAN I*K --,..-'! ?r With the discovery of the Pandects at Amalphi, the study of the civil law revived : — it was introduced into several universi- ties, and exercises were performed, lectures read, and degrees conferred in this, as in other branches of science, and several na- tions of the continent, adopted it, as the basis of their several constitutions. From this time, there has been a regular suc- cession of civil lawyers, distinguished by some circumstance or other into different ( 1 1 ! I . , , — • • >^ : ' BiHBflB''''' * 1 ■Hi'' w Ini ' i'H .: I'MB / . ■ 1 * • , jgr . THE ROMAN LAW. classes, or as it is usually expressed, into different schools. . . r^, 1. The first, is the school of Imerim^ a learned German, ivho had acquired his knowledge of the civil law, at Constanti- nople. He taught it at Bolqgna, with great applause: the legal schism which had di- vided the Sabinians and Proculeians, was revived, in some degree, among his scho- lars: one of them, was the celebrated Azo, a Proculeian, whose writings^ Montesquieu is said to have preferred to all other on the subject of civil law. A more important subject, the contest between the emperors and popes, produced a more serious war- fare between the disciples of Irnerius. The German emperors, who pretended to suc- ceed to the empire of the Caesars, claimed the same extent of empire in the west, and with the same privileges, as it had been held by the Caesars; to this claim, the spirit and language of the civil law being highly fa- vourable, the emperors encouraged the civi- 111 ,.#c: i' ■ tl\ » t THE ROMAN LAW. ott Hans; and, in return for it, had their pen$ 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 found, in the law of Justinian, to favour the pretensions of the emperors. Thus, generally speaking, the civilians were Glii- belins, 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 civi- lians, who sided with the canonists in these . disputes, were called from the decree of Gratian, Decretistae, in opposition to the - rest of the body, who assumed the appel- lation of Legistae, from their adherence to the supposed Ghibelin doctrines of the civil law. 2. A new school began with Accursius : — hi« I. t h ^ ^00 y HE ROMAN LAW. Gloss is a perpetual commentary on the text of Justinian: it was once considered as legal authority, and was therefore usually published with the text: — it is even now re- spected as an useful commentary. Accur- sius had many disciples, whose glosses had great celebrity in their day, but a^o k)V' ■ ■ ♦ wholly forgotten. \ 3. Bartolus, and Baldus his diiiciple and rival, gave rise to a new school, famous for .copious commentaries on Justinian's text; for the idle subtleties witli which they abound, and their barbarous style. 4. Andrew Alciat was the first who united the study of polite learning and antiquity, with the study of the civil law : he was the founder of a new school which is called the Cujacian from Cujas, the glory of civilians. Of him, it may be said truly, that he found the civil law of ^'ood. and left it of marble. That school h'd« '3uv>isted to the present time; it has never been without writers of the greatest taste, judgment and erudition; Hw' ,v • ' ■ _ 1 • '" ' , . # r THE ROMAN LAW. loi the nnuies of Cujacius, Augustinus, the (Jo- thofredi, Heineccius, Voetius, Gravina, and Pothi*^r, arc a dear to the scholiu, as they are to tlie hiwyer. An Finglishmai\ how- ever, must reflect wltli pleasure, that his countryman, Mr. Justice Black'Ntoiic's Com- mentaries on the Laws of England, will not suffer in a comparison with any foreign work of jurisprudence ;— perhaps it will be difficult to name one of tlu same nature, which will bear a comparison with it." This article is chiefly taken from the cited works of Gravina and Brun^uellus. ? *ir >;: •VtV ^J^- ;r 1 ^<|4 1 VII. It remains to give some account of THE INFLUENCE OF THE CIVIL LAW ON THE JURISPRUDENCE OF THE MODERN STATES OP EU- ROPE. 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; y 102 THE ROMAN LAW; all of them allow that more causes are de-* cided in their courts, by the rules of the civil law, than by the laws of Germany; r and that, where the laws of Germany da jiot interfere, the subject in dispute must be tried by the civil law; after these conces- sions, it is not material to inquire, whether, to use the language of the German lawyers, the civil law be the dominant law of Ger- many, or subsidiary to it. The same may be said of its influence in Bohemia, Hungary, Poland and Scotland. At Rome, and in all the territories of the pope, it is received without limitation; in most other parts of Italy, including Naples and the two Sicilies, it has nearly the same influence; except wher^ the feudal policy intervenes, ' Its influence in Spain and Portugal is more qualified; but it appears to be ad- mitted, that where the law of the country does not provide the contrary, the civil law shall decide : and it is the settled practice, ill .:,;|„j THE ROMAN LAW. 103 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 near- est to Italy, were the first conquered by the Romans, and the last conquered by the Francs. At the time of the conquest of them by the Francs, they were wholly go- verned by the Roman law: they are the provinces of Guy enne, Provence, Dauphine, and speaking generally, ah tne provinces, under the jurisdiction of Toulouse, Bour- deaux, Grenoble, Aix, and Pau; the Lyon- nois, Forez, Beaujolois, and a great part of Auvergne. Their Francic conquerors per- mitted them to retain the Roman law; where it has not been altered, they are still governed by it: and, from this circum- stance, they are known under the general name of the Pays du Droit Ecrit. The re- maining part of France is governed by the : m ' i / 104 THE ROMAN LAW; -iilfflif different laws and customs of the provinces of which it is composed, and from this cir- cumstance, is called, Pays Coutumier. ■ ; The Venetians have always disclaimed the authority of the civil law. . , ;./ . It was introduced into England by Theo- bald, a Norman Abbot, who was elected to the see of Canterbury. He placed Roger, sirnamed Vacarius, in the university of Ox- ford: — students flocked to him in such abundance, as to excite the jealousy of go- vernment, and the study of the civil law was prohibited by King Stephen. It con- tinued, 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 neces- sary to go through a regular course of civil law, to qualify themselves for 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. Notwithstand- ^.'^^>i'- THE ROMAN LAW. iOS ing this opposition, the study of the civil law has been encouraged in this country :— in each of our universities there is a pro- fessor of civil law, and, by general custom and immemorial usage, some of the insti- tutions of the civil law have been received into our national law. In the spiritual courts, in the courts of both the universi- ties, the military courts, and courts of ad- miralty, the rules of civil law, and its forai of legal proceeding greatly prevail. But the courts of common law have a superin- tendency over these courts, and from all of them, an appeal lies to the King in the last resort. " From these strong marks and en- *' signs of superintendency it appears be- " yond doubt,'* says Mr. Justice Blackstone, " that the civil and canon laws, though ad- " mitted in some cases by custom, and in " some courts, are only subordinate and " leges sub graviore lege/' — ^The sh6rt but very learned treatise of Arthur Duck, de f ■ ■ ? ! I'i .. / 109 THE ROMAN LAW. Urn ef Auctoritate juris civilis in Dominiis • principum christianorum, conveys, in elegant language and a pleasing manner, complete information on the nature and extent of the influence of the civil law, on the jurispru^ dence of the modern states of Europe. ■ iiii ina „ 'MniliMIMT'! MinpiliKiilttpiv' ' ■^:^.: ' -Vi <'i'!' ■ '.;,&•'•'!' - ''■' ' ■ ft"- ^ti,ii.'i-; '^'■'y " "'■ .-...,«• ■ V'^-;^ '''■'>:■■. '^'■' ' THE FEUDAL LAW. f ' f ; An attempt will be made in the following sheets to give some account, I. Of the ori- ginal territories of the nations by whom THE FEUDAL LAW was established; II. Of their first progress and chief settle- ments in the Roman territories; and III. Of the principal written documents of the Feu- dal Jurisprudence of foreign countries. It is principally taken from a note of the Edi- tor, in that part of the 14th edition of Coke upon Littleton, which was executed by him. — That note contains also some observa- tions on the peculiar marks and qualities of the feudal law; some account of the principal events in the early history of the feuds of foreign countries; and of the revo- lutions of the feud in England. But, as the researches which gave rise to that not6 ^ :! 1= f 1 ■ \ I'iii^^H 108 • THE FEUDAL LAW. ' 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 juris- prudence of England. Under that head some general observations arc offered, on the time when feuds may be supposed to have been first established in England; on the fruits and incidents of the feuaal tenure; and on the feudal polity of this country, with respect to the inheritance and aliena- tion of land : under this head an attempt is made to state the principal points of diffe- rence between the Roman and feudal juris- prudence in the articles of heirship, the order of succession, and the nature of feu- dal estate; an attempt is then made to shew the means by which some of the general restraints upon the alienation of real pro- perty, introduced by the feud, have been removed; some account is then given of i! Nt i ' THE FEUDAL LAW. lOQ ' entails, and of the means by which the re- straints created by entails were eluded or removed. Having thus treated of that spe- cies of alienation, which, being the act of the party himself, is termed voluntary alie- nation, notice is taken of that species of alienation, which, being forced on the party, is termed involuntary. Under that head are briefly considered the attachment of lands for debt; first, in regard to its effect upon them, while they continue in the pos- session of the party himself; then, in re- spect to its effect upon them, when in pos- session of the heir or devisee; and after- wards, in respect to the prerogative reme- dies for the recovery of Crown debts. Some observations are then offered on testamen- tary alienation; and an account of some of the principal circumstances in the his- tory of the decline and fall of the feud in England. ■ n ^1 no THE FEUDAL LAW. HIkV'J'-^ *.?.:i'^i ■• I .;., :' '-*'■• •iJ'^ :/■:> ".!,».! /ic - iyj) ./i^i .■r^t:■i■^ c^i- I. In respect to the ORIGINAL TER^ RITORIES of the nations who introduced the feudal law; — they may be considered under the names of Scythians, Sarmatians, Scandinavians, Germans, Huns and Scla- vonians, which they acquired as they ex- tended their conquests. Till lately, the in- habitants of the shores of the Baltic were considered to be their parent stock : subse- quent researches seem lo have traced it to the spot where the common stock of all nations is found, — the Plain of Sennaar. I. 1. For the early state of the Northern nadons we must look to Herodotus. Of the north-western parts of Europe, he seems to have had little knowledge: the word Germany does not occur in his writings: Sci/thia 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 Issedoncs, a nation i. ^ THE FEUDAL LAW. Ill who, by Major Rennel's account, occupied the present seat of the Oig. . or Eluth Tartars. - » .> . . The European part of this extensive ter- ritory 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 Scythia to the Caspian and the country on its east. As it was intersected by the great chain of mountains called the Imaus or CafF, the Asiatic Scythia was distinguished into the Scythia within, and the Scythia without the Imaus. . I. 2. Under the general denomination of CeltSy Herodotus included all the parts of Europe which were not occupied by the Scythians. I. 3. In the course of time, the name of Scythia was applied to the eastern part only of the original Scythia; but the divi- sion of it into the part within and the part t 113 THE FEUDAL LAW. without the Imaus was preserved; the wes- tern Scythia, or the part of the original Scythia, which lies on the western side of the Volga, then received the name of Sar^ matia, and was divided into the European and Asatic Sarinatia; the former contained the country between the Vistula and the Tanais or Don, the latter extended from theTanais to the Volga. * , I. 4. Of the countri M on the north of the Baltic, Herodotus seems to have known nothing; to the Romans they were known by the name of Scandinavia. I. 5. The tribes who occupied the coun- try between the Baltic and the Danube, the Rhine, and the Vistula, were equally un- known to Herodotus ; to the Romans they were known by the name of Germans, I. 6. At a very early period, a division of Scythians had advanced to the eastern shore of the central part of Asia, and esta- blished themselves in the present country of the Mongqus: by the Chinese writers, Wi- THE FEUDAL LJUf. tit yes- final ieof Sar- pean lined I the from they are called Iliongnous, by the Romans, to whom they were long unknown, they are called Hum, , -. , 1. 7- At a later period, several tribes of these nations spread themselves over diffe- rent territories, in the European and Asiatic parts of Modern Russia, and over Bohemia, Poland, Servia, Bosnia, Croatia and Shivo- nia: by the historians of the fall of the Roman empire, they are called Slavi or Slavones." y\ ■ Major RenneFs Geographical System of Herodotus, , Lond.4to. 1803; D'Anville, Etats formes en ■ ■r: Europe apres la chute de I' empire Romain, 4to. Paris, 1771; and his Geographic anciennt abregee, Paris, 3 vol. Svo. 1768. Cellarius, Geographia Antiqna, Leipsia, '2vol. 4to. 1758; — Observations Ilistoriques et Geographijues sur les peuples barbares qui ont habitt ks bords du Danube S) du Pont Euxiu. Par. M. de Peysson- neli Paris, 4to. 176j. Modern Universal His- tory, vol. 4, p. 313 — 379, and Mr. Pinkertons Dissertation on the Origin and Progress of the Scythians or Goths, Qvo, 1787. Some of his facts, arguments or conclusions, may be denied, but neither his learning nor his ingenuity can be disputed. — ^I'here is not, perhaps, in geogra- *^w^ THE FEUDAL LAW, » • ■* * I j ' -riOii' ■ * n II, THE GRADUAL EXTENSION AND DATES OF THE PRINCIPAL CONQUESTS MADE BY THESE NATIONS next conic under cjonsidcra- tion, In the reign of Augustus they were , powerful enemies to the Romans; they had pot, however, made any impression on their ' phy, a 'word, which denotes ao large a Rurface of the globe as Slavonia, in its largest sense ; or lyhich, as it is variously applied, denotes so inany portions of general tprritcry. 1. In its least extensive sense, it denotes the modern Sla- vonia, or the country between Croatia and Bel- grade, bounded by the Drave and the Danube , on the north, and the S^ve o\} th^ south : 2. In fi more extensive sense, it denotes the country between th^ Hadrit^tic and the Danube, and the countries between the Vistula, the Carpathian inountains, the Niepcr and the Black sea : 3. In a more extensive sense, it ejjlends to the Jrtish : 4. That seems the utmost boundary on the east, which can justly be assigned to it, but some authors suppose the \Yhole northern front of Asia is ^lled by Siavoiipic tribes. ', . J ;ioN :iVAi. lESE isidcra- ; a Rurfj^ce f aenae ; or lenotes so 1. In its a and Bel- ie Danube luth : 2. In |hc country le, and the iarpathian sea : 3. In the Irtisb : ^ry on the to it, but Ithern front THE FEUDAL LAW. ai» territory, when Tacitus wrote; but he pro* nounced them, " more formidable cnemiey *♦ than the Samnitcs, Carthaginians, or Par- " thians." He seems to intimate an appre- hension, that the preservation of the Roman empire depended on the quarrels of the Barbarians among themselves. " The Bruc- " teri," these are his remarkable expressions, " were totally extirpated by the neighbour- " ing tribes, provoked by their insolence, ** allured by their hopes of spoil, and per- " haps inspired by the tutelar deities of the " empire. Above sixty thousand Barba- " rians were destroyed : not by the Roman " arms, but in our sight; and for our eh- " tcrtainment. May the nations, enemies " of Rome, ever preserve this enmity to " each other! We have now attained the " utmost verge of prosperity, and have no- " thing left to demand of fortune, except " the discord of the Barbarians." In the reign of Marcus Antoninus, all the nation i of Germany and Sarmatia, entered into a i i\ * 1 > 'J lis THE FEUDAL LAW. league against the Romans; he dissipated it. — In less than a century the Germans in- vaded the empire in every part of its terri- tory, on the Rhine and the Danube. Of all the tribes, who invaded the empire, the Goths are the most remarkable. The universal tradition of the nations of the north, and the universal language of their ancient writers, place the Goths, as early as general history reaches, among the na- tions on the Baltic, and assigns the deno- mination of Visigoths or western Goths, to those tribes of them, which inhabited that part of Scandinavia which borders on Den- mark, and the denomination of Ostrogoths or eastern Goths, to those, which inhabited the more eastern parts of the Baltic. In all their emigrations and settlements, they preserved their names, and the same rela- tive situation. Towards the end of the first century of the Christian aera, a large esta- blishment of them is found on the Vistula, and numerous tribes of the same origin, but known by the appellation of Vandals, THE FEUDAL LAW. iir are found on the Oder. — History then After shews their emigrations to the Euxine, . the settlements of the Ostrogoths iiic i-' j 4 the southern parts of Asia Minor, andrkp:^ the settlements of the Visigoths in^jiv 'i Tlirace. At the battle of Adrianople, ; ? j, the Goths obtained over the emperor , ; Valens, a victory, from which the em- ' ^r pire of the west never recovered, .^t ; , The irruptions of the northern na- . '. tions, which ended in their permanent settlements in the territories of the ? Roman empire, may be traced to the final division of the empire, between Arcadius and Honorius, the sons of . ^ Theodosius the great, in 395. The empire of the east, comprisingThrace, ' , Macedonia, Greece, Dacia, Asia Mi- nor, Syria, and jEgypt, was assigned to the fonner; the empire of the west, comprising Italy, Africa, Gaul, Spain, Noricum, Pannonia, Dalmatia, and Moesia, was assigned tothe latter . . 395 ^ I ■I I KV" r 1 ■J, , 1 1 i? ■ P 1 1' 1 jj^^ 1 ii^'>;l i. m 118 THE FEUDAL LAW. In the y^ar 406, the Vandals, Suevi, After Christ. and Alani, who inhabited the coun- 40() tries bordering on the Baltic, made an in'uption into Gaul ; from Gaul they advanced into Spain, about the year 415; they were driven from Spain by the Visigoths, and invaded Africa, where they formed a kingdom. ... 415 About the year 431, the Franks, Alemanni and Burgundians pene- trated into Gaul. Of these nations, the Franks became the most power- ful, and having either subdued or ex- pelled the others, made themselves masters of the whole of those exten- sive provinces, which from them, re- ceived the name of Fmnce. . . . i . 431 Pannonia and Illyricum, were con- quered by the Huns; Rhoetia, Nori- ;: cum, and Vindelicia, by the Ostro- goths ; and these were some time after- wards conquered by the Franks. In 449» the Saxons invaded Great 449 '' I THE FEUDAL lAMr. 11^ Britain. The Herulians marched into After Christ. Italy, under the command of their U'ii' King Odoacer ; and in 476 overturned the empire of the west 476 From Italy, in 493, they were ex- pelled by the Ostrogoths. . * * . ; * 493 About the year o68, the Lombards, '^ issuing from the Marck of Branden- burgh invaded the Higher Italy, and founded an empire^ called the king-» ' dom of the Lombards. After thisj little remained in Europe of the Ro- ^ man empire^ besides the Middle and -^ i Inferior Italy. These, from the time of the emperor Justinian's conquest of Italy by the arms of Belisarius and NarseSj belonged to the emperor of the east, who governed them by an Exarch, whose residence was fixed at Ravenna, and by some subordinate officers, called Dukes. ......** 56B In 752, the Exarchate of Ravenna, and all the remaining possessions of 'At ■f 120 THE FEUDAL LAW. m . r ■ X., 'W i:- 11/ ■ I the Emperor in Italy, were conquered After 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 con- i- . quests were made, came, it is evident, from different countries, at different periods, spoke different languages^ and were under the command of se- parate 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 immemorially prevail- ed in India. , vv ..,.-*. THE FEUDAL LAW. 121 •■: . ' ^vrv. . o. ,. ? III. '"--; • -r. f^'-\ •:;;i(rf,V;,»f The principal written documents, which are the sources from which the learning of foreign feuds is derived, may be divided into Codes of Laws, Capitularies, and Col- lections of Customs. . ^ ^. With respect to FEUDAL LEARN- ING in general, it was long after the first revival of letters in Europe, that the learned engaged in the study of the laws or anti- quities of modern nations. When their curiosity was first directed to them, the barbarous style in which they are written, and the rough and inartificial state of man- ners 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 importance. They were led to the study of them, by those treatises I '■ u ,| ii% THE FEUDAL LAW. W0-^l on the feudal laws, which are generally printed at the end of the Justinianean Col- lection* These are of Lombard extraction, and natumlly gave rise to the opinion, that fiefs appeared first in Italjj and were in- troduced by the Lombards* From Italy, the study of jurisprudence was exported into Germany; and this opinion accom- panied it thither. At first, it appears to have universally prevailed: butj when a more extensive knowledge of the antiqui- ties 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^ deny- ing the exclusive claim of any particular nation, ascribed them to the German tribes in general, and asserted, that the outline of the law of feuds is clearly discoverable in the habits, manners, and laws of those na- tions, while still inhabitants of the Her- THE FEUDAL LAW. 1^3 cynian wood. The time, when feuds first made their appearance, has equally been a subject of controversy. The word itself is not to be found in any pulslic document of authenticity before the eleventh century. iU >- •■■<; ■ IIL 1. . , :. I . i-lt ■ ,ui The most ancient, and one of the most important, CODES OF LAW, in use among the feudal nations, is the Salic Law* It is thought to derive its appellation from the Salians, who inhabited the country from the Leser to the Carbomarian wood, on the confines of Brabant and Hainault. It was probably written in the Latin language, about the beginning of the fifth century, by Wisogaslus, Bodogastus, Salogastus and Windogastus, the chiefs of the nation. It received considerable additions fromClovis, Childebert, Clotaire, Charlemagne, and Lewis the Debonnaire. There are two editions of it; they differ so considerably, 4 i t' ■■ THE FEUDAL LAW. fi|. that they have been sometimes treated as distinct codes. r : 'yt';,.., -^ '2. The Franks, who occupied the coun- try upon the Rhine, the Meuse, and the Scheldt, were known by the name of the Ripuarians, and were governed by a col- lection of laws, which from them was called the Hipuarian Law. They seem to have been first promulgated by Theodoric, and to have been augmented by Dagobert. The punishments inflicted by the Ripuarian are more severe than the punishments inflicted by the Salic law; and the Ripuarian law mentions the trial by judgment of God, and by duel. V •.■;;;^,;; ,. ..,^„ , ■■■■^.r.unV. i-k:^-.,.,,-' Theodoric also appears to have first pro- mulgated the law of the Alemannii a people, who came originally from the country, near the sources of the Danube ; and who, some time before the reign of the emperor Cara- calla, incorporated themselves with the Suevi of Tacitus. They were joined by other German tribes, and from their union, the fi: THE FEUDAL LAW. laj general body of them acquired the appel- lation of Alcmanni, from two Teutonic words Vl, and mann, which signify, a mul- titude of persons. The country inhabited by them was called Alemannia. A sup- posed line from Spires to Ratisbon divided it from the Francia Orientalis, on the north; it was bounded by the Rhine, on the west, by the Lech on the east, and by the coun- try between B^sle, and the sources of the Lech, on the east. It nearly corresponded with the Roman Alemannia, and the mo- dern Circle of Suabia. - 3. The law of the Burgundians is supposed to have been promulgated about the be- ginning of the fifth century; that nation occupied the country which extends itself from Alsace to the Mediterranean, between the Rhone, and the Alps. This was the most flourishing of the GalHc provinces in- vaded by the Germans; they established themselves in it, with the consent of the emperor Honorius. An aUiance subsisted r Fh ■ ■ I.. ^1 ^ THE FEUDAL LAW. 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 Ger- man codes is that by which the AngUonea and the Werini were governed. The terri- tories of these nations were contiguous to those of the Saxons ; and the Angliones are generally supposed to be the nation known in our history by the name of Angles. >. A considerable portion of the Law of the Saxom has reached us. '■ ' t ' - " . The Goths also had their laws, which were promulgated by the Ostrogoths in Italy; by the Visigoths in Spain. f^ 5. The Goths were dispossessed of their conquests in Italy by the Lombards. No ancient code of law is more famous than the Law of the Lombards; none discovers more evident traces of the feudal polity. It survived the destruction of that empire by Charlemagne, and is said to be in force even now, , in some cities of Italy. THE FEUDAL LAW. 127 These vrexe the principal laws, which the foreign nations, from whom the modem go* vernments of Europe date their origin, first established in the countries, in which they formed their respective settlements. Some degree of analogy may be discovered be- tween them and the general customs, which, from the accounts of Caesar and Tacitus, we learn to have prevailed among them, ia their supposed aboriginal state. A con- siderable part also of them is evidently bor- rowed from the Roman law, by which, in this instance, we must understand the Theo- dosian code, This was the more natural, as, notwithstanding the publication of the Ripuarian and Salic codes, the Roman sub- jects in Gaul were indulged in the free use of the Theodosian 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 polity is discoverable among the Franks ; and, for / im THE FEUDAL LAW. a considerable time alter their first con- quests, frequent instances are to be foimd, in their liislory, of a deference, and^ in some instances, even of an acknowledgment of teiTitorial submission to the emperora of Rome. V . • • ftnl mt, i L ' ■ .■ ! !' i' III. 2. In the course of time, all these laws were, in some measure at least, superseded by the CAPITULARIES. The word Capitulary is generic ; and denotes every kind of lite- rary composition, divided into chapters. — Laws of this description were promulgated by Childebert, Clotaire, Carloman, and Pe- pin: but no sovereign seems to have pro- mulgated so many of them as Charlemagne. That monarch appears to have wished to effect, in a certain degree, an uniformity of law throughout his extensive dominions. With this view, it is supposed, he added many laws, divided into small chapters or lie THE FEUDAT. LAW. 139 heads, lo the existing codes, somclimcs to explain, sometimes to amend, and some- times to reconcile or remove the diflerence between them. They were generally pro- mulgated, in public assemblies, composed of the sovereign and the chief men of the nation, as well ecclesiastics as secular. 'J'hey regulated, equally ^ the spiritual and tem- poral administration of the kingdom. The execution of them was intrusted to the bishops, the counts, and the missi rcgii. Many copies of them were made, one of which was generally preserved in the royal archives. The authority of the Capitularies was very extensive; it prevailed in every kkiigdom, under the dominion of the Francs, 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 Uakl, and was publicly approved of, in many councils of France K i I r m m I -'■•' 130 THE FEUDAL LAW. and Germany. But, as Angesise had omit- ted many Capitularies in his collection, Benedict, the Levite or Deacon of the church of Mentz, added three books to them. Each of the collections was con- sidered to be authentic, and of course ap- pealed to as law. Subsequent 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 appearance. In the collection of ancient laws, the capitularies are generally followed by the Formularia, or forms of forensic proceedings and legal instruments. Of these, the formu- lare of Marculphus is the most curious. The fornmlaria generally close the collections of ancient laws. "With the Merovingian race, the Salic, Burgundian and Visigothic laws expired. The capitularies remained in force in Italy longer than in Germany; and in France, longer than in Italy. The incur- Qlt- ion, the B to con- 3 ap- uons iition jplen- 3egun THE FEUDAL LAW. 131 sions of the Normans, the intestine con- fusion and weakness of government under the successors of Charlemagne, and, above all, the publication of the Decretum of Gra- tian, which totally superseded them in all religious concerns, put an end to their au» thority in France, t y 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 promul- gated. Those laws only were abrogated by them, which were abrogated by the re- gulations they established. In other re- spects, the codes not only permitted, but, in some instances, expressly directed, that the Ancient Customs should remain in force. Thus, in all the countries governed by the ancient codes, there existed at the same i'l f m '•-'■', h ! 'I*: !> sK ;■ sir y 132 THE FEUDAL LAW. time, a written body of law, sanctioned by public authority, and usages or customs, admitted to be of public authority, by which those cases were frequently governed, for which the written body of law contained no provision. After the ancient codes and capitularies fell into desuetude, these cus- toms were multiplied. 2. By degrees Written Collections of them were made by public authority ; others, by individuals, and depended therefore, for their weight, on the private authority of ih individuals, by whom they were made, ai.v- the authority which they insensibly ob- tained in the courts of justice. Collections of this nature committed to writing by public authority fonn a consider- able 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. The monarchs of that time, in the charters by which they granted fiefs, prescribed the h i^m i4 THE FEUDAL LAW. 133 terms upon which they were to be held. These, tliey often abridged, enlarged and explained, by subsequent charters: they also published charters of a more extensive nature. Some of them contained regula- tions for their own domain; others con- tained general regulations for the kingdom at large. In imitation of their monarch, the great vassals of the crown granted their charters for the regulation of the possessions held of them. In the same manner, when allodial land was changed to feudal, char- ters were granted for the regulation of the fiefs; and, when villeins were enfranchised, possessions were generally given them, and charters were granted to regulate these pos- sessions. Thus, each seignory had its par- ticular 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 a 11 134 THE FEUDAL LAW. to produce an uniformity in these usages^, though the latter of these objects was r'>t quite neglected, Charles llie seventh and his sue "essors caused to be reduced to writ- ing the different local customs. In 1453, sometime after Charles the Seveuth had expelled the English from France, he pub- lished an ordonnance, by which hie directed that all the customs and ordonnances should be committed to writing, and verified by the practitioners of each place, than ex- amined and sanctioned by the great coun- cil and parliament; and that the customs, thus sanctioned, and those only, should have the force of laws. Such were the ob- stacles 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 re- sumed in the reign of Lewis XII, and about the year '609, was completed. The cus- toms of Paris, Orleans, Normandy, and some other places, Avere afterwards reformed. THE FEUDAL LAW. 135 Those of Artois and St. Omer were reformed within the last hundred years, jj .,. < ^^,, The manner of proceeding, both in re- ducing the customs and reforming them, was, generally speaking, as follows. The king, by his letters patent, ordered an as- sembly of the three states of each province. When this assembly met, it directed the royal judges, greffiersj maires and syndics j 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 assem- bly of the states; and it was there con- sidered, whether the customs were such as they Avere stated to be in the cahier: — at each article, any deputy of the state was at liberty to mention such observations as occurred to him: — the articles were then *■*-, 1:1 ^i[ iid ./ THE FEUDAL law: adopted, rejected, or modified, at the plea- sure of the assembly, and, if ihey weie sanctioned, were taken to parliament and registered. The customs of each place, thus reduced to writing and sanctioned, were called the Coutumier of that place: — they were formed into one collection, called the Coutumier de France, or the Grand Coutumier. The best edition of it is Riche- bourgh's, in four volumes, in folio. It con- tains about one hundred collections of the customs of provinces, and two hundred col- lections of the customs of cities, towns, or villages. Each coutumier has been the subject of a commentary : five and twenty commentaries, (some of them voluminous), have appeared on the coutumier of Paris. Of these commentaries, that of Dumoulin has the greatest celebrity. Les Etablisse- ments de St, Louis, hold a high rank for the wisdom with wliicli they are written, and the curious matter ihcy contain. The Cou- tumier de Normandie, for its high antiquity, k.- lea- veie and lace, •ned, ;e: — ailed Irand iche- t con- )f the d coi- ns, or n THE FEUDAL LAW. 13; and the relation it bears to the feudal juris- prudence of England, is particularly inte- resting to an English reader: Basnage's edition, and his learned commentary upon it, are Av ell known. rv; . 4. These are the principal sources of the Feudal Jurisprudence of France ; it remains to take some notice of the chief compilations^ hy which the feudal policy of other kingdoms is regulated. The most curious of all col- lections of feudal law is that entitled Assizes de Jerusalem. In 1099» the object of the first crusade was effected by the conquest of Jerusalem. Godfrey of Bouillon, who was elected king of Jerusalem, but refused th3 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 col- lection in question was formed,, under the title of " Les Loi.r, Statuts, ^^ Coutttmes, ac- " cordSes auRoyaume de Jerusalem, parGode- ^^froi de Bouillon, Van 1099; P«^' I'avis du I tj r i I 1 mi 138 THE FEUDAL LAW. " Patriarche et des Barons." As this col- lection was made at a general assembly of feudal lords, it may naturally be supposed to contain some of the wisest and most striking rules, by which the feudal polity of Europe was then regulated. But, as the principal personages who engaged in that crusade came from France, it may be con- sidered as particularly descripti'.o of the laws and usages of that country* 5. The next to these, in importance^ are the Books of Fiefs, which, probably in the reign of Frederick the Second, Hugolinusj, a Bononian lawyer, compiled from the writ-' ings of Obertus of Otto, and Gerhardus Niger, and the various customary laws then prevailing in Italy; they are sometimes added, under the title Decima Collatio, to the Novells; and are to be found in most of the editions of the Corpus Juris Civilis* In the edition of Cujas they consist of five books; the first, contains the treatises of Gerhardus Niger; the second and third j Tttfi ttUDAL LAW. 130 thoseof Obertus of Otto; the fourth, is a selection from vario^'« authors; the fifth, is a collection of constitutions of different emperors respecting feuds. To these, the Golden Bull of the emperor Charles the Fourth is often added. Authors are by no means agreed, either as to the order, or the division of this collection. Several editions have been made of it. » 6. In that published by Joannes Calvinus or Calvus, at Frankfort, in 1611, there is a collection of everi/ passage in the canon law, that seems to 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 §hprt account of Calvinus or Calvus's selec- tion of them, is transcribed from Hoffman's Dissertatio de Unico Juris Feudalis Longo- bardici Libro. — *' Jurisprudentiam feuda- " lem, sex libris comprehensam, sive potius " consuetudines feudorum, secundum dis- " tributionem Cujacianam, edidit, et sub i u liO THE FEUDAL LAW. " litulolibri foudorumVI.addidit, quidciuid " iUicujus de hac materia moincnti, in uni- " verso corporc juris raiionici exprcssurri " invcnerat; hoc est toluni tiluluin dccre- " talium Grcgorii IX, sivc capitula, Insinu- " atione 1. Et ex parte tua 2. X. de fcudis " porro cap. caeterum, 5. et novit; 13 dc ** Jiidiciis, cap. Quae in Ecclesiarum, 7 de " Constitutionibus, cap. Ad dures, 10 in " quibusdam, 12 et Gravem, 53 de Sent. " excomm. cap. Ex transmissa, 6etverum, *' 7 de foro competente corumque sum- " mana. 7. The next treatise to be mentioned is, the Treatise de Benejiciis, geneially cited under the appellation of Aiidor vetus de Benejiciis. It was first published by Tho- masius at Halle, 1708, with a dissertation on its author, and the lime when it was written. He considers it to be certain that it was written after the year 800, and before the year 1250, and conjectures that it was not written before the emperor Otho, and .■jiSi THE FtUDAL LAW. y. V ti that it was written before the emperor Con- rad the Second. To these must be added, the Jus Feudale Saaonicum, which seems to . be a part of, or an appendix to, a treatise of great celebrity in Germany, intitled the Speculum Saxotiicutn. The Jus Feudale Sax- onicumf is said by Struvius to have been translated by Goldastus from the German into the Latin language, for the benefit of the Poles. It is supposed to have been published between the year 1215 and the year 1250. The Speculum Suevicum seems to have been composed, in imitation of the Speculum Saxonicum, probably between the year 1 250 and the year 1400. To this is added the Jus Feudale Alemanicum, com- posed about the same time, and probably by the same author. But none of these collections acquired the same authority as the Books of the Fiefs. Those were known by the name of the Lombard Law : by de- grees they were admitted as authority by most of the courts, and taught in most of the academies of Italy and Germany. f T'f 142 THE FEUDAL LA.W. 8. Like llic civil and canon law, they be- cam(i the subject of innumerable Glosses. Those of' Columbinus were so much esteem- ed, that no one, it is said, published any alter him. About the end of the thirteenth century, James of Ardezenc published a new edition of the gloss of Columbinus, and added, under the title of Capitula Ex- traordinaria, a collection of adjudged cases on feudal matters. This is inserted in some of the latter editions of the Corpus Juris. About the year 1430, Mincuccius de Prato veteri, a Bononian lawyer, by the orders of the emperor Sigismond gave a new edition of the books of the fiefs, with the gloss of Columbinus. These were confirmed by the emperor Sigismond, and afterwards by the emperor Frederick the Third, and publicly taught in the university of Bologna.^ This article is extracted from the Historia Juris Romano- Germanici of Brunqitellm ; the His- toria Juris Civilis Romani et Germanici of < Heineccius, alreadij cited ; from Lindenbrogim's Prolegomena to his Codex Legum Antiquarum, THE FEUDAL LAW. 143 Frntthforti, 1 vol. fol. 1()13; BaJuziui'i Pre- J'acc to liisCapitnliiria Re^iiin Fruncuritm, 1(»77 and 1780; the Thesaiirm Ffadnlk of Jfnichen, jjublished at Frankjhrt un the Main, 3 vol. Ato. 17.jO; Stntviuit'a llistoria Juris, Jena, 'ito. 17'i8; Selecta Feudalia of Thomasius, Halle, Hvo. 1728; Fleun/s Ilistoire du Droit Franfaia, Paris, 2 vols. 8ro. generalli/ prejued to the In- ititution ait Droit Franfais d'Jrgou; mid the article, CoiUume, sent by M, Iknrion to the French Fncyclopcdiu. % m it » I THE CANON LAW. The following sheets, after some introduc- tory matter respecting, I. the religious wor- ship and hierarchy of Pagan Rome; II. respecting the rise and progress of Cliristi- anity, from its being the most persecuted sect, to iis becoming the established church of the Roman empire; and III. respecting the principal orders of the Christian hier- archy; will contain, IV. a mention of the general materials, and V. an historical ac- count of the particular documents, of which the CANON LAW is composed. . I. I. 1. It seems generally understood that the ANCIENT RELIGION OF ROME was of Celtic extraction, without images. 1 1 it:; THE 6ANON LAW. i4i Avithout temples, and with few religious rites; that Numa established many cere- monies, and built a temple for sacrifices to the one eternal God ; that, in other respects, he left tlie religion of Rome in its original simplicity; and that Tarquinius Priscus in- troduced into it the superstitions of the Greeks and Hetrjscans. I. 3. THE GODS, \vhom the Romans worshipped, Were divided into the Dii Ma- jorum Gentium^ or the great coelestial deities, with the Dii Selecti, and the Dii Minorum Gentium, or the inferior gods. The coelestial deilies 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 god- dess of corn and husbandry; Neptune, the god of the sea; Venus, the goddess of love and beauty; Vulcan, the god of fire; Mars, the god of war; Merci^ry, the god of elo- quence and trade ; Apollo, the god of mu- sic, poetry, medicine and augury; and L i, g' t, M 148 THE CANON LAW. Dia^na, the goddess of the woods. The Dii Selecti were Satum, the god of time; Janus, the god of the year, and Rhea his wife; Pluto, the king of the infernal regions; Bacchus, the god of wine; Sol, the sun; Luna, the moon; and Genius, each man and each place's tutelary god. The Dii Minorum Gentium were the Dii Indigetes, or heroes ranked among the gods on ac- count of their heroic virtues, as Hercules, Castor and Pollux, jEneas and Romulus; the Dii Semones, or Semihomines, less than gods and greater than men, as Pan, Po- mona, Flora, Terminus, the Nymphs. I. 3. To the service of these gods several colleges of p^icds were dedicated: — Fifteen Pontiffs, whose office it was to judge and determine on all sacred things; fifteen Au- gurs who, from the flight, chirping or feed- ing of birds, and fifteen Aruspices who, from the entrails of victims, derived omens of futurity; the Quindecemviri, who had the care of the Si by 11 ioc books; the Septemviri, M- THE CANON LAW. 14/ who prepared the sacred feasts; the Fratres Aipbarvales, who offered up sacrifices for the fertility of the grounds; the Curiones, who officiated in the Curiae; the Feciales, or sacred persons employed in declaring war and making peace; the Sodales Titii, whose office it was to preserve the sacred rites of the Sabines; and the Rex Sacrorum, 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. Every part of the empire abounded with temples and statues, and in every temple and statue a diviru^ something was supposed to reside. When we consider the general absur- dity of the pagan creed, we find it difficult to suppose, that any rational mind could um i J; hi J '■ 1 / 118 THE CANON LAW. seriously believe its doctrines, or that it should become the national religion of a great and sensible people. Those doubts increase on us, when we see how often the religious prejudices of the Romans were used by the leading men of Rome, as an en- gine for political purposes; when we con- sider 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 Hot expedient the vulgar should know; and many falsehoods, which it is useful for the people to receive as truths. But there is reason to believe, that till the Greek phi- losophy found its way into Rome, the gene- ral body of the Romans was sincere in the worehip of their gods; and that, even after the introduction of the Greek philosophy, 5; I i- THE CANON LAW. 149 the number of those who gave up the whole of the national creed was very small. A freedom, even from the lowest kind of su- perstition, is often mentioned by their wri- ters as a great effort of the human mind : and the writings of Cicero demonstratively prove, that those who rejected the popular superstition, had no settled system of reli- gious 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 accom- plished; and to have introduced at the same time, a simple and sublime religion' accommodated to all persons, all times, and all circumstances, on which the weak and the strong may equally rely." "Beaufort, Rep. Rom. 1. 1. Adams's Roman An- tiquities, 281—303. II. By the law of Athens, the act of intro- ducing foreign deit!<^3 was punisbe ' with !■ If. Ik lao THE CANON LAW. death. The law of Rome was not so severe : Mosheim and Bynkershoek seem to prove, that though the Romans would not allow any change to be made in the religions which were pubiicry profcs&e/i in the em- pire, nor any new form of v,t.;ship to be opeiil V introduceti, yet that, except when it threatened danger to the stpte, ^iiey granted a FREE TOLERATION OF FO. REIGN WORSFIIF, not only to indi. viduals but to bodies of men. ' ! The Christians, whose mild, unassuming, and benevolent morality entitled them to univereal good will, were alone denied the benefit of this general toleration. From the reign of Nero, till the triumph of Constan- tine the Great over his rival Licinius, they were always treated with harshness, and I'epeatedJv suffered the severest persecu- tions. The favour of Constantine to them was, immediately after his first successes, shown by his repealinn; of the laws enacted againsl ■■■ S|M|H ^^^^B R'vfvi.-'i Hfifl ^^H E.fr. HnB ^^^H f^'-'if'*' HN HH l^--' Hjj;'!: p^Bif ". ■ Ill ^ •:*«S THE CANON LAW. 151 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 general dispensa- tion of his favours, he held, with an impar- tial hand, the balance between his christian and heathen subjects. His successors, ex- cept during the short interval of Julian's reign, strongly encouraged Christianity and discountenanced heathenism; and finally, by the edicts of Theodosius, the ancient worship of Rome was proscribed, and Chris- tianity became the established religion of the empire. Till those edicts, the spirit of polytheism, had lingered among the princi- pal nobility of Rome ; after them, it lingered among the Grecian philosophers: but by his edict in 529, Justinian silenced the schools of Athens; and to that aera, the final extinction of Paganism is always assigned.^* ' Francis Baldiiinus, Commentarius ad edicia Im- ptratorum inChmtianos, Edit.Gudling' Bt/U' I I ! V "I It It. ( • m THE CANON LAW. III. In respect to the CHRISTIAN HIER- ARCHY, the Roman empire, at the time when Christianity obtained in it a legal establishment, under Constantino the great, had reached its utmost limits, It was di- vided into four Praefectures : the Eastern, which comprised the country between Thrace and Persia, the Caucasus and the Cataracts of the Nile; the Praefecture of lUyncum, which comprised Pannonia, Da- cia, Macedonia, and Greece; the Praefec- ture of Italy, which comprised Italy, Rhoer tia, the Islands of the Mediterranean, and kerslwek, Dissertatio de Cuitu Peregrinm Reli- gionisapud Romance, in OpuscuUs, Lugd. Bat. 1719« Mosheim^ de Rebus Christianorum ante Comtantinum Magnum, Commentarii, Helmsta- dii, Ato. 17''53, c. 1. sect. 8; Seculum primum, 27 — 32. In his Six Letters on Intolerance ^ London, 179I> Sir Geo, Colebrooke has col- hcted many curious facts to show, that the re- ligious toleration of the Romans was by nq mean? so perfect as is generally thought. r A, 153 THE CANON LAW. the part of Africa from the westernmost moutli of the Nile to Tingitana; and ihe Praefecture of the Cauls, wbicli comprised Spain, Britain, and the part of Africa from Tingitana to the western ocean. Each prai- fecturc was divided into several v]ioceses; 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 thir- teen in number, the provinces one hundred and twenty. In the establishment of her hierarchy, the Christian church, particularly in the east, appear*^ to have conforiii^d very much to this model. Before the trans iuaon of the seat of the Roman empire to Constan- tinople, the church had the three Patriarch- ates of Rome, xintioch, and Alexandria; after its translation, the bishops of Constan- tinople acquired importance : by degrees they obtained ecclesiastical jurisdiction over Thrace, Asia, and Pontus, and were ele- iffl ?^ hi' \54 THE CANON LAW. vated to the rank of patriarch: afterwards, the same rank was conferred on the bishop of Jerusalem: and, according to Mr. Gib- bon's observation, (vol. vi. p. 378), the Ro- man bishop was always respected as the first of the five patriarchs. Thus, speaking generally, the patriarchs corresponded in rark -.vith the prefects; in each diocese there was a primate; in each province, one or more than one metropolitan ; and each metropolitan had under him a certain num- ber of suffragan bishops. Regulai* funds, proportioned to their respective ranks, were appropriated for their support: except in cases of singular enormity they ^vere ex- empted from the civil jurisdiction of the magistrate ; and, in many other important articles a distinction between the clergy and the laity, wholly unknown in the law of hea- then Rome, was admitted into the Codes of the Christian emperors.'' n Frederici Spanhemii, Geographia Sacra, Distribu- tio Diaceseon et Provinciarum, inde a Tempori- THE CANON T,\W. IV. 155 V -l-v^lf The liberty of lioltling ecclesiastical flssemblies was one of the most important privileges of the dignified members of the clergy. Occasional assemblies were con- vened of all the bishops in the Christian world, or of all the bishops within the li- mits of a patriarchate: and, generally in the spring and autumn of every year, the metropolitan convened the bishops of his province to debate on its religious con- cerns. From Concilium, which, among the Romans, denoted a select meeting in con- tradistinction to Comitia, which they used to denote general meetings, these assem- blies received, in the Latin church, the ap- bus Constantini Magni in orbe utroque, orientali et occidentali\ inter Opera Omnia, Lugduni Batavorum, fol. 1 vol. 75—204; Bingham's Antiquities of the Christian Church, London, 1726, fol. 2 vol. lib. 9 \ Du Pin, de Antiqua EcclesicB Disciplind, Par. l686,- Petrus de la Marca, Concordia Sacerdotii atqm hnperii, fol. Paris, 1704. t f J) » , t % ■'■> i i. 1. p \5(i IHE CANON LAW. pellation of council^ : h\ the Greek church ihey were called synods; at a subsequent lime, the word council still retaining its original import, the word synod was used, in the Latin church, to denote the assem- bly of a bishop and his clergy. The Scripture is the first, the decrees of the councils are the second source, from which THE MATERIALS OF THE CANON LAW are drawn. The decrees and decre- tals of the popes are the third; the works of the fathers and other respectable writers are the fourth. By the decrees of the popes are meant their decrees in the councils held by them in Italy; the decretals are their answers to questions proposed to them on religious subjects. Those, who profess to give an HISTO- RICAL ACCOUNT OF THE CANON LAW, divide it into three periods: the an- cient, the middle, and the modem: — the THE CANON lAW. 1«7 aiicient, begins with the first, and ends with the eighth century, when Isidore Merca- tor's collection of canons made its appear- ance ; the middle, begins with that century, and ends with the council ot Pisa, in 1409 1 the modem, begins with that council, and extends to the present time. The ancient PART OF THE HISTORY OF THE CANON LAW is remarkable for several Collections of Ca- tions. 1. Some are CANONS OF THE GE- NERAL CHURCH, The first collection of these cano*- ^ called the Apostolic Canons. They nc been ascribed to the apostles; and i * been said, that St. Clement, the immediut*; successor of St. Peter, was the collector of them. If the apostles had really promul- gated. ihem, it is difficult to assign a reason I ij 158 THE CANON LAW. for their not having been admitted to a place in the writings which form the New Testament; but, of the ancient fathers, St. John Damascene alone has done them that honour. From their being omitted in the canon of the New Testament, from the uni- versal 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 appeals having been made to them in the controversies which arose in times subsequent 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 men- tions all the writings of the Old and New Testament, they are now considered to have been fabricated. Bishop Beveridge, who has published them with learned notes, sup- poses they were framed under the sanction of bishops, who held the sees founded by the apostles, and that they were collected THE CANON LAW. IA9 <. towards the end of the second or be- After ginning of the third century. The first regular mention of them is found ^^ rf in the second council of Constanti- : t nople. The Greek church, at least since the synod in Trullo, in 692, has singu- larly 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 ia 1503, in ^to, and have oflen been reprinted .... 200 The Apostolic Constitutions are of high antiquity, have been much in- terpolated, and arc of no authority. It is supposed that they first appeared in the fourth century 300 2. Hitliertp, the canons spoken of > are the canons of the general church : there also are CANONS OF PAR- TICULAR CHURCHES. In respec*^^ to the Greek Church j the f 11 100 THE CANON LAW. first colleclion of canons which has After Christ. come down to us from the Greek church, is the Codex Ecclcsice Orient a- lis. It is supposed to have been first published in . 385 This collection contains \6b ca- nons: 20 of them are canons of the general council of Nice ; 24, are ca- nons of the council of Ancyra; 14, are of the council of Neocesarea ; 20, of the council of Gangris; 25, of the council of Antioch; 59? of the coun- cil of Laodicea ; and three of the first council of Constantinople. The coun- cil of Chalcedon mentions this collec- tion with approbation. The secdnd collection of canons of the Greek church is, the Codex Ec- clesice Universce, ... . . . . . . 451 It comprises the canons in the pre- ceding collection, with the addition of sonje omitted canons of the coun- cil of Constantinople, some of the THE CANON LAW. council of Ephesus, and some of the council of Chalcedon. Both these collections are confined to the canons of the councils of the oriental churches; but they by no means include all the canons of all the councils of those churches. i'> ' About the middle of the sixth cen- tury, John, then a priest of Antioch, afterwards patriarch of Constantino- ple, published a collection of the Greek canons, digested under fifty heads, according to the subjects of them.' He afterwards published an abridgment of it: the first is called his Collection of Canons; the second his Nomo-Canon ; he is generally called Joannes Scholasticus We know little more of the canons of the Greek church till the S^jnod in Trullo. By that synod, a code was formed o; the canons framed at it, of those framed at the synods of Car- at idi After Christ. . ;' • -• ■:■■■ 1 •' ■ > '■'''■- ■-, 560 i^\ sti .-7 * 103 THE CANON LAW. m thage, and at the council of ConStanti- After Christ, nople, held by Nectarius, and of some writings of the fathers. To those wer6 added the twenty-two canons of the second council of Nice, and the fourth council of Constantinople . . . 692 Here, before the schism, which se- parated the Greek from the I^atin church, the code of the Greek canon law rested. Under Photius, two co^iffi^ cils were held at Constantinople • tte canons of those councils w re- ceived by the schismatic churches of the east, and were published by Pho- tius in his Nomo'CanoTiy or modern collection of canons, in . , . . 883 With the Commentaries of Balsamon, Zonaras, and Aristenus, and other cu- rious articles, and with a learned pw;- face, all these collections of canons were published, at Oxford, by Dr. Beveridge^ afterwards Bishop of St. - Asaph, !inder the title, " Pa?idect(e \fter Christ. 692 in . 883 n, tu- >ns ISt. ' THE CANON LAW. 1«3 " Canonum Sanctorum Apostolorum et Con- " ciliorum ah Ecclesid Grcecd receptorum.'' " Those," says Van Espen, " who will read " with attention, the notes of the learned " editor, will find much very learned expo- ** sition of the canon law, and much in- ** slructive matter on other subjects, con- ** nected with the learning of the canons/' " Bishop Beveridge's works," says UAdvo- cat, " are written with so much dignity, ♦* majesty, learning, and modesty, that he " is thought, with reason, to be one of the ** gjreatest and most learned men whom " England has produced." An epistolary correspondence was carried on between him and Bossuet. 3. In the LATTN CHURCH, frequent mention is made of the Vetus Canonum La- tinorum Edith. It was superseded by the collection made by Dlonysius E^tiguus, about tbc beginning of ibe sixth centuiy. That collection was afterwards enlarged by the cle<^PC«» of Pope Symmachus, Pope Hor- 4 i ft' m 164 liIE CANON LAW. misdas, 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: the Breviatio C-ynonum ofFulgen- tius Ferrandus, and the Breviarium and Con- cordia Canotlum of Cresconius are added to it. * ■' ■■ - ' ' • '"^i- ■' The CHURCH OF SPAIN also had her collection of canons. It is attributed to St. Isidore, Bishop of Seville; from his diocese, he is frequently distinguished by the appellation of Hispalensis. In 790, Pope Adrian presented Charle- magne with a collection of canons. It was composed of the collection of Dionysius Exiguus, and the epistles of several popes. At the council held at Canterbury in 873, a book of canons was produced and ap- proved of; but we do not knov,- what canons it contained. * '^ )oth ions ICA Igen- Con- idded . had buted »m his ed by 'harle- It was mysius popes, in 873, id ap- what THE CANON LAW. V. 2. ' -«'■ I(J5 1. The MIDDLE PERIOD OF After THE HISTORY OF THE CA-/^^'"'* NON LAW commences with the ninth century, at the beginning of wliich, or towards the end of the pre- ceding century, the collection of Isi- dore Peccator or Mercator probably * made its appearance . . . . . 760 It was brought from Spain into Gennany by Riculphus, the bishop of Mayence. Who the compiler of it was, and why he assumed the name of Peccator oi 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: " Deinde," says the author," quarumdam epistolarum de- " creta virorum apostolicorum inse- " ruimus, id est, Clementis, Anacleti, I I! ■I i- i 11 J6(j THE C; \'0N LAW. " Evaristi, et cajterorum apostolico- After Chfytt " rum, quas potuimus hactenus repc- " rire, epistolas usque ad Sylvestrcm " Papam." These are the celebrated decretals, concerning which, since the begin- ning of the sixteenth century, there , - has been so much dispute among the learned. They seem to have made their first appearance in Germany: afterwards, to have been received in France, and, by degrees, in every part of the western church. For seven centuries after their first appearance, neither their authenticity nor their authority appears to have^been ques- tioned, They were first attacked by Mar- cilus of Padua, then, by Cardinal Nicholas of Cusa, during the Coun- cil of Basil, and afterwards by Eras- mus. In the celebrated Centuriators of Magdc burgh, in Blondel, and, last- IHE CANON LAW. % m ly, in Van Espen, they have met with Aftei most powerful adversaries: in the au- thor of the celebrated treatise, " Quis " est Petrus," they have found both * r^ zealous and an able advocate: but he seems to concede, that so much spuriousness is proved on them as to make thum, shen they stand alone, of no authority. Thoy ,/ere followed by what are called the L^pitularies of Adrian . . 845 The tenth century was famous for the Collection of Rh^ginon, Abbot of Prumia 906 The eleventh, for the collection of Burchardus, bishop of Wormes, en- titled Magn'im X>€cretorum sen Cano- num Volumen 1000 The twelfth, for the collection of St. Ivo, the good lawyer. Two works , are attributed to him: the Decretum Canonum, cettainly belongs to him; tti W^' 1 > ih THE CANON LAW. his riffht to the second, the Pan >^ da, After is uncertain 1100 2. We now come to the celebrated Decretum Gratu pi.^ or the Concordia Discordaiitium Canonum. Gratian was a Benedictine monk, in a monastery of Bologna. His work is an epitome of Canon Law, drawn from the de- crees of councils, the letters of pon- tifis, and the writings of ancient doc- tors. 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 per- sons in holy orders, and the hierarchy. The second contains thirty-six causes, as they are called, or particular cases. i -I THE CANON LAW. liS^ on which questions of difficulty arise: tljc third is divided into five distinctions, and contains a collection of canons relating to the consecration of churches, the sacra- ments, and the celebration of the divine office. The whole contains about 3000 canons or en atularies. Some are inlilled Palece, i "^i"g ^^ which word is not yet ascer / the learned. This celebrated collection abounds with errors. Towards the middle of the sixteenth century, Antonius Demochares and Anto- nius 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, breviaries, and other books re- lating to ecclesiastical matters should be published. In consequence of this decree, pope Pius the fourth engaged several learned IMAGE EVALUATION TEST TARGET (MT-3) %^ 1.0 I.I m \25 i 1.4 IMI^ '/•] /i /. HiotDgraphic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. MS80 (716) 873-4503 » £■' ./• /: m THE CANON I AW. Gregory the ninth commissioned St. After ^ Chrirt. Raymond of Pennafort, a Dominican, to form a new collection of canons. i He executed the work greatly to the satisfaction of his holiness; and, un- . s.0 1 der his auspices, it was published ri 41 about the year 1230, under the title I vi' Libri t^uinque Decretalium Gregorii li; ^ Noni, It contains all the decrees of ,x: ir the council of Lateran, and the de- * vi 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 by pope Boni- ,tt -t face the eighth. It contains the de- :.^ cretals of all the popes, subsequent . v?* to Gregory the ninth, and the deer*- ,*., . tals of that pope. It is called L?Ut •; . ; : • Sextus Decretalium, and was pub- lished in . ... . . . . . 1298 , On account of the differences be- • ,, tween pope Boniface and Philip the Pair, it was not received in France. TOE CANON LAW. m t The Liber Sextus Decretalium is After followed by the collection, called sometimes Liber Septimus Decreta" Hum, and sometimes Clementis Papa Constitutiones. It was framed by. pope Clement the fifth; and consists of his own decretals, particularly the canons of the council of Vienne, at which he presided. He promulgated it in/.'..^^v;'c|;i??,'!^^i:i/.^:feifiis^/s^ . . 1313 The last article in the code of Canon . - Law is the Extravagantes. At first, am- every collection of Canon Law, ex^ cept the decree of Gratian, was ..nj which we are now speaking. It is ^ r^?^ j: divided into two articles, the Extror r V . vagantes Joannis XXII, or the decre-? ■'^•v tals of that pope, published by him y^' about the year . . . . . * . 1340 ■i' % n n r • \ ^ m THE CANON LAW; y •:> n. And the Extravagantes Communes^ After * Chri.t. consisting of the decrees of popes from Urban the sixth to Sixtus the i; ;ka^ fourth. It was pubhshed about the >li year . ■■ * . • . . * • . * » 1483 Neither of them is considered to be of authority. The first, (published under the name of pope John the if; twenty-second,) was never formally tfr approved of or sanctioned by him, n; ?. and the author of the latter' collection is wholly unknown^^: mi* v^ ^ j^ * v \H . ^ A collection by Peter Matthfei was published in .*...^ /•iv>» f^sii . . . 1590 In some modem editions of the .^ /: Corpus Juris Canonici, it is inserted ^ undeT the title of the Liber Septimus > Decretalium. ■^■1-- ^^i;tv/^--'^■*t;:■i ■■*.-*:-. •''-■' 'S$ With these, what is called the Cor- ' pus Juris Canonici and the middle . ^ . period of the history of the Canon .LtiW closes, .'"'^i-;/ - :v ■■■€ " ' -^^.'-iH^'S^l ■" THE CANON LAW. Vm But mention should also be made of the Institutiones Juris Canonici, a compendium of Canon Law, published by Lancellot, a lawyer of Perugium, in 1563. By the di# rection of pope Pius the fifth, but without any confirmation of it by him, it was sub* joined to the Corpus Juris Canonici, and has been published with it. " The Roman " pontiflfs,'* says Arthur Duck, (de Auc- toritate Juris Civilis, lib. 1. c. 6. tit. 8.) " effected that, in the church, which Justi- " nian effected in the Roman empire: they " caused Gratian*s Decree to be published " in imitation of the Pandects; the Deere* " tals, in imitation of the Code; the Cle- " mentinae and Extravagantes, in imitation "of the Novells; and to perfect the work, " Paul the fourth ordered Lancellot to " compose the Institutes ; and under Gre- " gory the thirteenth, they were published " at Rome, and added to the Corpus Juris " Canonici." In the edition of the Insti* . tutions of Lancellot, published in 1584« ■ti- ll V t 'i- n I n ITO THE CANON LAW. and in several subsequent editions, it is accompanied with a perpetual gloss, and , followed by a commentary, written by Lan-^ cellot, which ^' ves an account of the rise and progress ov the work; and by a com-, parison of the CivJ and Canon Law, also written by him. V. 3. THE MODERN PERIOD OF THE CANON LAW begins with the Council of Pisa, and extends to the present time. The principal articles of canonical learn- ing, which have appeared during this pe- riod, are, . v^. ,, ' 1 . The various Transactions and Concordats between Sovereigns and the See of Rome; — a succinct and impartial history of them is wanting: the papal arrangements with Bo- naparte would not be the least curious parts of such a work, '^ { - ; • r /■•• n , THE CANON LAW. iff 2. The Councils of Basil, Pisa, Cofistance, and Trent. Separate histories have been written of the councils of Basil, Pisa and Constance, by M. L'Enfant, a Lutheran minister : that of the council 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 historians, — that the French ambassadors contended, before the council of Constance, thai Chris- tendom was 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 fiflh atid co-ordinate nation, and entitled to an equal vote with the other**. — In the different at- mospheres of Venice and Rome, the history of the council of Trent has been written by \o\ M If •..A: !ff.;Ui i I?8 THE CANON LAW. • the celebrated Fra Paolo, (the translation of whose work, with notes by Dr. Courayer, is more valued than the original), and by cardinal Pallavicini. The Cardinal doe» not dissemble, that some of the delibera* tions of the council were attended with in- trigues and passion, and that their effects were visible in various incidents of the council: but he contends, that there was an unanimity in all points which related to doctrine, or the reformation of manners : and Dr. Courayer, in the Preface to hi* translation, concedes, •* that, in what rcr " garded discipline, several excellent regu- " lations were made according to the an- ** cient spirit of the church *" and observes, that, " though all the disorders were not " reformed by the council, yet, if we set *' aside prejudice, we may with truth ac- ** knowledge, they are infinitely less than " they were before." The classical purity and severe simplicity of the style in which the decrees of the council are expressed. ■{^ .. ^■t. Mk itiou d by y does 7^ ibera- ih in- cffects )f the re was ited to inners : to lii» rhat rer It regu- the an- bserves, rere not I we set ruth ac- css than a purity in which pressed, THE CAKON LAW. ij^ are universally admired, and are greatly superior to the language of any part of Jus- tinian's law. In what concerns faith or morals, the decrees of the council of Trent have been received, without any restriction, by every Roman Catholic kingdom : all its decrees have been received by the Empire, Portugal, the Venetians, and the Duke of Savoy, without any express limitation; they have been received by the Spaniards, Nea- politans, and Sicilians, with a caution, as to such points of discipline as might be derogatory to their respective sovereignties: but the council was never published in France. No attempt has ever been made to introduce it into England. Pope Pius the Fourth, sent the acts of the council to Mary Queen of Scots, with a letter dated the thirteenth of June 1564, urging her to have the decrees of the council published in her dominions ; but iiothing appears to have been done in consequence of it. See His- toire de la Reception du Concile du Trente, i It. ^ i, .■■ ti 'i ■ » I THE CANON LAW. dans Us d\ff6rens Etats Catholiques; Paris, 2 vol. 8vo. 1766. 3. The Bullariunif or the collections which ' have been made of the Bulls of Popes;— the best of these collections is that printed at Luxenburgh or Geneva in 1771. It ex- . tends to the year 1753. ...<>J| 4. To these are to be added, Regulcn Cancellaria Jltnnanct, or the Rules of the Roman Chancery, a court instituted by the see of Rome, for preparing and transmit- ting the receipts and letters of the pope ; the sentences and ordinances of the various congregations of cardinals at Rome ; and the decisions of the Rota, the supreme tribunal of justice at Rome, both for its spiritual and its temporal concerns. - t,.-," -* , • --. 5. These complete the body of the Canon Law. — It should be observed, that, in ad- dition to it, every nation in Christendom has its own national Canon Law, composed of LegantinCf Provincialf and other Ecclesi- astical Constitutions, The Legantine Con- - / TIfE CANON LAW. iti stitutionfl of England ure the ecclesiasUcal laws enacted in national synods, held under the cardinals Otho and Othobon, in the jeign of Henry the Third, The Provincial Constitutions arc principally the decrees of provincial synods, held under divers Arch- bishops of Canterbury, and adopted by the province of York, in the reign of Henry the Sixth. *' At the dawn of the Refor- ** mation," (Sir William Blackstone, Comm. 1 vol. Inst. sec. 3.), ** in the reign of King ** Henry the Eighth, it was enacted in par- ** liament that a review should be had of ** Uie Canon Law; and, till such review ** should be made, all canons, constitutions, ** ordinances, and synodals provincial, being ^* then already made, and not repugnant ♦* to the law of the land, or the king's prc- ** rogative, should still be used and exe- " cuted. And, as no such review has yet " been perfected, upon this statute now " depends the authority of the Canon Law <* in England; : -^'V .;::^;-::;%^v\:s^^> tif>H:' l-s • SIP*' 182 • THE CANON LAW. ** As for the canons enacted by the clergy " under James the First, in the year 1603, ** and never confirmed in parliament, it has " been solemnly adjudged, upon the prin- ** ciples of law, and the constitution, that >* where they are not merely declaratory of ** the ancient Canon Law, but are inlro- ** ductory of new regulations, they do not *^ bind the laity; whatever regard the " clergy may think proper to pay them," ^'■i^r iU- '»?> f y VI. 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 subsequent to the Extravagantes Communes, must be ex- cluded; it is composed of texts out of the Bible, passages from the writings of the fathers, the canons of general and parti- cular councils, the decrees and rescripts of popes, and various other insertions and ex- THE CANON LAW. 168 tracts. In each of these particulars, it pos- sesses 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 ecclesiastical law of every country, where the Roman Ca- tholic religion is professed; and, speaking generally, in protestant countries, it has the force of law, when it is not repugnant to the law of the land.* i ^ '■ 1 ' ^^i' ' -■'/ j-fi * The works, principally used in framing this ac- count are, Fleuty's Institutions du Droit Eccle- siastique; his Discours sur VHistoirt Ecclesias- tique ; bishop Gibson's learned but very high- church Preface to his Codex Juris Ecclesiastici Anglicani; lord Ifardwicke's argument in the ease ofMiddltton v. Crofts, 2 Jtk. 650 ; Pehem's Prcelectiones in Jus Ecclesiasticum Universum, Lovanii, 4 vol. 9vo. 1787 ; Boehmer, Jus Eccle- siasticum Protestantium, Ha la Magdeburgica, r fc; r y 184 THE CANON LAW. X"V| %m 6 tol, 4*0, 1756,- Gerhard Von Mattrichf His- toria Juris Ecclesiastici et Pontificii, Duisburgii ad Rhenum, Oct. I676; Dovjat's Histoire du Droit CanoniquCf Paris, 8vo. 1677 ; Van ils- pen's Jus Ecelesiasticum Univcrsum, Lovanii, 6 vol. fol. 1753, a work, which, for depth and evtent of research, clearness of method, and perspicuity of style, equals any work of juris- prudence which has issued from the press ; but which, m some places, where the author's dreary Jansenism prevails, must be read with disgust : — a methodical and learned work with this title, " Quis est Petrus 9 Sen Quafis Petri Pri- . " matus ? Liber Theologico-Cauonico Catho- ** licus. Editio secunda,corr€ctior etemendatioVf " cum Approhatione, Ratisbonee, 1791,;" the , fiblest work, in support of the papal prerogatives against the doctrines of the Sorbonne, which has come to the writer's knowledge. The ac- : count, given in it, of Isidore's Decretals is par- ticularly interesting. The Religionis Naturalis et Revelaia Principia of Doctor Hooke, Paris, 3 vols. Svo. i774; the third volume of this work is, perhaps, the best treatise extant, on the ecclesiastical polity of th^ church, accord- ing to the notions of the Sorbonaists. It de- serves to be more known in this country; it must have given the French divines an high opinion of the perspicuity and precision of !|Snglish writing. . W ^■Vr I .-oJSv.>; ■' APPENDIX, it '■■■.V ' }• ■ .-v.«,v^.' ■lifA V "J.':' ■ : y ■ 1 t- > - ■ * ^ - ■ . The exclusive dominion and pro- perty OF THE BRITISH SEAS is one of the most splendid and valuable prerogatives of the Crown of England. — ^The following account of it is taken from a note to that part of the 14th edition of Coke upon Littleton, which was exe- cuted by the present writer. «/ , " The Jus Maris of the king may be consi- dered under the two-fold distinction, of the right of jurisdiction, which he exercises by his admiral, and his right of propriety or ofwnership. With respect to the right of jurisdic- tion, the subject is elaborately discussed by Mr. Selden, in his Mare Clamum, a noble exertion of a vigorous mind, fraught with profound and ex- tensive erudition. In the first part of it, he at- tempts to prove, that the sea is susceptible of separate dominion. In this, he has to combat the opposite opinion of almost all civilians, and 1^' It ■• ;5 1 1.1 ':*i pi m y 18tf APPENDIX. |. M particularly the celebrated declaration of one of the Antonines, (L. 9. D. De Lege Rhodid) " Ego guidem mundi dominus, lej,' autem maris, <^c." by which the emperor has been generally considered to have disclaimed any right to the dominion of the sea. For a different interpretation of this law, Mr. Selden argues with great ingenuity. In this, he is followed, in some measure, by Bynkershoock, in his treatise DeLege Rhodi^de Jactu, Liber Singularis, in the 2d vol. of the edition of his works published by Vicat, Col. Allob. 1761. — Mr. Selden, in the second part of his work, attempts to shew, that in every period of the British History, the kings of Great Britain have enjoyed the exclusive dominion and pro- perty of the British seas, in the largest extent of those words, both as to the passage through and the fishing within them.— He treats his subject methodically, and supports his position with the greatest learning and ingenuity. — The reader will probably feel some degree of prepossesion against the extent of this claim; but he will find it supported by a long and forcible series of arguments, not only from prescription, from history, from the common law, and the pub- lic records of this country, but even from* the treaties and acknowledg-ments of other nations. Uere he is opposed by Bynkershoo,ck, in his ■ i APPENDIX. «7 ■miti m « <( Dissertatio de Dominio Maris, also published in t the second edition of his works. But it will be a great satisfaction to the English read-^r to find, how much of the general argument used by Mr. Selden, is conceded to him by Bynkershoock. Even on the most important part of tlie argu- ment, the acknowledgment of the right by foreign princes, Bynkershoock makes him con- siderable concessions: "Plus momenti," says he, " adferre videhtur gentium tesimonia, quae illud . " Anglorum imperium agnovere. De confes- " sionibus loquor non injuria extortis, sed libere et sponte factis. Esse autem hujusmodi quas- dam confessiones, neutiquam negari poterit." — • After this acknowledgment, corroborated as it is by other arguments used by Mr. Selden, many will think his positions completely established* The chief objection made by Bynkershoock to the right of the crown of England to the domi- nion of the sea is, the want of uninterrupted possession, as he terms it, of that dominion. So long as a nation has possession of the sea, just so long," says Bynkershoock, " she holds its dominion. But to constitute this possession, " it is necessary that her navies should keep " from it the navies of all other nations, and " should themselves completely and incessantly " navigate it avowedly in the act or for the pur- * pose of asserting her sovereignty to it." This (( « i( t V 188 APPENDIX. he contends, hffs not been done by the English; on this ground therefore he objects to the right of dominion of the English sea; and on the same ground he objects to- the right of the Venetians to the dominion of the Adriatic, and to the right of the Genoese to the dominion of the Ligustic- But this seems carrying the matter too far. If it be admitted, (of which there un(|uestionabIy are many instances), that the sovereign power of a state may restrain her own subjects from na^ vigating particular seas, she may also engage for their not doing it, in her treaties with other na^ tions. It can never be contended, that ^fter such a treaty is entered into, the acts of possession mentioned by Bynjcershoock are necessary to giv^ it effect and continuance, unless this also make a part of the treaty. It is sufficient, if the acta of possession are so often repeated, as is neces-* sary to prevent the loss of the right, frovfi, the want of exercise of it In those cases, therefore, where the treaty itself, establishing the exclusive dominion we are speaking of, is produced, the continued and uninteirupted posT session mentioned by Bynkershoock cannot be necessary, Put public rights, even the most cer^ tain and incontestible, depend often on no other foundations than presuTpption and usage. The boundaries of territories by land, frequently dc-. pend on no other title. Then, if Bynkershoock APPENDIX. ii^ be right in his position, that the sea is suscepti* ble of dominion, should not mere prescription and usage in this, as in any other case, be suffi* cient to constitute a right ? Upon what ground are the continued and uninterrupted acts of pos' session, mentioned by Bynkershoock, required to constitute a title in this, more than in any other case of pubHc concern ? — If tliis be thought a satisfactory answer to the objection made by Bynkershoock, the remaining difference between him and Mr. Selden, respecting the right of the British monarch to this splendid and important royalty will be inconsiderable. — It is to be added^ that Mr. Selden's treatise was thought so impor* tant to the cause, in support of which it was ^vritten, 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 published in 1633, by a person under the initials of J. H. to that by Marchemont Needham. On this subject (with the exception 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 Domi- nion and Sovereignty of the Seas, printed in 1689, is more moderate than Mr. Selden's. — He calls in question, at least indirectly, a material part of n .^jfe; II 190 APPENDIX. tiW ( u Mr. Seidell's positions, and places the right of the kings of England to the dominion of the sea upon a much narrower ground. He confines it to a right of excluding all foreign ships of war from passing upon any of the seas of Eng- land, without special licence for that purpose first obtained; to the sole marine jurisdiction, within those seas; and to an appropriate fishery. He denies that the salutation at sea, by the flag and top-sail, has any relation to the dominion of the sea; and he asserts, that, it was never covenanted 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 hot a recognition of sovereignty, but at most an acknowledgment of pre-eminence. His treatise is deservedly held in great estimation." t" 't--"'^i^>- ,, * t'-'r^ '-?v; f*-'? '■'■■'■{, y ■■' ' •..'■.-;•,■-'■"'■■■ ■■■'■ ■ >;' i '""^A' ■■^^/''■'v^*•''^■''k^^!*■'t - \ , ■ ■ ■ . •' ' •''■.•■■■■,',• : l'-, -i-- •.. » . 1 J . . ! %... ' A:-:^;_.& ill A1>PENDIX. 101 NOTE II. THE ALPS begin with Col del Angentera, which lies to the west of a supposed line from Monaco to the Mons Visulus, or Mpnte Viso. Thence, they proceed, in a semicircular line 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 Styria, Carinthia and Carniola to the Sinus Flanaticus, or the Gulph of Cornero on the Hadriatic. 1. The Alpes Maritima take their name from thf; sea of Genoa, and extend from it up to Mons Visulus or Monte Viso. The most noted moun- tains in this part of the Alps are the Camellon andtheTend6. • . s^,»; 2. The Cottian Alps 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 MontGenevre, where the river Durance springs. 3. The Alpes GraicB 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. )i m APPENDIX. / Y> !'»' /■ *i • 4. On the northern side of that part of the Rhone, which flows over the Valais into the lake of Geneva, are the Alpas Helvetica; on its southern side are the Alpes Pennince, the eastern chain of which is called Alpes Lepontina: they extend to the Mons Summus, or Mont St. Gothard. 5. The Alpes Rhaticce extend from Mont St. Gothard over the Mons Adula, or the Adule, where the two fountains of the Rhine arise, to the source of the Drave. A mountainous country to the south of them, where the town of Trent lies, was called the Alpes Tridentirue. 6. The Alpes Norica lie on the north of the Drave, and extend over parts of Austria, Styria, and Carinthia; not far from the close of them the A^es Pannonica or Kahlemburgh mountains rise. The Alpes Bastarnica are the Carpathian mountains, the boundary of Hungary on the- north and east. 7. The Alpes Carnica lie on the south of the Drave, and reach to Nauportus or Leyback, where the Alpine heights of Italy properly close. Two ranges of mountains proceed fiom them; the Alpes Venetce, which extend into the Venetian possessions on the Terra Firma, and the Alpes JulkBf which are spread over the country from Forum Julii, or Friuli, to the eastern extremity of the Hadriatic. ^ ^^ Where the Alpes Camicae end, the Mons f » APPENDIX. 193 f the ) the m its LStern ' they It St. mt St. \(lule, ;j arise, « ainous ^ town , ince, of the Styria, f them ntains athian on the of the jyback, close. them; [enetian [e Alpcs jy from tremity Mons Alhius begins : the Alpes Behianae, or the We- lebitchian, or Murlakan mountains proceed from it, and extend southerly in a line of about 300 miles over lUyricum to Mms Orhelus^ whence they branch into the Rhodope and Hasmus. Such is the chain of the Alps : the Appennines are of equal celebrity. They rise in the Col della Tende; after stretching on the east of the supposed line from the Portus Monaeci to Mons Vesulus, along the Gulph of Genoa, at no great distance from the coast, they proceed eastwardly to the centre of Italy, and afterwards to the south, always approaching nearer to the eastern than to the western coast. After they arrive at the Mons Gargamus, they take a south-west- ern! / direction, and reach the Calabrian extre- mities of Italy. This account of the Alps is ta- ken from Cluverkiss Ital Ant. lib. I. ch. 30, 31, 32; Cellariuss Geog. Ant. lib. 2; Busching's Geography ; ChaucharcCs Map, published by Stock- dale ; Bergior's Histoire des Grands Chemins de r Empire Romain, 2 vol. 4^0. Briisselles, 1738; and Mr. Pinkertons Geography j a work of great merit. \^ 1 1^ ■X\ 194 APPENDIX. ^ \ / NOTE III. /. THE following account of the PRiETOR'S JUDICIAL POWER, and its variations, is given hy Doctor Bever, in his History of the Legal Polity of the Roman State, B. ii. c. 6. ' " Originally, no more than one praetor was appointed ; but, as the splendour and reputation of this illustrious city daily drew to it a vast conflux of strangers, the judicial business in- creased beyond the power of a single magis- trate 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 magistracy, was styled " Urbanus." When the empire received a iurther augmentation from the conquered provinces, each of these was allowed its provincial judge, witli similar title find power. Another century introduced a new refinement upon this institution. As the objects of jndica-r ture, both criminal, and civil, multiplied apace, and a great variety of new causes arose, very distinct, in their nature Trom each other, io» th<*. more easy and expeditious administ ;! n / justice, it was fpund necessary to throw them APPEN J'X. 199 ITOR'S 18 given 5 Legal tor was putation t a vast iness in- e magis- herefore, over the ^as called Lim from )bjccts of 5." When nentation these was njlar title efinemetit of judica-r ^ied apace, rose, very ler, I'oi ta«', It ul' n ':>{ irow them into distinct classes, called " Quastioncs," and to assign particular jurisdictions u.id judges to each wiio were intituled Praitors and Qmusitors. These were obliged to exercis>e their .. spective juris- dictions within the city for t\w space of one year, after which they were dismisseil into their several provinces, under the character of Pi oprsetors. These great officers, of whatever rank or deno- Uiination, were first elected hy the people, in the " co)y»'' < ;ei'turiata;" hut the right of assigning thvin ro tiicir particular provinces belonged to th;: S :i..te. The prajtorian edicts, which constitute that branch of the old civil law now under considera- tion, were certain rules or forms, published by every praetor at the entrance upon his office, on the calends of January, signifying the methods w^e. by he proposed to administer justice du- ring that year. These were hung up in the public court in a white table, for the inspection of suitors and practitioners ; bnt the authority of them lasted no longer than the office itself, unless they received a fresh ratification from the successor, and in that case they were called " Edicta Translatitia." The praetor had no power to abrogtite or alter the laws, but only to temper them with equity, to aj)piy them to the particular cases before him, according to his own ideas of justice, and to '1^ i lit,,' 196 APPENDIX. supply whatever was wanting, to give them their full and proper effect. His edicts, therefore, was considered only as the voice of the law, but not law in its most comprehensive meaning, unless they happened to be adopted and con'- tinued by succeeding magistrates; under which qualified character only they are considered by Justinian himself. But notwithstanding 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 inserting so large a number 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 emo- lument than upon a punctual and faithful ad- ministration of justice, they were very apt to vary even from their own edicts, when it hap- pened to suit the convenience and interest of their friends or themselves. This opened a door to many shameful acts of injustice, and once more called forth that truly patriotic tribune, Caius Cornelius, under whose influence a law was enacted, to oblige the praetors 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," APPENDIX. 197 NOTE IV. THE following account of THE MODES OF QUOTING THE CIVIL AND CANON LAWS is taken from Dr. Hal'^axs Analysis of the Roman Civil Law, Camb. 1775, Note on page 2. " It may not be amiss, for the sake of Begin- ners, to explain here the method of quoting the several parts, which now compose the Corpus Juris Romano-Civilis. The Institutions are contained in Four Books: each Book is divided into Titles; and each Title into Paragraphs; of which the first, described by the Letters pr. or princip. 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 Paragi'aphs. The Novels are distinguished by their Number. Chapter and Paragraph. The old way of quoting was much more trou- blesome, by only mentioning the Number, or initial Words of the Paragraph or Law, with- I J i^ ft 11 19B APPENDIX. out expressing the number either of Book or Title. Thus § si adversus 12 Inst, de NuptiiSt means the ISth Paragraph of the Title in the Institu- tions £{!e Nuptiis, which Paragraph begins with the Words si adversus; and which a modern Civilian would cite thus, I. 1. 10. 12. So /. 30 D. de R. J. signifies the 30th Law of the Title in the Digests de Regulis Juris: according to the modern way, thus, D. 50. 17. 30. Again, I 5. ^3.ffi de Jurgur. means the 3d Paragraph of the 5th Law of the Title in the Digests de Jurefurando: better thus, J). 12. 2. 5. 3. And here note, that the Digests are sometimes re- ferred to, as in the last instance, by a doubley*; and at other times by the Greek n or tt. The method of quoting the Roman Canon Law is as follows. The Decree, as said above, consists of Three Parts ; of which the first con- tains 101 Distinctions, each Distinction being sub-divided into Canons: thus 1 dist. c. 3. Lex (or 1 d. Lex) is the first Distinction, and 3d Canon, beginning with the word Lex. The se- cond part of the Decree contains 36 Causes; each Cause comprehending several Questions, and each Question several Canons : thus 3. qu. 9. c. 2. Cateant is Cause the 3d, Question the 9th, and Canon the 2d, beginning with Caveant. The third part of the Degree contains 5 Disf inc- APPENDIX. m .m tions, and is quoted as the first part, with the addition of the words de Comecratione, thus de Comecr. dist. 2. can. Quic corpus (or can. Quia corpus 35 dist. 2. d. Comecr.) means the 2d Dis- tinction, and the 35th Canon, of the Treatise de Comecratiofic, which Canon begins with Qma corpus. The Decretals are in Three Parts j of which the first contains Gregory's Decretals in 5 Books; each Book being divided into Titles, and each Title into Chapters : And these are cited by the name of the Title, and the number of the Chap- ter, with the addition of the word Eivtra, or the capital letter X : thus c. 3. Extra de Usuris; is the 3d Chapter of the Title in Gregory's Deere-- tals, which is inscribed de Usuris ; which Title, by looking into the Index, is found to be the 19tli of the 5th Book. Thus also, c. cum contin- gat 36. X. de Offic. <§• Pot. Jud. Del is the 36th Chapter, beginning with Cwn contingat, of the Title, in Gregory's Decretals, which is inscribed de Officio et Potestate Judicis Delegati; and which, by consulting the Index, we find is the 29 th Title of the 1st Book. The Sixth Decretal, and the Clementine Constitutions, each consist- ing of 5 Books, are quoted in the same manner as Gregoiy's Decretals; only, instead of Ejctra or X, there is subjoin'd in sexto or in 6. and in CUmentinis or in Ckm. according as either part A $ I s m 20Q APPENDIX. ^' is referred to : thus c. Si gratiose 5. de Rescript, in 6. is the 5th Chapter, beginning with Si gratiose, of the Title de RescriptiSy in the 6th Decretal ; the Title so inscribed being the 3d of the 1st Book : And Ckm. 1. de Sent, et Re Judic. (or de Sent, et R. J.' ut calumniis. in Ckm.) (or c. ut calumniis. 1 . de Sent, et R. X in Clem.) is the 1st Chapter of the Clementine Constitutions, under the title de Sententid et Re Judkatd; which Chapter begins with Ut calumniis, and belongs to the xith Title of the 2d Book. The ExTRAVAGANTS of John the 22d are con- tained in one Book, divided into 14 Titles : thus Extravag. Ad Conditorem. Joh. 22. de V. S. means the Chapter, beginning with Ad Conditorem, of the Extravagants of John 22d ; Title, de Verbo- rum Significationibus. Lastly, the Extravagants of later Popes are called Communes; being dis- tributed into 5 Books, and these again into Titles and Cliai)ters : thus Extravag. Commun. c. Sahator. de Prebend, is the Chapter, begin- ning with Salvator, among the Extravagantes Com?nunes ; Title, de Pra^betidis. >'. ■'*■■■'_*. V' .r:\] '.- t . fi", A- ■■ / - ;f-.- SKETCH t •• OF THE PROFESSIONAL CHARACTER OF TUB EA^RL OF MANSFIELD. The following sketch of an account of Lord ManS' field's professional Life and Character^ was written, by the Author of the preceding com- pilation, at the request of the late Mr. Seward, and inserted by him in his interesting " Anec- dotes of distinguished Persons." Vol. ii. p. 425, fourth edition. His Lordship was sent, at the usual age, to the University of Oxford. He applied to the study of the Classics, and after- wards to the study of law, with great dili- gence. He told the Writer, that he had translated many of Ciecro's Orations into English, and then translated them back into Latin. He also mentioned, that, iJI a ' i PI. |i*r liv, I i . I"%' f ^ 202 PROFESSIONAL CHARACTER OF while he was a student in the Temple, he and some other students had regular meet- ings to discuss legal questions ; that, they prepared their arguments with great care; and that he afterwards found many of them useful to him, not only at the bar but upon the bench. For some time after he was called to the bar, he was without any practice. There is a letter from Mr. Pope, in answer to one from him, in which he had mentioned this circumstance with good-humour. A speech he made as counsel at the bar of the House of Lords, first brought him into notice.' * To this Mr. Pope alludes in the following lines : " Graced as thou art^i with all the power of words, " So known, so honored at the House of Lords." The second of these lines has heen considered as a great falling off from the first. They were thus parodied by CoUey Gibber : . *' Persuasion tips his tongue when'er he talks, *' And he has chambers in the King's Bench Walks." To the chambers in the King's Bench Walks, Mr. Pope has an allusion in one of the least read, but not THE EARL OF MANSFIELD. Ml Upon this, business poured in upon him from all sides ; and he himself has been heard to say, that he never knew the dif- ference between a total want of employ- ment and a gain of 3,0001. a year. He learned much of special pleading from Mr. Justice Dennison, and much of the law of title and real property from Mr. least beautiful, of his compositions, his Imitation of the first Ode of the fourth book of Horace. tt ft tt tt tt it tt tt tt tt To Number Five direct your doves. There spread round Murray all your blooming " loves ; Noble and young, who strikes the heart With every sprightly, every decent part : Equal, the injur'd to defend, To charm the mistress, or to fix the friend. He with an hundred arts refin'd, Shall spread thy conquests over half the kind ; To him, each rival shall submit. Make but his riches equal to his wit." The two last verses allude to an unsuccessful address made by his Lordship, in the early part of his life, to a lady of great wealth. Mr. Pope adverts to it in the following lines : " Shall one whom nature, learning, birth conspir'd " To form, not to admire, but be admir'd, " Sighj while his Cloe, blind to wit and worth, "^ Weds the rich dulness of some son of earth?" P 1 .* it fw •ii ■|: I ur t : 204 PROFESSIONAL CHARACTER OP Booth. He confined his practice to the Court of Chancery. His command of words, and the gracefulness of his action, formed a striking contrast with the manner of speaking of some of his rivals, who were equally distinguished by the extent and depth of their legal knowledge, and their unpleasant enunciation. After he had filled, with great applause, the offices of Solicitor and Attorney-Ge- neral, he was created Chief Justice of the King's Bench, in May 1756, on the decease of Sir Dudley Ryder. He held that high situation for two-and-thirty years. Till his time, the practice was, that the bench called' on the gentlemen 'within the bar, to make their motions, beginning every day with the senior counsel, and then calling on the next senior in order, as long as it was convenient to the court to sit; and to pro- ceed again in the same manner upon the next and every subsequent day, although the bar had not been half, or perhaps a quarter gone through, upon any one of the \ THE EARL OF MANSFIELD. 205 former days; so that the juniors were very often obliged to attend in vain, witiiout being able to bring on their motions for many successive days. Lord Mansfield, to encourage the juniors, proceeded regularly through the bar to the youngest counsel, before he would begin again with the se- niors. This method was not only advan- tageous to the younger part of the barristers, but, as it prevented a great delay of busi- ness, was extremely advantageous to the suitors. On every other occasion, he was equally attentiye to the bar and the suitors of the court. In all he said or did, there was a happy mixture of good-nature, good-humoilr, ele- gance, ease, and dignity. His countenance was most pleasing ; he had an eye of fire ; and a voice perhaps unrivalled in its sweet- ness and the mellifluous variety of its tones. There was a similitude between his action and Mr. Garrick's; and, in the latter part of his life, his voice discovered some- thing of that gutturality, for which Mr. i . '-I "1 ; 'if !' i w, j,„.. ^ . 1 1 ( H? ^h b ^ ^ KK^i t tl Jwftf^^MP T [• 1 306 PROFESSIONAL CHARACTER OF Garrick's Avas distinguished. He spoke slowly, sounding distinctly every letter of every word. In some instances he had a great peculiarity of pronunciation — " au- thority" and " attachment," two words of frequent use in the law, he always pro- nounced awtawrity and attaichment. His expressions were sometimes low. He did not always observe the rules of grammar. There was great confusion in his periods, very often beginning without ending them, and involving his sentences in endless pa- rentheses; yet, such was the charm of his voice and action, and such the general beauty, propriety, and force of his exy.«res- sions, that, as he spoke, all these defects passed unnoticed. No one ever remarked them, who did not obstinately confine his attention and observation to them alone. Among his contemporaries, he had some superiors in force, and some equals in per- suasion; but in insinuation, he was without a rival or a second. This was particularly distinguishable in his speeches from the \ THE EARL OF MANSFIELD. ^ bench. He excelled in the stalement of a case. One of the first orators of the present age said of it, " that it was, of itself, worth the argument of any other man." He di- vested it of all unnecessary circumstances ; brought together every circumstance of importance; and these he placed in so strik- ing a point of view, and connected them by observations so powerful, but which ap- peared to arise so naturally from the facts themselves, tliat frequently the hearer was convinced before the argument was opened. When he came to the argument, he shewed equal ability, but it was a mode of argu- ment almost peculiar to himself. His state- ment of the case predisposed the hearers to fall into the very train of thought he wished them to take, when they should come to consider the argument. Through this he accompanied them, leading them insensibly to every observation favourable to the con- clusion he wished them to draw, and divert- ing every objection to it ; but, all the time, keeping himself concealed; so that the 1 '1 1 ■A ' IQ< I I . ; i':i: ' SEf- , r ■fe. 208 rnOFESSIONAL CHARACTER OF hearers thought they tbrmcd their opinions in consequence of i\\r- powers and workings of their own minds, wiien, in faet, it was the effect of the most subtle argumentation and the most refined dialectic. Some idea of Lord Mansfield's cast of mind and mode of discussion, may be formed by perusing his arguments in de- livering his opinion in the cases of the Mayor of Kingslon-upon-HuU, v. Horner; Eldridge, v. Nott; and Hogan, v. Jackson, in Mr. Cowper's Reports, 102, 214, 399- Something of them appears also in the fol- lowing extract of his speech in reversing Mr. Wilkes's outlawry, 2 Burr. 2561; but it should be taken into consideration, that the last evidently was either a prepared speech, or purposely, corrected for the press. * After stating the general merits of the case, his Lordship says, " But here, let me pause! — " It is fit to take some notice of the various terrors hung out; the numerous i THE EARL OF MANSFIELD. 309 crowds wliicli Imvc uilended and now at- tend in and about I lie hall, out of all reach of hearing what passes in court ; and the tumults which, in oilier places, have shame- fully insulted all order and government. Audacious addresses in print dictate to us, from those they call the people, the judg- ment to be given now, and afterwards upon the conviction. Reasons of policy are urged, from danger to the kingdom, by commotions and general confusion . ' , ■^ f " Give me leave to take the opportunity of this great and respectable audience, to let the whole world know, all such attempts are vain. Unless we have been able to find £^n error which will bear us out, to reverse the outlawry; it must be affirmed. The constitution does not allow reasons of state to influence our judgments : God forbid it should ! we must not regard political con- sequences ; how formidable soever they might be : if rebellion Avas the certain con- sequence, we are bound to say "Jiat jus^ i I E a 10 PROFESSIONAL CHiVRACTER OF titioi mat calum" The constitution trusts the king with reasons of state and poUcy : he may stop prosecutions; he may pardon offences; it is his, to judge whether the law or the criminal should yield. We have no election. None of us encouraged or ap- proved the commission of either of the crimes of which the defendant is convicted ; none of us had any hand in his being pro- secutedi As to myself, I took no part, (in anotHer place,) in the addresses for that prosecution* We did not advise or assist the defendant to fly from justice : it was his own act; and he must take the conse- quences. None of us have been consulted or had any thing to do with the present prosecution. It is not in our power, to stop it : it was not in our power, to bring it on. We cannot pardon* We are to say, what we take the law to be : if we do not speak our real opinions, we prevaricate with God and our own consciences^ , ^ " I pass over many anonymous letters I THE EARL OF MANSFIELD. 2U have received. Those in print are public: and some of them have been brought judi- cially before the court. Whoever the writers are, they take the wrong way. I will do my duty, unawed. What am I to fear? That mendax infamia from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust, that my temper of mind, and the colour and conduct of my life, have given me a suit of armour against these arrows. If, during this king's reign, I have ever supported his government, and assisted his measures ; I have done it without any other reward, than the consciousness of doing what I thought right. If I have ever op- posed, I have done it upon the points them- selves; without mixing in party or faction, and without any collateral views. I honour the king ; and respect the people : but, many things acquired by the favour of either, are, in my account, objects not worth ambition. I wish popularity: but, it I w m ■i m m I i I m I'" ' il^ 212 PROFESSIONAL CHARACTER OF is that popularity which follows ; not that which is run after. It is that popularity •which, 8oon6r or later, never fails to do Justice to the pursuit of noble ends, by noble means. I will not do that which my conscience tells me is wrong, upon this oc- casion; to gain the huzzas of thousands, or •the < daily praise of all the papers which come from the press : I will not avoid doing what I think is right; though it should . draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say, with a great magistrate, upon an occasion and under circumstances not unlike, ' Ego hoc animo semper fui, ut * invidiam virtute partam, gloriamy non invi- * diam, putarem* The threats go further than abuse : per- sonal violence is denounced. I do not believe it: it is not the genius of the worst men of this country, in the worst of times. But I have set my mind at rest. The last THE EARL OF MANSFIEL ). 21$ end that can happen to any man, never conies too soon, if he falls in support of the law and liberty of his country: (for, liberty is synonymous to- law and government.) Such a shock, too, might be productive of public good; it might awake the better part of the kingdom out of that lethargy which seems to have benumed them; and bring the mad part back to their senses, as men intoxicated are sometimes stunned into sobriety^ ,;; . . . . . i Once for all, let it be understood, * that * no endeavours of this kind will influence • any man who at present sits here/ If they had any effect, it would be contrary to their intent: leaning against their im- pression, might give a bias the other way. But I hope, and 1 know, that I have forti- tude enough to resist even that weakness. No libels, no threats, nothing that has hap- pened, nothing that can happen, will weigh a feather against allowing the defendant, upon tliis and every other question, not i m ai4 PROFESSIONAL CHARACTER OF :.-(; HIb ■! 1 '^^^^^^H^w!< i only the whole advantage he is intitled to from substantial law and justice; but every benefit from the most critical nicety of form, which any other defendant could claim under the like objection. The only effect I feel, is an anxiety to be able to ex- plain the grounds upon which we proceed ; so as to satisfy all mankind * that a flaw of * form given way to in this case, could not * have been got over in any other.* ■ His Lordship frequently enlivened the taedium of a cause with saUies of good- humoured wit. He was sometimes happy in them. A jew of a very bad character, but covered with gold lace, was b^'ought before him to justify bail for fifty pounds. The counsel asked him the usual question, if he were worth fifty pounds, after all his just debts were paid. " Why do you ask him " that question?" said his Lordship : ** don't " you see he would burn for twice the "sum?" But it was not by oratory alone, that he THE EARL OF MANSFIELD. 215 was distinguished: in many parts of our law he estabhshed a wise and com pleat system of jurisprudence. His decisions have had a considerable influence in fixing some of those rules which are called the land-marks of real property. The law of insurance, and the poor laws (particularly so far as respects the law of parochial settle- ments), are almost entirely founded on his determinations. It has been objected to him, that he introduced too much equity into his court. It is not easy to answer so general an observation; it may, however, be observed, that it is as wrong to suppose a court of law is to judge without equity, as to suppose a court of equity is not bound by law: and, when Mr. Justice Blackstone in- forms us," that, under the ancient provisions of the second statute of Westminster, the courts of law were furnished with powers, which might have effectually answered all ■:l\ .■<.i\ ' if; '■11 '' Cora. vol. iii. 435. y 'i ( X : 216 PROFESSIONAL CHARACTER OF the purposes of a court of Equity, except that of obtaining a discovery by the party's oath, there cannot, it should seem, be much ground for such an accusation, r** li it \ '' His Lordship was sometimes' charged with not entertaining the high notions which Enghshmen feel, and it is hoped will ever feel, of the excellence of the Trial by Jury. Upon what, this ch?irge is founded does not appear: between him and his jury there never was the slightest difference of opinion. He treated them with unvaried attention and respect; they always shewed him the utmost deference. It is remembered, that no part of his office was so agreeable to him as attending the trials at Guildhall. It was objected to him, that, in matters of libel, he thought the judges were to decide on its criminality. If his opinions on this subject were erroneous, the error was common to him with some of the most eminent among the antient and modem lawyers. It was also objected to him, that THE EARL OF MANSFIELD. 217 he preferred the civil law to the law of England. His citations from the Civilians were brought as a proof of his si'.pposed partiality to that law : but they were rather occasional than frequent; and he seldom introduced them where the case was not of a new impression, so that the scantiness of home materials necessarily led him to avail himself of foreign ware. Sometimes, how- ever, he intimated an opinion, that the modification of real property in England, in wills and settlements, was of too intricate and complex a nature, and for that reason inferior to the more simple system of the Roman usufruct. The frequent necessity there is in our law to call in trustees, whenever property is to be transmitted or charged, so as to be taken out of immediate commerce, appeared to him an imperfec- tion ; and he wished the nature of our ju- risprudence permitted the adoption of the rule of the civil law, that, when a debt is extinguished, the estate or interest of the ':.\\ \M I li 1 1 1' )18 PROFESSIONAL CHARACTER OF creditor, in the lands or other properly mortgaged for its security, is extinguished with it. It will be difficult to shew any other instance in which he preferred the civil law to the law of England. - . ^ In a conversation he permitted a student at the English bar to have with him, he ex- pressed himself in terms of great esteem for Littleton, but spoke of Lord Coke, par- ticularly of " his attempting to give reasons " for every thing" (that was his phrase) with great disrespect. He mentioned Lord Hardwicke in terms of admiration and of the warmest friendship : " When his Lord- " ship pronounced his decrees, wisdom " herself,'' he said, " might be supposed to ** speak," ■ • ;,^ He observed with great satisfaction, that during the long period of his chief justice- ship, there had been but one case in which he had ultimately differed with his brother judges of the same court. That was the case of Perryii against Blake. He lamented m i THE EARL OF MANSFIELD. 219 the difference, but declared his conviction, that the opinion he delivered upon it was right. ■ ' f "''■''>* - ■•^■t ■" --r*^ ' ) A,*'/r He recommended Saunders* Reports. He observed, that the quantity of profes- sional reading absolutely necessary, or even really useful, to a lawyer, was not so great as was usually imagined ; but, he obsei*ved, " that it was essential he should read much," as he termed it, " in his own defence ; lest, " by appearing ignorant on subjects which ^* did not relate to his particular branch of ♦* the profession, his ignorance of that par- " ticular branch might be inferred." Speaking of the great increase of the number of law books, he remarked, that it did not increase the quantity of necessary reading, as the new publications frequently made the reading of the former publica- tions unnecessary. Thus, he said, since Mr. Justice Blackstone had published his Commentaries, no one thought of reading Wood's Institutes or Finch's Law, which^ r -:.!■! W; m 5 1 lb flfll' 320 PROFESSIONAL CHARACTER OF till then, were the first books usually put into the hands of students. He said that when he was young, few persons would confess they had not read a considerable part, at least, of the year books; but that, at the time he was then speaking, few persons would pretend to more than an occasional recourse to them in very par^ ticular cases. He warmly recommended the part of Giannone's History of Naples, Avhich gives the history of jurisprudence, and of the disputes between the church and the state. He mentioned Chillingworth as a perfect model of argumentation. . ; ; In the fundamental pxinciples, either of the constitution or the jurisprudence of this country, no one dreaded innovation more than he did. His speech on the case of Eltham Allen shews his notion^ on the great subject of toleration. It was pub- lished by Dr. Eurneaux. He was the first judge who dpenly discountenanced prose- cutions on the Popery laws. His charge to |1 THE EARL OF MANSFIELD. 321 the jury, in the case of Mr. James Webb, a Roman CathoUc priest, tried in 1768 for saying mass, is printed from the notes of the short-hand writer, in a life of Dr. Chal- loner, a Roman Catholic bishop, by Mr, James Barnard. ' • ' To these may be added, a speech against the suspending and dispensing prerogative, printed in Mr. Almon's collection. It is an invaluable composition, and presents, perhaps, the clearest notions that have yet appeared in print, of this mysterious and delicate part 0:^ the law. Much of his manner of arguing, and his turn of expres- sion, is discoverable in it. It cannot, how- ever, be considered as his genuine speech : it ismt least three times the size of the speech really delivered by him* He ob- tained by it a compleat triumph over Lord Camden and Lord Chatham. ' Though he was so far a friend to tolera- tion, as not to 'vvish for an extension of the laws enacted against Dissenters, or to wish 1 1 aai PROFESSIONAL CHARACTER OP tlie existing laws rigidly enfoiced against them, yet he was a friend to the corpo- ration and test laws, and considered ihem as bulwarks of the constitution, which it might be dangerous to remove. On every occasion he reprobated the discussion of abstract principles, and inculcated the maxim, that the exchange of the well for the better was a dangerous experiment, and scarcely ever to be hazarded. Some time after the commencement of the French Revolution, he was asked, where he thought it would end? He said, he feared it was not begun. — ^To a person who enquired of him, what he supposed would be the ultimate issue of it; he said, it was an event without precedent, and therefore without prognostic. It has been argued, that his knowledge of the law was by no means profound, and that his great professional eminence was owing more to his oratory than to his knowledge. This was an early charge 1 1 THE EARL OF MANSFIELD. 133 (igainst him. Mr. Pope alludes to it in these lines: The Temple late two brother Sergeants saw, Who deeme'd each other orucles of law; Each had a gravity would make you split. And shook his head at Murray as a wit. Imitations of HoracCf book ii. epist. ii^ Perhaps the opinion was founded on the hotion which many entertain, that the study of the polite arts is incompatible with a profound knowledge of the law ; not re- collecting, that the human mind necessarily requires some relaxation, and that a change of study is the greatest and most natural of all relaxations, to a mind enirns'od in pro- fessional pursuits. Besides — the commune vinculum between all brai.ches of learning, preserves the habits ot application, of think- ing, and of judging, which are lost in the modes of dissipation usually resorted to for relaxation. The Chancellor D'Aguesseau," * This great magistrate used to say, " Le ckangement *' cP^tude est toiijou sun dclassemeiit pour moi.'* m Ic .1' t- n-^- m m ^ ■ r 1 '7; 224 PROFESSIONAL CHARACTER OF and even the stern Du Moulin, were emi- nently distinguished by their general lite-* rature. Lord Bacon's various and profound knowledge is universally known ; and many works of Lord Hale are published, which shew, that to the deepest and most ex- tensive, knowledge of all the branches of the law, the constitution, and the antiqui- ties of his country, he united a general ac- quaintance with the history of other nations ; that he had given much of his time to the study of theology; that he occasionally sacrificed to the Muses, and spent some time in the curious and instructive amuse- ments of experimental philosophy. It was late in life, that Lord Hardwicke took up the study of polite literature, but he after- wards pursued it with great earnestness. His son. Lord Chancellor Yorke, always called himself a fugitive from the Muses ; and, amidst his vast variety of occupation, still found time to converse with them. Each of these great men might have said :,S THE EARL OF MANSFIELD. ' 23« with Cicero, '^ Quis tandem me reprehendat, " aut quis mihi jure succenseat, si quantum " cceteri, ad suas res obeundas, (quantum ad **festos diesludorum celebrandos, quantum ad " alias voluptates, et ad ipsam requiem animi " et corporis conceditur temporis; quantum " alii tribuunt tempestivis conviviis, quantum " denique alece, quantum pilce, tantum mihi " egomet, ad hcec studia recoUenda sttmpsero". To decide on his Lordship's knowledge of the law, a serious perusal of his argu- ments, as counsel, in Mr. Atkyns's Reports, and of his speeches, as judge, in Sir James Burrow's, Mr. Douglas', and Mr. Cowper's Reports, is absolutely necessary. If the former be compared with the arguments of his contemporaries, many of whom were men of the profoundest knowledge that ever appeared at the Chancery bar, it will not be discovered, that in learning or re- search, in application of principles or in recollection of cases, his arguments are anywise inferior to those of the most^ emi- Q • M 326 PROFESSIOl^AL CHARACTER OF 1^ M nent among them. Neither will he suffer by the comparison, if his speeches in giving his judgments from the bench, are com- pared with those of the counsel at the bar. It is easy to imagine, that, on some one occasion, a judge, with his Lordship's mental endowments, by a paiticular application to the learning immediately referrible to the case in question, and by consulting with persons eminently skilled in that particular branch of legal lore, may, with a very small stock of real knowledge of his own, express himself with a great appearance of extensive and recondite erudition. This, however, can be the case but seldom, the calls upon a chief justice of the King's Bench for a full exertion of all his natural and acquired endowments being incessant. There is hardly a day of business in his court, in which a disclosure of his knowledge, or of his want of it, is not forced from him. -^ Considering his Lordship's decisions se- parately, it will appear, that on all occa- ii'i. i If I;, '( •' THE EARL OF MANSFIELD.* ^ 227 sions he was perfectly master of the case before him, and apprised of every principle of law, and cv^ery adjudication of the courts, immediately or remotely applicable to it. Considering them collectively, they will be found to form a complete code of juris- prudence on some of the most important branches of our law : a system founded on principles equally liberal and just, ad- mirably suited to the genius and circum- stances of the age, and happily blending the venerable c< ines of the old law with the learning a.ja refinement of modern times; the work of a mind nobly gifted by nature, and informed with every kitid of learning which could serve for use and ornament. .... It was not on great occasions only, that his Lordship's talents were conspicuous : they were equally discoverable in the common business of the courts. Par negotiis neque supra,^ was never more applicable ^ Tacitus, in Fitd Jgricola. ■ff: I p \ -'•>"■ >;? ./> 228 PROFESSIONAL CHARACTER OF than to the discernment, perseverance, abi- Hties, and good-humour with which he con- ducted himself in that part of his office. The late E^rl of Sandwich said of him, " that his talents were more for common " use, and more at his finger ends, than " those of any other person he had known." But his highest praise is, that his private virtues were allowed by all, and his personal integrity was never called in question. ..--,.*-_,-'■• ■•■.-.<■ l^.< ,nf^^:,.. .. ■■ '':•• A memorable event in his Lordship's life, is the destruction of his house and papers, in the riots of 1780. The following account of it is given, by Mr. Douglas, now Lord Glenbervie, in ?iis " Reports of Cases ad- " judged arid determined in the King's " Bench, in the 19th, 20th, and 21st years of the reign of George the Third.** (( - )•■ In the night between Tuesday th 6th, and Wednesday the 7th, of June, Lord Mansfield's house, in Bloomsbury- square. J. THE EARL OF MANSFIELD. 329 was attacked by the rioters, who, on the Friday and Tuesday, to the amount of many thousands, had surrounded the ave- nues to the Houses of Parhament, under pretence of attending Lord George Gordon, when he presented the petition from the Protestant Association. Lord Mansfield acted at that time as Speaker of the House of Lords, in the absence of the Lord Chancellor, who was ill. On the Tuesday evening, the prison of Newgate had been thrown open, all the combustible part re- duced to ashes, and the felons let loose upon the public. It was after this attempt to destroy the means of securing the victims of criminal justice, that the rioters assaulted the residence of the chief magistrate of the first criminal court in the kingdom; nor were they dispersed till they had burnt all the furniture, pictures, books, manuscripts, deeds, and, in short, every thing which fire could consume in his Lordship's house; so that nothing remained but the walls; which // 8'^ 1 : 1 ^ *^^BP"" PROFESSIONAL CHARACTER OF .^ were seen the next morning almost red hot, from the violence of the flames, presenting a melancholy and awful ruin to the eyes of the passengers. '^*^ -^^^ * - The amount of that part of Lord Mans- field's loss which might have been esti- mated, and was capable of a compensation in money, is known to have been very great. This he had a right to recover against the Hundred. Many others have taken that course ; but his Lordship thought it more consistent with the dignity of his character, not to resort to the indemnifica- tion provided by the legislature. His senti- ments on the subject of a reparation from the state were communicated to the Board of Works, in a letter written in consequence of an application which they had made to him, (as one of the principal sufferers,) pursuant to directions from the Treasury, founded on a vote of the House of Com- mons, requesting him to state the nature and amount of his loss. In that letter, after •I »■/, THE EARL OF MANSFIELD. Oil some introductory expressions of civility to the Surveyor General, to whom it was addressed, his Lordship says, , v,*^ " Besides what is irreparable, my pecu- " niary loss is great. I apprehended no " danger, and therefore took no precaution. " But how great soever that loss may be, " I think it does not become me to claim " or expect reparation from the state. I " have made up my mind to my misfortune ** as I ought : with this consolation, that it ** came from those whose object manifestly " was general confusion and destruction at " home, in addition to a dangerous and " complicated war abroad. If I should lay " before you any account or computation " of the pecuniary damage I have sustained, " it might seem a claim or expectation of ** being indemnified. Therefore you will ** have no further trouble upon this subject 'Vfrom, &C. ; -ii :v . ;i ;,M \. ^* Manspjeld/' // ;.r ■ » > PROFESSIONAL CHARACTER OF y^ 'M ' * On Wednesday, the devastation became : almost general throughout London, The houses of many of the most respectable in- dividuals had been previously attacked: that evening, the Fleet and King's Bench • prisons were set on fire; the Bank of England, the Inns of Court, almost all the public buildings, were threatened with de- struction; and an universal coLilagration must have taken place, if the king had not issued a proclamation for the speedy and effectual interposition of the military power. Till then, the soldiery had scarcely dared to act offensively ; the ordinary magistrates were, for the most part, deterred, or pre- vented by various causes, from giving their sanction to the employment of the troops ; and, in many places, the men under arms, with their officers at their head, though drawn up in military order, did nothing more than preserve a space between the in- cendiaries and the crowd of spectators, so THE EARL OF MANSFIELD. Ml as to have the effect of enabling the former to demolish the houses and property of their fellow subjects without interruption. u. The courts of justice continued, on the Wednesday, to sit, in order to do the busi* ness of course ; but almost every where else, except in Westminster Hall, the rioters seemed, that day, to have obtained a com- plete mastery, and a real anarchy pervaded all parts of the metropolis. The execution done by the troops on the night between the Wednesday and Thursday, though very few lives were sacrificed, produced a happy revolution. The numerous bands of rioters had entirely vanished on the Thursday after- noon ; scarce a single badge of the Protes- tant Association, (which was a blue cockade, and which all the rioters wore,) was to be seen ; and the total suppression of this in- surrection, in its circumstances without ex- ample in the history of Europe, was as , sudden as its rise. The encampment of aS4 PROFESSIONAL CHARACTER OF ' large bodies of the army and militia in and near London for several months, prevented the renewal of the commotions there ; and, although a scene of the same sort took place a few days afterwards at Bath, and was commenced, or expected, in other parts of England, similar precautions entirely extinguished, not only all danj^er, but all apprehension, in the space of a fbw weeks/' His Lordship resigned his ofEce on the 3d of June, 1788. * ^ - - ' •• ' Soon after his Lordship's resignation was signified, the following letter was sent to him. It was signed by the counsel of the King's Bench bar, who had practised in the court during his Lordship's adminis- tration : , i-1 \ tU !■'>'!' Hn ''iifi'- ■U '1. 1 1 ^_i- -.^cii-. .1 r. l/rt l.i'- -i ■' I THE SARL OF MANSFIELD. ' HI (( YQ juj. E^RL OF MANSFIELD. ' , " My Lord, ly4^ " It was our wish to have waited " personally upon your Lordship in a body, ** to have taken our public leave of you on " your retiring from the office of Chief " Justice of England ; but, judging of your " Lordship's feelings upon such an occa- " sion by our own, and considering besides " that our numbers might be inconvenient, " we desire in this manner affectionately to " assure your Lordship, that we regret, " with a just sensibility, the loss of a ma- ** gistrate whose conspicuous and exalted " talents conferred dignity upn the pro- " fession, whose enlightei\ed and regular " administration of justice made i; i duties " less difficult and laborious, and whose " manners rendered them pleasant and re- " spectable. " But while we lament our loss, we re- " member with peculiar satisfaction, that i . ■ ^ 880 PROFESSIONAL CHABACTER OP your Lordship is not cut off from us by the sudden stroke of painful distemper, or the more distressing ebb of those ex- traordinary faculties which have so long distinguished you amongst men; but that it h.is pleased God to allow to the even- ing of an useful and illustrious life the purest enjoyments which nature has ever all()tted to it; the unclouded reflections of a superior and unfading mind over its varied events ; and the happy conscious- ness that it has been faithfully and emi- nently devoted to the highest duties of human society, in the most distinguished nation upon earth. '' *' -"■'-' " " May the season of this high satisfaction bear its proportion to the lengthened days of your activity and strength. ' "(Signed)." The letter thus signed, being transmitted to the venerable Earl by Mr. Erskine, at the desire of Mr. Bearcroft, the senior of that THE EARL OF MANSFIELD. m Bar, unci the rest of the gentlemen wlio had thus subscribed it, his Lordship, without, detaining the servant five minutes, returned ' the following answer : . - « (( « ■ \» »■ ..1. ■ .;, ^,- , .'■-*.;-■• .'■'■' ■' . ' > '- ,. • " TO THE UONOIIABLE T. ERSKINE, " SEHJEANTS-INN. " Dear Sir, , , " I cannot but be extremely flattered by the letter which I this moment have the honor to receive. " If I have given satisfaction, it is owing to the learning and candour of the Bar; the liberality and integrity of their practice, freed the judicial investigation of truth and justice from difficulties. The memory of the assistance I have received from them, and the deep impression which the extraordinary mark they have now given me of their approbation and affection has made upon my mind, will be a source of i 3i9 PROFESSIONAL CHARACTER, Sec. " perpetual consolation in my decline of " life, under the pressure of bodily infir- " mities, which made it my duty to re- *«tire. ■^rfu,,-. ,' *,. " I am, dear Sir, with gratitude to " You and the other Gentlemen, tt Your most affectionate " And obliged humble Servant, " Caen Wood, •' June 18, 1788.". " Mansfield/' THE END. T. Beniley, Printer, Bolt Court, Flcet°8treet, London. m e of nfir- re- By the same Author, i^ !ia HORiE BIBLIC^, VOLUME THE FIRST; Being a connected Series of Notes on the Text and Li- ., TERARY History of the Bibles^ or Sacred Books of the Jews and Christians. FOURTH EDITION. o^»': //: I, mt, LD. » AND i ' HOR^ BIBLICiE, VOLUME THE SECOND; Being a connected Series of Notes on the Koran, Zend* AvESTA, Vedas, Kings, and Edda. t^ SECOND EDITION. {, WITH TWO DISSERTATIONS: I. On the Council said to have been held by the Jews, at Ageda in Hungary, in 1650, with the original Narrative of that Council. II. An Historical Outline of the Disputes respecting the Authenticity of 1 John, Chap. V. ver. 7. AND A CONNECTED SERIES OF NOTES On the chief Revolutions of the principal States, Which compose'l the EMPIRE OF CHARLEMAGNE, From his Coronation in 814, to its Dissolution in I8O6 : On the Genealogies of the Imperial House of Habslurgh, And the * Six Secular Electors of Germany ; And on Roman, German, French and English Nolility, ^ :'l m. "^ •M*