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Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 3^0 ■51 OS \l.^i ^-^yf-- ThlK ROMAN LAW, A LECTURE DELIVERED BT FREDERICK WILLIAM TORRANCE, ESQUIRE, ADVOCATE, M.A., EDIN : LAW LECTURER, MCGILL COLLEGE, MONTREAL, tN THE HALL OF THE COURT OF APPEALS, MO.NTREAL, ON THE 13th JANUARY, 1854-; INTRODUCTORY - 't^i'^ - TO A COURSE OF LECTURES ON THE ROMAN LAW, IN CONNECTION WITH THE LAW FACULTY OF THE UNIVERSITY . OF M'^GILL COLLEGE. ** Comme dies grandes destinets de Rmnc ii\taicnt pa'& encm-c accmnplies, elh rvgne dims toute la terre par sa raison, ajnes avo/r ccsse d'y regner fuir son nutmite.^''— jyAirftcsseav, (Euvrrs, I, 157. MONTREAL I H. K A M S A Y. ISnl. mmmmmmmmmmmm " £S^ •^^ Ssr*^ r iJ-T THE ROMAN LAW. *' Commie si les grandes destinees de Rome n'etaient pas encore 'accom/plies, die rigne dans toute la terre par sa raison, apris avoir ■cesse d'y rr mcrpar son autorile.^^ — D^Aguesseau,(EurYes, 1, 157. It having been committed to my charge to deliver a course of Xiectures on the Roman Law, it is fitting that I should introduce ^he subject with such observations an shall tend to bring it home to your understandings. By this means," the attention of the hearer will be awakrned, and he will enter upoti the course with his feelings inter- bested and his mind engaged. Tn piirstiance of this plan the topics which naturally present (hemselves for our consideration in an intro- ductory Lecture, are tlie national characteristics of the Ancient Romans— their national policy — the characteristics of their famous .lurisprudence — and the advantages to he dii ivcd from its study, by the man of education aiul tiu' Fiawyer. There is not in the history of the world fo bo found a subject of more interesting and profitable contemplation than is presented by the rise, progress and downfall if the Ancient Jtoman Empire, — whether we consider the space it lias occupied in the civilization of our earth, during the lime of its existence, or rofe.ssion itself is numerous and powerful ; and in most " provinces it takes the lead. The greater number of the deputies sent " to the congress are lawyers. But all who read, and most do readj. ** endeavour to obtain some sraattfiring in that science." f This passage would seem w<^ll to describe the ancient Romans. We are all familiar by ow reading of Roman history with the rtilu- tion of patron and client. The early jurisconsults had h)ng trains of followers, and their business consisted both in advising and acting on behalf of their clients gratuitously. Their poets and satirists abound in allusions to this custom and Cicero informs us that they gave their advice or answers either in public places which they attended at cer- tain timeS; or at their own houses, and not only on matters of law but on any thing else that might be referred to them. Long before the time of Cicero the study of law had become a dis-* tinct branch from the study of oratory, and a man might raise himself to eminence in the state by his reputation as a lawyer, as well as by his oratorical power or military skill. | M, Lerminier, lately a professor m the College of France at ParU) in a work published some twenty-four years ago on the History of Law, notices the prominent place held by the science of jiirispruilence in the R^man mind in the following terms. " It is now time" he says " to ** ask what was the position held by the science of the Law in the • Aniold's Rome, Chap. VI, p. 36. " The most striking point in the character or *^the Komans, and that which has so permanently influenced the condition of man- *' kind, was their love of institutions, and of order, their reverence for law, their " habit of considering tiie individual as living only for that society of which he " wa« a member." t'BUrke'sWks., 2,p. 36. t SmiUi'a Ant., p. 537. Ftrfto. Juriscon.sultf. * ^ 1 , ^^/ " '; '• *' Roman miiul. In the East, law dues uut exist under precise ana " individual forms. In (i recce, it has more prominence ; but ruled '* over by religion and the State, it has not yet attained to indepen-' " dence and therefore not to originality.* it is at Rome, that for the " first time, law is altogether separated from foreign elements, ami " makes itself individua' and puissant. Rome is not the World of A rt " and of Science. Far from that, the love she exliibited for the " sciences and arts of Greece was a sign of decay for her genius. " Rome has not any more the universal and absolute genius o( religion. " She is solely occupied with the State — with the citizen, with politic- ** al and civil relations, in a word, with law ; to such a degree that we " must not say that law has at Rome a suitable position, but i' it *' Rome is truly the world of law " tellemcnt quSl ne faut pas " dire que le droit ait d Rome un rang convcnable, mats que Eome " est veritablement le vionde du droit.''^\ In the remarks already made, there is much from which we may in- fer tEe poweriul influence of Roman civilization on the civilization of tBe world. But the author I have just now quoted has some striking observations on the intellectual influence and duration of the Roman Jurisprudence, which throw additional light on the genius of the Roman people. I translate. He asks, <' How can we explain the intellectual power of the Roman jurisprudence and its political duration 1" He answers, " In going back continually and unceasingly to the contempla- fion of the genius of Rome ; in burying ourselves in the study of Roman originality, in order to snatch from her the secret and the rea- son of this inimitable legislation. The Roman, severe, austere, avari- cious, of a positive spirit, was passionately attached to his origin and' his national peculiarities ; a zealous follower of the customs of his fathers, and of their ancient constitution, he never broke the chain of years ; always bounclto the ancient traditions, the new ideas ; carried in' • I would add that Adam Smith in His wealth of nations remarks that Law did not attain to the dignitj' of a science in any Greek Repjblic. •Smiih's Wealth r B. V.,Cap. 1. t P. 386, 2nd edit. /-^^ 10 bis designs, nn iiiiitssuluble continuity, and in their execution an immove' able constancy. Hence, the statesmen, tb j men of political genius, the great jurisconsults. Rome has, eminently, political genius. I do not say, social genius, for she trampled under feet the nations, and to her trium]>hs she harnessuiJ kings. But the idea, the sentiment of the Stite, of nglit, of law, of the constitution, of what is national, pater- nal, preoccupifsanJ fdls her ; for her the arts, philosophy, the pleasures of thought, are only an amusement, and n distraction. Abroad, she displays an iinplaeable perseverance in bringing to a sdr9L. mmmmmmmm ff 4>vf }. 1 Oi'abuiit caucus kjUus, ctslique ineatu* Dcscribent radio, et surgeiitiu 8idera dicent. 'i'u rcgere imperio popuios ; Romane, meincitio ; Hoi tibi crunt artes ; pacis-que imponere inorein ; Parcerc suhjectis; et debeliare supcrbos." Aenddf)8, VI.. 848-«r)4. Thus paraphrased by Dryden. Let others bett r mould the running muss Of metals, and 'nforni the breathing brass, And soften into flesh a marble face ; Plead better at the bar ; describe the skies, And when the stars descend .ind when they rise. But liome ! 'tis thine a!une, tviih anful sway, -.; To rule mankind, and make the world obey, Disposing peace and war thy own majestic way ; To tame the proud, the fettered slave tu free * These are Imperial arts, and worthy thee." Dry Jen's ^neid, v. v. 1168-1177. Having now these national characteristics of the Romans in our recollection, it is not difficult to imagine what their national policy would be. I believe the mission of the Romans to have b<}en to refornr and renovate the ancient world — to substitute a Roman — say rather a world-wide civilization for the imperfect civilizations of half barbar-- ous nations ; — above all, if we may indulge in speculation, the purpose of its e.xistence was, to prepare the world for a heaven-sent faith ^ which should sweep away the innumerable fantastic forms of human> ereeds. The policy of the Romans was pursued with unswerving resolution.- We hear much in these days of the restless, subtile and encroaching spirit of the Czars of Russia, and of the religious scrupulosity with which they pursue the sagacious counsels of Peter the Great, and push their conquests, south, east, and west. The policy of the Russians gives a faint conception of the domineering and astute policy of the Romans. It has not unfrcquently lappened that, when a people has been ▼atquished and reduced to subjection, the conqiu^rors liavr left to thorn ;•: ^4^ ili<; fnc e:ijo}iiient oi lluii' civil riglits and laws. Far o'herwise did the Romans. V\'l;t;n a tract of country was maiie a Iloman Province, they determined to make every tiling- about it Fioman. The Latin language was introduced into the various civil and judicial acts, reudering indis- pensable to the natives the study of this language. The tenure of the land gradually received an Italian organization. The superior classes, experienced and even souglit a transformntion which tended to their interests and flattered their taste. The emperor by a wise and judicious policy attached to the Roman interests the distinguished persons of the Provinces, laid open to thorn the avenues of dignities and even made them members of the Senate. * Roman literature became their study, and when the invasion of tne barbafia/ts severed France from the Roman power, the ancient in- habitants of the country had altogether disappeared, and there were only Romans to be found ; and we have indeed indubitable proof long before this event, that the provinces had been assimilated to Rome, when all the subjects of the Roman Empire had accorded to them the fftmous right of Roman citizenship, of the communication of whibb in etvlter times Rome had been so jealous and so chary. In the sMbject provinces, the Roman municipal system — the Roman Taws—the Roman magistracy— in their entirety were introduced. Romatf judges appointed by the emperor and removeable at pleasure, adirinis- tered the laws — and the emperor at Ptome himself constituted the highest court of nppeal.f We are here reminded of the memorable incident in the life of the Apostle Paul ; when his life was sought by the fanatical zeal of his Jewish persecutors, he saved himself from their fury and in a moment ousted the Roman proconsul of his jurisdiction by a solemn appeal to the justice of Caesar. A writer in the Paris Revue de Legislation of last yearj describes in graphic language, the effect on Gaul of its conquest by the Romans.^ " Let us mark above all," he siys " thcit the Roman conquest bad the • Giraud, 1,76, 7. t Histoire du droit Fruncais nu tnoyen age. Giraud, Vol. 1, p, 91. % A.D. 1853, p. 14. \M ■iHMUHPMI ^4J^ 13 effect of insensibly and gradually depriving Gaul of every thing tliat could make up her nationality. The barbarians after their invasion did not im- pose their own laws on the vanquished ; Visigoths, Burgundians and Francs all admired the system of personal laws found in the lloman Ju- risprudence, whether because they were wanting in ambition or because they obeyed unconsciously that inward feeling of admiration and respect which civilization always inspires in barbarians. But the Romans had proceeded in a very diffeiciic manner ; their astute and ambitious policy consisted in extending their rule by their language^ by their manners and above all by their laws. Never has there been another civiliza- tion more encroaching and more absorbing than the Roman civilization. " Aucune autre civilization nffitt plus envahissante et plus cibsor- bante que la civilization LiomaineP The testimony of the philosophic Guizot in his lectures on civiliza- tion in France is to the same effect. '* The Roman civilization," he says, '* has had the terrible power of extirpating national laws, manners, languages, religions ; of assimil- ating and bringing to one form all the Roman conquests.''* I shall now make a few remarks on the characteristics of the Roman Jurisprudence. It affords unquestionably the example of a more com- plete and self connected system than the Jurisprudence of any modern nation can exhibit, and we need only consider the large and comprehen- sive views of the science entertained by the Roman jurisconsults them- selves, to have some insight into (he causes of its wonderful excellence and exalted position. The definition f which the Roman Jurisconsults gave of Jurispru- dence is the knowledge of tilings divine and human, in order to dis- tinguish the riglit and wrong. One is reminded here of the famous defini- tion of law by Dr. Samuel Johnson, as " the science in which the greatest powers of the understanding are applied to the greatest num- ber of facts," and the noble observation of Edmund ]3nrke comes to • lllh Lecture, 1. p. 3b8. j Jurisprudctilia est cliviiiuruni iitque hiinunuiuni •i-rurii iiolitin, juoli alquc njubti Bcieiitia. Inst. 1. 1. 1, \M ^i (T^^ 14 our mind wheu he speaks of law as '*' the Science of Jurisprudencr, the priile of human intellect, which, with all its defects, rediindnnci* s and eirors, is the collected reason of ages, comhining the principles uf original justice with the infinite variel}' of human concerns." And comparing the modern with the ancient definition of Juri^'pru- denee, we are struck ivilh the tliought that the wisdom and experience of the wisest of moderns has added nothing to the nohle conceptions of tlie old Romans. It is indeed a memorable truth that the professors of law in ancient Rome were grand masters in moral as well as legal science, — they drank deep of the fountains of Grecian philosophy — the philosophy of Plato and Aristotle and Zeno. M. Lerminier, the author I have already quoted, observes, " The Stoics, appearing in the heart of the republic at the " moment when she was about to fall, instructed the jurisconsults, and " it is to this alliance of the porch and the forum that we must attri- " bute this philosophic jurisprudence, this legislative style, which em- " braces in forms so severe, the decisions of a strict justice and an " inexorable reason."* But it was not from philosophy alone that the Roman jurisconsults vdrew their marvellous sagacity. One is struck with the immense variety of their accessar;^ accomplishments. They were deeply read in .-all human lore. They laid under contribution human genius in its every ^phase, — Historians, Orators and Poets ; and in their writings are :lound quotations from such Grecian authors as Homer, Hippocrates, Plato, Den)osthenes.t Nor were they oppressed with an unusual weight of learnmg. 'i'he native impulses of their genius hare had the fullest developement. The affinity between law and philosophy in the Roman mind is said to have given a remarkably scientific cast to the cases and opinions of .4;he Roman jurisconsults, who have frequently been likened (for this reason perhaps) to mathematicians. Kant, an illustrious German phi- Josopher, remarks on the method with which the Roman jurisconsults • P. 19. Incr, Is of 16 devclope tlicir ideas, and J>ei1>aitz a great inatlieaiaticiaii as well as philosopher, who, in the opinion of men of .science abro^id, disputes with -\evvtori aoini/ of liis most illustrious liiscovc'-ies, !.;> lares that he knows nothing which approaches so neai, to t!u' method iin;l |)recisi:)n of Geometry as the Roman Law.' The rules of law — rei^uicb jiiris, (as they are called.) contained in tlie List Book of tlie P. adepts (jf Justi- nian are fimous for their sententious 'ivisuom. " Parsiinonious of words — prodigal of meaning," it has been remarked ol them tlial they are the greatest body of condensed reasoning to be found in uninspired writings. The Roman law is singularly free from technicalities. This may have arisen in some measure perhaps from the simplicity of society when the fundamental principles of the Roman law were developed,, and the jurisconsults of all nations have paid their homage to its mar- vellous beauties by uniting to distinguish it as '^ the system of written reason/' as " the Civil Law."t I have already alluded in my remarks on the national polity of the Romans, to the rule which gave the inhabitants of the different provinces an appeal to Rome from the decisions of the local Courts. It is worthy of observation that it may have been the immense variety of cases submitted to the jurisconsults of Rome by way of appeal from the many divisions of this vast empire, which communicated to lue decisions of the Roman law the spirit of comprehensiveness and breadth for which in all ages they have been celebrated. It was only natural that the efforts of the jurisconsults of Pvome should be directed to hmIuco to one harmonious system the jurisprudence of the many different Pro- vinces of this vast empire, and decide according to strictly equitable and rational principles, all causes submitted to them, whether from Gaul or Britain — Asia Minor or Egypt.J Add to this as another cause of the excellence of the Roman law, a cause to which I have already /■^ * Vid« Hugo, Droit Remain. t " The law of Rome has the distinguished honor of vindicating to itself the *' etclusiw till* of the Civil Law."— Anonymous. Vid. Halifax, Pref. X Vid. Hugo, Droit Romnin, 1 , p.p. 24!»-25R. <^^l ^^ 16 ailverteil, ttie distinguished place in which this science was alwuys lieid in the FiOinan world. The above observations will suffice as regards the matter of the Roman jurisprudence. But a very remarkable characteristic of this system to which I have not yet adverted, is its style and language. The purity of the language of the Pandects has always been com- mended ; and so perfect and elegant in style, are they held to be, that it has often been remarked that the Latin language might be restored from them alone though all other Latin authors were lost. A modern French writer alluding to this quality of the Roman law, says," its texts are the master pieces of the juridical style, and never " more may law be written as it was composed under the pen of " Ulpian and Papinian. One would say the method of Geometry ap- " plied in all its rigour to moral specula tions."* David Hume in his history of England,! adds his testimony. " It is remarkable," he says, " that in the decline of Roman learning, when the ihilosophers were universally infected with superstition and sophistry, and the poets and historians with barbarism, the lawyers, who , in other countries are seldom models of science or politeness, were yet aMe by the constant study and close imitation of their predecessors to maintain the same good sense in their decisions and reasonings, and the same purity in then' language and expression.''^ I will now suggest a few of the advantages to be derived from a study of the Pi^oman Jurisprudence by the man of education and the lawyer. I can do it but cursorily, in the limits of a lecture. I shall state my propositions, but have little space to say much by way of proof and illustration. These advantages may be viewed in relation to the scholar — to the ■ '■' • Lermiiiier, p.p. U>»20. '• •• . . ,« tl, p. 444, cap. 23. X Campbell in hia Philosophy of Rhetoric, remarks on the pith or Latin maxims and mottoes. " They (the Greek and Latin languages) are, in respect of vivacity, " elegance, animation, and variety of harmony incomparably superior."— Rhet. ■« p. 109. held 17 dfvine — lo the statesman — to th« lawyer. First in relation to the Scholar. An acquaintance with the Roman law is very necessary for an understanding of the Latin classics — in which are to be found many passages altogether unintelligible without this acquaintance. But more than this, the body of the Roman law contains the application of the eternal principles of jiistire and equity to the affairs of a highly civilized people during several centuries, by accomplished sages — from whom lessons of wisdom are to be derived of inestimable value. It is an interesting fact that the revival of the study of the Roman law in the middle ages commenced the revival of letters and the study of the Roman law, and the study of ancient literature have always since gone hand in hand and flourished or declined together.* On this head I cannot do better than quote the words of Sir William Hamilton, Professor of Logic and Metaphics in the Edinburgh Uni- versity, a great authority in France and Germany, in an article cc*- tributed by him to the Edinburgh Review in the number for October, 183G. They are as follows: "An acquaintance with the Roman jurisprudence has been always viewed as indispensable for the illustra- tion of Latin philology and antiquities, insomuch, that in most countries of Europe, ancient literature and the Roman law have prospered or declined together ; the most successful cultivators of either department have indeed been almost uniformly cultivators of both. — In Italy, Roman law, and ancient literature revived together, and Alciatus was not vainer of his Latin poetry than Politian of his interpretation of the Pandects. In France, the critical study of the Roman jurisprudence was opened by Budueus, who died the most accomplished Grecian of his age ; and in the following generation, Cujacius and Joseph Scaliger were only the leaders of an illustrious band, who combined, in almost equal proportions, law with literature, and literature with law. To Holland the two studies migrated in company ; and the high and per- manent prosperity of the Dutch schools of jurisprudence has been at once the effect and the cause of the long celebrity of the Duteh' schools of classical philology. In Germany, the great scholars and * Hamilloii'i Discussions, p. 328. Irving'* Civil Law, p. 7.- ^4/ c r^ 18 civilians, who illustrated the I6th century, disappeared together ; and with a few partial exceptions, they were not replaced until the middle of the 18th, when the kindred studies began and have continued to flourish in reciprocal luxuriance." Secondly: As to the utili y of the Roman law to the Divine. This depends upon the question whether classical studies are essential to the divine. I have not time to do more than state the proposition, '' that theology is little else than an applied philology and criticism ; of which the basis is a profound knowledge of the languages and history of the ancient world. To be a competent divine is in fact to be a scholar."* I have already pointed at the importance of the Roman law to the scholar. From that, follows its importance to the divine. Thirdly : On the importance of the Roman law to the statesman. It has been well said that '' it is impossible that foreign nations " could carry on their transactions with each other without having " recourse to some common standard, by which to regulate their dis- " putes ; and this common standard, by the consent of all, is the * Roman law ; in which the rights and privileges of ambassadors, the '< ioterpretation of leagues and treaties, the incidents of war and '* peace, are discussed with a care and precision in vain to be sought ** for in the institutions of other kingdoms."f Hence I would remind you of the practice which has not unfrequent- ly obtained in state affairs, when a state paper is to be prepared, re- ^irinp; a knowledge of international law, and great skill in its composi- tion, to retain the services of an eminent jurisconsult, and the document sent from his hand, goes forth to the world, as the manifesto or vindica- tion of a government. I can give an interesting illustration of this from the life of Edward Gibbon, the author of the Decline and Fall of the Roman Empire. This celebrated historian was an accomplished jurisconsult. His famous 44th Chapter on the Roman Jurisprudence has been translated and commented on by French and Grerman pro- fessors, and forms the text book of students on Roman law in some of * Same author, p. 330. t Halifax's Analysis, Prcf. XIX, anil Spq. , , , 19 tlie continental universities. On one occasion the services of Gibbon in the composition of an important state paper were requested by the British Government. He tells the circumstance in his memoirs, " at " the request/' he says," cfthe Lord Chancellor and Lord Weymouth, ** then Secretary of State, I vindicated aginst the French manifesto, " the justice of the British Arms. The whole correspondence of " Lord Stormont, our late Ambassador at Paris, was submitted to my " inspection and themeinoirejustificattf which I composed in French, *' was first approved by the Cabinet Ministers, and then delivered as a " state paper to the Courts of Europe."* It now remains ior me to say a few words with respect to the advan- tages of the study of the Roman law to the Lawyer. I have pointed out among the intrinsic excellences of the Roman law its philosophic character and the beauty of the language in which it is written. It has in consequence been deservedly called a model code, and with much truth and force it has been said that the Roman law is to the modern Lawyer what the beautiful masterpieces of antiquity are to the Statuary and Sculptor .f ^ " I would further observe that the compilations of the Roman law are less laws than applications of laws made, or cases decided by juris- consults and magistrates who were eminent for profound learning and exact logic, and the experience and wisdom of the Roman jurisconsults make these opinions of inestimable value in similar cases, which at the present day are continsUly presenting themselves4 The most valuable parts of these compilations are in fact cases or reports of cases and opinions on them given by the most celebrated jurisconsults of the Roman Empire, and these cases and opinions are unquestionably as valuable to the Civil Lawyer as the reports of cases in the English Lavr Reports are to an English Barrister. This is readily seen if we consider under what circumstances these * Gibbon's Mem., p. 99. t Blondeau, Chrestomathie, Prer., p. 3, (note.) t Blondtau, XXV. ^0 V' .Vf /JX 20 opinions were given. For example a quertioi: arise!* as to the precisi; extent of the civil responsibility of a public officer— a magistrate — a tutor — curator — or trustee — for some act of mal-administration^or a question arises in the interpretation of a will or a contract, whether at Rome or in the Provinces. The case is referred to the emperor* — by him referred to the imperial jurisconsults.f perhaps a bench of Judges in position not unlike the Judicial Committee of Her Majesty's Privy Council, wlio decide cases from the Colonies, The report of the Roman jurisconsults was the rule of decision in the case submitted and all similar cases. Further ; — many of the principles and maxims of modern Jurispru- dence are derived from the Roman Law. Many of the dispositions of modern codes are taken from it, and new laws are always made clearer by a comparison with those which precede them, and from which they are derived. To show how dependent modern Jurisprudence is upon the Roman Law, I will make a few observations on the English and French Law supported by weighty authorities, by which you can judge of its influence upon them — and their obligations to it. First as to England, we are accustomed to view the English law as anti-Roman. Yet it is a fact too incontestable to be denied that certain parts and principles of the Roman Law have been incorporated into the English. The learned Selden in his dissertation of Fleta has shewn that during the greatest part of the subjection of the island to the Romans, or from the time of Claudius to that of Honorius, about three hundred and sixty years, it was chiefly governed by the Roman Law ; within which interval, Papinian, Ulpian, Paulus and others of the Roman Lawyers whose responses make so distinguished a flgure in the Digest, presided in the Roman tribunals in Britain.^ After the Roman Jurisprudence bad been expelled by the arms of the northern barbarians, and supplanted by the crude institutions of the An- • Giraud, 1, 92. f Vid. Blondeau Chrestomitthie, Intro., p. XC. tHalifai, Pref., p. xxi. • jTf*'' ■> itO'.'ii'ii I " f •■ ,■' ■■.vol': ' ) SI as ' r glo Saxons, it was again introduced into the Island, upon tbe recovery of the Pandects, and taught in the first instance with tbe same zeal as on the continent.* But the rivalship and even hostility which soon afterwards arose be- tween the civil and common law ; between the two universities and the Law Schools or Colleges at Westminster ; between the clergy and l&'iij . i n'Jed to check the progress of the system in England and to cuulaic its influence to those Courts which were «inder the more imme- diate superintendence of the clergy. The Ecclesi.^atical Courts, and the Court of Chancery accordingly adopted the canon and Roman Law ; and the Court of Admiralty, which was constituted about the time of Edward I., also supplied the defects of the laws of Oleron from the civil law, which 'vas generally applied to fill up the chasms that appear- ed io any of the municipal systems of the modern European nations. A national prejudice was early formed in England against the civil law. But the more liberal spirit of modern times has justly appreciated the intrinsic merit of the Roman system.f I will here give you the testimony of English witnesses as (o the merits of the Civil Law. Bishop Burnet in his life of Lord Chief Justice Sir Matthew Hale *jays : " He sol himscH' much to tho study (jf tlio Rouiau Law ; and h« «* often said that the true jii;rouiids and reasons of luw were s<) well deliv- * ered in the Diaests.lhat ". man could never understand law as a science * so well as by seeking it there, and he thrrefore lamented much that it *' was so little studied in England.'^ That great English Lawyer Lord Holt is said to have .spoken on lliis inatler as follows: " Inasmuch as the laws of all nations are douhtl«'S* '* raised out of the ruins of tlie Human empire, it must be owned that " the priuciples of our i^in are borrowed from the civil law ; — t!" •"- ' fore grounded upon the same reason in many things.'''§ i f I ; * 1(1. xxii. tKent Tom. vf.1 I., p. r^'JlJi. fP.p. '^3-1. h 12 mod. R. IS:?. i-t, '■ rr^ 22 A similar opinion is delivered by Dr. Wood : " Upon a review," he •ays, " I think it may be maintained that a great part of the Civil Law " is part of the law of England and interwoven with it throughout." According to Dr. Cowell, " the Common Law of England is noth' *' ing else but a mixture of the feudal and the Roman Law.'' And in reference to the Fandccts, that accomplished scholar Sir William Jones, says : " it is a most valuable mine of judicial knowledge ; it " gives law at this hour to the greater part of Europe and though few " English Lawyers dare make the acknowledgement, it is the true ** source of nearly all our English laws that are not of a feudal origin."* The English and American Statutes of distribution of intestates' ef- fects were essentially borrowed from a Statute of Justinian known as the 1 18th Novel — the English Statute being drafted by a civilian on this Novel, and we may observe how necessary for the proper understanding of these Statutes, is the power of appreciating the original Novel upon which they are based. The great Lord Mansfield won for himself the noble title of founder of the commercial Law of England " and he always maintained that the foundation of Jurisprudence was the Roman Civil Law. H'? was deeply indebted to that source for his profound views, and the high au- thority his decisions have attained. It was for his continual allusions to the Roman Law that the celebrated author of the letters of Junius . launched out his anathemas against him.f Hume, in his History of P^ngland, speaks of the Roman Law as an inestimable boon to the rude nations of Europe in the middle ages and says that " a great part of it was transferred into the practice of the Courts of Justice in Eng!and."J Chancellor Kent, in liis Commentaries on American Law,§ says, speaking of the Roman Law : " The title dc diver sis regitlis in the Pandects, as well as the sententious rules and principles which per' f I < fi \ • Irving. 95-6. f Blaxland, Codex, i>. 1 .i'). Kent 1 , n 12.- Campbell's Justices 2,327. t V'li. I, p. 444, r«|). xxni I'. 2, '■>:>■'>. ^rr 23 vade the whole body of the Roman Civil Law, show how largely the Common Law of England is indebted to the Roman Law for its cr-'e of proverbial wisdom. There are scarcely any maxims in the English law but wha' were derived from the Romans ; and it has been affirmed by a very competent judge that if the fame of the Roman Law rested solely on the single Book of the Pandects which contains the Regulae juris, it would endure for ever on that foundation." This American Jurist sums up the merits of the Roman Law in language so just and appropriate that I will read it. " The value of the Civil Law is not to be found in questions which " relate to the connexion between the government and the people, or '' in provisions for personal security in criminal cases. In every thing " which concerns civil and political liberty, it cannot be compared with *' the free spirit of the English and American Common Law. But " upon subjects relating to private rights and personal contracts, and " thn duties which flow from them, there is no system of law in which " principles are investigated with more good sense, or declared and en- " forced with more accurate and impartial justice. I prefer the regu- " lations of the Common Law upon the subject of the paternal and " conjugal relations, but there are many subjects in which the Civil " Law greatly excels. The rights and duties of tutors and guardians " are regulated by wise and just principles. The rights of absolute " and usufructuary property, and the various ways by which property " may be acquired, enlarged, transferrtd and lost, and the incidents " and accommodations which fairly belong to property, are admirably *' discussed in the Roman Law, and the most retimed and equitable dis- *' tinctions are established and vindicnted. Trusts are settled and " pursued through all their numerous modilicatioiis and complicated de- " tails, in the most rational and equitable manner. So, the rights and ' duties flowing from personal contracts, express and implied, and iu»- " der the infmite variety of shapes w'lich they assume in the business " and commerce of life, are defined and illustrated with a clearness and " brevity without example. In all these respects, and in many others '• wliich the limits nf the piosent disrussion will un*: pornii! mv to exa- ^*M»iS M 24 *' mine, the Civil Law shows the proofs of the highest cultivation and " refinement ; and no one who peruses it can well avoid the conviction, " that it has been the fruitful source of those comprehensive views and " and solid principles which have been applied to elevate and adorn " the jurisprudence of modern nations." ' Taking up now the subject of French Law. It is important to re- mark that the Roman Law continued to exist from the fall of the Western Empire till the revival of letters, as a living system. The contrary opinion for a long lime prevailed and has been popula- rized (if I may use the expression) in many of our household books, that the Roman law disappeared with the fall of the Empire, and was only resuscitated in the 12th century by the discovery of a manuscript copy of the Pandects at AmalB, in Italy. This error was pointed out in a work of M. Savigny a German author entitled " History of the Roman law in the middle ages," published in the first quarter of the present cent- ury, in which work are gathered all the traces of the Roman Law from the .5th to the 12th century, proving that during this period it never ceased to exist. Since the revival of learning, France has produced most illustrious commentators on the Roman Law, who have exhibited such marvellous aptitude for learning and instruction.and made such impression upon their own and subsequent ages, th.nt with reference to them it may truly be said, there were giants in those days. Une of these epoch men was the celebrated Cujacius. mentioned already, and born about 1.552. A I' the jurisconsults of Europe arc agreed in considering him as the first and greate-st of expositors on the Roman Law. I should here remark that the body of the French Law is, in great part, composed of the Uonian Law and the Customary Law, and while Cujacius was the prmce of tominentators on the former branch of the French Law, a great luminary in the customary law app ired shortly before him in the person of Charles Dumoulin (styled in Latin Molin- aeu«) who was called the French Papinian, — the prince of the French Customary Law. The-ie two branches of the French jurisprudence, — •rum. I, I' '7,7. \ kl 25 • the Ivoinan Law and the Customary Law, — (Lcs Coutuntcs) may be said with some justice to hold the same relation to each other which the English Chancery System and Common Law hold to one another in the English Law, but blended together in some measure, and not separated, like the branches of the English Law. Of Dumoulin, it has been said that he applied the principles and en- lightenment derived from his study of the Eoman Law, to the inter- pretation of the French municipal usages.* Time does not permit me more than to mention the name of Uomat as an illustrious Commentator on the Roman Law, born in 162b, the friend and almost the pupil of the celeijrated Pascal. The author of greatest renown in our Courts on French Law, is un-