Part I.
Idea Of The Roman Jurisprudence. - The Laws Of The Kings -
The Twelve Of The Decemvirs. - The Laws Of The People. - The Decrees Of The Senate. - The Edicts Of The Magistrates And Emperors - Authority Of The Civilians. - Code, Pandects, Novels, And Institutes Of Justinian: - I. Rights Of Persons. - II. Rights Of Things. - III. Private Injuries And Actions. - IV. Crimes And Punishments.
Note: In the notes to this important chapter, which is
received as the text-book on Civil Law in some of the foreign universities, I have consulted,
- the newly-discovered Institutes of Gaius, (Gaii
Institutiones, ed. Goeschen, Berlin, 1824,) with some other fragments of the Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo Peyron. Turin, 1824.)
- The History of the Roman Law, by Professor Hugo, in the
French translation of M. Jourdan. Paris, 1825.
- Savigny, Geschichte des Romischen Rechts im
Mittelalter, 6 bande, Heidelberg, 1815.
- Walther, Romische Rechts-Geschichte, Bonn. 1834. But I
am particularly indebted to an edition of the French translation of this chapter, with additional notes, by one of the most learned civilians of Europe, Professor Warnkonig, published at Liege, 1821. I have inserted almost the whole of these notes, which are distinguished by the letter W. - M.
The vain titles of the victories of Justinian are crumbled
into dust; but the name of the legislator is inscribed on a fair
and everlasting monument. Under his reign, and by his care, the
civil jurisprudence was digested in the immortal works of the
Code, the Pandects, and the Institutes: ^1 the public reason of
the Romans has been silently or studiously transfused into the
domestic institutions of Europe, ^2, and the laws of Justinian
still command the respect or obedience of independent nations.
Wise or fortunate is the prince who connects his own reputation
with the honor or interest of a perpetual order of men. The
defence of their founder is the first cause, which in every age
has exercised the zeal and industry of the civilians. They
piously commemorate his virtues; dissemble or deny his failings;
and fiercely chastise the guilt or folly of the rebels, who
presume to sully the majesty of the purple. The idolatry of love
has provoked, as it usually happens, the rancor of opposition;
the character of Justinian has been exposed to the blind
vehemence of flattery and invective; and the injustice of a sect
(the Anti-Tribonians,) has refused all praise and merit to the
prince, his ministers, and his laws. ^3 Attached to no party,
interested only for the truth and candor of history, and directed
by the most temperate and skilful guides, ^4 I enter with just
diffidence on the subject of civil law, which has exhausted so
many learned lives, and clothed the walls of such spacious
libraries. In a single, if possible in a short, chapter, I shall
trace the Roman jurisprudence from Romulus to Justinian, ^5
appreciate the labors of that emperor, and pause to contemplate
the principles of a science so important to the peace and
happiness of society. The laws of a nation form the most
instructive portion of its history; and although I have devoted
myself to write the annals of a declining monarchy, I shall
embrace the occasion to breathe the pure and invigorating air of
the republic.
[Footnote 1: The civilians of the darker ages have established an
absurd and incomprehensible mode of quotation, which is supported
by authority and custom. In their references to the Code, the
Pandects, and the Institutes, they mention the number, not of the
book, but only of the law; and content themselves with reciting
the first words of the title to which it belongs; and of these
titles there are more than a thousand. Ludewig (Vit. Justiniani,
Note: The example of Gibbor has been followed by M Hugo and
other civilians. - M]
[Footnote 2: Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c., they possess a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c.