work itself was in danger of being involved in the general destruction which attended the irruption of the northern bar than illustrative or casual, bearing on the decisions of our courts. But partly through the early law-writers, much more through the Chancellor's jurisdiction, and partly, perhaps in an increasing degree, through intercourse with other nations and through literary and professional training, the Roman law has materially helped, and is still helping, to form our rules for the business of life." Roby's Introduction to Justinian, p. xv. Prior to Justinian's compilations (565 A. D.) "the only systematic collections were the Codices Gregorianus and Hermogenianus, both compiled about A. D. 450, and the Codex Theodosianus, published in A. D. 438; and these, besides being published after the Roman legions had left Britain, only extended in operation over the Eastern Empire. This, the Justinianean body of law, appears to have had no force in Western Europe, and indeed, with the exception of a partial and temporary application in Italy, to have been almost unknown until the revival of its study by the Bolognese Law School about the year 1150. The collections of law in the Western Empire, which was overrun by Goths, Vandals and Huns, were as follows: I. The Edictum Theodorici, issued at Rome A. D. 500, and imposed on the conquered Romans, and conquering Ostrogoths. Though this was derived almost entirely from the Roman Law, and especially from the Codex Theodosianus, the sources were used so arbitrarily and with such freedom, that the character of the Roman Law can scarcely be traced in them. II. The Breviarium Alaricianum, current among the Visigoths; published in 506 by Alaric, and also derived, with modifications, from Roman sources. — III. The Lex Romana Burgundiorum, published between the years 517-534; and largely compiled from Roman Law; in tended for the Roman subjects of the Burgundian Empire. This Roman Law, ante-Justinianean in character, and much altered in the different collections, was the only source which could modify, by Romanizing, the Saxon institutions. The comparison, until the twelfth century, is not with the Corpus Juris of Justinian, but with a much mutilated code of earlier date, largely added to from barbarian sources. The Roman Law seems never to have been very popular among the early Western Nations." Scrutton's Roman Law in England, p. 10. See also, upon the Romano-Barbarian Codes, Muirhead's Roman Law, p. 397. Mr. Scrutton further says (p. 48): "The earliest Teutonic civil procedure is purely executive. There is no trace in Anglo-Saxon sources of any period of usucapion, or adverse possession giv. ing ownership or protection from actions. The first trace of such an institution is in the Laws of the Conqueror. Anglo-Saxon procedure, civil or criminal, owes nothing in its origin to the Roman Law, and is but slightly influenced in its development. The introduction of charters and writings as modes of proof is clerical, and probably Roman." (p. 67.) "Justinianean Law was almost unknown in the Western Empire until the teaching of the Law School at Bologna in the twelfth century brought it into prominence." (p. 152.) "While the judges of the Common Law Courts after the fourteenth century recognized no authority in the Civil Law, and the English people were led by the financial exactions of the Papal Court, and the controversies of the Reformation, to regard with suspicion and dislike everything savoring of Rome, three important courts in the Kingdom were largely influenced by the Civil Law, if their procedure was not entirely derived from it. These were the Court of Chancery, the Court of barians into the southern provinces of Europe. The civil law maintained its ground a long time at Ravenna, and in the Illyrian Admiralty, and the Ecclesiastical Courts. The Court of the Constable and Marshal also proceeded according to the Civil Law; and Duck also states that the Universities of Oxford and Cambridge proceeded according to the civil law, though these are of small importance." (p. 163.) As to such part of the jurisdiction of the ecclesiastical courts as related to the English Church, "the separation of the civil and clerical courts under William I. ensured for the latter a peculiarly Roman and canonical law and procedure." The revival of letters in the fifteenth century led to a revival of the study of Roman law in the sixteenth. The Corpus juris civilis was never published in Germany as a law binding on that country; only such of its provisions are there in force as have been actually received by usage, and these provisions only subject to such modifications as have been imposed upon them in actual use. Sohm's Institutes, pp. xvii, xxii. "In Scotland the Roman law was much more favorably received than it was in England. In consequence of the close alliance that so long subsisted with France, Scotland borrowed many of its institutions from that country, besides importing a large portion of Roman jurisprudence to make up the deficiencies of a municipal law, long crude and imperfect, and which had made little progress as a national system till some time after the establishment of the Court of Session in 1532. . . . All the best writers on the law of Scotland, such as Stair, Bankton, Erskine, and Bell, were able civilians." Mackenzie's Roman Law (5th ed.), pp. 42, 43. European civilization has been extended afar by colonization. Following the extensive discoveries and enterprises of Spain in the East and West Indies, in Mexico and South America, the Spanish laws were transported to the newly discovered countries, where, upon their throwing off the Spanish yoke, the civil law of Spain with its Roman ingredients remained as an important element. In their colonial settlements in India, Java, and Japan, the Dutch organized local governments, and their laws became introduced into the East, the most important example being the Dutch laws of Ceylon, which contained a large Roman element. Although the French lost their possessions in North America, a deposit of French civil law remained in the customary law of Lower Canada, and also in Louisiana, whose code of 1824 is regarded by many as the most faithful and systematic compendium of the modern civil law. Morey's Outlines of Roman Law, 210. In an excellent article on "The Roman Law in Legal Education," 51 Albany L. J. 183, Mr. John J. Dolan says in part and in substance: The victory of feudalism in England did much to place the common law at variance with the Roman jurisconsults; and by a historic accident the contest of English laymen for supremacy over the ecclesiastics led to a violent and ill-founded hatred of the very name of Roman law. But as this unreasoning prejudice is fast dissolving, of recent years in England there has been a growing regard for the civil law, fostered largely by the eminent civilians, Brice and Maine. None of the great nations, says Markby (Elements of Law, § 85), founded on the continent of western Europe after the fall of the Roman empire has constructed an independent legal system of its own. France, Italy, Austria, Germany, Holland, and Spain, have each adopted the Roman law as their general or common law, and have only departed from it so far as particu. lar occasions might require. Every gap not borders; but all Italy passed at length under the laws, as well as under the yoke of the barbarians; belluinas atque ferinas immanesque Longobardorum leges accepit. (b) There was but one circumstance that could give anything like compensation to the inhabitants of Europe for the absence or silence of the civil law, during the violence and confusion of the feudal ages; but that circumstance was the redeeming spirit of civil and political liberty which pervaded the Gothic institutions, and tempered the fierceness of military governments, by the bold outlines and rough sketches of popular representation. (c) It was an (b) Gravina, de Ortu et Prog. Jur. Civ. sec. 139. The law school at Rome was transferred to Ravenna, where it existed even in the 11th century, and was then removed to Bologna. (c) The German nations were associations of freemen prior to their invasion of the Roman empire, and their governments were mixed, or limited and elective monarchies, which continued to exist for a time, even after they had established themselves by conquest in the Roman provinces. All the Gothic governments in Europe, whether in Germany, Denmark, France, Spain, or England, were originally under the control of popular assemblies, or national councils of the aristocratic class, which gave their assent to laws, and were the basis of all lawful authority.(x) [Freeman's Growth of the English Constitution.] filled up by special legislation, or specially recognized custom, has been supplied from the Roman law, and even modern codes largely contain only the ideas of the corpus juris in a nineteenth century dress. The law of obligations (contracts and delicts), of the theory of possession, of the natural modes of acquisition of property by occupancy, accession, specification, is taken entirely from the civil law. As early English law was chiefly a law of real estate, commercial rules and principles, as they rose into importance, were developed from the civil law. Trial by jury, the challenge and the compulsory unanimity of jurors have close analogies in the Roman law; and from the civil law were also derived many common-law writs, much of our present technical phraseology, and all those common-law maxims which are not restricted to feudal institutions. (x) In the early German Empire, the imperial legislation, which was binding on every German, and which was mainly occupied with questions affecting the public peace, dealt only to a very limited extent with municipal law; but the tribal systems of law, which were not numerous, then separately prevailed in extensive territories, in the North, the Frisian and the Saxon; in the middle, the Thuringian and the Frankish; in the South, the Alamannish and the Bavarian. But after the thirteenth century, these few tribal systems were succeeded by the peculiar national or state" law prevailing in each of about 260 little states consisting of princes, counts of the empire, and imperial cities; and confusion resulted from the over-lapping of these new authorities and of the old tribes, while princes, associations, leagues, parishes, and com. munes, each added their own rules. Recourse was had to the Roman law as the common law of the country only when the "state" law supplied no principle by which the question could be solved, and indelible and foul blot on the character of the civil * 544 law as digested under Justinian, that it expressly avowed and inculcated the doctrine of the absolute power of the emperor, and that all the right and power of the Roman people were transferred to him. (a) This had not till then been the language of the Roman laws; and Gravina, with much indignation, charges the introduction of the lex regia to the fraud and servility of Tribonian. (6) Be that as it may, the claim of despotism became afterwards a constitutional principle of imperial legislation. 8. Its Revival. It has been made a question, whether the Pandects were for many ages so entirely lost to the western parts of Europe as has been generally supposed. (c) It is certain, however, that about the time of the assumed discovery or exhibition of a complete copy of them at Amalphi, in *545 * (a) Inst. 1. 2. 6; Prima Præf. Dig. sec. 7; Secund. Præf. Dig. sec. 18, 21; Dig. 1. 4. 1; Code, 1. 14. 12; Dig. 32. 1. 23. (b) De Romano Imperio, sec. 23, 24. Mr. Gibbon, in his History, viii. 17, 18, seems to think that lex regia was created by the fancy of Ulpian, or, more probably, of Tribonian himself. The lex regia, as mentioned in the Pandects, 1, tit. 4 de constitutionibus principum, lib. 1, and in the Institutes, 1. 2. 6, declares: Quod principi placuit legis habet vigorem; utpote cum lege regia quæ de imperio ejus lata est, populus ei, et in eum omne suum imperium et potestatem conferat. Selden, in his dissertation annexed to Fleta, c. 3, sec. 2, 3, 4, discusses the character of the lex regia; and he says it is evident that it stripped the people of all legislative power; and he places the origin of it back to the time of Augustus Cæsar, when the Roman people transferred all their power and authority to him. In the Institutes of Gaius, recently discovered, it is affirmed that the lex regia was not an interpolation by Tribonian, but was a law actually passed nec unquam dubitatum est quin id (constitutio principis) legis vicem obtineat, cum ipse imperator per legem imperium accipiat. Gai. Instit. Com. lib. 1, sec. 5. But Hugo, in his Hist. du Droit Rom. sec. 277, considers the question on the origin of this law as still wrapped in impenetrable darkness. (c) The university of Bologna had its professors of the civil law, and the Pandects were the subjects of legal studies there and elsewhere, prior to the era of the discovery of the Florentine copy of them at Amalphi, about the year 1135. the extent to which Roman doctrines were thus applied, varied greatly in the different states. See Professor Dahn's article, translated in 2 Jur. Rev. 15. The Code Napoleon (1807), which was based on pre-existing Germanic customary laws, and the Roman law, to the exclusion of feudal law, and which was quite generally the basis of the European Codes until Napoleon's fall, has continued substantially in force in Belgium, a part of Baden, Holland, and Russian Poland, and of the Grand Duchy of Berg, and similar codes have been adopted in Hayti, the Ionian Islands, Louisiana, and certain of the Swiss cantons. It has been adopted in Wallachia and in Moldavia, and also in Turkey, so far as it is not inconsistent with local customs and the precepts of the Koran. See address of Hon. U. M. Rose, 35 Albany L. J. 446, and Senator Dolph's address, 49 id. 42. Italy, near the middle of the twelfth century the study of the civil law revived throughout Italy and western Europe with surprising ardor and rapidity. The impression which the science of law, in so perfect a state of cultivation, made upon the progress of society, and the usages of the feudal jurisprudence, was sudden and immense. (a) In defiance of the command of Justinian to abstain from all notes or comments upon his laws, the civil law, on its revival, was not only publicly taught in most of the universities of Europe, but it was overloaded with the commentaries of civilians. From among the number of distinguished names, I would respectfully select Vinnius on the Institutes, Voet on the Pandects, and Perezius on the Code, together with the treatises on the civil law which abound in the works of Bynkershoek, Heineccius, and Pothier, as affording a mass of instruction and criticism most worthy of the attention and diligent examination of the student. (b) The civil law had followed the progress of the Roman power into ancient Britain, and it was administered there by such an illustrious prætorian prefect as Papinian; and Selden thinks he was also assisted by Paulus and Ulpian. (c) After the Roman (a) Esprit des Lois, liv. 28, c. 42. The original copy of the Pandects, supposed to have been found at Amalphi, has always been held in profound veneration. It was carried to Pisa, and from thence removed to Florence, and vigilantly guarded. This celebrated manuscript reposes at this day in the Lorenzo-Medicean Library. (b) Since the beginning of the present century, a new historical school of the civil law has been instituted in Germany, which, in the opinion of some writers, has quite cast into the shade the illustrious jurisconsults of the 18th century. Among the most eminent of this new school may be placed the names of Hugo, Savigny, Niebuhr, Eichhorn, Haubold, &c., who have made profound researches into the antiquities of the Roman law, as well prior to the time of the decemvirs as during the feudal ages. They have undoubtedly enriched the science with acute and searching criticism, and enlarged and philosophical views, which shed light upon the character, wisdom, and spirit of the more ancient institutions. But I cannot but be of opinion (though with much deference) that the importance of the new Germanic school, as contradistinguished from that of the old professors, is greatly exaggerated; and that the Institutes and Pandects of Justinian, with the commentaries and writings of Voet, Vinnius, Heineccius, Pothier, and other illustrious civilians of the old school, furnish quite as much matter for reflection and useful application as the American student of our own common law can well attend to, and at the same time become a thorough master of his profession. It is said that Savigny has in course of publication a large work on the Pandects, in which he goes over the wide field of the Roman law. Such a work, and from so distinguished a scholar and jurist, will undoubtedly be of eminent utility, and a great improvement on the commentaries of the old civilians to whom I have alluded. (c) Selden's Dissertatio ad Fletam, c. 4, sec. 3. |