with them considerable authority; and though sometimes very extravagant in phraseology, are yet strongly evincive of the sincerity of their admiration. We find Cujacius to tell his son, that 'no nation can be well governed without the help of the Roman law, for without the help of that 'divine science,' the most prudent, wise, and fortunate man will have but a very imperfect idea of the rules of equity and true justice.' M. Le Maitre considers the Civil Code as a wonderful collection of the wisdom of many learned men, who did not confine themselves to particular usages, but to justice in general. "They established,' says he, 'such laws as were deemed most useful to mankind, and have written the rules of government for all nations, as Solomon did those of divine wisdom.'

St. Austin, in his book De Civitate Dei, says that 'Providence made use of the Roman people to subdue the universe, and to govern it the better by their laws, after the utter destruction of that empire.' Zonaras is of opinion, that God made choice of the Romans to give the world a sample of his justice; and Baldus says, that in all nations, the Roman law has the authority of reason.

Leuvius is also of opinion that 'the books of the Roman law contain the most religious and equitable decisions that were ever made, as well as the most perfect idea of justice and right; therefore it is that nations acknowledge this code for their common law.'

The profoundly erudite Leibnitz, than whom no higher authority can be named, on most subjects which engaged his inquisitive research, holds, that nothing approximates so closely to the method and precision of geometry, as the Imperial Code. His language is 'Digestorum opus, vel potius autorum, unde excerpta sunt, labores admiror, nec quidquam vidi, sive rationum acumen, sive dicendi nervos spectes, quod magis

accedat ad mathematicorum laudem.'* And again, 'Dixi sæpius, post scripta geometrarum nihil extare, quod vi ac subtilitate cum Romanorum Jureconsultorum scriptis comparari possit; tantum nervi inest, tantum profunditatis."*

The authority of the Germans on all subjects relating to the Civil Law, stands justly pre-eminent, as none have cultivated it with equal ardour and success. They regard it as an essential part of the legal education of every scholar in the law, in all countries, and not merely in Germany, whose Jus Hodiernum, can no more be thoroughly understood, without an acquaintance with the Roman Code generally, than can the common law of England, without reference to the feudal and other laws on which it is so largely based. A late distinguished writer of that country, justly observes, 'Omnes jurisconsulti eruditi in eo consentiunt, non solum utilissimam sed necessariam adeo esse juris Romani cognitionem, et illud hodie in juris scholis non minori diligentiâ ac antehac id fieri solebat, esse docendum: nam neminem ad solidiorem juris prudentiam nisi juris Romani peritum posse pervenire convenit.' We should be much pleased to find this opinion more prevalent than it is in our country, as we shall presently show that the law of England, and of this country is greatly indebted to the Roman code, not merely for occasional principles, but for integral portions of their common jurisprudence.

No nation has been more copiously supplied from the purest streams of the Civil Law, and has at the same time given it so little credit for what it had received, as Great Britain. Many of their ancient writers, as Gilbert de Thornton, Bracton, the author of Fleta, Britton, have largely transcribed from the Imperial Code, and, on some subjects, shine entirely in

Opera Leib. tom. i. 190, tom. iv. 267.

Warnkoenig's Comm. Jur. Rom. tom. i. p. 118.

borrowed lights.

Many of their modern writers also, and

several of their judges, especially lord Mansfield, have been much indebted to this source; and their pages and judicial decisions are often illuminated by the pure and lustrous wisdom of Roman jurisprudence.

But notwithstanding the long and pointed opposition which has been made to this system of law in England, it has at all periods found its ardent and impassioned admirers in that country. Great Britain, by her inborn love of wisdom, equity, and sound learning, has unconsciously, in various ways, advanced the progress and fame of the Civil Code. English law writers, counsellors, and judges, have of late been more willing, not only to adopt, but to acknowledge the excellencies of this law; thus passing on it a higher eulogium than had ever been accorded, as their admiration. had to contend with national pride and vanity, and to overcome prejudices of very ancient standing. Although the jealousy, which would have occluded from the Common law courts the equity and sense of the Roman code, has been deeply radicated, and, until of late, quite unshaken; yet we find this system to have at all times prevailed almost exclusively in the Ecclesiastical courts, the courts of Admiralty, the court of Chivalry, and the courts of the Universities; and that the proceedings in the courts of Chancery and Exchequer, are in conformity with the rules and practice of that law. It is likewise manifest, that much of the law of legacies, wills, trusts, bailments, executors and administrators, guardian and ward, contracts, occupancy, custom, prescription, accession, &c. is derived from this fountain; and that, maugre the dislike of lord Coke and others, numerous other branches of the English law are greatly indebted for much of their excellence to the experience and learning of

the civilians. Brown, an interesting and sensible, though by no means classical writer, says that he scarcely ever met with a point, not connected with the Feudal law, of which, if English law books did not satisfy the doubt, he has failed to find a resolution in the Civil Law. Vid. Brown's Civ. Law, p. 13, No. 21.

Chief justice Holt, one of the most liberal and enlightened judges that England ever knew, was obliged occasionally to indicate his respect for this law. In the case of Lane v. Cotton, 12 Mod. 482, having need to cite the Civil Law, he justifies his reference to it 'inasmuch as the laws of all nations are doubtless raised out of the Civil Law, as all governments are sprung out of the ruins of the Roman empire; for it must be owned that the principles of our law are borrowed from the Civil Law; therefore, in many things, grounded on the same reason.'

It is conceded on all hands, that sir Leoline Jenkins, in framing the Statute of Distributions, 22 and 23 Charles II. had Justinian's 118th Novel distinctly in his view; and that in all cases of intestacy, personal estates, under that statute, devolve, with but trivial exceptions, according to the regulations of that celebrated Novel; and if so, where shall we seek for the lights of construction and all the analogies of that statute, with more confidence, than in the Civil Law itself, and in the writings of its expounders? The descent of real estates in this country, being generally very similar to the devolution of personal estates under the statute of Charles, opens to us a still more extensive field of inquiry on this subject, and refers us again to the Novel in question, and to such lights as may have been shed on it by the writings of the civilians. Again. Our doctrine of set-off is essentially the same as that of compensation in the Digest and Code. In examining the collected

view of this subject, as it is presented by M. Pothier in his Pandectæ Justinianeæ, we find a digest of those principles, which being amplified in judicial opinions, and in the commentaries of authors, form our treatises on the law of set-off: and on a further reference to the Code,† and to the annotations of civilians, we become still more satisfied that these English opinions and treatises, so familiar to us, are but reiterations of doctrines, which were perfectly familiar to the ancient Roman jurisconsults; and which have become gradually incorporated with our jurisprudence, with too little acknowledgment, as we think, to the source whence they evidently sprung. Had Mr. Montague in his treatise of set-off, and Mr. Babington, in his late work on that subject, pursued their explorations beyond the narrow confines of their own municipal law; and examined any of the numerous volumes of the continental legal writers, or the Digest and Code; they would have imparted to their works much additional value.

On the important subject of contracts the Civil Law is peculiarly rich, and accurate; and, did our limits admit, it would be no difficult task to point out how largely indebted, though silently and almost furtively, is the English law, to this magnus parens of all modern law. And yet how little express reference is made by Powell, Comyn, and Chitty, to the Roman Code! It is impossible to read even the Institutes of Justinian, without perceiving the superiority, not only in classification, but in closeness and accuracy of thought, of the Roman over the English law of contracts; and this conviction cannot fail to be greatly strengthened after reading in the Digest and Code, the appropriate titles; or the law of contracts

*Vol. ii. lib. xvi. tit. ii. p. 92.

† Code iv. 3, 1. Vide ante p. 338, &c. for a list of British, American, and Continental works on the law of Contracts.