Imagens das páginas

the character of the civil 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 was transferred to him. This had not been until then the language of the Roman laws; and Gravina, with much indignation, charges the introduction of the lex regia to the fraud and servility of Tribo

nian. Be that as it may, the claim of despotism became afRevival of it. terwards a constitutional principle of imperial legislation.

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. It is certain, however, that about the time of the assumed discovery or exhibition of a

der the control of popular assemblies, which gave their assent to laws, and were the bases of all lawful authority.

a Inst. 1. 2. 6. Prima Præf. ad Dig. sec. 7. Præf. secund. ad Dig. sec. 18.21.

b De Romano Imperio, sec. 23, 24. Mr. Gibbon, in his History, vol. 8. 17, 18. seems to think that the lex regia was created by the fancy of Ulpian, or more probably, of Tribonian himself. The ler regia, as mentioned in the Pandects, 1. 1. tit. 4. de constitutionibus principum, lib. 1., and in the Institutes, 1. 2. 6. declares : quod principi placuit legis habet vigorem ; ubpote 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, ch. 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 lez re. gia was not an interpolation by Trebonian, but was a law actually passed, nec unquam dubitatum est, quin id (constitutio principis) 'legis vicem optineat, cum ipse imperator per legem imperium accipiat. Gaii. Instit. Com. lib. 1. sec. 5. But Hugo, in his Hist. du Droit Rom. sec. 277. considers the question on the orgin of this law as still wrapped in impenetrable darkness.

c The university of Bologna had its professors of the civil law, prior to the era of the discovery of the Pandects at Amalphi, about the year 1135.

complete copy of them at Amalphi, in Italy, near the mid-
dle of the twelfth century, the study of the civil law revived
throughout Italy and western Europe with surprising ardour
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 sud-
den and immense. In defiance of the command of Jus-
tinian 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 num-
ber of distinguished names, I would respectfully select Vin-
nius 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 Bynkershoeck, Heineccius, and
Pothier, as affording a mass of instruction and criticism,
most worthy of the attention and diligent examination of
the student.
The civil law had followed the progress of the Roman

Reception in power into ancient Britain, and it was administered there by England. such an illustrious pretorian prefect as Papinian ; and Selden thinks he was also assisted by Paulus and Ulpian. After the Roman jurisprudence had been expelled by the arms of the northern barbarians, and supplanted by the crude institutions of the Anglo-Saxons, it was again introduced into the island, upon the recovery of the Pandects, and taught, in the first instance, with the same zeal as on the Continent.

But the rivalship, and even hostility, which soon afterwards arose between the civil and common law; between the two universities, and the law schools or colleges at Westminster; between the clergy and laity,—tended to check the

a Esprit des Loix, liv. 28. ch. 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 Selden's Dissertatio ad Fletam, ch. 4. sec. 3. VOL. I.


progress of the system in England, and to confine its influence to those courts which were under the more immediate superintendence of the clergy. The ecclesiastical 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 Edw. I. also supplied the defects of the laws of Oleron from the civil law, which was generally applied to fill up the chasms that appeared in any of the municipal institutions of the modern European nations. A national prejudice was early formed against the civil law, and it was too much cultivated by English lawyers. Lord Coke mentions, by way of reproach, that William De la Pole, Duke of Suffolk, in the reign of Hen. VI. endeavoured to bring in the civil law, which gave occasion to Sir John Fortescue to write his work in praise of the English law; and the same charge was made one of the articles of impeachment againt Cardinal Woolsey. But the more liberal spirit of modern times has justly appreciated the intrinsic merit of the Roman system. Sir Matthew Hale, according to the account of Bishop Burnet, a frequently said, that the true grounds and reasons of law were so well delivered in the digest, that a man could never well understand law as a science without first resorting to the Roman law for information, and he lamented that it was so little studied in England. And in Lane v. Cotton, that strict English lawyer, Lord Holt, admitted, that the laws of all nations were raised out of the ruins of the civil law, and that the principles of the English law were borrowed from that system, and grounded upon the same reason.

a Blacks. Com. vol. 1. Introductory Lecture. Recve's Hist. of the English Law, vol. 1. 81, 82. Miilar's Historical Vier of the English Government, b. 2. c. 7. sec. 3.

b 3 Reeve's Hist. 198.
c 3 Inst, 208.
d Life of Sir M. Hale, p. 24.
e 12 Mod, 482.

Its merlts.

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 the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice. I prefer the regulations 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, transferred, and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Roman law, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So, the rights and duties flowing from personal contracts, express and implied, and under the infinite variety of shapes which 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 which the limits of the present discussion will not permit me to examine, 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 solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations.

The Institutes ought to be read in course, and accurately studied, with the assistance of some of the best commenta

ries with which they are accompanied. Some of the titles in the Pandects have also been recommended by Heineccius to be read and re-read by the indefatigable student. The whole body of the civil law will excite never failing curiosity, and receive the homage of scholars, as a singular monument of wisdom. It fills such a large space in the eye of human reason; it regulates so many interests of man as a social and civilized being; it embodies so much thought, reflection, experience, and labour; it leads us so far into the recesses of antiquity, and it has stood so long “against the waves and weathers of time," that it is impossible, while engaged in the contemplation of the system, not to be struck with some portion of the awe and veneration which are felt in the midst of the solitudes of a majestic ruin.


« AnteriorContinuar »