LECTURE XXIII.

OF THE CIVIL LAW.

THE great body of the Roman or civil law was collected and digested by order of the Emperor Justinian, in the former part of the sixth century. That compilation has come down to modern times, and the institutions of every part of Europe have felt its influence, and it has contributed largely, by the richness of its materials, to their character and improvement. With most of the European nations, and in the new states in Spanish America, in the province of Lower Canada, and in one of the United States, it constitutes the principal basis of their unwritten or common law. It exerts a very considerable influence upon our own municipal law, and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate's or consistorial courts.c

a

The history of the venerable system of the civil law is peculiarly interesting. It was created and gradually matured on the banks of the Tiber, by the successive wisdom of Roman statesmen, magistrates and sages; and after gov*516 erning *the greatest people in the ancient world, for the space of thirteen or fourteen centuries, and under

• Real property law in Canada, under French grants, was established upon the basis of the Coutume de Paris, with feudal burdens. The French civil law, as it existed in Canada at the time of the conquest of the province, still prevails, without any of the meliorations of the code Napoleon.

See the Civil Code of the State of Louisiana, as adopted in 1824.

• The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the Island of Ceylon passed into the hands of the English, justice was directed to be administered according to the former system of laws in the Dutch courts; and Van Leeuwen's Commentaries on the Roman Dutch law were translated into English in 1820, expressly for the benefit of the English judiciary in that island.

going extraordinary vicissitudes after the fall of the western empire, it was revived, admired and studied in modern Europe, on account of the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of d'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus, to the establishment of the twelve tables.

a

The fragment of the Enchiridion inserted in the Pandects, Early Rois the only ancient history of the first ages of the Roman law man law. now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoeck has republished *it, *517 and endeavours to restore the integrity of the original text by emendations and a critical commentary. From this fragment we learn that Sextus, or Caius Papirius, who was a pontifex maximus about the time of the expulsion of Tarquin, made a collection of the legis regia, or laws and usages of the Romans under their kings, and which was known by the

Dig. lib. 1. tit. 2. De origine juris.

Prætermissa ad leg. 2 D. De origine juris. Opera, tome i. 301.

name of the Jus Civile Papirianum. Very few, if any fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws. Such a work was evidence of great progress in jurisprudence under the kings, and it must have contained an account which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world.b

The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. The Roman people were originally, or very early in their history, divided into three tribes and thirty curiæ, and the patrician order and the Roman senate were instituted under Romulus, and that last body became in process of time the most powerful and majestic tribunal in all antiquity.c

The general assemblies of the people or comitia, were *518 *a part of the primitive government, and a very effi

cient portion of the legislative power, and they met in their curia, parishes or wards, and the vote of every citizen belonging to the curiae was equal in these comitia curiata. The senate was a select body of three hundred of the elder citizens, from the heads of the clans or gentes, and regard was had to rank, birth, property, honour and age. The king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the

• Heinecc. Antiq. Rom. Jur. Proam. sec. 1 and 2. Hist. Jur. Civ. lib. i. sec. 15, 16.

b Gibbon, in his History, vol. viii. p. 5, note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats much of the early Roman history as a legend, says, that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. History of Rome, vol. i. p. 211. I am incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer; and it is assumed to be so by such master critics as Bynkershoeck and Heineccius; and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.

• Cic. de Republica, b. 2. In hoc orbis terræ sanctissimo, gravissimoque concilio. Cic. in Cat.

powers of a civil and military chief. The fecial and other colleges established by Numa, bound the Romans to religious discipline. Servius Tullius divided the people into six classes, and one hundred and ninety-three centuries, and this was a most important change in the Roman polity. The first class contained the patricians, knights and rich citizens, *and ninety-eight centuries: the Plebs were *519 also now admitted to a vote in the legislature, and when the people assembled by centuries in their comitia centuriata, (as they generally did thereafter when called by the consuls or senate,) they voted by centuries; and the first

■ I have followed Dionysius of Halicarnassus, Livy, Cicero and the other authors of the classical ages, in respect to the early political and legal history of Rome; and I have not been inclined to adopt the historical scepticisms of some modern antiquaries, (of whom Niebuhr may be placed at the head,) so far as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, vol. i. pp. 290-295, English edit. Camb. 1828. He holds, however, contrary to the received opinion, that the curia were assemblies of the patricians, or gentes, or heads of families, and not of the whole people; and that the Plebs were landholders of the neighbouring towns and country, and field-labourers, who were free, and above the degree or condition of the clients attached to the patricians, but that they had no vote. Niebuhr's work is so intermixed with true and fabulous story, and he goes so deeply into the "tangled thickets of the forest," that it becomes rather difficult to know what is and what is not to be deemed genuine history, amid his incessant scepticisms and complicated narration. I am quite reconciled to the observation of Dr. Arnold, in his profound and learned “History of Rome,” vol. i. 100, that "although the legends of the early Roman story are neither historical nor yet coeval with the subjects which they celebrate, still their fame is so great, and their beauty and interest so surpassing, that it would be unpardonable to sacrifice them altogether to the spirit of inquiry and of fact, and to exclude them from the place which they have so long held in Roman History.”

↳ Numa religionibus et divino jure populum divinxit. Tac. Ann. 3. 26. According to Cicero, the auspices, religious ceremonies, courts of justice, appeals to the people, the senate, and the whole military discipline, were instituted by royal authority, as early as the foundation of the city. He imputes the institution of the auspices and the senate particularly to Romulus. Tusc. Quæst. lib. iv. 1. De Repub. lib. ii. sec. 9, 10. 14. He says further, that Numa was the author of laws which were then extant! Ibid. lib. v. sec. 2. He regarded the office of augur as one of the most important in the commonwealth; for the augurs, as he observed, had power to dismiss the comitia, and to command the consuls to lay down their office, and to grant or refuse permission to form treaties, and to abrogate laws not legitimately executed. No edict of the magistrates, relating to domestic or foreign affairs, could be ratified without their authority. Ibid. lib. 2. Fuss on Roman Antiquities, edit. Oxf. 1840, pp. 164–5.

class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into the hands of the patrician order, and of men of property."

After the establishment of the republic, all the higher magistrates were elected by the burghers or patricians in their curiæ, or by the whole people in the comitia centuriata, which were convoked by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, the assemblies of the people were frequently convoked by tribes, and there all the people met on an equality, and voted per capita. In the comitia tributa, the people, after violent struggles, elected the tribunes and subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians.b

■ Eosque ita disparavit, says Cicero, (that is, he so distributed the citizens in classes,) ut suffragia non in multitudinis, sed in locupletium potestate essent: curavitque, quod semper in republica tenendum est, ne plurimum valeant plurimi. De Repub. lib. ii. sec. 22. Cicero seems to have been aware of the danger to property from universal and equal suffrage-Ita nec prohibebatar quisquam jure suffragii: et is valebat in suffragio plurimum, cujus plurimum intererat esse in optimo Statu civitatem. Ibid.

b Dig. 1, 2. 2. 8. Gravina, de Ortu et Prog. jur. civ. sec. 28. The plebiscita, prior to the Hortensian law, required the sanction of the senate and of the assembly of the curia to be binding on all orders in the state. As the comitia curiata were assemblies of the patricians and plebeians, and in which all the great offices and • powers of sovereignty were conferred, the comitia tributa were assemblies of the plebeians only, and were held independently of patrician magistrates and influence. They could be held without a previous senatus consultum, and were not subject to the check of the auspices, which were under the management of the patricians. The comitia centuriata embraced all the orders of the state, and all persons of an age for military service, and the patricians and their clients, and plebeians, all found a place in them. In the comitia tributa the votes were taken by tribes, and in the comitia curiata by curia. The patricians exercised controlling influence in the comitia centuriata by means of the votes of their clients. The increase of the numbers and wealth of the clients of the burghers or patricians, gave the comitia centuriata in which they voted, in the progress of time, a popular character and influence; for though the clients lost their order and tribe by becoming dependent clients, they became wealthy, for they could follow retail trade and manufactures; and the comitia of centuries, in which the commons formed every century except six,