Lapas attēli

preserved. If the work had been executed with the care and leisure that Justinian intended, it would have been an incomparable monument of human wisdom. There are, as it is, a great many contradictory doctrines and opinions in the compilation on the same subject, and too much of that very uncertainty which Justinian was so solicitous to avoid. But with all its errors and imperfections, the Pandects are the greatest repository of sound legal principles, applied to the private rights and business of mankind, that has ever appeared in any age or nation. Justinian has given it the venerable appellation of the temple of human justice. The excellent doctrines, and the enlightened equity which pervade the work, were derived from the ancient sages, who were generally men of distinguished patriotism, and sustained the most unblemished character, and had frequently been advanced to the highest offices in the administration of the government. The names of Gaius, Scævola, Papinian, Ulpian, Paulus, and Modestinus, may be selected from a multitude of civilians, as models of exalted virtue, and of the most cultivated reason and philosophy, drawn from the precepts and examples of freer and better ages. It is owing to their writings that the civil law, for the purity and vigour of its style, almost rivals the productions of the Augustan age.b

a Professor Hugo concludes that the compilers of the Pandects had never seen the original writings of Mucius Scævola, though they are referred to as if they had really been read and consulted. Hist. du Droit Rom. sec. 320. He is further of opinion that the merit of the order which is so visible in the civil law, is to be attributed to Servius Sulpicius, the friend of Cicero. Ibid. sec. 322.

b According to Hommel, a writer cited by Professor Hugo, of the 1800 pages of which the Pandects are composed, 600 were taken from the writings of Ulpian, 300 from Paulus, 100 from Papinian, 90 from Julian, 78 from Scævola, 72 from Pomponius, 70 from Gaius, 41 from Modestinus, and so on to other civilians of less note in diminished proportions.


Loss of the civil law.

(4.) The novels of Justinian are a collection of new imperial statutes, which constitute a part of the body of the civil law. Those ordinances were passed subsequent to the date of the code, and had been required in the course of a long reign, and by the exigencies of succeeding times. They were made to supply the omissions and correct the errors of the preceding publications; and they are said by competent judges to show the declining taste of the age, and to want much of that brevity, dignity, perspicuity, and elegance, which distinguished the juridical compositions of the ancients. Some of these novels are of great utility, and particularly the 118th novel, which is the groundwork of the English and our statute of distribution of intestates' effects. The institutes, code, and pandects were afterwards translated into Greek, and the novels were generally composed in that language, which had become the vernacular tongue of the eastern empire; and as evidence of the universality of that tongue, Justinian declared, that one of his constitutions was composed in the Greek language, for the benefit of all nations.b

When the body of the civil law, as contained in the Institutes, the Pandects, and the Code, was ratified and confirmed by Justinian, it became exclusively the law of the land; and the various texts from which the compilation was made, fell speedily into oblivion; and all of them, except the Theodosian code, and fragments of the other parts, disappeared

a Sir William Blackstone, Com. vol. 2. 516. does not seem willing to admit that the statute of distributions was taken from the civil law; but when Lord Holt and Sir Joseph Jekyll declare, (1 P. Wms. 27. Prec. in Chan. 593.) that the statute was penned by a civilian, and is to be governed and construed by the rules of the civil law; and when we compare the provisions in the English statute with the Roman novel, the conclusion seems to be very fair and very strong, that the one was borrowed essentially from the other.

b Inst. 3. 8. 3.


in the wreck of the empire. The great work itself was in danger of being involved in the general destruction which attended the irruption of the northern barbarians into the southern provinces of Europe. The civil law maintained its ground a long time at Ravenna and in the Illyrian 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. There was but one circumstance that could give any thing 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; and 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. It was an indelible and foul blot on

a Pothier, in the preface to his Pandecta Justinianeæ, has given a rapid view of the progress of the Roman jurisprudence from the Jus Civile Papyrianum, under Tarquinius-Priscus to the time of Justinian, and an interesting sketch of the series of Roman lawyers from the earliest notice of them, far beyond the age of Cicero, down to the compilation of the Pandects. And notwithstanding the efforts of Justinian to supersede and destroy the admirable materials of the civil law, from which he was enabled to erect the splendid and ever-during monument of his reign, yet from the remains of the works of the civilians there has been compiled the Jus Civile ante-Justinianeum, which is a collection of great interest and currency on the continent of Europe. It has now received an addition of the utmost value in the newly-discovered Institutions of Gaius.

b Gravina de Ortuet Prog. Jur. Civ. sec. 139. The law school at Rome was transferred to Ravenna, where it existed even in the Hth 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, France, Spain, or England, were originally un

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 Tribonian. 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 lex 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 regia 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 middle 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 sudden and immense. 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 Bynkershoeck, Heineccius, and Pothier, as affording a mass of instruction and criticism, most worthy of the attention and diligent examination of the student.

Reception in

The civil law had followed the progress of the Roman 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.

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