CHAMBERS'S INFORMATION FOR THE PEOPLE. 



commerce. Thus the world, so far as we know, 

 may be said to owe the first hints for a mercantile 

 code to the Phoenicians ; and to the Rhodians the 

 earliest regulations applicable to shipping. But 

 the ancient system which more than all others has 

 influenced the laws of modern Europe, is the 

 Roman. 



ROMAN LAW, AND THE SYSTEMS DERIVED 

 FROM IT. 



Most European nations having risen from 

 the ruins of the Roman Empire, have obtained 

 the basis of their laws from the Roman law, 

 which is therefore, by the common consent of 

 Europe, denominated the Civil Law. In Europe, 

 there was but one other system, at an early 

 period, to combine with it ; this was that code of 

 usages which had sprung up in European nations 

 before they received the civil law, and latterly 

 became known as the Feudal Law. It is, after all, 

 only in some countries that the feudal law exists : 

 in other cases, the civil law has established a pro- 

 portionate, and in some a preponderating influence. 

 In Holland and Germany, the principles of the 

 civil law have largely influenced the municipal 

 systems, and have been studied with such zealous 

 care, that the writings of the lawyers of those 

 countries are quoted as the highest authorities on 

 the law of Rome. In Spain, the system has been 

 grafted on the feudal law, and on some peculiar 

 customs derived from the Moors. In France, pre- 

 viously to the Revolution, the civil and the feudal 

 law were united, as in most other nations of 

 Europe ; and in the Code Napoleon, to which we 

 shall hereafter more particularly advert, there are 

 many regulations from the jurisprudence of Rome 

 allowed to exist, or revived, while many of the 

 feudal customs which were formerly so prominent 

 are abolished. England distinguished herself from 

 the other nations of Europe by rejecting the civil 

 law as authority, but many of her institutions 

 were derived from its spirit and practice. ' With 

 all its imperfections,' says Sir William Jones, ' it 

 is a most valuable mine of judicial knowledge ; it 

 gives law at this hour to the greatest part of Europe, 

 and though few English lawyers dare make such 

 an acknowledgment, it is the true source of nearly 

 all our English laws that are not of a feudal origin.' 

 In Scotland, the Roman law has always been a 

 special subject of study ; and though the number 

 of native decisions, the extent of statute law, and 

 the necessary adaptation of the system to a state 

 of society very different from that in which Jus- 

 tinian promulgated his code, have rendered refer- 

 ences to thfs source comparatively unfrequent, the 

 civil law is still authority where the particular law 

 of Scotland does not contradict it. To complete 

 the general outline of the influence of this system 

 in modern Europe, it must be mentioned as the 

 source of the canon law, which was created into a 

 system by the Church of Rome, and still exists, 

 more or less, either separately or incorporated 

 with other systems, in all countries where the 

 papal authority was acknowledged. 



Writers have divided the legislative sources 

 from which the laws of Rome sprung into five. 

 Among the first of these is generally classed the 

 people, and the laws sanctioned by them are 

 technically divided into the Lex or Populiscitum, 

 and the Plebiscitum: the former including the 



60 



acts of the whole people ; the latter, those of the 

 plebeians convened by their tribunes. It would 

 appear that, in the earlier periods of the monarchy, 

 the authority of all classes was in this descrip- 

 tion of legislation tolerably equal Servius Tullius, 

 however, the sixth king, introduced the well- 

 known divisions into centuries and classes, by 

 which ninety-eight votes were secured to the first 

 class, while ninety-five only were allotted to the 

 remaining five, of which the lowest and most 

 numerous possessed only one. The tribunes, who 

 were officers chosen for the ostensible purpose of 

 protecting the people from the tyranny of the 

 aristocracy, were, by the exclusive and important 

 power they possessed, again the means of restoring 

 popular election. They procured the assembling 

 of the people by tribes, in which their votes were 

 given individually, and without the necessity of a 

 property qualification. All direct popular legis- 

 lation, however, soon disappeared with the author- 

 ity of the emperors. Augustus, except in one 

 instance, found the popular assemblies profoundly 

 obedient, and under his successor they ceased to 

 exist ; so that, long before the Roman laws had 

 become the grand system of jurisprudence into 

 which they were formed under the auspices of 

 Justinian, the direct popular source of legislation 

 had been dried up. 



The decrees of the senate (Senatus consultd) are 

 another source of the Roman law. The legislative 

 power of this body seems to have grown out of its 

 judicial, which was at first its proper province. 

 By the original constitution, the people alone were 

 understood to be the makers of the laws, and their 

 authority seems to have been gradually engrossed 

 by the senate, the interference of which, from 

 having been confined to mere advice and paternal 

 assistance in legislation, gradually extended itself 

 to that of making laws. It was not till the days 

 of Tiberius that these decrees were publicly pro- 

 mulgated as laws ; but the senate had by that 

 time lost its independent authority, and become 

 merely an instrument in the hands of the emperor. 

 The proceedings of the senate were generally 

 suggested by some public officer, and a majority 

 decided for passing or rejecting. In later times, 

 it became the practice for the emperor to propose 

 a new law, either by a message or letter laid 

 before the senate, or by an oration delivered ; and 

 as there was no opposition intended or permitted, 

 the legislative body became the mere registrars of 

 the monarch's will. 



Another source of the civil law is the constitu- 

 tions and rescripts of the emperors. At what 

 time they commenced the practice of making laws 

 without the nominal concurrence either of the 

 senate or the people, is not very distinctly known. 

 A passage in the Pandects, the authenticity of 

 which, long doubted, has been confirmed by late 

 discoveries, states that the will of the emperor is 

 law, and that, by a particular act, the people had 

 conferred upon him all their own power, which 

 was thenceforth absolutely to remain in his hands 

 one of those transactions under the guise of 

 which rulers are so fond of concealing their lust 

 of power, by representing as a free gift that which 

 no one can venture to refuse. Hadrian is believed 

 to be the first emperor who exercised the authority 

 of a supreme legislator. 



Edicts of the praetors are another, and not the 

 least important source of Roman jurisprudence. 



