CIVIL LAW. 



253 



Cut together by the emperor Justinian, was formed 

 y degrees into a system applicable to the wants of 

 all nations. This system was introduced into al- 

 most all the countries of Europe, because the want 

 of a well-digested body of law was seriously felt. 

 After this model the ecclesiastical and papal decrees 

 were arranged, and, to a considerable degree, the 

 native laws of the new Teutonic states. From all 

 these the Roman law was distinguished, under the 

 name of civil law. In this respect, therefore, civil 

 law means (ancient) Roman law ; it is contradistin- 

 guished from canon law (q. v.) and feudal law, 

 though the feudal codes of the Lombards have been 

 received into the corpus juris civilis. (Respecting 

 the present form of the collections of Roman law, 

 see the article of Corpus juris). IV. As the Roman 

 code exerted the greatest influence on the private 

 law of modern Europe, the expression civil law is 

 also used to embrace all the rules relating to the 

 private rights of citizens. Under the term civil law, 

 therefore, on the continent of Europe, is to be under- 

 stood, not only the Roman law, but also the modern 

 private law of the various countries; e. g., in Ger- 

 many, Das gemeine Deutsche Privatrecht ; in France 

 the Code civil des Francois or Code Napoleon. In this 

 sense, it is chiefly opposed to criminal law, particu- 

 larly hi reference to the administration of justice, 

 which is to be divided into civil justice and criminal 

 justice. Having made these few remarks on the 

 name and character of the civil law, we shall now 

 proceed to a more particular account of its history. 



The history of the Roman law, embracing its gra- 

 dual development, its final completion under the lat- 

 ter emperors, particularly under Justinian, and the 

 great effects which it has exerted even down to the 

 present period in Europe, is a most interesting and 

 important subject. Rome may be said to have thrice 

 conquered the world, namely, by its arms, by its 

 laws, and by the decrees promulgated from the pa- 

 pal chair. The dominion of its laws has been the 

 best founded and the most extensive. The Roman 

 laws may be formally abolished, but their influence 

 can never cease. Then- effect is as permanent as 

 tliat of Grecian art. At the same time, it is not to 

 be denied, that the introduction of the civil law has, 

 in the case of several nations, obstructed the deve- 

 lopment of their own peculiar systems of law, and 

 in this respect produced evil consequences ; but such 

 is the nature of great agents which are beyond the 

 control of human power. An acquaintance with a 

 more perfect language, a more beautiful style of art, 

 and we might even say, with a purer religion, has 

 likewise prevented the growth or completion of 

 many institutions and modes of action, which might 

 have borne noble fruits. In considering the history 

 of the civil law, as, in ftict, of any system of law 

 which has sprung from the wants of the people 

 among whom it grew up, we must take into view the 

 public law and political history of the state, and the 

 growth of its civilization. The commencement of 

 the history of Rome offers little that is original. Its 

 institutions were sucli as existed in all the neighbour- 

 ing states. Greek views predominated throughout. 

 The royal authority fell in Rome, as it had fallen in 

 all the Greek governments, and the division of the 

 nation into a hereditary body of nobles, and a com- 

 paratively powerless community of citizens, gave 

 rise to numerous and lasting struggles. The real 

 character of the internal constitution of Rome will 

 afford, even after the ingenious and deep researches 

 of Niebuhr, in his Roman History, ample opportunity 

 for learned investigation. If manly firmness (virtus) 

 constituted the beau ideal of a genuine Roman, the 

 same quality was the basis of the Roman laws. 

 These laws did not consider the individual principally 



in his connexion with others, like the ancient German 

 laws, which give a value to the individual chiefly as 

 a member of a family or a community, but at an early 

 period, treated every one as an independent member 

 of society, the head of a family, free from the re- 

 straints of relationship, or membership of corpora- 

 tions. Institutions like those of the Germans, recog- 

 nizing a property common to a family or a corpora- 

 tion, hereditary or entailed, a body of attendants at- 

 tached to the lord, feudal services, unequal right of 

 inheritance among children, &c., are not to be found 

 in the civil law. The relation between patricians 

 and plebeians, between patrons and clients, was very 

 different from the feudal connexion. The expulsion 

 of the kings was at first of advantage only to the 

 higher classes of citizens (A. U. C. 245), but, only 15 

 years afterwards (A. U. C. 260), these were obliged 

 to grant to the other citizens the college of the tri- 

 bunes and the right of holding deliberative assem- 

 blies, which opened the way for the great compact 

 of the twelve tables, drawn up by patrician decem- 

 virs (A. U. C. 303, 304), which the ancients consider- 

 ed as establishing equality of rights, though it was 

 not till some years afterwards, tliat the patricians and 

 plebeians were allowed to conclude valid marriages 

 with each othrr (lex Canuleia, A. U. C. 309) ; and 

 not till a much later period were plebeians capable 

 of being elected consuls (A. U. C. 387 ). An im- 

 portant point of that fundamental law or charter, il 

 we may give it a modern name, was the establish- 

 ment of such an order of legal procedure, that the 

 poorer class of citizens, and particularly those living 

 without the city, should not, as had been too often 

 the case, suffer from their causes being hurried 

 through the courts. Another important point was 

 the settlement of the legal independence of the indi- 

 vidual. Eighty years after the plebeians had been 

 made capable of being elected to the consulship, the 

 senate was obliged to acknowledge the validity of 

 the people's decrees (plebis-scitd), by the lex Horten- 

 sia (A. U. C. 468) ; and from the first appointment 

 of a pr<stor urbanus (A. U. C . 367), it was customary, 

 as we have already said, for this officer to give pub- 

 lic notice, annually, at the beginning of his term of 

 office, of the principles according to which he intend- 

 ed to decide the cases that should fall within its ju- 

 risdiction. These edicts of the pretors, in which the 

 same rules, with few exceptions, were uniformly 

 adopted, were a better means of keeping the 

 system of laws hi a constant state of development, 

 than special decrees would have been. By this 

 means, there grew up, besides the positive law (jus 

 civile, in the stricter sense of the word), a whole body 

 of acknowledged principles, a common law (jus ho- 

 norarium), which supplied the chasms of the positive 

 ordinances, mitigated their severity, or paved the 

 way for the necessary reforms. Though the ancients, 

 e. g., Cicero, mention the great accumulation of these 

 positive laws, yet their number, at least as far as re- 

 spected private rights, appears very small, compared 

 with the laws of modern times. It was only as it re- 

 garded the regulation of public relations that there 

 existed in the time of the republic such a mass of 

 laws, that Caesar thought it a meritorious work to 

 bring them into a system. But it ought not to be 

 forgotten, that the necessity which existed at that 

 time, of impressing the whole body of decisions on 

 the memory of the lawyer, made the mass become 

 troublesome much sooner than it would if there had 

 been collections of laws, abridgments, digests, regis- 

 ters, &c. For the purpose of making legislative en- 

 actments, there existed in the republic two concur- 

 rent authorities the meeting of the citizens (plebs, 

 under the tribunes, in comiiiis tributis, whose resolu- 

 tions are called plebis-scita), and the senate (whose de- 



