CIVIL LAW. 



255 



part of these writings would have been preserved ; 

 and it would seem that a beneficent providence some- 

 times allows large masses of historical knowledge to 

 perish (as in the case of the Alexandrian collections), 

 in order to compel mankind to revert to the resources 

 of their own minds, and to lead them from know- 

 ledge to wisdom. However this may be, the under- 

 taking of Justinian was demanded by the wants of 

 his age ; and it was better to satisfy such a demand, 

 even at the expense of some imperfections, than to 

 delay the necessary work under the pretext of edu- 

 cating competent men for the task, and making 

 thorough inquiries ; and all must admit the fruit of 

 the labour to have been a treasure of legal wisdom 

 for posterity. Our limits will not allow us to men- 

 tion here the different editions, abridgments and 

 translations of the work prepared for the Greek pro- 

 vinces (the Western provinces were soon lost for 

 ever). One Greek edition, of a much later date, 

 was ordered by L. Basilius Macedo (867 886), and 

 executed under his successor, Leo the Philosopher 

 (886912). This was called libri Basilicor urn. Of 

 the sixty books of which it consisted, we possess only 

 a part ; though, indeed, the greater part, published 

 by C. Hann. Fabrot, (Paris, 1647, 7 vols. fpl.,) and 

 four books, which did not appear in this edition, were 

 published by Reitz, in Meermann's Thesaurus Jur., 

 vol. v. p. 1. 



Thus the Roman law is one original and indepen- 

 dent whole, embracing a period of 1300 years to the 

 time of Justinian, and of 1850 years to that of the 

 Basilica. It stands, in this respect, unique in history. 

 Perhaps China, if, at some future period, we learn 

 more of its history, may afford some institution of 

 similar duration. Even the downfall of the Roman 

 empire has not destroyed the Roman law, but, in 

 some respects, has enlarged its dominion. It was in 

 force, before the modern governments were establish- 

 ed., throughout the Roman empire in Europe, and 

 when the Goths, Franks, Lombards, Burgundians, 

 rnd other Teutonic tribes, erected new empires, not 

 only a large part of the public law of Rome, was in- 

 corporated into the new constitutions, but the private 

 law, also, continued to be acknowledged as valid 

 among the old inhabitants. The new rulers took 

 care that, besides their different ordinances for the 

 weal of the Germanic tribes, abridgments and modi- 

 fications of the Roman law should be made, some- 

 times, it is true, rude and barbarous enough. Among 

 these were the breviarum Alaricianum of the Visi- 

 goths, 506 ; the lex Romana of the Burgundians, or 

 Fapiani Responsa, between 517 and 534. For the 

 Lombards, a rifacciamento of the Roman law was 

 prepared in the eighth and ninth centuries, and thus 

 in the south of France and Italy, this law continued 

 in authority uninterruptedly, as fer as it was adapted 

 to the new state of things. But this authority, of 

 course, diminished in proportion as new forms of fa- 

 mily relations and social connexions and new species 

 and tenures of property sprang up, particularly under 

 the feudal system, and in proportion as the internal 

 disturbances in the different states unsettled the idea 

 of law in general. But this idea was awakened 

 again after the states had gained a degree of stabi- 

 lity. People began to perceive that there was a 

 nobler and firmer basis of right than mere power ; 

 national union gained consistency and true value by 

 means of commerce and industry ; the lower classes 

 demanded the extension of tlieir privileges ; the in- 

 treasing activity produced more solid distinctions than 

 those of birth ; the insufficiency of the old laws be- 

 gan to be felt, and the blessings of a scientific cultiva- 

 tion began to be diffused, borrowed, in a considerable 

 degree, from the Arabians in Spain. In this state 

 af things, men rose, in Upper Italy, in the eleventh 



century, who freed the law books of Justinian from 

 the obscurity in which they had been buried till then, 

 and by these means gave a new impulse to the 

 science of law. Irnerius, towards the end of the 

 eleventh and in the twelfth century, is mentioned as 

 the first of them. All the nations on the European 

 continent seized eagerly upon the treasure offered to 

 them, after the model of which were now digested 

 the papal decrees, the feudal law, and, at a later 

 period, the Germanic laws. Thousands of scholars, 

 from all parts of Europe, went to Bologna and other 

 cities of Italy, to study law there. It was generally 

 supposed, at first, that the Roman law was applicable 

 to the whole of Christendom ; but it was soon found 

 out that there existed whole systems of laws and le- 

 gal relations, with which the rules of the civil law 

 would not harmonize ; and the peculiarities in the 

 organization of the tribunals of different countries 

 were long an obstacle to the formal adoption of the 

 civil law. This adoption, therefore, did not take 

 place in the various countries at the same time, nor 

 to the same extent. In Italy and the south of 

 France, it was introduced first and most completely ; 

 at a later period, and to a less degree, in the north 

 of France (in the pays de droit coutumier,) where it 

 has never, in feet, been acknowledged as binding, 

 but only as an authority in regard to general prin- 

 ciples of natural law (raison ecrite), ana still retains 

 tliis degree of influence, notwithstanding the estab- 

 lishment of the Code civil. In England, it never has 

 been received in the ordinary civil courts (it is, to 

 some extent, in Scotland,) but the spiritual courts 

 have always been guided by it. It is, therefore, in 

 force in such cases as fell under the jurisdiction of 

 these courts ; e. g., such as relate to last wills. It 

 is also in force in the admiralty courts, but in both 

 with many modifications. In Germany, the idea 

 that the emperors were the successors of the Roman 

 sovereigns contributed much to obtain legal autho- 

 rity for the Roman law in that country ; and this 

 has been confirmed by several laws of the empire and 

 of the different states composing it. But the native 

 laws have everywhere prior authority, and the Ro- 

 man law can only be applied in cases where these 

 make no provision ; but all those of its rules which 

 relate to institutions confined to Rome have no force. 

 It is not allowed, moreover, to be applied to cases 

 growing out of modern institutions, such as fiefs, pri- 

 mogeniture, bills of exchange, nor in questions be- 

 longing to the public law. Many cases, therefore, 

 can happen, in which there may be much doubt whe- 

 ther the Roman law is applicable or not. Prussia 

 and Austria have codes ; but in other German states, 

 as in Saxony, there is a great confusion between the 

 Roman and the native law. We have already ob- 

 served that the effects of the Roman law never 

 would cease, and its influence is perceivable in all 

 the modern codes. We would not be understood as 

 intimating an opinion that the Roman law supersedes 

 the necessity of forming new codes. These are de- 

 sirable in many nations, on many accounts, and, 

 among others, because the Justinian code itself is 

 not without obscurities, and the language in which 

 it is written renders it inaccessible to the bulk of the 

 people of every modern state ; but the welfare of a 

 citizen depends, in a great degree, upon correctly un- 

 derstanding his rights and obligations. Whether the 

 principles of the Justinian code agree or not with 

 those of the English law, it must be of great advan- 

 tage to the common lawyer to study a digest which 

 contains the recorded wisdom of many centuries, and 

 furnishes abundantly both examples and warnings. 

 We would recommend to the reader an article on 

 civil law in the American Jurist, No. III. July, 1829 

 (Boston). 



