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 IIOR.E JURIDICE SUBSECIViE: 
 
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 -!■: ..-r .■' ■: *• 
 
HOIl^ JURIDIC.E SUBSECIV.E : 
 
 A CONNECTED SERIES 
 
 NOTES, 
 
 RESPECTING THE GEOGRAPHY, 
 CHRONOLOGY, 
 
 AND LITERARY HISTORY. 
 
 i 
 
 PRINCIPAL CODES, AND ORIGINAL 
 LOCUMENTS, 
 
 t • ' , i ^ OF T H B 
 
 C'RECIAN, HOMAN, FEUDAL 
 AND CANON LAW. 
 
 JJy CHARLES BUTLER, Es(^ 
 
 OF lincoln's-inn. 
 
 Ivt qiKulam prodire teiius, fi non datur ultra. 
 
 HoK. 
 
 » . 
 
 
 
 y t, i 
 
 y 
 
 1 
 
 LONDONt 
 
 ■J^Ko.iKE Mu\ Ci AUK F., B^HNvard } Whitt, FlceNllfcet t 
 
 CvuF.i.L and D.wir.s, in ihe SiianU } 
 
 nud DooRER, i'oiid-ilreef.. 
 
 ibC^. 
 
> ■■■ 
 
 .O.iiu^ 
 
 
 
 •^ ,t 
 
 .4. V .■ 
 
 
 QUARE quis tandem me reprehcndat, fi quantum 
 ceteris ad feftos dies ludorum c«lebrandos, quantum ad 
 alias voluptates, et ad ipfam requiem, animi et corporis 
 conceditur temporis ! quantum alii tempeftivis conviviis * 
 quantum ales, quantum pilae, tantum mihi egomet, ad , 
 .ha;c Itudia recolenda, fumpfero. 
 
 Cic.pro Archid. 
 
 ■ ■ '^'■'" ■' '■^•' ' ' '■■■■-:> 
 
 LE changement d' etude eft toujours un delaffement 
 pour moi. , - . - 
 
 Lvike Hf»nf;irJ, Printer, 
 Gicat, Tunatilc, Liiicolr/s-lnn FicldJ. 
 
* 
 
 TO 
 
 THl RIGHT HONOURABLE 
 
 JOHN LORD ELDOK, 
 
 LC. RD HIGH CHANCELLOR 
 
 O P 
 
 GREAT-BRITAIN, 
 
 THIS ESSAY 
 
 IS, 
 
 WITH HIS lordship's PERMISSION, 
 
 RESPECTFULLY DEDICATED. 
 
I'^i: 
 
 L> :. •-■ 1 
 
 \ O 
 
.'• T 
 
 INTRODUCTION. 
 
 ■\ 
 
 The following fheets complete a very ImperkSt 
 execution of a defign, which, almoft in the firft 
 moments of his engaging in the ftudy of the 
 law, the Writer formed, of committing to paper, 
 A Succinct Literary History of the 
 Principal Codes extant of Sacred and 
 Profane Law. Such a work, executed with 
 ability, would be curious, intercfling and indrudl- 
 ive: the writer's projedling it (hews his equal 
 ignorance, at the time, of its nature and extent, 
 and of his inability to execute it. 
 
 It has not, however, been wholly out of his 
 mind; fo that, for a great number of years, he 
 has been in the habit of employing his leifure 
 hours, in the ftudy of thcfe codes, and in com- 
 mitting to paper, his obfervations on them, 
 
 A 4 Encouraged 
 
 •\. 
 
Tlii INTRODUCTION. 
 
 Encouraged by the reception, which a private 
 impreffion of it had received among his friends, 
 he publiflied, in 17991 fomeihing in the nature 
 of a Literary Hijiory of the Old and New 
 TeJlarncnts^r-'{on many, accounts, the moft im- 
 portant of all codes of law)— under the title, 
 *' Hores BibliciCy behg a conne£led Series of AJif- 
 *' cellaneous Notes on the Original Text, Early 
 " Verfions^ and printed Editicns-i of the Old and 
 « New Tejlaments'* 
 
 He has fince circulated among his friends, a pri- 
 vate imprefiion of afmilarferies cf Notes on the Co- 
 rany the Zend-Avefioy the Vedas^ the Kings^ and the 
 Edda-i the facred Codes of the Mahometan?, the Par- 
 fees, theHindoos,theChinefe, and the Scandinavians. 
 
 The following (heets, containing a fimilar feries 
 cfhis Notes on the Greciany Romany Feudal andCa^ 
 non LaWj now follcit the reader's attention. 
 
 As fome excufe for the imperfections of thefe 
 compilations, he begs leave to mention, that he has 
 had little leifure to beftow on them, beyond occafi- 
 onal bits and fcraps of time, which a very laborious 
 difcharge of the unceafing duties of a very labori- 
 ous profeffion has left at his command ; and which he 
 has always found it a greater relaxation to employ 
 
 in this manner, than in any other. 
 
 4 What 
 
INTRODUCTION. 
 
 IX 
 
 lefore 
 
 thrift. 
 
 What is here faid on The Grecian Law, 
 may be found to contain fome account of 
 
 1586. 
 
 203. 
 
 I. The Geographical Limits of Greece 
 
 II. Of its Legiflation ". :.; • ^^-t 
 
 I. In its Fabulous 
 
 a. Heroic - - - - , 
 3. And Hiftorical Age - 
 
 926. III. Ofthe Lawsof Lycurgus 
 
 624. 
 
 594- 
 
 490. 
 
 IV. 
 
 - Draco 
 and Solon 
 
 Page 
 
 I 
 
 2. 
 
 3 
 7 
 
 8 
 
 9 
 
 ib. 
 
 V. And of the Decline of the Laws of Athens 
 
 and Lacedacmon - - i^ 
 
 ^iiSsn-Mm- 
 
 What is faid on The Roman Law, may be « 
 found to contain fome account 
 
 I. Of the Degree of Credit due to the Hiftories 
 which have reached us, of the Five 
 Firft Ages of Rome - - - 20 
 
 II. Of the Geographirr" " imits of the Coun- 
 tries, in which le Roman Law has 
 prevailed : 
 
 1. Italy - - . - - - 22 
 
 2. The Roman Conqueils in Europe - 2+ 
 
 3. And the Roaian Conquers cut of Europe 25 
 
 III. Of 
 
 X 
 
.: INTRODUCTION. 
 
 Pafc 
 
 Before 
 Chrifi. 
 
 753- 
 
 509. 
 
 453- 
 451. 
 
 Ill- Of the different ClalFes of Roman Subjefts 25 
 
 - I, Citizens, or thofe who had Jus Civitatis 26 
 '- ■' a. Latins, or thofe who had Jus Latii - 28 
 
 - 3. Italians, or thofe who had J us Italicum - 29 
 4. And of the Provinciie, Municipla, Prae- 
 
 fe£tur« & Civitates Foederatae - - ib. 
 
 IV. Of the Government and Form of Roman 
 
 , . Legiflation - - - - - 30 
 1. As originally conftituted - - -3^ 
 
 - 2. Aad as fucceffively altered - - - 33' 
 3. Of the Titles of their Laws - - 36 
 
 V. Of the Hiftory of the Roman Law - - 37 
 
 V. I. Its Firft Period— ( 
 From the Foundation of Rome, 
 till the . iEra of "he Twelve 
 
 Tables - - - - ib. 
 
 Jus Civile Papyrianum - - 38 
 
 ,s?i j'.Ai 
 
 V. 2. Seco::d Period. — 
 
 The Twelve Tables 
 
 39 
 
 V. 3. Third Periocl.— 
 
 The Laws of Rome during the re- 
 maining Period of the Republic 42 
 1. Jus Hororariuin - - - - 43 
 
 a. Ac>ioiies Le^es & Solcmnes Legum For- 
 mulae ------ 47 
 
 3. Difinuationes Fori & Refponfa Pruden- 
 
 tum ^^■' 
 
 V. 4. Fourth 
 
INTRODUCTION. 
 
 9^ ^^B 
 
 Bc'nre 
 
 Chrift. 
 
 
 46. 
 
 ^^H 
 
 After 
 
 ''^ m 
 
 thrift. 
 
 '^' 9 
 
 120. 
 
 ■ 
 
 ■284. 
 
 30 1 
 
 
 ^^ 1 
 
 
 33' 9 
 
 306. 
 
 36 B 
 
 ■ 
 
 37 1 
 
 408. 
 
 I 
 
 438. 
 
 1 
 
 506. 
 
 ib. 1 
 
 
 3S 1 
 
 528. 
 
 I 
 
 533. 
 
 39 1 
 
 sn- 
 
 I 
 
 566. 
 
 M 
 
 ';68. 
 
 y. 4. Fourth Period.— ; 
 „ „ Julius Caefar 
 
 * ■' .^ . ' 
 
 if* no J' 
 
 , 1 -" <• r.» /-J ; 
 
 ^.:i !■■! 
 
 V. 5. Fifth Period.— 
 , . Adrian - 
 
 Edi(5lum Perpetmim - 
 Codex Gregorianus - 
 Codex Hermogenianus 
 
 (■' ' '• 
 
 ■ i'V'^M.A. J •»*--• \,» . . 
 
 V. 6. Sixth Period.— > ^ ' 
 
 Conftantine the Great 
 
 V. 7. Seventh Period.— 
 
 Theodofius the Younger - 
 Codex Theodofianus 
 Breviarium Auiani - 
 
 V. 8. Eighth Period. — 
 
 Juftinian _ - . - 
 
 1. Codex Prima? Praeledionis - - - 
 
 2. Dig^ftum, or Pandemias . . - 
 
 3. IniTitutiones - - - . - 
 
 4. Codex Repeiitac Praeletflionis 
 
 5. Novella: ------ 
 
 6. Volumen Autbenticum - - . 
 
 7. Libn Feudonim, and other Articles form- 
 
 ing the Decima Collatio - - - 
 
 8. General Merit of Juftinian's CoUe^^ion 
 
 Paje 
 
 SO 
 
 52 
 
 ib. 
 
 53 
 ib. 
 
 ib. 
 
 54 
 
 ib. 
 
 55 
 
 56 
 
 57 
 
 ib. 
 
 ib. 
 ib. 
 
 58 
 ib. 
 
 ib. 
 
 ib. 
 
 •53- 
 
 V. 9. Ninth Period.— 
 
 Tl'.c Fate of Jii^iiilan's Law. 
 I. In the Weftern Empire 
 
 - 6::> 
 
 2, In 
 
X" 
 
 Chrift. 
 906 
 
 HS3- 
 
 Page 
 61 
 ib. 
 
 63 
 
 INTRODUCTION. 
 
 2. In the Esftern Empire - . - 
 TheBafiUca - - - 
 The Extin<aJon of the Roman Law in the 
 Eaft, in confeqiience of the taking of 
 Conftanlinople by Mahomet the Se- 
 cond __-..-- 
 
 V. 10. The Tenth Period.— 
 
 Revival of the Roman Law in the Weft, 
 
 in confequenca of the Difcovery of 
 
 the Pandetfls at Amalphi 
 Collations and Editions of the Pandedls 
 
 VI. Principal Schools of the Civil LaM' - 
 
 1. School of Irnerius - - - - 
 
 2. - - - Accurfius - - - - 
 
 3. - - - Bartolus and Baldus 
 
 4. - And Cnjas 
 
 VII. Influence of tne Civil Law on the Jurif- 
 
 - prudence of the principal States of 
 Europe. - - - - - 6c) 
 
 ib. 
 ib. 
 
 65 
 
 68 
 ib. 
 
 ib. 
 
 J i 
 
 What is fciid on the Feudal Law, may be 
 found to contain feme account 
 
 I. Of the criminal Territories of the Nations by 
 whom it was ef^abliftied. 
 1. Scythians ------ 
 
 a. Celts ------ 
 
 3. Sarmatinns - - - - - 
 
 4. Scandinavians - - - - - 
 
 5. Germans - - - - 
 
 - 7^ 
 
 - 76 
 
 - ib. 
 
 - ib. 
 
 - ib. 
 6. Huns 
 
INTRODUCTION. 
 
 Iter 
 Irift. 
 
 too, 
 koo. 
 
 6. Huns - - - - - 
 
 7, Sdavonianc - - . _ . 
 
 11. Of the gradual Extenfion and Dates of the 
 principal Conqueits made by them 
 
 III. And of the principal written Documents of 
 
 - the Learning of Foreign Feuds - 
 
 I. Codes of Law - - - - - 
 
 ' s. Capitularies . - - . - 
 
 ; 3. Cuftomary Law - - - - 
 
 Xllt 
 
 P;.ge 
 76 
 
 77 
 
 77 
 
 81 
 
 83 
 86 
 
 88 
 
 What is faid on The Canon Law, may be 
 found to give fome account 
 
 I. I. Of the Ancient Religion of Rome . - 97 
 
 2. Of the Gods worfliipped by the Romans 98 
 
 3. And of the Colleges of Priells dedicated 
 
 to their Service - - - - 99 
 
 n. Of their Toleration of Foreign Worfliip - 10 1 
 
 in. Of the Chriftian Hieiarchy - - - 103 
 
 IV. Of the General Materials of the Canon Law 105 
 
 V. Of the Hiflory of the Canon Law - - ic6 
 
 V. K The Ancient Period of the Canon L^w ib. 
 
 1. Canons of the General Cliurch - - 107 
 The Apoftolic Conftitutions - - ib. 
 
 2. Canons of particular Churches - - loS 
 
 Codex 
 
 fi I - i 
 
After 
 
 Cluirt. 
 
 385. 
 4SI. 
 560. 
 69a. 
 
 760, 
 
 849. 
 9c 6. 
 
 ■J coo. 
 : ICO. 
 ii«;o. 
 
 I2 70. 
 
 1340. 
 
 UB3. 
 1500. 
 
 u 
 
 :? f Codex Erclefiae Orientnr<; 
 
 *iv INTRODUCTION. 
 
 Page 
 
 ■ - - lc8 
 
 J. 1 Coticx £!cc; Hjp Univerlae - - - ib. 
 
 o ^ Nomo-Canoit .,t Joaiincs Scholafticus 109 
 
 - - ih. 
 
 - ib. 
 
 U I SyncH in Trullo 
 
 C (^Nomo-Capon of Photius - - . 
 
 3. Vetus Canontrm Latinorum Editio, by 
 
 Dionyiius Exiguus - - 
 
 4. CoJleftion of Canons of the African 
 .' ' Church 
 
 -; - Church of Spain - - - . 
 
 V. 2. The Middle Period of the Canon Law. 
 J. Ifidore Peccaror, or Merca tor's Colledion 
 of Decretals - - - - . 
 
 Capitularies of Adrian - - - - 
 CoIIeftion of Rhcginon Abbot of Prumia 
 Burchardus's Magnum Decretorum feu 
 
 Canonum Volumen 
 Decretum Canonum, and Panomia of 
 
 Ivo 
 
 £. Decretum Gratiani 
 
 Brcviaruin liernardi Papicnfis 
 Coileaions of Johannes Galenfis and 
 • Peter Beneveutanus - - . . 
 Libriquinque Decretaliiim Grcgorii Noni 
 Liber Scxtus Decreialium - - - 
 Liber Septimus Dec^etalium 
 Lxtravagantes Johannes xxii» 
 Extiavatfautes Communes .... 
 Collec'lion of Mattha^i - - . , 
 Jijiliiiitiont'i Lancellotti - - . 
 
 no 
 
 ib. 
 Ill 
 
 ib. 
 
 112 
 ib. 
 
 - n3 
 
 - ib. 
 
 - ib. 
 
 i«5 
 
 ib. 
 
 ib. 
 
 116 
 
 ib. 
 ib. 
 ib. 
 
 ib. 
 
Ifter 
 
 INTRODUCTION. 
 
 Xf 
 
 Page 
 
 '*• V. 3. Of the Modem Period of Cnnon Law ; 
 I. Tranfaftions and Concordats between 
 
 Sovereigns and the fee of Rome - zi8 
 
 ^ Councils of Bafil, Pifa, Conftance, and 
 
 Trent ib. 
 
 3. Bullarium - - - - -720 
 
 4. Regulae Cancellarlae Ronnanae— Decrees 
 
 and Ordinances of the various Con- 
 gregations of Cardinals at Rome ; and 
 Deciiions of the Rota - • - ib. 
 
 5. Legantine and Provincial Coitilitutions - ib. 
 
 VI. Jiuthority of the Canon Law 
 
 121 
 
 . . APPENDIX. 
 
 Note I. On the Right of the Crown of England t& 
 the Exclulive Dominion and Property of 
 the Britifli Seas. 
 
 Note II. On the Geographical Divifion of the 
 Alps. 
 
 Note III. On the Praetor'a Judicial Power, from 
 Dr. Bever's Hiftory of the Lfgiil Polity 
 of the Biitifli State. 
 
 Note IV. On the Modes of quoting the Civil and 
 Canon Laws, from Dr. Hallilax'* Ana- 
 lylis of the Roman Civil Law. 
 
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 £; ft R A T A. 
 
 Page ai, laft line, for " Note III," read "Note 11.*' 
 
 25, line 14, for "I," read «« It." 
 
 64, fecond line of the note, for ^^ fucceJJiO' ■ 
 «f«," read ^^ fuccejfione."'' 
 ■ ' - • . '■ 
 
 69, line 10, for " Potier," read **Pothier." 
 
 96, eleventh line of the note, for ** et ArgoUt" \ 
 
 102, fecond line of the note, for " Gundlngi* 
 read «♦ Gundlingr 
 
 laa, line 8, for" V. 4," infert " VI." 
 
 ' .:J- 1 
 
 
 ■ ' ' ' ■» 
 
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\imwi. I wmiH 
 
 '■»» ^1 I I ■] ^B 
 
 THE GRECIAN LAW. 
 
 I. 
 
 WHEN the fpace, which Greece fills in 
 hiflory, is confidered, it is impoffible to 
 view, without furprize, the fiiiall extent of its 
 GEOGRAPHICAL LIMITS. 
 
 In the largeft fenfe of the word, Greece denotes 
 the territories between lllyricurn and Moefia, to 
 the north; the Ionian Sea, to the weft; the Cre- 
 tan, to the fouth ; and the ^grean, to the eaft. 
 It is divided into the Regnum Maccdunlcuni, 
 which, in the time of Philip, confiftedof Mace- 
 don, Thefialy, Epirus, and Thrace; and of tlie 
 GrsEcia Vera, which was divided into three parts, 
 Achaia, Peloponnefus, and the Ulands. It la 
 highly probable that Greece was originally peo- 
 pled by the Pelafgi, an Afiatic Horde, who, in 
 iucceffive emigrations, pafTed the Caucafus, the 
 Don, the Ntifter, and the Danube, and fpread 
 themfelves over a great part of Greece. At fub- 
 fc(2uent periods, it was peopled by various colonies 
 
 B 
 
 from 
 
2 THE GRECIAN LAW. 
 
 from -<Egypt and Phoenicia. For a confiderable 
 time, all its inhabitants lived in a wild and barba- 
 rous ftatc. Af.erwards its fabulous, heroic, and 
 hiftorical agea-fucceflively follow. 
 
 II. 
 
 II. I. Its LEGISLATION may be traced to 
 
 lis fabulous age. 
 
 In the mythology of the Greeks, tlie following 
 is the genealogical hiftory of jufticc. Chaos was 
 the firll of beings, and gave birth to Coelum and 
 Tellus, and to Erebus and Nox: Coelum and 
 Tellus were the parents of Jusjurandum and 
 Themis; Erebus and Nox were the parents of 
 Nemefis. Jupiter had Aftraea and Dice by The- 
 mis;— when the deities refidei on earth, in the 
 golden age, Aftraea prefided over the adminiftra- 
 tion of juftice ; and when, in confequence of the 
 vices of men, the deities fled to heaven, fhe was 
 the ].ilT: of them who remained on earth ; but, at 
 length, quitted it, and was tranflated into the fign 
 Virgo, next to Libra, her balance. Ceres, the 
 daughter of Saturn and Ops, taught mankind 
 tiUage, the worihip of the Gods, the ufe and rights 
 of feparatc property, iefpe6i to parents, and ten- 
 dernefs to aninials : on thij account, both in the 
 Greek and Latin writers, flie is called the law- 
 bearing Ceres ; and both in Greece and Rome, 
 ilic was worfliipped, and had temples dedicated to 
 her, under that name. 
 
 The 
 
THE GRECIAN LAW. 3 
 
 Tlv- eariieft account of the fabulous age, on Before 
 which any reliance can be placed, commences ^'*"^' 
 about 1970 years before Chrift ; when Argos, 
 from which the north-eaftern territory of Pelo- 
 ponnefus received its denomination, firft began to 
 acquire political eminence. It is faid to have been 
 founded by Inachus, in - - -1970 
 
 His defcendants filled the throne, till Gelanor, 
 the 16th of them i. fucceilion, was expelled by 
 Danaus, a prince of ^gypt. - - -1586 
 
 ' He is mentioned by fome writers, as the firft 
 legiflator of the Greeks ; from him, the people of 
 the peninfula, till then called Pelafgians, received 
 the name of Danaans, which they retained in 
 Homer's time. 
 
 II. 2. From that period, fome appearance of real 
 hiftory being difcernible in the accounts we have 
 of what is generally called the fabulous age of 
 Greece, it is fuppofed to verge to a conclufion, 
 and the heroic age of Greece, is fuppofed to begin. 
 The regular hiftory of Grecian legiflation com- 
 mences with Thefeus, one of the celebrated per- 
 forts from whom that age received its appellation. 
 
 In a military expedition to the kingdom of 
 Crete, undertaken by him, to deliver the Athe- 
 nians from an ignominious tribute, paid by them 
 CO the monarch of that iiland, he had become ac- 
 quainted with the laws of Minos. The excel- 
 lence of thofe laws is highly celebrated by the 
 
 B 2 writers 
 
4 f HE GR£CIAN LAW; 
 
 writers of antiquity : to us, they are chiefly known, 
 as the foundation on which Thefeus, and after 
 him Lycurgus, built their refpe£iive fyftems of 
 legiflation. In the public education of their chil- 
 dren, in ihe public repafts of the people, at which 
 the rich and the poor promifcuoufly attended, in 
 the divifion of the inhabitants into freemen and 
 flaves, and in fome other inrtitutions of Minos, 
 we trace the general fyftem of legiflation, adopted 
 by the Spartan leglflator. It is obfervable, that 
 Minos was the tirft fovereign, to whom the fplen- 
 did prerogative of the Dominion of the Sea* was 
 affigned; but probably it was confined to the 
 Cretan and a fmall part of the ^Egzean Seas. On 
 his death it was alTigned to the princes of Argos. 
 
 On the return of Thefeus from Crete, he abo- 
 lifhed private jurifdidlions, and fubjecled the 
 whole territory of Athens to one common fyftem 
 of legiflation ; he divided the commonwealth into 
 nobility, hufbandraen, and artificers; and efta- 
 blifhed an unifonniiy of religious rites and facri- 
 iiccs. To the nobility and hufbandmen he ap- 
 jiropriated the executive powers, with the fuperin- 
 tendcncy o( religion : but a Ihare in the legiflation 
 was givc!n to all ; no diflin6tion prevailed, as in 
 every other Grecian province, and afterwards in 
 the Roman world, between the people in the 
 rnpital, and the reft of the people j all were 
 
 * See Appendix, Note i. 
 
 united, 
 
I"»82 
 
 THE ORECIAN LAW. 5 
 
 unitCil) under the general name of Atlicnlans, in B'.fore 
 the enjoyment of every privilege of Athenian^ 
 citizens, and the monarch was ratlicr their firO- 
 magiftrate than their fovereign. In confequence 
 q( thefe wife regulations, the Athenians fecm to 
 have acquired more civilized manners than the 
 reft: of the Greeks ; they were the firft who dropt 
 the pra£lite of going conftantly arnied, and thus 
 introduced a civil drefs in contradiilindlion from 
 the military. 
 
 The fubjeft leads to the mention (jf nothing 
 of importance before the taking of Troy. 
 
 In his defcriplion of the fliield of Achilles, 
 Homer gives a ftrikin£- :;ccount of a trial at law, 
 in his times. 
 
 *' The people were aflembled^ in tlic markct- 
 ♦' place, when a difpute arofe between two men, 
 
 concerning the payment of a fine for man- 
 
 flaughter: one of them addrelTed himfclf to the 
 
 by-ftanders ; afferted that he had paid the whole ; 
 " the other infifted, that he had received nothing ; 
 " both were earned to bring the difpute to a ju- 
 " dicial determination. The people grew noify in 
 *♦ favour, fome of the one, fome of the other ; but 
 '' the heralds interfering, enforced fjlcncc; and 
 
 the elders approaching, with fcepters of heralds 
 " in their hands, feated themfelves on the polilheJ 
 " marble benches in the facrcd circle. Before 
 " them, the litigants, earncftly (lepping forward, 
 
 B 3. *' pleaded 
 
 4( 
 
 <( 
 
 (( 
 
 H 
 
 ;cd» 
 
6 THE GRECIAN LAW. 
 
 ** pleaded by turns : while two talents of gold lay 
 " in the midfl, to be awarded to him, who (hould 
 <* fupport his caufe by the cleareft teftimony and 
 " the cleareft argument." ' ' ' ' ' • '. * , 
 
 We find from Homer's writings, that, in his 
 time, the rights of primogeniture were confider- 
 able ; that, murder was puniihed ratixer by private 
 revenge than public juftice; that, conjugal infi- 
 delity, on the woman's part, was efteemed an 
 heinous offence ; that, on the man's, it was little 
 regarded; and that, the breach of virgin honour 
 was fcarcely thought a crime. 
 
 It is obfervable that Homer makes no mention 
 cither of a pure republic, or of the abfolute rule 
 of one man : he is fuppofed to have been favour- 
 able to monarchical government ; but it is faid to 
 be difcoverable from his works, that, when he 
 wrote, the general tendency of the public mind of 
 Greece was democratic. 
 
 In the Gourfe of time, democracy obtained a 
 complete vidlory over monarchy, in every part of 
 Greece. The Heraclidae, having acquired a 
 fettlement in Doris, invaded and made themfelves 
 mafters of all Peloponnefus, except Arcadia. At 
 firft, they eftablifhed a limited monarchy in the 
 different provinces they conquered; but, having 
 quarrelled among themfelves, and confuflon uni- 
 verfally prevailing, monarchy was almoft every 
 where aboliflied, and the words, Tyrant and 
 King, became fynonymous. 
 
 JI, 3. Here 
 
THE GRECIAN LAW. f 
 
 II. 3. Here the heroie age of the hiftory of 
 Greece draws to a conclulion, and W9 perceive 
 the dawn of its hijiorical ara. 
 
 From this time, Greece mud be confidered as 
 formed of a multitude of independent flates^ ex- 
 crcifing complete fovcreignty within their n- 
 fpedlive territories ; bound together by no federal 
 union, but connected by language, by their notion 
 of a defcent from a common (lock, by a fimilitude 
 of religious belief, and by frequent meetings at 
 public games. 
 
 But nothing contributed to this general union 
 more than the council of the Amphifltyons: it 
 is fuppofed to have been inftituted by Amphidlyon, 
 the fon of Deucalion. It met fometimes at Ther- 
 mopylae, fometimes at Delphi ; the members of 
 it were chofen by the principal cities of Greece. 
 The objeft of the inftitution was to decide the 
 differences, which happened among the Grecian 
 dates. Their determinations were always held in 
 great veneration ; and their influence is fuppofed 
 to have continued till the reign of Antoninus 
 Pius. 
 
 During the whole of the hlftorical aera of 
 Greece, except when fome fmgular event raifes 
 a particular ftate into notice, Lacedaemon and 
 Athens alone engage the attention of the hiftoriaa 
 or civilian. 
 
 B4 
 
s 
 
 THE GRECIAN LAW- 
 
 III. 
 
 THE aera of Grecian legiflature begins withBefore 
 the LAWS OF LYCURGUS, the moft fin-^'^''"^* 
 gular inftitution recorded in hiftory. - - 926 
 
 He eftabliflied two Kings, and a Senate of 
 twCiity-eiglit members, appointed for life; the 
 Kings were chofen by the people, were heredi- 
 tary fenators, high priefts of the nation, and 
 commanders of their armies; but they were con- 
 trolled, in the exercife of their power, by five 
 Ephori, created annually. With the feiiate, all 
 laws were to originate ; the general aifcinbly of 
 the people had the power of confirming tliem ; 
 but public flebate was wholly forbidden the 
 general afi'embly. Lycurgus etFedled an equal 
 divifion of ^and among all the citizens; he abo- 
 Jilhed the life of gold and filvcr; and ordained, 
 that all children Ihould be educated in public : 
 every citizen was to be a foldicr ; all fedentary 
 trades, and even agriculture, were forbidden diem ; 
 the ground was cultivated by the Helota^, a kind 
 of flaves, whom the Lacedaemonians treated wirh 
 the greateil cruelty. 
 
 Thus, Lycurgus efFcclcd a total revolution of 
 law, property, and morals, througliout the whole 
 of the Spartan tcrritorv : no le.'illator ever at- 
 tempted fo bold a plan. It has been obfcrvcd, 
 
 that, 
 
THE GRECIATT LAW. 9 
 
 that, if he had merely been a legiflator in fpecu- Before 
 lation, his fcheme would have been thought more thrift, 
 viilonary than Plato's ; it may be added, that, if 
 the exiftence and continuance of his inftitutions 
 were not proved, beyond argument, by the Iiigheft 
 degree of hiliorical evidence, the relations of 
 them would be i ; onounced a fidlion, on account 
 of what would be termed their evident impradica- 
 bility. Yet, the firft eftablifliment of them was 
 attended with little rcfiftance, and with no politi- 
 cal convuHion ; they remained in vigour longer 
 than any political itiftltution of antiquity known 
 to us, and were refpedable even in their decay. 
 
 IV. 
 
 I. DRACO was the firft legiflator of 
 ATHENS : of his laws vvc know little more 
 than that tlieir extreme feverlty was proverbial. - 624 
 
 He made all crimes capital, on the ground, 
 that a breach of any pofitive Idw was a trcafqn 
 to the flate. 
 
 Solon framed for his countrymen, a new ai;d 
 milder fyftcm of law. • 
 
 Mr. Tytlcr's Elements of Ancient Hlftory, 
 ift vol. 49 — 52, gives us the following concifc and 
 clear view of Solon's Lcgifiaticu. 
 
 " Solon, an illuftiious Athenian, of the r;icc 
 " of Codrus, attained the dignity of Archon 594 
 
 - 594, 
 
lO 
 
 THE GRECIAN LAW. 
 
 <( 
 tt 
 
 #< 
 «< 
 «( 
 •( 
 
 *f 
 <( 
 
 « 
 
 <( 
 
 it 
 (C 
 «( 
 
 4( 
 
 ti 
 
 (( 
 
 <; 
 
 B.C.; and was intrufted with the care of 
 framing, for his country, a new form of go- 
 vernment, and a new fjrllem of laws. He 
 poflefied exteative knowledg'S^ but wanted that 
 intrepidity of mind, which is necefTary to the 
 character of a great ftatefman. His difpoiition 
 was mild, and temporifmg, and, without at- 
 tempting to reform the manners of his country- 
 men, he accommodated his fyflem to their 
 prevailing habits and paflions. 
 « The people claimed the fovcreign power, 
 and they received it: the rich demanded offices 
 and dignities: the fyilenn of Solon accommor 
 dated them to the rtraoft of their wifhes. He 
 divided the citizens into four clafTes, according 
 to the meafure of their weahh. To the three 
 firft, (the richer citizens,) belonged the offices 
 of the commonwealth. The fourth, (the 
 poorer clafs,) more numerous than all the other 
 three, had an equal right of fufFrage with 
 them, in the. public aflfembly, where all laws 
 were framed, and meafures of ftate were de- 
 creed. Confequently the weight of the latter 
 decided every queflion. 
 
 " To regulate, in fomc degree, the proceed- 
 ings of their aflemblies, and balance the weight 
 of the popular intereft, Solon inftituted a fenate 
 of 4C0 members, (after ,vards enlarged to 500 
 and 600,) with whom it was necefTary that 
 
 *< every 
 
• Vf* 
 
 (( 
 
 gOr. 
 
 <t 
 
 He 
 
 l-Kat- 
 
 ({ 
 
 the 
 
 • 
 
 « 
 
 tion 
 
 « 
 
 at- 
 
 *i 
 
 trv- 
 
 1 • 
 
 u 
 
 neir 
 
 It 
 
 
 n 
 
 ;ver, 
 
 1* 
 
 u 
 
 ices 
 
 u 
 
 [nor 
 
 <( 
 
 He 
 
 
 :ling 
 
 <c 
 
 tiree 
 
 l( 
 
 5ces 
 
 
 
 « 
 
 (the 
 
 i( 
 
 ther 
 
 ii 
 
 With 
 
 it 
 
 aws 
 
 <( 
 
 cle- 
 
 
 
 (( 
 
 itter 
 
 (( 
 
 1 
 
 « 
 
 eed- 
 
 t( 
 
 ight 
 
 i( 
 
 nate 
 
 (( 
 
 500 
 
 
 that 
 
 (( 
 
 THE GRECIAN LAW. n 
 
 every meafure fbould originate, before it be- 
 came the fuhjedt of difcuilion in the alTembly 
 of the people. 
 
 «* To the court of Areopagus he committed 
 the guardianfhip of the laws, and the power of 
 enforcing them, with the fupreme adminiftra- 
 tion of juftice. To this tribunal belonged, 
 likewife, the cuftody of the treafures of the 
 ftate, the care of religion, and a tutoral power 
 over all the youth of the republic. The num- 
 ber of its judges was various, at different 
 periods, and the moft immaculate purity of 
 character was eflcntial in that high office. 
 <' The authority of the Senate and Areopagus 
 impofed fome check on the popular aiTemblies ; 
 but, as thefe poflefled the uhimate right of de- 
 cifion, it was ever in the power of ambitious 
 demagogues to fway them to the word of 
 purpofes. Continual fadlions divided the peo- 
 ple, and corruption pervaded every department 
 of the ftate. Their public meafures, the refult 
 of the interefted fchemes of individuals, were 
 often equally abfurd as they were profligate. 
 Athens often faw her beft patriots, the wifeft 
 and moft virtuous of her citizens, ftiamefuUy 
 facrificed to the moft depraved and moft aban- 
 doned. 
 
 " The particular laws of the Athenian ftate 
 were more dcferving of encomium than its 
 
 ** form 
 
12 
 
 THE GRECIAN LAW. 
 
 *i 
 
 (C 
 
 *' form of government. The laws relating to 
 ♦f debtors were mild and equitable, as were thofe 
 *♦ which regulated the treatment of flaves. But 
 the vaflalage of women, or their abfolute fub- 
 jedlion to the control of their nc'ircft relation, 
 " approached near to a ftate of fervitude. The 
 *• propofer of a law, found on experience impo- 
 ?' litic, was liable to punishment ; an enactment 
 ** apparently rigorous, but probably ncceflary in a 
 *' popular government. 
 
 " One moft iniquitous and abfurd peculiarity 
 *' of the Athenian, and fome other governments 
 *' of Greece, was the practice of the oftracifm, 
 ** or a ballot of all the citizens, in which each 
 ♦' wrote down the name of the perlbn in his opi- 
 *« nion moft obnoxious to cenlurc ; and he v as 
 " thus marked out by the grcatcft number of voices, 
 *' and, though unimpeached of any crime, was 
 *' baniflied for ten years from his country. This 
 *' barbarous and diigraceful inftitution ever capa- 
 " hie of the groflril abufc, and generally fubfer- 
 *' vient to the worft of purpofes, has ftained the 
 charadler of Athens witli many flagrant in- 
 ftances of public ingratitude." A full account 
 of the laws of Athens may be found in ArchbiHiop 
 Potter's Archa^ologia Grxca, li. i. The frag- 
 ments of them were publiihcd by Pctitus, with 
 an excellent commentary. A fplcndid edition of 
 the work, with his own notes and thofc of 
 
 Paluicrius, 
 
 4C 
 
 *( 
 
THE GRECIAN LAW. 13 
 
 Palmerius, Salviniiis, and Duker, was publlflicd 
 by Weffeling, in 1742. 
 
 IV. 2. This may be confidercd a fuccln(5l view 
 of the conlHtution of Athens, as it was efta- 
 bliQied by Solon. The following is a fhort ac- 
 count of their Forcnjic Prcccedhigs in tlic civil 
 adminiftration of juftice. 
 
 All cafes, refpefting the rights of things, be- 
 longed to the jurildidion of the Archon: he had 
 lix inferior magiftrates, of the fame name for 
 his aflcflbrs. The perfon who fought rcdrcfs in 
 a court of juftice, denounced the name (;f his ad- 
 verfary, and the caufe of his complaint to thn 
 fitting magiftrate ; and, if the fitting mngiftrau^ 
 thought the caufe of adlion maintainable, he per- 
 mitted the complainant to fummon the defendant : 
 if the defendant difobcycd the fummons, he was 
 declared infamous ; if he obeyed it, the parties 
 were confronted, and were at liberty ti) interrogate 
 one another. If the magiftrate thuu'jht thcrt^ 
 was a probable caufe of action, lie admitted the 
 caufe into court ; here the pleadings began, and 
 were continued till the parties came to foniefat^l, 
 or fome point of law, afferted on one lid', ar.d 
 denied by the other; tiiia brought ih'nn to illiic : 
 then, all the pleadings and evidence in the caulcs 
 were fliut up in a vclfel, which was carried into 
 Lourt. Tiie Arclion then adigncd the judges to 
 fry the caufe, and they decided not only uptJii th« 
 fuL% but upon the law of the calV. 
 
 Oils 
 
14 THE GRECIAN LAW. 
 
 One mode of procefs in ufe at Athens, bears a 
 refemblance to the modem pradlice of irying the 
 title to the freehold by ejedlment. That, in its 
 original ftate, was an adlion brought by a leflee 
 for years, to repair the injury done him by difpof- 
 fefling him of his term. To make it ferve as a 
 legal procefs for recovering the freehold, the law 
 now fuppofes, that the party difpoflcfled has en- 
 tered on the land ; that he has executed a leafe of 
 it ; and that his leffee has been difpoffefled : for 
 this injury, the leflee brings his a£lion of eje6l- 
 ment to recover the term granted by the leafe : 
 how, to maintain his title to the leafe, he mull 
 ihew a good title in his leflbr ; and thus inciden- 
 tally and collaterally the title to the freehold is 
 brought before the court. In the jurifprudence of 
 Athens, the guardian and ward were fo far iden- 
 tified, that the latter could not maintain an action 
 againft the former \ fo that, for any injury done 
 to his property, the ward, during the term of 
 pupilage, was without remedy. For his relief, 
 the law authorized the Archon to fuppofe a leafe 
 had been executed by the ward to a flranger; 
 then, the ftranger, a kind of next friend, was to 
 bring his adtion againft the guardian, for the in- 
 jury done to his property during the term ; and, 
 if he recovered, he became truftee of what he 
 recovered for the ward. I'hus, in each cafe, a 
 fictitious leafe was ufed as a legal procefs for 
 bringing the real merits of the cafe to trial 
 
 I Sir 
 
. THE GRECIAN LAW. 15 
 
 Sir Matthew Hale, in his Hiftory of the Com- Before 
 jnon Law, and Sir William Jones, in the Notes * * 
 to his tranflation of Ifseus, make particular men- 
 tion of ihe law of fucceflion at Athens. It is 
 obfervable, that, though a general equality of 
 property was one of the principal objei^s of 
 Lycurgus's legifiation, he affigned to the eldeft 
 fon almoft the whole of his parent's property, 
 with an obligation 0^ providing for his fifters and 
 younger brothers. 
 
 V. 
 
 Sir 
 
 WITH the death of Solon, the rsra of Gre- 
 cian legiflation finilhes, and the asra of her military 
 glory begins. But, early in this brilliant period 400 
 of her hiftory, THE DECLINE OF THE 
 LAWS OF ATHENS AND LACED^- 
 MON is difcernible. 
 
 With refpedl to Athens^ it has been mentioned, 
 that, by the laws of Solon, the loweft clafs of 
 citizens had been excluded from offices of ftate. 
 Thefe, on the motion of Themiftoclcs, were 
 opened to them : this leffened the general dignity 
 of the magiftrature, and introduced venality and 
 diforder into every department of the adminiftra- 
 tion. Here, however, the mifchief did not reft. 
 As the poor were under a neccftity of giving 
 almoft the wliole of their time to the labour, 
 on whic!i tlieir daily fuftenance depended, ihey 
 
 had 
 
i6 
 
 THE GRECIAN LAW. 
 
 had fcarcely any opportunity of attending the Before 
 public affemblies of the people ; but, on the mo- "'^• 
 lion of Pericles, every Athenian, who aflifted at 
 a jHiblic aflcmbly, received three oboli for his 
 attendance : this increafed the tumult and corrup- 
 tion of the public aflemblies: and this was not 
 the only inftance in which Pericles facriticed 
 much of Solon's law to the caprice of the 
 people. 
 
 In refpedl to Loccdcsmcn, the vidlories ot 
 Lyfander and Agefilaiis carried the Spartans 
 into foreign countries, and brought the wealth of 
 foreign countries into Sparta. The corifequence 
 wa?, that what the Lacedaemonians gained by 
 their military fucceffes, they loll: in confequence 
 of the decline, which thofc very fupcefTes occa- 
 iloncd, of the principles and habits of heroic 
 virtue, which the legiilation of Lyrurgus had 
 inculcated among them, and which had made 
 them the wonder of Greece. 
 
 Infcnfibly the glury of Athens and Lacedasmon 
 expired. At the battles of LcuiSlra and Manti- 
 naea, they received a check, from which they 
 never recovered. 
 
 At the battle of Chcrotuea, king Philip of 3^^y 
 Macedon obtained a complece triumph over the 
 Athenians ; and, by degree:;, the laws of Solon 
 fell into difufe. 
 
 By the direction c/f Antipater, t© whom the 
 general fupcrintcndcuce oi the aifuirs of Greece 
 
 was 
 
the Befcrj 
 
 i at 
 
 his 
 lup- 
 
 not 
 iced 
 
 the 
 
 > of 
 rtans 
 thof 
 eiice 
 I by 
 lence 
 pcca- 
 ercic 
 had 
 nade 
 
 imon 
 anti- 
 |they 
 
 of 33'/ 
 the 
 lolon 
 
 the 
 
 leccf; 
 Uvas 
 
 THE GRECIAN LAW. ly 
 
 was committed by Alexander the Great, when he Before 
 fet out on his expedition to Perfia, they were re-^'"'^* 
 ftored, with fomc modifications, by Demetrius 
 Phalareus, and continued in that flate, while 
 Greece was fubject to Alexander's fucceffors. - 280 
 
 When the Romans conquered Greece, they 
 allowed to the different dates the ufe of their laws ; 
 infenfibly the Romans acquired a tafte for the arts 
 and literature of Greece, and this particularly 
 recommended the Athenians to thern. 
 
 On a complaint by the Athenians, that too After 
 many changes had been made in the laws of^'^*^''** 
 Solon, the Emperor Adrian accepted the office of 
 Archon, and reftored the ancient law. 
 
 The Emperor Conftantine was not fo favour- 
 able to the Athienians ; — in the Emperor Julian, 
 they had a zealous friend. 
 
 By an edldl of the Emperor Juftiuian, the 
 fchools of Athens were (hut up : this is generally 
 affigned as the aera of the extinction of Paganifm, 
 and of the abfolute decline of the philofophy and 
 jurifprudence of Athens. - - - 
 
 With the hiftory of the decline of the Laws of 
 Lycurgus, we are lefs acquainted. Though in a 
 ftate of decay, their appearance was venerable 
 in the time of Poly bi us : perhaps they fuffered 
 lefs than the Laws of Athens, during the Mace- 
 donian influence in Greece ; and probably they 
 engaged lefs of the attention of the Romans; but 
 
 C w« 
 
 ©^" 
 
 130 
 
 - 360 
 
 - 529 
 
 ,t' 
 
!« THE GRECIAN LAW. 
 
 we have no reafon to fuppofe they long furvivet* Aiitt 
 the Athenian Law. ' ^^''*' 
 
 On the divifion of the empire between the 
 fons of Thcodofius, Greece was allotted to the 
 Emperor of the Eaft : it fuffercd much from the 395 
 jncurfions of tlie Goths under Alaric. . ; > ' 
 
 In the twelfth century, the emperor Manuel i iw 
 divided Peloponnefus between his feven fons : 
 before this time, from the refemblancc of its 
 Ihape to that of a mulberry tree, called Morea 
 in Greek, and Morus in Latin, it had received 
 the appellation of The Morea. Tn the next cen- ncc i 
 tury, when Conftantinople was taken by the 
 Weftern Princes, the maritime cities of Pelopon- 
 nefus, with moft of the iflands, fubmitted to the 
 Venetians. In the fifteenth century, the whole ij^(/. 
 Morea fell an eafy prey to Mahomet II., after Ills 
 conqueft of Conftantinople. Towards the clofe 
 of the fevehteenth century, the Ottomans were 
 expelled from it by the Venetians, and it was 
 formally ceded to them by the Porte, at the treaty 
 of Carlov.'itz: but, about fifteen years afterwardg, l^'^;^ 
 it was regained by the Porte, and now forms ;i 
 part of their empire, under the app-^llation of the 
 Beglergbeg of Greece. It is governed by a mi- 
 litary officer, called a Sangiac, who refidcs ut 
 Modon. ^ ' -1 ■■'■ ■. -T'.' . ■:■■■' ft '' 
 
 Such hive been the rife, progrefs, and decline 
 of the Laws of Greece. 
 
 The 
 
TfiE GRECIAN LAW. ig 
 
 The great influence of the Roman Law on the 
 jurifprudence of modern nations is lirikingly dif- 
 ccrnible, in every part of their lawsr—if it be 
 true, that Rome derived her law from the Athe- 
 nian code, the « Gra^cia capta ferum vidorem 
 ccpit," IS as applicable to the legiflation as it is to 
 the arts of Greece*. 
 
 ♦ This article is principally extraaed from Uih £mi 
 mus's Fetus Graciallluftrata, i'voLivo., the beft geogra- 
 f hical account of Greece, which has yet appeared , from 
 Archbijbop Potter's Antiquities of Greece, a work of great 
 learning, homBruning's Compendium Antiquitatum Oraca- 
 rumi Francofurti ad Manum, i W. %<vo. 1735, an ufeful 
 abridgment of the Archbifliop's work, from various 
 trcatifes of Meurfius, particularly his Themis Attica | from 
 Mr. Mitford's and Do£Ior Gillieis Hijiories of Greece i and 
 fri,m Sir mUiam Jones" s Tranf.ation of Ifaus, a lafting 
 /Monument of his induftry, and his wonderful quicknefs 
 in the acquifition of accurate and extenCve knowledge, even 
 of the abftrufeft kind. , 
 
 C3 
 
[ 20 ] 
 
 THE ROMAN LAW. 
 
 ■..:r 
 
 t 
 
 THOSE, who wlfli to trace the ROMAN 
 LAW to its origin, almoft immediately find 
 themfelves obliged to form an opinion on a point 
 which has been the fubjed: of much difcuffion, 
 and a dccifion upon which is not very eafy, t/ie 
 degree of credit due to the hijioricsy which have 
 reached W5, of the five firfl ages of Rome. The 
 credibility of them was ingenioufly attacked by 
 M. de Pouilly, and as ingeniouily defended by 
 L'Abbe de Salier, in their differtations on this 
 fubjedl, in tlie Memoires de TAcademie. In his 
 difcourfes, Siir I'incertitude des cinq premiers 
 iiedcs de I'hiftoire Romaine, M. de Beaufort 
 feems to have determined the queftion. By a 
 variety of arguments, drawn from the fcantincfs 
 of the materials, from which thefe hiflories ap- 
 pear to have been framed, from the romantic 
 nature of feveral of the exploits recorded in them, 
 tlie improbability of many, and evident falfehoocl 
 
 oi 
 
by 
 by 
 
 THEROMANLAW. xi 
 
 of Tome of their relations, and from the contja^. 
 ilidlions and abfurdities, with which they fre- 
 quently abound, he (hews that, at leall, where 
 they defcend into particulars, they fhould be read 
 with a confiderable degree of diftrurt. What 
 they mention of the populoufnefs of Rome, 
 which, before the end of her fecond century, 
 contained, by their accounts, 500,000 perfons, 
 appears incredible : but a fmaller number would 
 not have fufficed to conftruft the public works, 
 with which, even then, Rome abounded. This 
 circumftance has ftruck fome modern writers fo 
 forcibly, that, to account for it, they have fup- 
 pofed, that Rome was raifed on the ruins of a 
 city, which, though now wholly forgotten, was 
 once populous and magnificent, and the feat of a 
 powerful empire. In purfuing this refearch, fome 
 have found fuch an empire among the Hetrufcan^. 
 Wjth the particulars of the hiftory of that peoplft, 
 we are little acquainted ; but we have certain in- 
 formation*, that, long befoie the sera of the foun- 
 
 • See the Appendix to the ancient Univetfal Hiftory, 
 vol. 18. p. 187., and MafFei's Verona Illuftrata, b. i. The 
 expreffion of Livy, b, i. c. a., is very ftrong, *« Tanta 
 •' opibus Etruria, iit jam ron terras folDm, fed mar* 
 " etlan» pei* totam Ilah'ae longitudinem, ab Alpiinis ad 
 " fretum Siculum, fami nominis fui impleffet." On the 
 other hand, the filence of Herodotus may be thought a 
 itrong argument againft the cxiftence of fuch a city in his 
 time. 
 
 c3 
 
 dation 
 
2i THE ROMAN LAW. 
 
 dation of Rome, they were a flouriftiing Hate, 
 excellent in arts and arms. 
 
 THE firft objea in the fiudy of the Ro- 
 man Law, is to obtain an accurate view of the 
 LIMITS OF THE COUNTRIES, in which 
 it prevailed, before the difmemberment of the 
 empire. They may be divided into Italy, the 
 conquefts of the Romans in the other parts of 
 Europe, and their conquefts out of Europe. 
 
 II. I. Italy lies 7. 19. Eaft long., and 38. 47. 
 North lat. : the Alps divide its northern part from 
 France, Switzerland and Gei many ; on every 
 other fide, it is waflhed by the Mediterranean. Its 
 natural feparation is into its northern, central, and 
 fouthern divifions. Its northern divilion con- 
 tains the modern Lombardy and the territories of 
 "Venice and Genoa, and reaches on every fide to 
 the Alps, frpm a line which may be fuppofed to 
 be drawn from the Rubicon on the eaffeern, to the 
 .Macra on the weftern fide of Italy*. 
 
 Its central divifion extends from thp Rubicon to 
 the Trento, near the Fortori, on the eaftern fca, 
 and from the Macra to the Silaro, on the weftern ; 
 and comprifes Etruria, Umbria. Picenum, Sabinia, 
 j|l#atium, Lavinium, and Campania, or Tufcany, 
 
 * See Appendix; Note III. 
 
 %* 
 
THE ROMAN LAW. 23 
 
 the EcclefiaJlical State, and the territory of Na- 
 ples : its fouthcrn part contains the remainder of 
 Italy, the Marfi, the Samnites, the Apulians, and 
 the Lucantans. Before the Roman conquefts of 
 it, the northern divifion of Italy had been occu- 
 pied by a colony of Gauls : on that account, it 
 was known to the Romans, by the name of Gallia 
 Cifabina ; and, from its being interfe<5ted by the 
 Po, tile northern divifion, made by that river, 
 was called by them the Tranfpadanan, the 
 fouthern was called the Cifpadanan Gaul. The 
 fouthern part of Italy was peopled by colonies 
 from Greece ; on that account it was called 
 Magna Graecia, by the Romans:— the part be- 
 tween Gallia Cifalpina and Magna Graecia, was 
 called Italia Propria, or Italy Proper. The part 
 of the Mediterranean, on the eaftern fide of the 
 pcninfula, was called the Higher, and afterwards 
 the Hadriatic Sea ; the part on its wefteni fide, 
 was called the Lower or Tyrrhenean Sea. 
 
 With refpedt to its Ancient State, it is proba- 
 ble, that the grcatefl; part of Italy was in poflcfTion 
 of the Hetrufcaiis, wlicn, about the year 964 
 before Chrift, Evander ai rived in Latium, and 
 built a fmall town called Palantium- It is fup- 
 pofed, that Latinus reigned there, about the 
 time of the Trojan war; that, in his reign, ilineas 
 landed in Italy, married Lavinia his daughter, and 
 built Lavinium ; that Afcanius, the fon of ^^neas, 
 built Alba ; that Romulus delccnded from him, 
 
 c 4 and 
 
24 THEROMANLAW. 
 
 and laid the foundation pf Rome, 753 years before 
 Chrift. - -. •■ ' •■ •- 
 
 The monarchical government of Rome fubfifted 
 about 250 years ; during the whole of this time, 
 Rome was engaged in war with her neighbours ; 
 and perhaps the utmoft extent of her conqueils did 
 not exceed a circumference of fifteen miles. In 
 the next 250 years, the Romans conquered the 
 remaining part of Italy, from the Alps to its 
 fouthern extremity : then the conflict betv/een her 
 and Carthage commenced. From the deftru<Stion 
 of Carthage, the a'^a of her foreign conquefts may 
 be dated ; in the reign of Auguftus, they reached 
 the Adantic,, on the weft ; tlic Euphrates, on the 
 cafl: ; the Rhine and the Danube, on the north ; 
 and Mount Atlas and the CataracSts of the Nile, 
 on the fouth : under Domitian, they w^ere carried 
 to the Frith of Forth and the Clyde ; and, under 
 Trajan, over the Danube into Dacia ; and over 
 the Euphrates, into Mefopotamia and Armenia. 
 
 II. 2. The European part of this f pad ous conqucji 
 contained Hifpania, or the kingdoms of Spain and 
 Portugal : Gaul, which comprifed the whole 
 country between the Pyrenees, the Ocean, the 
 Rhine, and the Alps, or the prefer!; icritory of 
 France, with the addition of Swit»«.:j-«':l: Bri- 
 tannia, which comprifed all England, Wales, 
 and the lowland parts of Scotland, up to the Frith 
 of Forth and the Clyde: the Rhoetian and Vin- 
 dclician provinces, which nearly comprifed the 
 ^. f Grifons, 
 
THEllOMANLAW. 25 
 
 Grifons, the Tyrolefc, and a part of Bavaria : the 
 Norican, Pannonian and Dalmatian provinces, 
 \vhich, under the general name of lUyricuro, 
 filled the country between the Danube ?,nd the 
 Hadriatic, up to ancient Greece : Moefia, which 
 comprifed Servia and Bulgaria : and Dacia, 
 which comprifed Temefvvar and Tranfylvania, 
 the only part of the Roman territory beyond the 
 Danube; and Thrace, Macedonia, and Greece, 
 the Roumelia of the Turks. 
 
 II. 3. The Roman conqurjis out of Europe 
 reached over Minor Afui, Syria, Phenicia, and 
 Paleflinc \ over ^Egypt, as far as Syene ; and 
 over the whole nortlicrn frontier of Africa. I 
 fJiould be added, that the countries on the 
 northern fliores of the Euxinc, from the Danube 
 on the weft to Trebizond on the eaft, were tri- 
 butary to the Romans, received their kings from 
 Rome, and had Roman garrifons*. ' 
 
 III. 
 
 of 
 
 THESE were the limits of the Roman empire ; 
 her fubje^ls may be claifed under tne following 
 divifions. 
 
 • This article is chiefly extr;i£lcil fiom the fccond chapter 
 of the fiift volume of Mr, Gibbon's hiftory ; the geof,raphy 
 of that work is imqucHionably entitled to the higheft 
 pinii'o* 
 
 III. I. The 
 
^i THE ROMAN LAW. 
 
 III. 1. The highcft clafs of fubjc<5ls was that 
 of Roman citizens, or thofc who had the Jiu 
 Civitatis. ^-■^' •.■••.-•. ..'-..>.,.- .,m .. w . 
 
 At a diftance of about fourteen miles from the 
 fea» the city of Rome ftands on a clufter of fmall 
 hills, contiguous to each other, rifmg out of an 
 extenfivc plain, waihed by the Tiber. At firft, it 
 was conhned to the Palatine Hill : the Capitol 
 was added to it by Titus Taiius; the Quirinal, by 
 Numa; the Celian, by TuUus Hoftilius; th« 
 Aventine, by Ancus Martius; and the Viminal 
 and Efquinal by Servius TuUius. The city wac 
 furrounded by a wall ; a flip of ground, on each 
 fide of it, was called tlie Pom^erium ; tlie wallb 
 and Pomserium were facred: whoever extended 
 the limits of the empire, had a right to extend 
 the walls of the city : its laft and grcateft cxtcn- 
 fi.on, was in the time of the Emperor Aurclian: 
 he inclofcd the Mons Pincius and Campps Mar- 
 tius within its walls. In 850, Pope Leo added 
 to it the Mons Vaticanus. At firfl:, it was divided 
 into four diftridls or regions; Augufliis divided 
 them into fourteen ; modern Rome is divided into 
 the fame number ; but the fites of the ancient 
 and modern diftrids or region?, confiderably 
 differ. 
 
 At firft, all who fixed their refidcnce in any 
 part of the Roman territory, had the Jus Civitatiji, 
 or the rights of Roman citizens : afterwards, the 
 Jus Civiutis was conferred on few, and generally 
 v'' ■ .: ! .■:' witlj 
 
THEROMANLAW. tf 
 
 with limitations; in the courfe of time, it was 
 granted to all of the Latjn name. After the c« '11 
 war, it was conferred on all the inhabitants of 
 Italy, fouth of the Rubicon and Lucca : then it 
 was granted to the Cifalpine Gaul, wliich, from 
 this circumftancc was called Gallia Togata : finnU 
 ]y, Caracalla communicated it to all the inliabi- 
 tants of the Roman world. . • 
 
 " The Jus Civitatis conferred on thofe, who 
 pofleffed it, the public rights attending the ccnfus, 
 or the right of being enrolled in the cenfors' 
 books; the Militia, or the right of ferving in the 
 army ; the Tributa, or the right of taxatir)n ; the 
 SnfFragium, or the right of voting in the difTcrent 
 afTemblies of the people ; the Honores, or the 
 right of bearing the public offices of tlic (late ; 
 and the Sacra, or a right to participate in the 
 facred rights of the city : it conferred on them the 
 private rights of liberty, family, marriage, paren- 
 tal authority, legal property, making a will, fuc- 
 ceeding to an inheritance, and tutelage or ward- 
 ship. 
 
 The citizens of Rome were divided into 
 Patricians or nohles, and Plebeians or inferior 
 perfons, and the middle order, called the Kquites. 
 At an immeafurable diftancc beneath the V\e- 
 beians, were the flaves : their inaftcr!} miglit fct 
 them free, they were then called freed-men ; but, 
 even after they were fet free, their mailers retained 
 (pme rights over them. • 
 
 The 
 
28 
 
 THE ROMAN LAW. 
 
 The Romans were divided into gentes or clans j 
 their clans into families; their families into indi- 
 viduals. Each individual Iiad a praenomen, by 
 ■which he was diftinguilhed from others; a nomen, 
 which denoted his clan ; and a cognomen, which 
 denoted his family ; fometimes an agnomen was 
 added, to denote the branch of the family to which 
 he belonged. Thus, in refpetSt to Aulus Virgi- 
 nius Tricoftus Coelimontanug,— -Aulus, the prae- 
 nomen, denoted the individual; Virginias, the 
 iiomen gentilitium, denoted that he was of the 
 Virginian clan; Tricoftus, the cognomen, de- 
 rated, that he was of the Tricoftan family of 
 that clan ; and Ca:limontanus, the agnomen, 
 denoted, that he was of the Coelimontan branch 
 of ti 'It family: fornedmes a further name was 
 acquired, as Cuii6lator by Fabius, and Africanus 
 by Scipio, in confcqucnce of an illuftrious deed. 
 
 III. 2. Next to the Citizens of Rome, were 
 the Latins, or thofe vvlio had the Jus Latii. An- 
 cient Latiuai contained the Albani, Rutuli, an4 
 yE(iui ; it was afterwards extended to the Ofci, 
 Aufoncs, and Volfci : the difference between ' ". 
 right of the city and the right of Latium is not 
 precifcly af(crtained: the principal privilege of 
 the Latins Iccms to have been, the ufe of their 
 own laws, and their not being fubjedt to the 
 cdi6ts of the Praetor; and that they had occafional 
 accefs to the freedom of Rome, and a participa- 
 tion in her facred rites. 
 
 in. r*. The 
 
III. 3- 
 
 THE ROMAN LAW. 39 
 
 The Italians, or thofe who had the Jus 
 Jtalicumy followed. AH the country, except Latium, 
 between the Tuican and Hadriatic feas, to the 
 rivers Rubicon and Macra, was, in this fenfe of 
 the word, called Italy: the Italians had not accefs 
 to the freedom of Rome, and did not participate 
 in her facred rites; in other refpedts, tlicy were 
 nearly on a footing with tlie Latins. 
 
 III. 4. Thofe countries were called Provinces, 
 which the Romans had conquered, or, in any 
 other way, reduced to their power, and which 
 were governed by magift rates, fent from Rome. 
 The foreign towns, which obtained the right of 
 Roman citizens, were called Alimidpia. The 
 cities or lands, which the Romans were fent to 
 inhabit, w ve called Colonia \ fome confided of 
 Citizens, fome of Latins, and fome of Italians, 
 and had therefore different rights. 
 
 Trafcilura:^ were conquered towns, governed 
 by an officer called a Praefe^l:, who was chofen in 
 fome inftances by the people, in others by the 
 Pnetors. 
 
 Civ'itatcs Foedcrnta\ were towns in alliance 
 with Rome, and confidered to be free. All who 
 were not Citizens, Latins, or- Italians, were called 
 Percgrifn or forei2,ners ; they cnj'.)yed none of the 
 privileges (jI CitiiCiis, Latins, or Italians-'. 
 
 * Tliis article is exti;icr\:J From the fiift Appendix to Hei- 
 tieccius^s Antiquitation Hn/.^ri^rim Syvtngn:a\ and Gra- 
 'vina's ivcrk, De Ortu, et fro^rej/'u Juris Civilis, and his Liber 
 
 JiKguLvif 
 
3f> 
 
 THE ROMAN lAW. 
 
 IV. 
 
 SUCH were the limits of the Roman empire, 
 and the different clafles of Roman fubjedh; — with 
 rdpca to its GOVERNMENT- AND FORxM 
 OF LEGISLATION. 
 
 tlie ROMAN LAW, in the mod extenfive 
 import of thofe words, denotes the fyilem of 
 jurifprudence, by which the Roman empire was 
 governed, from its firft foundation by Romulus, to 
 its final fubverfion in the E^ft, in confequence 
 of the taking of Conflantincple by Maliomet If. 
 THE CIVIL LAW denotes that part of the 
 Roman Law, which confifts of the body of law, 
 compiled by the orders of the Emperor Juftinian, 
 and of the laws, fubi'cquently ena(Sled by him, 
 and called his Novells. 
 
 'i'he writers on the Hiftory of the Roman 
 Law, generally divide it into three ^ras, — the 
 Jurirprudcntia Antlqua, Media, and Nova. The 
 firft commences wiih the foundation of Rome, 
 and extends to the ;era of the twelve tables ; the 
 
 Jliignluris de Romano Impeno .- It will be found difficult 
 to iiitT.tion many vork'-, which a piriilical lawyer, who 
 
 . wiflics to iilieve his ir.Ind from his ,>i fViilonal labours by 
 the peiulnl of a work of tille, on a I'uhjctl connefled with 
 thciii, will read with fo mucli ple;il'uie as thefe tinee 
 U\;:»ti.t;s : and frou) Spanheini's Orbis Roffianus. 
 
 fecond 
 
THE ROMAN LAW. 31 
 
 fccond extends to the reign of the emperor 
 Adrian ; the third to the reign of the emperor 
 Juftinian. - 
 
 IV» 1. Js it was conjl'ituted by Romulus^ the 
 Roman government confifted of an ele6live King ; 
 a Senate or Council, firft of one hundred, and af- 
 terwards of two hundred nobles ; and a general 
 affembly of the people. The command of tlfie 
 army, the adminlftration of juftice, the fuperin- 
 tendence of religious concerns, with the office of 
 high prieft, belonged to the King ; the Senate de- 
 liberated on all public bufmefs, and prepared it 
 for the people ; to them the right of final deter- 
 mination upon it belonged. The number of 
 Senators was fucceflively increafed, to three hun- 
 dred, by Tarquinius Prifcus ; to fix hundred by 
 Sylla; to nine hundred by Julius Caefar; Auguftus 
 reduced it to fix hundred. That, during the mo- 
 narchy, the King had the right of appointing the 
 Senators, is clear : how tiicy were chofen daring 
 the aera of the republic, has been the fubjedl of 
 much difpute : fome, with M. de Vertot, M. de 
 Beaufort, and Lord Hervey, contend that, as the 
 Confuls fuccecded to the royal power, they en- 
 ■ioyed tlic royal prerogative of filling up the Senate, 
 till the creation of the Ccnfors, to whom it then 
 devolved ; others contend, with Dr. Middleton, 
 and Dr. Chapman, that the Kings, Confuls, and 
 Cenfors, only ailed in thefe elections, minifte- 
 iiallv and fubordinatcly to the fuprerae will of the 
 
 people ; 
 
|S THEROMANLAW. 
 
 people ; with whom the proper and abfolute 
 power of creating Senators always reiided. 
 
 The people were divided by Romulus into three 
 Tribes, and each triba into three Curise. Their 
 public affemblics were called the Comltia Curiata : 
 every member had an equal right of voting at 
 rliem ; and the votes were reckoned by the head. 
 Thus, the iffue of all deliberations depended on 
 tlie poor, as they formed the moft numerous por- 
 lion of the community. To remedy this, Servius 
 Tullius, the lixth King, divided the people into fix 
 tlaircs, according to a valuation of their eftates, 
 and then fubdividcd the claffcs into an hundred 
 and ninety-three centuries, and threw ninety* 
 eight of the centuries into the firfl clafs; twenty- 
 two, into the fccond ; twenty, into the third ; 
 twenty-two, into the fourth ; thirty, into the fifth ; 
 and the remaining part of the citizens into the 
 llxth. The firft clafs confifted of tlie richcft 
 citizens ; the otliers followed in a proportion of 
 wealth ; the llxth confifted wholly of the pooreft 
 citizens. Each century, except the lad, was 
 obliged to furnlfli an hundred men in the time of 
 war; the fixth was exempt from all taxes; and, 
 to compenfate this privilege to the rich, Serving 
 cna6\ed that, in the affembiies of the people, 
 they ihould no longer count the votes by head, 
 but by centuries, and that the firft century fliould 
 have the Hrft vote. This arrangement, while it 
 feemcd to give every citizen an equal right of 
 
 fuffrage. 
 
THE ROMAN LAW. 3I 
 
 Suffrage, as all voted in their refpedtivc centuries, 
 virtually gave the richer clafles the fole authority : 
 but it was generally acceptable, as it conferred 
 power on the rich, and immunity from taxes 
 and the other burthens of the ftate, on the poor. 
 Thefe aflemblies were called the Comltia Centuriata. 
 Vox feme purpofes, however, particularly for the 
 choice of inferior magiftrates, and, in the time of 
 the republic, for veiling rriililary power in the 
 Didator, the Confuls, and the Prxtors, the 
 Comitia Curiata continued necelTary. 
 
 On the expulfion of the laft Tarquin, thi Se- 
 nate feems to have been permitted to retain, for 
 feme time, the conftitutional power, under the 
 regal ftate, of the menarchs whom they had 
 dethroned: and to have ufed all means 'within 
 tlieir reach to fecure to them the enjoyment of 
 It. Duririg this period, the form of Roman 
 l^giflation appears to have been, id, that the 
 Senate fhould convene the Aflembly, whether 
 of Curiae, or Centuriae; idly, that ttie Conful 
 diould propound to them the matter to be dif- 
 cuflcd ; 3dly, that the Augur fhould obfervc the 
 omens, and declare whether they were favourable 
 or unfavourable; — in the laft cafe the affcmbly was 
 dilTolvcd; 4thly, that the affembly fliould vote; 
 5thly, that the Conful (hould report the refolution 
 of the people to the Senate ; and, 6thly, that the 
 Senate fliould confirm or reject it. 
 
 JV. a. Thefe were the rights gf the Confuls, 
 
 D the 
 
X ' 
 
 m 
 
 THE ROMAN LAW. 
 
 the Senate, and the people, at the comniencemenf 
 of the republic ; fever al alter at'iam fucctjjively took 
 place^ ip favour of the people, at the expeiice of 
 the Confuls and the Senate. ., 
 
 , With refpefl to the Confuls^ their dignity and 
 power were, by degrees, parcelled out among 
 various magiftrates : thus their power of deciding 
 in civil matters was affigned to the Praetors; 
 their power of fetting criminal profecutions on 
 foot was affigned to the Queftors ; their care of 
 the police to the Ediles; their general fuperin- 
 tendence of morals and manners to the Cenfors. 
 After this, little more remained to the Confuls, 
 tjian their right to affemble the Senate, convene 
 the Comitia, and command the armies of the 
 republic. The Confuls and her magiftrates 
 were chofen by the people; ai tmt, their choice 
 was confined to the Patrician order : after much 
 con^eft, it was extended to the people. 
 
 The influence of the Patricians on the delibe* 
 riations of the Comitia Centuriata was foon 
 thought a grievance by the people : hence, upon 
 every occaHon which offered, they endeavoured 
 to bring the bufmefs before the Comitia Curiata : 
 but with this, they were not fatisned ; for, as a 
 patrician magiftrate only could prefide at the 
 Comitia Curiata, and before the aflembiy pro- 
 ceeded to bufinefs, the omens were to be con- 
 fulted, and none but Patricians were admitted to 
 the. rank of Augur, the Comitia Curiata, though 
 
 m 
 
THEROMANLAW. 3^ 
 
 1h a lefs degree than the Coraitia Centuriata, were 
 ftill fubjedl to Patrician influence. To make the 
 people entirely independent of the Patricians, at 
 their general aflcmblies, the Tribunes inlifted, 
 that the public deliberations Ihould be brought 
 before the aflemblies of the tribes, at which every 
 JiojTian citizen had an equal right to vote, and ac 
 which neither the pretence of a magiftrate, nor 
 the taking of the omens was eflential. To this, 
 the Senate and Patricians found it neceffary to 
 fubmit. At firft, they contended that they were 
 not bound by the laws pafled at theie alfeniblies, 
 but they were foon forced to acknowledge their 
 authority. Thefe aflcmblies were called thd 
 Comitia Tributa. 
 
 Some important privileges, however, ftill re- 
 rhained to the Senate : they had the direction of 
 all concerns of religion ; the appointment of am- 
 hafl*adors, of governors of the provinces, of the 
 generals and fuperior officers of the army, the 
 management of the treafury ; and, fpeaking gene- 
 rally, they had the direction of all the religious, 
 civil, and military concerns 6f the ftate, fubjcft 
 to the control of the people, and fubjedl alfo to 
 the control of any tribune of the people, who, 
 by his vcto^ might at any time prevent the re- 
 folution of the Senate from paffing into a decree : 
 but, when the people did not interfere, the Se- 
 tt atus-Confulta generally were obeyed; and it 
 feldom happened that, in matters of weight, th« 
 
 D 2 people 
 
THE ROMAN LAW. 
 
 people enabled a law, without the authority or' 
 the Senate. Thus the conftitutional language of 
 ancient Rome was, tliat the Senate Ihould de- 
 cree, and the People order. By the fcnators 
 themfelves, it was deemed an licinous olfence, 
 that any of their bodv» without their leave, 
 fhould propofe a meafure to the people ; but, in 
 the decline of the Republic, the ieading men of 
 Rome, and their creatures, paid no attention to 
 this notion, and frequently obtained from the 
 people, what they knew would be refufed them 
 by the Senate. The writings of Cicero abound 
 with complaints again ft this practice. The de- 
 termination of the people, at the Coniitia Cen- 
 turiata, Comitia Curiata, or Comitia Tributa, 
 was equally Icx^ or a law of the llate ; but when 
 it pafled in the Comitia Tributa, as it originated 
 with the people, it was called pl>ibil'iitum : the 
 decrees of the Senate, were called Scnatus-Coti' 
 falta. -.. • 
 
 IV. 3. The la7vs zvcre dijlinguijlicdi fometimes 
 by the name of the perfon who propofed them, 
 as the law ^Emilia : fometimes, by the names of 
 tihc Confuls, if they were propofed by both the 
 Confuls, as the lawPapia Poppnea : and fometimes, 
 a mention of the nature of the law was added, as 
 the Lex Fannia Suiijptuaria *. i 
 
 ;; ' ^ •»!;! . : ; . ,,. FOR 
 
 * See M. de Beaufort, La Republiqtte Romalne \ Paris, 
 1767, 6 Xi/7 ivo. Litters betijuten Lord Uervcj and Dr, 
 i *^ • MiJdltton 
 
«:lo 
 
 THE ROMAN LAW. 
 
 W 
 
 :6;n,»/ 
 
 .f %'i 
 
 Ui 
 
 V. 
 
 y:tr 
 
 
 FOR obtaining an exaft view of the Before ,Ann« 
 
 HISTORY OF THE ROMAN LAW, 
 it may be divided into nine periods, 
 fcverally beginning with the following 
 epochs i ift, the fcundatioR of Rome; 2d, 
 the Twelve Tables ; 3d, the abolition of the 
 Decemvirs ; 4th, the reign of Auguftus ; 
 5th, the reign of Hadrian ; 6ih, the reign 
 of Conftantine the Great; 7th, the reign of 
 Theodofius the Second: 8th, the reign of 
 Juftinian ; 9th, the reign of his fucceflbrs, 
 till the fall of the Empire of the Eaft ; and 
 lOth, the revival of the ftudy of the civil 
 law, in confequcnce of the difcovery of 
 the Pande6ls at Amalphi. A (hort view 
 fhould be had of the principal fchools ia 
 •'/ni( 1 tne civil law has been taught, and 
 a lliort account of its influence on the jurif- 
 prudcncc of the modem flatc? of Europe. 
 
 Chrift. 
 
 V. 
 
 I. 
 
 Urbi* 
 Cori" 
 ditae. 
 
 753 
 
 V. I. THE FIRST OF THESE 
 PERIODS contains the ftate of Roman 
 jurifprudcnce from the foundation of Rome, 
 till the a;ra of the Twelve 'I'ables. As 
 
 MidMeton concerning the Roman Senate \ lendon 1778, 4/0 
 find the iz, ^,3, {4, andis Chafttn of' Moritcjquim, I. ti. 
 
 D 3 Rome 
 
;38 THt ROMAN LAW. 
 
 Rome was a colony from Alba, it is pro- Before 
 bable that her laws originated in that city. ^ '^ 
 Several of them are adlually traced to her 
 firil kings ; particular mention is made of 
 laws enaifted by Romulus, Numa, and 
 Servius Publius. Hiftorians qifcribe to Ro- 
 mulus the primitive laws of the Romans, 
 lefpefting marriage, the power of th^ 
 father over his child, and the relation be- 
 tween patron and client: to Numa, their 
 primitive laws, refpe6ling property, reli- 
 gi )n, and intercourfe with foreign dates; 
 •to Servius TuUius, their primitive laws .re- 
 fpetSling contracts and obligations. It is 
 fnppofed that, in the reign of the laft of 
 thefe kings, a coUedlion of their laws was 
 promulgated by public authority. The 
 fcanty materials which have reached us, of 
 the regal jurifprudence of Rome, lead to a 
 conjeiSlure that the Romans had attained a 
 high degree of legiflative refinement before 
 the abolition of royaky. 
 
 Tarquin, the laft king of Rome, was ex- 
 pelled in - - - - ^oc 
 
 Not long before or after his expuHion, 
 a body of the Roman law, as it then ftood, 
 ,was colle£led byPapyvian, and from him 
 was called yus Civile Papyrimmm. Tl;e 
 .prefident TeraJTon, in his Hiftoire de la 
 Jutifprudence Romaine, .Pajfis, 1750, ir* 
 
 .. ' folio 
 
 Annq 
 Uibis 
 Con- 
 (lits. 
 
 245 
 
THE ROMAN LAW. 
 
 $9 
 
 Chfiil, 
 
 Urbis 
 Con- 
 
 ditse.. 
 
 folio, p. 22 — 73, profefles to reftore the BeforejAnna 
 original of this compilation, as far as the 
 materials, which have reached us, allow : 
 he has given us thirty-fix laws, fifteen 
 of them as original texts, twenty-one as 
 the fubftance or fenfe of texts which are 
 
 loft. , ' ' \"' ' ■' \ \,\ ■l, :''■', 
 
 ;. • - _- V.2. ■■ -^ '-'■■■■'-/■■ 
 
 THE SECOND PERIOD OF THE 
 HISTORY OF THE ROMAN LAW 
 is, the aera of the Twelve Tables. 
 
 During the firft half century which fol- 
 lowed the expulfion of the Tarquins, the 
 civil government of the Romans was in 
 great confufion : on their expulfion, mudi 
 of the ancient law was abrogated or fell 
 into difufe, and fome new laws were 
 ena6led by the Confuls. 
 
 The arbitrary and undefined power of the 
 Confuls in framing laws growing very 
 odious, tliree pcrfons were fent into Greece, 
 and probably to fome of the moft civilized 
 ftates of Magna Grajcia or Lower Italy, to 
 obtain copies of their laws and civil inftitu- 
 
 tions - - - - - 453 30^ 
 
 They returned in the third year after 
 their milfion. Ten perfons, called from 
 their number Decemvirs, were then ap- 
 j)oinicd to form a code of law for the go- 
 
 D 4 ' verpipeiit 
 
40 
 
 THB ROMAN lAW. 
 
 < '..■ 
 
 yernment of the ftate, both in private and Before 
 public concerns. This they effedled, and "^ ' 
 divided their code into ten di{lin<Si fables : 
 two were added to them in the following 
 year. They were a mixture of the jawj 
 of other nations, and of the old Roman 
 law, adapted to the adiual circumdances of 
 the ftate of the people - - - 451 
 
 They were infcribed on twelve tablets of 
 brafs; and, from that circumftancc, were 
 called the Laws of the Twelve Tables. 
 The twelve tablets were expofed to the 
 view of every perfon, in a public part of 
 the market place. In the fack of Rome, 
 by the Oanls, they perifhed : immediately 
 after the expulfion of the Gauls, they were 
 reftored, and the whole text of them vyas 
 extant in the time of Juftinian : fragments 
 only of them have reached us. Gothofrcd's 
 edition of thefe fragments, in his work in- 
 tituled Pontes Quatuor Jims Chilis y Geneva, 
 1653, in octavo, has obtained the univerfal 
 applaufe of the learned : the fragments uf 
 them have alfo been publilhed by the pre- 
 fident Teraffon; and Pothicr has infcrted 
 them in his Pandeftc Juftinianear, with an 
 interpretation, and an excellent commen- 
 tary. 
 
 The legiflative wifdom of the Twelve 
 Tables has been highly praifcd ; but it has 
 
 been 
 
 Anno 
 Urbis 
 Con. 
 dite. 
 
 Z^l 
 
THl^ ROMAN LAW. '41 
 
 been thought, in fome inftances, immoderately 
 fevere. Thus, in refpe<S to an inlolvcnt debtor- 
 after the debt \yas proved or admitted, they al- 
 lowed him thirty days to raife the money, or find 
 furety for the payment of it : at the end of the 
 thirty days, the law delivered him into the power 
 of his creditor, who rpight confine hjra for fixty 
 days in a private prifon, with a chain of fifteen 
 pounds weight, on a daily allowance of fifteen 
 pounds of rice : during the fixty days, he was to 
 be thrice expofed in the market place, to raife the 
 pompaflion of his countrymen: at the end of 
 lixty days, if he was fucd by a ftnglc creditor, 
 the creditor might fell him for a Have beyond 
 the Tyher; if he was fued by feveral, they might 
 put him to death, and divide his limbs among 
 them, according to the amount of tlicir feveral 
 debts. Nothing can be urged in i\<:((:n(:c of this 
 favage proviUon, if, as appears to be iis true con- 
 ftru6lion, the divifion, which it dircfls to be 
 made, is to be underftood literally of the body, 
 and not of the price of the dcbtoj- : but if, before 
 the Twelve Tables, an infolvent debtor became the 
 Have of the creditor,- f) that his liberty ami life 
 \vere immediately in the power of thccntditor.the 
 ultimate feverity of the proviilons of the 'i'wclve 
 Tables Ihould be afcribed to the harili fpirit of 
 the people, and the intermediate delays in lavnur 
 of tlie debtor fliould be afcribed to tho humane 
 policy of the Decemvirs. It may be added, that, 
 
 about 
 
,.42 THE ROMAN LAW. 
 
 about two hundred years afterwards, the Petllian 
 law provided that the goods, and not the body of 
 tlie cicbtor, fliould he liable to his creditor's de- 
 mands ; and, at a fubfcquent period, the Julian 
 law provided, in favour of the creditor, the Cefllo 
 Bonorum, by which the debtor, on making over 
 his property to his creditors, was wholly liberated 
 from their demands. Upon the whole, if we 
 confider tl\e ftate of fociety, for which the laws 
 of the I'welve Tables were formed, we fhall find 
 rcafou to admit both their wifdom and their hu- 
 manity. 
 
 'Ihc journey of the Decemtirs into Greece 
 has been qucftioned by M. Bonamy, Mem. de 
 r Academic, 12 vol. p. 27, 51, 75 ; and his doubts 
 have been adopted by Mr. Gibbon ; but the faft 
 is either related or alluded to by almoft every Ro- 
 man author, whofc works have come down to 
 us : and fomc writers have profefTed to track thf 
 jurifprudence of Greece, even in the Icgiflativc 
 provifions of the Piajtors, Confuls, and Em- 
 perors. 
 
 V-3- 
 
 V. I[\ proportion as Rome increafed in arms, 
 arts, and the number of her citizens, the infiif- 
 ficiency.of the laws of the Twelve Tables was 
 felt, and new laws were parted. This infenfiblv 
 produced, during the remaining part of the period 
 « ■ ■ ef 
 
of;^e rfpubliq, "whic^ ferws XHE "JTHIRD 
 PERIOD OF THE ^JSJ-OJ^J OF TH£ 
 ^HOM^^N ,LA,W, ,th4t iijjipenfe ^q^edlion ^f 
 ^la}.ys,,lSi^.V«:hi,ch.thepi.vil i^W» 3S th©,JiJ[ftiniancan 
 Jwdy^qfJaiW ,is^9i^.l,ed, w^s^^xtr^^SJqd, ,and which, 
 jpn^tl)^t 2^coi{nt,^4^rerves p^rtic\ilar c^niideration. 
 
 ,jt>'Vvas diyjded, Ijke^^he l^w pf.,(j.reece, intcxth^ 
 writtjsn .and,unvyrj:D:jp |a\v. The writjijen com- 
 ^relicijde^ the Leges, Plebifcita, and <Sen^u5- 
 Co^fulta, v^';l^i9h have been^meji^i^i^, 
 
 ,1 . Thejfirft, and qipft important bj-anch.of t^ 
 ^nwifitten law. of Rtjtme was.the yns Honqrfir'mjp, 
 the pvipcipal part of wj^ich was .the .^cfl^wn. 
 Pratoris. Dufing .the fegal goVjerijip.enl pf 
 Rooie, the adinlniftration of .jjuftice belonged 
 to jhe king : on the ellabiilhrnent of t^e ri?puj?l,ic, 
 ,it,.4^volvecl to the Confuls, and from t|iem^to lj[is 
 Prsetor. Af hrft, there was but one Praetor; af- 
 terwards, ; their number was increafedto two; the 
 Praetor Urbanus, who ad;niniftered,juftice amoi?g 
 citizens only ; and the Pr.Ttor Pcregrinus, who ad- 
 niinil^ered juftice between citizens and foreigners, 
 or , foreigners only: the number of Praetors w'.as 
 afterwards increafed, for the adnjinillration .of 
 juftice in the provinces and cclo^iies. Wlicn ll;e 
 PrcEtor entered on his office lie publithcd an edidl^ 
 or fy.fliem of rules, according to which . he.. pro- 
 feflcd to adminifter juftice for that year. Inoon- 
 (equence of Jiis oiten altering .his edici:s,..in tlie 
 ^QVrfc of die year, laws \yere pa{£ed,.. which. en- 
 
 joir.ci 
 
4+ THEROMANLAW. 
 
 joined him not to' deviate from the form, which 
 he (hould prefcribe to himfelf, at the beginning 
 of his office. All magillrates- who held the 
 offices, which were ranked among the honours of 
 the (late, had the fame right of publifhrng edicts ; 
 and, on this account, that branch of the law, 
 which was compofed of the edift of the Praetor, 
 and the edicts of thofe other magiftrates, m'es 
 called the Jus Honorarium : but the edi6ls of the 
 ]Praetor formed by far the mod important part of 
 this branch of the Roman law. Such were his 
 rank and authority ip Rome, and fuch the in- 
 fluence of his decifions on Roman jurifprudence, 
 that feveral writers on the Roman law mention 
 his edi<Sts in terms, which fcem to import that he 
 poflrcffed Icgiflative, as well as judicial power; 
 and make it diiTicult to defcribe with accuracy, 
 what is to be underAcod by the Praetor's edift. 
 Perhaps the followinr; remarks on this fuhjeft 
 will he found of ufe, and fliew an analogy be- 
 tween fonie parts of the law of which the hono- 
 rary l;iw of Rome was compofed, antl fome im- 
 portant branches of the law of England. — ill. 
 By the Praetor's edidl, as thofs words apply to 
 the fiibje£l now under confidevation, civilians do 
 not refer to a particular edl£l, but ufe the words 
 t6 denote that general body of law, to which the 
 cdi6ls of the Praetors gave rife. — 2dly. It is to 
 be obfcrved, that the legiflative adls of any flatc, 
 form a ^cry fmall proportion of its laws; a much 
 • ■ « greater 
 
THE ROMAN LAW. 4$ 
 
 greater proportion of them condfts of that ex- 
 planation of the general body of the national 
 jaw, which is to be colleiled from the decilions 
 of its courts of judicature, and which has, there- 
 fore, the appearance of being framed by the 
 courts. A confiderable part of the law, diftin- 
 guiflied by the name of the Praetor's edi£t, was 
 of the laft kind ; and, as it was a confecjuence of 
 his decifions, received the general name of his 
 law. In this refpe(5l, the legal policy of Eng- 
 land is not unlike that of Rome ; for, volumi- 
 nous as is the ftatute book of England, the mafs 
 of law it contains bears no proportion to that 
 which lies fcattered in the volumes of reports, 
 •which fill the ilielves of an EngUfli lawyer's 
 library : and perhaps it would be difficult to find, 
 in auy edi(£l of a Praetor, a more diredt contra- 
 dicfiiion of the edablifhed law of the land, than 
 the decifions of the Englifii judges, which, in 
 dire(5l oppofition to the fpirit and language of the 
 ftatute de donis, fupported the efFeil of common 
 recoveries in barring eftates tail. — 3dly. Expe- 
 rience fhcws, that the provifions of law, on ac- 
 count of tlie general terms, in which they are ex- 
 prefled, or tlie generality of the fubje6ls to which 
 they are applicable, iiave frequently an injurious' 
 operation in particular cafes, and that circum- 
 fiances frecpicntly arife, for which the law has 
 made no provifion. To remedy thefe inconveni- 
 ences, the court.^ of judlcatuic of moft countries, 
 
 which 
 
4^' TH'i KOUAlff LAS^. - 
 
 whicH haveattalmed a certain <tegr»B of poKt'KAl 
 rtfinemcht, KaVe afTum'ed to themfelves a righf 6f 
 adminiftcririg juftice in particular inflarices, by 
 certain equitatile principltisi which they think 
 more likely fb a'nlWer thd general ends of jnftice, 
 than a rigid adherence to law ; and, where law 
 IS filent, to fupply its defeats by provifions of 
 their owii. Thefe privileges were allowed the 
 Pr.rtor by the law of Rome; in virtue of them, 
 he pronounced decrees, the genei'al obje6l of 
 which had fometimes a corfe6live, a:nd fome- 
 time^ a fifppleiory operation on the fubfifting laws, ' 
 They were innovations ; hut it may be qiiei'- 
 tioned, whether any part of the Przetor's law 
 was a greater innovation on the fubfifting jurif- 
 prudcnce of the country, than the decifions of 
 Englifh courts of equity On the llatute of ufes 
 and the ftatute of frauds. — 4thly. The laws dp 
 every country allow its courts a conflderable de- 
 gree of power and difcrction in regulating the 
 forms of their proceedings, and carrying thcni 
 into efFefi ; further than this, the f'raetor's power 
 of puhlifhing an edifl, fignifying the rules by 
 v.'hich he intended the proceedings of his courts 
 Ihoulu be dircded, does not appear to have ex- 
 tended. — Thefe obfervations may ferve toer^plaiu 
 the nature of the Prator's juriidiction, and to 
 Ihew that the exercife of his judicial authority 
 was not fo extravagant or irregular as it has 
 fcnictinies been defcribcd *. ^ 
 
 * Sc^e Appendi;^, Note III. 
 
 2. A fccond 
 
T H E R O M A N L A \V. 4/ 
 
 2. A fecond fource of the unwritten law of 
 iconic was, tlie j^il'ioms Legis, and Solcmnes Lcgum 
 hrmulfiii or the Aiiions at Law, and Forms of 
 Fcfeiiiic proceedings, and of tranfadling lej^al 
 a(^b. Thefe, for ibme time, were kept a pro- 
 fl>nnd fecret by tlie Patricians ; but, Appius 
 Claudius having made a collection of them for 
 hit private ufe, it was puMidied by Cnaeus Fla- 
 viu8, liis fecretary. The Patricians then devifed 
 new forms, and thofe were made public bv Scxtus 
 /Eliu». '1 hcfc publications were called ilic Fla- 
 vian and i^lian Colleftions ; all we have of ihcm 
 Is to be found in Briffon's celebrated work, Dc 
 Formulls et Solemnibus Populi Romani Verbis. 
 
 3. A third fource of the unwritten law of 
 Rome was derived from the Difputat'ionn Fori^ 
 and the Rcfponja Prudentum, Mention has !)ccn 
 made of the relation introduced by Romu- 
 lus between patron and client ; — to give bis ' 
 client Icj^al advice was among the duties of tbii 
 patron; infcnfibly, it became a genera! pra£"tife, 
 that thofe, who wanted legal afllilaiicc, flioiiM 
 apply for it to the perfons of whofc legal fkili 
 they had the grcateft opinion, 'i'liis was tlic 
 origin of the Jurifconfuki or Civilians of Rome -, 
 they were, generally, of the Patrician order \ and, 
 from fuccecdii'.a: to this branch of the duty of 
 patronage, received the name cf patrons, while 
 thofe, by wliom tliey were confidted, were callcJ 
 tJicnts. The patrou received his client with a 
 
 f^lemnitv' 
 
 M 
 
 i 
 
^B THE ROMAN LAW. 
 
 folemnhy bordering on magifterial dignity ; aiid 
 generally delivered, in a few words, his opinion 
 on the cafe which was fubmitted to his conlide- 
 ration ; but he fometimes accompanied it with 
 his reafons. Thefe confultations ufually took 
 place at an early hour in the morning : the broken 
 flumhers of the Civilians arc mentioned by every 
 Roman poet whole mufe has led him to defcribc 
 the inconveniences which attend di(\in6lion and 
 fame. Legal topics were often fubje(5ls of the 
 converfations of Civilians; and the forum, from 
 their frequent refort to it, being the ufual fcenc 
 of thefe friend'y difputations, gave its name to 
 them. They alfo publiflied treatifes on legal 
 fubjefts. Their opinions and legal doctrines 
 were highly refpe<Sled; but, till they were ratified 
 bv a judicial dccifion, they had no other weight 
 than vvhai they derived from the degree of public 
 eftimation, in whi'^h the nerfcnr. who delivered 
 thv n wvre licld. The Ci.iians are commonly 
 diviiled into tb.vcc claiils ; thofe, who flourilhcd 
 between inc oira of the Twelve Tables, and the 
 2f e of Cicero ; thofe who flourifbed from the 
 a^;e of Cicero, to the reign of Severus Alexander; 
 and tliofe who flourifiied from the beginning of 
 his rei^n, to that of the Emperor Juftinian. 
 The fecond, is tlie golden period of Aftejufii- 
 nianean jurifprudence. From the fragments which 
 have reuched us, of the works of the Civili- 
 who flour! !hed during ch?: period., modern 
 
 ati 
 
 writers have thought thciiifelvcs juftiiied in de- 
 
 fer ibing 
 
THE ROMAN LAW. 
 
 4^ 
 
 fcriblhg them as men of enlarged minds, highly 
 cultivated underftandings, and great modefty. 
 In their judicial (ludies they availed themfelvesof 
 the learning and philofophy of the Greeks, car- 
 ried the difputes of the fchools of Athens into the 
 Forum ; and, early in the period we are fpeaking 
 of, branched into two fc6ls, whofe oppoiite tenets 
 were founded on principles, not unlike thofe, 
 which gave rife to the dillindlive do6lrines of 
 the difciples of Zeno and Epicurus. Antiftius 
 Labeo was the founder of the former fe6l ; 
 Ateius Capito of the latter : from Proculus and 
 Pegafus, two eminent followers of X^abeo, the 
 former were called Proculeians or Pegafians ; 
 from Mafurius Sabinius and Caflius Longinus, 
 two eminent followers of Capito, the latter were 
 called Sabinians or Caflian?. The former con- 
 tended for a ftri(rt adherence to the letter and 
 forms of tlie law , the latter for a benign inter- 
 pretation of it, and for allowing great latitude in 
 the obfervance of its forms. Attempts were made 
 to compromife the difference between them : they 
 gave rife to a third fed, the Jurifconfulti ercif- 
 cundi or mifcalliones. Something of the dif- 
 ference which fubfifted between the difciples of 
 Labeo and Capito, has louff fubfifted in the ju- 
 rifprudence of England; but the good fenfe of 
 the Enfrlilli bar has prevented the maintainers of 
 ilie diti'erent opinions from forming themfelves 
 Into fetfls. Till the reign of Auguflus every 
 
 E perfon 
 
^ THE ROMAN LAW. 
 
 pcrfon was at liberty to deliver judicial opinions ; 
 Aiigullus confined this privilege to pailiijulai 
 perlbns, widi.a view, it is fuppolcd, of their pro- 
 pagating thofe doiTbrines of law, which were fa- 
 \ ouiahle to his political fyftcni : the Emperor 
 Adrian reftored^ the general liberty; the Efnperoi 
 Severus Alexander afTigned it the limits within 
 which it had been circumfcribed bv Au&ullus. 
 
 Thefc arc the materials of which the written 
 and unwritten law of Rome wi.^: principally 
 formed. 
 
 t^ 4. 
 
 THE FOITRTH PERIOD OF Before Anno 
 THE HISTORY OE THE ROMAN Cl»iii.u,bis 
 
 Con* 
 LAW, is that which tills the fpacc be- ditic. 
 
 tween the time when Julius Ciefar was 
 made perpetual Dictator, and the reign of 46 708 
 tlie Emperor Adrian. The power of Julius 
 Crelar, incowfequcnce of his perpetual die- 
 tatorlhip, placed him above law ; but it 
 does not appear tb.at he made many innova- 
 tions, of a general nature, in the Roman 
 jurifprudcnce. That was left to Auguflus, 
 his heir and fuccciror. At diilerent periods 
 of his reign, the people conferred on Au- 
 guflus the various titles of Perpetual Tri- 
 bune, Cuuful, Proconful, Cciifor, Augur, 
 
 an<l 
 
THE ROMAN LAW. 
 
 51 
 
 and High Priefl: thus, in efteiSl, he ac- Before 
 cjuired both the civil and military power of " 
 the ftate ; bur, as he profefled to exercife it 
 •ji vir:uc of thofe offices, his acts had the 
 ,\])pcarariCO of being the a6ls of the different 
 inu:> ill rates, whofc offices had been confer- 
 red Oil him. Finally, in the year of the city, 16 
 75, power was given him to amend or 
 make whatever laws he fhould think pro- 
 per. This was tlie completion of the Lex 
 Regia, or of rhofc fucccffive laws, which, 
 while they permitted much of the outward 
 form of the republic to remain, inveited 
 the emperor with ahfolutt power. 
 
 During the whole of AugulUis's reign, 
 the forms of the Leges and Senatus-con- 
 fulta, thofe vcitiges of dying liberty, as they 
 are called by 'J'acitus, were preferved. 
 
 Tor tlie Senate, Augullus uniformlv pro- 
 fefled the greateft deference ; he attended 
 their meetings, feemcd to encourage their 
 free difcuffion of every ful)je6t, which came 
 before them; and, when a law was approved 
 of by them, he permitted it, agreeably to 
 the ancient forms o( the republic, to be 
 referred to the people. The referetice of 
 laws to the people was abolKhed by Tibe- 
 riuf. ; fo that, from his time, the laws of 
 Pvome originated and were completed in the 
 fenate. At lirft their deliberations had an 
 
 E 2 appearance 
 
 Anno 
 Urbis 
 Con- 
 
 735 
 
5« THE ROMAN LAW. 
 
 appearance of free dlfcuflioii ; by degrees, cvca 
 that vaniflied, and infenfibly the Senate ferved for 
 little more tlian a nominal council of ihe Em- 
 peror, an office to regific]- his ordinances, and a 
 court of judicature ibr grcnt public cai-lcs. 
 
 V. 
 
 THIS memorable revolution in the fundllons 
 of the Senate, witii whicli even the forms of 
 Roman liberty expired, muft be dated from the Em- 
 peror Adrian, anlforms the FIFTFI PER 101 J 
 OF 1 HE HISTORY OF THE ROMAN 
 LAW. He was the taril of the Emperors who 
 cxercifcd, without diiguife, the plenitude of legif- 
 lative power. With him therefore, the Impcr'uU 
 ('o>!jihuuons^ under tlic various names of Refcripta, 
 FpiRola?, Decrcia, Edicta, PragmaticE Sanc- 
 tiones, Oratit)nes and Annotationes, originated; 
 tliey had the force of law in every part of the 
 Roman llatc. Under his reign, Julian, a lawyer 
 of great cnuncnce, digclled the Prjetor's edicts, 
 and ot'.jcr parts of the Jus Honorarium, into a 
 regular fyrtem of law, in fifty books. This com- 
 jjilation was much eflcemed; it was referred to as 
 authority, and obtained the title of KdUiitm rcr- 
 pduum ; all the remains of it, which have come 
 down to us, are ilie extracts of it in the digefl , 
 th::y have been collected with great attention, by 
 
 Simon 
 
THEROMANLAW. 53 
 
 Simon Van Leeuvven, at the head of the Digefl;. After 
 in his edition of Gothofred's Corpus Juris Civ;"S; 
 Lugd. Batav. 1663. - - - « 120 
 
 It was a remarkable effect of the Editflum 
 Perpetuum, to put an end to the legal fchlfm of 
 tl; babinians and Prociilians. By countenancing 
 the former, in the Edi<5^ura Perpetuuin, the Emr 
 peror Adrian terminated the difpute. 
 
 After this came the Codex Grrgor'ianus ; a 
 colledlion of Imperial conftitutions, from Adrian 
 to Dioclefian, by Gregorius or Gregorianusj 
 Praetorian Pra:fe£l to Conflantine the Great - 284 
 
 This was fucceeded by the Codex Hernioge- 
 nianusy a continuation of the former code, by 
 Hcrmogenes, a contemporary of Gregorius or 
 Gregorianu"?. 
 
 V. 6. 
 
 THE SIXTH PERIOD OF THE 
 ROMAN LAW extends from tlic reign of 
 Conilniuinc the Great to that of tiie Emperor 
 Tlieodofius the Second. It is particularly re- 
 markable 1> having furnifhed many new ar- 
 ticles of great importance to the jurifprudence of 
 Rome . _ _ _ _ 
 
 They chiefly arofe from the foundation of 
 Confkantinople, the new forms of civil and mill- 
 t.uy government introduced by Conftantinc, the 
 
 V 
 
 legal 
 
 ?o6 
 
54 
 
 THE ROMAN LAW. 
 
 legal eftablifhment of Chriftianity, ami the divi- After 
 fion of the empire between the fons of Theodofius^'"''^^ 
 the Great. To the firft may be referred nume- 
 rous laws, refpecling the privileges and police of 
 the imperial city ; to the fecond, an abundance of 
 legal provifions, refpedting the various officers of 
 the empire, and the ceremonial of the Byzantine 
 court ; to the third, a fucceffion of imperial cdidts, 
 by which Chriftianity was firft tolerated, then 
 legalized, and afterwards became tlic eftabliftied 
 religion of the ftate. 
 
 The divifion of the empire between the fons 
 of Theodofius, in 395, was attended with ftill 
 more important effedts on Roman jurifprudcncc - 39; 
 
 V.7. 
 
 THP^ variety of laws, principally occafioncd 
 by the circumftances which have hern mentioned, 
 introduced a confiderable degree of confuilon into 
 the Roman jurifprudence. To remedy it, Tiico- 
 dofius the Second, the Emperor of the Eaft, pub- 
 lilhed, in 438, the celebrated code of law, called 
 from him the Thcodofian Code, which forms TME 
 SEVENTH PERIOD OF IIIK HISTORY 
 OF THE ROMAN LAW. It comprifcs all 
 the imperial conftitutlons from 312, the year in 
 which Conftantine was fuppofcd to have cn)!)racc(I 
 Chriftianity, to the time of its publication. It 
 
 ^f 
 
THEROMANJ.AW. jj 
 
 has not reached us entire: an excellent edition After 
 of the remains of it was puhlilhcd by James * 
 Gothofred, at Lyons, in 1668, in iix volumes 
 folio, generally publiihed in four. It is accom- 
 panied with Prolegomena, introdu(flofy cliuptcrf, 
 a perpetual commentary and notes ; the labour of 
 thirty years ; and no one, as Dodor Jortin juftly 
 remarks, ever thought the time thrown away. 
 No work perhaps can be mentioned, which con- 
 tains more information on the antiquities of tlie 
 early ages of the lower empire. In addition to 
 the Theodofian Code, it comprifes the fubfcqucnt 
 novclls of the Emperors Valentinian? Martian, 
 Majorian, Scverus and Anthemius. 
 
 Immediately after the publication of tlie Theo- 
 dofian Code in the eaftern empire, it was received 
 into tJK; empire of the v/eft, by an edi£t of Va- 
 lentinlan tlie Tlilrd. In the caft, it retained its 
 force till it was fuperfcded by the Julliniancan 
 collcclion. 
 
 It retained, but indirc6lly, its authoriry longer 
 in the weft. 'I'hc Barbarians, who invaded the 
 empire, permitted the Romans to retain the ufc 
 of their laws. In 506 Alaric, king of liic Vifi- ^06 
 goths in Gaul, ordered a legal code to be prcpaicd, 
 in which the Roman and Gothic laws and ufiigcs 
 lliouKl be formed into one body of law, for tiic 
 general ufc of all his fubje£h; this was accordingly 
 tione in the twcnty-fecond year of his reign ; and 
 fro'n Aniaiuis, his Referendary, o\- Chancellor, 
 
 F 4 by 
 
56 T H E R M A N L A W. 
 
 by whom it was either compiled or publifhed, it 
 was called the Breviar'tum Aniani. It is an 
 ^xtraft from the Gregorian, Hermogenian, and 
 Theodofian Codes, the hovells of the fubfequeni: 
 Emperors, the fentences of Paullus, the Inftitutes 
 6f Gaius, arid the works of Papinian. It fuper- 
 feded the ufe of the former laws fo far, that, in 
 a fhort time, they ceafed to be cited in the courts, 
 or by writers oil fubjedls of law ; and Anianus's 
 colleflidn, under the n^me of the Roman or 
 Theodofian law, became the only legal work of 
 authority. 
 
 To this period alfo, mud be afcribed the cele- 
 brated Collatio Mofa'icarum et Romanarum Lcgitm : 
 the objedt of it is to fliew the refemblance be- 
 tween the Mofaical inftitutions and the Roman 
 law: thd beft edition of it is F. Defmare's in 
 
 1689. • '* ' ' ■ ' "•'' A..;; . '■■ - ''' •• 
 
 . . V.8. 
 
 THE EIGHTH, AND MOST IMPOR.. 
 TANT, PERIOD, of the hiftory of the Roman 
 law, comprifes the time in which the body of 
 law, compiled by the diredtion of the Emperoi 
 Juftinian, was framed. "* * <• .', f . 
 
 I. By his order, Trcbonian, and rine other 
 perfons of diftindion, in the firfl: yeaf of hi^ 
 reign, made a coUedlion of the moft ufcful laws, 
 
 in the Codex Theodofianus, the two earlier codes 
 
 ... ,. ^f 
 
THE ROMAN LAW. 
 
 jr 
 
 of Gregorius and Hermogenes, and the ccnfti- After 
 tutions of fome fucceeding emperors. It was ^^ ^ 
 immediately publifhed by Juftinian, and is called 
 tlie Codex fujl'meaneus Prima PraUHionh - 528 
 
 "2. But his great work is his Digcji or Panders. 
 By his direction, Trebonian, with the afliftance 
 of fixteen perfons, eminent either as magiftrates 
 or profeflTors of law, extracted from the works of 
 the former civilians, a complete fyftem of laW, 
 and digefted it into-fifty books - - , ^^3 
 
 3. Previoufly to its publication, an elementary 
 treatife, comprifing the general principles of the 
 fyftem of jurifprudsnce, contained in it, was pro- 
 mulgated, by the Emperor's direction, in four 
 books. From its contents, it was called The In- 
 
 JlUutcs. ' ■ ■ • ' . * ■'■ - M. ; -A . 
 
 Thus the Digeft, and Inftitutes were form- 
 ed into a body of law, by the authority of 
 the Emperor. He addrcffcd them, as imperial 
 laws, to his tribunals of juftice, and to all the 
 academies, where the fcience of jurifprudcnce 
 was taught : they were to fuperfede all other law, 
 and to hi the only legitimate fyftem of jurifpru- 
 dcnce throughout the empire. 
 
 4. In the following year, he publifhed a correcliecl 
 edition of the code, under the title Ccdtx Repe^ 
 tita Pralcdionis. This wholly fuperfeded the 
 lirft code ; and, except fo far as it has been pre- 
 fcrvcd in the latter, it is wholly loft. - - 534 
 ' ■ , 5- The 
 
5? THEROMANLAW. 
 
 5. The edicts which he promulgated, after Aftci 
 die iiew edition of the Codex, were coUedled into^-'"^' 
 one volume, in the laft year of his reign, and 
 puWifhed under the name of Novella .":s/j , ^^5 
 
 6. Moft of the Novellas were written in the 
 Greek language. In the laft year of Juftinian's 
 life, a Latin tranflation was made of them ; and, 
 by the fidelity with which it was executed, ob- 
 tained the appellation of the Volumen Authentic 
 
 cum 
 
 Other tranflations of the Novell« have ap- 
 peared: that, publiflied at Marburgh, in 1717, 
 by John Frederick Hemburgh, has the charadter 
 of being extremely well executed, and is accom- 
 panied with a valuable commentary and notes. 
 
 7. In moft editions of the Corpus Juris Civilia, 
 ♦he novclls are followed by the books of Fiefs^ 
 the Coujiltutions of Conrade the Thirds and the 
 Emperor Frederic, under the title of Dcchna 
 Collat'iOy and fome other articles. But they make 
 no part of what is called the Corpus Juris Civilis: 
 that confifts folely of the PanJedts, the Inftitutes, 
 the Codex Repetitae PraclecStionis and the Novells. 
 
 8. On the general merit of fnfiiniarC s Colic £lion^ 
 as a body of written l;iw, able judges have dif- 
 fered : the better opinion feems to be that it is 
 executed with great ability, but that it is open to 
 much ohjedion, the Rcfponfa Prudentum Ibme- 
 times being unfaithfully gi^en in it, contradidtory 
 ^lodliincs having found their way into it, itsftylc 
 
 being 
 
 5^8 
 
THE ROMAN J.AW. |p 
 
 being often too flowery, and its innovations on the 
 olJ law, fonietimes being injudicious. Heinecctus* 
 whofe tcftimony, in this cafe, is of the grcatefl; 
 weight, at nrft judged of it unfavourahly : but 
 afterv»'ards changed his opinion: he mentions, 
 in high terms of commendation, the defence of it 
 bvr Huberus and the Cocceii, and aiTerts that the 
 
 J 
 
 caufe mud now be confidered as decided in its 
 favour. Hid. Juris Romani, Lih. I. §^ cccc. 
 
 The very attempt to leflen, by legiflative pra- 
 vifions, the bulk of the national law of any 
 country, where arts, arms and commerce flou* 
 rifh, mull appear prepofterous to a practical 
 lawyer, who feels how much of the law of fuch 
 a country is compofed of received rules and re- 
 ceived explanif ions. What could an a6l of the 
 Imperial Parliament fubrtitute in lieu of our re- 
 ceived explanations of the rule in Shelly's Cafe ? 
 The jurifprudence of a nation can only be e^en- 
 tialiy abridged by a judge's pronouncing a fentenoe 
 which fettles a conteflcd point of law, on a legal 
 fuljjedl of extenfivc application, as Lord Hard- 
 vvicke did by his decree in the cafe of Willoughby 
 verfus Willoughby ; or by a writer's pnblil'hing a 
 work on one or more important branches of law, 
 whicli, like tlie Effay on Contingent Remainders, 
 has the unqualitied approbation of all the pro- 
 
 fefiion. 
 
 One circumftauce, however, may be urged, as 
 an iinqueftionablc proof of the Juftinianean Col- 
 
 Ici^tion's 
 
'6o 
 
 THE ROMAN LAW. 
 
 ledtion's poireffing a very high degree of Intrlnflc 
 merit. Notwithftanding the different forms of 
 the governments of Europe, andthegr^t variety 
 of their political and judicial fyftems, the civil 
 law has obtained either a general or partiil 
 admittance into the jurifprudence of almoft all of 
 them : and, where it has heen leaft favourably 
 received, it has been pronounced a colIe£lion of 
 written wifdom : this could not have happened, if 
 it had not been deeply and extenfivelv grounded 
 on principles of juftice and equity, applicable to 
 the public and private concerns of mankii:)d> at all 
 times, and in every fituatioii- ' /' 
 
 ft:V* 
 
 /;*■: t>a ■ 
 
 VI 
 
 •■'i< -V ' '''./■ v. ■9. ;.'■•. U' . . 
 
 9. THE fate of tliis venerable body of law, 
 promulgated with fo much pomp, and polTefT- 
 ing fo much intrinfic merit, is fingular, and 
 forms THE NIN 1 H PERIOD OF THE 
 HISTORY OF THE ROMAN f.AW. 
 The reign of the third fucceffor of Juftinian, 
 was the la ft, in which it maintained its autho- 
 rity in the weft. After tiiat time, all law and 
 regular government were rapidly deftroyed by 
 the Barbarians who invaded and overturned the 
 Roman empire. The Exarchate of Ravenna, 
 the laft of their Italian victories, was conquered 
 by them in 753 ; and that year is aihgued as the 
 
THE ROMAN LAW. 
 
 6t 
 
 sera of the final cxtlndlion of the Roman law After 
 »n Italy - - 
 
 It lingered longer in the eaft : in ftrlflnefs 
 cv^n, it cannot be faid to have wholly loft its 
 authority, in that part of the empire, till the tak- 
 ing of Conft; itinople, by Mahomet the Second 
 In the life time of Juftinian, the PandedU were 
 tranllated into Greek by Thaleleus; a tranflation 
 f)f the Code was made, perhaps, by the fiame 
 hand, and the Inflitutes were tranilatcd by Theo- • 
 phihis. 
 
 The fuccelTors of Juftinian publifhed dHFerent 
 laws, fonv of which have reached us. In tha 
 reign of Bafilius the Macedonian, and his fons 
 Leo the philofopher, and Conftantinc Porphyro- 
 gcneta, an epitome, in fixty books, of Juftiniaa's 
 Code, and of the conftitutions of fiucoeding em- 
 perors, was framed, under the tiiie of Bafdlca, 9^^ 
 Forty-one of the fixty books were fplendidlv pub- 
 lifhed by FahiottI, at Paris, in 1647, in fevca 
 tomes in folio ; four more have been publrflied in 
 Meerman's Thefaurufus. 
 
 'i'hat the Bafilica fupcrfeded, in the caftcrn 
 empire, the immediate authority of the Jufti- 
 ni;nicjm collc5tion, is true; but that the Juftinia- 
 nean < ollcdion formed a confuleraMc part, and 
 waf. in fatSt the ground-work of die Bafdica, is 
 unqucflionable. Tlius, through tlie medium of 
 the J'alilica, the code of Juftinian, in a great 
 degree, dirc^^txl or influenced the jurifprudcncft 
 
 of " 
 
6i 
 
 tilt ROMAN LAW. 
 
 of theeaftern empire, to the lateft moment of itsAftrr 
 
 exiflence* Jf^^- 
 
 '453 
 V. 10. 
 
 THE text of the Pandedls being alttiofl: wholly 
 loft, accident led, fometime about the year 1137, 
 to the difcovery of a complete copy of them, at 
 Amalphi, a town in Italy, near Salerno. This 
 forms the TENTH PERIOD OF THE 
 HISTORY OP^ THE ROMAN 7 AW. 
 From Amalphi the copy found its way to Pifa, 
 and Pifa having fubmitted to the Florentines, 
 in 1406, the copy was removed in great triumph 1^06 
 to Florence. By the diredlion of the magiftrates 
 of the town, it was immediately bound, in a 
 f'.ipcrb manner, and depofited in a collly cheft. 
 This copy of it h generally called the Florentine 
 Pandects, rormcrly they were fliewn only by 
 torch light, in tlie prcfcuce of two magiftrate?, 
 and two Ciftercian monks, with their heads un- 
 covered. They have been fucceiTivclv collated 
 by Politian, iK;lognini, and Antonias Auguftini:^; 
 afi CKnO: copy of them was publiilicd, in 1553, 
 by Francifcus Taurellui; for its accuracy and 
 beauty, this edition ranks high among the ornn-- 
 ments of the prcis : it fiiou.ld be accom.panied, 
 with the treatife of Antonius Auguflinus, on the 
 proper names in the Pandctils, publiflied by him 
 at Tarragona, in i579' About the year 1710, 
 
 * Sec Appendix, Note IV. 
 
 Henry 
 
The ROMAN law. 6i 
 
 Henry Brenchman, a Dutchman, was permitted, 
 at the earned felicitation of our George the Firft» 
 to collate the nianufcript. Ke employed ten 
 years upon it, and in the inveftigation of various 
 topics of literature conne<5led with the Juftinia- 
 nean Code. His elegant and curious Hiftoria 
 Pandeflarum, publifhed at Utrecht, in 17 12, 
 gives an interefting account of his labours ; and 
 ihews, like the labours of Wetrtein and Mill, 
 that great fire of imagination, exquiiite tadc, 
 minute and patient inveftigation, and the foundeft 
 judgment, may be found in the fame mind.— 
 Some have fuppofed that the Florentine m.anu- 
 fcript, is the autograph of the Pande6ls ; for this 
 opinion there is no real ground or authority ; but 
 Brenchman refers it to the fixth century, a period 
 not very remote from the iera of Juftiniai;. 
 Brenchman's work forms a fmall part of an ori- 
 ginal defign, and is fo ably executed that all muft 
 lament his having left any part of his dcilgn un- 
 finiflied. 
 
 Three editlo. s of the Pande6ls are particularly 
 diftinguifiied, the N,,; jcan Edition publiQied by 
 Holoander, :\' Neurcr burgh, in 1529, in three 
 volumes, qrato : ihf Plorentine, publiflied by 
 Taureiius- >t f^'lovcr. , in I553> in two volumes 
 folio, oiicia Lj. r.ii m three; and the Vulgate, 
 under which name every edition is comprifed, 
 which is not taken from the Norican or Florein- 
 tine edition. Tiie bell editions for general ufe 
 
 appear 
 
$4 THE ROMAN LAW, . 
 
 appear to be Pothier's Pandeftae Juftiniane^; 
 publifhed at Lyons in 1782, in three volumes 
 folic ; and that of Dionyfius Gothofred, pub- 
 liihed bv Simon Van Leeuwcn at Leyden in 
 1663, in one large volume, generally bound in 
 two : It contains the Inflituies, the Dlgeft, the 
 Code, the Fafti Confulares, Freher's Chrono- 
 logia Imperii Utriufque, Gothofred's Epitome of 
 the Novells of Juftinian, various other edicls 
 and novel! conftitutions, Frederici II. Imp. Ex- 
 travagantcs, Liber do Pace Conftantiae, Gotho- 
 fred's Epitome of the books of tlie Fiefs, an ex- 
 tcnilvc fynopfis of Civil Law, the fragments of 
 the Twelve Tables, the Tituli of Ulpian, and 
 ihe opinions of I^aulus, v iih notes, and copious 
 iud'jxes to the v»hoie*.- 
 
 ') • ■ • . THESE 
 
 * This niticfc U e^fiMtleJ froiii Pnfupovius"! Jhort treatif' 
 Je (Jri^ine Juris tt omnium fiiagiftrctuum et JucceJJicnan 
 jirudimtinn. Dig. "Tit. i. ; the Prffare to the Inftitutes 5 the 
 /irjl, facond, and third Prefaces to the PandeSls-^ the firjl 
 and ftcond Vrrfaces to the Code j lielnecdu''5 Hijioria Juris 
 Cixiil/s Uoinatn ac. Cvmanici, Lug. r.jt. 1740, 2'vo. ; the 
 Antiquitatum Romanarum Syntagma, of the fame cuihsr, 
 Strafbargh 1724, %~jn. — The wvilings oi' Heinecciiis are a 
 rtiikinsr proof of the triith of Mr. Gibbon's ubfervation, 
 vol. 4, 395, note J 60, " that the univeniiics of Holland 
 *' anil Bi-aadenbn;i.',li, in the beginning of the hill century, 
 " apjieur to Iiavo (bulictl the civil law on the inoft jull and 
 '* libci-fll pvineiplei, :"' — the 'VJorks ofCravina, on the Ci'vil 
 Lctv, Leifjia x-j\-]t tn three 'volunres itid. particahirly his 
 firi^ines Juris Ci'vdis-^ Gi'avina*s account of the Legei 
 -■ .''I . and 
 
r 11 E R O M A N LAW. 
 
 ',«, :-A. 
 
 VI. 
 
 <5| 
 
 > -' t : , 
 
 ■'f 'i: 
 
 THESE Ictul to an Inquiry refpciSting THE 
 PRINCIPAL SCHOOLS IN VvHICH 
 THE CIVIL LAW HAS BEEN TAUGHT 
 iince Its revival in Europe. 
 
 In the early days oF the republic, It was ufiial 
 for fuch as dcfircd to gain a knowledge oF the 
 laws of their country, to attend en thofc, who 
 
 were 
 
 tintl Scnaius Covfulta is particularly interefting : Brtmqiulhis'' s 
 Hljlcria Juris Rofnano-Germanicii Ams. 1730, 8t;3. , 
 pciliaps the completed hiliorical account extant of" tlie civil 
 ];iwj StruHJuis^s Hijloria Juris Rotnaiii, Jena<t 1718, 4/0.; 
 Fotier's ProUgu?iiena to his VandeBee JujUuianea, Lyons y 
 3 'uols. J'ol. j ^teraffons Hifioire de la Jtirifprudcnce Romainet 
 PariSi 1750, faid by Mi\ Gibbon, 4th vol. note 9, to be 
 " a work, if more prcmife than perFormtircc ;" TljDV2afiUs''s 
 Delmcatio Hijioria Juris Rcmani et Cennanid, Erforditt 
 1750, %-uo, and his Na-vorum Jufifprudentia Romano' Li- 
 bri duo, Hala Magdtburgica^ 1707, 'i'vo. — they contain a 
 fevere attack on the Juftiniariecin collection, the emperor, 
 and all other prrfons concerned in it : Mafitefrjuieu^s Efprit 
 di's Loix\ a work entitled to all the piaife it has received j 
 no one, who lias not travelled thioii^h the Corpus Juris 
 and the Capitularies, can form an idta of" the comprelienfivc 
 brevity and energy with which it is written. Dr. Be'ver''s 
 Hijlorji of the Legal Polity of the Roman State, Loud. i78i» 
 4/0. ; Dr. layhr's thviaiis of the Civil Lanv, Camb. 17 Sit 
 .\lo., a work, il' we atcjuieice in Mr. Gibbon's opinion of 
 Jt, 4th vol, note III, *< of amufing, though various reaJir.jj , 
 
66 THE ROMAN LAW. 
 
 were confulted on legal fubjedls, at the hours, In 
 which thefe confukatlons generally took place. 
 Tiberius Coruncanius is laid, by Cicero, to have 
 been the firft among the Romans, who profeffed 
 to give regular inftru£lions on legal fubjedls. 
 Afterwards, public fchools of jurifprudence were 
 rflablifhed ; the moll celebrated were thofe at 
 Rotnc and Conftantinople , Juftinian founded a 
 third at Bcrytus, and ufed all means in his power, 
 to promote its fuccefs : he gave the profeflors 
 large falarics, and advanced fome of them to 
 offices of high diftintStion in tlie flate; — as tlie 
 authority of his law dccrcafed, they fell into 
 decay. 
 
 With the difcovery of the Pande6is at Amalplii, 
 tlie lludy of the civil law revived : it was intro- 
 duced into fcveral univerfities, and exercifes were 
 {performed, lectures read, and degrees conferred in 
 
 ** but which cannot be praifcd for philofopliical piecifion j"' 
 T'hefour Bovis ofjujlman, tranjlated by the late Dr. Harris, 
 'ivitb notes wjd a prtj'acs\ tlic tianilatioii is excellent, an.l 
 it is miKh to lie lamented, that the piel'acc is: no( longci', 
 and x\k notes more copious ; l'\rriere''s Hijhire du Droit 
 Remaitirp Paris, 1783, 8a'o. ; Beaufort's Republiqtic' Ro- 
 mcunt^ PiXfis, 1767, 6 I'Oh. 9vo. ; an excellent confuiu- 
 ^iona! hidory of the Ror>iaii Government : The 44-//-» Chapter 
 *f the 4th Vohims of Mr. Gibbon s Hijiory : M. Bouchand'.' 
 Recherche^ Hiforifjues fur h's Edits des Mi'v,ijh'iits Ro//iaif:.!, 
 i^fotricmj Mentsire, Mem. de rAcadetnii', 4.1 (I /W. p.\. (,nd 
 Mr. Sihomber/.t /-/cf/wuts of Roimn Law, Lofidoi:, i-j'i(), 
 
 thi>\ 
 
THEROMANLAW. 6? 
 
 this, as in other branches of fcience, and fevcral 
 nations of the continent, adopted it, as the bafis 
 of their feveral conftitutions. From this time, 
 there has been a regular fuccefllon of civil 
 lawyers, diftinguiflied by foine circumflance of 
 other into different clafTes, or as it is ufually 
 exprefled, into different fchools. 
 
 I. T'lie tirftj is the Jchool of Irnrrius^ a 
 learned German, who had acquired his know- 
 ledge of the civil law, at Conftantlnople. He 
 taught it at Bologna, with great applaufe : the 
 legal fchifm which had divided the Sabinians and 
 Proculeians, was revived, in fome degree, amont^ 
 his fcliolars : one of them, was the celebrate'l 
 Azo, a Proculeian, whofe vvi 'tings, Montefquieu 
 is faid to have preferred to all other on the fuh- 
 jedl: of civil law. A more important fubjccl, 
 the contefl between the emperors and popes, 
 produced a more ferious warfare between thi 
 difciples of Irnerius. I'hc German eniperord, 
 who pretended to fuccced to tlie empire of the 
 Caefars, claimed tiie fame extent of empire in the 
 well, and with the fame privileges, as it had been 
 held by the Caefars; to this claim, the fpirit and 
 language of the civil law being highly favourable, 
 the emperors encouraged the civilians ; and, in 
 return for It, had their pens at command. The 
 popes were fupported by the canonifts, and the 
 raiionifts found, in the decree of Gratian, as much 
 (0 favour the pretenfions of the popes, a-i the 
 
 F 2 civilians 
 
68 . , THE ROMAN LAW. 
 
 civilians found, in the law of Juftinian, to favoui 
 the pretcnfjons of the emperors. Thu;;, gcncraliv 
 fpcaking, the civihans were Ghibelins, the name 
 given to the parciians of the emperors, and the 
 canonills were Giielphs, the name given to tlie 
 parrifans of the popes. But this diftindion did 
 not prevail fo far, as to prevent many canonifts 
 from bcin;; Ghibehns, or many civilians iVoin 
 heing Guclphs ; thole among the civilians, who 
 iided. witli the canonills in thcfe difpute.i, wtre 
 called from the decree of Gratian, Dccrctifl.-c, in 
 oppofition to ih.e rcfc of the body, wlio uiTumcd 
 the appellation of Legiflat, from their adherence 
 to the iuppolcd Gliibciiii d::cirincs of the civil 
 law. 
 
 2. ,'/ >n-:'.' ft/iool hrjoH zvith Accurfiiu :— jii', 
 Gloib i6 a pcrpctUiil commentary on the text of 
 [ullinian : il was once confidcred as legal autho- 
 rity, and was tlierefore ufually publi'hcd with ilic 
 text: it is even now rcfpciSled as an iifeful com- 
 mcntarv. Accurfiu;> had nv.inv difciples, wliofe 
 glofll ; had great ccl.'bri'iy in ihcir day, but an- 
 no w whollv f(5rgoticn. 
 
 •y BartQlmy and Baldus Iiis d'lfnl'li' and r'vnl, 
 gwjc t'ijv !'j a nnv fchon!^ famous for copious 
 commentaries <jn Jiilliniin's text; for the idle 
 fubtk lies with which tlicy abound; and t'icir l)a! 
 binous fi.vlc. 
 
 4. Andrew Alciat v, as the firll: wfio unii'*d the 
 ihidv ot pohte lc;irning and antiquity, with ihc 
 
 fl.dy 
 
I H £ ROMAN LA W. 6^ 
 
 (ludy of the civil law : lie was the founder (;1 a 
 •'U'lv fchool zv/iich is called the C'ujucuin from 
 Ciijas, the glory of civilians. OF liiuj it niav 
 he laid truly, that he found the civil law of 
 wood, and left it of marble. That ftliool has 
 hibllfted to the prefent time ; it has never i>ccii 
 without writers of the greateft taflc, judgment 
 and erudition ; die names of Cujacius, Au^ulliiuis, 
 t!ie Gothofrcdi, Heincccius, \^oetius, (iravina, 
 and Potier, are as dear to the fcholar, as liicv are 
 to the lawyer. An Engliihman however, ninll 
 reflecft with plcafure, that his covu\trynian, Mr. 
 Juflicc Blackllone's Commentaries in the Ivaws 
 of England, will not fulier in a compaiifon wirh 
 any foreign work of jurifprudente ; — perhaps ii. 
 will be difficult to name one of the I'ainc nature, 
 which will bear a comparilbn wilh it *. 
 
 vir. 
 
 IT remains to give fomc account of THK 
 INFLUENCE OF 'JIfE CIVIL LAW 
 ON 'llIE JURISPRUDENCE OF '1 F-IE 
 MODERN STATES OF EUROl'K. 
 
 On the dcaroe of its influence on the law of 
 Cicrmany, the Germm lawyers arc nf)r arvrced : 
 but it is a mere dilputc of words ; all of them 
 
 * This article is chiefly taken friMn the citci works oi' 
 (.i.-aviiin n.'t.t Uninqmilus, 
 
 r 3 allow 
 
p T M E R O M N L A W. 
 
 allow that more caufes urc decided in their 
 courts, hy the rulc> of the civil law, than by the 
 laws of Gernunv , and that, where the laws of 
 Germany do not interfere, the fubjedl in difpute 
 muft be tried by the civil law ; after thefe con- 
 ceffions, it is not material to inquire, whether, to 
 ufe the language of the German lawyers, the 
 civil l-iw be the dominant law of Germany, or 
 fubfidiary to it. 
 
 The fame may be faid of its influence in 
 Bohemia, Hungary, Poland and Scotland. 
 
 At Rome, and in all the territories of the pope, 
 it is received without limitation ; in molt other 
 p:irts of Italy, including Naples and the two 
 bjfjlics, it has nearly the fame influence ; except 
 where the feudal policy intervenes. 
 
 Its influence in Spain and Portugal is more 
 qualified ; but it appears to be admitted, that 
 where tlic \:x\\ of the country does not provide 
 (he contrary, the civil law (hall decide : and it is 
 the fettled pra6tice, that no perfon ihall be ap- 
 pointed a judge or received an advocate in any 
 of tlic courts of law, who has not been a fliidcut 
 in fome academy of civil or canon law fur ten 
 years. 
 
 The provinces of France, which lie nearell: to 
 Italy, were the lirft conquered by the Romany, 
 and the lafl conquered hy the Franks. At the 
 lime of the conquefl: of them by the Franks, 
 tiiey were wholly governed by the Roman law ; 
 
 they 
 
TH E TIOM AN LAW. 71 
 
 they are the provinces of Guyenne, Provence, 
 Dauphine, and fpeaking generally, all the prc- 
 vinces, under the jurlfdidlion of Touloufe, Bour- 
 deaux, Grenoble, Aix, and Pau; the Lyonnois, 
 Forez, Beaiijolois, and a great part of Auvergne. 
 Their Frankifh conquerors permitted them to 
 retain the Roman law ; where it has not been 
 altered, they are flill governed by it : and, from 
 this circumftance, they are known under the ge- 
 neral name of the Pays du Droit ecrit. The 
 remaining part of France is governed by the dif- 
 ferent laws and cuftoms of the provinces of 
 which it is compofed, and from this circumftance, 
 is called, Pays coutumier*. 
 
 Tlie Venetians have always difclaimed ths 
 authority of the civil law. 
 
 It was introduced into England by Theobald, a 
 Norman Abbot, who was eledled to the fee of 
 CanterbuTy. He placed Roger, fnnamed Vaca- 
 rius, in the univcrfity of Oxford : ftudents flocked 
 to him in fuch abundance, as to excite the 
 jealoufy of government, and the fludy of the 
 civil law was prohibited by King Stephen. It 
 continucil, however, to be encouraged by the 
 clergy, and became fo favourite a purfuit, that 
 almoft all, who afpired to the high offices of 
 church or ftate, thought it neccflary to go through 
 a regular courfe of civil law, to qualify them- 
 
 * Sec Appendix, Note IV. 
 F4 
 
 lelves 
 
7« THE ROMAN LAW. 
 
 felves for them : it became a matter of reproach to 
 the clergy, that they quitted the canon for the 
 civil law ; and pope Innocent prohibited the very 
 reading of it by them. Notwithftandiiig this 
 oppofition, the ftudy of the civil law lius been 
 encouraged in this country : in each of our uni- 
 verfities there is a profeffor of eivil law, and, by 
 general cuflom and immemorial ufage, fome of 
 the inftitutions of the civil law have been re- 
 ceived into' our nation:il law. In the fpirituid 
 courts, in the courts of both the univerfities, the 
 military courts, and courts of admiralty, t!ie rules 
 of civil law, and its form of legal proceedi-ig 
 greatly prevail. But the courts of common \a\v 
 have a fuperintcndency over thefe courts, and 
 from all of them, an appeal lies to the King in 
 the laft refort. " From thefe flrong marks and 
 " enfigns of fupevintendency it appears beyond 
 " doubt," fays Mr. Juftice Elackflone, " iluit 
 *' the civil and canon laws, though admiucd in 
 f-^me cafes b) cuRoit*, and in fomc courts, are 
 oiilv fubonHnait.' and leiies fub graviori lege."—- 
 'i'hc lho)t but very Icirucd treatile of Aitliur 
 DulU, dc Ufu ct Auvftorivatc juris civilis in 
 Doinii'.ilr; principum chriili.uiorum, convey:;, in 
 cicgant language and a plcalng manner, complcir; 
 jrn'ormation on the naluic and extent of the in- 
 iluencc of the civil law, on the jurilprudcncj of 
 tiiC modern flatcs of Europe. 
 
 
THE FEUDAL LAW. 
 
 A N attempt will be made in the following 
 flieers to give feme accounr, I. Of the ori- 
 ginal territories of the nations by whom THE 
 FEUDAL LAW was eftabliaied; IL Of their 
 firft pro^refs and chief fettlcments in the Roman 
 territories ; and III. Of the principal written docu- 
 ments of the Feudal Jurifpriulence of foreign coun- 
 tries. It is principally taken from a note of the 
 Editor, in thatpart of the 14th edition of Coke upon 
 Littleton, which was executed by him. — That 
 note contains alfo fome ohfervations on the peculiar 
 marks and qualities of the feudal law ; fome ac- 
 count of the principal events in the early hif- 
 tory of the feuds oi foreign countries ; and of 
 the revolutions of the icud in England. But, as 
 the rcfer.rches which gave rife to that note 
 were chiefly made wldi a view to the law of real 
 property, the ohfcrviuions in it are principally 
 direifled, through every branch of tlie inquiry, 
 to tiic influence of the feud on t/iat fpecies of 
 property, particularly where tlic writer treats of 
 the feudal jiirilprudciice of England. Under that 
 head fome general ohfervations are oilered, on 
 
 the 
 
74 THE FEUDAL LAW. 
 
 the time when feuds may be fuppofed to have 
 been firfl; eftablifhed in England; on the fruits 
 and incidents of the feudal tenure ; and on the 
 feudal polity of this country, with refped to the 
 inheritance and alienation of land : under this 
 head an attempt, is made to flate the principal 
 points of difference between the Roman and 
 feudal jurifprudence in the articles of heirfliip, 
 the order of fucceffion, and the nature of feudal 
 eftate : an attempt is then made to fliew the 
 means by which fome of the general reftraints 
 upon the alienation of real property, introduced 
 by the feud, have been removed j fome account 
 is then given of entails, and of the means 
 by which the reftraints created by entails were 
 eluded or removed. Having thus treated of that 
 fpecies of alienation, which, being the a£t of the 
 party himfelf, is termed voluntary alienation, 
 notice is taken of that fpecies of alienation, 
 which, being forced on the party, is termed in- 
 voluntary. Uader that head are briefly confjdcrcd 
 the attachment of lands for debt ; firft, in regard 
 to its efFedt upon them, while they continue in 
 the poifeflion of the party himfelf; then, in re- 
 fpedl to its efFe6l upon them, when in pofleflion 
 of the heir or devifee; and afterwards, in refpedt 
 to the prerogative remedies for the recovery of 
 Crown debts. Some obfervatious are then 
 offered on teftamentary alienation; and an ac- 
 count of fome of the principal circumftances 
 
 ■in 
 
THE FEUDAL LAW. 
 
 75 
 
 in the liiftory of the decline and fall of the feud 
 
 in England. 
 
 I. 
 
 IN refpea to the ORIGINAL TERRI- 
 TORIES of the nations who introduced the 
 feudal law; — they may be confidered under the 
 natties of Scythians, Sarmatians, Scandinavians, 
 Gcrrhans, Huns and Sclavonians, which they ac- 
 quired as they extended their conquefts. Till 
 latdy, tiie inhabitants of the fhorcs of the Baltic 
 were confidered to be their parent (lock : fub- 
 ft-qucnt refearches feem to have traced it to the 
 fpot where the common ftock of all nations is 
 found,— the Plain of Sennaar. 
 
 I. I. For the early (late of the Northern na- 
 tions we mufl: look to Herodotus. Of the north- 
 weftcrn parts of Europe, he feems to have had 
 kittle knowledge: the word Germany does not 
 occur in his writings ; Scythia is a general name 
 given by him to the north -eaflern parts of Europe, 
 and to all he knew of the north-weftern parts of 
 Afia, till i)e reached the Iffedones, a nation who, 
 by Major Rennel's account, occupied the prc- 
 fcnt feat of the Oigur or Eluth Tartars. 
 
 The European part of this extenfive territory 
 lies on the weftern, its Afiatic part on the eaftern, 
 fide of the Volga. On the foiith, the European 
 Scythia extended to the Carpathian mountains 
 «nd the mouths of the Danube ; and the Afiatic 
 
 Scythia 
 
wm 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 /o 
 
 ^J% 
 
 
 Mt 
 
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 7a 
 
 1.0 
 
 I.I 
 
 lis 1^ 1 2.2 
 
 1.8 
 
 11-26 il.4 111.6 
 
 ^» 
 
 /I 
 
 
 7 
 
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 i^ 
 
 7 
 
 Photographic 
 
 Sciences 
 
 Corpurdtion 
 
 7i VtfCST MAIN STRII1 
 
 WiaSTIR.N.V M580 
 
 (716) 872.4*03 
 

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 L6> 
 
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 76 
 
 THE FEUDAL LAW. 
 
 Scythia to the Cafp-an and the country oij its 
 eaft. As it was interfected by the great chain of 
 mountains called the Iniaus or CafF, the Afiatic 
 Scythia was diftinguifhed iuto the Scythia within, 
 and the Scythia without the Jmaus. 
 
 I. 2. Under the general denomination of Celts^ 
 Herodotus included all tlie parts of Europe 
 which were not occupied by the Scythians. 
 
 I. 3. In the courfe of time, the name of Scytliia 
 was applied to the eaftern part only of the ojiginal 
 Scythia; but the divifion of it into the part within 
 and the part without the Im^s was preferved ; 
 the weftern Scythia, or the part of the original 
 Scythia, •which lies on the weftern fide of the 
 Volga, then received the name of Sarmatia^ and 
 was divided into the European and Afiatic Sar- 
 niatia ; ilie former contained the country lietwecn 
 the Viftula and the I'anais or Don, tlie lattci 
 extended from the Tanais to the \' olo-a. 
 
 I. 4. Of the countries on the north of the 
 Baltic, Herodotus fecms to have known noihinc ; 
 to the Romans they were known by the name of 
 Sc(xncUnavia, --,,.„.,-;:, ../s, t. 
 _, i. 5. The tribes who occupied the country be- 
 tween the Baltic and the Danube, the Rhine, and 
 the V^idula, were equally miknown to Hero- 
 iiotus ; tft the Romans they were known by the 
 iKitne of Germans. 
 
 i. 6. At u very culy period, a divifion ot 
 
 Srythinns had advanced to the caftcrn fliore of tlit 
 
 •^^' central 
 
THE FEUDAL LAW. ^7 
 
 central part of Afia, and eftabliflied themfdJvcs 
 ill the prefcnt country of the Mongous : by the 
 Chinefe writers, tlicy arc called Hiongnoiis, by 
 the Romans, to whom they were long unknown, 
 they are called Huns, 
 
 I. 7. At a later period, feveral tribes of thefe 
 nations fpread themfelvcs over difFerent territories, 
 in the European and Afiatic parts of Moderr. 
 'Ruflia, and over Bohemia, Poland and Dalmatian 
 by the hiflorians of the fall of the Roman empire, 
 they are called 'Sc/iwi or Sclavoncs*. ^ ; i^n 
 
 
 • (Jo-!-*. 
 
 THE GRADUAL EXTENSION AN1> 
 DATES OF THE PRINCIPAL CON- 
 QUESTS MADE BY THESE NATIONS 
 
 next come under confiderationt 
 
 In the reign of Aiigullus they were powerful 
 enemies to the Romr.ns ; they had not, however, 
 
 * Major RcmuV'Z Geographical Syftetir of Herodotus, Loiui. 
 <{io. 1800 5 lyAwviilc, Etats formes en Europe apres la ckute 
 de V empire KcK'dm, i^to. I'aris, 1777 ; fuul lis Ceoiiraphie 
 cucieune abrigec, F<n-is, '\i'ol, Z'wj. 1760. dllarhis, Geo- 
 gruphia A>itiqna, Lc'ipfa:, 2 'vrl j\fo. 175^ ? MoJtrn Vin- 
 verfal H'ljlorv, I'ol, 4. p. 313 — 579. and Mr. Pirfhr/c»\' 
 Dijjirtntion on the Origw and Progrcfsof the Scyihiois vr 
 Goths, ivo. 1737. Some oF his fatls, arguments or con- 
 chifions, may be denied, but ueiilitr his learning nor his 
 ingenuity ran be difputeil. 
 
 uia.ile 
 
C( 
 
 u 
 
 78 THE FEUDAL LAW. 
 
 made any impreffion on their territory, wheri 
 Tacitus wrote ; but he pronounced them, « more 
 " formidable enemies than the Samnitcs, Cartha- 
 *' ginians, or Parthians.** He fecms to intimate 
 an apprehenfion, that the prefervation of the 
 Roman empire depended on the quarrels of the 
 Barbarians among themfelves. ** The BruiSleri," 
 thefe are his remarkable expreffions, " were 
 
 totally extirpated by the neighbouring tribes, 
 *' provoked by their infolence, allured by liieir 
 
 hopes of fpoil, and perhaps infpircd by the 
 " tutelar deities of the empire. Above fixtv 
 *' thoufand Barbarians were deftroycd : not by 
 " the Roman arms, but in our (i^ht ; and for our 
 *' entertainment. May the nations, enemies of 
 ** Rome, ever pre.ferve this enmity to each other ! 
 ** We have now attained the utmoft verge of 
 <* profperity, and have nothing left to demand of 
 " fortune, except the difcord of the Barbarians." 
 In the reign of Marcus Antoninus, all the na- 
 tions of Germany and Sarmatia, entered into a 
 league againft the Romans ; he difTipatcd it. — In 
 Ids than a century the Germans invaded the 
 empire in every part of its territory, on the Rliine 
 and the Danube. 
 
 Of all the tribes, who invaded the empire the 
 Goths are the moft remarkable. I'ije univcrfal 
 tradition of the nations of the north, ana the uni- 
 vcrfal language of their ancient writers, places the 
 Goths, as early as general hillory reaches, amoMg 
 
 tij". 
 
THE FEUDAL LAW. ff> 
 
 the nations on the Baltic, and affigns the deno- 
 mination of Vifigoths or vveftern Goths, to thofe 
 tribes of them, wlilc h inhabited that part of Scan- 
 dinavia which borders on Denmark, and the 
 denomination of Oftrogoths or eaftern Goths, to 
 thofe, which inhabited tlie more eaftern parts of 
 the Baltic, in all their emigrations and fettle- 
 ments, they preferved their names, and the fame 
 relative fitualion. Towards the end of the firft 
 century of the Chriftian asra, a large eftahlini- 
 nient of them is found on the Viftula, and nu- 
 merous tribes of the fame origin, but known by 
 the appellation of Vandals, are found on the Oder. 
 —- Hiftory then Ihcws their emigrations to the 
 Euxine, the fettlemcnts of the Oftrogoths in tlic 
 fouthern parts of Afia Minor, and the fettlemcnts 
 of the Vifigoths in Thrace. At the battle of 
 Adrianople the Goths obtained over the emperor 
 Valens, a vi6lory from which the empire of the 
 weft never recovered. 
 
 The irruptions of the nortlicrn nations, 
 which ended in their permanent fettlements 
 in the territories of the Roman empire, may 
 be traced to the final divilion of the empire, 
 between Arcadius and Honorius, the fons of 
 Theodolius the great in 395. I'he empire of 
 the eaft, comprifing Thrace, Macedonia, (i.vcce, 
 J^acia, Afjt Minor, Syiia, and /Egypt, was 
 afligned to the former; the empire of the weft, 
 comprifinfj Itivly, Africa, Gaul, Spain, Noricum, 
 
 Paniionia, 
 
Chnft. 
 395 
 
 - 415 
 
 ttr THE FEUDAL LAW. 
 
 Pannonia, Dalmatia, and Moefia, ^vas affigncd toftll^\ 
 thelattei _ _ - . 
 
 In the year 406, the Vandals, Suevi, and 405 
 Alani, who inhabited the countries bordering 
 on the Baltic, made an irruption into Gaul ; 
 from Gaul they advanced into Spain, about the 
 vear4l5; they were driven from Spain by the 
 Vifigoths, and invaded Africa, where they formed 
 a kingdom - '' ' - - . 
 
 About the year 431, the Franl:s, Alemanni 
 and Burgundians penetrated into Gaul. Of tliefe 
 nations, the Franks became the mod powerful, 
 and having either fubdued or expelled the others, 
 made themfelves mailers of the whole of thofe 
 extenfive provinces, which from them, received 
 the name of France ' *• • = 
 
 Pannonia and Illyricutn, were conquered by 
 the Huns ; Rhoetia, Noricum, and Vindelicia, by 
 the Oftrogoths ; and thcfe were fome time after- 
 wards conquered by the Franks. 
 
 In 449, the Saxons invaded Great Britain. 
 The Herulians inarched into Italv, under tiie 
 command of their King Odoacer; and in 476 
 overturned the empire of the well 
 
 From Italy, in 493, they were expelled by the 
 Oftrogoths - - - _ _ 
 
 About the year 568, the Lombards, ifTuing 
 from the Marck of Bradenburgh invaded the 
 Higher Italy, and founded an empire, called the 
 kingdom gf the Lombards. After this, little 
 
 remained 
 
 - 431 
 
 449 
 
 476 
 
 493 
 
THE FEUDAL LAW. 
 
 81 
 
 remained in Europe of the Roman empire, befides After 
 the Middle and Inferior Italy. Thefe, from the^^"'*' 
 time of the emperor Judinian's conqueft of Italy 
 by the arms of Belifarius and Narfes, belonged to 
 the emperor of the call, who governed them by an 
 Exarch, whofe refidence was Bxed at Ravenna, 
 and by fome fubordinate officers, called Dukes - j;68 
 
 In 752, the Exarchate of Ravenna, and all the 
 remaining poifeflions of the Emperor in Italy, 
 were conquered by the Lombards. This, as it 
 was the iinal extindion of the Roman empire in 
 Europe, was the completion, in that quarter of 
 the globe, of thofe conquefts which edabliihed 
 the law of the feud - - - "" 75^ 
 
 The nations by ^hom thefe conqueds were 
 made, came, it is evident, from different coun^^ 
 tries, at diffei*ent periods, fpoke different lan- 
 guages, and were under the command of fepa* 
 rate leaders ; yet appear to have eftablilhed, iit 
 almoft every ftatc, where their polity prevailed, 
 nearly the fame fyftcm of law. This fyftem is 
 known by the appellation of the Feudal Law.—* 
 Modem refearchcs have ihown that fomething 
 very like feudalifm has immemorially prevailed 
 in India. 
 
 IIL 
 
 THE principal written documents, which are 
 the fources. from which the learning of foreign 
 
 O feuds 
 
6g 
 
 THE F2UDAL LAW. 
 
 f€uds is derived, may be divided into Codfes ofi 
 Laws, Capitularies, and Collections of Cufloms.. 
 
 With refpea to FEUDAL LEARNING 
 in general, it was long after the firA revival of 
 letters in Europe, that the learned engaged in the 
 lludy of the laws or antiquities of modern na* 
 tions. When their curiofity was firft diie«^ed to 
 them, the barbarous (lyle in which they arc 
 written^ and the rough and Inar-tificial (late of 
 manners they represent, were fo ihocking to their 
 claffical prejudices, that they appear to bive 
 turned from them with difguft and contempt. In 
 time, however, they became fenfible of their im- 
 portance. They were led to the fludy of them, 
 by thofe treatifes on the feudal laws, which are 
 generally printed at the end of the Juflinianean 
 CoUedlion. Thefe are of Lombard extradion, 
 and naturally gave rife to the opinion, that fiefs 
 appeared &rfl in Italy, and- were introduced by 
 the Lombards. From Italy, the ftudy of jurif- 
 .prudence was imported into Germany ; and this 
 opinion accompanied it thither. At firft, it ap- 
 •pears to have univerfally prevailed : but, when a 
 more extenfive knowledge of the antiquities of 
 the German empire was obtained, there appeared 
 reafon tc call it in queftion. Many thouglit the 
 claims of other nations, to the honour of having 
 introduced the feudal polity, were better founded : 
 fomc afcribcd them to the Franks f others, denying 
 . " the 
 
THE FEUDAL LAW. g^ 
 
 the exdufive claim of any particular nation, 
 afcribed them to the German tribes in general, 
 and aflerted, that the outline of the law of feuds 
 is clearly difcoverahle in the habits, manners, and 
 laws of thcfe nations, while ftill inhabitants of 
 the Hercynian wood. The time, when feuds 
 firfl ma'; their appearance, has equally been ?. 
 fubje(5i of coiitroverfy. The word itfelf is not to 
 ht found in any public document of authenticity 
 before the eleventh century. 
 
 ■I I. 
 
 m. t. 
 
 The moil ancient, and one of the mod im->- 
 portant, CODES OF LAW, in ufc among the 
 feudal nations, is the Saiic Law, It is thought to 
 derive its appellation from th« Salians, who in- 
 habited the country froni the Lefer to the Car- 
 bornarian wood, on the confines of Brabant and 
 Hainault. It was probably written in the Latin 
 language, about the beginningof the fifth century, 
 by Wifogaftus, Bodogadus, Salogailus and Win- 
 dogaftus, the chiefs of the nation. It received 
 confiderable additions from Clovis, Childebcrt, 
 Clotaire, CharlemagnC) and Lewis the Debon- 
 naire. There are two editions of it : they 
 differ fo confiderably, that they have been fome- 
 times treated as diftindt codes. 
 
 G a 2. The 
 
34 THE FEUDAL LAW. 
 
 1, The Franks, who occupied the country 
 upon the Rhine^ the Meufe, and the Scheldt, were 
 ]( iov;n by the name of the Ripuarians, and were 
 governed by a colleclion of laws, whkh fronx 
 them was called the Ripuarian Law. They feecn 
 to have been tirft promulgated by Theodoric, 
 and to have been augmented by Dagobert. The 
 puniHimcnts inBidcd by the Ripuarian are more 
 I'evcre than the puuiiliments infli<Sted by the Salic 
 law ; and the Ripuarian law mentions the trial by 
 judgment of God, and by duel. 
 
 Theodoric alfu appears to liave firft promul- 
 gated the law of the Jkmartni. 
 
 3. The luvj of the Burgundiai^s is fuppofed to 
 have been promulgated about the beginning of the 
 liftii century; that nation occupied the country 
 which extends itfelf from Alface to the Medi- 
 terranean, between tlie Rhone and the Alps; 
 This was the mod flourifliing of the Gallic pro- 
 vinces invaded by the Germans; they eftablilhed 
 thcmfelvcs in it, with the confcnt of the emperor 
 Monorius. An alliance fubfifted for a conlider- 
 uble time, between tliem ar^ the Romans; and 
 fome parts of their law appear to be taken from 
 the Roman law, ' - '"^i "-> i^ii-»»i?« % ■.^.r?.//A. 
 
 4. One of the mofl; ancient of the German 
 codes is that by which the Angl'wnes and the 
 fVcr'mt were governed. The territories of thefe 
 nations were contiguous to thofe of the Saxons; 
 
 7 - J"^^ 
 
THE FEU PAL LAW. 85 
 
 4snd the Angliones are generally fuppofed to be 
 the natioa knowQ ia our hiibry by the nanne 
 of Angles, - ,—>••>'; r^ 
 
 A confiderable portion of the Law of the Saxons 
 has reached us. ^ ' •; ;r,- ;: 71 ■ i 
 
 The Goths alfo had their law^, •which were 
 promulgated by the Oftrogoths in Italy; by the 
 Vifigoths in Spain. • '■:..■.-, :■< > .?; u../^ v, '-.- 
 
 The Goths were difpofleflcd of their conquefts 
 in Italy by the Lombards. No ancient code of 
 law is more famous than t/ic Law of the Lombards ; 
 none difcovere more evident traces of the feudal 
 polity. It furvived the deflruclion of that empire 
 by Charlemagne, and is faid to be in force even 
 now, in fome cities of Italy. * 
 
 Thefe were tlie principal laws, which the foreign 
 nations, from whom the modern governments of 
 Europe date their o^ igin, fiift efrablilhed in the 
 countries, in which they formed their refpedive 
 fettlements. Some degree of analogy may be dif- 
 covered between them and the general cuftoms, 
 which, from tlie accounts of Cselar and Tacitus, 
 wc learn to have prevailed among ttiem, in their 
 fuppofed aboriginal ftate- A coniiderable part alfo 
 of tli.em is evidendy borrowed from the Roman 
 law, by which, in this inftance, we muft under- 
 fland the Theodofian code. This was the more 
 natural, as, notwithftaiuling the publication of the 
 Ripuarian and Salic codes, the Roman fubjedh in 
 Qa.}A were indulged in the fixe ufe of the Theo- 
 
 G 3 -dohan 
 
86 THE FEVDAL LAW. 
 
 dofian laws, efpecially in the cafes of marriage, 
 inheritance, and other important tranfadlions of 
 private life. In their eflabliiliments of magiftrates 
 and civil tribunals, an imitation of the Roman po- 
 lity is difcoverable among the Franks ; and, for a 
 conliderable time after their firft conquefts, fre- 
 quent inftances are to he found, in their hiftory, 
 of a difference, and, in fome inftances, even of an 
 acknowledgment of territorial fubmiffion to the 
 ' emperors of Rome. .;.,'' j ^ 
 
 •Jv :.i,.j ;<s 
 
 III. 
 
 2. 
 
 In the courfe of time, all thefe laws were, in 
 fome meafure at leaft, fuperfeded by the CAPI, 
 TULARIES. The word Capitulary is generic; 
 and denotes every kind of literary compofition, 
 divided into chapters. Laws of this defcriptioii 
 ■were promulgated by Childcbert, Clotaire, Carlo- 
 man, and Pepin : but no fovereign fecms to have 
 promulgated fo many of them as Charlemagne. 
 That monarch appears to have widied to effeiSl, 
 in a certain «iegree, an uniformity of law through- 
 out his extenfive dominions. With this view, it is 
 iuppofcd, he added many laws, divided into fmall 
 chapters or heads, to the exifting codes, fome- 
 times to explain, fometimes* to amend, and fome- 
 times to reconcile or remove the difference be- 
 tween them. They were generally promulgated, 
 in public affemblics, compofcd of the fovcreigw 
 
TTIE FEUDAL 7. AW. 87 
 
 and.the chief men 6f the natio'.-, as well ecclefi- 
 allics as fecular. They regulated, equally, the 
 ipiritual and temporal adminilbation of the king- 
 dom. The execution of them was intruded to 
 {he'bi(hops,the counts, and the mifli regii. Many 
 co}Nes of them were made, one of which was ge- 
 nerally preferved in the royal archives. The au- 
 thority of the Capitularies was very extenfive ; it 
 prevailed in every kingdom, under tlie dominion 
 of the Franks, and was fubmitted to in many parts 
 ef Italy and Gormanry, 
 
 The .earlieft colle£lion -of the Capitularies is 
 that of Angefife, abbot of Fontervdlles. It was 
 adopted by Lewis the Debonnaire and Charles the 
 Bald, and was publicly approved of, in many 
 councils of France and Germany. But, as An- 
 gdife • had omittjed -many Capitularies ^a bis col- 
 le£tion, Benedift, the Levite or Deacon of the 
 church of Men^z, added -three books to them. 
 Each of the colledlions was confidercd to be 
 authentic, and of courfe appealed \,o as law. 
 Subfequent additions have been m«ide to them. 
 The heft edition of ihcm is that of Baluze in 
 ^697 : a fplendid republication of this edition was 
 begun by M^ de Chiniac in 17 80; he intended to 
 comprife it in four volumes. Two only have yet 
 made their appearance. 
 
 In the col!c(Stion of ancient laws, the capitu- 
 laries are generally followed i)y tlie Formular'ia^ 
 jprfprms of forenfic proceedings and legal inrtrii- 
 
 G 4 mcnts. 
 
£8 
 
 THE FEUDAL LAW. 
 
 ipcnts. Of ihefe, the formulare of Marculphus 
 is the moft curious. The formularia generally 
 clofe the colledlions of ancient laws. With the 
 Merovingian race, the Salic, Burgundian and Vifi- 
 gothic laws expired. The capitularies remained 
 in force in Italy longer than in Germany ; and 
 in France, longer th m in Italy. The incurfions 
 of the Normans, the inteftine confufion and 
 ■weaknefs of government under the fucceffions of 
 Charlemagne, ami, above all, the publication of 
 the Decretum of Gratian, which totally luper- 
 feded them in all religious coacerns, put an end to 
 their autliority in France. ' 
 
 III. 
 
 They were in fome mcafure fucceeded by the 
 CUSTOMARY LAW. 
 
 I. It is not to be fuppofed, that the codes of 
 law, of which we have been fpeaking, entirely 
 abrogated the ufages or cuftoms of the countries 
 in which they were promplgated. Thofe laws 
 only were abrogated by them which were abro- 
 g;ited by the regulations they ellabliflied. In other 
 rcfped^s, the codes not only permitted, but, in 
 fome iaftances, exprefsly directed, that the indent 
 Cujhms fliould remain in force. Thus, in all the 
 countries governed by the ancient codes, there 
 exiftcd at the Hirnc time, a written liody of law, 
 fandtioned by public authority, and ufages or 
 
 cufloms. 
 
THE FEUDAL LAW. 
 
 89 
 
 cuftoms, admitted to be of public authority, by 
 which thofe cafes were frequently governed, for 
 which the written body of law contained no pro- 
 vifion. After the ancient codes and capitularies 
 fell into defuetude, thefc cuftoms were multiplied. 
 
 a. By degrees JVtittcn Collc^lom of them were 
 made by public authority ; others, by individuals^ 
 and, depended, therefore, for their weight on the 
 private authority of the individuals, by whom 
 they were made, and the authority which they 
 infenfibly obtained in the courts of juftice. 
 
 Colle6tions of this nature committed to writing 
 by public autho: ity form a coniiderabK'j part of 
 the law of France, and are a flriking feature of 
 the jurifprudence of that kingdom. Tlie origin 
 of them may be traced to the beginiaing of the 
 Capetlan race. The monarchs of that time, in 
 the charters by which they granted fiefs, pre- 
 fcribed the terms upon which tliey were to be 
 held. Thcfe, they often abridged, enlarged, and 
 explained, by fubfeqiient charters : tliey alfo 
 pubUthed charters of a more extenfive nature. 
 Some of thsm contained regulations for their own 
 domain ; others contained general regulations for 
 the kingdom at large. In Imitation of tlieir mo- 
 narch, tlie great vafi'als of the cro>*n granted their 
 charters for the regulation of tlie poffeflions held of 
 them. In the fame manner, when allodial land was 
 changed to feudal, charters were granted for tlic 
 regulation of tiic iicfs ; and, when villeins were 
 
 cnfranchifcdy 
 
§o THE FEUDAL LAW, 
 
 cnfranctiifed, poffeluOns wer^' generally given 
 fchem, and charters were granted to rcguhte thefc 
 pofleffions. Thus, each feignory had its par- 
 ticular ufages. Such was -their divcrfity, that 
 throughout the whole kingdom, there could 
 hardly be found two feignories, which were go- 
 verned, in every point, by the fame law. 
 
 3. With a view more to afceitain than to 
 
 produce an uniformity in thefe ufages, though the 
 
 latter of thefc obgedts was not quite negledled, 
 
 Charles the feventti and his fucceffors caufed to 
 
 be reduced to writing the diiFereni: local cuftoms. 
 
 In 1453* fometime after Charles the Seventh had 
 
 expelled the Englifla from France, be publiflied 
 
 &n ordonnance, by which he diredted that all the 
 
 cufloms and ordonnanoes ihould be committed to 
 
 writing, and verified by the practitioners of each 
 
 place, then examined and fan6tioned by the great 
 
 council and parliament; and that the cuftoms, 
 
 tluis fanCtioned, and thofe only, fhould have the 
 
 force of laws. Such were the obftaclcs in tlie 
 
 way of this meafure, that forty-two years elapfed 
 
 liefove the cuftoms of any one place were verified. 
 
 From that time the meafure lingered, i)ut it 
 
 was rcfunied in the reign of Lewis the XII ; 
 
 4ind about the year 1609, it was completed. The 
 
 t uftoms of Paris, Oilcans, Normandy, and fome 
 
 other places, were afterwards reformed. Thofe 
 
 of Artois ar.vi St. Oiner were reformed within the 
 
 -Uft hundred yeai's. 
 
 The 
 
THfi FEUDAL LAW. 91 
 
 The manner of proceeding, both in reducing 
 .he cuftoms and reforming them, was, generally 
 fpeaking, as follows. The king, by his letters 
 patent, ordered an affeiribly of the three flatcs of 
 each province. When this aflcmbly met, it 
 diredlcd the royal judges, greffiere, maires and 
 fyndics, to prepare memoirs of all the curtoms, 
 ufages, and forms of prac^lice, they had feen in 
 ufe, from of old. On receiving ihefe memoirs, 
 the ftates chofe a certain nuTnl)er of notables, and 
 referred the memoirs to them, with directions to 
 put them in order, and to frame a cahier or iliort 
 minute of their contents. This was read at the 
 aflembly of the ftates ; and it was there con- 
 fidered, whether the cuftoms were fuch as thev 
 were ftated to be in the cahier : at each article, 
 yny deputy of the ftate was at liberty to mention 
 fuch obfcrvations as occurred to him : tlie articles 
 were, then adopted, rejedled, or modiiied, at the 
 plcafure of the aflcmbly, and, if they were 
 fan6lioncd, were taken to parliament and rc- 
 girtcred. The cuftoms of each place, thus reduced 
 tti writing and faudioned, were called tlie Coiitu- 
 m'ur of that place: they were formed into one 
 folledlion, called tlie Coutnmicr de France, or the 
 Grand Coutumicr. The heft edition of it is 
 Richebourgh's, in 4 volumes, in folio. Ii con- 
 taii^s about one hundred coUcilions ot the cuftoms 
 of provinces, and two hundred collections of the 
 (Culloms of citic^s, towns, or villages. Each cou- 
 
92 THE FEUDAL LAW. 
 
 tumicF has been the fubjefl of a commentary : 
 five and twenty commentaries, (foirje of them 
 voluminous), have appeared on the coutumier of 
 Paris. Of thefe commentaries, that of Dumouh'n 
 has the greateft celebrity. Lcs Etablifemcnts de 
 St. Louis, hold a high rank for the wildom with 
 which they are written, and the curious matter 
 they contain. The Coutumier de Normandie, for 
 its high antiquity, and the relation it bears to the 
 feudal jurifprudence of England, is particularly 
 inlerefting to an Englifli reader : Bafnage's edition, 
 and his learned commentary upon it, are well 
 known. ,. . ^. , „ ,,,,,. 
 
 4. Thefe are the principal fources of the Feudal 
 Jurifprudence of France ; it remains to take fome 
 liotice of the chief compilations^ by which the 
 feudal policy of other kingdoms is regulated. The 
 moft curious of all colledions of feudal law is 
 that entitled A(fi%cs dc ycrufalem. In 1099, ^^^ 
 object of the firft crufadc was efFe6led by the con- 
 c|uefi. of Jerufalcm. Godfrey of Bouillon, who 
 was elected king of Jeri.fJ .n, but refufcd the 
 title, called an allembly of the ftates of his new 
 kingdom. The patriarch, the chief lords, tlieir 
 vaflals, and their arriere-vaffals attended. With 
 general confent, the collection in queftion was 
 formed, under the title of " Lcs Loix^ StatutSy isf 
 '* Coutumcs, accordces au Royaume de Jerujalcmy 
 *■'■ par Ciodrfroi de Bouillon, Can 1099; par Vavis 
 *♦ du Patriarchc ei dcs Burom." As this coUciStion 
 
 was 
 
THE FEUDAL LAW. ^ 
 
 Was made at a general aflenihly of feudal lords, 
 it may naturally be fuppofed to contain feme of 
 the wifeft and mod ftriking rules, by which the 
 feudal policy of Europe was then regulated. But, 
 as the principal perfonages who engaged in that 
 crufade came from France, it may be confidered 
 as particularly defcriptive of the laws and ufages 
 of that country. 
 
 5. The next to thefe, in importance, are the 
 Books of Fiifs, which, probably in the reign of 
 Frederick the S/ccond, Hugolinus, a Bononian 
 lawyer, compiled frdm the writings of Obcrtus, 
 of Otto, and Gerhardus Niger, and the various 
 cuftomary laws then prevailing in Italy ; they are 
 fometimes added, under the title Decima Collatio, 
 to the Novells; and are to be found in moft of the 
 editions of the Corpus Juris Civilis. In the edi- 
 tion of Cujas they confift of nve books ; the firfi-, 
 contains the treatifes of Gerhardus Nisrer; the 
 fecond and third, thofe of Obertus of Otto ; the 
 fourth, is a feled^ion from various authors; the 
 fifth, is a colle£lion of conftitutions of different em- 
 perors refpedling feuds. To thefe, the Golden Bull 
 of the emperor Charles the Fourth is often added. 
 Authors are by no means arrccd, either as to the 
 order, or the divifion of ihl;; eolledlion. Several 
 editions have been miile of it. 
 
 6. In that publifljed by Joannes Calvinus or 
 
 Calvus, at Frankfort, in 161 1, there is a colledlion 
 
 of every pojfagc in the canon lazvj that Jccnis to 
 
 •' rt-late 
 
94 THE FEUDAL LAW. 
 
 re/ate to the hrjj of feuds. As this edition 2s ft;arce- 
 and it may happen, tliat fome Englifli reado' 
 may be defirous of feeing all thefe pafTages, tba 
 following fnoi t account of Calviniis or Calvus's 
 feletSlion of them, is tranfcribed from KofFman's 
 DifTertatio de Unico Jmis Fcudalis Longobardici 
 Libro.— " Jurifprudcntiain feudalem, fax libris 
 *' comprehcnfam, {w^ potius confuetudines feu- 
 ** dorum, fecundum diftributionem Cnjaeianam, 
 ** eJidit, ct fub titulo llbri feudorum VI. addidit, 
 •' cjuidquid aliciijus dc hac materia momenti^ in 
 «* univerfo corpore juris canonici exprelfum irv- 
 " venerat \ hoc eft totum titulum decretalium 
 " Gregorii IX, five capitula, Infmuatione i. Et 
 " ex parte tua 2. X. dc feuJis porro cap. caeterum, 
 5. etnovii ; 13 de Judicii?, cap. Qux in Eccle- 
 liarum, 7 dc Conftitutionibus, cap. Ad dures, 
 10 in quibufdam, 12 et Gravcni, 53 de Sent. 
 *' excomm. cap. lix tranfmifla, 6 et verum, 7 de 
 " foro competcnte eorumque furamaria." 
 
 7. The next treatifc to be mentioned is, the 
 'I'reatife de Bcnefidisy generally cited under the 
 iipjx'llation of AuSlor vcUis de Bene fiats. It was 
 iirll puhlillied by Thomafius at Halle, 1 708, with 
 a dlflertation on its autlior, and the time when it 
 was written. lie conlidvjrs it to be certain that it 
 was written after the year 8co, and before the 
 year isiJO, and conje6liircs that it was not written 
 before the emperor Oiho, and that it was written 
 before the emperor Cow] ad the Second. To thefe 
 
 muft 
 
 <( 
 
 c< 
 
THE FEUDAL LAW* g^ 
 
 mnft be added, the Jus Fcudale Saxonicuntf wliich 
 feems to be a part of, or an appendix to, a treatife 
 of great celebrity in Germany, intitled the Spe^ 
 ciilum Saxonicum. The Jus Feudaic Saxomcuntf is 
 faid by Struvius to have been tranflated by Gol- 
 daftus from- the German into the Latin language, 
 for the benefit of the Poles. It h fuppofed to 
 have been pubhfhed between the year 1215 and 
 (he year 1250. The Speculum Suevlcum fecms to 
 have been compofed, in imitation of the Specultttn 
 Saxonicuwi, probably betwecrt the year 1250 an(^' 
 the year 1400. To this is added the Jus Feudali 
 Akmannicumy compofed about the fame timej- 
 and probably by the fame author. But none of 
 thefe collcdions acquired the fame authority as 
 the Books of the Fiefs. Thofe wer« known bv tlie 
 name of the Lombard Law : by degrees they 
 were admitted as autliority by mod of the courts, 
 and taught in mod of the academies of Italy and 
 Germany. 
 
 8. Like the civil and canon law, they became 
 the fubje£l of innumerable GloJTcs. Thofe of 
 Columbinus were fo much efteemed, that no one, 
 it is faid, publtflied at>y after him. Al)out the end 
 of the thirteenth century, James of Ardczenc pub- 
 lilhed a new edition of tlie glofs of ColumbiHus, and 
 added, under the title of Capitula Extraovdinuria, 
 a collection of adjudged cafes on feudal matters. 
 This is infertcd in fome of the latter editions of 
 the Corpus Juris. About the year 1430, Min- 
 
 cuccius 
 

 
 THE FEUDAL LAW. 
 
 cuccius de Prato veteri, a Bononian lawyer, ty 
 the orders of the emperor Sigifmond gave a new- 
 edition of the books of the fiefs, with the gV-fs of 
 Columbinus. Thefe were confirmed by the em- 
 peror Sigifmond, and afterwards by the emperor 
 Frederick the Third, and publicly taught in the 
 univerfity of Bologna*. 
 
 • This article is extrafled from the Hijioria Juris Ro- 
 mam-GemiaHici of Bruaquellus ; tte Hijioria Juris ci'vilis 
 Romuni et GermaNici of IJei/ieccius, already cihd j from 
 Lindmbrogius' s Prolego>iicna to his Codex Legunt AntiquaruTtit 
 Frankfort i i i;ol. fol. 16135 Baluzius^s Preface to his Capi- 
 tularia Regum Francorumt 1677 «»</ 17805 the Tbefaurus 
 Feudalts of yenicben, publifoed at Frankfort on the Main^ 
 3 <vol. 4/0. 1750 i Stru'vius''s Hiforia Juris, Jena, t^to. 1728 j 
 SeleStateudtiliaof'lhomaJhiSi Halle, %vo. l^^%i Fleurfs 
 Hijioire du Droit Franfais, Paris, » <z;o/. 2<vo. j generally pre- 
 fixed tu the hijhtution au Droit Francois et Argou j and the 
 article, Cuutti?ne, fent hy M. Henrion to the French Mncy- 
 clopcdia, , ■ ■ t — ,. . -' 
 
 _ .. . fV .,; I r ,j. \ '>,■ !,*,;: ?f!. ', ■ . 
 
 iiC'i ','■■ *> (''^\U;i in ')£'T,'' ;"• ,/' '' •- ^^ .' 
 
 . J. i ::, ;<; y.'.'f; !■ 'ihi 'nn; .Ut^,, *, -I 
 
 ,( liiJi ilhr >> .'1 'it ' ■ 
 
 ; . I ' '< I i 1 ' i 
 
 ►> d 
 
 
 
 ;^ . -■ 
 
 hjsiii.jv v:!f!«« 
 
 
■^ri, [ 97 .]. ii.iT 
 
 b> 
 
 .vv THE CANONL AW. I - 
 
 'T'HE following flieets, after fome introdu^ory 
 matter refpefting, I. the religious worthip 
 and hierarchy of Pagan Rome ; II. refpe£ling 
 the rife and progrefs of Chriilianity, from its 
 being the ixio^ perfecuted ie&t to its becoming 
 the eftablilhed church of the Roman empire; 
 and III. refpedting the principal orders of the 
 Chridian hierarchy ; will contain, IV. a men- 
 tion of the general materials, and V. an hif- 
 torical account of the particular documents, of 
 which the CANON LAW is compofed. 
 
 »/ >. 
 
 -.1. 
 
 f ?o .;ji.j*¥\!!j ,:;iii-.;i5!i ,rn;^ijp' 
 
 \ r. -. . ,' f 
 
 ■ ' ' ■;■■.,. 
 
 I. I. It feems generally underftood that the 
 ANCIENT RELIGION OF ROME was 
 of Celtic extraction, without images, without 
 temples, and with few religious rites ; that Nuraa 
 eflabliihed many ceremonies, and built a temple 
 for facrifices to the one eternal God; that, in 
 other refpe(5t$, h^ left the religion of Rome in its 
 .. r .c .1 fl ii origintl 
 
' \ 
 
 ^« THE CANON LAW. 
 
 original rimplicity; and that Tarquinius Prifcus 
 introduced into it the iuperditions of the Greeks 
 and Hetrufcans. 
 
 I. 2. THE GOD^ whom the Romfahs wor. 
 {hipped, were divided into the Dii Afajorum Gen^ 
 tium, or the great calcftial deities, with the Z)» 
 Selefli ; and the Dii M'morum Gentium, or the in- 
 ferior gi>^i. The ooeleftial deities 'were twelve 
 in number : Jupiter, tlie kit>g of ^ods and men ^ 
 Juno, hit Cftcr and wife ; Minerva, (he goddefs 
 pi wifdom i, VcAa, the goddofs of fir* ; Ceres, 
 ih(B goddefi of cora and husbandry ; Neptuiie, 
 the ;ged of the fea ; Venus, the goddefs of love 
 and beauty ; Vulcan, the god of fire j Mars, the 
 ^od of war; Mercury, the god of eloquence 
 and trade ; Apollo, the god of mufic, poetry, 
 medicine and augury ; and Diana, the goddeis 
 of the woods. The Dii Select were Saturn, the 
 god of time ; Janus, the god of the year, and 
 Rliea his wife ; Pluto, the king of the infernal 
 regions ', Bacchus, the god of wine ; Sol, the 
 fun ; Luna, the moon \ and Genius, each man 
 and each placets tutelary god. The Dii Mirmum 
 Gentium were the Dii Indigetes, or heroes ranked 
 among the gods on account 'O'f their heroic virtues, 
 as Hercules, Cador, and Pcyiitx, ^neas ^nd 
 Romuhis { the Dii Semones, <»- Semiliomines, lefs 
 fhan gods and greater than 'men, as Pan, Pomona, 
 Flora, Terminus, the Nymphs. -^'■'•t ^- ■ 
 ;*«.ji«a g I. 3. Tq 
 
 /", 
 
THE CANON LAW. r$^ 
 
 I, 3. To the fervice of thiefe gpd« feyeral fol- 
 leges of priejis were dedicated :— rFiftecn Poutiffs, 
 wliofe ofjBce it w<»s to judge and determine oa 
 all facred things ; fifteen Augurs whp^ from the 
 ^ight, chirping or f^^eding of birds, and Aftei^n Aru£v 
 pices whO} fro0) entrails of vidinis, derived 
 omens of f^urity ; the Quindecemviri, who hji4 
 the care of the SibylHne bopks ; th^ Septemviri, 
 who prepared t)ie facred feails ; the Fratres Am-> 
 be rv ales, wlio pff<pred up facriiiccs fpr the fertility 
 of the grounds ; the Cpriones, who officiated ii) 
 the Curi?p ; the Feciales, pr facred perfons em- 
 ployed in declaring war and making peace ^ the 
 Sodaies Titii, whofe office it was to preferve th^ 
 facred rites of the Sabines; and the Rex Sacrorum, 
 to whom that title was given from his performmg 
 certain facred rites, which could only be pcrr 
 formed by royal hands. 
 
 In addition to thefe, each god had his Flamines^ 
 or particular prieds. The fix veflal virgins had 
 the car^ of the facred fire in the temple of Vefta, 
 and the fecret pledges of the eternal duration of 
 Rome were intruded to them* Every part of the 
 empire abound(;d with temples and ilatues, and in 
 every temple and ftatue a divine fomething was 
 fuppofed to rcfide. .. ' . ■■■- ,- 
 
 . ^Vhen we consider the general abfuj^ity of the 
 pagan creed, we find it difficult to fuppofe, that 
 any rational mind could ferioufly believe its doc- 
 trines, or that it fhowld become th^ national religion 
 
 H 7. ©f 
 
too 
 
 THE CANON LAW. 
 
 of a great and fenfible people. Thofc doubts in- 
 creafe on us, when we fee how often the religious 
 prejudices of the Romans were ufed by the leading 
 men of Rome as an engine for political purpofes; 
 when we confider the ridicule with which the lefs 
 and even the greater deities were treated by their 
 poets, philofopheis, and hiftorians ; and when we 
 read the paflages in the works of Cicero and other 
 writers, in which, often indiredlly, and fometimes 
 in the moft diie«5l terms, they deliver it as their 
 opinion, that, in religion there are many truths 
 which it is not expedient the vulgar fhould know ; 
 and many falfehoods which it is ufeful for the 
 people to receive as truths. But there is reafon 
 to believe, that till the Greek philofophy found its 
 way into Rome, the general body of the Romans 
 was fmcere in the worfhip of their gods ; and that, 
 even after the introdu6kion of the Greek phi- 
 lofophy, the number of thofe who gave up the 
 whole of the national creed was very fmall. A 
 freedom, even from the loweft kind of fuperftition, 
 is often mentioned by their writers as a great ef- 
 fort of the human mind : and the writings of 
 Cicero demonftratively prove, that thofe who re- 
 je(5led the popular fuperftition, had no fettled fyf- 
 tem of religious belief to fubftitute in its place. 
 The total extirpation of pagan fuperftition, which 
 pagan philofophy could not eft*e£l, it is the triumph 
 of chriftianity to have accompli (hed ; and to have 
 introduced at the fame time, a fimple and fublime 
 ' , •' - religion, 
 
THECANONLAW. Mf 
 
 religion, accommodated to all perfcns, all times, 
 and all circumflances, on which the weak and the 
 
 ftrong may equally rely*. ,; f 
 
 II. 
 
 f.t 
 
 BY the law of Athens, the aft of Introducing 
 foreign deities was punlfhed with death. The 
 law of Rome was not fo fevcre : Mofticim and 
 Bynkerfliook feem to prove, that though the Ro- 
 mans would not allow any change to be made in 
 the religions which were publicly profeffed in the 
 empire, nor ary new form of worftiip to be 
 openly Introduced, yet that, except when it 
 threatened danger to the ftate, they granted a 
 FREE TOLERATION OF FOREIGN 
 WORSHIP, not only to Individuals but to bodies 
 of men. 
 
 The Chriftians, whofe mild, unaffuming, and 
 benevolent morality entitled them to univerfal 
 good will, were alone denied the benefit of this 
 general tolerati .n. From the reign of Nero, till 
 the triumph of Conflantlne the Great over his 
 rival Licinius, they were always treated with 
 har/hnefs, and repeatedly fuft'ered the fcvercft 
 perfecutions. '■•'* ....i.',.'^- ., , ., » v 
 
 The favour of Conftantine to them was, im- 
 mediately after his firft fuccefles, ihown by his 
 
 * Bra'ifort, Rep. Rom. 1. i. Adamses Roman Anti- 
 
 •jiiities. -S; — 303. 
 
 H 3 repealing 
 
tdt 
 
 THE CANON LAW. 
 
 repealing of the laws cnafted againft them. By 
 the fedi(5l of Milan he reftorcd them to all their 
 civil and religious rights, and allowed them, in 
 common with the reft of his fuhjeds, the free 
 choice and exercife of their religion. In the ge- 
 neral difpenfation of his favours, he lield, with an 
 impartial hand, tlie balance between his chriftian 
 and heathen fubje^ls. His fuccelTors, except 
 during the flioi t interval of Julian's reign, flrong- 
 ly encoiiraged chHftianity and difcountcnanced 
 hfenthenilm ; and finally, by the ^-difls of Theo- 
 dofiUs, the ancient vvorlliip of Rome was pro- 
 fcribed, and chriftianity became the eftablifhetl re- 
 ligion of the empire. Till thofe edicts, the fpirit 
 ftf polytheifin, had lingered among the principal 
 fjobdity of Rome ; after them, it lingered among 
 the Grecian philofophers : but by his edict in 529, 
 Juftinian filenccd tlie fchools of Athens, and to 
 that asra the final extin6lion of Paganifm !>: always 
 affigned*. 
 
 * Francis Baldutnus, Commen'ar'tus ad ediSla Impcra- 
 iorem in Chrijlinms, Edit, Gunmg\ Bytikerjbook, Dijfer- 
 tatio de Cultu Peregrina fieligionis apud Romanos, in 
 OpuJruHs, Lugd. Bat. 17 19. Mojbeitni de Rebus Chrijii^ 
 cinoruin ante CoKjlantinum Magnum, Commentaii, Helm- 
 Jladiiy ^to. 1753, f. i.yi'^9. 8. ; Seculum prctnum, a; — 32. 
 In his Six Letters on Intolerancet London, 1791, Sir Geo. 
 Cokhrooke has collected many curious facts to flicw, that 
 the leligioiis toleiaiion of the Romaics was by no means I'o 
 ^)eiii.£l; as is generally thought, 
 
 III. IN 
 
THE CANON LAW. 
 
 1IO3 
 
 III. 
 
 
 I ' > ! i ! ' I 
 
 IN refpea to the CHRISTIAN HIERAR- 
 CHY, the Roman empire, at the time when Chrif- 
 tianity obtained in it a legal eftabli(hment, under 
 Conftantine the great, had reached itsutmoft limits, 
 it was divided into four Praefe(Slures : the Eaftern, 
 which comprifed the country between Thrace and 
 Perlia, the Caucafus and the Cataracts of the 
 Nile ; the Praefedlure of Illyricum, which com- 
 prifed Pannonia, Dacia, Macedonia, and Greece; 
 the Pr^fe^ure of Italy, which eomprifed Italy, 
 Rhoetia, the Iflands of the Mediterranean, and the 
 part of Africa from the wefternmoft mouth of the 
 Nile to Tingitana ; and the Praefedture of the 
 Gauls, which comprifed Spain, Britain, and the 
 pari, of Africa from Tingitana to the weftern 
 ocean. Each praefedture was divided into feveral 
 diocefes ; each diocefe into feveral provinces ; and 
 in each province there was one, and fomecimes 
 more than one mother-town, on which other towns 
 depended. The dioct Ics were thirteen in number, 
 the provinces one hundred and twenty. 
 
 In the cflabliniment of her hierarchy, the Chrif^ 
 tian churcii. particularly in tiie call, appears to 
 have coiilormcd very much to this model. Before 
 the trauilation of tlie feat of the Roman empire to 
 Conftantinople, the church luul the three Patri- 
 archates of Rome, AntivX'h, and Alcxundriu ; after 
 
 II 4 iii 
 
104 THE CANON LAW. 
 
 its tranflation, the bifliops of Conftantinople ac- 
 quired importance ; by degrees they obtained eccle- 
 fiaftical jurifdidion over Thrace, Afia, and Pontus, 
 and were elevated to the rank of patriarch : after- 
 wards, the fame rank was conferred on the biihop 
 of Jerufalem : and, according to Mr. Gibbon'i! 
 obfervation, (vol. 6. p. 378.), the Roman biihop 
 was always refpedled as the firft of the five pa- 
 triarchs. Thus, fpeaking generally, the patriarchs 
 correfponded in rank with the prefects ; in each 
 diocefe there was a primate ; in each province, 
 one or more than one metropolitan ; and each 
 metropolitan had under him a certain number of 
 fuffragan biihops. Regular funds, proportioned 
 to their refpedlive ranks, were appropriated for 
 their fupport : except in cafes of fmgnlar enormity 
 rliey were exempted from the civil jurifdidtion of 
 the magiftrate ; and, in many other important 
 articles, a diftinfllon between the clergy and the 
 laity, wholly unknown in the law of heathen 
 Rome, was admitted into the Codes of the Chrif- 
 tian emperors *. 
 
 * Frederici Spauhemiiy Geographia Sacra, DijJributio Dice, 
 eefton et Profinciarum, inde a Temporibus Cottfiant'tni Magni 
 in orbe utroque, orientcdi et occidentali j inter Opera Omnia, 
 Lugduni Batanjorum, fol. I'vol. 75 — 104; Binghmh's An- 
 tiquities of the Chrijlian Churchy London, 1 726, fol. » (vol, 
 lib. ^.\ Du Pin, de Antiqud Ecclcfite Difciplimi, Par. 1686 ; 
 Petius de la Marca, Concordia Sacerdgtii ct^ue Imperii, fol, 
 Paris, 1 704. 
 
 IV. THE 
 
THE CANON LAW. 
 
 105 
 
 IV. 
 
 THE liberty of holding ecclefiaflical affemblies 
 
 was one of the moft important privileges of the 
 
 dignified members of the clergy. 0< calional ai- 
 
 I'emblies were convened of all the biihops in the 
 
 chriftian world, or of all the biihops witliiii the 
 
 limits of a patriarchate : and, gencially in tlie 
 
 fpring and autumn of every year, the metropolitan 
 
 convened the bifhops of his province to debate on 
 
 its religious concerns. From Concilium, which, 
 
 among the Romans, denoted a felc6l meeting in 
 
 contradiftindlion to Comitia, which they ufcd to 
 
 denote general meetings, ihefe airemblics received, 
 
 in the Latin church, the appellation of councils ; 
 
 in the Greek church they were called fynodsj at 
 
 a fubfequent time, the word council ftill retainin«T 
 
 its original import, the word fynod was ufed, in 
 
 the Latin church, to denote the aflemhly of a 
 
 bifliop and his clergy. The Scripture is the firfl:, 
 
 the decrees of the councils are the fecond fource, 
 
 from which THE MATERIALS OF THE 
 
 CANON LAW are drawn. The decrees and 
 
 decretals of the popes are the third ; the works of 
 
 the fathers and other refpecflable writers are the 
 
 fourth. By the decrees of the popes are meant 
 
 their decrees in the councils held bv them in Italv ; 
 
 the decretals arc tlicir anfwers to quertions pro- 
 
 pofcd to them on religious fubjeds, 
 
 ^ V. THOSE, 
 
106 
 
 THE. CANON LAW. 
 
 V. 
 
 THOSE, who profefs to give an HISTORI, 
 CAL ACCOUNT OF -THE CANON 
 I4AW, divide it into three periods : the ancient, the 
 middle, and the modern : — the ancient, begins with 
 the firft, and ends with the eighth century, wlien 
 Jlidore Mcrcator's colleftion of canons made its 
 appearance ; the middle, begins with that century, 
 and ends with the council of Pifa, in 1409 ; the 
 modern, begins with that council, and extends to 
 the prefem time. 
 
 THE ANCIENT PART OF THE HIS- After 
 TORY OF THE CANON LAW is re-Ouiil. 
 markable for feveral Colledlions of Canon?. 
 
 I. Some are CANONS OF THE GENE, 
 RAL CHURCH. 
 
 The firrt colledion of thefc canons is called 
 the /Ipojlolic Cnmnu They have been imputed to 
 tlie apoltles ; and it has been faid, that St. Clement, 
 the immediate CuccefTor of St. Peter, was the col- 
 lector of tlicm. If the apoiUes had really pro- 
 mulgated them, it is difficult to afiign a reafon for 
 t!:eir not having been admitted to a place in the 
 writings which form the NewTcflaincnt j but, of 
 
 the 
 
T-IE CANON LAW. 
 
 107 
 
 the ancient fathers, St. John Damafcene alone has After 
 done them that honour. From their being omit- " " 
 ted in the canon of the IS'ewTeftament, from 
 the univerfal filence of the fathers of the three firft 
 ages refpe6ting them, from the mention in them 
 of many offices and cuftoins, which there is every 
 reafon to fuppofe of a later oripn, from no ap- 
 peals having been made to them in the contro- 
 verfies which arofe in times fubfcqucnt to them, 
 and on which their language is decifive, and from 
 no mention having been made of them in the fynod 
 held at Rome in 496, which mentions all the writ- 
 ings 'of the Old and New Teftament, they are 
 novir confidered to have been fabricated. Bifhop 
 Beveredge, who has publiilied them with learned 
 notes, fuppcTes they we.e framed under the fanc- 
 tion of bifhops, who held the ices founded by the 
 apoflles, and that they were collected towards the 
 end of the fccond or beginning of the third cen- 
 tury. The firfl regular mention of them is found 
 in the fecond council of Conflantinople. 
 
 The Greek church, as lead fmcc the fynod in 
 TruUo, in 692,*has Angularly refpetfted them, and 
 confidered the 85 firfl of them as authentic : the 
 Latin church fecms to have admitted the 50 firlt 
 of them. They were firfl; printed at Venice in 
 1563, in 4to, and have often been reprinted - - 200 
 
 T/ic Jpojlolic Conjiitutiotis arc of high antiquity, 
 bave been much interpolated, and arc of no au- 
 
 thorirv. 
 
loS 
 
 THE CANON LAW. 
 
 thority. It is fuppofed that they firfi; appeared in ^J|.jJ 
 
 S<«- i.^A- J 1 
 
 the fourth century - .;.i..#-. : iii»', 
 
 2. Hitherto, the canons fpoken of are the ca- 
 nons of the general church : there alfo arc 
 CANONS OF PARTICULAR CHURCHES. 
 
 In refpe£t to tlie Greek Church, tlie firft col- 
 leftion of canons which has come down to us 
 from tlic Greek church, is the Co,icx Ecclejlce 
 Oricr.tuln. It is fuppofed to have been firfl. pub- 
 lifhed in - ' '•• ' *« • 
 
 This colle6lion contains 165 canons: 20 of 
 them are canons c" tlie general council of Nice ; 
 24, are canons of the council of Ancyra ; 14, are 
 of tlie council of Ncocefai aeca ; 20, of the council 
 ofGapgris; 25, of the council of Antioch ; 59. of 
 the council of Laodicea; and tlirec of the tuH: 
 council of Conftantinoplc. ^ he council of 
 Chalccdon mentions this collediion with appro- 
 bation, h 
 
 The fecond coUeilion of canons of the Greek 
 church is, the Codex F.ccefics Unlvcrja 
 
 It comprifes the canons in th» preceding col- 
 leclion, with the addition of fomc omitted canons 
 of the council of Conftantinoplc, fome of the 
 council of Ephefus, and fome of the council of 
 Chalccdon. : » 
 
 Both thcfe coUecSljons are confined to the canons 
 of the councils of the oriental churches ; but they 
 
 by 
 
 3C0 
 
 ^^ 
 
 451 
 
THECANONLAW. t<i^ 
 
 by no means include all the canons of all the After 
 councils of thofe churclies. ^'"■'^^• 
 
 About the middle of the fixth century, John, 
 then a prieft of Anfioch, afterwards patriarch of 
 Conftantinople, publiihcd a co]lc6licn of the 
 Greek canons, digclled tmder fifty beads, accord- 
 ing to the fubjeiEls of them. He afterwards pub- 
 lifhed an abridgment of it : tlie firil is called his 
 ColU^lion of Cano)!s ; the iecond his Nomo-Ccinon : 
 he is generally called Joannes Scholafllcus - ^6a 
 
 We know little more of the canons of the 
 Greek church till the Synod in Trullo. By that 
 fynod, a code was formed of the canons framed 
 at it, of thofe framed at the fynods of Carthage, 
 and at the council of Conftantinople, held by 
 Ne^larius, and of fome writings of the fiithers. To 
 thofe were added the twenty-two canons of the 
 fecond council of Nice, and the fourth council of 
 Conftantinople _ . _ . 5^« 
 
 Here, before the fchifm, which feparated the 
 Greek from the Latin church, the code of the 
 Cjreck canon law reftcd. Under Photius, two 
 councils were held at Confl-antinople : the canons 
 of thofe councils were received bv the fchifmHtic 
 churches of the eaft, and were publiflied by Pho- 
 tius in his Nomo-CiiNon, or modern colle6lion of 
 canons, in - - - - - 83 j 
 
 With the Ccmmcntarics of Balfamon^ Zonarosy 
 and Ar'tjimmy and other curious articles, and with 
 a learned preface, all thefe coUedtions of canons 
 
 were 
 
no 
 
 THE CANON LAW, 
 
 •( 
 
 «i 
 
 were pjublifliedi at Oxford, by Dr. Beveredge, After 
 afterwards Bifliop of St. Afaph, under the title,^'^^'ft- 
 •' Pandcda Canonum San^orum Apojlolorum ct 
 •' Conciliorum ah Ecclejia Graca receptorum'* 
 " Thofe,'' fays Van Efpen, « who will read with 
 •* attention, the notes of the learned editor, will 
 " find much very learned expoHtion of the canon 
 ♦* law, and much inftrudlive matter on other fub- 
 " je(5ls, connedled with the learning of the 
 " canons." " Biihop Be eredgc's works,*' fays 
 L'Advocat, " are written witli fo much dignity, 
 majefty, learning, and modefty, that he is 
 thought, with reafon, to be one of the greateft 
 *' and moft learned men whom England has pro- 
 *♦ duced. An epiftolary correfpondence was car- 
 *' ricd on between him and Boffuet." 
 
 3. In the LATIN CHURCH, frequent 
 mention is made of the Fetus Canonum Latimrum 
 Edit'io. It was fuperfeded by the collection made 
 by Dlonyjius Exiguus, about the beginning of the 
 fixth century. That colle6lion was afterwards 
 enlarged by the decrees of Pope Symmachus, Pope 
 Honnifdas, and Pope Gregory the Second. This 
 colledlion was of great authority both in the Greek 
 and the Latin churches. 
 
 4. Other Churches had their Co]Ie<5iions of 
 Canons. The CHURCH OF AFRICA had 
 hers : the Brcviatio Canonum of Fulgcntius Ferran- 
 dUs, and the Brcviarium and Concordia Canonum of 
 Crcjconlus are added to it. 
 
 The 
 
THE CANON LAW. 
 
 Ill 
 
 The CHURCH OF SPJIN alfo had her Aftar 
 colledtion of canons. It is attributed to St. Ifidore^'^"'^* 
 (he Bifhop of Seville ; from his diocefc, he is fre- 
 quently diftinguiihed by the appellation of Hif- 
 palenfis. 
 
 In 790, Pope Adrian prefented Charlemagne 
 with a collciEHon of canons. It was compofed of 
 the coTle^ftioa of Dionyfius Exiguus, and the epif- 
 ties of fevcral Qopes. 
 
 At the coiiKil held at Canterbury in 873, a 
 book of canons was produced and approved of ; 
 but we do not know what canons it contained. 
 
 1. The MIDDLE PERIOD OF THE 
 HISTORY OF THE CANON LAW 
 commences with the ninth century, at the begin- 
 ning of whidli, or towards the end of the pre- 
 ceding centnry, the colleliton of Ifidor^ Peccator or 
 Mercator probably made its appearance 
 
 It was brought from Spain into Germany by 
 Riculphus, the biihop of Mayence. Who the 
 compiler of it was, and why he aflumed the name 
 of Peccator or Mereator, are merely matters of 
 c(Mije(5lure. It fets out with defcribing the man- 
 ner in which a council fhould be held ; then, the 
 fifty firft of the canons of the apoftles follow : " De- 
 *• inde," fays the author, " quarumdam epiftolarum 
 
 " decreta 
 
 760 
 
n% 
 
 THE CANON LAVT, 
 
 " (lecrcta virorum apoftolicorum Infcruimus, id Afwr 
 ** eft, Clcmcntis, Anacleti, Evarifti, et qaeterorum ^^"'^• 
 *' apoftolicorum, <jua8 potuimus hadlenus repe- 
 *'• rirc, epiftolas ufquc ad Syveftrem Papam." 
 
 Thcfj are the celebrated decretals, concerning 
 which, iince the beginning of the fxxteenth century, 
 ihcre has been fo much difputc among the learned. 
 I'hey fccin to have made their firft appearance in 
 Germany : afterwards, to have been received in 
 France, and, by degrees, to have been received in 
 cveiy part of the weftern church. For feven 
 centuries after their firft appearance, neither their 
 authenticity nor their authority appears to have 
 been queftioncd. 
 
 They were firft attacked by Marcillus of Padua, 
 ehen, by C^irdinal Nicholas of Cufa, during the 
 Council of Bafil, and afterwards by Erafmus. In 
 the celebrated C<ynturiators of Magdeburgh, in 
 Blondcl, and, laftly, in Van Efpen, they have met 
 with moft powerful adverfaries : in the author of 
 tlie celebrated treatife, " Quis eft Petrus," they 
 have found both a zealous and an able advocate : 
 but he fccms to concede, that fo muchfpurioufnefs is 
 proved on them as to make them, y^^hen they ftand 
 alone, of no authority. '/" - ■ ' '' 
 
 They were followed by what are called the 
 Capitularies of Airian - ?'.,.«., ^ ■ s.- -. _ 3^^ 
 
 The tenili century was famous for the Colle^ion 
 0/ R/icg'imnf Ahhot of Prumia - « .,l ,; - ^06 
 
 .'.^vJi - ' ' ,;■ The 
 
THE CANON LAW. 
 
 U3 
 
 The eleventh, tor the collcflion of Eurchardus, After 
 bifliop of Wormes, entitled Mugnum Decretorum '"' * 
 feu Canonum Vo lumen - - - - looo 
 
 The twelfth, for the collc£lion of St. Ivo, the 
 good lawyer. Two works are attrib\ited to him : 
 the Dccretum Canonum, certainly belongs to him ; 
 his right to the fccond, the Panom'my is un- 
 certain _ - - . . 1 100 
 
 2. We now come to the celebrated Dccretum 
 Gratiani, or the Concordia Difcordantmm Canonum. 
 Gratian was a Benedi6line monk, in a monaflery 
 of Bologna. His work is an epitome of Canon 
 Law, drawn from the decrees of councils, the letters 
 of pontiffs, and the writings of ancient dodlors. 
 Pope Eugenius the third was extremely fatisfied 
 with the work : and it was foon adopted in e very- 
 part of the weftern church - - " 1 1 50 
 
 It is divided into three parts : the firft contains 
 lOi diftindtions or heads, and treats of the origin 
 and d'fFerent kinds of law, and particularly of the 
 fourccs of ecclefiaftical law, of perfons in holy 
 orders, and the hierarchy. The fecond contains 
 36 caufes, as they are called, or particular cafes, 
 on which queftions of difficulty arife : the third is 
 divided into hve diflindtions, and contains a col- 
 Icclion of canons relating to the confecration of 
 churches, the facraments, and the celebration of 
 the divine office. The whole contains about 
 3000 canons or capitularies. Some are intitled 
 ,..:-i X Paleoc, 
 
w 
 
 114 THE CANON LAW. 
 
 Palcce, the meaning of which word is not yet After 
 afcertained by the learned. thrift. 
 
 This celebrated colle6tion abounds with errors. 
 Towards the middle of the fixteenth century, An- 
 tonius Demochares and Antonius Contius, the 
 former a divine, the latter a canonift, publiihed a 
 corrcfted edition of it. ' . 
 
 A more corre6l edition of it we owe to the 
 council of Trent. By a decree of that council, it 
 was ordered that corrciSt editions of miflals, bre- 
 viaries, and other books relating to ecclefiaftical 
 matters fhould be publifhed. •■■■r .; - 
 
 In confequence of this decree, pope Pius the 
 fourth engaged fcveral learned men in ihe cor- 
 rc<Slion of the decree of Gratian. The work was 
 continued through the pontificate of Pius the fifth. 
 Gregory the .thirteenth, the immediate fucceflbr 
 of Pius the fifth, when a cardinal, had been em- 
 ployed on the work : under his aufpiccs, it was 
 finally publiflied about the year - - i :8e 
 
 Several faulty paflages Hill remain in the work. 
 Many of them have been pointed out by Antonius 
 Auguftinus, the Archbilhop of Tarragon, in his 
 learned and entertaining dialogues on the Emen- 
 dation of Gratian. 
 
 Such is the celebrated decree of Gratian, which 
 for 800 years, has, in every country in chriflen- 
 dom, been confidered a valuable repofitory of Canon 
 Law.— To the compilations of Ifulore andGratian, 
 
 one 
 
The c Anon LAW. nj 
 
 biie of the greateft ■\isfoitunes of the church, the After 
 claim of the popes to temporal power by divine 
 right, may in fome meafure be attributed. That 
 a claim fo unfounded and fo impious, lb detrimen-- 
 tal to relipjion, and fo hoftile to the peace of the 
 \Vur!d, Ihould have been made, is ftrangc — 
 ftranger yet, is the fuccefs it met with. 
 
 It was foon obferved, that the author had omit- 
 ted in his colle6lion feveral important articles. 
 This gave rife to fubfequent collc6liohs, TI.e 
 principal of them are the Brcv'iarium of Bcrnardm 
 PapknJiSy and the Collctl'iom of fohannes Golerifs 
 and Peter Beneventanus, Of thefe, the laft only was 
 formally approved by the fee of Rome. Pope 
 Innocent the third publiflied a colle<5lion of his 
 own decretal epiftles. His example was followed 
 by Honorius the third, his immediate fucceffor. 
 
 From thefe five colledlions, and from fome dc- 
 c)*etals of his own, pope Gregory the ninth com- 
 miflloned St. Ravmond of Pennafort, a Domini- 
 can, to form a iiew collection of canons. He 
 executed the work greatly to the fatisfadlion of 
 his holinefs ; and, under his aufpices, it was pub- 
 lilhed about the year 1230, under the title Libri 
 qulnque DecrctaUum Gregoih Noni. It contains aU 
 the decrees of the council of Lateran, and the de- 
 cifions of many popes on particular cafes. It is 
 divided into five books ^ ^ ~ 
 
 A further addition to the code of Canon Law 
 Xvas made by pope Boniface the Eighth. It con- 
 
 I 2 tains 
 
 12 'JO 
 
i6 
 
 THE CANON LAW. 
 
 tains the decretals of all the popes, fubfcquent to After 
 Gregory the Ninth, and the decretals of that^'"''^- 
 pope. It is called Ltbcr Sextus Deer etc I'mm^ and 
 was publiihed in - - _ _ J2g8 
 
 On account of the difFerences between pope 
 Boniface and Philip the Fair, it was not received 
 in France. 
 
 The Liber Sextus Decretalium is followed by 
 the colle6tion, called fometimes Liber Srptinius 
 Dccretaliuhi^ and fometimes C/cmcntis Papa Con- 
 Jl'itutiones. It was framed by pope Clement the 
 Fifth ; and confifts of his own decretals, particu- 
 larly the canons of the council of Vienne, at 
 which he prcfidcd. He promulgated it in - - lojo 
 
 I'he laft article in the code of Canon Law is the 
 Extravngontcs. At firft, every colledlion of Canon 
 Law, except the decree of Gratian, was ranked 
 among the Extra vngantes. In the courfe of time, 
 that pame remained only to the coUetSlion of which 
 we arc now fpeaking. "^t is divided into two ar- 
 ticle*;, the Extravogunlfs yoami'is XX1 1.^ or tlie 
 decretals of that pope, publiihed by him about 
 the year - - - - - 1340 
 
 And the Extravagantcs Communes^ confilling of 
 the decrees of popes horn Urban the Sixth to 
 Sixlus the Fourth. It was publiihed about the 
 year ------ 1483 
 
 Neither of them is confidered to be of autho- 
 rity, "^riie fnfl:, (pubUHied under the name of 
 ;iQpe John the twcnty-fecond,) was never 
 
 formally 
 
THE CANON LAW. 117 
 
 formally approved of or fcinc^ioned by him, and After 
 the author of the latter colleclion is wholly un- 
 known. 
 
 A ccllcnlon by Peter Matt hat was publidied 
 in - - - - - - 1590 
 
 In fome modern editions of the Corpus Juris 
 Canonici, it is infcrted under the title of the Liber 
 Septimus Decretalium. 
 
 With thefe, what is called the Corpus Juris 
 Canonici and the middle period of tiie hiflory of 
 the Canon Law clofes. 
 
 But mention fliould alfo be made of the Injli- 
 tuiionei 'Juris Canonici^ a compendiu?n of Canon 
 Law, publi (lied hvLancellot,alawyerofPcrugiuin, 
 in 1563. By the diredion of pope Pius the fifth, 
 but without any confirmation of it by hiin, ir was 
 fubjoined to the Corpus Juris Canonici, and has 
 been publifhed with it. The Roman pontiffs," 
 fays Arthur Duck, (de Aufloritate Juris Civilis, 
 lib. 1. c. 6. tit. 8.) " effe£led that, in the church, 
 *' which Jufiinian etfedted in the Roman empire : 
 " tlicy caufed Gratian's Decree to be publilhed in 
 *' imitation of the Pandcdls ; the Decretals, in 
 «• imitation of the Code ; the Clemeutin;£ and 
 " Exiravagantes, in imitation of the Novells ; and 
 " to pcrfc(St the work, Paul the Fourth ordered 
 " Lanccllot to compofe the Inftitutes; and under 
 " Gregory the Thiiteentii, they were publiflied 
 * at Rome, and added to the Corpus Juris Ca- 
 *• nonici." In the edition of the Inllituiions of 
 
 1 3 J.anccllot, 
 
Ii8 THE CANON LAW. 
 
 Lancellol, pubUflied in 1584, and in feveral fub* 
 fequent editions, it is accompanied with a perpetual 
 glofs, and followed by a commentary, written by 
 Lancellot, which gives an account of tlie rife and 
 progrcfs of the work ; and by a comparifon of the 
 Civil and Canon Law, alfo written by him. 
 
 V. 3- 
 
 THE MODERN PERIOD OF THE 
 CJNON LAfV begins with the Council of 
 Fifa, and extends to the prefent time. 
 
 The principal articles of canonical learning, 
 which have appeared during this period, are, 
 
 1. 'I'he various Tranfafilons and Concordats bc- 
 tivecn Sovereigns^ and the Sec of Rome -.^^ii fuccind 
 and impartial hidory of them is wanting : the pa- 
 pal arrangements with Bonaparte would not be 
 the Icaft curious parts of futh a work. 
 
 2. The Counc'ils of Bafil^ Pija^ Confancc, and 
 Trent. 
 
 Separate hiflories have been written of the 
 councils of Bafil, Pifa, and Conllance, by M. 
 L'Enfant, a Lutheran minifter : that of the coun- 
 cil of Conl\ance is the bcft written; it contains 
 an account of a fatSl of importance to the Engliih 
 nation, but not generally mentioned by her hif- 
 ttjrians, — that the Frencli ambalTadors contended, 
 jjcforc the council of Conllance, that Chrifiendoin 
 
 was 
 
THE CANON LAW. 119 
 
 was divided into the four great nations of Europe, 
 Italy, Germany, France, and Spain ; and that all 
 the lefler nations, among which they reckoned 
 England, were comprehended under one or other 
 of them ; but the Engliili aflerted, and their claim 
 was allowed by the council, that the BritiHi Iflands 
 fliould be confidered a fifth and co-ordinate na- 
 tion, and entitled to an equal vote wjth the others. 
 — In the different atmofpheres of Venice and 
 Rome, the hiftory of the council of Trent has been 
 written by the celebrated Fra Paolo, (the tranflafion 
 of whofe work, with notes by Dr. Courayer, is 
 more valued than the original), and by cardinal 
 Pallavicini. The Cardinal does not diiTemble, 
 that fome of the deliberations of the council were 
 attended with intrigues and pafTion, and that their 
 efFeds wtre vifible in various incidents of the 
 council : but he contends, that there was an una- 
 nimity in all points which related to do(5lrine, or 
 the reformation of manners . and Dr. Courayer, 
 in the Preface to his tranflation, concedes, " that, 
 *• in what regardeddifcipline,feveralexcellentregu- 
 •* lations were made according to the ancient fpirit 
 '* of the church ;" and obferves, that, " though 
 ' idl the diforders were not reformed by the coun- 
 '• ell, yet, if we let afide prejudice, we may with 
 " truth acknowledge, they are infinitely lefs than 
 '* they were before." The claflical purity and 
 fcvere limplicity of the ftyle in wliich the decrees 
 pf the council are exprelTed, ^re univerfally ad< 
 
 1 4 mired, 
 
y, 
 
 120 
 
 THE CANON LAW. 
 
 mired, and are greatly fnperior to the language of 
 any pa it of Juftinian's law. In -what concerns 
 faith or morals, the decrees of the council of! rent 
 have been received, without any rcftrl6lion, by 
 every Roman Catholic kingdom : ail its decrees 
 have been received by the Empire, Portugal^ the 
 Venetians, and the Duke of Savoy, without any 
 cxprcfs limitation ; they have been received by the 
 Spani^irds, Neapolitans, and Sicilians, with a cau- 
 tion, as to fuch points of difcipline as miglit be de- 
 rogatory to their refpedlive fovereignties : but the 
 council was never publirtied in France. No at- 
 tempt has ever been made to introduce it into 
 England. Pope Pius the Fourth fent the a6ts of 
 the council to Mary Qiiccn of Scots, with a letter 
 dated the 13th of June 1564, urging her to have 
 the decrees of the council publifhed in her do- 
 minions ; but nothing appears to have beea done 
 in confequence of it. See Hijhire dc la Reception 
 du CoiicUe du Trctite^ dans les diffcrens Etats Ca- 
 tholiqucs \ Paris, 2 vol. 8vo. 1766. 
 
 3. The Bullarlum, or the colle(5lions wliich have 
 been made of tlie Bulls of Popes : the befi: of thefe 
 collections is that printed at Lu>:enbur.h or 
 Geneva in lyyi. It extends to the year 1753. 
 
 4. To thefe are to be added, Regultv Canccllar'ia: 
 Ronmyiec^ or the Rules of tlif Roman Chancery, 
 A court inftituted by the lee of R(>me, for pre- 
 paring and tranfmitting the receij)ls and letters of 
 the pope: the jcntcmci and erdiHamcs of the varkvs 
 
 coj.'pigations 
 
THE CANON LAW. 121 
 
 cw^rrgatlons of cardinals at Rome ; afid the de- 
 afions of the Rota, the fupreme tribunal of jufticc 
 at Rome, both for its fpi ritual and its temporal 
 concerns. ' ' '•' '"'' ^ ' 
 
 5. Thefe complete the body of the Canon Law.— 
 It fhould be obferved, that, in addition to it, every 
 n:uion in Chriftendom has its own national Canon 
 Law, coil"! pofed oi Lcgavtlne, Provincial, and other 
 EcclcfiajTical ConJIilutioyis. The LegantineConftitu- 
 tions of Ent;land are the ecclefiaftical laws enaded 
 in national fynods, held under the cardinals Otho 
 and Otliobon, in the reign of Henry the Third. 
 The Provincial Conftitutions are principally tlie 
 decrees of provincial fynods, held under divers 
 Archbifhops of Canterbury, and adopted by the 
 province of York, in the reign of Henry the Sixth. 
 " At the dawn of the Reformation," (Sir Wil- 
 liam Blackftone, Comm. i vol. Inft. f. 3.)» " "^ 
 " the reign of King Henry VHL it was ena6ted 
 " in parliament tliat a review Hiould be had of 
 " tlicCnnon Law; and, till fuch review fhould be 
 " made, all canons, conditutions, ordinances, and 
 ♦' fynodals provincial, being then already made, 
 " and not rep!. ;Mant to the law of the land, or the 
 " king's prerogative, (hould dill be ufedand exe- 
 ** cutcd. And, as no fuch review has yet been 
 *♦ perfei'ilcd, upon tills rtatute now depends the 
 authority of the Canon Law in England. 
 " As for the canons ena(Sled by the clergy under 
 James L in the year 1603, and never contirmcd 
 
 " i») 
 
 « 
 
 (( 
 
a 
 
 122 THE CANON LAW. 
 
 ** in parliament, it has been foleir.nly adjudged 
 " upon the principles of law and tlie conftitution, 
 " that where they are not merely declaratory of 
 ** the ancient Canon Law, but are introduclory of 
 *' new regulations, they do not bind the laity ; 
 " whatever regard the clergy may think proper 
 ♦' to pay them.'* 
 
 With rcfpea to the AUTHORITY OF 
 THE CANON LAW, from which, in the 
 prcfent cafe, the part of it anterior to Gratian's 
 decree, and fubfequtiit to the Extravagantes Com- 
 munes, muft be excluded ; .1. is compofed of texts 
 out of the Bible, palfages from the writings of the 
 fathers, the canons of general and particular coun- 
 cils, the decrees and refcripts of popes, and various 
 other infertions andextradts. In each of thefe par- 
 ticulars, it poffeflfes all the authority which the 
 extrasSl itfclf has ; befides which, it poireffes all the 
 weight and authority, which it has acquired, by 
 its having been fo much adopted by courts, ap- 
 pealed to in difputes, taught in the fchools, and 
 jiraifed and commented upon by the learned men 
 of every flate of Chriftendom. With more or 
 Icfs limitation, it forms the bafisofthe ecclefiafti- 
 cal law of every country, where the Roman Ca- 
 tholic religion is profeiTcd ; and, fpeaking generally, 
 
 In 
 
THE CANON LAW. 113 
 
 in proteftant countries, it has die force of law, 
 wlien it is not repugnant to the law of the 
 land *. ..... . , . 
 
 * The wcrks, prlnripally ufcH in framing this account 
 are, Fleurf s Inflilutions du Droit Ecdef.ajiique\ his Difccurt 
 fur rH'tJioire Ecclejiaftique ; bi/hop Gibfori's learned but very 
 hi^h-church Preface to his Codex Juris Ecclejiajiici Aigli- 
 cani; lord Hardiuicke^s argument in the cafe of Middletoa 
 <v. Crofts, 2 Atk, 6 50 } Pehem's Prale£iiones in Jus Eccleft. 
 afticum Uni'verfum, Lovanii, ^'vol. %vo. 1787} Boehmerf 
 Jus Eccleftajlicum Proteflantium Haiti Magdeburgica, 6 'vol. 
 4/0. 1756 ; Gerhard l^cn Majiricht Hijioria Juris Eccleftaf- 
 lici etPontificiit r.uijhurgii ad I'henum, Oil. 1676 ; Doujafs 
 Hifioire du Droit Canoni^ue, Paris, ivo. 1677 ; f^an hfpcns 
 Jus Ecclejlajlicum Univerfum, Lovanii, 6 <vol. fol. 1753, a 
 work, wliich, for ilcplli anci extent of refearch, clearnei's of 
 n^ethod, aiul per'pictiity of ftyle, equals any work of ju- 
 rifprudence which has ifl'ued from the prt»s ; but which, in 
 fome places, where the author's dreary Jar.fcnifm prevails, 
 niuft be rend with difguft :— a methodical and learned work 
 with this title, " S^tiit eft Petrus ? Stu ^alis Petri Prima- 
 "tusF lAber 'fheologicoCanonico Catholictts. Editiofecunda, 
 «' correilior et emendatior, cum Approbatione, Ratijbonar, 
 *' 179 1 }" the ahleft work, in fupport of the pnpal prerogn- 
 tives afuiinft the doi^rines of the Sorbonne, which has come 
 to the wi »er'8 knowledge. His account of Ifidore's Decre- 
 tals is partirularly intereding. The Religionis Naturalis et 
 Rei'elata Priiidp'td of Ihiior Hooke, Paris, 3 vols. 8a/<?. 
 1774; the third volume of this work is, perhaps, the bcit 
 treaiife extant, on tlie ecclenafticat polity of the church, ac- 
 cording to the notions of the Sorbonnifts, It dcfervcs to 
 be more known in this country } it muft have given the 
 French divines an high oj inion of the perfpicuity and pre-; 
 riiion of Engl.fb writing. 
 
\\ 
 
 ,■'• ( 
 
 
 ■«i-rr-r ir^t 
 
 ' ^■*r •%rf*.it 
 
 APPENDIX. 
 
 NOTE I. 
 
 THE EXCLUSIVE DOMINION AND PRO. 
 PERTY OF THE BRITISH SEAS is one of 
 the mod fplendid and valuable prerogatives of the 
 Crown of England.— The following account of it is 
 taken from a note to that part of the 14th edition of 
 Coke upon Littleton, which was executed by the prc- 
 ftnt writer. 
 
 " The yi/s MjiRii of the king may be confidered 
 vnder the two-fv^Id diftindion, of the rig/it of jurif- 
 dMion^ which he cxercifes by his admiral, and his 
 ri^ht cf propriety or oiumrjiip. ^ , 
 
 Ir^lTH RESPECT TO THE KIGrrT OF yURrSDICTlOK, 
 
 the Aibje6t is elaborately difcufled by Mr. Selden, in 
 his Miire Claufum, a noble exertion of a vigorous 
 mind, fraught with profound and extenfive erudition. 
 In the firfl: part of it, he attempts to prove, that the 
 fta is fufceptible of feparate dominion. In this, he 
 h:is to combat the oppofite opinion of almoft all 
 civiliaiis, and particularly the celebrated declaration 
 of one of the Antonines, (L. 9. D. De Lege Rhodi4) 
 •' Ego quidem mundi dominust lex autem marist &*f." 
 by which the emperor has been generally confidered 
 to h^ve difclaimed any right to the dominion of the 
 fea. For a difftrent interpretation of this law, Mr. 
 }>clden argues with great ingenuity. In this, he is 
 ^ followed? 
 
APPENDIX. 
 
 «2; 
 
 follott-ed, in fome meafurc, by Bynkerfiioock, in his 
 treatife De Lege Rhodia de Jai'tu, Liber Singuluris, 
 ill the 2d vol. of the edition of his works publiQied by 
 Vicat, Col. Allob. 1761. — Mr. Selden, in the fecomt 
 part of his work, auempts to fliew, that in everv pe- 
 riod of the Britifli Hiftory, the kings of Great B.irain 
 have enjoyed the exclufivedominion and property of il'.e 
 Brit'fii feafi, in the largeft extent of thofe words, both 
 as to ti.e pafTige through and the fifliing within tiiem. 
 —He treats his fiibjt6t methodically, and fupports his 
 pofition with the greaieft learning and ingenuity. — 
 The reader will probably feel fome degree of prepof- 
 feffion again ft the extent of this claim; but he will 
 find it fupported by a long and forcible feries of argu- 
 ments, not only from prefcription, from hiflory, from 
 the common law, and the public records of this coun- 
 try, but even from the treaties and acknowledgments 
 of other nations. Here he is oppofed by Bynker- 
 fhoock, in his Diflertatio de Dominio Maris, alfo 
 publiftied in the fecond edition of his works. But it 
 will be a great fatibfadion to the Englifti reader to find, 
 i.ow much of the general argument ufed by Mr. Sel- 
 den, is conceded to him by Bynkerfiioock. Even on 
 the moft important part of the argument, the acknow- 
 ledgment of the right by foreign princes, Bynker- 
 fiioock makes him confiderable conceffions : '* Plus 
 *' momenli," fays he, "adferre videntur gentium tefti- 
 " monia, qiias illud Anglorum imperium agnovere. 
 *' De confeliionibus loquor pon injuria extorlis, fed 
 *' llbere et fponte fa£lis. EiTe autem hujufmodi 
 " quafdam confeffiones, neutiquam negari poterit."-— 
 After this acknowledgment corroborated as it is by 
 
 ether 
 
lid 
 
 A r P E N D t ?t. 
 
 other arguments ufed by Mr. Seldeu, many will think 
 his pofitions completely eftabliflied. The chief ob- 
 jcflioM made by Bynkerfliobck to the right of the 
 crown of England to the dominion of the Tea is, the 
 want of uninterrupted pofTellion, as he terms ir, of 
 that dominion. '* So long as a nation has pofieffion 
 *' of the fca, juft fo long,'' fays Bynkerflioock, " (lie 
 *' holds its dominion. But to conftitute this poflelfion. 
 ** it is necefTary that her navies fliouUl keep from it 
 *' the navies of all other nations, and ilicuUi themfelves 
 " completely and inceiramly navigate it, avowedly in 
 '* the a^ or for the purpofe of alfertiiig her i'ove- 
 " ri'ijjniy to it." This, he contends, has not been 
 done by the Kngli(h ; on this ground therefore lie ob- 
 jects to the right of dominion of the Englidi fea ; and 
 on the fame ground he objeds to the right of the Ve- 
 netians to the dominion of the Adriatic, and to the 
 right of the Ccnocfe to the dominion of the Liguftic. 
 But ihli fcems tarrjing the niatter too far. If it be 
 Hdmittedf (of which there unqueftionabiy are many in- 
 ftanccb), that the fovereign power of a ftate may re- 
 flrain her own fubjc(!!\s from navigating particular feas, 
 flje may al(b engage for their not doing it, in her trea- 
 ties with other nations. It can never be contencledj 
 lliat after fwch a trenty is entered into, the a£ls of pof- 
 il'flion mentioned by HynkeiQioock are neceffary to 
 give iteffci^ and continuance, unlefs this alfo makes 
 a .parf of l!»c treaty. It is fufiicient, if the afts 
 of pont0ion are fo often repealed, as is neceflary to 
 prevent the lofs of the ri<;ht, from the want of exer- 
 cile of it. In thofe cafes, therefore, where the treaty 
 itfclfi cftabliflling the cxclufive dominion we are 
 
 fpeaking 
 
APPENDIX. t2f 
 
 fpeaking of, is produced, the continued and nintcr- 
 rupted poflcffion mentioned by Bynkerflioock cannot 
 be neceflary. But public rights, even the mod certain 
 and inconteftible, depend often on no other founda- 
 tions than prefumption and ufage. The boundaries 
 of territories by land, frequently depend on no other 
 tide. Then, if Bynkerflioock be right in his pofition» 
 that the fca is fufceptible of dominion, (liculd not 
 mere prefcription and ufage in this, as in any other 
 cafe, be fufticient to conftitute 9 right ? Upon what 
 ground are the continued and uninterrupted afts of 
 pofleffion, mentioned by Bynkerflioock, required to 
 conftitute a title in this, more than in any other cafe 
 of public concern ?— If this be thought a fatibfaftory 
 anfwer to the objeftion made by Bynkerflioock, the 
 remaining difference between him and Mr. Selden* 
 refpeding the right of the Britifli monarch to this 
 fplendid and important royalty will be inconfiderable. 
 —It is to be added, that Mr. Selden's treatife was 
 thought fo important to the caufe, in fupport of which 
 it was written, that a copy of it was direfted to be 
 depofited in the Admiralty. Thofe who wifli to pro- 
 cure it, in an En^;li(h tranflation, fliould prefer the 
 tranflation publiftied in 1633, by a perfon under the 
 initials of J. H. to that by Marchemont Ncedham. 
 On this fubjci5.l (with the exception of Sir Philip 
 Mtdows) fubfequent writers have done little more 
 than copy from Selden. The fubjefl, however, h 
 far from being exhaufted. The fyllem adopted by 
 Sir Philip Medows, in his Obfervations concernins^ iht 
 Dominion and Sovereignty of the Seas, printed in 16891 
 is more moderate than ]Mr. Selden*s. — He calls in 
 
 queftion. 
 
/ 
 
 1 
 
 12S 
 
 APPENDIX. 
 
 queflion, at lead indireiftly, a material part of Mr. 
 Selden's pofitions, and places the right of the kings of 
 England to the dominion of the fca upon a much nar- 
 rower ground. He confines it to a right of excluding 
 all foreign (liips of war from paflTing upon any of the 
 feas of England, without fpecial licence for that pur- 
 pofe firft obtained; in the folc marine jurifdidion, 
 within ihofe fens; and in an appropriate fidiery. He 
 denies that the falutation at fea, by the flag and top- 
 fail, has any relation to the dominion of the fea ; and 
 he aflerts, that, it was never covenanted in anv of the 
 public treaties, except thofe with the United Nether- 
 lands, and never in any of thefetill the year 1654; he 
 contends it is not a recognition of fovereignty, but at 
 nioft an acknowledgment of pre-eminence. His trea- 
 tife is defer vedly held in great eft imation.'* 
 
 NOTE n 
 
 -•. ' £y a mijiake referred to in page 22 as Note 111. 
 
 THE ALPS begin with Col del Angentera, which 
 lies to the weft of a fuppofed line from Monaco to the 
 Mons Vifulus, or Monte Vifo. Thence, they proceed, 
 in a femicircular line of about 500 nules, firft on 
 the fouth>eaftern limits of France, afterwards on the 
 fouthern limits of Swilferland, the Grifons, and the 
 Tyrol, and then on the weftern limits of Styria, 
 Carmthia and Carniola to the Sinus Flanaticus, or 
 the Gulph of Cornero on the Hadriatic. 
 
 I. The 
 
APPENDIX. 
 
 129 
 
 I. The ^Ipes Maritime take their name from the 
 fca of Genoa, and extend from it up to Mons Vifulus 
 or Monte Vifo. The mod noted mountains in this 
 part of the Alps are the Camellon and the Tende. 
 
 1. The Ccttian Alps reach from Mont Vifo to 
 Mount Cenis ; they received their appellation from 
 a territory of that name, of which Siiza was the me- 
 tropolis ; they contain the Mons Matrona, or the 
 Mont Genevre, where the river Durance fprings. 
 
 3. The Mpes Grata extend over Le Petit St. Ber- 
 nard, the fcer.e of the martyrdom of the Thebaii 
 legion, to the Mons Jovis, or Le Grand St. Bernard. 
 Hitherto the direction of the Alps is to the north. 
 
 4. On the northern fide of that part of the Rhone, 
 which flows over the Vaiais into the lake of Geneva, 
 are the Alpes He/vetiae : on its fouthern fide are the 
 Jlpes Peniiinte, the eaftern chain of which is called 
 Jlpei Lepont'tHoe : they extend to the Mons Summus, 
 or Mont St. Gothard. 
 
 5. The Jl^es Rhatiae extend from Mont St. 
 Gothard over the Mons Adula, or the Adule, where 
 the two fountains of the Rhine arife, to the fource of 
 the Drave. A mountainous country to the fouth of 
 them, where the town of Trent lies, was called the 
 jllpes Tridentlntie » 
 
 6. The J!pes Nortec lie on the north of the Drave, 
 and extend over parts of Auftria, Styria, and Carinthia ; 
 not far from the clofe of them the /^/pet Pannoniat or 
 Kahlemburgh mountains rife. The Alpes Baftamica 
 are the Carpathian mountains, the boundary of Hun- 
 gary on the north and eaft. 
 
 7. The Alpes Carnica lie on the fonth of the Drive 
 and reach to Nauportus or Leyback, where the Alpine 
 
 K heights 
 
 : 
 
»3«> 
 
 APPENDIX; 
 
 heights of Italy properly clofe. Two ranges af 
 mountains proceed from them; the Alpes Ventta^ 
 which extend into the Venetian jjofleffions on the 
 Terra Firma, and the Alpei 'Julia which are fpread 
 over the country from Forum Julii, or Friuli, to the 
 caftern extremity of the Hadriatic. 
 
 Where the Alpes Carnicsc end, the Mom Alhlus 
 begins: the Alpes Behiana^ or the Welebitchian, or 
 Murlakan mountains proceed from it, and extend 
 foutherly in a line of about 300 miles over Illyrlcuiu 
 to Mons Orbtlust whence they branch into the Rho- 
 dope and Haemus. 
 
 Such is the chain of the Alps. The Apptmines 
 are of equal celebrity. They rife in the Col della 
 Tenda; after ftretching on the eaft of the fuppofed 
 line from the Portus Monxci to Mons Vefnliis, aloni; 
 the Gulph of Genon, at no great diftance from the 
 coaft, they proceed eaftwardly to the centre of Itjily, 
 and afterwards tothefouth, always approaching neartr 
 to the eaftern than to ihe weftern coaft. After thev 
 arrive nt the Mons Gargamus, they take a fouth^ 
 wefternly direction, and reach the Calabrian extremi- 
 ties of Italy. This account of the Alps is taken from 
 Clwverius^s It'll. Ant. lib, I. ch. 30, 31, 32 ; CtlLirius's 
 Geog, Ant. lib. 2 ; Bufchinfs Geography ; Chauchard' s 
 Mnpy fubl'Jliecl by Stochhk ; Bcrgior's Htjloire rk 
 Crands Chemin de VEmpire Remain, 2 vol. /[to. Bruf- 
 felles^ 1738; cndMr.Pinkerton's Geography^ a ivcrk of 
 great merit, 
 
 NOTE III. 
 XHE following account of the PR^ETOR's 
 JUDICIAL POWER» and its variations, is piven 
 
 ..:..:'*' . ,. . '^ by 
 
 ,/ 
 
 \\ 
 
APPENDIX. 
 
 «Jl 
 
 Jby Doftor Bever, in his Hiftory of the Legal Polity of 
 the Roman State, B. ii. c. 6. 
 
 " Originally, no more than one prartor was appoint- 
 f d ; but, as the fplendowr and reputation of this illuf- 
 trious city daily drew to it a vaft conflux of ftrangers, 
 the judicial bufinefs increafed beyond the power of a 
 fingie maoiftrate to difpatch. This demanded, there- 
 fore, the creation of a fecond, to prefide over the 
 caiifes of foreigners; from whence he was called 
 " Praetor Peregrinus," to diftinguifli him from the 
 former, who, from the particular objefts of his magif- 
 trncVf M'as ftyled ** Urbanus." When the empire 
 received a further augmentation from the conquered 
 provinces, each of thefe was allowed its provincial 
 judge, with fimilar title and power. 
 
 Another century introduced a new refinement upon 
 this inftitution. As the objects of judicature, both 
 crinnnal and civil, multiplied apace, and a great 
 variety of new caufes arofe, very diflin£l in their 
 nature from each other, for th*" more eafy and expe- 
 
 ditious adminiftration of j<. 
 
 . -'iK,Cm 
 
 it was found neccf- 
 
 fary to throw them into diftinft clafles, called "Quae- 
 ftiones," and to affign particular jurifdiftions and 
 judges to each, who Were intituled Praetors and Qua?« 
 fitors. Thefe were obliged to exercife their refpeftivc 
 jurifdii^ions within the city for the fpace of one year, 
 afUi wiilch they were difmiflTid into their feveral pro- 
 vinces, under the charafter of Proprastore. Thefe 
 great officers, of whatever rank or denomination, 
 were firft elefted by the people, in the ** comitia cen- 
 "turiata;** but the right of alfigning them to their 
 particular provinces belonged to the fenate. 
 
 K a The 
 
\\ 
 
 nz 
 
 APPENDIX. 
 
 
 The praetorian edi<fts, which conilitute that branch 
 of the old civil law now under confideration, were 
 certain rules or forms, publiflied by every praetor at 
 the entrance upon his office, on the calends of January, 
 fignifying the methods whereby he propofed to admi- 
 nifter jultice di'ring that year. Thefe were hung up 
 in the public court in a white table, for ihe infpedion 
 of fuitors and praAitioners; but the authority of 
 them lafted no longer than the office itfelt, unlefsthey 
 received a f'relh rati ticai ion from the fucceflbr, and in 
 that cafe they v/ere called " Edifta Tranflatitia." 
 
 The praetor had no powr to abrogate or alter the 
 kws, but only to temper them with equity, to apply 
 them to the particular cafes before him, according to 
 his own ideas of juftice, and to fupply whatever was 
 vfanting, to give them their full and proper effed. 
 His edi(5t, therefore, was confidered only as the voice 
 of the law, but not law in its moft comprehenfivc 
 meaning, unlefs thi y iiappened to be adopted and 
 continued by fucceeding magiftrates; under which 
 qualified cliarafter only they are conHdered by Juf- 
 tjnia:^ himfelf. But notwithftanding their inferiority 
 of rank in the fcale of legiflation, they were yet held 
 in the highell eileeni by fomc of the greateft princes 
 »nd jlaiclmeu in after times, and by none more than 
 himfelf, as appears from his inferting fo large a num- 
 ber ot ihem in theDigeft. , ,'.,,;.!,.> ., , . 
 . J[n proce IS of time, indeed, as the age grew more 
 corrupt, and as thefe judges were more intent upon 
 their own private views and emolumenta thjn upon a 
 pundual and faithful adminiiljation of judice, they 
 were very apt to vary even from ^heir ewn edifts, 
 
 when 
 
m 
 
 APPENDIX. 
 
 >$1 
 
 vhen it happened to fuit the convenience and intereft 
 of their friends or themfelves. This opened a door 
 to many (liameful a<fls of injuftice, and once more 
 called forth that truly patriotic tribune, Cains Corne- 
 lius, under whofe influence a law was enabled, to 
 oblige the praetors to adhere to certain edablidicd 
 rules, and not to depart from rhofe which they them- 
 felves had laid down, at the entrance upon their rc- 
 JpeAive magiftracies." 
 
 NOTE IV. 
 
 , -J..V 
 
 THE following account of THE MODES OF 
 QUOTING THE CIVIL AND CANON LAWS 
 
 is taken from Dr. Hallifax's Analyjit tf the Roman Civii 
 law, Camb. 1775, Note on page 2. 
 
 It may not be amifs, for the fake of Beginners, to 
 explain here the " method of quoting the feveral parts, 
 which now compcfe the Corpus Juris Romano- 
 CiviLis. The Institutions are contained in Four 
 Books: each Book is divided into Titles; and each 
 Title into Paragraphs; of which the firft, defcribed by 
 the Letters pr. or princip. is not nnmbf.red. The 
 Digests or Pandects are in Fifty Books: each 
 Book is diftributed into Titles; each Title into Laws; 
 and, very frequently. Laws into Paragraphs, of which 
 the firft is not numbered. The Code is comprized 
 in Twelve Books ; each of which is divided, like the 
 Digefts, into Titles and Lnws ; and, fomctimes. Laws 
 into Paragraphs. The Novels are diftinguiQied by 
 their Number, Chapter and Paragraph. 
 
 The 
 
\\ 
 
 134 
 
 APPENDIX. 
 
 The oltl «'ay of quoting was much more trouble, 
 fom6, by only mentioning the Number, or initial 
 Words, of the Paragraph or Law, without expreflipcr 
 the number either of Book or Title. Thus § yf ad- 
 verfns I3 InJI. de Nuptiis means the 12th Parajrraph of 
 tite Title in the Intiitutions de Kttptiis^ which Para- 
 graph begins with t!:e Woixbji cdvri/us\ and which a 
 moiiern Civilian woulil cite lluis, I. i. 10. 12. So /. 
 30 D. de R. y. figTiitifS the 3cth Law of the Title in 
 thi" Digefts de Rc^n/it Jjiris : riccording to the modern 
 w.iy, thus, D. 50. 17. 30. Again,/. 5. § '^.ff.dc 
 Jtirejur. means tlie 3d Paragi-aph of the !;th Law of 
 the Title in the Di:i,eft.s de jfiirejiirand'j : better thus, 
 D. 12. 1. 5. 3, And here note, that the Digells arc 
 fometimes referred to, as in the lad: inftance, by a 
 double/; and at other times by the Greek n or nr. 
 
 Tiie mctiiofl of quoting the Roman Canon Law 
 
 is as follows. The Decree, us faid above, confifts 
 
 of Three Parts; of which the firft contains lox 
 
 PiQinc^ions, each Diftln«5lion being fub-divided into 
 
 Canons: thus i dif. c. 3. Lex (or i d. lex) is the firft 
 
 Diftinc^ion, and 3d Canon, beginning with the word 
 
 Lex. The fecond part of the Decree contains 36 
 
 Cnufes ; each Caufe comprehending feveral Queftions, 
 
 itnd each Qiieftion feveral Canons: thus 3. qu. g,c. 2. 
 
 Cavrant is Caufe the 3d, C^iefiinnthe 9th, and Canon 
 
 the id, beginning wiiii Caveani. The third part of 
 
 the Decree contains 5 Di[]inin:io'i«;, and is quoted as 
 
 the firft part, with the addition of the words de Confe- 
 
 er at lone, thus de Confecr. diji. 2. can, Quia corpus (or can. 
 
 (^uia ccrpt4s y>, d':Ji. 2. d, Confecr.J means the 2d Dif- 
 
 ■s ' .».,-.. tind^ion, 
 
 
 ■x. 
 
 ■/ 
 
AVvtiitiic. try 
 
 tlnif^ion, and the 35th Canon, of the Treatlfe Jc Ccn- 
 fei-ratione^ which Canon begins with QuiacarpHt. 
 
 T::e Dkcretals are in Three Parts; of which 
 the firll contains Gregory's Decretals in 5 Books; 
 each Boo!c being divided into Titles, and each Title 
 into Chapters: And thtfe are cited by the nrmie of 
 the Title, and the number of the Chapter, with the 
 addition of the word Extra, or the capital letter X : 
 thus c. 3. Extra de U/uris', is the 3d Chapter of tlie 
 Title in Gregory's Decretals, which is infcribul Ji 
 Vjiais; which Title, by lookinj; into tlie Index, is 
 found to be the 19th of the ;;rh Book. Tims alio, 
 c.cuni coutingat 36. X. ik Offtc. (jf Pot. Jud. Dtl. i>. tlie 
 36fh Chapter, beglruiing with C'w contw^^nt, cf the 
 Title, in Gregory's Dfcretaisi, which is; iufcribtd de 
 Officio et Fotejlatc JtuUcis Ddegati; and which, by 
 tonfiiltlng xhi Iiulex, we Hnd is the 2<-/h Title of the 
 iftBuok. The Sixth Decretal, and the Clementine 
 Conllitutions, each confiliing of 5 Books, nre quoted 
 in the fame manner as Gregory's Dtcreial^; only, 
 inftead of Extra or Xj there is fubjoin'd in fix to or in 
 6. and in CUnientinif or in Chm. aci:ording as either 
 part is referred to: tims c. Si grnti:J'e 5. dt Rifcript. in 
 6. is the 5th Chaiifer, beginning with 5/ graticfe^ of 
 the Title di Rifcriptls, in the 6th Decretal; the Title 
 fo infcribed being the 3d of the ift Book : And CVw. 
 I. de Sent, et Re "Judlc (or di Sent, et R. y. ut calumtiiis. 
 in Clem.) (ore. utcalumniis. i.de Sent.et R.y. in Clem. J 
 lithe ift Chapter of the Clementine Conftitutions, 
 under the Title de Senientia ct Re Judicntd\ which 
 Chapter begins with Ut calumn'tis^ and belongs to the 
 xirh Title of the ad Book. 
 
 Th«. 
 

 136 APPENDIX. 
 
 The EXTRAVAGANTS of Johii the 22darecon* 
 tained in one Bi)ok, divided into 14 Titles: thus Ex- 
 travag. Ad Cottditorem. Joh. 22- de V. S. means the 
 Chapter, beginning with Jd Conditorem, of the Extra- 
 vagants of John 2 2d; Title, de f'erbarum Signlficationi- 
 ius, Laftly, the Extravagants of latei Popes are calle'd 
 Communes', being diftributed into 5 Books, and thefe 
 again into Titles and Chapters; thus Extravag.Commm. 
 €. Sahator. de Prabend. is the Chapter, beginning with 
 Salvator^ among the Extravagantes Cmmuner, Title, 
 de Prabendis, 
 
 :t 
 
 THE END. 
 
 Luke Hanfard, Printer, 
 Creat Turaftile, Llncoln's-lnn Fields. 
 
con* 
 Ex- 
 
 i the 
 ttra- 
 'ioni- 
 Ule'd 
 hefe 
 mun. 
 with 
 'itle. 
 
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