| 
1. See the Civil Code of the State of Louisiana, as adopted in 1824.
2. The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed to the hands of the English, justice was directed to be administered according to the former system of laws in the Dutch courts; and Van Leeuwen's Commentaries on the Roman Dutch Law were translated into English in 1820, expressly for the benefit of the English judiciary in that island.
3. Dig. lib. 1. tit. 2. De origine juris.
4. Praetermissa ad leg. 2. D. De origine juris. Opera, tom. 1. 301.
5. Heinecc Antiq. Rom. Jur. Proaem. sec. 1. and 2.
6. Mr. Gibbon. in his History, vol. 8. p. 5. note, denies altogether the fact of any such original compilation by Papirius. I am incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer, and it is assumed to be so by such master critics as Bynkershoek and Heineccius, and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.
7. I have followed Dionysius of Halicarnassus, and the Roman authors of the classical ages, in respect to the early history of Rome. It may be that Rome was built and adorned by the Etruscans long before the time of Romulus, but I have not been inclined to follow the historical skepticisms of some modern writers so far, as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans.
8. Numa religionibus et divino jure populum devinxit. Tac. Ann. 3, 26.
9. The comitia tributa were free from the restraints placed upon the comitia curiata, inasmuch as they could be held without a previous senatus-consultum, and were not subject to the check of the Auspices, which were under the management of the patricians.
10. Dig. 1. 2. 2.8. Gravina de Ortu et Prog Jur. Civ. sec. 28.
11. Dig. 1. 2. 2. 16.
12. Incerto magis jure et consuetudine quam per latam legem. Dig. 1. 2. 3.
13. The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities; (Dig. 1. 2. 2. 4.) and the original historians, Livy (b. 3 ch. 31, 32.) and Dionysius of Halicarnassus, (Antiq. Rom. b. 10.) say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina, (de Ortu et Prog Jur. Civ. sec. 32. and De jure nat. gent. et XII. Tabularum, sec. 23.) Heineccius, (Hist. jur. civ. sec. 24. and Antiq. Rom. Jur. Proaem, sec. 3.) Voet, (Com. ad Pand. l. 2. 1.) Dr. Taylor, (Hist. of the Roman Law, p. 8.) and the generality of modern writers on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3. 27.) observes generally, accitis quae usquam egregia, and the deputies must have visited at least the Grecian cities in lower Italy. A learned French writer has, however, written three dissertations to prove there was no such thing as a Grecian embassy. Dr. Taylor has referred to them, but they failed to convince him. Mr. Gibbon (Hist. Vol 8. p. 8.) is also decidedly of opinion, that the deputation never visited Athens, and he gives very plausible reasons for his belief; but I think the weight of the opinion of Cicero alone is not easily to be surmounted; and he says (De Legg. b. 2. ch. 23. and 25.) that the regulations in the twelve tables concerning funerals, were translated from the laws of Solon, and the decemviri had adopted almost the very words of Solon.
14. Gravina de Ortu et Prog. J. C. sec. 32. Fragments of the twelve tables were collected, and distributed with great accuracy under their original and proper divisions, by J. Gothofred, in a work entitled Quator Fontes Juris Civilis, printed in 1653; and his collection, Heineccius says, (Antiq. Jur. Rain. Proem. sec. 5.) is to be preferred to that of all others. His collection, distribution, and interpretation of the tables has been followed by Gravina, who has inserted the originals, with a paraphrase, at the conclusion of his treatise de Jure Nuturali Gentium et XlI. Tabularum. He has also given a copius commentary upon that collection. They were redigested and inserted at length in the voluminous L'Historie Romaine of the Jesuits Controu and Rouiile, and copied from them into Hooke's Roman History, b. 2. ch. 27. A summary of this curious and celebrated code, which had such permanent influence on Roman jurisprudence, and is so constantly alluded to by Roman jurists, will not be unacceptable to the American student.
The 1st table related to law suits, and regulated the right of citation of the defendant before the praeter. He was allowed to give bail for his appearance, and if old or infirm, the plaintiff was to provide him with a jumentum, or open carriage. But even this provision was reprobated in after ages for its severity. A. Gell.Noct. Att. 20. l) The praeter was to decide the cause promptly by daylight; and if the accuser wanted witnesses, he was allowed to go before his adversary's house, and to repeat his demand for three days together, by loud outcry.
The 2d table related to robbery, theft, trespass, and breaches of trust. It allowed the right to kill a robber by night. It inflicted corporal punishment and slavery on conviction of robbery, unless the parties settled with each other. Slaves guilty of robbery were to be thrown down the Tarpeian Rock. Thefts and trespasses were punished by a pecuniary mulct. Trespasses by night on harvests or cornfields were published capitally, as victims to Ceres. No term of prescription gave a right to stolen goods, nor any right of a foreigner to the goods of a Roman citizen. Breaches of trust were punished with the forfeiture of double the value of the deposit.
The 3d table related to loans, and the right of creditors over their debtors. It prohibited more than one per cent. interest for money, and the debtor was to have thirty days after judgment to pay his debt; and if he did not then pay or give security, his creditor had a right to seize him, and load him with chains of a certain weight, and maintain him on a prescribed scanty allowance: and if he failed to pay after being sixty days in prison, be was to be brought before the people on three market days, and the debt proclaimed: and if: there were several creditors, he might at their election be sold beyond the Tiber, or his body cut into pieces. (Mr. Gibbon, Hist. vol. 8.92. takes this law in the literal sense, and so does Gravina, de Jure Nat. Gent. et XII. Tab. sec. 72.: and be adopts the argument of Sextus Caecilius in A. Gell. Noct. Att. 20. 1., who maintained, that the law was only cruel in appearance, and that he had never read or heard of its being executed, for its extreme severity prevented the creation of debt. Montesquieu well observes, that, upon such reasoning, the most cruel laws would be best: and he thinks the better construction to be, that the law only related to the division of the debtor's property. Esprit des Loix, b. 29. ch. 2. Bynkershoek, Observ. Jur. Rom. lib. I. c. 1., and Heineccius, Antiq. Rorn. lib. 3. tit. 30. sec. 4. are of the same opinion. Gravina, ibid. sec. 21. says, there are grounds to conclude that the leges regias, with the exception of such as related to regal domination, were incorporated into the three first of these twelve tables.)
The 4th table related to the rights of fathers and families. It gave to fathers the power of life and death and of sale over their children, and the right to kill immediately a child born deformed. On the other hand, and as some compensation for these atrocious provisions, it declared, that if a father neglected to teach his son a trade, he was not obliged to maintain his father when in want; nor was an illegitimate child bound to maintain his father.
The 5th table related to inheritances and guardianships. It declared, that if the father died intestate, and had no children, his nearest relations were to be his heirs: and if he had no relations, a man of his own name was to be his heir. He had the right to appoint guardians to his children. If a freedman died intestate and without heirs, his effects went to the family of his patron. The heirs were to pay the debts of the ancestor in proportion to their share of his estate It also provided, in the case of lunatics and prodigals, that the relations, and if none, that one of the name was to have the care of the person and estate
The 6th table related to property and possession. It declared that the title of goods should not pass on sale and delivery, without payment. Two years possession amounted to a right of prescription for lands, and one year for moveables. It likewise declared, that in litigated cases, the presumption should always be on the side of the possessor: and that in disputes about liberty and slavery, the presumption should always be on the side of liberty.
The 7th table related to trespasses and damages. It provided, that compensation be made for trespasses, and that for arson or maliciously setting fire to a house, or to grain near it, the offender was to be scourged and burnt to death. The lex talionis was applied to losses of limbs unless the injured party accepted some other satisfaction. A pecuniary fine of three hundred pounds of brass was declared for dislocating a bone, and twenty-five asses of brass for a common blow with the fist (It is related in the Noct. Att. 20. 1. that one Lucius Neratius, in after times, when the city became wealthy, and such a fine insignificant, amused himself by striking freemen in the face as he met them in the street, and then ordering his servant, who followed him for the purpose with a bag of brass money, to count out and tender the twenty-five pieces as the compensation fixed by law.) It was provided also by this table, that slanderers, by words or verses, should be beaten with a club. False witnesses were to be thrown headlong from the capitol, and parricides were to be sewed up in a sack and thrown into the Tiber. Whoever wilfully killed, or poisoned, or prepared poison for a freedman, or used magical words to hurt him, was punishable as a homicide. Guardians and patrons who acted fraudulently in their trust, were to be fined and held odious.
The 8th table related to estates in the country. It required a space of two and a half feet to be left between every house, and it allowed societies or private companies to make their own bylaws, not being inconsistent with the public law. The praetor was to assign arbitrators in cases of disputes about boundaries: and it provided redress for nuisances to fields by the shade of trees, or by water courses. It required roads to be eight feet wide, and double at corners. It allowed travelers to drive over the adjoining lands, if the road was bad.
The 9th table was concerning the common rights of the people. It prohibited all special privileges to any person, and it restored debtors who had been redeemed from slavery to their former rights. It made bribery in a judge or arbitrator, or the holding seditious assemblies in the city by night, or delivering up a Roman citizen to a foreigner, or soliciting a foreigner to declare himself against Rome, capital offenses. It declared that all causes relating to the life, liberty, or rights of a Roman citizen, should be tried in the comitia centuriata. The people were to choose quaestors to take cognizance of capital cases.
The 10th table related to funerals. It prohibited the dead to be interred or burnt within the city, or within sixty feet of any house. It prohibited all excessive wailings at funerals, and women from tearing their faces or making hideous outcries on such occasions. It regulated and limited the expense of the funeral piles, and all costliness at funerals, such as the dress of the deceased, the players upon the flute, the perfumed liquors, the gold thread, the crown, festoons, etc.
The 11th table made part of the jus sacrum, or pontifical law. All the other tables related to civil rights, but this related to religion and worship of the gods. It required all persons to come with purity and piety to the assemblies of religion; and no person was to worship any new or foreign gods in private, unless authorized by public authority. Every one was to observe his family festivals, and the rights used in his own family, and by his ancestors, in the worship of his domestic deities. Honor was to be paid to those heroes and sages whom their merit had raised to heaven. The commendable virtues were to be ranked among the gods, and to have temples erected to them, but no worship was to be paid to any vice. The sacrifices to the gods by the priests were to be the fruits of the earth and young animals, and with the most authorized ceremonies. No one was to be initiated in any mysteries but those of Ceres. Stealing of what was devotee to the gods, and incest, were declared to be capital crimes.
The 12th table related to marriage, and the rights of husbands. It prescribed freedom of divorce at the pleasure of the husband, and it allowed the husband, with the consent of his wife's relations, to put her to death when taken in adultery or drunkenness, and it declared it to be unlawful for patricians to intermarry with plebeians.
15. Cic. de Orat. b. 1. ch. 43, 44. De Legg. 2. sec. 23. Livy's Hist. 3. 34. Tacit. Ann. 3. 27. A. Gell. Noct. Att. 20. 1. In the newly discovered treatise of Cicero, De Republica, lib. 2. ch. 36, 37, he insists, that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting marriages between plebeians and senatorial families was a most infamous law.
16. Inst 1.2.4. Dig. 1. 2. 9.
17. Dig. b. 1. tit. 2. De Orig. Jur. sec. 6. Gravina says, de Ortu. et Prog. J. C. sec. 33. that they were established by the policy of the ancient lawyers.
18. Dig. 1. 2. 7. Livy's Hist. 9. 46. Gravina de Ortu Jur. Civ. sec. 33. and de Jur. Nat. et XII. Tab. sec. 79, 80.
19. Legulejus quidam cautus et acutus praeco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. l. 55. See also Cod. 2. 58. De formulis et impetrationibus actionum sublatis.
20. Dig. 1. l. 7. and 1. 2. 10.
21. Dig. 1. 2. sec. 26. 28.
22. Dig. 1. 2. 32.
23. Dig. 1. 1. 7. and 8.
24. Cic. de Legg. b. 1. c. 5. and b. 2. c.23. Gravina de Ortu. et Prog. J. C. sec. 38.
25. Dig. 1. 2. 5.
26. Dig. 1. 2.
27. In the times of the republic, the practice of the law was gratuitous, and highly honorary. All employment for hire was prohibited by a law enacted in the year of the city 550, at the instance of the Tribune Marcus Cincius. The profession at length became a business of gain, and was abused until Augustus revived the Cincian law with additional sanction by a decree of the senate. But as a reasonable compensation was necessary to advocates who devoted their time and talents to the profession, the compensation was allowed, and regulated by a decree of the senate in the time of Claudius: (Tacit. Ann b. 11. c. 5, 6, 7.) and afterwards, according to the law of the Pandects, b. 50. tit. 13. c. 1. sec. 5. 10. 12. the judges in the provinces were to determine on, and allow a reasonable charge to the advocate.
28. Cic. de. Orat. 1. 46. See also Quinctilian's Inst. lib. 12. c. 11. where he alludes to Cicero, and strongly approves of this employment of the orator when he retires from practice at the bar.
29. Orig. Jur. Civ. b. 1. Proaem.
30. Immensus aliarum super alias acervatarum legum cumulus. Livy 3. 34.
31. Dig. 1. 1. 7. and 1. 2.12.
32. Dig. 1. 2. 36. and 39.
33. Dig. 1. 2. sec. 41, 43, 44, 46, 47.
34. Cic. de Oral. lib. 2. c. 33. Suci. J. Caesar, sec. 44. Heineccii Elementa Juris Inst. Proaem. sec. 2. Dr. Taylor's Elements of the Civil Law, 14.
35. Dig. I. 2. 47. Heinecc. Histor. Jur Civ. lib. I. sec. 157, 158. 180.
36. Gravina de Ortu. et Prog. sec. 42. Heinecc. Antiq. Rom. lib. 1. tit. 2. sec. 39.
37. Gravina, de Romano Imperio, sec. 17.
38. Dig. l. 2. sec. 11.
39. Code. 1. 14. 3. Gravina de Ortu. et Prog. sec. 123, 124.
40. Gravina, ibid. sec. 112. De Romano Imperio, sec. 20.
41. Gravina, de Romano Imperioribis.
42. Dig. 1. 2. 2. 47.
43. Inst. 1. 2. 8.
44. Heinece. Antiq. Rom. Jur. lib. l. tit. 2. sec. 41. Histor. Jur Civ. lib. 1. sec. 378. Heineccius says, that Papinian was everywhere called Juris asylum et Doctrinae legalis thesaurus, and he far surpassed all his brethren, omnes longo post se intervallo reliquerit.
45. Gibbon's history, vol. 8. p. 16.
46. Gravina de Ortu et Prog. Jur. Civ., sec 38.
47. Heinec. Hist. Jur. Civ. lib. 1. sec. 368-372.
48. Duo pene millii librorum esse conscripta, et plus quam trecentiens decem millia versuum a veteribus effusa, Secund. Praef. ad Dig. sec. 1.
49. Prima Praef. ad Dig. sec. 1.
50. Praef. prima. ad Cod. sec. 2.
51. See an account of that discovery in N. A. Review for April, 1821.
52. Sir William Blackstone, Com. vol. 2, 516. does not seem willing to admit that the statute of distributions was taken from the civil law: but when Lord Holt and Sir Joseph Jekyll declare, (1 P W m. 27. Prec. in Chan. 593.) that the statute was penned by a civilian, and is to be governed and construed by the rules of the civil law: and when we compare the provisions in the English statute and the Roman novel, the conclusion seems to be very fair and very strong, that the one was borrowed essentially from the other.
53. Inst. 3. 8. 3.
54. Gravina de Ortu et Prog. Jur. Civ. sec. 139.
55. Inst. l. 2. 6. Prima praef ad Dig. sec. 7. Praef. secund. ad. Dig. sec. 18. 21.
56. De Romano Imperio, sec. 23, 24. Mr. Gibbon, in his History, vol. 8. 17, 18. seems to think that the lex regia was created by the fancy of Ulpian, or more probably of Tribonian himself. The lex regia, as mentioned in the Pandects, l. 1. tit. 4. de constitutionibus principum, lib. 1. and in the Institutes, 1, 2. 6. declares: quod principi placuit legis habet vigorum; ubpote cum lege regia quae de imperior ejus lata est, populous eiet in eum, omne suum imperium et potestatem conferat. Selden, in his dissertation annexed to Fleta, ch. 3. sect. 2, 3, 4. discusses the character of the lex regia, and he says, it is evident that it stripped the people of all legislative power, and he places the origin of it back to the time of Augustus Caesar, when the Roman people transferred all their power and authority to him.
57. Esprit des Loix, liv.28. ch. 42.
58. Blacks. Com. vol. 1. Introductory Lectures. Reeve's Hist. of the English Law, vol. 1. 81, 82. Millar's Historic View of the English Government, b. 2. c. 7. sec. 3.
59. 3 Reeve's Hist. 198.
60. 3 Inst. 208.
61. Life of Sir M. Hale, p. 24.
62. 12 Mod. 482.