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[ The civilians of the darker ages have established an absurd and incomprehensible mode of quotation, which is supported by authority and custom. In their references to the Code, the Pandects, and the Institutes, they mention the number, not of the book, but only of the law; and content themselves with reciting the first words of the title to which it belongs; and of these titles there are more than a thousand. Ludewig (Vit. Justiniani, p. 268) wishes to shake off this pendantic yoke; and I have dared to adopt the simple and rational method of numbering the book, the title, and the law. Note: The example of Gibbon has been followed by M Hugo and other civilians.—M]
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[ Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c., they possess a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c. 1, 8—15. Heineccius, Hist. Juris Germanici, c. 3, 4, No. 55-124, and the legal historians of each country.) * Note: Although the restoration of the Roman law, introduced by the revival of this study in Italy, is one of the most important branches of history, it had been treated but imperfectly when Gibbon wrote his work. That of Arthur Duck is but an insignificant performance. But the researches of the learned have thrown much light upon the matter. The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made some very interesting inquiries; but it was reserved for M. de Savigny, in a work entitled “The History of the Roman Law during the Middle Ages,” to cast the strongest right on this part of history. He demonstrates incontestably the preservation of the Roman law from Justinian to the time of the Glossators, who by their indefatigable zeal, propagated the study of the Roman jurisprudence in all the countries of Europe. It is much to be desired that the author should continue this interesting work, and that the learned should engage in the inquiry in what manner the Roman law introduced itself into their respective countries, and the authority which it progressively acquired. For Belgium, there exists, on this subject, (proposed by the Academy of Brussels in 1781,) a Collection of Memoirs, printed at Brussels in 4to., 1783, among which should be distinguished those of M. de Berg. M. Berriat Saint Prix has given us hopes of the speedy appearance of a work in which he will discuss this question, especially in relation to France. M. Spangenberg, in his Introduction to the Study of the Corpus Juris Civilis Hanover, 1817, 1 vol. 8vo. p. 86, 116, gives us a general sketch of the history of the Roman law in different parts of Europe. We cannot avoid mentioning an elementary work by M. Hugo, in which he treats of the History of the Roman Law from Justinian to the present Time, 2d edit. Berlin 1818 W.]
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[ Francis Hottoman, a learned and acute lawyer of the xvith century, wished to mortify Cujacius, and to please the Chancellor de l’Hopital. His Anti-Tribonianus (which I have never been able to procure) was published in French in 1609; and his sect was propagated in Germany, (Heineccius, Op. tom. iii. sylloge iii. p. 171—183.) * Note: Though there have always been many detractors of the Roman law, no sect of Anti-Tribonians has ever existed under that name, as Gibbon seems to suppose.—W.]
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[ At the head of these guides I shall respectfully place the learned and perspicuous Heineccius, a German professor, who died at Halle in the year 1741, (see his Eloge in the Nouvelle Bibliotheque Germanique, tom. ii. p. 51—64.) His ample works have been collected in eight volumes in 4to. Geneva, 1743-1748. The treatises which I have separately used are, 1. Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8 vo. 2. Syntagma Antiquitatum Romanam Jurisprudentiam illustrantium, 2 vols. in 8 vo. Traject. ad Rhenum. 3. Elementa Juris Civilis secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8 vo. 4. Elementa J. C. secundum Ordinem Pandectarum Traject. 1772, in 8vo. 2 vols. * Note: Our author, who was not a lawyer, was necessarily obliged to content himself with following the opinions of those writers who were then of the greatest authority; but as Heineccius, notwithstanding his high reputation for the study of the Roman law, knew nothing of the subject on which he treated, but what he had learned from the compilations of various authors, it happened that, in following the sometimes rash opinions of these guides, Gibbon has fallen into many errors, which we shall endeavor in succession to correct. The work of Bach on the History of the Roman Jurisprudence, with which Gibbon was not acquainted, is far superior to that of Heineccius and since that time we have new obligations to the modern historic civilians, whose indefatigable researches have greatly enlarged the sphere of our knowledge in this important branch of history. We want a pen like that of Gibbon to give to the more accurate notions which we have acquired since his time, the brilliancy, the vigor, and the animation which Gibbon has bestowed on the opinions of Heineccius and his contemporaries.—W]
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[ Our original text is a fragment de Origine Juris (Pandect. l. i. tit. ii.) of Pomponius, a Roman lawyer, who lived under the Antonines, (Heinecc. tom. iii. syl. iii. p. 66—126.) It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279—304.)]
The primitive government of Rome [6] was composed, with some political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curiae or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold division of jurisprudence. [7] The laws of marriage, the education of children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untutored wisdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the seven classes of citizens; and guarded, by fifty new regulations, the observance of contracts and the punishment of crimes. The state, which he had inclined towards a democracy, was changed by the last Tarquin into a lawless despotism; and when the kingly office was abolished, the patricians engrossed the benefits of freedom. The royal laws became odious or obsolete; the mysterious deposit was silently preserved by the priests and nobles; and at the end of sixty years, the citizens of Rome still complained that they were ruled by the arbitrary sentence of the magistrates. Yet the positive institutions of the kings had blended themselves with the public and private manners of the city, some fragments of that venerable jurisprudence [8] were compiled by the diligence of antiquarians, [9] and above twenty texts still speak the rudeness of the Pelasgic idiom of the Latins. [10]