CIVIL

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CIVIL LAW.I. The Romans understood by this term nearly the same as, in modern times, is implied by the phrase positive law, that is, the rules of right established by any government. They contradistinguished it from natural law (jus naturale), by which they meant a certain natural order, followed by all living beings (animals even not excepted), also from the general laws of mankind, established by the agreement of all nations and governments (jus gentium). In this sense, therefore, it embraced the whole system of Roman law, both the private law (jus privatum), which relates to the various legal relations of the different members of the state, the citizens, and the public law (jus publicum), that is, the rules respecting the limits, rights, obligations, &c, of the public authorities.II. As, however, the laws of any state, particularly such a one as Rome, can rest only in part on positive and special decrees, and must always be developed, in a great measure, by the customs, and religious and philosophical opinions of the nation, and the decisions of the courts, further distinctions soon grew up. The supreme administration of justice in Rome was in the hands of the pretors; and these officers, on account of the paucity of positive enactments, snon acquired the power of supplying their deficiencies. To quote the words of Gibbonk;The art of respecting the name and eluding the efficacy of the laws was improved by successive pretors; and where the end was sanitary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments, and the claimant who was excluded from the character of heir, accepted, with equal pleasure, from an indulgent pre tor, the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines Were substituted for the obsolete rigor of the twelve tables, time and space were annihilated by fanciful suppositions, and the plea of youth, or fraud, or violence, annulled the obligation or excused the performance of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed, to the most dangerous abuse. But the errors or vices of each pretor expired with his annual office; and such maxims alone as had been approved by reason and practice were copied by succeeding judges." The pretors made an annual declaration, at the commencement of their term of office, of the principles according to which they intended to administer justice (edictum pratoris). This was publicly exposed on a table (album), and uniformity was maintained in the series of pretorian edicts by the legal spirit of the nation. Under the emperor Adrian, a new publication of the pretorian edict, unalterable from that time (edictum perpetuum), took place, respecting the real extent of which scholars do not agree. The whole body of rules and remedies established by the pretors, whose jurisdiction resembled, in some respects, that of the courts of equity of England and the U. States, was called jus honorarium, and was opposed to the strict formal law (jus civile). (See the next paragraph of this article.)III. The Roman law, in the shape which it assumed after the wrhole was digested in the 6th century A. D., under the emperor Justinian, was fully and formally admitted as binding in only a small part of Italy ; but both here and in the other ancient portions of the empire, it retained great influence, even after the Teutonic tribes had established new governments in the territories which had been under the dominion of Rome. In the south of France, the collection of imperial decrees and decisions which Theodosius II (A. D. 438) had prepared, remained valid, also, under the Goths. Savigny's Histoiy of the Roman Law in the Middle Ages (Heidelberg, 1822 et seq., 4 vols.) exhibits great research into the subject of the continuance and the revival of this law. After the 11th century, Upper Italy, particularly the school of Bologna, became the point where the body of the Roman law, put together by the emperor Justinian, was formed by degrees into a system applicable to the wants of all nations. This system was introduced into almost all the countries of Europe, because the want of a welldi gested body of law was seriously felt. After this model the ecclesiastical and papal decrees were arranged, and, to a considerable degree, the native laws of the new Teutonic states. From all these the Roman law was distinguished, under the name of civil lata. In this respect, therefore, civil law means (ancient) Roman law; it is contradistinguished from canon law (q. v.) and feudal law, though the feudal codes of the Lombards have been received into the corpus juris civilis. (Respecting the present form of the collections of Roman law, see the article Corpus Juris). IV. As the Roman code exerted the greatest influence on the private law of modem Europe, the expression civil law is also used to embrace all the rules relating to the private rights of citizens. Under the term civil law, therefore, on the continent of Europe, is to be understood, not only the Roman law, but also the modern private law of the various countries; e. g., in German)', Das gemeine Deutsche Privatrecht; in France, the Code civil des Francois, or Code Napoleon. In this sense, it is chiefly opposed to criminal law, particularly in reference to the administration of justice, which is to be divided into civil justice and criminal justice. Having made these few remarks on the name and character of the civil law, we shall now proceed to a more particular account of its history. The history of the Roman law, embracing its gradual developement, its final completion under the latter emperors, particularly under Justinian, and the great effects which it has exerted even down to the present period in Europe, is a most interesting and important subject. Rome may be said to have thrice conquered the world, namely, by its arms, by its laws, and by the decrees promulgated from the papal chair. The dominion of its laws has been the best founded and the most extensive. The Roman laws may be formally abolished, but their influence can never cease. Their effect is as permanent as that of Grecian art. At the same time, it is not to be denied, that the introduction of the civil law has, in the case of several nations, obstructed the developement of their own peculiar systems of law, and in this respect produced evil consequences; but such is the nature of great agents which are beyond the control of human power. An acquaintance with a more perfect language, a more beautiful style of art, and, we might even cay, with a purer religion, has likewise prevented the growth or completionof many institutions and modes of action, which might have borne noble fruits.In considering the history of the civil law, as, in fact, of any system of law which has sprung from the wants of the people among whom it grew up, we must take into view the public law and political history of the state, and the growth of its civilization. The commencement of the history of Rome offers little that is original. Its institutions were such as existed in all the neighboring states. Greek views predominated throughout. The royal authority fell in Rome, as it had fallen in all the Greek governments, and the division of the nation into a hereditary body of nobles, and a comparatively powerless community of citizens, gave rise to numerous and lasting struggles. The real character of the internal constitution of Rome will afford, even after the ingenious and deep researches of Niebuhr, in his Roman History, ample opportunity for learned investigation. If manly firmness (virtus) constituted the beau ideal of a genuine Roman, the same quality was the basis of the Roman laws. These laws did not consider the individual principally in his connexion with others, like the ancient German laws, which give a value to the individual chiefly as a member of a family or a community, but, at an early period, treated every one as an independent member of society, the head of a family, free from the restraints of relationship, or membership of corporations. Institutions like thoise of the Germans, recognising a property common to a family or a corporation, hereditary or entailed, a body of attendants attached to the lord, feudal services, unequal right of inheritance among children, &c, are not to be found in the civil law. The relation between patricians and plebeians, between patrons and clients, was very different from the feudal connexion. The expulsion of the kings was at first of advantage only to the higher classes of citizens (A. U. C. 245), but, only 15 years afterwards (A. U. C. 260), these were obliged to grant to the other citizens the college of the tribunes and the right of holding deliberative assemblies, which opened the way for the great compact of the twelve tables, drawn up by patrician decemvirs (A. U. C 303, 304), which the ancients considered as establishing equality of rights, though it was not till some years afterwards, that the patricians and plebeians were allowed to conclude valid marriages with each other (lex Canuleia, A. U. C. 309); and not till a much later period were plebeians capable of being elected consuls (A. U. C. 387). An important point of that fundamental law or charter, if we may give it a modern name, was the establishment of such an order of legal procedure, that the poorer class of citizens, and particularly those living without the city, should not, as had been too often the case, suffer from their causes being hurried through the courts. Another important point was the settlement of the legal independence of the individual. Eighty years after the plebeians had been made capable of being elected to the consulship, the senate was obliged to acknowledge the validity of the people's decrees (plebisscita), by the lex Hortensia (A. U. C. 468); and, from the first appointment of a praetor urbanus (A. U. C. 367), it was customary, as we have already said, for this officer to give public notice, annually, at the beginning of his term of office, of the principles according to which he intended to decide the cases that should fall within his jurisdiction. These edicts of the pretors, in which the same rules, with few exceptions, were uniformly adopted, were a better means of keeping the system of laws in a constant state of developement, than special decrees would have been. By this means, there grew up, besides the positive law (jus civile, in the stricter sense of the word), a whole body of acknowledged principles, a common law (jus honorarium), which supplied the chasms of the positive ordinances, mitigated their severity, or paved the way for the necessary reforms. Though the ancients, e. g., Gicero, mention the great accumulation of these positive laws, yet their number, at least as far as respected private rights, appears very small, compared with the laws of modem times. It was only as it regarded the regulation of public relations that there existed in the time of the republic such a mass of laws, that Csesar thought it a meritorious work to bring them into a system. But it ought not ta be forgotten, that the necessity which existed at that time, of impressing the whole body of decisions on the memory of the lawyer, made the mass become troublesome much sooner than it would if there had been collections of laws, abridgments, digests, registers, &c. For the purpose of making legislative enactments, there existed in the republic two concurrent authoritiesthe meeting of the citizens (plebs, under the tribunes, in comitiis tributis, whose resolutions are called plebisscita), and the senate (whose decrees are called senatus consulta). In the beginning, 19* the provinces of the two were so separated, that each one passed decrees only upon its own affairs and relations; but very soon it became necessary to acknowledge mutually a common authority (lex Hortensia, A. U. C. 468). However, as long as Rome remained a republic, the interference of the senate in the enactment of laws was comparatively rare. After the great internal convulsions had broken out, the conquerors endeavored to establish their authority more firmly, and to gain the favor of the people, by making important reforms in the laws, particularly those which concerned the punishment of crimes and political offences, the regulation of legal processes, and some abuses in the public administration. This was done by Sylla (leges Cornelia, A. U. C. 673), by Caesar (A. U. C. 708-710), but much more by Augustus, in whom, from the year of Rome 723, the power of all the branches of government, and the direction of the senate and of the meetings of citizens were united (leges Julia). To the laws, strictly so called, previously customary (the leges, approved by the citizens), and the decrees of the senate, now were added the special ordinances (constitutiones) of the emperors, besides which the pretors in Rome and in the provinces still retained the right of contributing, by their edicts, to the developement of the legal system. As soon, however, as the monarchical government became settled, the forms of the republic gradually disappeared. In the reign of Tiberius (A. U. C. 767-790, A. D. 14-37)^ no leges are to be found after the year 777, and, 200 years later, the senatus consulta, also, merged entirely in the imperial decrees, constitutions and rescripts. The annual edicts of the pretors, till then customary, were collected under Adrian (A. U. C. 884, A. D. 131), by the jurisconsult Salvius Julianus, into a form which was made unchangeable, called the edictum perpetuum. It is worthy of remark, that though, after Augustus, the most absolute despotism had become established in all public relations, and the penal laws had been made mere instruments of despotism, this veiy time is the most brilliant period of the scientific developement of the civil law. This period begins with Augustus, but the brightest part of it falls under the An tonines (from 23 B. C. until 180 A. D.) and one or two succeeding emperors. The great names of Caius, Papinian, Ulpian, Paulus, belong to this last period. When the political privileges of the citizen had no guarantee but the good dispo sition of the emperors, which often proved a very imperfect security, the laws which regulated the relative rights of individuals, and protected them from mutual wrong, were continually approaching perfection. This subject deserves a more thorough investigation than it has yet received. All legal relations were expressed with admirable skill and consistency in distinct definitions, and the whole system was developed from a few principles, which run through the whole, and the distinctness and simplicity of which are proved by the adoption of the Roman law among so many different nations. The process of developement was in so far historical, as it was always connected with an adherence to the old forms, but it was entirely philosophical and rational, as it always strove to find out the real principles of rights and obligations, and to make the formal law dependent upon them. After the age of the Antonines (from 180 A. D.), such a political confusion took place, that the scientific spirit was lost. The judicial system was now continued only by the imperial constitutions, which treated but rarely of private law, while they entered much and often into the subject of public relations. The opinions of the ancient jurisconsults of the better period were regarded almost as legal authorities, and, to remedy the difficulties arising from their different views, it was provided by Valentinian III (426 A. D.), that the majority of opinions should decide. The number of the constitutions became such, that collections of them were made, first by private persons (codex Gregoriarius et Hermogenianus, about 365 A. D.), then an official one by Theodosius II (codex Theodosianus, 438 A. D.), in 16 books, of which the 11 last have been preserved entire ; of the 5 first, however, only fragments are extant. The latter have been recently discovered at Turin by Peyron, and at Milan by Clossius. (See Hermes (a German periodical), xxv. 314.) There was also an abridgment of this code, made in 506, for the use of the Visigoths (the breviarium Alaricianum). Far the greater part of these decrees relates to the public law. (Jac. Godefroi wrote an excellent commentary on this code, which, together with the commentary, was published by Ritter, Leipsic, 1736.) Injurious consequences necessarily resulted from the cessation in the developement of the Roman law after the time of the Antonines. It may be seen, from the expressions of Justinian, into what subtillies, what verbal and formal niceties, the lawyers had fallen in his timea state of things, in some respects, not unlike the present state of law in England, from similar reasons. The public administration, at least as far as regarded its external form, had been reduced into tolerable order since the time of Diocletian and Constantine. Theodosius II (408-450) had conceived the idea of arranging the immense mass of rules and authorities relating to the private law, but the difficulties, on examination, were considered too great, and no sovereign till Justinian (527-565) had the courage to meet them. He first ordered the imperial constitutions, which still remained in force, to be put into a hew collection (codex Justinianus, commenced in 527], and decided, in and after the year 530, 50 legal questions, which had been, till then, left doubtful. At the same time, a systematic abridgment of the writings of the jurisconsults was made by 17 commissioners, embracing 50 books of digests or pandects, and an introduction to the study of jurisprudence was prepared (institutiones): both works were published Dec. 30, 533, and invested with legal authority. In the following year, a new collection of imperial decrees (codex repetita pralectionis), in 12 books, was published, and from that time another series of single decrees (13 edicts and 159 novellcR constitutiones), by which the Roman law may be considered as completed, because it was deprived of its capacity of further developement, and left to mankind as a rich but lifeless treasure. The opinions respecting this work of Justinian are very various. If we consider merely the practical utility of his labors, as regards his age and people, it will not be denied, that he conferred a great benefit on his subjects, and the changes themselves, which were made in the existing regulations, proceeded mostly from a sound view of the higher objects of the law. The abolition of antiquated and useless forms, the simplification of legal relations and legal processes, must be acknowledged to have been the principal objects of the changes made; and these changes were executed with judgment If there are decrees of little value among them, these imperfections are not greater than we find in all ancient and modern codes. Justinian has been particularly blamed by modem jurisconsults for combining into one mass, into a kind of code, all the existing works on law, which were acknowledged as authorities. These critics would prefer to have the writings themselves rather than die ex tracts, perhaps, in some cases, perverted from their original meaning. But it is very possible, that, if it had not been for the compilation of Justinian, no part of these writings would have been preserved; and it would seem that a beneficent providence sometimes allows large masses of historical knowledge to perish (as in the case of the Alexandrian collections), in order to compel mankind to revert to the resources of their own minds, and to lead them from knowledge to wisdom. However this may be, the undertaking of Justinian was demanded by the wants of his age ; and it was better to satisfy such a demand, even at the expense of some imperfections, than to delay the necessary work under the pretext of educating competent men for the task, and making thorough inquiries; and all must admit the fruit of the labor to have been a treasure of legal wisdom for posterity. Our limits will not allow us to mention here the different editions, abridgments and translations of the work prepared for the Greek provinces (the Western provinces were soon lost forever). One Greek edition, of a much later date, was ordered by L. Basilius Macedo (867-886), and executed under his successor, Leo the Philosopher (886-9121 This was called libri Basilicorum. Of the 60 books of which it consisted, we possess only a part; though, indeed, the greater part, published by C. Hann. Fabrot (Paris, 1647, 7 vols, fol.), and 4 books, which did not appear in this edition, were published by Reitz, in Meermann's Thesaw*us Jur., vol. v. p. 1. Thus the Roman law is one original and independent whole, embracing a period of 1300 years to the time of Justinian, and of 1850 years to that of the Basilica. It stands, in this respect, unique in history. Perhaps China, if, at some future period, we learn more of its history, may afford some institution of similar duration. Even the downfall/>f the Roman empire has not destroyed the Roman law, but, in some respects, has enlarged its dominion. It was in force, before the modern governments were established, throughout the Roman empire in Europe, and when the Goths, Franks, Lombards, Burgundians, and other Teutonic tribes, erected new empires, not only a large part of the public law of Rome was incorporated into the new constitutions, but the private law, also, continued to be acknowledged as valid among the old inhabitants. The new rulers took care that, besides their different ordinances for the weal of the Germanic tribes, abridgments and modifi cations or the Roman law should be made, sometimes, it is true, rude and barbarous enough. Among these were the breviarium Alaricianum of the Visigoths, 506 ; the lex Romance of the Burgundians, or Papiani Responsa, between 517 and 534. For the Lombards, a rifacciamento of the Ro man law was prepared in the 8th and 9th centuries, and thus, in the south of France and Italy, this law continued in authority uninterruptedly, as far as it was adapted to the new state of things. But this authority, of course, diminished in proportion as new forms of family relations and social connexions and new species and tenures of property sprang up, particularly under the feudal system, and in proportion as the internal disturbances in the different states unsettled the idea of law in general. But this idea was awakened again after the states had gained a degree of stability. People began to perceive that there was a nobler and firmer basis of right than mere power; national union gained consistency and true value by means of commerce and industry ; the lower classes demanded the extension of their privileges ; the increasing activity produced more solid distinctions than those of birth; the insufficiency of the old laws began to be felt, and the blessings of a scientific cultivation began to be diffused, borrowed, in a considerable degree, from the Arabians in Spain. In this state of things, men rose, in Upper Italy, in the 11th century, who freed the lawbooks of Justinian from the obscurity in which they had been buried till then, and by these means gave a new impulse to the science of law. Irnerius, towards the end of the 11th and in the 12th century, is mentioned as the first of them. All the nations on the European continent seized eagerly upon the treasure offered to them, after the model of which were now digested the papal decrees, the feudal law, and, at a later period, the Germanic laws. Thousands of scholars, from all parts of Europe, went to Bologna and other cities of Italy, to study law there. It was generally supposed, at first, that the Roman law was applicable to the whole of Christendom; but it was soon found out that there existed whole systems of laws and legal relations, with which the rules of the civil law would not harmonize; and the peculiarities in the organization of the tribunals of different countries were long an obstacle to the formal adoption of the civil law. This adoption, therefore, did not take place in the various countries at the same time, nor to the same extent. In Italy and the south of France, it was introduced first and most completely; at a later period, and to a less degree, in the north of France (in the pays de droit coutumier), w^here it has never, in fact, been acknowledged as binding, but only as an authority in regard to general principles of natural law (raison ecrite), and still retains this degree of influence, notwithstanding the establishment of the Code civil. In England, it never has been received in the ordinary civil courts (it is, to some extent, in Scotland), but the spiritual courts have always been guided by it. It is therefore in force in such cases as fall under the jurisdiction of these courts: e. g., such as relate to last wills. It is also in force in the admiralty courts, but in both with many modifications. In Germany, the idea that the emperors were the successors of the Roman sovereigns contributed much to obtain legal authority for the Roman law in that countiy ; and this has been confirmed by several laws of the empire and of the different states composing it. But the native laws have eveiy where prior authority, and the Roman law can only be applied in cases where these make no provision; but all those of its rules which relate to institutions confined to Rome have no force. It is not allowed, moreover, to be applied to cases growing out of modern institutions, such as fiefs, primogeniture*, bills of exchange, nor in questions belonging to the public law. Many cases, therefore, can happen, in which there may be much doubt whether the Roman law is applicable or not. Prussia and Austria have codes; but in other German states, as in Saxony, there is a great confusion between the Roman and the native law. We have already observed that the effects of the Roman law never would cease, and its influence is perceivable in all the modern codes. We would not be understood as intimating an opinion that the Roman law supersedes the necessity of forming new codes. These are desirable in many nations, on many accounts, and, among others, because the Justinian code itself is not without obscurities, and the language in which it is written renders it inaccessible to the bulk of the people of every modern state ; but the welfare of a citizen depends, in a great degree, upon correctly understanding his rights and obligations. Whether the principles of the Justinian code agree or not with those of the English law, it must be of great advantage to the common lawyer to study a digest which contains the recorded wisdom of many centuries, and furnishes abundantly both examples and warnings. We would recommend to the reader an article on civil law in the American Jurist, No. Ill, July, 1829 (Boston).