property, and are deemed the most important. The numerous works, both foreign and domestic, on various branches of the law of personal rights and commercial contracts, I may have occasion to refer to hereafter, as the subjects of which they treat pass under consideration, in the course of these lectures. Any critical notice of them at present would lead us too far from the general purpose of this inquiry, and many of them are not sufficiently matured by time to become of much authority.

Sanders's Essay on Uses and Trusts is a comprehensive and systematic treatise, but it wants that fulness of illustration, and neat and orderly arrangement, requisite in the discussion of so abstruse and complicated a branch of the law. The learned Mr. Butler has given a very elaborate note on the same subject; (a) and there is an excellent summary of the law of uses and trusts in Cruise's Digest, arranged with his customary skill, and supported by an accurate analysis of adjudged cases, which are apposite and pertinent to the inquiry.

Sugden's Practical Treatise on Powers is the best book we have on that very abstruse title in the law. It was regarded by the author as his favorite performance, and he is entitled to the gratitude of the student for his masterly execution of the work. It is perspicuous, methodical, and accurate. Mr. Sugden's Treatise on the Law of Vendors and Purchasers is also a correct and useful collection of equity principles on a subject extremely interesting, and of constant forensic discussion. (b) Roberts on Fraudulent Conveyances covers a very important head in the jurisprudence of the courts of equity. He has collected the cases arising under the statutes of 13 and 27 Elizabeth, respecting conveyances that are deemed fraudulent in respect to creditors and purchasers; and though the *514 treatise is written in bad taste, it is a useful digest of the law on that subject. Powell's Essay upon the Learning of Devises contains a systematical and valuable view of an important branch of the law concerning title to real property, and it is enlivened with some spirited discussions; but neither the essay, (a) Note 231 to lib. 3 Co. Litt.

(b) In 2 Molloy, 561, Lord Ch. Hart, as late as 1829, spoke very disparagingly of Sugden's Treatise on Vendors and Purchasers, by saying that it was not to be cited as an authority per se. This was going quite as far as decorum would warrant, considering that Mr. Sugden had been his immediate predecessor on the Irish Chancery Bench.

nor the one of his upon mortgages, are to be compared to the clear, succinct, and masterly analysis of the cases under similar titles, in the great work of Mr. Cruise. Fearne's Essay on Contingent Remainders and Executory Devises is a performance of a very superior character. It is eminently distinguished for the ability and perspicuity with which it unfolds and explains the principles of the most intricate parts of the law. Mr. Preston's recent Essays on Estates and Abstracts of Title contain sound and clear views of the law of real property, and they have already attained the authority of works of established reputation.

I have thus attempted, for the assistance of the student, to unfold, in this and the preceding lecture, the principal sources from which we derive the evidence and rules of the common law. There is another source still untouched, from which a great accession of sound principles, particularly on the subject of personal contract, has been received, to enlarge, improve, and adorn our municipal codes. I allude to the body of the civil law contained in the Institutes, Digest, and Code of Justinian; and our attention will be directed to that subject in the next lecture.

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LECTURE XXIII.

OF THE CIVIL LAW.

THE great body of the Roman or civil law was collected and digested by order of the Emperor Justinian, in the former part of the sixth century. That compilation has come down to modern times, and the institutions of every part of Europe have felt its influence, and it has contributed largely, by the richness of its materials, to their character and improvement. With most of the European nations, and in the new states in Spanish America, in the province of Lower Canada (a) and in one of the United States, (b) it constitutes the principal basis of their unwritten or common law. It exerts a very considerable influence upon our own municipal law, and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate's or consistorial courts. (c)

The history of the venerable system of the civil law is peculiarly interesting. It was created and gradually matured on the banks of the Tiber, by the successive wisdom of Roman statesmen, magistrates, and sages; and after governing *the greatest people in the ancient world for the space *516 of thirteen or fourteen centuries, and undergoing extraordinary vicissitudes after the fall of the western empire, it was revived, admired, and studied in modern Europe, on account of

(a) Real property law in Canada, under French grants, was established upon the basis of the Coutume de Paris, with feudal burdens. The French civil law, as it existed in Canada at the time of the conquest of the province, still prevails, without any of the ameliorations of the Code Napoleon.

(b) See the Civil Code of the State of Louisiana, as adopted in 1824.

(c) The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed into 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.

the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland, and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of D'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus to the establishment of the twelve tables.

1. Early Roman Law. -The fragment of the Enchiridion inserted in the Pandects (a) is the only ancient history of the first ages of the Roman law now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from

oblivion by Justinian; and Bynkershoek has republished * 517 * it, and endeavors to restore the integrity of the original text by emendations and a critical commentary. (a) From this fragment we learn that Sextus, or Caius Papirius, who was a Pontifex Maximus about the time of the expulsion of Tarquin, made a collection of the reges legiæ, or laws and usages of the Romans under their kings, and which was known by the name of the Jus Civile Papirianum. Very few, if any, fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws. (b) Such a work was evidence of great progress in

(a) Dig. lib. 1, tit. 2. De Origine Juris.

(a) Prætermissa ad leg. 2 D. De Origine Juris. Opera, i. 301.

(b) Heinecc. Antiq. Rom. Jur. Proæm. sec. 1 and 2; Hist. Jur. Civ. i. sec. 15, 16.

jurisprudence under the kings, and it must have contained an account which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world. (c)

The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. The Roman people were originally, or very early in their history, divided into three tribes and thirty curiæ, and the patrician order and the Roman senate were instituted under Romulus, and that last body became in process of time the most powerful and majestic tribunal in all antiquity. (d) The general assemblies of the people or comitia were* a part of the primitive gov-518 ernment, and a very efficient portion of the legislative power, and they met in their curia, parishes or wards, and the vote of every citizen belonging to the curiæ was equal in these comitia curiata. The senate was a select body of three hundred of the elder citizens, from the heads of the clans or gentes, and regard was had to rank, birth, property, honor, and age. The king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the powers of a civil and military chief. (a) The fecial and other colleges

(c) Gibbon, in his History, viii. 5, note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats much of the early Roman history as a legend, says, that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. History of Rome, i. 211. 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.

(d) Cic. de republica, b. 2. In hoc orbis terræ sanctissimo gravissimoque concilio. Cic. in Cat.

(a) I have followed Dionysius of Halicarnassus, Livy, Cicero, and the other authors of the classical ages, in respect to the early political and legal history of Rome; and I have not been inclined to adopt the historical scepticisms of some modern antiquaries (of whom Niebuhr may be placed at the head), so far as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, i. 290–295, English ed. Camb. 1828. He holds, however, contrary to the received opinion, that the curia were assemblies of the patricians, or gentes, or heads of families, and not of the whole people; and that the Plebs were landholders of the neighboring towns and country, and field-laborers, who were free, and above the degree or condition of the