Decline and Fall of The Roman Empire




Gibbon's The Decline And Fall Of The Roman Empire

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Chapter XLIV: Idea Of The Roman Jurisprudence.


Part I.

Idea Of The Roman Jurisprudence. - The Laws Of The Kings -

The Twelve Of The Decemvirs. - The Laws Of The People. - The Decrees Of The Senate. - The Edicts Of The Magistrates And Emperors - Authority Of The Civilians. - Code, Pandects, Novels, And Institutes Of Justinian: - I. Rights Of Persons. - II. Rights Of Things. - III. Private Injuries And Actions. - IV. Crimes And Punishments.

Note: In the notes to this important chapter, which is

received as the text-book on Civil Law in some of the foreign universities, I have consulted,

  1. the newly-discovered Institutes of Gaius, (Gaii

Institutiones, ed. Goeschen, Berlin, 1824,) with some other fragments of the Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo Peyron. Turin, 1824.)

  1. The History of the Roman Law, by Professor Hugo, in the

French translation of M. Jourdan. Paris, 1825.

  1. Savigny, Geschichte des Romischen Rechts im

Mittelalter, 6 bande, Heidelberg, 1815.

  1. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I

am particularly indebted to an edition of the French translation of this chapter, with additional notes, by one of the most learned civilians of Europe, Professor Warnkonig, published at Liege, 1821. I have inserted almost the whole of these notes, which are distinguished by the letter W. - M.

The vain titles of the victories of Justinian are crumbled

into dust; but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes: ^1 the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, ^2, and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honor or interest of a perpetual order of men. The defence of their founder is the first cause, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; dissemble or deny his failings; and fiercely chastise the guilt or folly of the rebels, who presume to sully the majesty of the purple. The idolatry of love has provoked, as it usually happens, the rancor of opposition; the character of Justinian has been exposed to the blind vehemence of flattery and invective; and the injustice of a sect (the Anti-Tribonians,) has refused all praise and merit to the prince, his ministers, and his laws. ^3 Attached to no party, interested only for the truth and candor of history, and directed by the most temperate and skilful guides, ^4 I enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian, ^5 appreciate the labors of that emperor, and pause to contemplate the principles of a science so important to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic.
[Footnote 1: 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,

  1. 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 Gibbor has been followed by M Hugo and

other civilians. - M]

[Footnote 2: 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.


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Fall of Roman Empire
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