« PrécédentContinuer »
Τ Η Ε
For JULY, 1756.
D. Juftiniani Institutionum, Libri quatuor; and a Translation of
them into English, with Notes. By George Harris, LL. D. 4to. 155. Bathurst and Withers.
F all the Governments which, for above two thousand years past, have made any figure in Europe, or the
countries adjoining, no one, whilst in power, and preeminence, drew such respect, and admiration, from its neighbours, nor left with after-ages, upon its decline and dissolution, such an impression of dignity, and esteem, as the Roman government.
We are surprized how, from such low beginnings, and when every where surrounded by powerful and suspicious neighbours, the Romans could raise and maintain their independency; and, whilst we attend to the tract of their victories, and the celerity of their conquests; when we see them extend their empire from the narrow limits of a little town, not only over Italy, but into almost every part of the then known world, --we find still greater cause for astonishment.
But when we reflect upon the form of their government; the happy changes introduced into it from time to time; their original liberty and spirit; the political measures taken to see cure and heighten these; their military arts and discipline; the union established amongst all the orders of the state, whe ther civil, military, or ecclesiastic, by laying them equally open to the attainment of every man of ability, so that he who intended to be a' magistrate, was obliged to fit himfelf also for VOL. XV.
the priesthood and army; and how this, in so extraordinary a manner, enabled each to effect every thing for the public service, whilst it prevented all interfering of interests amongst the orders themselves ;-and lastly, how early they began and how long they continued, to secure their conquests, and strengthen
themselves in proportion to the enlargement of their territory, by incorporating the vanquished nations, and admitting them to Mare in their privileges:--these considerations, indeed, abate our amazement, but increase our esteem for this people.
Yet nothing at this day renders the Roman name more illustrious, in all the countries of Europe, than that system of laws which they compcted for the use of their state, and which still preserves to them a kind of authority and dominion, much more extensive, and even more giorjous, than what they formerly obtained by arms; for that in y, in a great measure; be imputed to force and violence, whilst t' is can only be derives from the acknowleged excellence of their conftitution.
The Institutions of Justinian give us a very distinct idea of the internal state of the Roman people; and of their privileges, connections, and dependencies. He places in a strong light, the authority of the father, the dominion of the master, the subjection of the son, and the servitude of the slave. He informs us fully of the condition of the Ingenui, or those who were originally free; and of the Liberti, or those who, having acquired Liberty by the indulgence of a master, continued under certain legal obligations to that master, now their patron. He enables us clearly to comprehend the nature of their matrimonial engagements, and marks out severally the peculiar circumftances of children, whether begot in matrimony, adopted, or bastard ; and presents us with a table of the degrees of kindred, and order of fucceffion. A fyftematic view of laws, respecting such a variety of conditions and situations in life, fixing and limitting the duties resulting from each, regulating the acquisition and transferment of property, and inflicting punishments upon crimes, whether of a public or private nature, muit, to all men of fense, of whatever profeffion, be highly instructive and entertaining; and this is the view we are invited to in Justinian's Institutions.
But our present business is not to give the public an account of the Institutes themselves, but of the new edition of them, by Mr. Harris.
In his Dedication, to Sir George Lee, Mr. Harris displays that modetly which so often accompanies real learning; and that warmth and spirit, which are the effect of integrity, candour, and sense. The Dedication is followed by this Advertisement.
that ter, bene
This Translation of the Institutions of the Civil Law into English, is principally intended as an introduction to Vinny's edition, and is published on a presumption, that most young persons are best acquainted with their own language; and that the elements of a science can never be made too easy to the learner.
• As to the few notes which are added to this version, they care chiefly relative to the law of England; but the Traní6 lator thinks it incumbent upon him to declare, that he does
not print them from any opinion of his ability for such an « undertaking, but merely through an humble hope, that, im6 perfect as they are, they may raise the curiosity of the young
reader to search more deeply, and excite him to unite the < ftudy of the laws of his own country, (of which every Eng
lishman ought to have a general knowlege) with the study
of the civil law, which is universally allowed to be the ma«fter-work of human policy.'
Next follows a brief account of the rise and progress of the Roman law, illustrated with such notes, remarks, and references, as render it very authentic, improving, and agreeable.
And then we are presented with the Institutions themselves, accompanied with Mr. Harris's translation, and notes; and to the whole is subjoined the CXVIIIth novel of Justinian, divided into three chapters, concerning the order of succession, in the original Greek, with a version, and notes.
As to the Translation, take the following articles, detached from various parts of the work.
From the FIRST BOO K.
Tit. ix. sect. 1. Definitio Nuptiarum. Matrimony is a social contract between a man and a woman, obliging them to an inseparable cohabitation during life (a).
Sect. 3. Qui funt in poteftate. • The issue of yourself, and your legal wife, are immediately under your own power. Also the iflue of a fon and " son's wife; that is, either grand-fons or grand-daughters by « them, are equally in your power: and the fame may be fad
of great-grand-children, &c. But children born of a daugh
(a) Nuptiæ autem, five matrimonium, est viri et mulieris conjunctio, individuam vitæ consuetudinem continens. B 2
ter, will not be in your power, but in the power of their own father, or father's father (6),' &c.
Tit. x. sect. 12. De pænis injuftarum nuptiarum.
If any persons presume to cohabit together, in contempt o of the rules which we have here laid down, they shall not be ( deemed husband and wife, neither shall their marriage, or 5 any portion given on account of such marriage, be valid. • And the children born in such cohabitation, shall not be una
der the power of their father. For, in respect to paternal
power, they resemble the children of a common woman, < who are looked upon as not having a father, because it is
uncertain who he is. They are therefore called in Latin, * spurii, and in Greek, at alopes, i. e. without a father : and
from hence it follows, that, after the diffolution of any such « marriage, no portion, or gift, propter nuptias, can legally be ç claimed. But those who contract such prohibited matri6 mony, must undergo the farther punishments set forth in our & constitutions (c).'
Sect. 13. De legitimatione. • It sometimes happens, that the children, who, at the time c of their birth, were not under the power
of their parents, are reduced under it afterwards. Thus, a natural son, who « is made a decurion, becomes subject to his father's power. < And he also who is born of a free woman, with whom mar
riage is not prohibited, will likewise become subject to the power of his father, as soon as the marriage instruments are drawn, as our constitution directs; which allows the same
(6) Qui igitur ex te & uxore tua nascitur, in tua poteftate eft. Item qui ex filio tuo et uxore ejus nascitur, id elt, nepos tuus et nepris, æque in tua sunt poteftate; et pronepos, et pronepris, et deinceps cæteri. Qui autem ex filia tua nascuntur, in poteftate tua non suot; sed in patris eorum.
(c) Si adversus ea, quæ diximus, aliqui coierent, nec vir, nec uxor, nec nuptiæ, nec matrimonium, nec dos intelligitur. Itaque ii, qui ex eo coitu nascuntur, in potestate patris non sunt: fed tales funt (quantum ad patriam poteftatem pertinet) quales funt ii, quos mater vulgo concepit. Nam nec hi patrem habere intelliguntur, cum et ils pater incertus fit; unde solent spurii appellari auga TV Progev, et analoges, quafi fine patre filii. Sequitur ergo, ut, disloluto tali coitu, nec dotis, nec donationis exa&tioni locus fit. Qui autem prohibitas n'ptias contrahunt, et alias poenas patiuntur, quæ fa. çfis conftirutionibus continentur,
* benefit to those who are born before marriage, as to those • who are born subsequent to it.' (d)
Tit. xi. sect. 3. De arrogatione impuberis. • When any person, not arrived at puberty, is arrogated by • the imperial rescript, the cause is first enquired into, that it may be known whether the arrogation is justly founded, and
expedient for the pupil. For such arrogation is always • made on certain conditions, and the arrogator is obliged to • give caution before a public notary, thereby binding him• self, if his pupil should die within the age of puberty, to • restore all the goods and effects of such pupil to those who
would have succeeded him if no arrogation had been made. • 'The arrogator is also prohibited to emancipate, unless he
has given legal proof, that his arrogated fon deserves eman
cipation; and even then he is bound to make full restitution • of all things belonging to such son. Also if a father, upon
his death-bed hath disinherited his arrogated son, or when ' in health hath emancipated him, without a just cause, then • the father is commanded to leave the fourth part of all his
goods to his son, besides what such son brought to him at • the time of arrogation, and acquired for him afterwards.'(e)
Sect. 7. De adoptione in locum nepotis. If any man, who has already either a natural, or an " adopted son, is desirous to adopt another, as his grand-fon, " the consent of his fon, whether natural or adopted, ought • in this case to be first obtained, lest a suus hæres, or proper • heir, should be intruded upon him. But, on the contrary,
(d) Aliquando autem evenit, ut liberi, qui fatim, ut nati funt, in poteftate parentum non sunt, poftea redigantur in potestatem patris : qualis eft is, qui dum naturalis fuerat, pottea curia datus *, poteftati patris fubjicitur: nec non is, qui, a muliere libera procreatus, cujus matrimonium minime legibus interdi&tum fuerat, fed ad quam pater consuetudinem habuerat, poftea, ex noftra conftitutione dotalibus inftrumentis compositis, in poteftate patris efficitur. Quod et aliis liberis, qui ex eodem matrimonio fuerint procreáti, fimiliter noltra conftitutio præbuit.
Curia datus) The Decurions were so called, because the Curia, or senate, of the colonies, was supposed to confift of a tenth part of she people.
(e) Cum autem impubes per principale rescriptum arrogatur, caufa cognita, adrogatio fieri pêrmiititur: et exqueritur causa arrogationis, an honefta fit, expediatque pupillo ? Et cum quibufdam conditionibus arrogatio fit: id est, ut caveat arrogator personæ publicæ, fi B 3