Oldalképek
PDF
ePub

of his nation or sovereign on his mansion. After his a commander-in-chief, generals of division, and suborcredentials have been received, he makes formal visits dinate officers. A regiment, which may consist of 1000 to the other ambassadors, to be recognised by them as men, is under the charge of a colonel and lieutenantsuch. From the moment that a minister enters the colonel; next in subordination is a major, a captain, territory of the sovereign to whom he is sent, his person a lieutenant, and ensign. Beneath are the non-comis held 'sacred and inviolable, and he acquires impor- missioned officers, including sergeants and corporals. tant privileges. To these belongs, first of all, his free. Every regiment is dressed in a particular uniform; and dom from territorial restrictions; that is, he is not re- several of them differ also in the style and weight of garded as an inhabitant of the country; but his person, their accoutrements. In taking the field against an suite, house, equipage, &c. are considered as never enemy, an army almost always requires to consist of having left the country to which he belongs, and as a due proportion of foot, horse, and artillery; for each being without the jurisdiction of that in which he assists the other. The general use of the cavalry is to actually resides. From this follows the freedom of dash in and cut up the parts of a regiment already foreign ministers from the civil and criminal law; and broken and dismayed by the fire of artillery. The the same applies to their suite; and all property be- royal navy consists of vessels of various sizes and longing to him as minister is free from all taxes, &c. construction, equipped and commanded as already No common police-officer, tax-gatherer, or other public explained under MARITIME CONVEYANCE, in Volume I. servant can enter his hotel and make inquisition, as In conclusion, it may be remarked that in modern in the house of a private citizen. One of the especial warfare the object is less to kill than disperse and privileges of ambassadors is that of worshipping ac- terrify into subjection; and therefore, among civilised cording to the forms of their own religion in countries nations, mercy is always shown when asked. where their religion is not tolerated. A minister often voluntarily leaves a court, without being recalled, when

HERALDRY-RANKS-TITLES. he thinks he suffers personal injuries, contrary to the laws of nations. There are cases, however, in which a Heraldry is the science, so called, of figurative repreminister is compelled to leave a court, when it is termed sentations, designed as emblematic of rank and honoura removal. In general, an embassy is considered as able achievements. The origin of the word herald is ended from the moment when the minister shows his uncertain; the most plausible conjecture is, that it is letters of recall, or receives his passports for his journey from the German heer, an army, and ald, a servanthome. When these are furnished him, he must leave the servant or messenger of an army. This derivation the country; but his person remains inviolable even in would at least pretty well agree with the nature of the case of war, and he is allowed to retire unmolested. office of herald, which is that of messenger, or envoy, or The same inviolability of person is enjoyed in the other crier, of a royal personage. European states, although only in time of peace, by Among the nations of antiquity, it was customary couriers and expresses, as also by persons who, without for armies to be distinguished by particular standards, any public character as envoys, are intrusted by their and warriors by emblematic devices on their shields. governments with the transaction of affairs of impor- This was a rudimentary kind of heraldry. The cultance, and requiring secrecy and despatch; but these are tivation of such devices, however, did not attain a not allowed to assume the state of a minister, and, in settled and regular form, or rise to the dignity of a their relations to other citizens, are regarded as private science, till the ages which succeeded to the dismemberpersons merely

ment of the Roman Empire. Europe was now intruded

on, and taken possession of, by conquering hordes, led Forces.

by military chieftains. This was the commencement Every government employs force in the execution of of the feudal system. Each leader or king gave porits orders, or in defence of its rights. This force is in tions of the conquered lands to his captains or nobles, two departments, civil and military. The civil force on condition that they should support him in war. is comprehended in constables and other functionaries These nobles, again, imparted lesser shares of the lands usually employed in the execution of legal objects, on the like condition; and thus, down and down, the in the maintenance of public peace, and in the enforce- whole of society consisted of military retainers, dependment of municipal regulations. Military force is quite ing ultimately on the sovereign, who was deemed the a different thing: it is an organisation of men armed great fountain of honour, the source of all authority with weapons capable of inflicting wounds and death. and distinction. In France, Germany, Italy, England, In forces of this latter kind are included an army Scotland, and some other countries, the same kind of and a navy. Regularly - formed armies are of great feudal tenure prevailed. antiquity. All nations, from the beginning of the Feudal usages led to heraldry. Everywhere there world, appear to have required, or at all events used, was fighting. Armies required standards; and knights military forces ; in other words, they maintained and assumed devices emblematic of their achievements. defended themselves by violence, and by violence they The parties who regulated these insignia were the royal conquered each other. Hence war, or a period of fight- heralds; and hence the term heraldry. As heralds ing, may be said to have had an almost unbroken travelled from country to country with armies, or with existence from the earliest dawn of history.

the kings their masters, they gradually formed a fraIn the present day, with all its enlightenment, every ternity, who took pride in fixing an exact and uniform civilised community less or more feels itself obliged to code of embleins in reference to particular circummaintain an army. In some countries the regular or stances. As feudalism advanced, and became refined, standing army is aided by an additional force, in the so did heraldry; and it may be said to have attained form of a militia or national guard, which is an armed its highest glories among the Anglo-Normans shortly citizenship. A regular army embraces three depart-after the Conquest. ments-infantry, or foot soldiers, cavalry, or horse sol- All the devices of heraldry bear a reference to diers, and artillery, or ordnance. Along with a royal weapons of war, or arms; and as the shield was the navy-men fighting in ships—the cost of the military subject of emblazonment in actual combat, so is it the array in the United Kingdom is about £18,000,000 an-chief object of heraldic illustration. A complete set of nually, and occupies the services of nearly 300,000 men. devices is called a coat of arms, which we shall describe, How far this enormous force could be reduced, consist- commencing with the shield. ently with the preservation of the empire in all its A shield, in heraldry, is called an escutcheon (Lat. parts, is one of the most important questions of the scutum), which serves as a field whereon to portray the day. The army is governed by rigorous laws of its symbolic charges or bearings. The dignity of these own, so as to maintain high military discipline, and charges is indicated by the situation in which they bring the whole body into an obedience resembling that are placed. As the head of a man is supposed to be of a machine. An army is immediately governed by more dignified than his feet, so is the upper central

с

B A

D
E

F

[ocr errors]

W

Gules,

[ocr errors]

Azure.

part of a shield more dignified than the parts beneath. Lesser or sub-ordinaries consist of double or triple Keralds distinguish nine points in escutcheons, differ- straight lines, denominated bendlets, pallets, bars, and ing in honour. The letters in the accompanying figure chevronels. Another kind of markings in the escutcheon show the situations of these points. A

are lozenges, chequered crossings, &c. is called the middle chief; B, dexter

Next we have combinations of the prechiel; C, sinister chief; D, honour

ceding figures, one surmounting or pint; E, fess point; F, nombrill point;

blended with the other. Such combiO, base point; H, dexter base; I, sinis.

nations usually refer to a union of fate base. These, and the greater num

H G

mily or national emblems. The unionber of heraldic terms which follow, are

jack or ensign of the United Kingdom from the Norman-French language. Tinctures are the is an example. For England it is argent, or cross belt species of distinctions. Tinctures signify the gules ; for Scotland, azure, or saltier argent; and for colours of shields. These colours, however, include Ireland, argent, or saltier gules. lleralds describe or Dietals and furs. Under this head is Gold called Or; emblazon the combinations thus :- Azure, the crosses and Silver called Argent; Red called Gules; Blue, saltier of St Andrew and St Patrick quarterly per Azure; Black, Sable; Green, Vert; and Purple, Pur- saltier, counterchanged argent and gules; the latter pre; Ermine and Vair are the furs. Each of these fimbrated of the second ; surmounted by the cross of tinctures (in literature) is signified by a peculiar mark- St George of the Third, fimbrated as the saltier.' ing on the shield, or, as in the case of argent, by being The next step in heraldry is putting animals, or lett blank. A gradation of dignity from or down to parts of animals, on escutcheons, in order to convey an cair is imported by the respective tinctures. The fol- allegorical meaning. The attitudes of the animals also loring escutcheons represent the distinctive markings form distinct significations. When a lion is rearing of the principal or prime tinctures :

on its hind-legs with its face in profile, it is said to be rampant. If the face is turned frontways, it is denominated guardant; if the head be turned backwards, it is reguardant. When the animal is walking, it is said to be passant ; but if the face be front ways, it is denominated passant guardant. The lion borne in the arms of Scotland is thus emblazoned :-Or, a

lion rampant gules ;' that is, a red lion rearing on a Or. Argent.

golden shield.

* The ruddy lion rampt in gold.' In the royal arms of England are seen 'gules, three lions passant guardant in pale.' When part of an animal is represented as cut off straight, it is said to be

couped; if seemingly torn off, it is erased. When an
Vert.
Purpre.

animal is represented as standing and looking in front,
it is said to be at gaze; if the animal
is represented in its natural colour, it
is described as proper.

A stag with
horns is said to be attired. An eagle
whose wings and legs are spread out,
is said to be displayed. Salmon re-
presented swimming are described as

naiant. A tree torn up by the roots is eradicated. Wild Hongurable Ordinaries are the next kind of markings men, fabulous animals, hands, legs, heavenly on shields. They resemble belts drawn across, or other bodies, shells, daggers, tears, castles, ships, anchors, forns projected on the escutcheons; and are called the implernents of various kinds, crosses of all imaginable chief

, the pale, the bend, the bend sinister, the chevron, shapes, all form emblems in heraldry, each with its the pile

, the cross, and the saltier. We present a figure distinctive appellation and meaning. the bend-which extends from the dexter chief to

Over the shield, in heraldry, a mantle, or species of the sinister base, of the chevron, and of the cross :- drapery, in wavy folds, is usually thrown. This is a

decoration, having reference to the mantle of a knight in the field of battle: the inore curled and contorted that the decoration appears, so is it implied that the mantle was torn and mutilated in the strife of arms. Above the mantle is depicted the crest. Crests were originally cognisances worn on the top of the helmet,

in order to distinguish a warrior in the confusion of a Bend. Chevron. Cross.

battle. Sprigs of certain plants, feathers, representaNext come the partitions. These are single lines tions of birds, heads, and other parts of animals, &c. dividing the escutcheon in a variety of

were used as crests. The crest of the Earls of Warwick Fays, each, like everything else, indi

was a muzzled and chained bear, holding a ragged staff, satire of a quality in the bearer. By

still well known. In heraldry, the figure forming the these lines the escutcheon is said to be

crest usually rests on a wreath, or, more properly, a party per pale, per bend, per fess, per

portion of what originally was a wreath. Wreaths of chetron, per pile, per cross, or per sal

twisted ribbon, laurel, &c. were bestowed by ladies on tier. The annexed figure imports party

favourite knights, and borne by them on their helmets; per pale. A similar line horizontally across the centre hence the emblematic wreath in heraldry. indicates party per fess.

Figures of coronets are employed to support the crests There are likewise angular lines like the teeth of a of noble families. The coronets differ in shape and in &, and curved -and notched lines,

richness of decoration, according to the quality of the cach with its distinct name, as em

bearer. The crown of a sovereign, with its arches cenbattled, indented, enarched, engrailed, in

tering in a point at the top, is well known. The coronet Tected, uavy, nebuly, dancette, raguled,

of a duke has a row of oak leaves in gold round the fillet done-tailed, radiant, &c. The accom

or band; that of a marquis has pearls placed alterpanying figure represents party per bend

nately with the leaves; that of an earl has points raised between the leaves, with pearls on the top of the points;

Sable.

Ermine.

Vair.

[ocr errors]

பபப

embattled.

EIS

6

that of a viscount has only pearls closely set; and that I quis, equivalent margrave in Germany, was origi. of a baron has a lesser number of pearls, with wider nally given to those officers whose duty it was to prointervals between.

tect the frontiers or marches of the kingdom. It has It was the practice at tournaments for the pages and long been only honorary. To marquises is given the esquires of knights to guard their shields, and for this title of Most Noble. Earl is the next degree of nobility. purpose they dressed themselves in a fantastic manner-- The title is from the old Saxon word ethel, or ear-ethel, as griffins, and other animals, &c. From this originated (gentle and noble), abbreviated to ear-el or earl. It the custom in heraldry of giving supporters to escut- was the duty of an earl to exercise civil, and also cheons. The supporters of the royal arms of Scotland military jurisdiction over the district committed to his are two unicorns; those of the British royal arms are a charge; and as count is an equivalent term for earl, lion and a unicorn. Supporters are borne only by the districts superintended by the earls came to be royal or noble houses. Every coat of arms has a motio called counties. To an earl is given the title of Right inscribed on a roll of ribbon. Mottoes originated in Honourable, and he is addressed as llis Lordship. Vis. the war-cries of knights, also in exclamations made on counts were the earl's deputies--vice comes in Latin. particular occasions. They are for the most part in To a viscount is also given the title of Right Plonourable, Latin or French. The motto for the British royal arms and he is addressed as His Lordship. The office of earls is · Dieu et mon DroitGod and my right.”

and viscounts has long since passed into the hands of A hatchment is a species of funeral escutcheon, sus lord lieutenants and sheriffs. pended in front of a house to mark the decease of one Barons occupy the lowest degree of rank among the of its inmates. These escutcheons are always drawn nobility. The title of baron implies manly power, and up with heraldic precision, so as to indicate, by the after the Norman Conquest, was given to possessors of form and accompaniments of the field and the colour domains held of the sovereignty by feudal tenure: of the ground of the hatchment, the sex, position, and these domains were called baronies. A baron has the rank of the deceased. Thus, if the death be of a male, title of Right Honourable, and he is usually spoken of the right side of the board is painted black; if of a as a Lord. The dignity of baron or lord is now given female, the left-and so on.

irrespective of territorial holdings. In modern times, in England, coats of arms are Among the commons of the United Kingdom are granted only by the sovereign, through the agency of likewise degrees of rank-baronets, knights, esquires, the Herald's College; in Scotland, by the Lord Lyon, and the people at large. The title of baronet was king-at-arms, or his officers; and in either case, only created by James I. in 1611; the design of the king on cause shown, and on payment of a fee. Latterly, having been to institute an inferior order of nobility. the science has so much degenerated in the hands of No gentleman was admitted to the rank of baronet the above functionaries, that little discrimination is without becoming bound to maintain thirty foot exercised in dispensing either crests or escutcheons; soldiers in Ireland for the space of three years, after what is worse, figures of ordinary objects are sometimes the rate of eightpence sterling of money of England by allowed to be displayed, having reference to the pro- the day.' It was by this assistance that James was fession of the bearer. This is a perversion of heraldry, able to effect the plantation of Ulster with English which is the science of emblems, not the blazonry of and Scotch settlers. A similar order of baronets was vulgar representations. In Britain, the use of armorial projected by James for Scotland, called the Nova Scotia bearings in any form renders the wearer liable to a baronets; his design being, to reclaim the province of special annual taxation.

Nova Scotia with the money they paid for the dignity.

This order of baronets, however, was not instituted till
Ranks—Titles.

1625 by Charles I. Baronets, as in the case of the In Great Britain, society is composed of three estates, nobility, are now created at the pleasure of the sovccalled the three estates of the realm--1, The sovereign; reign, and their rank is hereditary. There are, never2, The nobility or peerage; 3, The commons or people. theless, differences in the terms in which these honours This division, which originated under feudalism, gives are held; sometimes the patent creating a nobleman a character to British manners and institutions, and or baronet confines the honours to heirs male direct, admits of a considerable variety in rank and title. and sometimes allows their transmission to heirs in

To the sovereign, whether king or queen, is given the collateral branches, through heirs female. A baronet title of Majesty-as, His Majesty the King. This epi- places the prefix of sir to his name; his wife is legally thet is derived from the ancient Romans, by whom it was styled Dame, but in ordinary speech she is called Lady. applied first to the whole people in a collective sense, Knighthood was a military distinction of the middle and afterwards to the consuls and dictators. It was ages, conferred only on persons of honour, truth, and not used in modern Europe till the treaty of Cambray, fidelity. Afterwards, different degrees of knighthood 1526, when it was given to the Emperor Charles V. were created. In the present day, knighthood is an Since that period, it has been applied to nearly all honour bestowed on civilians or others, in compliment, European monarchs. By the pope, the title of Catholic as is understood, for some distinguished service in liteMajesty was given to the king of Spain; Apostolic Mu- rature, arts, or arms. It is not hereditary. A knight jesty to the king of Hungary; Most Christian Majesty to has the prefix of sir to his name. The title of esquire the king of France; and Most Faithful Majesty to the was originally given to the shield-bearers of knightsking of Portugal. Previous to the adoption of the term young candidates for the honour of knighthood. It is Majesty in England, the title of Highness, or His Grace, now so generally assumed, as to have pretty nearly lost was taken by the monarchs. To princes is now usually all value as an honourable distinctive appellation. given the title of Highness, or Royal Highness.

Master, or its contraction Mr, is the title given by The nobility consists of five degrees-dukes, mar- courtesy to all persons whatsoever of an ordinary standquises, earls, viscounts, and barons. The title of duke ing. Master is from the French maitre, which is from is from the Latin dux, a leader, and signifies the leader the Latin magister. Mistress or Mrs is from the French of an army. It is as ancient as the early German tribes maîtresse. Miss, applied to an unmarried woman, is previous to Charlemagne. Of old, dukes were set over only a contraction of mistress, which used to be applied provinces or districts to regulate the military affairs, to young unmarried women as late as the beginning of as lieutenants of the sovereign. Under the German the eighteenth century. empire, the dignity and power of the dukes became In England, with the advancement of intelligence, hereditary. In England, the first hereditary duke was we may expect a gradual disuse of titles. At present, the Black Prince, created by his father Edward III., however, they do not appear to be on the decline; and in 1336. The rank and title of duke have long since what is more remarkable, there seems to be a strong been disconnected with office. To dukes is now given love of titles, and even of heraldic insignia, among the the title of His Grace.

citizens of the North American republic. Ilow deeply Marquis is the next lowest rank. The title of mar- are such fancies imbedded in human nature !

HISTORY AND NATURE OF LAWS.

Law may be defined as a system of regulations adopted | English laws that are not of a feudal origin.' In Scotin social communities for the general advantage, and land, the Roman law has always been a special subject on that account binding upon all the individuals con- of study; and though the number of native decisions, editating a community. Such regulations being abso- the extent of statute-law, and the necessary adaptation lutely essential to the existence of a social state, we of the system to a state of society very different from mas safely infer, that as soon as any portion of man- that in which Justinian promulgated his code, have kind advanced into that state, law began to exist. Its rendered references to this source comparatively unorigin, being thus early, is necessarily obscure: we know frequent, the civil law is still authority where the parextremely little of its history in any of the nations of ticular law of Scotland does not contradict it. It is a antiquity besides Greece and Rome.

special object of study by the legal profession, and is In Grecian history we find more than one well-known the subject on which the members of the bar are first ade of laws; but so limited and simple was their ope- examined before they are admitted to practice. To ration, and so little are they adapted to the wants of a complete the general outline of the influence of this complicated state of society, that they are to be looked system in modern Europe, it must be mentioned as the upon rather as municipal regulations for the tem- source of the canon law, which was created into a perary government of a small knot of men, than as system by the Church of Rome, and still exists more systems from which any additional hints are to be ob- or less, either separately or incorporated with other taided to aid modern jurisprudence. It does not appear systems, in all countries where the papal authority was to have been in Greece—the source, as it was, of philo- acknowledged. The law of nations, or international soby, literature, and art—that useful laws, applicable code, has been, by the common assent of civilised to the business of life, had their origin. The Phoenicians, nations, derived from the law of Rome. of whose history and institutions we unfortunately know Writers have divided the legislative sources from s little, seem to have been among the first to establish which the laws of Rome spring into five. Among the

general system of mercantile law, which their exten- first of these is generally classed the people, and the are commerce distributed abroad. To Rhodes, which laws sanctioned by them are technically divided into can scarcely be considered a province of Greece, we the Lex or Populiscitum, and the Plebiscitum; the forme the earliest regulations applicable to shipping. mer including the acts of the whole people, the latter The law of average, or that by which the loss occasioned those of the plebeians convened by their tribunes. It by throwing goods overboard to relieve a ship in dis- would appear that, in the earlier periods of the monarchy, tress is laid proportionally on the whole property saved the authority of all classes was in this description of (most important branch of the commercial code of legislation tolerably equal. Servius Tullius, however, Dedemn nations), had its origin in that state, and is still the sixth king, introduced the well-known divisions called the Rhodian law. There is the less importance, into centuries and classes, by which ninety-eight votes Loserer, in the inquiry into the laws of early nations, were secured to the first class, while ninety-five only Enoe all of ancient law which continues to have any were allotted to the remaining five, of which the lowest force in civilised Europe, has come to us through one and most numerous possessed only one. The tribunes, channel-Damely, the Roman law.

who were officers chosen for the ostensible purpose of

protecting the people from the tyranny of the aristoROMAN LAW, AND THE SYSTEMS DERIVED FROM IT. cracy, were, by the exclusive and important power they Most European nations, being, as it were, the re- possessed, again the means of restoring popular election. Doulded wrecks of the Roman Empire, have obtained They procured the assembling of the people by tribes, the basis of their laws from that source. The Roman in which their votes were given individually, and withar is, therefore, by the common consent of Europe, deno- out the necessity of a property qualification. All popuminated The Civil Law. In Europe there was but one lar legislation, however, soon disappeared with the aber system at an early period, to combine with it. authority of the emperors. Augustus, except in one This was The Feudal Law, or that code of usages which instance, found the popular assemblies profoundly bei sprung up in European nations before they re- obedient, and under his successor they ceased to exist; ceived the civil law. It is, after all, only in some 80 that long before the Roman laws had become the countries that the feudal law exists: in other cases, the grand system of jurisprudence which they constituted civil law has established a proportionate, and in some under the auspices of Justinian, the popular source of a preponderating influence. In Holland and Germany, legislation had been dried up. the original purity of the principles of the civil law The decrees of the senate (Senatus consulta) are anhave been preserved with such zealous care, that the other source of the Roman law. The legislative power writings of the lawyers of those countries are quoted as of this body seems to have grown out of its judicial, zathorities on the law of Rome. In Spain, the system which was at first its proper province. By the original has been grafted on the feudal law, and on some pecu- constitution, the people alone were understood to be liar customs derived from the Moors. In France, pre- the makers of the laws, and their authority seems to ruasly to the Revolution, the civil and the feudal law have been gradually engrossed by the senate, the interFere united, as in most other nations of Europe; and ference of which, from having been confined to mere in the Code Napoleon, to which we shall hereafter advice and paternal assistance in legislation, gradually saare particularly advert, there are many regulations extended itself to that of making laws. It was not tiil from the jurisprudence of Rome allowed to exist, or the days of Tiberius that these decrees were publicly retired, while many of the feudal customs which were promulgated as laws; but the senate had by that time formerly so prominent are abolished. England distin- lost its independent authority, and become merely an guished herself from the other nations of Europe by instrument in the hands of the emperor. The proceedrejecting the civil law as authority, but many of her ings of the senate were generally suggested by some institutions were derived from its spirit and practice. public officer, as a minister of the crown now introduces

With all its imperfections,' says Sir William Jones, a bill into parliament, and a majority decided for passit is a most valuable mine of judicial knowledge; it ing or rejecting. In later times it became the practice gives law at this hour to the greatest part of Europe, for the emperor to propose a new law, either by a mesand though few English lawyers dare make such an sage or letter laid before the senate, or by an oration aknowledgment, it is the true source of nearly all our I delivered; and as there was no opposition intended or No. 54,

49

permitted, the legislative body became the mere regis- | rigour of the Twelve Tables ; time and space were trars of the monarch's will.

annihilated by fanciful suppositions; and the plea of Another source of the civil law is the constitutions youth, or fraud, or violence, annulled the obligation, or and rescripts of the emperors. At what time they com excused the performance of an inconvenient contract.' menced the practice of making laws without the nominal With the expiry of his year of office, the edicts of the concurrence either of the senate or the people, is not prætor ceased to be imperative; but they were still very distinctly known. A passage in the Pandects, the looked up to as precedents; and when they became authenticity of which, long doubted, has been confirmed venerable by long use, they were considered as part of by late discoveries, states that the will of the emperor the fixed law of the land. By an enactment of the is law, and that by a particular act, the people had con- Emperor Hadrian, called the . Perpetual Edict,' this ferred upon him all their own power, which was thence- doubtful and fluctuating branch of the law--at least as forth absolutely to remain in his hands-one of those much of it as the emperor chose to sanction-received transactions under the guise of which rulers are so fond what might be called the royal assent, and was incorof concealing their lust of power, by representing as a porated with the other portions of the civil law as a free gift that which no one can venture to refuse. distinct branch of the system. Hadrian is believed to be the first emperor who exer- In almost every nation which has passed gradually cised the authority of a supreme legislator. The im- from barbarism to civilisation, many laws will be found perial laws were issued in a variety of forms. Some- to have come into existence without the direct intertimes there was a new constitution springing from the ference of any legislature, and from no better defined monarch's own creative mind-on another occasion he origin than a habit on the part of the people of subwould give his imperial judgment on some nice specu- mitting to certain rules, or obeying the commands of lative question of law dutifully submitted to his wisdom. certain individuals: it is, indeed, generally in this Many of the imperial laws, however, were the decisions manner that legislatures have originated. A considerof the monarch in particular cases, the spirit of which able portion of the Roman law was of this kind : it was piously preserved by the lawyers of the age, as the arose in custom, was handed down by tradition and pracbest criterion for a general rule of action. In modern tice, and called consuetudinary law. It is a disputed times, we associate with despotism a horror of inno- question, how far it was necessary that some compevation, and a desire to leave all institutions, whether tent authority should certify that the principle actually expedient or hurtful, untouched. It was different in was an established portion of the ancient customs of imperial Rome. The emperors were never tired of the nation, before it could be safely acted upon as law. displaying the legislative produce of their own genius, It is a peculiarity of the civil, as distinguished from or those which the prudent and courteous discoverers the English jurisprudence, that, according to the fordid not compete with them for the merit of suggesting. mer, a law may be tacitly abrogated by long disuse. During four centuries, from Hadrian to Justinian, the In England, no law, however long forgotten, ceases to manufacturing of legislation was in almost constant exist till it be repealed by the legislature. operation. Diocletian alone enacted 1200 new laws The last fountain of Roman jurisprudence which we a number that would do no discredit to a moderately shall notice, is the Responia Prudentum-literally, the long reign of a British monarch.

answers of the wise men-the opinions of the sages of Edicts of the prætors are another, and not the least the law. It is difficult to conceive a state of society in important source of Roman jurisprudence. Of these which the opinions of legal writers, as to the interprehigh magistrates there were different numbers at diffe- tation of the law, will not have an influence. If a case rent times; but the supreme authority vested in two, occur in which the judge is uncertain as to the proper one having jurisdiction over the city, the other over application of some enactment, where can he find a more the provinces. The prætor held his office for a year; suitable or a safer guide than in the opinion of some and as a provision against his adapting his judgments far-seeing lawyer, who has anticipated the case without to his own personal views, the Cornelian law obliged him knowing the parties, and who, consequently, cannot to issue a sort of proclamation at commencement have proceeded on a bias to one or the other~a defect of his magistracy, embodying the general principles to of which the judge, if he be the first to interpret the which he should adhere in his judgments; and thus, at law, will be at least suspected ? Even in England, the moment when he was least acquainted with the where interference with the doctrines of the common duties of his office, he had to fix the plan on which he law is so jealously opposed, the early commentators was to execute them. The prætor was not originally are the only authority for its provisions; and there is vested with legislative power—it arose in the exercise no doubt that they gave the hue of their own opinions of his judicial authority. He was merely the inter- to the doctrines they laid down. In Rome, however, preter of the laws; but when they seemed to him to be where the profession of the law, instead of being a hard, or otherwise erroneous, he did not scruple to sus-trade, conferred a high rank in society, the opinions of pend or alter their execution. The prætorian law has leading counsel had a much more extensive range. been compared to the equity system in England-a dis-They not only interpreted, but they could create law, tinct system of law, arising out of those instances in by suggesting how the decisions should proceed in which it was necessary to give relief from the strict imaginary cases. At an early period, the relation of interpretation of the common law. The common law lawyer and client was that of patron and dependant. had fixed a particular rule; a case would arise in which Patricians alone could act as lawyers, and the science its application would be very oppressive: the common was involved in riddles to which they only possessed law judges, bound by their system, could give no relief; the key. The poor client was dependent on the good but the chancellor took upon him to modify the evil, will of his lordly patron for such protection from opand his decision was followed in like cases. The system pression, whether through the law or otherwise, as the of the prætors was somewhat similar, with this diffe- influence of the latter might enable him to afford. rence, that as they had no judges to compete with who When population and transactions increased, and the pursued a system of strict interpretation, their equity laws, instead of a mystery, became a serious study, had rather a tendency to modify the common law than which depended more on laborious application than to raise a rival structure. • The secret or probable simple initiation, the profession was opened to plebeians. wish of the dead,' says Gibbon, when illustrating the It became not an unusual case, at a still more advanced prætorian system, 'was suffered to prevail over the period, for the patron and lawyer to be separated; the order of succession and the forms of testaments; and former being chosen for his influence, the latter for the claimant, who was excluded in the character of his skill. The forms which regulated the intercourse heir, accepted with equal pleasure from an indulgent between patron and client, however, still retained some prætor the possession of the goods of his late kinsman relics of their origin; and it is a striking illustration of or benefactor. In the redress of private wrongs, com- the influence which Roman jurisprudence has exerpensations and fines were substituted to the obsolete l cised over the human race, to find these still existing.

a

« ElőzőTovább »