KFL 81 F33 rtNNtK IHE CcCNtSIS AND DeSCtHT or THE SrsTon or Civiu Law nrtvAiLiNft IN Louisiana. New Okli^ns 1857 Cornell University Library KFL 81.F33 The genesis and descent of the system of 3 1924 017 796 503 THE GENESIS AND DESCENT THE SYSTEM OF CIVIL LAW PREVAILING IN LOUISIANA. AN AEEXR^SS, raiRBB AT Request of the Faculty of ti*e Law Department of the ^ ,,,TULANE University of Louisiana, at the Commencement on Saturday*,_May isth, i886, By CHARLES E. gENNER, Associate justice of the Supreme Court of Louisiaaa. 8 Published by ORDteR of the University. NEW ORi-EANS : L. Graham & Son, Printexis, 99 and 101 Gravxbr Street, 1887. Si FS3 " The Genesis and Descent of the System of Civil Law Prevaihng in Louisiana." The best explanation I can make of the peculiar char- acter of the address I am about to deliver will be the frank confession that it was not prepared for this occasion, but that at a time when the Faculty had honored me by elec- tion to the chair of Givil Law in the Tulane University, it was prepared as an introductory lecture to my intended course. Circumstances having prevented my ultimate ac- ceptance of the position, the lecture was never delivered. In adapting it to the present occasion, I have excused myself for its didactic character by the thought, that to my professional auditors it might recall some scraps of forgotten learning; to you, gentlemen of the graduating class, it might serve to refresh your recollections, of the lessons you have lately received from your learned professor, while to the laymen of my audience it might convey useful information as to the "genesis and descent of the system of civil law prevailing in Louisiana." You all remember that Byron introduces his splendid ode, " The Isles of Greece," with the lines : "Thus sung, or would, or could, or should have sung, In tolerable verse, the Modern Greek." I paraphrase this and introduce my address by saying : " Thus said, or would, or could, or should have said, the incipient Professor." I would have it remembered, gentlemen, that the first lesson which I sought deeply to engrave upon your minds, as the light by which your course should be ever guided in the study and in the practice of your profession, was 2 THE SYSTEM OF CIVIL, LAW the fundamental truth that the sole object of law is, by the exercise of right reason, to ascertain, to declare, and to execute justice. This truth is emblazoned on the fore-front of the Roman Institutes in the declaration, ^'^ juris frcece-pta sunt honeste vivere, alterum non Icedere, suum cui-que tribuere," and it is consecrated by a multitude of maxims derived from that jurisprudence, amongst which are the following. y£quum et bonum est lex legum. Z.ex cequitate gaudet. Jus sequitur aquitatem,: Bonus judex secundem aquum et bonum judicat et oequi- tateni stricto jure^raefert. Ratio est anima legis. ^uid sit jus et in quo consistil injuria, legis est dejinire. In this connexion and before proceeding to a concise re- view of the history of the Roman law, let me here advert to the extraordinary safe-guards which, in that system, were thrown around the administration of justice. It was not content to rely upon the conscience of the judge to ■decide justly ; but made it his duty to do so at his peril. It was declared to be the legal duty of a judge " not to de- termine otherwise than the laws, the constitutions, or the usages and customs direct." (Inst. B. 4, T. 17). It was considered as a legal injury for a Judge to "decide unjustly against any person," and he was subject to an action of ■quasi malfeasance, on the ground that, by such unjust determination, " he hath certainly committed a fault, although not by design, but through imprudence and want of skill." (Inst. B. 4, T. 75.) Perhaps I should not consider it a subject of regret that the rigor of these rules has been abated. One rule re- mains, however, which might justly have been perpetuated. Amongst the nine crimes which, by the twelve tables, were adjudged worthy of the punishment of death, was the cor- PREVAILING IN LOUISIANA. 3 Tuption of a judge who accepted bribes to pronounce an iniquitous sentence. Yet the judicial risk was, in those days, greatly diminished by the care which the Roman law took to prevent unjust suits and defenses. The text de- clares it to be a prime object of the law, " to hinder men from engaging inconsiderately in law suits," and, "the better to prevent such suits, the rashness of both plaintiffs and defendants hath been properly restrained by pecuniary punishment, the coercion of an oath, and the fear of in- famy." (Inst. B. 4, T. 16). The plaintiff was obliged to probe his conscience deeply before he ventured to ap- peal to the tribunals for relief, and the defendant resisted a just demand equally at his peril. In the earlier law the plaintiff, who demanded more than his due, lost his entire debt, even that which was justly due : and, if he made an unfounded demand, was subject to penalties in an action of calumny ; and in many cases, the defendant, who denied a just cause of action, was condemned to pay double and triple the amount adjudged to be due. In actions of theft, rapine, injury, fraud, tutelage, mandate, deposit and part- nership, the party condemned was branded with infamy. In all cases, both plaintiff and defendant, and their re- spective advocates, were required to verify their pleadings by a solemn oath that they proceeded, not to vex or delay, but upon a thorough confidence that their cause was just. Inst. B. 4, T. 6; T. i6, 33, ss. 12. These examples illustrate the sincerity and emphasis with which the fathers of the law proclaimed not only that justice was the sole end and aim of law, but that suitors, advocates and judges should alike be held to strict account if they sought, or fpermitted, any violation of its sacred mandates. The general coincidence of law and morality, though often sneeringly denied by shallow sciolists, is admitted by 4II philosophic thinkers ; and the Roman Institutes and 4 THE SYSTEM OF CIVIL LAW Pandects are almost as valuable as works of Ethics as of legal science. Dugald Stewart, referring to the revival of the study of the Roman law in the I2th Century, says r " No study could then have been presented to the curiosity of men more happily adapted to improve their taste, to en- large their views, or to invigorate their reasoning powers.. It conducted the student to the very verge of ethical as well as of political speculation, and served, in the meantime, as a substitute of no inconsiderable value for both those sciences. It furnished, in the further career of human ad- vancement, the parent stock on which were grafted the first rudiments of pure ethics and of liberal politics taught in modern times," It is one of the most remarkable facts of history and a tribute to the elevating character of legal pursuits, that the growth of this noble system of jurisprudence was un- checked by the degeneration and decay of Roman liberty and virtue ; that, in the midst of the incredible and universal corruption which disgrace the reigns of the worst Caesars, men like Papinian and Ulpian still filled the seats of justice, and that the purest jewels that illuminate the Pandects^ found light amongst the filth of the time of Caracalla and Commodus. The necessity for law arises from two facts : ist. The incapacity of man to determine and agree upon what is right and what is wrong. 2nd. The selfishness of his nature which prompts him to pursue his own ends and interests in disregard of the rights of others. It is obvious that if all men agreed as to what was just and what unjust, and if all voluntarily sought to do- justice, there could arise no clash and there would be no need for laws or Courts. But such and ideal state of society is totally inconsistent with the imperfections of man's nature ; and, strange to say^ PREVAILING IN LOUISIANA. 5 it would be much easier to supply the moral, than the in- tellectual requirements for such a state. It is not impossi- ble to conceive of a community so virtuous and innocent that none among them would desire knowingly to do wrong ; but, given such an Utopia, how would they agree among themselves as to what was right and what wrong? The human mind is gifted with no infallible hght of rea- son or instinct by which all men can be guided to a like determination of the just and the unjust. Left to individu- al judgment, equity would vary with the capacities, the age, the education, the prejudices, the passions, the interests of men ; the most honest and conscientious would speedily fall into hopeless conflict as to their rights and obligations, and anarchy would render society impossible. Hence the necessity experienced in the earliest social states and grow- ing with their expansion and development, of a law-making power which shall prescribe, for all alike, the rule of right, of a. judicial power to determine, according to that rule, the disputes of individuals and of an executive which shall compel obedience thereto. It has been perhaps, the most difficult task and the grandest occupation of man, to devise, develop and perfect a system of laws which should define the rule of right for the just determination of the infinite variety of conflicts which arise between men, out of the innumerable relations into which they are thrown with each other. The diver- sity of these conflicts can be compared only to the leaves of the forest, no two of which are precisely alike. He who would stand upon the shore and count the waves of the sea, would undertake a task not more interminable than his who would anticipate the possible varieties of legal ques- tions, and attempt to provide rules precisely applicable to their decision. As society has progressed and experience has developed, new questions have arisen and new laws, and changes in old laws, become necessary or expedient, 6 THE SYSTEM OF CIVIL LAW and laws, decisions, opinions and commentaries accumu- late in such multitude that their volume becomes an intol- erable obstacle ta the easy apprehension of the law. To relieve this difficulty, from time to time, legislators have undertaken the task of reviewing the accumulations of the past, of reconciling their antinomies, of extracting their es- sential substance and of condensing them into concise ex- pression in the form of codes, institutes and digests. Whea such works have been accomplished with the aid of learned and skilful men, their authors have generally felicitated themselves in the belief that they have exhausted the science of the law and provided a sure and sufficiently sim- ple " rule of right " for the determination of all the contro- versies of mankind. But they had barely time to pause in contemplation of their achievements, before the progres- sive science of jurisprudence has resumed its incessant march; the accumulation of new cases, new decisions, new commentaries begins again ; and the boundless domains of natural law and reason open far beyond the limits of their explorations, and invite to further conquests. Napoleon was soon awakened from his satisfied contem- plation of the perfection of his code, and, when the first commentary upon it was published, is said to have ex- claimed in despair, " my code is lost." But experience has established how necessary such commentaries were, and how far his code fell short of affording an evident solution even of questions arising directly under its provisions, much less of the infinite number of questions constantly presenting themselves for the decision of which it furnishes no express rule whatever. More wisely appreciating the necessary incompleteness of their own work, the framers of the Louisiana Code in- serted the 2ist Article, declaring that '• in all civil matters, where there is no express law, the judge is bound to de- cide according to equity. To decide equitably an appeal PREVAILING IN LOUISIANA. 7 is to be made to natural law and reason, or received usages, where positive law is silent." The various codes, institutes, digests, and general ordi- nances to which I have alluded, together with the significant writings of great masters, form land-marks on the great march of jurisprudential conquest, where pauses were made to inspect and arrange the spoils of the route, discard- ing the useless and superfluous, preparatory to the resump- tion of its forward step, with lightened burden, into new realms of achievement. That march connects the Civil Code of Louisiana directly with the days of Romulus. He who would become a great civilian, founded in the reason of the law and familiar with the origin, history and development of its principles, must diligently traverse that path. While it is far beyond the compass of my present task, to attempt to instruct you in the principles of the law pre- vailing in the various epochs of its history, I have consid- ered that it would be useful and appropriate to review cursorily the prominent stages of the progress of the Civil law from its origin in the earliest days of Rome to its present establishment in the State of Louisiana and among the nations of continental Europe. The earliest laws of the Romans were the laws of the Kings, proposed by the supreme magistrate, debated in the council of nobles or senate, and finally ratified or rejected by the general assembly of the people. These laws were inscribed on wood, ivory or brass, and were consigned as a sacred deposit in the custody of priests and nobles. Although there exist doubtful traditions of an earlier code or digest called the Jus Pajiirianum, it was reserved for the Decemvirs to establish the first authentic code in the famous Twelve Tables. This re- nowned body of laws, within the limits of twelve tables or chapters comprising all together but one hundred and nine 8 THE SYSTEM OF CIVIL LAW brief propositions, professed to treat of nearly every subject then embraced within the limits of jurisprudence ; and they doubtless contained the general substance of the laws of the kings which had preceded them. They remained the objects of the veneration of the Roman lawyers and people, through the entire period of their history, and, though overwhelmed by the variety of new laws, do'ctrines and commentaries, they retained their authority as the fundamental rule of right and standard of civil jurispru- dence for many centuries, down to the reign of the Emperor Hadrian, when they were supplanted by the first succeeding effort to formulate the general principles of law in a single body of institutes, known as the Perpetual Edict. We may pause here to contemplate for a moment the oc- cult science of the forms of contracts and actions which prevailed under the early Roman law. Symbols and set forms of words were essential for the valid performance of all legal acts, and error as to the form of proceeding was fa- tal to the substance. To use the recapitulation of Gibbon, " The communion of the marriage-tie was denoted by the necessary elements of fire and water ; and the divorced wife resigned the bunch of keys,- by the delivery of which she had been invested with the government of the family. The manumission of a son or a slave was performed by turning him around with a gentle blow on the check. A work was prohibited by the casting of a stone. Prescription was in- terrupted by the breaking of a branch. The clenched fist was the symbol of a pledge or deposit. The right hand was the gift of faith and confidence. The indenture of covenants was a broken straw ; weights and scales were introduced into every payment ; and the heir who accepted a testament, was sometimes obliged to snap his fingers, to cast away his garments and to leap and dance with real or affected transport." The mode of conventional obligations was in the form of PREVAILING IN LOUISIANA. 9 Stipulations, which were entered into by means of precise questions and answers, in prescribed words adapted to €ach particular subject of contract ; and for their validity the use of these solemn words was rigidly required. When a suitor wished to carry his cause before a magistrate, he cited his adversary in person and, if he did not voluntarily go with him to the judge, the suitor was entitled to carry him thither by force. The two went in company to the judgment seat, in the hope that they might come to some agreement on the road, in which case it was the duty of the judge to give judgment according to this agreement. But if not, when they arrived before the judge, the scenes of a new pantomime were enacted in lieu of the grave pleading of our time. Says Gibbon: " In a civil action, the plain- tiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamenta- tion, the aid of his fellow citizens. The two competitors grasped each others hands as if they stood prepared for combat before the tribunal of the Prastor. He commanded them to produce the object of their dispute. They went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they ■contended." The parties were entitled to hearing from sun-rising until noon, and the Prsetor was required to give judgment in the afternoon of the same day. XII. Tables, T. i, §§ 8 and 9. Justice, in those days, was swift, if not sure. The knowledge of these symbolical and verbal forms and solemnities, absolutely essential to the validity of obli- _gations and the vindications of rights was, during a long period, confined to the pontiffs and patricians, who with- held these portions of the "sacred deposite " from the mass of the people, and held their art as a privilege pecu- liar to themselves. The masters of this mystery walked lO THE SYSTEM OF CIVIL LAW in the forum on public days, or fixed their days of consul- tation at their houses, when, seated on a kind of throne, they received from dawn of day the visits of their fellow- citizens, to whom, without other fee or reward than their gratitude and expected civil support, they imparted all needful advice and taught the forms and observances vvhich were essential to give validity to their transactions or to enable them to enforce their rights. Although the secrecy of their art was soon betrayed and lost, the power and influence of great lawyers continued, and the mastery of the civil law, with arms and eloquence, constituted the three avenues of promotion to the honors of the- Roman State. From the adoption of the twelve tables to the age of Cicero, the development of the Roman jurisprudence was chiefly due to the adoption of new laws, the growth of the Praetorian and ^dilitian system of honorary, law and to the resfonsafrudentum, or opinions of jurists given to their clients upon questions of law submitted to them. The meagreness of the twelve tables and of other texts of positive law proved utterly inadequate to the varied re- quirements of justice, and it was necessary to supplement the defects of legislation by the aid of judicial and pro- fessional exposition. The strict forms of action, also, to which judicial relief was confined, were found inapplicable to many cases where justice demanded remedial interference. Under the same influences which created the equity ju- risdiction of Courts of Chancery in England, the Praetors and -^diles undertook, in the administration of justice, to supply the silence or ambiguities of the law, to relieve its harshnesss, to extend its principles, to enlarge its equi- ties, and, even by subtleties and fictions, to mitigate its pre- cise rigor and to force its application into consonance with equity. The Praetor, when he assumed his office, an- nounced and afterwards inscribed his edict, in which he PREVAILING IN LOUISIANA. IE set forth the rules which he proposed to follow in the de- cision of doubtful cases and the relief which his equity- would afford from the precision of the statutes. These edicts^ were improved and developed, as these officers succeeded each other, retaining what, in the past, had proved bene- ficial, rejecting the prejudicial, and instituting new rules- as they were found desirable. In the task of constructing this artificial body of equita- ble jurisprudence, the Prastors were powerfully assisted by the lawyers whose learned and subtle opinions, under the name of resfonsa -prudentum, acquired an authority pro- portioned to the reputation and abiHty of their authors, and aided the judges in the development of a scientific system of law. By the time of Cicero this jurisprudence had acquired great volume, and had conquered vast regions of juris- prudence, but it lacked system and scientific arrangements In his day the study of Grecian philosophy illuminated the minds of the Roman civilians, and the logic of Aristotle lent its aid in the establishment of general principles and the reduction of chaotic doctrines to order and symmetry.. Schools were instituted, books were composed ; and Ser- vius Sulpicius, the great contemporary of Cicero, became,, by his writings and teachings, the pioneer in the great task of establishing jurisprudence on the basis of certain and general principles ; while Cicero himself , though not claim- ing preeminence as a technical lawyer, shed over the work the splendor of his philosophic speculations. The period from the birth of Cicero to the reign of Sev- erus Alexander is designated as " the learned and splendid age of jurisprudence." During that period the power of legislation passed froro^ the people to the Senate, and by gradual and cunning pro- cesses of usurpation, from the Senate to the Emperor. The system of Praetorian edicts continued until the 12 THE SYSTEM OF CIVIL LAW reign of Hadrian, when the praetorship of the great lawyer Salvius Julianus was signalized by the composition and promulgation, with the approval of the Emperor and Senate, of the famous Perpetual Edict, a comprehensive and well digested body of legal institutes, which reconciled the con- flict between the positive and the honorary law, and sup- planted the twelve tables as the authoritative expression of the fundamental principles of jurisprudencej But the most potent factors in the development of scien- tific law were the incredible industry, the vast learning and the exquisite reasoning powers of a multitude of great jurists who graced the period now under consideration. The whole realm of human knowledge was explored. Science and art, history, theology, philosophy and meta- physics were rendered tributary to their labors ; and they lent a semblance of justice to the extravagant defini- tion by Justinian of jurisprudence as "the knowledge of all things divine and human." They carried ethical spec- ulation to the verge of refinement ; they traced the minutest distinctions of right and wrong with exquisite touch; they solved all problems which experience had presented, and, with busy imagination sought to anticipate all that could arise. So far as the purely rational part of the law is con- cerned, it is doubtful whether to this day any advance has been made beyond their achievements ; and few questions could arise which might not find their solution, directly or by analogy, in some text of their writings. Capito and Labeo, Caius, Paul, Ulptan, Papinian and Modestinus are perhaps the most noted in the huge cata- logue of illustrious names which shed lustre upon this golden epoch of the law. I may not pause longer upon this interesting period ; nor can I trace the conflicts which ensued between the great schools into which the lawyers became divided, the most notable of which were the Sabinians and Proculians PREVAILING IN LOUISIANA. I3 and their later congeners, the Cassians and Pegasians. Nor need I dwell upon the period between Severus Alex- ander and Justinian, during which, says Gibbon, " the ora- cles of jurisprudence were almost mute ; the measure of curiosity had been filled, and the professors of Rome, Con- stantinople and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors." The Gregorian, Hermogenean and Theodosian codes may be passed with the remark that they were mere digests or compilations of the constitutions of various Emperors. When Justinian ascended the throne, the fecundity of legis- tion, of judicial exposition and of professional commenta- ries and treatises had diffused the Roman jurisprudence through an incredible number of volumes, beyond the power of any wealth to purchase or of any capacity to read and master. They were full of conflicts and antino- mies and of such discordant doctrines, that the most opposite decrees of judges might be severally sustained by the sanction of venerable authority. Justinian conceived and executed the task of reducing this vast and chaotic mass to approximate order and within reasonable compass. His first work was to digest and codify the positive or statutory law. He confided this task to Tribonian and nine learned associates, with instructions to review the ordinances of his predecessors, to purge errors, reconcile contradictions, retrench the superfluous, and to condense the wise and salutary laws into compact and systematic form. This work was accomplished in fourteen months, and in twelve books or tables after the example of the Decemvirs, and constitutes the Code of Justinian. His next was to review, abridge and concentrate the sub- stance and spirit of the voluminous decisions, opinions and treatises of the Roman civilians. This great work was entrusted to Tribonian with sixteen associates, and was 34 THE SYSTEM OF CIVIL LAW accomplished in the space of three years. They chose the works of forty of the most eminent civilians and digested -over two thousand treatises. We may regret that the voices of the great lawyers of the Republic and even of the Augustan era are rarely heard ; but doubtless their teachings had been transfused into the utterances of the later and more advanced civilians. This work, comprised in fifty books, was entitled the Digest or Pandects of Justinian. Finally, Tribonian, Theophilus and Dorotheus were "directed to prepare a volume of institutes or rudiments and ■elements of the law, which, we are informed in the prooe- mium of the work, was " compiled from all the institutions of the anicent law, but chiefly from the commentaries, in- -stitutions and other writings of Caius," and was addressed -" cu^idcB legum juventuti," " to youth eager for knowl- edge of the laws, " in order that " the rudiments of law might be more effectually learned, and that your minds should not be burdened with obsolete and unprofita- ble doctrines, but instructed in those laws only which are allowed of and practiced." These works, the code, pandects and institutes, with the novels or later constitutions of the Emperor, constitute the ffreat corpus juris civilis Homani. The eminent masters, the results of whose labor and thought are embodied in these immortal works, are justly entitled to veneration as the pioneers and path-finders of judicial science. But this is far from being the limit of their glory. Unlike most inventors and discoverers, their merit was not confined to merely pointing the way to those who ishould succeed them. They did not only, like Columbus, discover the existence of an unknown continent. They explored it from circumference to centre, defined its Sjoundaries, developed its resources, penetrated its forests, PREVAILING IN LOUISIANA. 1 5 navigated its streams, cultivated its soil, and mining deep beneath its surface, plucked from their hidden recesses its buried treasures. Like the sculpture, eloquence and poetry of Greece, the jurisprudence of Rome stands, the wonder and the model of succeeding ages. As the sculptor of to-day studies the fragments of Athenian statues to find the true lines of grace and symmetry ; as the architect ex- plores the ruins of ancient temples to discover the scope and power of constructive design ; so the legislator and jurist have drawn their purest inspiration from these imperishable monuments of the Roman law. Inthe language of Gib- bon, " the vain titles of the victories of Justinian are crumbled into dust ; but the name of the legislator is in- scribed on a fair and everlasting monument." Truthfully and eloquently was it said by another, that though the laws of Rome lost their sway " by reason of empire," they perpetuated it "by the empire of reason." Thus, with rapid flight, have I skimmed the surface of the development of Roman jurisprudence, resting only on the most conspicuous promontories of its course. But with even greater expedition and lighter touch must I trace the course of its transfusion into the modern institutions of Europe. The victories of Belisarius and of Narses checked, but could not arrest, the tottering decline and fall of the Roman Empire. The subjection of Europe by the invading hordes of northern barbarians, swept law as well as art, science andciviHzation, into the night of the Dark Ages, the sav ageness of which has been perhaps most pungently charac- terized by the remark of a critic, who no doubt held clean- liness as next to godliness, to the effect that " during four hundred years no man, woman or child in Europe ever took a bath," But it is not to be forgotten that for centuries all west- l6 THE SYSTEM OF CIVIL, LAW ern Europe, including Britain, had lived beneath the Roman laws, and its original inhabitants had not been so completely exterminated that they had not preserved tradi- tions of the Roman institutions and imparted their impress to the barbarous customs of the conquerors. In France, especially, the invaders were content to main- tain their own system of law for their own government, while they left the conquered peoples to be governed by the Roman law, so that the two systems existed side by side, mutually impressing and modifying each other. In process of time the races became amalgamated into one people. It came about that in the north of France, where the invaders formed the great majority of the popu- lation, the customary law or " loi contumiere," founded on the Germanic codes, mixed with the previous institu- tions of the conquered Gauls, became the prevalent and common law; while in the south, where the relative numbers of the races were reversed, the " Droit ecrit " or Roman law, with like modifications, prevailed. Thus the Loire divided France into two districts, one known as the " Pays du droit ecrit," the other as the " Pays du droit contumiere." This " droit ecrit," however, must have been a very im- perfect representative of the Roman law. The nations of western Europe had been severed from the Roman Empire long before the time of Justinian, and they never had the advantage of possessing the great works in which he em- bodied its jurisprudence ; and we know not what resources for its study and scientific cultivation had been spared, in the wreck of institutions, to the ecclesiastics who chiefly contributed to its preservation. In the " Assizes of Jerusalem," however, a body of laws promulgated in 1099 by Godefroy of Bouillon, for his new kingdom of Jerusalem and drawn chiefly from the preva- lent laws and customs of France, we discover how much they were indebted to the Roman law. PREVAILING IN LOUISIANA. 1 7 In the twelfth century, the code, institutes and pandects of Justinian blazed upon the reviving intellect of Europe as a new discovery and gave an extraordinary impetus to the scientific study of the Roman law. This revival is com- monly attributed to the discovery of these works at Amalfi, in 1 1 28; but there seems to be no doubt that various copies had been preserved at Ravenna, and that the merit of the revival is due to Irnerius, a citizen of Bologna, who met with some of these, and giving himself to their study, mas- tered and commenced teaching them, thus founding his famous school at Bologna. From this centre, the study rapidly spread over Europe. The celebrated Vacarius was brought from Italy, and was installed as its professor in the University of Oxford. The works of Glanville, Bracton and Fleta, the earliest writers upon English law, exhibit the great debt which that system owes to the Roman law ; and, though at a later period the common lawyers of England professed to ignore and con- temn the Roman jurisprudence, its powerful impression cannot be concealed. At a still later day, when Selden, Hale, Hardwicke, Holt and Mansfield came to illuminate English law, they gave themselves to the study of the im- mortal books of Justinian, and did not disdain to acknowl- edge their obligations to these illustrious teachers. In France, jurisprudence may be said to have begun its scientific development in the 13th century, during the reign of the good king St. Louis, who ordered, translations of the books of Justinian, and in his ordinances, commonly known as the institutions of St. Louis, made great use of them and introduced significant changes in the judicial organization and in the methods of legal procedure. During his time the most ancient writer on French law, Pierre Defontaines, published his work called "The Counsel which Pierre Defontaines gave to his Friend and all others," as an answer to the request of a nobleman who desired his son to become acquainted with the laws. l8 THE SYSTEM OF CIVIL LAW About the same time (though often attributed to a later date) the first collection of adjudged cases in France, known as the " Olim Registers," was published ; and Philip De Beaumanoir, in his " Coutumes de Beauvoisis," handed down to posterity an invaluable summary of the customary law of France, as prevailing at that epoch. From this date the study of the Roman law assumed genuine importance in France, and during the fourteenth and fifteenth centuries it was pursued with great method and intelligence. This development achieved its climax in the beginning of the sixteenth century, when Alciat and the immortal Cujas, in the schools of Avignon, Toulouse, and Bourges, adopted a more elegant and scientific method of exposition and attracted multitudes of students from all parts of Europe. Cujas is considered as the greatest expounder and teacher of the civil law. One of his works was the re-arrangment of the Pandects by culling the scattered fragments of several of the great civilians whose works had been digested therein and were dispersed under the headings of various subjects, and compiling them as a coherent whole ; thus, as it were, recreating the treatises of Paul, Ulpian and Papinian, which had only survived as fragments dispersed through the Pandects. A brilliant contemporary of Cujas was Charles Dumoiilin, whose famous "Commentaries on the Customs of Paris" earned for him the appellation of the " French Papinian," and effected for the customary law what Cujas had done for the Roman law. These great writers retain their place as the fathers of French jurisprudence and their works are still quoted as of the highest authority. While they were thus illustrating the exposition of the law, another great man, the Chancellor I'Hospital, was conferring like benefits upon the legislation of his country. PREVAlLintG IN LOUISIANA. t^ The edicts and ordinances prepared by him contributed largely to reform and systematize the statute and customary law of France. Without noticing other writers who adorned this golden era of French law, we may now pass to the age of Louis XIV, when Jean Domat, the Christian jurist, immortalized his name by his noble work upon the Civil law. Founding his method upon the teachings of the Bible, he moulded the doctrines of the Roman and of the customary law into a compact and coherent system of Civil law based on right reason instructed by divine revelation, sanctioned by the approval of great jurists, and sustained by the general con- sent of mankind as evinced by the customs and usuages of nations. The learning, lucidity and comparative brevity of this noble treatise commends it to the student of the Civil law as his vade mecum, while judges and jurists equally revere it as of the most commanding authority, I must conclude the notices of French jursists anterior to the Code with the illustrious names of D'Aguesseau and Pothier The fame of D'Aguesseau was earned chiefly as a leg- islator, though his writings on the principles of legislative methods and reform are of great value, and he was, indeed, a most learned lawyer. It was reserved however, for Robert Joseph Pothier to carry the art of juridical disquisi- tion to the acme of perfection. Fascinated, at an early age, with the study of the Digest of Justinian, he was im- pressed with the defects in order, scientific arrangement and accuracy which deformed the hasty work of the origi- nal compilers. These had not been remedied by the labors of Cujas, who, as we have seen, had pursued the method of re-uniting the extracts of the juris-consults so as to reconstruct the original treatises from which they had been taken. Pothier, on the contrary, in his " Pandectae 20 THE SYSTEM OF CIVIL LAW Justinianeae in novum ordinem digestse," sought to perfect the scientific arrangement of the various subject-matters of the law, increasing the sub-divisions, and redistributing the texts to the various sub-divisions to which they apper- tained. But not confining himself to this Herculean task, he de- voted equal diligence to the study of customary law and became the rival of Dumoulin as well as of Cujas. Thus equipped, his industry swept over the whole field of the law in numerous treatises on its various branches, shedding light and order everywhere, combining and concentrating the Roman and customary law into a homogeneons whole, establishing their general and substantial agreement in many points, showing the modifications which each had produced in the other, and educing the general principles upon which they should be reconciled and blended into a harmonious whole. His treatise on Obligations is accepted by the jurists of all nations as, perhaps, the most perfect model and exam- ple of judicial composition. The works of Pothier and Domat anticipated and simpli- fied the task of giving uniformity to the law of France by the adoption of a general code or body of legal institutes for the whole realm. Under the feudal system, France had been divided into a multitude of seignories or provinces, each of which pos- sessed and preserved its separate usages and customs, so that, even in his day, Voltaire wittily remarked, " lorsqu'un homme voyage en France, il change de lois presque autant qu'il change de chevaux." The inconvenience of this had been recognized from an early date, and from the time of Charles VII, as far back as 1453, the project of estabUsh- ing an uniform system of laws had been cherished but never accomplished. Partial attempts in that direction were made in the codes PREVAILING IN LOUISIANA. 21 of Henri III and IV, and of Louis XIII ; the general ordi- nances of Chancellor L'Hospital and those of Louis XIV and XV, the last of which embraced the great labors of D'Aguesseau. But the work still remained incomplete. During the French revolution, while the National Con- vention was in power, and afterwards under the directory, the subject was taken up and Cambaceres presented seve- ral successive projects of a general code, which were not, however, adopted. It was reserved to the consulate under the direction of Napoleon to provide France with a civil code. He named a commission composed of Tronchet, Bigot-Preameneau, Portalis and Malleville, charged to prepare the work. In the incredibly brief space of four months they pre- sented their report. They had not far to go to find the ma- terial for their work. The institutes of Justinian furnished them with a general plan. The treatises of Pothier and Domat filled out the details. Many titles were, substan- tially, mere synopses of Pothier's essays upon their sub- jects. It is said that three-fourths of the code consists of extracts from his works. Napoleon first submitted the report to the judges of the court of Cassation and of all the other appellate tribunals, inviting their criticism and suggestions. Then the report, with the judicial observations, was submitted to the legisla- tive section of the conseil d'etat. Thence, with the obser- vations and proposed amendments of the latter, it went to the Tribunate. This body discussed it and prepared a frocks-verbal of its own observations and suggestions, which was transmitted to the conseil d'etat. The legisla- tive section of that body considered the suggestions made by the Tribunate, and the differences between the two were then argued before the general assembly of the conseil d'etat, which decided between them and adopted a final plan which was submitted to the Corps Legislatif . The 22 THE SYSTEM OF CIVIL LAW Corps Legislatif submitted it again to the Tribunate. The Tribunate, after examination, returned it to the Corps Le- gislatif, and represent^ves of the counseil d'etat and of the Tribunate, respectively, were heard in support of their several views. After this discussion the Corps Lfegislatif took final action and adopted the code, which, as a body of law, was finally promulgated on March 31, 1804. The French code is an avowed composition between the Roman law and the customary law, combining those prin- ciples of each, the wisdom and practical utility of which had been confirmed by experience and |by the approval of such sages as Domat and Pothier. The work has assuredly many defects, but it finds its highest panegyric in the fact that through repeated and violent changes in the government of France, the code has survived the wreck of institutions ; that it has supplied the other nations of Europe with the model upon which they have constructed similar codes ; and that, crossing the ocean, it has formed the groundwork of the code of one of the States of this Union, which has clung and still clings to it as the wisest and safest embodiment of funda- mental principles of law. In estimating the genius of Napoleon, it is common to lay exclusive stress upon his military achievements; but, wonderful as these are, perhaps his highest title to endur- ing fame is as a founder of Institutions. Receiving France as a tabula rasa with all her former institutions utterly swept away, he organized new ones, which, under all changes, still remain dominant and constitute the existing basis of the polity of modern France. Among these may be mentioned the restored church resting on the Concordat ; the Univer- sity, the Judicial System, the System of Local Government, the Bank of France, the Legion of Honor, the Commercial and Criminal Codes, and, greatest of all, the Civil Code. When receding ages shall have lost all trace of the light PREVAILING IN LOUISIANA. 23 that blazed from the " sun of Austerlitz," and shall recall no" longer the faintest tremor of the mighty convulsion which shook monarchs from their thrones and obliterated the boundaries of nations, the glory of Napoleon will still survive, perpetuated in fadelessimmortality by his associa- tion with these imperishable monuments of his reign. From its permanent settlement by Iberville in 1700, Louisiana, for more than a half a century, remained a French province and subject to the laws of France. In 1762 France ceded the colony to Spain, but his most Catholic Majesty did not assume possession until 1769. Don Alexander O'Reilly, the Spanish Governor, swept out of existence the system of laws formerly prevailing and substituted therefor the laws of Spain, which became thenceforward the sole law of the province. In comment- ing upon this sudden change from which such serious con- sequences might have been anticipated, Judge Martin re- marks: "As the laws of Spain and those of France pro- ceed from the same origin, the Roman Code, and as there is a great similarity in their dispositions in regard to matri- monial rights, testaments and successions, the transition was not perceived before it became complete ; and very little inconvenience resulted from it." During the remainder of the century the law of Spain was the law of Louisiana. In 1800, a treaty was passed between France and Spain, by which the latter power agreed to cede Louisiana to France, six months after the accomplishment of certain conditions stipulated in the treaty. These conditions were not performed until 1803, when France demanded the completion of the cession. Before this was accomplished, however, France sold Louisiana to the United States at a price of sixty millions of francs besides other considerations. 24 THE SYSTEM OF CIVIL LAW On November 30th, 1803, tbe possession of Louisiana passed formerly from Spain to France ; and on December 25th, following, it passed from France to the United States. In 1804, Congress passed an act, organizing its terri- torial government under the style of the Territory of Or- leans. The laws formerly prevailing were continued in force. One of the first acts of the territorial legislature in 1805, was to appoint a commission composed of Moreau-Lislet and Brown, '^to prepare a digest of the civil laws now in force in the territory of Orleans, with alterations and amendments adapted to the present form of goverment." In 1808 this commission made its report to the territorial legislature, which was adopted and is known as the code of 1808. This code preserved anterior laws in force except in so far as they were contrary to, or inconsistent with itself. Although the Napoleon code had been promulgated in 1804, in those days of slow and imperfect communication, no copy of it had yet reached New Orleans. The framers of the code of 1808 availed themselves, however, of the project of the work which they possessed, and embodied large portions of it in their own report. Under this code and the unrepealed ancient laws, Louis- iana remained until 1825. Judge Martin gives a curious and amusing account of the administration of justice among the polyglot population of Louisiana of that period. He tells us : " Courts of justice were furnished with inter- preters of the French, Spanish and English languages ; these translated the evidence and the charge of the Court, when necessary, but not the arguments of counsel. The case was often opened in the English language, and then the jurymen, who did not understand that tongue, were indulged with leave to withdraw from the box into the gallery. The defense PREVAILING IN LOUISIANA. 2$ being iiv French, they were recalled, and the indulgence shown to them was enjoyed by their companions who were strangers to that language. All went together into the jury-room, each contending that the argument he bad lis- tened to was conclusive, and they finally agreed upon a verdict in the best manner they could." In 1812, Louisiana was admitted as a State into the Union and formed her first constitution. In 1822 her legislature ordered a revision of the former code, and appointed three commissioners, Moreau-Lislet, Derbigny and the famous Edward Livingston, to perform the work. In 1824, the commission made its report, which was subsequently adopted and is known as the code of 1825. The framers of this code had great advantages over the authors of the code of 1808. Not only had they the Napoleon Code as finally adopted ; but they had the benefit of the jurisprudence of the French Courts during twenty years in its administration and con- struction, and also of numerous learned commentaries up- on it which had been published by eminent jurists of France. These had pointed out its errors, inconsistencies and deficiencies While there are numerous substantial modifications and changes, the student of our code will discover that the vast majority of the new articles are mere enunciations; of the conclusions which had been reached by French Courts and commentators in the construction and inter- pretation of the Napoleon Code. The work has but slight pretensions to originality, and must be considered as a substantial reproduction of the Napoleon Code expanded by the exposition of the French jurists, and altered in some respects to conform to the cir- cumstances and relations of the people. The fame of Edward Livingston, as a jurist, is deservedly great; but it 3 26 THE SYSTEM OF CIVIL LAW rests not on his share in the code of 1825, but on his re- markable and philosophic project of a penal code prepared under legislative authority, but never adopted. The code of 1825 was again revised under legislative authority in 1870, but that revision consisted merely in the embodiment of amendments and laws previously passed, and was a simple work of clerical compilation. This code, thus decended from the Roman through the French and Spanish law, embodies the existing system of law prevailing in Louisiana. While the Federal government and every other State of this Union recognize the Common Law of England as the fountain of their Municipal law, and although the vast majority of her own population are derived from people reared under that system, Louisiana has, with tenacious fidelity, clung to this code, which traces its descent through the law of France, directly back to that of Ancient Rome. Fearful that, by some sweeping legislation, her system of law might be changed, she has guarded against it, in all her constitutions, by providing that "the General Assembly shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall recite at length the several provisions of the laws it may enact." When the English people were threatened with a change in their system of law, their barons checked the design of Monarch by the defiant declaration, *' nolumus leges anglice mutari. ' ' Louisiana, with equal fidelity to her own system, has constantly proclaimed in the name of her people " nolumus leges Louisianee mutari" When you, gentlemen, shall have studied and mastered them, when you shall have possessed yourselves of the wealth of genius and erudition which have been gathered around them by such men as Martin, Porter, Matthews, PREVAILING IN LOUISIANA. 2>J BuUard, Eustis, Rost, Slidell and others, when you shall have observed their practical application, their broad equity, their elevating simplicity,Itheir adaptation to all contingen- cies in human affairs, I believe that you, too, will assume the sacred task of perpetuating them and of transmitting them to your posterity. In no country does the lawyer require such extensive and varied knowledge of different systems of law, for his per- fect equipment, as in the State of Louisiana. While we have just reviewed the vast scope of the studies required of him to master the Civil law, the federal and interstate re- lations of the state demand an almost equal fullness of learning in the Common law and Equity jurisprudence of England, and America. He should be as familiar with Blackstone, Kent and Story as with Domat and Pothier, with the adjudications of the Courts of Westminister and Washington as with those of the French Court of Cassa- tion. This furnishes an explanation of the remarkable feat by which J. P. Benjamin, after having been for years the leader of the civilians of Louisiana, found it an easy leap to spring to the leadership of the bar of England, and, from his practice and studies here, carried away the learning and genius which enabled him to electrify the Courts of Westminister as he had those of Louisiana. Louisiana stands as the connecting link between the civil law of continental Europe and the common law of England, bringing them into common relations with each other and blending their diverse merits. The science of comparative law is yet in its infancy. I trust I may in- spire some listener with the ambition to enter upon the task of its development, by saying that the education and experience of the Louisiana lawyer peculiarly fit him for such an undertaking.