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For JULY, 1756.
D. Juftiniani Inftitutionum, Libri quatuor; and a Translation of them into English, with Notes. By George Harris, LL. D. 4to. 15s. Bathurst and Withers.
F all the Governments which, for above two thousand years paft, have made any figure in Europe, or the
countries adjoining, no one, whilft in power, and preeminence, drew fuch respect, and admiration, from its neighbours, nor left with after-ages, upon its decline and diffolution, such an impreffion of dignity, and esteem, as the Roman go
We are furprized how, from fuch low beginnings, and when every where furrounded by powerful and fufpicious neighbours, the Romans could raise and maintain their independency; and, whilft we attend to the tract of their victories, and the celerity of their conquefts; when we fee 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 fpirit; the political measures taken to fecure and heighten thefe; their military arts and discipline; the union established amongst all the orders of the ftate, whe ther civil, military, or ecclefiaftic, by laying them equally open to the attainment of every man of ability, fo that he who intended to be a magistrate, was obliged to fit himfelf alfo for VOL. XV.
the priesthood and army; and how this, in fo extraordinary a manner, enabled each to effect every thing for the public service, whilft it prevented all interfering of interefts amongst the orders themfelves;-and laftly, how early they began and how long they continued, to fecure their conquefts, and strengthen themfelves in proportion to the enlargement of their territory, by incorporating the vanquished nations, and admitting them to fhare in their privileges:-thefe considerations, indeed, abate our amazement, but increase our esteem for this people.
Yet nothing at this day renders the Roman name more illuftrious, in all the countries of Europe, than that fyftem of laws which they compofed for the use of their ftate, and which ftill preferves to them a kind of authority and dominion, much more extenfive, and even more glorious, than what they formerly obtained by arms; for that in y, in a great meafure, be imputed to force and violence, whilft this can only be derived from the acknowleged excellence of their conftitution..
The Inftitutions of Juftinian give us a very diftinét idea of the internal state of the Roman people; and of their privileges, connections, and dependencies. He places in a ftrong light, the authority of the father, the dominion of the mafter, the fubjection of the fon, and the fervitude of the flave. He informs us fully of the condition of the Ingenui, or those who were originally free; and of the Liberti, or thofe who, having acquired Liberty by the indulgence of a mafter, continued under certain legal obligations to that mafter, now their patron. He enables us clearly to comprehend the nature of their matrimonial engagements, and marks out feverally the peculiar circumftances of children, whether begot in matrimony, adopted, or baftard; and prefents us with a table of the degrees of kindred, and order of fucceffion. A fyftematic view of laws, refpecting fuch a variety of conditions and fituations in life, fixing and limitting the duties refulting from each, regulating the acquifition and transferment of property, and inflicting punifhments upon crimes, whether of a public or private nature, muft, to all men of fenfe, of whatever profeffion, be highly inftructive and entertaining; and this is the view we are invited to in Juftinian's Inftitutions.
But our prefent business is not to give the public an account of the Inftitutes themfelves, but of the new edition of them, by Mr. Harris.
In his Dedication, to Sir George Lee, Mr. Harris displays that modefty which fo 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.
This Tranflation of the Inftitutions of the Civil Law into English, is principally intended as an introduction to Vinny's edition, and is publifhed on a prefumption, that moft young perfons are beft acquainted with their own language; and that the elements of a science can never be made too eafy to the learner.
As to the few notes which are added to this verfion, they 6 are chiefly relative to the law of England; but the Tranf lator thinks it incumbent upon him to declare, that he does < not print them from any opinion of his ability for fuch an undertaking, but merely through an humble hope, that, imperfect as they are, they may raise the curiofity 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 Englifhman ought to have a general knowlege) with the study of the civil law, which is univerfally allowed to be the mafter-work of human policy.'
Next follows a brief account of the rife and progress of the Roman law, illuftrated with fuch notes, remarks, and references, as render it very authentic, improving, and agreeable.
And then we are prefented with the Inftitutions themselves, accompanied with Mr. Harris's translation, and notes; and to the whole is fubjoined the CXVIIIth novel of Juftinian, divided into three chapters, concerning the order of fucceffion, in the original Greek, with a verfion, and notes.
As to the Tranflation, take the following articles, detached from various parts of the work.
From the FIRST BOOK.
Tit. ix. fect. 1. Definitio Nuptiarum.
< Matrimony is a focial contract between a man and a woman, obliging them to an infeparable cohabitation during life (a).
Sect. 3. Qui funt in poteftate.
The iffue of yourself, and your legal wife, are immediately under your own power. Alfo the iffue of a fon and fon's wife; that is, either grand-fons or grand-daughters by them, are equally in your power: and the fame may be faid of great-grand-children, &c. But children born of a daugh
(a) Nuptiæ autem, five matrimonium, eft viri et mulieris conjunctio, individuam vitæ confuetudinem continens. B 2
ter, will not be in your power, but in the power of their ❝ own father, or father's father (b),' &c.
Tit. x. fect. 12. De poenis injuftarum nuptiarum.
C If any perfons presume to cohabit together, in contempt • of the rules which we have here laid down, they shall not be deemed husband and wife, neither fhall their marriage, or any portion given on account of fuch marriage, be valid. • And the children born in such cohabitation, fhall not be under 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, analopes, i. c. without a father: and from hence it follows, that, after the diffolution of any fuch marriage, no portion, or gift, propter nuptias, can legally be ⚫ claimed. But thofe who contract fuch prohibited matrimony, muft undergo the farther punishments fet forth in our • conftitutions (c).'
Sect. 13. De legitimatione.
It fometimes happens, that the children, who, at the time of their birth, were not under the power of their parents, reduced under it afterwards. Thus, a natural fon, who is made a decurion, becomes fubject to his father's power. And he also who is born of a free woman, with whom marriage is not prohibited, will likewife become subject to the power of his father, as foon as the marriage inftruments are drawn, as our conftitution directs; which allows the fame
(b) Qui igitur ex te & uxore tua nafcitur, in tua poteftate eft. Item qui ex filio tuo et uxore ejus nafcitur, id eft, nepos tuus et neptis, æque in tua funt poteftate; et pronepos, et proneptis, et deinceps cæteri. Qui autem ex filia tua nafcuntur, in poteftate tua non funt; fed in patris eorum.
(c) Ŝi adverfus ea, quæ diximus, aliqui coierent, nec vir, nec uxor, nec nuptiæ, nec matrimonium, nec dos intelligitur. Itaque ii, qui ex eo coitu nafcuntur, in poteftate patris non funt: fed tales funt (quantum ad patriam poteftatem pertinet) quales funt ii, quos mater vulgo concepit. Nam nec hi patrem habere intelliguntur, cum et ius pater incertus fit; unde folent Spurii appellari waga T Cπogav, et aπalogas, quafi fine patre filii. Sequitur ergo, ut, diffoluto tali coitu, nec dotis, nec donationis exactioni locus fit. Qui autem prohibitas nuptias contrahunt, et alias poenas patiuntur, quæ facris constitutionibus continentur,
⚫ benefit to those who are born before marriage, as to those ⚫ who are born fubfequent to it.' (d)
Tit. xi. fect. 3. De arrogatione impuberis.
• When any perfon, not arrived at puberty, is arrogated by the imperial refcript, the cause is firft enquired into, that it may be known whether the arrogation is juftly founded, and expedient for the pupil. For fuch arrogation is always ⚫ made on certain conditions, and the arrogator is obliged to ⚫ give caution before a public notary, thereby binding himfelf, if his pupil fhould die within the age of puberty, to reftore all the goods and effects of fuch pupil to those who ⚫ would have fucceeded him if no arrogation had been made. The arrogator is alfo prohibited to emancipate, unless he ' has given legal proof, that his arrogated fon deferves emancipation; and even then he is bound to make full reftitution ' of all things belonging to fuch fon. Also if a father, upon his death-bed hath difinherited his arrogated fon, or when ' in health hath emancipated him, without a just cause, then 'the father is commanded to leave the fourth part of all his 6 goods to his fon, befides what fuch fon 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 fon, is defirous to adopt another, as his grand-fon, the confent of his fon, whether natural or adopted, ought • in this cafe to be first obtained, lest a suus hæres, or proper ⚫ heir, fhould be intruded upon him. But, on the contrary,
(d) Aliquando autem evenit, ut liberi, qui ftatim, ut nati funt, in poteftate parentum non funt, poftea redigantur in poteftatem patris : qualis eft is, qui dum naturalis fuerat, poftea curia datus *, poteftati patris fubjicitur: nec non is, qui, a muliere libera procreatus, cujus matrimonium minime legibus interdictum fuerat, fed ad quam pater confuetudinem habuerat, poftea, ex noftra conftitutione dotalibus inftrumentis compofitis, in poteftate patris efficitur. Quod et aliis liberis, qui ex eodem matrimonio fuerint procreati, fimiliter noltra conftitutio præbuit.
*Curia datus) The Decurions were so called, because the Curia, or fenate, of the colonies, was fupposed to confist of a tenth part of the people.
(e) Cum autem impubes per principale refcriptum arrogatur, caufa cognita, adrogatio fieri pêrmittitur: et exqueritur caufa arrogationis, an honefta fit, expediatque pupillo? Et cum quibufdam conditioni bus arrogatio fit: id eft, ut caveat arrogator perfonæ publicæ, fi