Blackstone, who is justly placed at the head of all the Blackstone. modern writers who treat of the general elementary principles of the law. By the excellence of his arrangement, the variety of his learning, the justness of his taste, and the purity and elegance of his style, he communicated to those subjects which were harsh and forbidding in the pages of Coke, the attractions of a liberal science, and the embellishments of polite literature. The second and third volumes of the Commentaries are to be thoroughly studied and accurately understood. What is obsolete is necessary to illustrate that which remains in use, and the greater part of the matter in those volumes is law at this day, and on this side of the Atlantic.

*

treatises.

I have necessarily been obliged to omit the mention of many valuable works upon law, as my object in the present lecture was merely to select those which were the most useful or distinguished. With respect to the modern didactic 513 treatises on various heads of the law, and which have multiplied exceedingly within the period of the present Modern generation, I can only take notice of a few of those which relate to the law of real property, and are deemed the most important. The numerous works, both foreign and domestic, on various branches of the law of personal rights and commercial contracts, I may have occasion to refer to hereafter, as the subjects of which they treat pass under consideration, in the course of these lectures. Any critical notice of them at present would lead us too far from the general purpose of this inquiry, and many of them are not sufficiently matured by time to become of much authority.

Sanders's Essay on Uses and Trusts is a comprehensive and systematic treatise, but it wants that fulness of illustration, and neat and orderly arrangement, requisite in the discussion of so abstruse and complicated a branch of the law. The learned Mr. Butler has given a very elaborate note on the same subject; (a) and there is an excellent summary of the law of uses and trusts in Cruise's Digest, arranged with his customary skill, and supported by an accurate analysis of adjudged cases, which are apposite and pertinent to the inquiry.

(a) Note 231 to lib. 3 Co. Litt.

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Sugden's Practical Treatise on Powers is the best book we have on that very abstruse title in the law. It was regarded by the author as his favorite performance, and he is entitled to the gratitude of the student for his masterly execution of the work. It is perspicuous, methodical, and accurate. Mr. Sugden's Treatise on the Law of Vendors and Purchasers is also a correct and useful collection of equity principles on a subject extremely interesting, and of constant forensic discussion. (a) Roberts, on Fraudulent Conveyances, covers a very important head in the jurisprudence of the courts of equity. He has collected the cases arising under the statutes of 13 and 27 Elizabeth, respecting conveyances that are deemed fraudulent in respect to creditors * and purchasers; and though the treatise is written in bad taste, it is a useful digest of the law on that subject. Powell's Essay upon the Learning of Devises contains a systematical and valuable view of an important branch of the law concerning title to real property, and it is enlivened with some spirited discussions; but neither the essay, nor the one of his upon Mortgages, are to be compared to the clear, succinct, and masterly analysis of the cases under similar titles, in the great work of Mr. Cruise. Fearne's Essay on Contingent Remainders and Executory Devises is a performance of a very superior character. It is eminently distinguished for the ability and perspicuity with which it unfolds and explains the principles of the most intricate parts of the law. Mr. Preston's recent Essays on Estates and Abstracts of Title, contain sound and clear views of the law of real property, and they have already attained the authority of works of established reputation.

I have thus attempted, for the assistance of the student, to unfold, in this and the preceding lecture, the principal sources from which we derive the evidence and rules of the common law. There is another source still untouched, from which a great accession of sound principles, particularly on the subject

(a) In 2 Molloy, 561, Lord Ch. Hart, as late as 1829, spoke very disparagingly of Sugden's Treatise on Vendors and Purchasers, by saying that it was not to be cited as an authority per se. This was going quite as far as decorum would warrant, considering that Mr. Sugden had been his immediate predecessor on the Irish Chancery Bench.

of personal contract, has been received, to enlarge, improve, and adorn our municipal codes. I allude to the body of the civil law contained in the Institutes, Digest, and Code of Justinian; and our attention will be directed to that subject in the next lecture.

LECTURE XXIII.

OF THE CIVIL LAW.

THE great body of the Roman or civil law was collected and digested by order of the Emperor Justinian, in the former part of the sixth century. That compilation has come down to modern times, and the institutions of every part of Europe have felt its influence, and it has contributed largely, by the richness of its materials, to their character and improvement. With most of the European nations, and in the new states in Spanish America, in the province of Lower Canada, (a) and in one of the United States, (b) it constitutes the principal basis of their unwritten or common law. It exerts a very considerable influence upon our own municipal law, and particularly on those branches of it which are of equity and admiralty jurisdiction, or fall within the cognizance of the surrogate's or consistorial courts. (c)

The history of the venerable system of the civil law is peculiarly interesting. It was created and gradually matured on the banks of the Tiber, by the successive wisdom of Roman statesmen, magistrates, and sages; and after governing the greatest people in the ancient world for the space of thirteen or fourteen centuries, and undergoing extraor

516

(a) Real property law in Canada, under French grants, was established upon the basis of the Coutume de Paris, with feudal burdens. The French civil law, as it existed in Canada at the time of the conquest of the province, still prevails, without any of the meliorations of the code Napoleon.

(b) See the Civil Code of the state of Louisiana, as adopted in 1824.

(c) The Roman law is blended with that of the Dutch, and carried into their Asiatic possessions; and when the island of Ceylon passed into the hands of the English, justice was directed to be administered according to the former system of laws in the Dutch courts; and Van Leeuwen's Commentaries on the Roman Dutch law were translated into English in 1820, expressly for the benefit of the English judiciary in that island.

dinary vicissitudes after the fall of the western empire, it was revived, admired, and studied in modern Europe, on account of the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland, and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of d'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus, to the establishment of the twelve tables.

man law.

Early Ro- The fragment of the Enchiridion inserted in the Pandects, (a) is the only ancient history of the first ages of the Roman law now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoek has republished * 517 * it, and endeavors to restore the integrity of the original text by emendations and a critical commentary. (b) From this fragment we learn that Sextus, or Caius Papirius, who was a pontifex maximus about the time of the expulsion of Tarquin, made a collection of the leges regiæ, or laws and usages of the Romans under their kings, and which was known

(a) Dig. lib. 1, tit. 2. De origine juris.

(b) Prætermissa ad leg. 2 D. De origine juris. Opera, tom. i. 301.