Treatise on the Laws

Cicero, Francis Foster Barham

• Publisher: Jazzybee Verlag
• Year: 2018
• ISBN:
  9783849651695
• Topic: Law
• Subtopic: Legal History
• Index: Law

As a companion work to the Republic, Cicero wrote the 'Treatise on the Laws', De Legibus, which was almost certainly not published in Cicero's lifetime, and possibly had not received the last touches when he died. There are three books extant, with gaps in them; but a fifth book is quoted. While the Republic describes the ideal state, the Laws discusses its statutes, so that the later work sometimes repeats the thought of the former. Thus the first book of the Laws lays as a foundation for the whole treatment of laws the thesis that all law is derived from God, through our inborn sense of justice; and this is also the subject of the third book of the Republic. The second and third books of the Laws are concerned with religion and with magistracies; two topics that in some form or other were touched upon in the latter half of the 'De Republica.'

ADDENDA.

The Addenda to the foregoing translation of Cicero’s Treatise on Laws, will consist of extracts from various valuable works, tending to elucidate the several branches of jurisprudence.

From Mr. Williams’ excellent “Treatise on the Study and Practice of the Law,” we quote a few passages which relate to the law of God; the law of nature and nations; the canonical or ecclesiastical law; and the civil or municipal law.

Of the Law of God.

Concerning this Divine Law, the judicious Hooker thus writes:—“Of law, no less can be said than that her seat is the bosom of God, her voice the harmony of the world; all things in heaven and earth do her homage, the very least as feeling her care, the greatest as not exempted from her power; both angels, and men, and creatures of what creation soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their common peace and joy.” This divine law is mainly to be studied in the revelation of God to the soul, and the Bible and biblical literature.—Vide Cudworth, Brocklesby, &c.

Of the Law of Nature and Nations.

Preparatory to the student’s entering on the study of the municipal laws of the realm, he should endeavour to obtain a general knowledge of ethics, the law of nations, and the civil and feudal law.

For general ethics, read Tully’s offices; and for exercising and disciplining the reasoning powers, Aristotle’s Ethics, Locke on the Human Understanding, Montesquieu’s Spirit of Laws, Paley’s Moral Philosophy, and the works of Stewart and Reid on the Mind, will be found of great advantage.

The Study of the law of nations is not only a useful introduction to the law of England, and an important branch of the education of those who are destined for the profession of the law, but it is also an interesting part of general study: according to Grotius, it is the parent of all municipal law—proavia juris civilis.—De Jure Belli ac Pacis, proleg. s. 16.)

For the study of the law of nations, which is partly founded on the law of nature, and partly positive, Lord Mansfield recommends the student to read Grotius, de Jure Belli ac Pacis, Puffendorff’s Law of Nature and Nations, with Barbeyrac’s notes, and Burlamaqui’s Droit Natural; and as these authors treat the same subjects in their books, he suggests, that they may be read together and compared. If the student should wish to obtain a masterly knowledge of this subject, the works of Wolfius, Vattel, Heineccius, Ward, Marten, and Dr. Paley’s Moral Philosophy, will be necessary.

“The reduction of the law of nations to a system,” says Sir James Mackintosh, (Discourse on the Study of the Law of Nature and Nations, p. 13), “was reserved for Grotius. It was by the advice of Lord Bacon and Peirsce, that he undertook this arduous task. He produced a work, which we now indeed justly deem imperfect; but which is perhaps the most complete that the world has yet owed, at so early a stage in the progress of any science, to the genius and learning of one man. But so great is the uncertainty of posthumous reputation, and so liable is the fame even of the greatest men to be obscured by those new fashions of thinking and writing, which succeed each other so rapidly among polished nations, that Grotius, who filled so large a space in the eye of his contemporaries, is now perhaps known to some only by name. Yet, if we fairly estimate both his endowments and his virtues, we may justly consider him as one of the most memorable men who have done honour to modern times.”

At page 20 of the “Discourse,” Sir James states that the imperfect nature of Grotius’s work, is occasioned by his inconvenient and unscientific method, and his inversion of the natural order of the subject:—“That instead of searching for the original principles of the science in human nature, then applying them to the regulation of the conduct of individuals; and, lastly, employing them for the decision of those difficult and complicated questions that arise, with respect to the intercourse of nations; Grotius has chosen the reversed method. He begins with the consideration of the states of peace and war, and he examines original principles only occasionally and accidentally, as they grow out of the questions which he is called upon to decide. It is a necessary consequence of this disorderly method, which exhibits the elements of the science in the form of scattered digressions, that he seldom employs sufficient discussion on those fundamental truths, and never in the place where such a discussion would be most instructive to the reader.”

The work of Puffendorff is very prolix, and utterly void of all the attractions of composition; but it is a mine of principles of Public Law. His plan is superior to that of Grotius; by remedying which, he restored natural law to that superiority which belonged to it; and with great propriety, treated the law of nations as only one main branch of the parent stock. Without the genius of his master, and with very inferior learning, he has yet treated this subject with sound sense, with clear method, with extensive and accurate knowledge, and with a copiousness of detail sometimes indeed tedious, but always instructive and satisfactory.

“To the large work of Wolfius,” the same elegant writer observes, p. 31, “the observations which I have made on Puffendorff as a book for general use, apply with tenfold force. His abridger, Vattel, deserves, indeed, considerable praise. He is a very ingenious, clear, elegant, and useful writer. But he only considers one part of this extensive subject, namely, the law of nations, strictly so called; and I cannot help thinking, that, even in this department of the science, he has adopted some doubtful and dangerous principles, not to mention his constant deficiency in that fulness of example and illustration, which so much embellishes and strengthens reason. It is hardly necessary to take any notice of the text book of Heineccius, the best writer of elementary books with whom I am acquainted on any subject. Burlamaqui is an author of superior merit; but he confines himself too much to the general principles of morality and politics.”

Of the Canon or Ecclesiastical Law.

The necessity of an acquaintance with the canon law will appear to the student, when he considers that many points of antiquity, as well as of daily practice, are derived from it. The primitive institution of our terms, the custom of not going on with the business of terms, the term in the afternoon, the singular conceit of prohibiting jurors meat, drink, or candle–light, till they are agreed in their verdict, are all either the text, or by way of gloss on the Canon Law. (See Splem. Reliq. 89, 98.)

Many rules concerning the church, as to advowsons, patronage, rights of presentation; others with regard to matrimony, privilege of clergy, and concerning testaments, are derived from the same source. Instances enough might be soon produced to justify Chief Justice Vaughan, in saying (2 Vent. Rep. 11), that though the knowledge of the Canon Law be not an adequate subject, yet it is a subject in common.” (Eunomus, vol. 1, dial. 16).

The works to be particularly consulted on this subject by the student, are Dr. Burn’s Ecclesiastical Law, Hooker’s Laws of Ecclesiastical Polity, the Introductory Discourse to Bishop Gibson’s Codex Juris Ecclesiastici Anglicani; and Toller, Mirehouse, Ellis and Gwillim on Tithes. At his leisure he may consult Lindewood’s Provincial Constitutions of England; Ecton’s Liber Regis, vel Thesaurus Rerum Ecclesiasticarum: Brewster’s Collectanea Ecclesiastica, Ayliffe’s Paregon, and Cunningham’s Law of Simony. The inquisitive student may find an interesting inquiry into the Canon Law, as well as the Roman, in Dr. Robertson’s History of Charles the Fifth, vol. 1, p. 74 et seq., 381, and note 25.

Of the Civil Law.

“When you have laid a foundation in the moral law,” continues Lord Mansfield, “it will be time to look into those systems of positive law, that have prevailed in their turns. You will begin of course with the Roman or Civil laws; for the history of which, read Gravina’s elegant work De Ortu et Progressu Juris Civilis, and Fernier’s History of the Roman or Civil Law, then Dr. Halifax’s Analysis of the Civil Law, and Dr. Bever’s History of the Legal Polity of the Roman State; after which Justinian’s Institutes, with Vinnius’s Comment and Harris’s notes may be studied. In Dr. Taylor’s Elements of the Civil Law, and Dr. Brown’s Compendious View, the student will find much useful information and assistance. The Corpus Juris Civilis, by Gothofred, and the works of Domat, Ayliffe, and Wood, may be used at his leisure. In Mr. Gibbon’s Decline and Fall of the Roman Empire, may be found a beautiful and spirited sketch of the Civil Law. As to the nature and extent of the influence of the civil law on the jurisprudence of Great Britain, and the other modern states of Europe, see Duck’s treatise De Usu et Auctoritate Juris Civilis in Dominiis Principum Christianorum.

“The study of the civil law,” says the elegant author of Eunomus, “deserves, on many accounts, to be studied by the professors of our own. For the law of England often borrows the rules of the civil law, in the construction of wills and trusts; and in the calculations of the degrees of kindred, several important branches of our law are regulated by the civil and common laws.” Our Chancery proceedings are also founded on Roman jurisprudence; and the statute of the distribution of intestates’ effects is penned on the principles of one of the novels. Indeed it may be affirmed with safety, that as a collection of written reason, as a great body of principles, it has no rival, and is deserving, as a pattern, of being admired and consulted, even where it has no binding force. The man whose philosophic ambition aims at something beyond the skill of an able attorney; qui vult rerum cognoscere causas; who, with a scholar’s mind, wishes to know the rudiments and origin of the rules laid down for his instruction, ought to be a disciple of Justinian as well as of Coke.

By uniting the study of the civil law with that of the municipal law of England, the student will be enabled to observe that an infinite number of cases in our own law, are founded upon rules laid down in the Corpus Juris Civilis. “I have not the smallest scruple to assert,” says the learned Dr. Halifax, (Analysis of the Civil Law, pref. 22), “that the student who confines himself to the institutions of his own country, without joining to them any acquaintance with those of imperial Rome, will never arive at any considerable skill in the grounds and theory of his profession: though he may perhaps attain to a certain mechanical readiness in the forms and practical parts of the law, he will not be able to comprehend that enlarged and general idea of it, by which it is connected with the great system of universal jurisprudence; by the knowledge of which alone he will be qualified to become a master in this art, and be capable of applying it as an honourable means of subsistence for himself, and credit to his country.”

Also, the study of the civil law, as a science conversant with the great principles of justice and equity, cannot (as the same ingenious author observes), but be of the greatest importance and utility to the general scholar, as well as the lawyer. It is admirably calculated to furnish the minds of youth with universal and leading notions relating to natural and positive, to written and unwritten law; it instructs them in the various rights of persons, whether in a natural or civil capacity; the origin and rights of property; the grounds and reasons of testamentary and legal succession; the obligations arising from proper and improper contracts; the several species of civil injuries and crimes; together with the means of applying for and obtaining redress, and of bringing the guilty to condign punishment. It will be to entertain a very mean and disparaging opinion of the venerable monuments of ancient wisdom, contained in the body of the Roman Law, to regard the rules there laid down for the decision of controverted points, whether of a public or private nature, as the maxims of mere lawyers. These great masters of legislation, were as eminent for their skill in moral as in legal knowledge, and the sublimest notions, both in philosophy and religion, are inculcated in their writings. Accordingly we find them frequently called, among their other titles, juris divini et humani periti; and the very distinction of jurisprudence given by Ulpian (Dig. 1, 10), like that of sapientia by Cicero, (De Off. 1, 43), is divinarum atque humanarum rerum notitia. This affinity between the Study of Law and philosophy has impressed a remarkably scientifical cast upon the responses of the Roman sages? and a competent knowledge of their tenets and principles is absolutely necessary, in order to understand with exactness and taste, the allusions to Roman customs and manners, which abound in the Latin classic authors. To which must be added, what will still more recommend the science to the polite scholar, the purity of the language, in which the Pandects in particular are composed; which are held to be so perfect and elegant, in point of style, that the Latin tongue might be retrieved from them, were all other Latin authors lost.”

The authority which the Civil Law acquired on its adoption into the municipal polities of the modern nations of Europe, was various. The German emperors appear to have considered themselves as the successors to the Roman empire in the west, and their dominions as therefore subject to that system of law, by which the Romans were governed. Hence, in Germany, properly so called, in the southern parts of France, or what are called the Pays de Droit ecrit, and in several parts of Italy, which, at the time when the German emperors enjoyed the highest prosperity, were included under their dominion, the Roman Law is understood to be the common law of the country, to which the inhabitants, on the failure of their own municipal customs and regulations, are bound to submit. In other European countries, it is viewed in the light of a foreign system; which, however, from its intrinsic merit, is entitled to great attention and regard; and of which many particulars have been in a manner naturalized by long usage, or adopted by the positive will of the legislature. This is the case in Spain, in Portugal, in the northern parts, or what are called the Pays de Coutumes, in France, in Sweden, in Denmark, and in Scotland. In England, its operation is confined to the maritime, the military, and the ecclesiastical courts, as also those of the two Universities; or as it is used merely in argument to illustrate the doctrines, or delineate the principles of natural justice, independent of all positive institutions.—(Millar’s Hist. View. Eng. vol. 2, p. 322, &c.)

For the method of quoting the Civil and Canon Law, see Dr. Halifax’s Analysis of the Roman Civil Law, p. 2, and Dr. Taylor’s Elements of Civil Law, p. 24. See also Mr. Gibbon’s observations, (Decline and Fall of the Roman Empire, vol. 8, p. 2, n.) respecting the absurd mode of quoting the code, pandects, and the institutes which authority and custom support.

The general excellence of the rules of the Civil Law, and the justice of its decisions, have extorted from all the nations of Europe an acknowledgment of its pre–eminence. They have, in consequence, either adopted it as their own municipal law; or, where circumstances and events forbade so general an admission, they have in all cases, where their own laws were silent or imperfect, ascertained the dictates of natural equity, in the illustrations of this code. Nor are the sources of its utility yet exhausted. In every age, and every civilized country, it will furnish principles, which, modified and altered as the circumstances of the times may require, will greatly contribute to the real interests and advantages of society.

On the intimate connection of these two codes, let us (says the eloquent author of the Discourse on the Study of the Law of Nature and Nations, p. 59, n.) hear the words of Lord Holt, whose name never can be pronounced without veneration, as long as wisdom and integrity are revered among men:—“Inasmuch as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, therefore grounded upon the same reason in many things.”—(12 Mod. 482).

See 1 P. Wms. 10; Ibid. 267; Ibid. 104; Ibid. 405; Ibid. 441; Ibid. 542; Prec. in Chan. 694; 2 Atk. 115; 3 Ibid. 364; Wils. 135; Com. 738; 1 Burr. 1623; 1 Ves. 86; &c. &c.

Some of our earliest juridical writers, particularly Bracton and Thornton, have transcribed considerable passages from the Roman collections. This they did, according to Selden’s opinion, not because they thought any foreign code could bind the sub...

Table of contents

• INTRODUCTION to the FIRST BOOK OF CICERO’S TREATISE ON LAWS.
• BOOK I.
• INTRODUCTION to the SECOND BOOK OF CICERO’S TREATISE ON LAWS.
• BOOK II.
• INTRODUCTION to the THIRD BOOK OF CICERO’S TREATISE ON LAWS.
• BOOK III.
• FRAGMENTS.
• ADDENDA.