by Paul S . Gillies , Esq .
RUMINATIONS Palimpsests II : Roman Remains in Vermont Law 1
The summer issue of the Vermont Bar Journal in 2014 included an essay , “ Palimpsests of the V . S . A .: Part I : The Old Testament . 2 ” The essay promised a Part II would follow , analyzing the vestiges of Roman law in Vermont statutes and common law . The delay in fulfilling that promise was caused by many distractions , but largely the intimidation that accompanied the required research and reading . I had purchased a copy of the Digest of Justinian , the 1985 translation by Alan Watson , with every intention of reading and synopsizing it , but the task was overwhelming . 3 The thick volumes , unpaginated , run to thousands of pages of small print . With a short-lived ambition to consume it , I tried and retreated a half dozen times .
Then I turned to Vermont case law and saw for the first time that Vermont jurists and lawyers weren ’ t relying on the Digest for access to Justinian . They took their Justinian from the Institutes , a far more accessible set of laws , written as a text for law students . The Institutes are a distillation of the Digest , and reading through them proved to be an inspiration . They do not deal with public law ; this is the civil law ( with a small afterthought of criminal law thrown in ): they are a guide to the legal relations of individuals . Justinian explained it was drawn “ from natural precepts , from the law of nations , and from municipal Regulations .” 4
The search for origins is essential to an understanding of the law . Ancient authorities who happen to agree with modern thinking give weight and command to
court rulings . 5 They are the most esteemed of precedents . 6
Justinian is the source of our unwritten or common law , according to Chancellor Kent . 7 When Nathaniel Chipman died , his library included a copy of Cooper ’ s Justinian . 8 The book was familiar to many of his successors on the high court . Thomas Cooper ’ s Institutes of Justinian was published in 1812 , and was read and annotated closely by the Vermont bench and bar for generations . Equally important as the translation were Cooper ’ s extensive notes that followed the text , which were often cited by Vermont jurists without quoting Justinian ’ s own words . Cooper provided an important bridge by discussing how English common law was distinguished from Roman law . After 1882 , an edition of Sandars ’ Justinian was used . 9
Cooper provides the basic text for the review that follows of Justinian ’ s Institutes . The challenge is to scrape Vermont common law and statutes to reveal their fundamental Roman roots . In spite of the myth , Vermont didn ’ t invent itself . It borrowed its Constitution from Pennsylvania , with important changes , and its first laws from Connecticut . It adopted the common law of England and the statutes of that country up to the time of the war , and through all of these sources inherited the customs , traditions , and principles of law that were created by Roman officials .
Palimpsests are texts that have been scraped off by people who regarded the parchment as more valuable than what was originally written on it . There is a real palimpsest in this story , the discovery of Gaius ’ s Institutes in 1816 , lost for more than twelve centuries . There is also the figurative palimpsest that came when ancient texts , lost when Rome fell and then rediscovered centuries later by scholars , were published , reestablishing Roman law , principally through Justinian , as the source of modern jurisprudence .
Classical works disappeared , and were found and compiled . Justinian ’ s sixth century work was rediscovered in the twelfth century . 10 From that time to the seventeenth century , Justinian was the principal text for students of the law , and authority for those who administered it . 11
But first we must go back even further . There were ancient laws before they were first codified . Then came the mother of all Roman laws , the Twelve Tables . Justinian used them as basic sources , although his scholars were not reluctant to alter the law after ten centuries of use to fit what they saw as the needs of that time .
Roman law has gone through many sieves before it reached this State , but finding cognates and common features shows us our laws aren ’ t as self-created as we might assume , and provides a portal into what is universal and what is important enough to write down and obey .
The Twelve Tables
The Twelve Tables were engraved on twelve large brass or ivory tablets in 450 B . C . by a commission whose members were
14 THE VERMONT BAR JOURNAL • SUMMER 2017 www . vtbar . org