Ruminations |
centuries ; Gaius , the law for another four ; and Justinian , now eighteen and a half centuries later , were all fixed systems , that once fashioned became solid and immoveable monuments-- the opposite of this presentday hyperactive legislative process . They prevented the progressive development of the law . Of the three , Justinian had the most direct impact .
Most law is stable . The old axioms still matter , and that has an impact on progress . John Henry Maine believed that “ instead of the civilisation expanding the law , the law has limited the civilisation .” He believed the stationary , rather than the progressive , condition of the human race was fundamental . 161 He appears to be right , as measured by our debt to the ancient Romans .
Judge Meredith Wright cherished a portrait of an unnamed Vermont lawyer she first saw at the National Gallery in Washington . A copy of the painting hung in her chambers for many years . 162 The portrait is described in an essay by M . H . Hoeflich . It was August of 1841 when Horace Bundy painted a portrait of a Manchester lawyer , sitting at his desk with a document before him , his quill poised over the paper . In the bookshelf behind him are copies of Kent , Chitty , Viner , and Justinian . Hoeflich wrote of this :
It is clear that the subject of this portrait wanted these titles to be displayed to all who might view his portrait , for these are the books he wanted to represent his professional learning and accomplishments . That a lawyer in Manchester , Vermont , chose to have these particular titles show in his portrait demonstrates that he believed that these were paradigmatic titles . That he included Justinian among them is not an accident . It was a clear statement : I am a lawyer and a learned man . I am a man of dignity and wealth . I am a member of a professional elite . Thus was this unknown Vermont lawyer served by the echoes of an empire and a legal system long dead . 163 ____________________ Paul S . Gillies , Esq ., is a partner in the Montpelier firm of Tarrant , Gillies & Richardson and is a regular contributor to the Vermont Bar Journal . A collection of his columns has been published under the title of Uncommon Law , Ancient Roads , and Other Ruminations on Vermont Legal History by the Vermont Historical Society . ____________________
1
Gaius , Justinian , and Tribonian are among the 23 marble relief portraits of lawgivers that hang over the gallery doors of the U . S . House of Representatives , along with Solon and Moses .
2
Gilles , Ruminations : Palimpsests of the V . S . A ., Part I : The Old Testament , 40 Vt . Bar J ., No . 2 , p . 8 ( Summer , 2014 ).
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3
Alan Watson , trans ., The Digest of Justinian , 4 vol . ( Philadelphia : University of Pennsylvania Press , 1985 ).
4
Thomas Cooper , The Institutes of Justinian , With Notes ( Philadelphia : P . Byrne , 1812 ), 6 .
5
Ancient sources carry great authority . Justice Dooley has gone even further back to 2250 B . C . in Roy v . Woodstock Community Trust , Inc . ( 2014 ), finding the origins of the common law cause of action of adverse possession in the Code of Hammurabi and concluding that the subject is not controlled by Vermont ’ s statute of limitations . Roy v . Woodstock Community Trust , Inc ., 195 Vt . 427 , 444 ( 2014 ).
6
For a review of the impact of Justinian on the decisions of the U . S . Supreme Court , see Neal Wiley , “ Through a Glass Darkly : Reading Justinian Through His Supreme Court Citations ,” 8 Elon L . Rev . 479 ( 2016 ).
7
James Kent , Commentaries on American Law I , ed . O . W . Holmes , Jr . 516 ( Littleton , Co .: Fred B . Rothman & Co ., 1989 ).
8
Thank you , Allan Keyes , for providing me with a copy of the probate record of Mr . Chipman .
9
Thomas Collett Sandars , trans ., The Institutes of Justinian ( New York : Longmans , Green , 1910 ); Van Deuzer v . Gordon ’ s Estate , 39 Vt . 111 , 114 ( 1866 ). Note that Butler and Wheeler , Appellant ’ s attorneys , cited not only the Institutes , but Justinian ’ s Digest as well .
10
Kent , Commentaries I , 544-545 ; James Allan Evans , The Emperor Justinian and the Byzantine Empire 299 ( Westport , Cn .: Greenwood Press , 2005 ).
11
Norman F . Cantor , Antiquity : The Civilization of the Ancient World 211-213 ( New York : Harper- Collins , 2003 ),.
12
The name was given when there were ten tables , but two more were added later . The name of the committee was not similarly adjusted at that time .
13
Cooper , “ Preface ,” Institutes , viii .
14
James Kent , Commentaries on American Law ( Boston : Little , Brown and Company , 1873 ), 524 .
15
John Sumner Maine , Ancient Law : Its Connection with the Early History of Society , and Its Relation to Modern Ideas 8 ( London : John Murray , 1870 , 4th Ed .).
16
A . Arthur Schiller , Roman Law : Mechanisms of Development 154 ( Malta : Mouton Publishers , 1978 ).
17
Maine , Ancient Law , 19 .
18
Maine worried that the importance of the Twelve Tables was overstated . “ The dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance . Theory has made them its favourite food , and has enabled them to exercise the most serious influence on practice .” Maine , Ancient Law , 245 .
19
Mears , Institutes , 579 .
20
V . R . C . P . 16.1 ; V . R . F . P . 18 ( at the Judge ’ s discretion ); 21 V . S . A . § 1731 ( Vermont Labor Relations Act ); 12 V . S . A . § 4635 ( foreclosure proceedings ); 12 V . S . A . § 511 and following .; V . R . C . P . 55 ( default ).
21
V . R . C . P . 45 ; 3 V . S . A . § 309 .
22
Mears , Institutes , 580 .
23
13 V . S . A . §§ 2141 & 2143 .
24
Mears , Institutes , 581 .
25
27 V . S . A . § 101 ( homestead exception ); 12 V . S . A . § 4633 ( mediation in foreclosure actions );
26
Mears , Institutes , 581 .
27
12 V . S . A . § 7151 and following .
28
13 V . S . A . §§ 1303-1306 .
29
Mears , Institutes , 582 .
30
9A V . S . A . § 2-202 .
31
12 V . S . A . § 501 .
32
15 V . S . A . § 64 .
33
Vermont Constitution , Ch . I , Art . 1 ; Ch . II , Sec . 66 . Note that the latter provision requires purchasers to take an oath of allegiance to the State
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as a prerequisite to ownership . Oh , and there ’ s a good character requirement as well . While we all worship the constitution , there are parts of it that are neglected , without explanation or remorse .
34
Id ., 583 .
35
Hatch v . Vermont Central Railroad Company , 25 Vt . 49 ( 1852 ).
36
Mears , Institutes , 584-585 .
37
12 V . S . A . § 5651 and following .
38
Alvarez v . Katz , 199 Vt . 510 ( 2015 ). Edward Gibbon remarked , “ In the comparison of the tables of Solon with those of the Decemvirs , some casual resemblance may be found ; some rules which nature and reason have revealed to every society ; some proofs of a common descent from Egypt or Phœnicia . But in all the great lines of public and private jurisprudence the legislators of Rome and Athens appear to be strangers or adverse to each other .” Edward Gibbon , The Decline and Fall of the Roman Empire II 72 ( Chicago : Encyclopædia Britannica , 1952 ).
39
Mears , Institutes , 585-588 .
40
13 V . S . A . § 3401 .
41
13 V . S . A . § 3602
42
9 V . S . A . § 41a .
43
Mears , Institutes , 588 .
44
Dupy qui tam v . Wickwire , 1 D . Chip . 237 , 238 ( 1814 ); Ward v . Barnard , 1 Aik . 121 , 123 ( 1825 ).
45
13 V . S . A . §§ 1101-1102 .
46
Mears , Institutes , 589-590 .
47
18 V . S . A . § 5201 and following .
48
Mears , Institutes , 590 .
49
15 V . S . A . § 8 .
50
Mears , Institutes , 590 .
51
Gibbon , Decline and Fall , 72 .
52
“ Twelve Tables ,” Oxford Classical Dictionary 584 ( Oxford : Clarendon Press , 1969 ).
53
Kent , Commentaries , 530-531 .
54
William Warwick Buckland , Arnold Duncan McNair Baron McNair , Roman Law & Common Law : A Comparison in Outline 15 , 18 ( New York : Syndics of the Cambridge University Press , 1952 ).
55
George Harris , “ Dr . Harris ’ s A Brief Account of the Rise and Progress of the Roman Law ,” in T . Lambert Mears , ed ., The Institutes of Gaius and Justinian , the Twelve Tables , and the CXVIIIth and CXXVIIth Novels , x ( London : Stevens and Sons , 1882 ).
56
Mears , Institutes , i-iv .
57
Donald R . Kelley , “ Gaius Noster : Substructures of Western Social Thought ,” American Historical Review , 84:3 , 619 ( Jun . 1979 ).
58
Mears , Institutes , i-ii .
59
Id ., 28 .
60
The 1882 publication of T . Lambert Mears ’ s The Institutes of Gaius and Justinian provides the texts in parallel form , revealing the debt Justinian owed to Gaius .
61
He was not the first compiler of Roman law . Quintus Mucius Scaevola created a “ dialectical system ” in the first century B . C . Kelley , “ Gaius Noster ,” 622 .
62
Mears , Institutes , 26 .
63
John Henry Maine , Lectures on the Early History of Institutions , Lecture IX , 250-251 ( London : John Murray , 1875 ).
64
Id .
65
Gibbon , Decline and Fall , 79 .
66
Cooper , Institutes , 101 .
67
Id ., 5-7 .
68
Id ., 11 .
69
Id ., 12-19 .
70
Vermont Constitution , Ch . I , Art . 1 .
71
Cooper , Institutes , 15 .
72
Id ., 68-71 .
73
The common law is presently codified at 1 V . S . A . § 271 .
74
Cooper , Institutes , 72 ; 6 V . S . A . § 3022 .
75
Cooper , Institutes , 582 . Curiously , discussing mandates in Book III , Justinian urges employing “ your money , which now lies dead , either by
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