The sources of Ancient Law

1. Twelve Tables the Roman Decemvirs 8 authority 8 citations · 15 passages

   ch. 5 3 passages anchored here · chapter ii.: legal fictions. · ch. 9 · ch. 10 4 passages anchored here · ch. 11 2 passages anchored here · ch. 13 · ch. 14 3 passages anchored here

   The Twelve Tables are named as the code whose authority the jurisconsults formally respected.

   We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary power was expressly recognised, and the clauses regulating Intestate Succession have also been preserved.

2. Gaius 6 authority · 1 neutral 7 citations · 9 passages

   ch. 7 · ch. 9 2 passages anchored here · ch. 10 2 passages anchored here · ch. 12 · ch. 14 3 passages anchored here

   Gaius is explicitly named and relied upon as an authoritative source.

   If the Commentaries of Gaius be opened at the place where the writer treats of the penal jurisprudence founded on the Twelve Tables, it will be seen that at the head of the civil wrongs recognised by the Roman law stood Furtum or Theft.

3. Jeremy Bentham 2 neutral · 2 refuted 4 citations

   ch. 5 · chapter ii.: legal fictions. · ch. 9 · ch. 12

   Bentham's Fragment on Government is cited and its applicability to early law is explicitly challenged.

   Bentham, in his “Fragment on Government,” and Austin, in his “Province of Jurisprudence Determined,” resolve every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience;

4. Commentaries on the Laws of England Blackstone 1 neutral · 3 refuted 4 citations · 9 passages

   introduction. 2 passages anchored here · ch. 9 2 passages anchored here · ch. 12 5 passages anchored here

   Blackstone's work is explicitly cited and critically assessed in two separate passages.

   Their object in so stating their theory was to reconcile the doctrine that in the state of Nature res nullius became property through Occupancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds.

5. Aristotle 3 neutral 3 citations

   ch. 8 · ch. 13 2 passages anchored here

   The passage names 'Aristotle' and 'his Treatise on Rhetoric' as a source of evidence.

   The source of the phraseology which has been always employed for metaphysical discussion in modern times was the Latin translations of Aristotle, in which, whether derived or not from Arabic versions, the plan of the translator was not to seek for analogous expressions in any part of Latin literature, but to construct anew from Latin roots a set of phrases equal to the expression of Greek philosophical ideas.

6. Homer 2 authority · 1 extended 3 citations

   ch. 1 · ch. 13 · ch. 14

   Homeric lines are explicitly invoked as evidence for the Patriarchal State description.

   but it has been thought that, in his Fifth Chapter on “Primitive Society and Ancient Law,” the Author has not done sufficient justice to investigations which appear to show the existence of states of society still more rudimentary than that vividly described in the Homeric lines quoted at page 110, and ordinarily known as the Patriarchal State.

7. Hugo Grotius 2 authority · 1 endorsed 3 citations · 4 passages

   ch. 8 2 passages anchored here · ch. 12 · ch. 13

   Grotius's treatise is named directly and its success and theoretical coherence are affirmed and analyzed.

   but the great marvel of the Treatise “De Jure Belli et Pacis,” was its rapid, complete, and universal success.

8. Canon Law Church canonists 1 authority · 2 refuted 3 citations

   ch. 8 · ch. 9 · ch. 12

   The passage explicitly names 'the Canon Law' as a source jurists cited.

   Where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter-proposition from the Pandects or the Canon Law.

9. Henry Sumner Maine 2 extended 2 citations

   ch. 1 · ch. 2

   Explicitly named as a paper by Maine addressing matters beyond Ancient Law's scope.

   The subject is, properly speaking, beyond the scope of the present work, but he has given his opinion upon the results of these more recent inquiries in a paper on “Theories of Primitive Society,” published in a volume on “Early Law and Custom.

10. Thomas Hobbes 2 refuted 2 citations

    ch. 9 · ch. 12

    Hobbes's theory is explicitly named and shown to share the criticized Roman assumption.

    but on the other hand the theory of Hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the Romans and their disciples.

11. Code Napoleon French legislators 2 neutral 2 citations

    ch. 9 · ch. 10

    The Code Napoleon is identified and its provenance described without explicit endorsement or refutation.

    In some of the French provinces, married women, of a rank below nobility, obtained all the powers of dealing with property which Roman jurisprudence had allowed, and this local law has been largely followed by the Code Napoleon;

12. Corpus Juris Roman law compilers 2 authority 2 citations

    ch. 8 · ch. 12

    The passage explicitly names 'the Corpus Juris' as a source practitioners drew upon.

    Such general formulas it was, of course, not difficult for practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity.

13. Esprit des Lois Montesquieu 1 refuted · 1 endorsed 2 citations · 3 passages

    ch. 8 · ch. 9 2 passages anchored here

    The passage explicitly names 'the Esprit des Lois' and discusses its merits and defects.

    It is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modifying causes which are noticed in the Esprit des Lois;

14. Institutes Sohm 1 authority · 1 endorsed 2 citations

    introduction. · ch. 7

    Explicitly named and positively noted as an accessible scholarly resource.

    Greenidge have made excellent provision of various kinds both for beginners and for advanced students, and Sohm’s Institutes are accessible in Mr.

15. Pandects Justinian 1 authority · 1 neutral 2 citations

    ch. 7 · ch. 8

    The Pandects are explicitly named as a source reporting the content of earlier jurisconsults' writings.

    A fragment of the wonderful system which they built up survives in the Pandects of Justinian, and supplies evidence that their works took the form of treatises on all parts of Roman law, but chiefly that of commentaries on the Edict.

16. Ancient Law Henry Sumner Maine 1 endorsed 1 citation

    ch. 13

    The quoted passage restates and supports the author's own argument about the conditions of jurisprudential progress.

    “The proficiency of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry;

17. Callistratus 1 neutral 1 citation

    ch. 7

    The song is explicitly named and its content reported as a comparative example.

    It is remarkable too that the “equality” of laws on which the Greek democracies prided themselves—that equality which, in the beautiful drinking song of Callistratus, Harmodius and Aristogiton are said to have given to Athens—had little in common with the “equity” of the Romans.

18. George Grote 1 authority 1 citation · 2 passages

    ch. 5 2 passages anchored here

    Grote's History of Greece is explicitly named and relied upon twice as an authoritative source.

    Grote, in the second part and ninth chapter of his History, has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer.

19. Iliad Homer 1 authority 1 citation · 2 passages

    ch. 5 2 passages anchored here

    Homer's Iliad is explicitly cited as the authoritative textual source for early conceptions of law.

    ” “Themis,” it is well known, appears in the later Greek pantheon as the Goddess of Justice, but this is a modern and much developed idea, and it is in a very different sense that Themis is described in the Iliad as the assessor of Zeus.

20. John Locke 1 refuted 1 citation

    ch. 9

    Locke's theory is explicitly named and its Roman derivation criticized.

    The Lockeian theory of the origin of Law in a Social Compact scarcely conceals its Roman derivation, and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns;

21. Leslie Stephen 1 neutral 1 citation

    introduction.

    Explicitly named as a biographical article by Leslie Stephen recommended for further reading.

    and the articles in the Dictionary of National Biography (1893), and the Supplement to the ninth edition of the Encyclopædia Britannica (1902), by Leslie (afterwards Sir L.

22. Letters to Atticus Cicero 1 authority 1 citation

    ch. 10

    Cicero's letters are explicitly cited as historical evidence for the burden of family rites on inheritance.

    The letters of Cicero to Atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on Inheritances;

23. Odyssey Homer 1 authority 1 citation · 3 passages

    ch. 9 3 passages anchored here

    The Odyssey is quoted and referenced twice as authoritative evidence.

    If I were attempting, for the more special pur poses of the jurist, to express compendiously the characteristics of the situation in which mankind disclose themselves at the dawn of their history, I should be satisfied to quote a few verses from the Odyssey of Homer:

Each stands at a single passage. The chapter carries the anchors.

introduction. 8 sources

Der Geist des römischen Rechtes · Justinian's Institutes · Manuel élémentaire de droit romain · Old Testament (Mosaic law) · Savigny's work on Roman law · Sir Henry Maine and his Work (in Oxford Lectures and other discourses) · Sir Henry Maine as a Jurist · Sir Henry Maine: a brief memoir of his life

ch. 5 4 sources

Attic Code of Solon · Laws of Draco · Laws of Menu · The Province of Jurisprudence Determined

chapter ii.: legal fictions. 6 sources

Code of Justinian · Institutes or Commentaries · Leges Corneliæ · Leges Juliæ · Pro Muræna · manual of the Civil Law

ch. 7 4 sources

Corpus Juris Civilis · Stoic doctrine of living according to nature · juristic writings of Ulpian · writings of Cicero

ch. 8 12 sources

Declaration of Independence · Digest and Code · Forged Decretals · Jus Gentium (Roman Law of Nations) · Jus Naturae (Law of Nature) identified with Jus Gentium · Legal maxim on natural equality (omnes homines naturâ æquales sunt) · Roman Law of Property · Sophismes Anarchiques · Treatise on English Law · Writings on the Customs and the Law of Nature · Writings on the Law of Nature and Nations · Writings on the State of Nature and the Social Compact

ch. 9 10 sources

Code of Louisiana · Code of Menu · English Common Law · Germany (Germania) · Lex Lœtoria (Plœtoria) · Pandects and the Code · completed analysis of law as command · early chapters of Genesis · patriarchal political doctrine debated with Locke · writings of Burlamaqui

ch. 10 6 sources

Institutes / Corpus of Justinian (Jus Tripertitum) · Laws of Solon · Leges Barbarorum (codes of the barbarian conquerors) · Mosaic law and Rabbinical Jewish law · Roman Law of Inheritance · researches on medieval survival of the Mancipatory Testament

ch. 11 5 sources

Edict of the Praetor · French Codes · Querela Inofficiosi Testamenti · Scheme of Intestate Succession · Scriptural history of Isaac and his sons

ch. 12 14 sources

Bull dividing undiscovered countries · English law of realty and personalty · Hindoo law of inheritance and acquisitions · History of India · John Austin's observations on English legal history · Justinian's legislation and the Corpus Juris · Legal maxim: Nemo in communione potest invitus detineri · Leges Barbarorum · Pandects (Digest) of Justinian · Roman Institutional Treatises (Institutes) · Roman Property Law and the Twelve Tables · Savigny's theory of Possession · Scottish law of heritable property · Writings on Roman law

ch. 13 14 sources

Arminian theology · Calvinist theology · Dissertation on the effects of Art and Science upon Morals · Institutes (definition of Obligation) · Latin Christianity · Lettres Persanes · Provincial Letters · Pseudolus and Trinummus · Roman legal definition of Obligation (Digest/Institutes formula) · The Social Contract · definition of nexum · definition of the essentials of a contract · doctrine of absolute monarchical authority · unspecified moral-philosophical writings

ch. 14 10 sources

Anglo-Saxons · Codex Diplomaticus Ævi Saxonici (Kemble, ii. 209) · Corpus Juris of Justinian · Epistle concerning civil magistrates · Lex Calpurnia de Repetundis · Lex Cornelia de Sicariis et Veneficis · New Testament · Old Testament · Writings of King Alfred · the Digest

The harvest records where a citation is made: the paragraph in the citing book, and the chapter that paragraph stands in. It does not record which page of this book is meant. Where the citing text names a locus, you will find it in the quotation.

1. Lectures on the Early History of Institutions Henry Sumner Maine 1 authority · 4 extended 5 citations · 6 passages

   ch. 1 · ch. 4 · ch. 8 2 passages anchored here · ch. 9 · ch. 10

   Explicitly named as the earlier work the Lectures build on.

   In the Lectures printed in this Volume an attempt is made to carry farther in some particulars the line of investigation pursued by the Author in an earlier work on ‘Ancient Law.

2. Dissertations on Early Law and Custom Henry Sumner Maine 2 authority · 2 extended 4 citations · 9 passages

   ch. 3 · ch. 5 2 passages anchored here · ch. 8 4 passages anchored here · ch. 12 2 passages anchored here

   The author explicitly cites and revises his own earlier published analysis.

   Beginning with religious hymnology, devotional exercises, religious ritual, and theological speculation, some of their schools were brought to Conduct, and to stating in detail what a devout man should do, what would happen to him if he did it not, and by what acts, if he lapsed, he could restore himself to uprightness.

3. Institutes of Roman Law Gaius 1 neutral 1 citation

   ch. 116

   Maine's work and chapter are explicitly named as the source of a historical thesis reported by the editor.

   To the divergence of the civil (agnatio) and natural (cognatio) families, to the desire, that is, to correct the non-natural devolution of successions, Sir Henry Maine attributes the introduction in Roman jurisprudence of Testamentary dispositions (Ancient Law, ch.

4. Ancient Law Henry Sumner Maine 1 endorsed 1 citation

   ch. 13

   The quoted passage restates and supports the author's own argument about the conditions of jurisprudential progress.

   “The proficiency of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry;