4522. LAW, Roman vs. Feudal.—[continued].
The following instances
will give some idea of the steps by which the
Roman gained on the Feudal laws. A law
of Burgundy provided “Si quis post hoc
barbarus vel testari voluerit, vel donare, aut
Romanam consuetudinem, aut barbaricam,
esse servandam, sciat”. “If any barbarian
subject hereafter shall desire to dispose by legacy
or donation, let him know that either the
Roman or barbarian law is to be observed.”
And one of Lotharius II. of Germany, going
still further, gives to every one an election
of the system under which he chose to live,
“Volumus ut cunctus populus Romanus interrogatur
quali lege vult vivere; ut tali
lege, quali professi sunt vivere vivant; illisque
denuntiatur, ut hoc unus-quis-que,
tam judices, quam judices, vel reliquus
populus sciat, quod si offensionem contra
eandem legem fecerint, eidem legi, quâ profitentur
vivere, subjaceant”. “We will that
all the Roman people shall be asked by what
law they wish to live; that they may live
under such law as they profess to live by;
and that it be published, that every one,
judges, as well as generals, or the rest of
the people, may know that if they commit
offence against the said law, they shall be
subject to the same law by which they profess
to live.” Ency. Method. Jurisprudence.
Coutume. 399. Presenting the uncommon
spectacle of a jurisdiction attached to persons,
instead of places. Thus favored, the Roman
became an acknowledged supplement to the
Feudal or customary law; but still, not under
any act of the legislature, but as “raison
écrite”, “written reason”: and the cases to
which it is applicable, becoming much the
most numerous, it constitutes in fact the mass
of their law.—
Note in Batture Case. Washington ed. viii, 531.
(1812)
