consciousness of possessing perseverance and industry to overcome all difficulties could induce a man of his unaffected modesty and diffidence to undertake. This was no less a task than the remodelling of the Pandects or digest of the Roman law, originally collected by Tribonian in that celebrated compilation, which has preserved the most truly useful production of ancient genius from the ravages of time; but which abounds in defects proceeding from carelessness, ignorance, and, as some have thought, gross corruption and the indecent levity of despotic power sporting with the most important interests of mankind. Opinions are divided as to the integrity, with which the minister of Justinian proceeded; but the fact is unquestionable, that, under the pretext of drawing order out of confusion, he and his associates have left a crowd of antinomies, or contradictory laws, and his general arrangement is extremely deficient. It was Pothier's aim to reconcile these inconsistencies, as far as possible, and to give a more luminous arrangement to the Pandects. Had he consulted his own judgment alone, he would undoubtedly have recast the entire body of the compilation, and given it that analytical form which modern skill imparts to elementary works of science. But the arrangement of the books and titles had become inveterately established, and so identified with the citations of the text by the civilians in their commentaries, that it could not be changed, without manifest inconvenience. The laws are however disposed in a new order, connected by general definitions, rules, and corollaries, filling up the numerous lacunæ which the compilers employed by Tribonian had left, and giving to the work that completeness and fulness of illustration which might have been expected from their hands. Whereever a rule, maxim, or definition is deficient in the original, (probably from its having been first applied to the decision of a particular case presented to the jurisconsult or the emperor whose name is affixed to the law,) our author has added whatever was necessary to make it perspicuous and of general application; without, at the same time, altering the original text, which is still preserved in Roman characters, whilst these additions are given in italics; except indeed where it was necessary to assert the purity of the text against the interpolations of Tribonian, or the carelessness and ignorance of subsequent transcribers. The alterations, which the venality or fickleness of Justinian subsequently introduced in the code and

novels, are explained, and carefully distinguished from the genuine productions of the golden age of Roman jurisprudence. To the whole work is prefixed a preface, containing a sketch of the history of the civil law; the series and sects of the jurisconsults; and that venerable and curious monument of antiquity, the fragments of the Twelve Tables. This preface was prepared by his friend M. de Guienne, advocate at the parliament of Paris, by whose continued encouragement he was stimulated to persevere to the end of this great work, which cost him the leisure of twenty years assiduously applied to its accomplishment. It appeared in the year 1748, in three large folio volumes, under the title of Pandecta Justinianea in Novum Ordinem Digesta.

He was also honoured by the patronage and approbation of Chancellor D'Aguesseau; who, with the liberality of true genius, encouraged the labours of the only man in Europe capable of emulating the lustre of his own attainments in this noble science. This great man invited Pothier to Paris for the purpose of conferring with him on his work; corresponded with him on the subject; examined many parts of it in manuscript; and when he was appalled at the magnitude of the undertaking, and began almost to despair of its ultimate completion, revived his drooping spirits, and encouraged him to persevere. D'Aguesseau was then at the height of his reputation; a lawyer without a superior, in the extent and variety of his attainments, combined as they were with a classical eloquence and all the graces of a finished style in speaking and writing. He appeared in the latter part of the brilliant age of Louis XIV, which, after all that has been said to depreciate it, must be considered as peculiarly fruitful in men of genius; was made one of the king's advocates at the age of twenty one years, and in his first essay at the bar gave such presages of his future eminence, that the celebrated Denis Talon, president à mortier of the parliament of Paris, said that he should be satisfied to terminate as that young man had commenced his career. Under the regency of the Duke of Orleans he was raised to the high dignity of chancellor, which in France, as in England, is a political, as well as a judicial office; and in which he distinguished himself, not only as a judge, but by his enlightened views of reform in the civil and criminal legislation of his country. After consulting the different parliaments and the most eminent lawyers of the kingdom, he drew

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ing its actual valu this country, by Supreme Court volumes of the de

up several ordinances intended to produce uniformity on the subjects of entails or substitutions, donations, wills and testaments, and the jurisdiction and practice of the courts. His plaidoyers are also admirable models of forensic eloquence, adapted to the purposes of real business, and sufficiently ornamented, though far removed from the ambitious and florid style which has so much perverted the public taste in some parts of our country, which have been more ready to take encouragement from Curran than to take warning from Phillips. Such was the man who encouraged the useful labours of Pothier, and who selected him to fill the professorship of the Droit Français in the university of Orleans in 1749; which he combined with the office of judge, and performed the duties of both with extraordinary fidelity and diligence. He united oral instruction with his written lectures; and excited the emulation of the students by colloquial intercourse, conducted with great kindness and condescension, and by the institution. of prize medals as a reward for distinguished merit. In 1740 he had published an edition of the coutume of Orleans with an elaborate commentary, and in 1760 he republished it with great additions and improvements. This work is marked by the same characteristics which distinguish his other writings, great clearness of conception, a methodical arrangement, and extreme neatness and purity of style; and it soon came to be regarded as a text book on the common law of all the provinces, though peculiarly applicable to that of Orleans. After he entered on the duties of his professorship, he found it necessary to investigate more minutely the different titles of the law; and he gave to the world the fruits of his labors in a continued series of treatises upon various subjects, and especially upon the law of contracts. the law of contracts. Of this series, the first is an essay upon the law of contracts in general, Traité des Obligations, which has been translated by an English barrister of considerable acuteness and independence of thinking, Mr. Evans; but whose extensive gloss, (designed to illustrate the text by a comparison with the law of England, and some other discussions,) as Mr. Cushing observes, has perhaps 'doubled the cost of the book, without proportionally increasing its actual value.' It has also been very well translated in this country, by Mr. Martin, now one of the judges of the Supreme Court of Louisiana, who has also published several volumes of the decisions of that court, and a digest of the laws

of that state. We are not aware that any of Pothier's other works
had been rendered into English before the present laudable un-
dertaking of Mr. Cushing. The best editions of the original are
that in twenty eight volumes duodecimo, that of 1781 in eight
volumes quarto, and an edition published in octavo at Paris,
since the revolution, collating the text of Pothier with the
new codes.

The process, by which the common or unwritten law of
France was formed, appears to have been very similar to that
which produced the English common law; and the respec-
tive fortunes of each have closely followed the political fate of
the two countries. In France, the great fiefs were so early
and so long separated from the domain of the crown, and
independent of its control, that the local custom of each par-
ticular province had time to grow up and ripen into a distinct
law, which, when these fiefs came to be reunited to the crown,
could not, without great inconvenience and popular discontent,
be abolished or reduced to one uniform rule. Such, probably,
would have been the fate of the English law, had the great
vassals of the crown been able to assert or maintain their indé-
pendence for any considerable length of time. The local
customs, which now form only minute exceptions to the com-
mon law, would have spread over a larger surface, and em-
braced a greater variety of subjects. Of the ancient French
customs, that of Paris is the most important to the general
student of law, as it formed a sort of supplement to the rest,
was applied in all the. French colonies, and in that way has
become interwoven into the laws of one of the states of this
union; was early reduced to a text of great simplicity and
beauty, and commented on by Dumoulin, and the other
oracles of French jurisprudence. That of Orleans has deriv-
ed an adventitious interest from the excellent commentary of
Pothier; but the custom of Normandy may perhaps be con-
sidered the most useful to the student of our law; because
that province being the source from which sprung those feudal
institutions which were planted in England by William the
Conqueror and his successors, and subsequently engrafted on
the stock of the common law, a diligent examination of this
custom will shed a strong and useful light upon the investiga-
tions of those who take pleasure in tracing the analogies of
law. The French lawyers, in their turn, have regarded the
text of Littleton and Bracton as illustrating the custom of Nor-

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mandy, and other provinces where the feudal system had
taken deep root. M. Houard, an eminent advocate at Dieppe,
published at Rouen, in 1766, an edition of the text and a trans-
lation of the institutes of Littleton, with a glossary and notes
collating it with the custom.

This unwritten or customary law, of which we have been
speaking, prevailed in the northern provinces of France, where
the usages of the Franks and other barbarians gained a more
complete triumph over the Roman institutions, and which
were therefore called the pays coutumier; whilst the civil, or
Roman law, still survived in the southern provinces, which
were therefore termed pays de droit écrit. The struggle which
took place between these rival systems during the middle ages
is a curious subject of investigation. Under one of the French
kings of the second race, a controversy arose between the
Abbey of St. Benoit and that of St. Denis, respecting the
proprietary interest in certain serfs, which were claimed by
both; and in order to adjust it, several conferences were held,
at which certain doctors and judges assisted, and on the part
of the king a bishop and a count. But the affair could not
then be brought to a decision, because the judges of the Salic
law were entirely ignorant of the Roman, which it was insist-
ed ought to regulate ecclesiastical property. Another con-
ference was ordered to be held at Orleans, where doctors of
the civil law attended, and where it seems it was regularly
taught; but the suit was at last hardly terminated without a judi-
cial duel between the witnesses, a mode of ascertaining their
credibility, very common in that age.* On the revival of the
study of the civil law, or rather of the Justinian code, it en-
countered the same sort of opposition in the pays coutumier,
which it is well known the English common lawyers manifest-
ed when it was first introduced in England; and the Romish
clergy do not seem to have felt the same interest in promoting
its adoption. It was taught in the south of France long before
it was introduced into the northern provinces; and when the
study of it was first sought to be established in the university of
Paris, Pope Honorius III. expressly prohibited it to be taught
there, upon the ground that in those provinces the laity did
not acknowledge the authority of the imperial law, and that
the canon law was sufficient for the determination of ecclesi-

* Fleury, Histoire du Droit Francais, p. 40.