Ruminations, 17 VTBJ, Summer 2017-#14


Vol. 1 No. 2 Pg. 14

Vermont Bar Journal

Summer, 2017

Palimpsests II: Roman Remains in Vermont Law1

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 ft 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 known as December.12 As with most early sources of law, the Twelve Tables do not exist in a completed form. They were collected from a variety of writings, including Livy, Cicero, Pliny, and other writers’ references to the original text. Not all of the tables have survived.[13]

Kent described their style as “exceedingly brief, elliptical, and obscure,” showing a great simplicity, “a great deal of wisdom and good sense, intermixed with folly, injustice, and cruelty.”14 John Sumner Maine summarized their basic principle: “The only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge’s mind at the moment of adjudication.”15

A. Arthur Schiller pointed out that these laws are where “equality of the law originates.”[16] One rule would apply to all.17 Law was at last manifest, no longer depending on memory or oral tradition or the discretion of judges.18

The Twelve Tables are a curious mixture of rules. They touch on debt, guardianship and parentage, funerals, roads and trees, judges, and property. The first tablet describes what today we’d call subpoenas. If a magistrate calls you to court, you must go, and if you don’t, you may be forced. Mediation of disputes is encouraged, and there is default if you fail to appear. And trials end at sunset.19 Today mediation is required in most civil actions, and there is default.20 The court day usually ends promptly at 4:30 p.m.

The second table provides further instructions on calling witnesses. You are to call his name at his house every third day, as notice of the pending trial. Subpoenas now have replaced the shouting.21 In large wagers, the stakes need to be deposited in court as security.22 Gambling is a crime punishable by a fine of from $10.00 to $200.00 in Vermont, if it involves winning or losing, unless it’s done by a nonprofit corporation.23

Table III provides a three-day grace period for payment of debts admitted or adjudged due, after which the creditor can be brought before a magistrate. The debtor is bound, hands and feet with fetters, not exceeding fifteen pounds in weight, and must feed himself, and if he cannot the creditor must give him a pound of meal a day. This confinement lasts 60 days, after which, on the third market day the debtor is put to death or sold beyond the Tiber. If there is more than one creditor, the body is cut into that many pieces. “If the parts are greater or less than they should be,” however, “no liability will be entailed.”24 Collection of debt today is less harsh, of course, but the basic principle that we are held to our promises remains firm. In Roman law, there was no homestead exception or protection for debtors.[25]

Children is the subject of Table I V. It starts with the brutal authorization for a father to kill malformed infants, but only in the presence of five neighbors. Fathers have absolute power over their legitimate children throughout their lives, including the right of “imprisoning, fogging, chaining, selling, or killing them, however exalted their position may be.” Fathers may sell their sons, but sons are free from the father’s power after being sold three times. The final clause holds that posthumous children born not more than ten months after the dissolution of a marriage are to be deemed legitimate.26 Today, in Vermont, emancipation occurs at age 18, unless the Probate Court authorizes an earlier age.27 Child abuse is a crime.28

Table V is about women and the disposition of property after death. Women cannot acquire property by use when under guardianship of their agnates. “Agnates” means father in this case, but can mean any familial relation. Testamentary dispositions about property and guardianship are binding. When a man dies without a will, or if the heir has died, the nearest agnate takes the inheritance and becomes a guardian of minor children, in this Table called the tutor. If there are no agnates, then in default the property and duty fall to the gens, meaning the larger family. The property is distributed between the heirs in proportion to their respective shares. Slaves may be freed by a testament, who would pay what the decedent required for that freedom.29

Table VI is a curious mixture of rules relating to property. Contracts will be honored by the declarations made at the time they are formed, and if you later deny the declarations your penalty is twice the amount at stake. In Vermont today contracts are honored, but parol evidence is no longer necessarily allowed to explain them. 30 In 450 B.C., two years’ possession of land, and one year with other property, is a sufficient defense to eviction. Vermont requires fifteen years for adverse possession and prescriptive uses.31 In Rome, a wife might defeat a husband’s acquisition of her property of one year’s possession, “by the wife absenting herself for three consecutive nights in each year.” Wives may own property separate from the husbands here.[32] Aliens couldn’t possess property in Rome. In Vermont, a Inyone may own property in Vermont, even aliens.[33] In Rome of that time, Timber built into a house or supporting vines may not be removed, but the owner may recover twice their value. Once the vines are removed, the owner recovers possession of the property. Property sold and delivered is not passed...

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