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minated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate.” Yet in the rescripts,” replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink,” and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes.* The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as spurious or obsolete.”
45 Plin. Secund. Fpistol. x. 66. Sueton. in Domitian. c. 23.
46 It was a maxim of Constantine, contra jus rescripta non valeant (Cod. Theodos.l. i. tit. ii. leg. 1). The emperors reluctantly allow some scrutiny into the law and the fact, some delay, petition, &c.; but these insufficient remedies are too much in the discretion and at the peril of the judge.
47 A compound of vermilion aid cinnabar, which marks the Imperial diplomas from Leo J. (A. D. 470) to the fall of the Greek empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. pp. 504–515. Lanii, de Eruditione Apostolorum, tom. ii. pp. 720-726).
4s Schulting, Jurisprudentia Ante-Justinianea, pp. 681–718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellow-laborer Hermogenes. This general division may be just, but they often trespassed on each other's ground.
• Savigny states the following as the authorities for the Roman law at the commencement of the fifth century:
1. The writings of the jurists, according to the regulations of the Constitution of Valentinian III., first promulgated in the West, but by its admission into the Theodosian Code established likewise in the East. (This Constitution established the authority of the five great jurists, Papinian, Paulus, Caius, Ulpian, and Modestinus, as interpreters of the ancient law. * * * In case of difference of opinion among these five, a majority decided the case; where they were equal, the opinion of Papinian, where he was silent, the judge ; but see p. 40, and Hugo, vol. ii. p. 89.)
2. The Gregorian and Hogenian Collection of the Imperial Rescripts.
3. The Code of Theodosius II.
4. The particular Novellae, as additions and supplements to this Code. SaVigny, vol. i. p. 10.-M.
Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first IRomans exhibited the scones of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water; * and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched sist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw ; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport.” If a citizen pursued any stolen goods into a neighbor's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should co-counter the cycs of a virgin or a matron.” In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the praetor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa ; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning, of this primitive language.” A more liberal art was cultivated, however, by the sages of IRome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradic. tions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the cquity of the praetor, to reform the tyranny of the darker ages; however strange or intricate the means it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country.* The revolution of almost one thousand years, from the Twelve Tables to the reign of Jus. tinian, may be divided into three periods, almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians.” Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or assembly, the masters of the art were seen walking in the forum ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and the incidents of judicial proceeding, were the ordinary subject of these consultations, and the verbal or written opinion of the juris-consults was framed according to the rules of prudence and law. The ouths of their own order and family were permitted to }. their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary knowledge of the civil law. The second period, the learned and splendid age of jurisprudence, may be ex" tended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Ælius Paetus, surnamed Catus, or the Cunning, was preserved as the oldest work of jurisprudence. Cato the censor derived some additional fame from his legal studies and those of his son: the kindred appellation of Mucius Scaevola was illustrated by three sages of the law; but the |erfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession, which shone with equal lustre under the republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collections of his rival Capito, the two hundred and fifty-ninth book is expressly quoted ; and few teachers could deliver their opinions in less than a century of volumes. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the multitude of voluminous civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry. The genius of Cicero and Virgil was more sensibly felt, as each revolving age had been found incapable of producing a sim. ilar or a second : but the most eminent teachers of the law
* Scaevola, ros, orobably Q. Cervidius Scaevola, the master of Papinian considers this accep live of fire and water as the essence of marriage (Pandect. 1. xxiv. tit. 1, leg. vo. Cec Heincecius, Hist. J. R. No. 317).
* Cicero (de Officiis, iii. 19) may state an ideal case, but St. Ambrose (de Officiis, iii. 2) appeals to the practice of his own times, which he understood as a lawyer and a magistrate (Schulting ad Ulpian. Fragment, tit. xxii. No. 28, pp. 64.3, 644°).
* The furtum lance licioque conceptum was no longer understood in the time of the Antonines (Aulus Gellius, xvi. 10). The Attic derivation of Heineccius (Antiquitat. Rom. l. iv. tit. i. No. 13-21) is supported by the evidence of Aristophanes, his scholiast, and Pollux.f
* In, this passage the author has endeavored to collect all the examples of judicial formularies which he could find. That which he adduces as the form of gretto hareditatis is absolutely false. It is sufficient to giance at the passage in Cicero, which he cites, to see that it has no relation to it. The author appeals to the opinion of Schulting, who, in the passage quoted, himself protests against the ridiculous and absurd interpretation of the passage in Cicero, and observes that Graevius had already well explained the real sense. See in Gaius the form of eretio Haereditatis, Inst. l. ii. p. 166.-W.
| Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says (11b. 111 et p. 102, § 2035, prohibiti, actio quadrupli ex edicto praetoris introducta est; lex autém to no mine nullam poeham constituit. Hoc solum praecepit, ut quiquaerere veit, nudus qorat, linted cinctus, :ancem habens; qui si quid invenerit, jubet id lex furtum manifestum esse. Quid sit autem linteum? quaesitum est.” $ed versus est con. Solti genus esse, quo necessariae partes tegerentur. Quare lex tota ridicula est Nam qul vestitum quaerere prohibet, is et nudum quierere prohibiturus est, eo magis, quod lta quaesita res inventa majori poenae subjlcsatur. Demde quod * In his Oration for Murena (c. 9-13), Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candor by Aulus Gellius (Noct. Attic. xx. 10), Gravina (Opp. pp. 205, 266, 267), and Heineccius (Antiquitat. l. iv. tit. vi.).”
lancem sive ideo haberi jubeat, ut manibus occupatis nihil subjiciatur, sive ideo, ut quod invenerit, ibi impomat, neutrum eorum procedit, si id quod quaeratur, ejus magnitudin is aut naturae sit ut neque subjici, neque ibi imponi possit. Certe non dubitatur, cujuscumque materiae sit ea lanx, satis legi fjeri. We see, moreover, from this passage, that the basin, as most authors, resting on the authority of Festus, have supposed, was not used to cover the figure.—W. Gibbon says the face, though *lo inaccurately. This passage of Gaius, I must observe, as well as others in M. Warnkönig's work, is very inaccurately printed.
* Gibbon had conceived opinions too decided against the forms of procedure in use among the Romans. Yet it is on these solemn forms that the certainty of laws has been founded among all nations. Those of the Romans were very intimately allied with the ancient religion, and must of necessity have disappeared as Rome attained a higher degree of civilization. . Have not modern nations, even the most civilized, overloaded their laws with a thousand forms, often absurd, almost always trivial ‘’ How many examples are afforded by the English law See, on the nature of these forms, the work of M. de Savigny on the Vocation of Sour Age for Legislation and Jurisprudence, Heidelberg, 1814, §: 9, 10.-W. To: work of M. Savigny has been translated into English by Mr. Hayward.
to The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pandect. l. i. tit. ii.). The moderms have discussed, with learning and criticism, this branch of literary history ; and among these I have chiefly been guided by Gravina (pp. 41-79) and Heineccius (Hist. J. R. Nos. 113-351). Cicero, more eşpecially in his books de Oratore, de Claris Oratoribus, de Legibus, and the Clavis Ciceroniana of Ernesti (under the names of Mucius, &c.) afford much genuine
and pleasing information. Horace often alludes to the morning labors of the
Romae dulce diu fuit et solemne, reclusá
• Compare, on the Responsa Prudentum, Warnkönig, Histoire Externe du Droit Romain, Bruxelles, 1836, p. 122.—M. t It is particularly in this ão of the history of the Roman jurisprudence into epochs, that Gibbon displays his profound knowledge of the laws of this eople. M. Hugo, adopting this division, prefaced these three periods with the §: of the times anterior to the Law of the Twelve Tables, which are, as it were, the infancy of the Roman law.—W.