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were assured of leaving disciples equal or superior to themselves in merit and reputation. The jurisprudence which had been grossly adapted to the wants of the first Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philosophy. The Scaevolas had been taught by use and experience; but Servius Sulpicius * was the first civilian who established his art on a certain and general theory.” For the discernment of truth and falsehood he applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shape. less mass the light of order and eloquence. Cicero, his contemporary and friend, declined the reputation of a professed lawyer; but the Jurisprudence of his country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic ; and, for the use of his republic, a treatise of laws; in which he labors to deduce from a celestial origin the wisdom and justice of the Roman constitution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth: gods and men, who participate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive institutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind. From these philosophical mysteries, he mildly excludes the skeptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic : he advises them to slumber in their shady gardens. But he humbly entreats that the new academy would be silent, since her bold objections would too soon destroy the fair and wellordered structure of his lofty system.* Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics" was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in the schools of jurisprudence. From the portico, the IRoman civilians learned to live, to reason, and to die: but they imbibed in some degree the prejudices of the sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. The superioro of form to matter was introduced to ascertain the right of property: and the equality of crimes is countenanced by an opinion of Trebatius,” that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft.”

* ("rassus, or rather Cicero himself, proposes (de Oratore, i, 41, 42) an idea of the art or science of jurisprudence, which the eloquent, but illiterate, Antonius (1, 58) affects to deride. It was partly executed by Servius Sulpicius (in Bruto, c. 41), whose praises are elegantly varied in the classic Latinity of the Roman Gravina (p. 60).

to Perturbatricem autem omnium harum rerum academiam, hanc ab Arcesila et ('armeade recentem, exoremus ut sileat. nam si invaserit in haec, quae satis scite instructa et composita videantur, mimis edet ruinas, quam quidem ego placare cunio, submovere non audeo (de Legibus, i. 13). From this passage alone, Bentley (Remarks on Free-thinking, n. 250) might have learned how firmly Cicero believed in the specious doctrines which he has adorned.

• M. Hugo thinks that the ingenious system of the Institutes adopted by a reat number of the ancient lawyers, and by Jrstinian himself, dates from: everus Sulpicius. Hist. du Droit Romain, vol. ii. p. 119.-W.

Arms, eloquence, and the study of the civil law, promoted a citizen to the honors of the Roman state; and the three professions were sometimes more conspicuous by their union in the same character. In the composition of the edict, a learned praetor gave a sanction and preference to his private sentiments; the opinion of a censor, or a consul, was entertained with respect; and a doubtful interpretation of the laws might be supported by the virtues or triumphs of the civilian. The patrician arts were long protected by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtile and intricate cases were elucidated by the disputes of the forum : rules, axioms, and definitions,” were admitted as the genuine dictates of reason; and the consent of the legal professors was interwoven into the practice of the tribunals. But these interpreters could neither enact nor execute the laws of the republic ; and the judges might disregard the authority of the Scaevolas them. selves, which was often overthrown by the violence or sophistry of an ingenious pleader.” Augustus and Tiberius were the first to adopt, as a useful engine, the science of the civilians; and their servile labors accommodated the old system to the spirit and views of despotism. Under the fair pretence of securing the dignity of the art, the privilege of subscribing legal and valid opinions was confined to the sages of senatorian or equestrian rank, who had been previously approved by the judgment of the prince; and this monopoly prevailed, till Adrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the praetor was now governed by the lessons of his teachers; the judges were enjoined to obey the comment as well as the text of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians.” " ^ Read Cicero, ). i. de Oratore, Topica, pro Murena. ol See Pomponius (de Origine Juris Pandect. 1, 1 tit. ii. leg 2. No. 47), Heineccius (ad linstitut. l. i tit. ii. No. 8. 11. ut. xxv. 1n Element. et Antiquitat.), and Gravina (pp. 41–45). Yet the monopoly of Augustus, a harsh measure, would apThe most absolute mandate could only require that the judges should agree with the civilians, if the civilians agreed among themselves. But positive institutions are often the result of custom and prejudice; laws and language are ambiguous and arbitrary; where reason is incapable of pronouncing, the love of argument is inflamed by the envy of rivals, the vanity of masters, the blind attachment of their disciples; and the Roman jurisprudence was divided by the once famous sects of the Proculians and Sabinians.” Two sages of the law, Ateius Capito and Antistius Labeo,” adorned the peace of the Augustan age; the former distinguished by the favor of his sovereign; the latter more illustrious by his contempt of that favor, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various colors of their temper and principles. Labeo was attached to the form of the old republic; his rival embraced the more profitable substance of the rising monarchy. But the disposition of a courtier is tame and submissive ; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors; while the bold epublican pursued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enslaved, however, by the rigor of his own conclusions, and he decided, according to the letter of the law, the same questions which his indulgent competitor resolved with a latitude of equity more suitable to the common sense and feelings of mankind. If a fair exchange had been substituted to the payment of money, Capito still considered the transaction as a legal sale;" and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years." This opposition of sentiments was propagated in the writings and lessons of the two founders; the schools of Capito and Labeo maintained their inveterate conflict from the age of Augustus to that of Adrian; " and the two sects derived their appellations from Sabinus and P. oculus, their most celebrated teachers. The names of Cassians and Pegasians were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus," a timid slave of Domitian, while the favorite of the Caesars was represented by Cassius,” who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Adrian preferred the chief of the Sabinians; the friends of monarchy prevailed ; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines.” But their writings would have been less voluminous, had their choice been more unanimous. The conscience of the Judge was perplexed by the number and weight of discordant testimonies, and every sentence that his passion or interest might pronounce was justified by the sanction of

to The stoic philosophy was first o at Rome by Panaetius, the friend of the younger Scipio (see his life in the Mém. de l'Académie des Inscriptions, tom. X. 75--89).

#A. he is quoted by Ulpian (leg 40, ad Sabinum in Pandect...l. xlvii. tit, ii. leg. 21). Yet Trebatius, after he was a leading civilian, qui familiam duxit, became an epicurean (Cicero ad Fam. vii. 5). I’erhaps he was not constant or sincere in his new sect.* -

as see Gravina (pp. 45–51) and the ineffectual cavils of Mascou... Heineccius (Hist. J. R. No 125) quotes and approves a dissertation of Everard Otto, de Stoică Jurisconsultorum Philosophiá.

59 We have heard of the Catonian rule, the Aquilian stipulation, and the Manilian forms, of 211 Maxims, and of 247 definitions (Pandect. l. i. tit. xvi. xvii.).

• Gibbon had entirely misunderstood this phrase of Cicero. It was only since his time that the real meaning of the author was apprehended. Cicero, in enumerating the qualifications of Trebatius, says. Accedit etiam, quod familiam ducit in jure civili, singularis memoria, summa scientia, which ineans that Trebatius possessed a still further most important qualification for a student of civil law, a remarkable memory, &c. This explanation, already conjectured by G. Menage, Amaenut. Juris Civilis, c. 14, is found in the dictionary of Scheller v. Familia, and in the History of the Roman Law by M. Hugo. Many authors have

asserted, without any proof sufficient to warrant the conjecture, that Trebatius was oi the sci-ocl of Epicurus.-W.

{. with some softening in contemporary evidence, and it was probably veiled y a decree of the senate.

* The author here follows the then generally received opinion of Heineccius. The proofs which appear to confirm it are 1. 2, § 47, 1). 1, 2, and § 8. Instit 1.2. The first of these passages speaks expressly of a privilege granted to certain law. yers, until the time of Adrian, publice : espondendi bus aute August1 tempora non (labatur. Primus D1 v us Augustus, ut major juris auctoritas haberetur, con. stituit, ut ex auctoritate ejus responderent. The passage of the Institutes speaks of the disferent opinions of those. quibus est permissum Jura condere. It is true that the first of these passages does not say that the opinion of these privileged lawyers had the force of a law for the judges. For this reason M. Hugo altogether rejects the opinion adopted by Heineccius, by Bach, and in eneral by all the writers who preceded him. He conceives that the $ 8 of the *... teferred to the constitution of Valentinian III. which regulated the respective authority to be ascribed to the different writings of the gieat civilians. ut, we have now the following passage in the Institutes of Gaius Responsa prudentum Hunt, sententiae et opiniones eorum. Quibus permissum est jura condere; quorum omnium si in unum sententiae concurrunt, id quod ita sentiunt, legis vicem obtimet, si vero dissentiunt, judici licet, quain velit sententiam sequi, idoue rescripto Divi Hadian significatur. I do not know how, in opposition to this passage, the opinion of M. Hugo can be maintained. We must add to this the passage quoted from Pomponius; and from such strong proofs, it seems incontestable that the emperors had granted some kind of privilege to certain civilians quibus permissum erat jura condere. Their opinion had sometimes the force of lay, legis vicem. M. Hugo, endeavoring to reconcile this phrase with his Bystem, gives it a forced interpretation, which quite alters the sense ; he supposes that the passage contains no more than what is evident of itself, that the authority of the civilians was to be respected, thus making a privilege of that which was free to all the world. It appears to me almost indisputable, that the emperors had sanctioned certain provisions relative to the authority of these civilians, consulted by the judges Dut how far was their advice to be respected 7 * I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou. de Sectis Jurisconsultorum Lipsiae, 1728, in 12 mo., p. 276), a learned treatise on a narrow and barrem ground.

* See the character of Antistius Labeo in Tacitus (Annal. iii. 75), and in an o of Ateius Capito (Aul Gellius xiii 12), who accuses his rival of libertas nimia et recors Yet Horace would not have lashed a virtuous and rospectable senator. and i must adopt the emendation of Bentley, who reads Labieno insanior (Serm [.. iii. 82) See Mascou, de Sectis (c. i. pp. i-24).

** Justinian (Institut. l. iii. tit. 23. and Theophil. Vers Graec. pp. 677, C80) has

This is a question which it is in possible to answer precisely. from the want of historic evidence Js it not possible that the emperors established an authority to be consulted by the judges” and in this case this authority must have emanāted from certain civilians named for this purpose by the emperors. See Hugo. Moreover, may not the passage of Suetonius, in the Life of Caligula, where he says that the *peror would no longer permit the civilians to give their advice, mean that Caligula entertained the design of suppressing this institution? Šee on this Pogo the Themis. vol. xi. pp. 17, 36. Our author, not being acquainted with hopinions opposed to Heineccius, llas not gone to the bottom of the subject.

- ww.

commemorated this weighty dispute, and the verses of Homer that were alleged on either side as legal authorities. It was decided by Paul (leg. 33, ad lodict. in Pandect. l. xviii, tit. i. leg. 1), since, in a simple exchange, the buyer could not be discriminated from the seller. * This controversy was likewise given for the Proculians, to supersede the indecency of a search, and to comply with the aphorism of Hippocrates, who was attached to the septemary number of two weeks of years, or 700 of days (Institut. l. i. tit. xxii.). Plutarch and the Stoics (de Placit. Philosoph. 1. v. c. 24) assign a more natural reason. Fourteen years is the age—trept my oortrepparukos kp vs rat opoos. See the vestogna of the sects in Mascou, c. ix. pp. 145–276. * The series and conclusion of the sects are described by Mascou (c. ii.-vii. pp. 24-120), and it would be almost ridiculous to praise his equal justice to these obsolete sects.” of At the first summons he flies to the turbot-council; yet Juvenal (Satir. iv. 75–81) styles the praefect or banliff of Rome sanctissimus legum interpres. From his science, says the old scholiast, he was called, not a man, but a book. He !o the singular name of Pegasus from the galley wo.ch lais father comIllanded. “s Tacit. Annal. xvii. 7. Sueton. in Nerone, c. xxxvii. ° Mascou, de Sectis, c. viii. pp. 120–144 de Herciscundis, a legal term which was applied to these eclectic lawyers: hercuscere is synonymous to dividere.f

* The work of Gaius, subsequent to the time of Adrian, furnishes us with some information on this subject. The disputes which rose between these two sects appear to have been very numerous Gaius avows himself a disciple of Sabinus and of Caius. Compare Hugo, vol. ii. p. 106. –W.

f This word has never existed. Cujacius is the author of it, who read the words terris condi in Servius ad Virg. herciscundi, to which he gave an erroneous interpretation.—W.

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