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,17 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 Hadrian 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.48 Among savage nations the want of letters is imperfectly supplied by the use of visible signs, which awaken attention and per- Forms of petuate the remembrance of any public or private transac- the Roman tion. The jurisprudence of the first Romans exhibited the scenes 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 law. 1. 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 and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 509-514; Lami, de Eruditione Apostolorum, tom, ii. p. 720726). 48 Schulting, Jurisprudentia Ante-Justinianea, p. 681-718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellowlabourer Hermogenes. This general division may be just, but they often trespassed on each other's ground. a 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 the Third, 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 ModesLinus, 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 Hermogenian Collection of the Imperial Rescripts. 3. The Code of Theodosius the Second, 4. The particular Novellæ, as additions and supplements to this Code. Savigny, vol. i. p. 10.--M. 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 clenched fist 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.50 If a citizen pursued any stolen goods into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron.51 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 49 Scævola, most probably Q. Cervidius Scævola, the master of Papinian, considers this acceptance of fire and water as the essence of marriage (Pandect. 1. xxiv. tit. 1, leg. 66. See Heineccius, Hist. J. R. No. 317). 50 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, p. 643, 644 [Jurispr. Ante-Justin.])." 51 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. 1. iv. tit. i. No. 13-21) is supported by the evidence of Aristophanes, his scholiast, and Pollux.b In this passage the author has endeavoured to collect all the examples of judicial formularies which he could find. That which he adduces as the form of cretio hereditatis is absolutely false. It is sufficient to glance 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 Grævius had already well explained the real sense. See in Gaius the form of cretio hereditatis, Instit. l. ii. § 166.-W. b Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says (lib. iii. § 192, 193), prohibiti actio quadrupli ex edicto prætoris introducta est; lex autem eo nomine nullam pœnam constituit. Hoc solum præcepit, ut qui quærere velit, nudus quærat, linteo cinctus, lancem habens; qui si quid invenerit, jubet id lex furtum manifestum esse. Quid sit autem linteum, quæsitum est. Sed verius est, consuti genus esse, quo necessariæ partes tegerentur. Quare lex tota ridicula est. Nam qui vestitum quærere prohibet, is et nudum quærere prohibiturus est; eo magis, quod ita quæsita res inventa majori pœnæ subjiciatur. Deinde quod lancem sive ideo haberi ju beat, ut manibus occupatis nihil subjicia tur, sive ideo, ut quod invenerit, ibi impo nat, neutrum eorum procedit, si id, quod quæratur, ejus magnitudinis aut naturæ sit ut neque subjici, neque ibi imponi possit. Certe non dubitatur, cujuscunque materiæ sit ea lanx, satis legi fieri. 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 face.-W. Sea Grimm, Von der Poesie in Recht, Zeitschrift für geschichtliche Rechtswisser schaft, vol. ii.-S. two competitors grasped each other's hand as if they stood prepared for combat before the tribunal of the prætor; 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 Chaldæan 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.52 A more liberal art was cultivated, however, by the sages of Rome, who, in a stricter sense, may be considered as the authors Succession lawyers. of the civil law. The alteration of the idiom and manners of the civil 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 contradictions, 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 equity of the prætor 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 Justinian, may be 42 In his Oration for Murena (c. 9-13) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candour by Aulus Gellius (Noct. Attic. xx. 10), Gravina (Opp. p. 265, 266, 267), and Heineccius (Antiquitat. Ì. iv. tit. vi.)." Gibbon had conceived opinions too decided against the forins 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 civilisation. Have not modern nations, even the most VOL. V, civilised, 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 our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10.-W. This work of M. Savigny has been translated into English by Mr. Hayward.—M. The first period, A.U.C. divided into three periods almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians.53 Pride and ignorance contributed, during the first period, to confine within narrow limits the science 303-648. 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 fellowcitizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honours 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 youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary know Second period, A.U.C. 648-988. ledge of the civil law. The second period, the learned and splendid age of jurisprudence, may be extended 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 Pætus, 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 Scævola was illustrated by three sages of the law, but the perfection 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 Cæsars, 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 33 The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pandect. 1. i. tit. ii. [§ 35 sqq.]). The moderns have discussed, with learning and criticism, this branch of literary history; and among these I have chiefly been guided by Gravina (p. 41-79) and Heineccius (Hist. J. R. No. 113-351). Cicero, more especially 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 informa tion. Horace often alludes to the morning labours of the civilians (Serm. I. i. 10, Epist. II. i. 103, &c.). Agricolam laudat juris legumque peritus, Third period, A.U.C. 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 988-1230 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 similar or a second; but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation. 54 Their pht 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. losophy The Scævolas 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 ne applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shapeless 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 54 Crassus, 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 (i. 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). a " M. Hugo thinks that the ingenious system of the Institutes adopted by a great number of the ancient lawyers, and by Justinian himself, dates from Servius Sulpicius. Hist. du Droit Romain, vol. ii. p. 119.--W. |