The jurisprudence of the first Romans exhibited CHAP. the scenes of a pantomime ; the words were adapted to the gestures, and the lightest error or neglect in the forms of proceeding, was sufficient to annul the substance of the fairelt claim. The communion of the marriage-life was denoted by the necessary elements of fire and water 8: 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 fon, 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 ; prescrip cion was interrupted by the breaking of a branch ; the clenched fift was the symbol of a pledge or de pofit, the right hand was the gift of faith and confidence. The indenture of covenants was a broken fraw ; weights and scales were introduced into every payment, and the heir who accepted a testament, was sometimes obliged to snap his fingers, to caft away his garments, and to leap and dance with real or affected transport so. If a citizen pursued any stolen godds into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a matk or bason, left he should encounter the eyes of a virgin or a

49 Scævola, most probably Q.Cervidius Scæyola the master of Papinian, confiders this acceptance of fire and water as the effence of marriage (Pandect. I. xxiy. tit. i. leg. 66. See Heineccius, Hift, J.R. N° 319)

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 underftood as a lawyer and a magiftrate (Schulting ad Vipian. Fragment, tit. xxii. No 18, p. 643, 644.).


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CHAP. matrons. In a civil action, the plaintiff touched

the ear of his witness, seized his reluctant adversary by the neck, and implored, in folemn lamentation, the aid of his fellow citizens. The two competitors grasped each other's hand as if they stood prepared for conibat 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 Chaldean astrologers, they announced to their clients the days of business and repose"; thele 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 fanctified the practice, obliterated the use and meaning, of this primitive languages.

'57 The furțum lance licioque conceptum was no longer underfood 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 fcholiast, and Pollux

52 In his Orațion 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. l. iv. tit. yi.).

A more

of the

A more liberal art was cultivated, however, by CHA P.

XLIV. the fages of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The Succession alteration of the idiom and manners

of the civil law. Romans, rendered the style of the twelve tables yers. 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 filently 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 divided into three periods almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civi.. lians 53. Pride and ignorance contributed, during


53 The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pandect. I. i tit. ii.). 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 (Hift J. R. N° 113–351.). Cicero, more especially in hjs books de Oratore, de Claris Oratoribus, de legibus, and the



CHAP. the first period, to confine within narrow limits the

science of the Roman law. On the public days The first period,

of market or assembly, the masters of the art A. U. C. were seen walking in the forum, ready to impart 303-648.

the needful advice to the meanest of their fellow. citizens, from whose votes, on a future occasion, they might folicit a grateful return. As their years and honours increased, they feated themselyes 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 proceed. ing, were the ordinary subject of these consultations, and the verbal or written opinion of the jurisconsults 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 heredi,

tary knowledge of the civil law. The second A. U.C. period, the learned and splendid age of jurispru. 648mg88. dence, may be extended from the birth of Cicero

to the reign of Severus Alexander. A system was formed, schools were instituted, books were com


Clavis Ciceron'ana of Ernesti (under the names of Mucius, &c.), af.
ford much genuine and pleasing information. Horace often alludes
to the morning labours of the civilians (Serm. I. i. 10. Epist. II, i.
103, &c.).

Agricolam laudat juris legunque peritus
Sub galli cantum, consultor ubi oftia pulsat.

Romæ dulce diu fuit et solemne, reclusâ
Mane domo vigilare, clienti promere jura.


posed, and both the living and the dead became CHAP.

XLIV fubfervient 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 cenfor derived some addi. tional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scævola was illustrated by three fages 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 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 Alex- Third peo ander and Justinian, the oracles of jurisprudence A. Ú.C. were almost mute. The measure of curiosity had 988. 1230 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


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