XLIV. The jurifprudence of the first Romans exhibited CHAP. the scenes of a pantomime; the words were adapted to the gestures, and the flightest error or neglect in the forms of proceeding, was fufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water 4: and the divorced wife refigned the bunch of keys, by the delivery of which, she had been invested with the government of the family. The manumiffion of a fon, or a flave, was performed by turning him round with a gentle blow on the cheek: a work was prohibited by the cafting of a stone; prefcription was interrupted by the breaking of a branch; the clenched fift was the fymbol of a pledge or de pofit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and fcales were introduced into every payment, and the heir who accepted a testament, was fometimes obliged to fnap his fingers, to caft away his garments, and to leap and dance with real or affected tranfport ". If a citizen pursued any stolen goods into a neighbour's houfe, he concealed his nakedness with a linen towel, and hid his face with a mask or bafon, left he fhould encounter the eyes of a virgin or a 49 Scævola, moft probably Q, Cervidius Scævola the mafter of Papinian, confiders this acceptance of fire and water as the effence of marriage (Pandect. 1. xxiy. tit. i. leg. 66. See Heineccius, Hift, J. R. No 317.). so Cicero (de Officiis, iii. 19.) may state an ideal cafe, but St. Ambrofe (de Officiis, iii. 2.) appeals to the practice of his own times, which he understood as a lawyer and a magiftrate (Schulting ad Ulpian. Fragment. tit. xxii. N° 18. p. 643, 644.). XLIV. CHAP. matron ". In a civil action, the plaintiff touched the ear of his witnefs, feized his reluctant adverfary 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 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 caft at his feet to represent the field for which they contended. This occult fcience of the words and actions of law, was the inheritance of the pontiffs and patricians. Like the Chaldean aftrologers, they announced to their clients the days of business and repofe; the le important trifles were inter-. woven with the religion of Numa; and, after the publication of the twelve tables, the Roman people was ftill enflaved 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 obferved; and the fame antiquity which fanctified the practice, obliterated the use and meaning, of this primitive language 52. 51 The furtum lance licioque conceptum was no longer understood in the time of the Antonines (Aulus Gellius, xvi. 1o.). The Attic derivation of Heineccius (Antiquitat. Rom. 1. iv. tit. i N° 13 21.) is fupported by the evidence of Ariftophanes, his fcholiaft, and Pollux. 52 In his Oration for Murena (c. 9—13.) Cicero turns into ridicule the forms and mysteries of the civilians, which are reprefented with more candour by Aulus Gellius (Noct. Attic. xx. 10 ), Gravina (Opp. p. 265, 266, 267.), and Heineccius (Antiquitat. 1. iv. tit. vi.). A more XLIV. A more liberal art was cultivated, however, by CHAP. the fages of Rome, who, in a stricter fenfe, may be confidered as the authors of the civil law. The Succeffion of the alteration of the idiom and manners of the civil law. Romans, rendered the ftyle of the twelve tables yers. lefs familiar to each rifing generation, and the doubtful paffages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumfcribe the latitude, to apply the principles, to extend the confequences, to reconcile the real or apparent contradictions, was a much nobler and more important tafk; and the province of legislation was filently invaded by the expounders of ancient ftatutes. Their fubtle 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 fimple dictates of nature and reason, and the skill of private citizens was ufefully employed to undermine the public inftitutions of their country. country. The revolution of almoft one thousand years, from the twelve tables to the reign of Juftinian, may be divided into three periods almoft equal in duration, and diftinguished from each other by the mode of inftruction and the character of the civi-. lians 3. Pride and ignorance contributed, during 53 the 53 The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pande&. I. î tit. ii.). The moderns have difcuffed, with learning and criticifm, this branch of literary hiftory; and among these I have chiefly been guided by Gravina (p. 41-79.) and Heineccius (Hift J. R. No 113-351.). Cicero, more efpecially in his books de Oratore, de Claris Oratoribus, de legibus, and the Clavis C 4 CHAP. the first period, to confine within narrow limits the XLIV. The first period, period, fcience of the Roman law. On the public days of market or affembly, the masters of the art were seen walking in the forum, ready to impart the needful advice to the meaneft of their fellow citizens, from whofe votes, on a future occafion, they might folicit a grateful return. As their years and honours increased, they feated themfelves at home on a chair or throne, to expect with patient gravity the vifits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of focial life, and the incidents of judicial proceeding, were the ordinary fubject of these confultations, and the verbal or written opinion of the jurifconfults was framed according to the rules of prudence and law. The youths of their own order and family were permitted to liften; their children enjoyed the benefit of more private leffons, and the Mucian race was long renowned for the heredi Second tary knowledge of the civil law. The fecond AU.C. period, the learned and splendid age of jurispru648-988. dence, may be extended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were inftituted, books were com 1 Clavis Ciceron ana of Ernefti (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. Epift. II. i. 103, &c.). Agricolam laudat juris legumque peritus Sub galli cantum, confultor ubi oftia pulfat. XLIV pofed, and both the living and the dead became CHAP. fubfervient to the inftruction of the ftudent. The tripartite of Elius Pætus, furnamed Catus, or the Cunning, was preferved as the oldeft work of jurif prudence. Cato the cenfor derived fome additional fame from his legal studies, and those of his fon: the kindred appellation of Mucius Scævola was illuftrated by three fages of the law; but the perfection of the science was afcribed to Servius Sulpicius their difciple, and the friend of Tully; and the long fucceffion, which fhone with equal luftre under the republic and under the Cæfars, is finally closed by the refpectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preferved, and the example of Labeo may fuggest some idea of their diligence and fecundity. That eminent lawyer of the Auguftan 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 exprefsly quoted; and few teachers could deliver their opinions in lefs than a century of volumes. In the third period, between the reigns of Alexander and Juftinian, the oracles of jurifprudence were almost mute. The measure of curiofity had been filled: the throne was occupied by tyrants and Barbarians; the active fpirits were diverted by religious disputes, and the profeffors of Rome, Conftantinople, and Berytus, were humbly content to repeat the leffons of their more enlightened prede Third pe riod, A. U. C. 988. 1230. |