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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. 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 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

s4 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 Latility of the Roman

Gravina (p. 62).

country 55 Perturbatricem autem omnium harum rerum academiam, hanc ab Arcefila et Carneade recentem, exoremus ut fileat, nam fi invaserit in haec, quae satis scite instructa et composita videantur, nimisedet ruinas, quam quidem ego placare cupio, submovere non audeo (de Legibus, i. 13.). From this passage alone, Bentley (Remarks on Free thinking, p. 25o.) might have learned how firmly Cicero believed in the specious doćtrines which he has adorned.

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- 8 stoics

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the schools of jurisprudence. From the portico,
the Roman civilians learned to live, to reason,
and to die: but they imbibed in some degree the
prejudices of the se&; the love of paradox, the
pertinacious habits of dispute, and a minute
attachment to words and verbal distinétions. The
superiority of form to matter, was introduced to
ascertain the right of property: and the equality
of crimes is countenanced by an opinion of Treba-
tius *', that he who touches the ear, touches the
whole body; and that he who steals from an heap
of corn, or an hogshead of wine, is guilty of the
entire theft “.
Arms, eloquence, and the fludy of the civil
law, promoted a citizen to the honours of the
Roman state; and the three professions were
sometimes more conspicuous by their union in the
same charaćter. In the composition of the edićt,
a learned praetor gave a sančtion 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 sup-

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ported by the virtues or triumphs of the civilian. The patrician arts were hong protećted by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtle and intricate cases were elucidated by the disputes of the forum : rules, axioms, and definitions *, were admitted as the genuine dićtates of reason ; and the consent of the legal professors was interwoven into the practice of the tribunals. But these interpreters could neither enaët nor execute the laws of the republic; and the judges might disregard the authority of the Scaevolas themselves, which was often overthrown by the eloquence or sophistry of an ingenious pleader *. Augustus and Tiberius were the first to adopt, as an useful engine, the science of the civilians; and their servile labours 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 Hadrian 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

$9 We have heard of the Catonian rule, the Aquilian stipulation, and the Manilian forms, of 211 maxims, and of 247 definitions (Panded. l L. tit.xvi, xvii.).

69 Read Cicero, l, i, de Oratore, Topica, pro Mürena,


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of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians “. The 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 favour of his sovereign ; the latter more illustrious by his contempt of that favour, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced

c H A P. XLIV.


61 See Pomponius (de Origine Juris Pande&t. I.i. tit. ii. leg. 2. No 47.), Heineccius (ad Institut, 1. i tit. ii. No 8. I. ii. tit.xxv. in Element. et Antiquitat.), and Gravina (p. 41–45.). Yet the mono. poly of Augustus, an harsh measure, would appear with some softening in the contemporary evidence; and it was probably veiled by a decree of the senate.

6* I have perused the Diatribe of Gotfridus Mascovius,the learned Mascou, de Sečtis Jurisconsultorum (Lipsiae, 1728, in 12mo, p.276.), a learned treatise on a narrow and barren ground.

6: See the character of Antistius Labeo in Tacitus(Annal. iii. 75.) and in an epistle of Ateius Capito (Aul. Gellius, xiii. 12.), who accuses his rival of libertas nimia et vecors. Yet Horace would not. have lashed a virtuous and respectable senator; and I must adopt the emendation of Bentley, whoreads Labieno insanior (Serm. I.iii. 82.). See Mascou, de Sestis (c. 1. p 1–24.).

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