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CHAP. predeceffors. From the flow advances and rapid decay of these legal ftudies, it may be inferred, that they require a fate of peace and refinement. From the multitude of voluminous civilians who fill the intermediate fpace, it is evident, that fuch ftudies may be purfued, and fuch works may be performed, with a common fhare of judgment, experience, and induftry. The genius of Cicero and Virgil was more fenfibly felt, as each revolving age had been found incapable of producing a fimilar or a fecond: but the most eminent teachers of the law were affured of leaving difciples equal or fuperior to themfelves in merit and reputation.

Their philofophy.

54

The jurifprudence which had been grofsly adapted to the wants of the firf Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philofophy. The Scævolas had been taught by ufe and experience; but Servius Sulpicius was the first civilian who eftablifhed his art on a certain and general theory "4. For the difcernment of truth and falfehood, he applied, as an infallible rule, the logic of Ariftotle and the ftoics, reduced particular cafes 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 profeffed lawyer; but the jurifprudence of his

54 Craffus, or rather Cicero himself, proposes (de Oratore, i. 41, 42.) an idea of the art or fcience of jurifprudence, 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 claffic Latinity of the Roman Gravina (p. 60.).

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country was adorned by his incomparable genius, CHAP. which converts into gold every object that it touches. After the example of Plato, he compofed a republic: and, for the use of his republic, a treatise of laws; in which he labours to deduce from a celeftial origin, the wifdom and juftice of the Roman constitution. The whole univerfe, according to his fublime hypothefis, forms one immense commonwealth: gods and men, who participate of the fame effence, are members of the fame community; reafon prescribes the law of nature and nations; and all positive inftitutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has infcribed on every virtuous mind. From these philofophical myfteries, he mildly excludes the fceptics who refufe to believe, and the epicureans who are unwilling to act. The latter difdain the care of the republic; he advises them to flumber in their fhady gardens. But he humbly intreats that the new academy would be filent, fince her bold objections would too foon deftroy the fair and well-ordered structure of his lofty system ". Plato, Ariftotle, and Zeno, he reprefents as the only teachers who arm and inftruct a citizen for the duties of focial life. Of thefe, the armour of the

55 Perturbatricem autem omnium harum rerum academiam, hanc ab Arcefila et Carneade recentem, exoremus ut fileat, nam fi invaferit in hæc, quæ fatis fcite inftructa et compofita videantur, nimis edet ruinas, quam quidem ego placare cupio, fubmovere non audeo (de Legibus, i. 13.). From this paffage alone, Bentley (Remarks on Free thinking, p. 250.) might have learned how firmly. Cicero believed in the fpecious doctrines which he has adorned.

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CHAP. ftoics 6 was found to be of the firmeft temper; and

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Authori ty.

it was chiefly worn, both for use and ornament, in the schools of jurifprudence. From the portico, the Roman civilians learned to live, to reason, and to die but they imbibed in fome degree the prejudices of the fect; the love of paradox, the pertinacious habits of difpute, and a minute attachment to words and verbal diftinctions. The fuperiority of form to matter, was introduced to afcertain 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 hogfhead of wine, is guilty of the entire theft 5.

Arms, eloquence, and the ftudy of the civil law, promoted a citizen to the honours of the Roman ftate; and the three profeffions were fometimes more confpicuous by their union in the fame character. In the compofition of the edict, a learned prætor gave a fanction and preference to his private fentiments: the opinion of a cenfor, or a conful, was entertained with respect; and a doubtful interpretation of the laws might be fup

56 The ftoic philofophy was first taught at Rome by Panetius, the friend of the younger Scipio (see his life in the Mem. de l'Academie des Infcriptions, tom. x. p. 75-89.).

57 As he is quoted by Ulpian (leg. 40. ad Sabinum in Pandect. 1. xlvii. tit. ii. leg. 21.). Yet Trebatius, after he was a leading civilian, qui familiam duxit, became an epicurean (Cicero ad Fam. vii. 5.). Perhaps he was not conftant or fincere in his new fect.

58 See Gravina (p. 45-51.) and the ineffectual cavils of Malcon. Heineccius (Hift. J. R. No 125.) quotes and approves a differtation of Everard Otto, de Stoica Jurifconfultorum Philofophiâ.

ported

60

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ported by the virtues or triumphs of the civi- CHAP. lian. The patrician arts were long protected by the veil of myftery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtle and intricate cafes were elucidated by the disputes of the forum rules, axioms, and definitions ", were admitted as the genuine dictates of reason; and the confent of the legal profeffors 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 Scævolas themselves, which was often overthrown by the eloquence or fophiftry of an ingenious pleader 6. Auguftus and Tiberius were the first to adopt, as an useful engine, the science of the civilians; and their fervile labours accommodated the old fyftem to the spirit and views of defpotifm. Under the fair pretence of fecuring the dignity of the art, the privilege of fubfcribing legal and valid opinions was confined to the fages of fenatorian or equeftrian rank, who had been previously approved by the judgment of the prince; and this monopoly prevailed, till Hadrian reftored the freedom of the profeffion to every citizen confcious of his abilities and knowledge. The discretion of the prætor was now governed by the leffons of his teachers; the judges were enjoined to obey the comment as well as the text

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

6. Read Cicero, 1. i. de Oratore, Topica, pro Murena.

of

CHAP. of the law; and the ufe of codicils was a memo

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rable innovation, which Auguftus ratified by the advice of the civilians ".

The most abfolute mandate could only require that the judges fhould agree with the civilians, if the civilians agreed among themselves. But pofitive inftitutions are often the refult 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 difciples; and the Roman jurifprudence was divided by the once famous fects of the Proculians and Sabinians 62 Two fages of the law, Ateius Capito and Antiftius Labeo, adorned the peace of the Auguftan age: the former diftinguished by the favour of his fovereign; the latter more illustrious by his contempt of that favour, and his ftern though harmless oppofition to the tyrant of Rome. Their legal ftudies were influenced

61 See Pomponius (de Origine Juris Pandect. 1. i. tit. ii. leg. 2. No 47.), Heineccius (ad Inftitut. 1. i tit. ii. No 8. 1. ii. tit. xxv. in Element. et Antiquitat.), and Gravina (p. 41-45.). Yet the mono. poly of Auguftus, an harfh measure, would appear with some soften-ing in the contemporary evidence; and it was probably veiled by a decree of the fenate.

6z I have perused the Diatribe of Gotfridus Mascovius, the learned Mafcou, de Sectis Jurifconfultorum (Lipfiæ, 1728, in 12mo, p.276.), a learned treatise on a narrow and barren ground.

63 See the character of Antiftius Labeo in Tacitus (Annal. iii. 75.) and in an epiftle of Ateius Capito (Aul. Gellius, xiii. 12.), who accufes 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, who reads Labieno infanior (Serm. 1. iii. 82.). See Mafcou, de Setis (c. 1. p I—24.).

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