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by the various colours of their temper and prin- “...". ciples. Labeo was attached to the form of the C--> old republic; his rival embraced the more profitable substance of the rising monarchy. But the disposition of a courtier is tame and submissive ; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors; while the bold republican pursued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enslaved, " however, by the rigour of his own conclusions, and he decided according to the letter of the law, the same questions which his indulgent competitor resolved with a latitude of equity more suitable to the common sense and feelings of mankind. If a fair exchange had been substituted to the payment of money, Capito still confidered the transaction as a legal sale “; and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years". This opposition of sentiments was propagated in the
ror Hadrian preferred the chief of the Sabinians : ... the friends of monarchy prevailed; but the mo- ... deration of Salvius Julian insensibly reconciled the o vićtors and the vanquished. Like the contem- o porary philosophers, the lawyers of the age of the * > Antonines disclaimed the authority of a master, and o adopted from every system the most probable doc- s: trines “”. But their writings would have been less §:
66 The series and conclusion of the se&ts are described by Mascou ... I (c. ii-vii. p. 24—12o.), and it would be almost ridiculous to praise ...] his equal justice to these obsolete se&ts. 67 At the first summons he flies to the turbot council; yet Juvenal (Satir. iv. 75–81.) styles the praefect or bailiff of Rome sančiisfimus o legum interpres. From his science, says the old scholiast, he was s called, not a man, but a book. He derived the fingular name of Pegasus from the galley which his father commanded. * Tacit. Annal. xvii. 7. Sueton. in Nerone, c. 37. ° Mascou, de Sečtis, c. viii. p. 120–144. de Heriscundis, alegal term which was applied to these eclectic lawyers; hercistere is synonymous to dividere.
but indispensable task. In the space of ten cen- join, turies, the infinite variety of laws and legal opinions A. D. 327, had filled many thousand volumes, which no for- &c. tune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subječts of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous diale&t of the Latins was imperfe&tly studied in the academies of Berytus and Con
70 See the Theodosian Code, l. i. tit. iv. with Godefroy's Commentary, tom. i. p. 30–35. This decree might give occasion to Jefuitical disputes like those in the Lettres Provinciales, whether a judge was obliged to follow the opinion of Papinian or of a majority, against his judgment, against his conscience, &c. Yet a legislator might give that opinion, however false, the validity not of truth, but of law.
Vol. VIII. T) familiar
71 For the legallabours of Justinian, I have studied the Preface to the Institutes; the 1st, 24, and 3d Prefaces to the Pande&ts; the 1 st and 2d Preface to the Code; and the Code itself (l. i. tit.xvii. de Veteri Jure enucleando). After these original testimonies, I have consulted, among the moderns, Heineccius (Hist. J. R. No 383– 404.), Terafson (Hist, de la Jurisprudence Romaine, p. 295–356.), Gravina (Opp. p. 93-10o.), and Ludewig, in his life of Justinian (p. 19–123. 318–321 : for the Code and Novels, p. 209—261. ; for the Digest or Pande&ts, p. 262—317.).
72. For the charaćter of Tribonian, see the testimonies of Procopius (Perfic l. i. c. 23, 24. Anecdot. c. 13.20.) and Suidas (tom. iii. p. 591. edit. Kuster). Ludewig (in Wit. Justinian. p. 175–209.) works hard, very hard, to white-wash—the black-a-moor.
73 I apply the two passages of Suidas to the same man; every circumstance so exactly tallies. Yet the lawyers appear ignorant; and Fabricius is inclined to separate the two charaćters (Bibliot. Graec. tom. i. p. 341. ii. p. 518. iii. p. 418. xii. p. 346. 353. 474.).