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 sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. 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 Trebatius, that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft."

67

58

Arms, eloquence, and the study of the civil law, promoted a citizen to the honors of the Roman state; and the three professions were sometimes more conspicuous by their union in the same character. In the composition of the edict, a learned prætor gave a sanction and preference to his private sentiments; the opinion of a censor, or a counsel, was entertained with respect; and a doubtful interpretation of the laws might be supported by the virtues or triumphs of the civilian. The patrician arts were long protected by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtile and intricate cases were elucidated by the disputes of the forum: rules, axioms, and definitions," were admitted as the genuine dictates of reason; and the consent of the legal

57 As he is quoted by Ulpian, (leg. 40, ad Sabinum in Pandect. 1 alvii. 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 constant or sincere in his new sect.*

58 See Gravina (p. 45-51) and the ineffectual cavils of Mascou. Heineccius (Hist. J. R. No. 125) quotes and approves a dissertation of Everard Otto, de Stoicâ Jurisconsultorum Philosophiâ.

59 We have heard of the Catonian rule, the Aquilian stipulation, and the Manilian forms, of 211 maxims, and of 247 definitions, (Pandect. 1. i. tit. xvi. xvii.)

* Gibbon had entirely misunderstood this phrase of Cicero. It was only since his time that the real meaning of the author was apprehended. Cicero, in enumerating the qualifications of Trebatius, says, Accedit etiam, quod familiam ducit in jure civili, singularis memoria, summa scientia, which means that Trebatius possessed a still further most important qualification for a student of civil law, a remarkable memory, &c. This explanation, already conjectured by G. Menage, Amænit. Juris Civilis, a 14, is found in the dictionary of Scheller, v. Familia, and in the History of the Roman Law by M. Hugo. Many authors have asserted, without any proof sufficient to warrant the conjecture, that Trebatius was of the school of Epicurus.-W

professors 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 sophistry of an ingenious pleader." Augustus and Tiberius were the first to adopt, as a useful engine, the science of the civilians; and their servile labors 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 Adrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the prætor was now governed by the lessons of his teachers; the judges were enjoined to obey the comment as well as the text of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians.1 *

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

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

* The author here follows the then generally received opinion of Heineccius. The proofs which appear to confirm it are 1. 2, § 47, D. I. 2, and 8. Instit. I. 2. The first of these passages speaks expressly of a privilege granted to certain lawyers, until the time of Adrian, publice respondendi jus ante Augusti tempora non dabatur. Primus Divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex auctoritate ejus responderent. The passage of the Institutes speaks of the different opinions of those, quibus est permissum jura condere. It is true that the first of these passages does not say that the opinion of these privileged lawyers had the force of a law for the judges. For this reason M. Hugo altogether rejects the opinion adopted by Heineccius, by Bach, and in general by all the writers who preceded him. He conceives that the 8 of the Institutes referred to the constitution of Valentinian III., which regulated the respective authority to be ascribed to the different writings of the great civilians. But we have now the following passage in the Institutes of Gaius: Responsa prudentum sunt sententiæ et opiniones eorum, quibus permissum est jura condere; quorum omnium si in unum sententiæ concurrunt, id quod ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici licet, quam velit sententiam sequi, idque rescripto Divi Hadrian significatur. I do not know, how in opposition to this passage, the opinion of M. Hugo can be maintained. We must add to this the passage quoted from Pomponius and from such strong proofs, it seems incontestable that

62

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 favor of his sovereign; the atter more illustrious by his contempt of that favor, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various colors of their temper and principles. Labeo was attached to the form of the 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 senti

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

69 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, who reads Labieno insanior, (Serm. I. iii. 82.) See Mascon, de Sectis, (c. i. p. 1—24.)

the emperors had granted some kind of privilege to certain civilians, quibus permissum erat jura condere. Their opinion had sometimes the force of law, legis vicem. M. Hugo, endeavoring to reconcile this phrase with his system, gives it a forced interpretation, which quite alters the sense; he supposes that the passage contains no more than what is evident of itself, that the authority of the civilians was to be respected, thus making a privilege of that which was free to all the world. It appears to me almost indisputable, that the emperors had sanctioned certain provisions relative to the authority of these civilians, consulted by the judges. But how far was their advice to be respected? This is a question which it is impossible to answer precisely, from the want of historic evidence.

Is it not possible that the emperors established an authority to be consulted by the judges? and in this case this authority must have emanated from certain civilians named for this purpose by the emperors. See Hugo, 1. c. Moreover, may not the passage of Suetonius. in the Life of Caligula, where he says that the emperor would no longer permit the civilians to give their advice, mean that Caligula entertained the design of suppressing this Institution? Sec on this passage the Themis, vol. xi. p. 17, 36. Our author not being acquainted with the opinions opposed to Heineccius has not gone to the bottom of the subject.-W.

ments, 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 rigor 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 considered 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 writings and lessons of the two founders; the schools of Capito and Labeo maintained their inveterate conflict from the age of Augustus to that of Adrian;" and the two sects derived their appellations from Sabinus and Proculus, their most celebrated teachers. The names of Cassians and Pegasians were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus," a timid slave of Domitian, while the

64 Justinian (Institut. 1. iii. tit. 23, and Theophil. Vers. Græc. p. 677, 680) has commemorated this weighty dispute, and the verses of Homer that were alleged on either side as legal authorities. It was decided by Paul, (leg. 33, ad Edict. in Pandect. 1. xviii. tit. i. leg. 1,) since, in a simple exchange, the buyer could not be discriminated from the seller.

65 This controversy was likewise given for the Proculians, to supersede the indecency of a search, and to comply with the aphorism of Hippocrates, who was attached to the septenary number of two weeks of years, or 700 of days, (Institut. 1. i. tit. xxii.) Plutarch and the Stoics (de Placit. Philosoph. 1. v. c. 24) assign a more natural reason. Fourteen years is the age—περὶ ἣν ὁ σπερματικὸς κρίνεται οῤῥός. See the vestigia of the sects in Mascou, c. ix. p. 145-276.

66 The series and conclusion of the sects are described by Mascou, c. ii.-vii. p. 24-120;) and it would be almost ridiculous to praise his equal justice to these obsolete sects.*

67 At the first summons he flies to the turbot-council; yet Juvenal (Satir. iv. 75-81) styles the præfect or bailiff of Rome sanctissimus legum interpres. From his science, says the old scholiast, he was called, not a man, but a book. He derived the singular name of Pegasus from the galley which his father commanded.

"The work of Gaius, subsequent to the time of Adrian, furnishes us with some information on this subject. The disputes which rose between thesa two sects appear to have been very numerous. Gaius avows himself a dis riple of Sabinus and of Caius. Compare Hugo, vol. ii. p. 106.--W.

favorite of the Caesars was represented by Cassius," who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Adrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines." But their writings would have been less voluminous, had their choice. been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies, and every sentence that his passion or interest might pronounce was justified by the sanction of some venerable name. An indulgent edict of the younger Theodosius cused him from the labor of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were established as the oracles of jurisprudence : a majority was decisive: but if their opinions were equally divided, a casting vote was ascribed to the superior wisdom of Papinian.7

68 Tacit. Annal. xvii. 7. Sueton. in Nerone, c. xxxvii.

ex

69 Mascou, de Sectis, c. viii. p. 120-144 de Herciscundis, a legal term which was applied to these eclectic lawyers: herciscere is synonymous to dividere.*

70 See the Theodosian Code, 1. i. tit. iv. with Godefroy's Commenary, tom. i. p. 30-35.+ This decree might give occasion to Jesuiti

* This word has never existed. Cujacius is the author of it, who read ne words terris condi in Servius ad Virg. herciscundi, to which he gave an erroneous interpretation.-W.

+ We possess (since 1824) some interesting information as to the framing of the Theodosian Code, and its ratification at Rome, in the year 438. M. Closius, now professor at Dorpat in Russia, and M. Peyron, member of the Academy of Turin, have discovered, the one at Milan, the other at Turin, a great part of the five first books of the Code, which were wanting, and besides this, the reports (gesta) of the sitting of the senate at Rome, in which the Code was published, in the year after the marriage of Valentinian III. Among these pieces are the constitutions which nominate commissioners for the formation of the Code; and though there are many points of considerable obscurity in these documents, they communicate many facts relative to this legislation.

1. That Theodosius designed a great reform in the legislation; to add to the Gregorian and Hermogenian codes all the new constitutions from Constantine to his own day; and to frame a second code for common use,