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purple ink,47 and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But, as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Hadrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius, to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as spurious or obsolete.s

Among savage nations, the want of letters is imperfectly Forms of the supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage-life was denoted by the necessary elements of fire and water ; 49 and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch ; the clenched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and

Roman law

47 A compound of vermillion and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire (Bibliothèque Raisonnée de la Diplomatique, tom. i. p. 509-514. Lami, de Eruditione Apostolorum, tom. ii. p. 720-726).

48 Schulting, Jurisprudentia Ante-Justinianea, p. 681-718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus, and the continuation to his fellowlabourer Hermogenes. This general division may be just; but they often trespassed on each other's ground. [These two codes were non-official. That of Gregory was probably composed at the beginning of Constantine's reign ; that of Hermogenes, which continued it, towards the end of the 4th century. The fragments of both are published by Haenel in his edition of the Codex Theodosianus. ]

49 Scævola, most probably Q. Cervidius Scævola the master of Papinian, considers this acceptance of fire and water as the essence of marriage. (Pandect. l. xxiv. tit. i. leg. 66. See Heineccius, Hist. J. R. No. 317).

confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment; and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap and dance with real or affected transport. 60 If a citizen pursued any stolen goods into a neighbour's house, he concealed his nakedness with a linen towel, and hid his face with a mask or bason, lest he should encounter the eyes of a virgin or a matron.51 In a civil action, the plaintiff touched the ear of the witness, seized his reluctant adversary by the neck, and implored, in solemn 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 cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the day of business and repose; these important trifles were interwoven with the religion of Numa; and, after the publication of the Twelve Tables, the Roman people was still enslaved 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 observed ; and the same antiquity which sanctified the practice,

obliterated the use and meaning, of this primitive language. 52 Succession of A more liberal art was cultivated, however, by the sages

of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less

the civil law. yers


° (Cicero (de Officiis, iii. 19) may state an ideal case, but St. Ambrose (de Officiis, ji. 2) appeals to the practice of his own times, which he understood as a lawyer and a magistrate (Schulting ad Ulpian. Fragment. tit. xxii. No. 28, p. 643, 644). (This interpretation of the passage of Cicero is obviously false. There is no evidence that such forms for accepting an inheritance were ever in use.]

51 The furtum lance licioque conceptum was no longer understood in the time of the Antonines (Aulus Gellius, xvi. 10). The Attic derivation of Heineccius (Antiquitat. Rom. 1. iv tit. i. No. 13-21) is supported by the evidence of Aristophanes, his scholiast, and Pollux. (See Gaius, § 189. The meaning of the lans is quite uncertain.]

52 In his oration for Murena (c. 9-13) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candour by Aulus Geilius (Noct. Attic. xx, 10), Gravina (Opp. p. 265, 266, 267), and Heineccius (Antiquitat. 1. iv. tit. vi.).

familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle 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 simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country. The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be divided into three periods almost equal in duration,53 and distinguished from each other by the mode of instruction and the character of the civilians.54 Pride and ignorance contributed, during the first period, to confine within the first narrow limits the science of the Roman law. On the public A.U.C. 303-648 days of market or assembly, the masters of the art were seen walking in the forum, ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honours increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life and the incidents of judicial proceeding were the ordinary subject of these consultations, and the verbal or written opinion

53 [Another triple division is adopted by Accarias: (1) to Augustus, A. U.C. 724 ; (2) to Constantine, A.D. 306 ; (3) to Justinian. But this is from a more general point of view than the "succession of the lawyers":]

64 The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pandect. 1. i. tit. ii.). The moderns have discussed, with learning and criticism, this branch of literary history; and among these I have chiefly been guided by Gravina (p. 41-79) and Heineccius (Hist. J. R. No. 113-351). Cicero, more e-pecially in his books de Oratore, de Claris Oratoribus, de Legibus, and the Clavis Ciceroniana of Ernesti (under the names of Mucius, &c.) afford much genuine and pleasing information. Horace often alludes to the morning labours of the civilians (Serm. I. i. 10. Epist. II. i. 103, &c.).

Agricolam laudat juris legumque peritus
Sub galli cantum, consultor ubi ostia pulsat.
Romæ dulce diu fuit et solemne reclusa
Mane domo vigilare, clienti promere jura.

Second period.

of the jurisconsults was framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons; and the Mucian race was long renowned for

the hereditary knowledge of the civil law. The second period, A.U.C. 648-988 the learned and splendid age of jurisprudence, may be extended

from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Ælius Pætus, surnamed Catus, or the Cunning, was preserved as the oldest work of jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son; the kindred appellation of Mucius Scævola was illustrated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius their disciple, and the friend of Tully; and the long succession, which shone with equal lustre under the republic and under the Cæsars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan 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 expressly quoted; and few teachers could deThird perlod. liver their opinions in less than a century of volumes. In the

third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled; the throne was occupied by tyrants and Barbarians; the active spirits were diverted by religious disputes; and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened 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 civi ans who fill the intermediate space, it is evident that such studies may be pursued, and such works may


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

A.U.O. 988 1230

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 Thour wants of the first Romans was polished and improved in the

philosophy seventh century of the city by the alliance of Grecian philosophy. The Scævolas had been taught by use and experience; but Servius Sulpicius was the first civilian who established his art on a certain and general theory.55 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 country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic; and, for the use of his republic, a treatise of laws, in which he labours to deduce from a celestial origin the wisdom and justice of the Roman constitution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth ; gods and men, who participate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive institutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind. From these philosophical mysteries, he mildly excludes the sceptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic: he advises them to slumber in their shady gardens. But he humbly intreats that the new Academy would

be silent, since her bold objections would too soon destroy the fair and well-ordered structure of his lofty system. 56 Plato, Aristotle, and Zeno he represents as the only teachers who arm and instruct a citizen for the duties of

55 Crassus, or rather Cicero himself, proposes (de Oratore, i. 41, 42) an idea or 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 Latinity of the Roman Gravina (p. 60).

56 Perturbatricem autem omnium harum rerum academiam, hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si invaserit in hæc, quæ satis scite in. structa et composita videantur, nimis edet ruinas, quam quidem ego placare cupio, submovere non audeo (de Legibus, i. 13). From this passage alone Bentley (Remarks on Free thinking, p. 250) might have learned how firmly Cicero believed in the specious doctrines which he has adorned.

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