Authority

social life. Of these, the armour of the stoics 57 was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in 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 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,58 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.59

Arms, eloquence, and the study 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 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 consul 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. Subtle and intricate cases were elucidated by the disputes of the forum ; rules, axioms, and definitions 60 were admitted as the genuine dictates of reason; and the consent of the legal 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

57 The stoic philosophy was first taught at Rome by Panætius, the friend of the younger Scipio (see his life in the Mém. de l'Académie des Inscriptions, tom. x. p. 75-89).

53 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 [(accedit etiam) quod familiam ducit in iure civili "he is at the top of his profession], became an epicurean (Cicero ad Fam. vii. 5). Perhaps he was not constant or sincere in his new sect

=

59 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.

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

Augustus

eloquence or sophistry of an ingenious pleader.61
and Tiberius were the first to adopt, as an useful engine, the
science of the civilians; and their servile labours accommo-
dated 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 know-
ledge. 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 codi-
cils was a memorable innovation, which Augustus ratified by
the advice of the civilians.62

[Schola]

The most absolute mandate could only require that the sects 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 63 Two sages of the law, [sect of Ateius Capito and Antistius Labeo, adorned the peace of the culians; of Augustan age the former distinguished by the favour of his sabinians] 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 by the various

64

61 Read Cicero, 1. i. de Oratore, Topica, pro Murenâ.

62 See Pomponius (de Origine Juris Pandect. 1. i. tit. ii. leg. 2, No. 47), Heineccius (ad Institut. 1. i. tit. ii. No. 8, 1. ii. tit. xxv. in Element et Antiquitat.), and Gravina (p. 41-45). Yet the monopoly 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.

63 I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou, de Sectis Jurisconsultorum (Lipsiæ 1728, in 12m0, p. 276), a learned treatise on a narrow and barren ground.

64 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. 1. iii. 82). See Mascou, de Sectis (c. i. p. 124) [Accarias observes on Horace's words, referring to the Stoic doctrines of Labeo: "the lawyer was then very young, and the poet must have afterwards regretted his injustice".]

Labeo=Pro

Capito=

colours 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 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 considered the transaction as a legal sale; 65 and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years.66 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 Hadrian; 67 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 favourite of the Caesars was represented by Cassius,69 who gloried in his descent from the patriot

68

65 Justinian (Institut. 1. iii. tit. xxiii. 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. 1, leg. i.), since in a simple exchange the buyer could not be discriminated from the seller.

66 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. I. v. c. 24) assign a more natural reason. Fourteen years is the age—περὶ ἦν ὁ σπερματικὸς κρινεται οῤῥός. See the vestigia of the sects in Mascou, c. ix. p. 145-276.

67 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.

68 At the first summons he flies to the turbot-council; yet Juvenal (Satir. iv. 7581) 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. [There seems to be no ancient authority for the title Pegasians.]

69 Tacit. Annal. xvi. 7. Sueton. in Nerone, c. xxxvii.

1

1

assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Hadrian 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.70 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 festimonies, 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 excused him from Law of Citathe labour of comparing and weighing their arguments. Five 426] 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

tions. A.D.

of the Roman

tinian. A.D.

When Justinian ascended the throne, the reformation of the Reformation Roman jurisprudence was an arduous but indispensable task. law by Jus In the space of ten centuries, the infinite variety of laws and 527, &c. legal opinions had filled many thousand volumes, which no fortune 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 subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his Imperial choice selected the most learned civilians of the East, to labour with their sovereign in the work of reforma

70 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. [In the third century the schism was obliterated under the conciliatory influence of Ulpian and Papinian. Cp. Accarias, i. p. 63.]

71 See the Theodosian Code, 1. i. tit. iv. with Godefroy's Commentary, tom. i. p. 30-35. This decree might give occasion to Jesuitical 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.

Tribonian.

A.D. 527-546

74

tion.72 The theory of professors was assisted by the practice of
advocates and the experience of magistrates; and the whole
undertaking was animated by the spirit of Tribonian.78 This
extraordinary man, the object of so much praise and censure,
was a native of Side in Pamphylia; and his genius, like that
of Bacon, embraced, as his own, all the business and knowledge
of the age.
Tribonian composed, both in prose and verse, on a
strange diversity of curious and abstruse subjects: a double
panegyric of Justinian and the life of the philosopher Theo-
dotus; the nature of happiness and the duties of government;
Homer's catalogue and the four-and-twenty sorts of metre; the
astronomical canon of Ptolemy; the changes of the months; the
houses of the planets; and the harmonic system of the world. To
the literature of Greece he added the use of the Latin tongue;
the Roman civilians were deposited in his library and in his
mind; and he most assiduously cultivated those arts which
opened the road of wealth and preferment. From the bar of
the prætorian præfects, he raised himself to the honours of
quæstor, of consul, and of master of the offices; the council of
Justinian listened to his eloquence and wisdom; and envy was
mitigated by the gentleness and affability of his manners.
The reproaches of impiety and avarice have stained the virtues
or the reputation of Tribonian. In a bigoted and persecuting
court, the principal minister was accused of a secret aversion
to the Christian faith, and was supposed to entertain the senti-
ments of an Atheist and a Pagan, which have been imputed,
inconsistently enough, to the last philosophers of Greece.
avarice was more clearly proved and more sensibly felt. If he
were swayed by gifts in the administration of justice, the
example of Bacon will again occur; nor can the merit of

His

72 For the legal labours of Justinian, I have studied the preface to the Institutes; the 1st, 2d, and 3d prefaces to the Pandects; the 1st and 2d Preface to the Code; and the Code itself (1. i. tit. xvii. de Veteri Jure enucleando). After these original testimonies, I have consulted, among the moderns, Heineccius (Hist. J. R. No. 383-404), Terrasson (Hist. de la Jurisprudence Romaine, p, 295-356), Gravina (Opp. p. 93-100), and Ludewig, in his Life of Justinian (p. 19-123, 318-321; for the Code and Novels, p. 209-261; for the Digest or Pandects, p. 262-317).

73 For the character of Tribonian, see the testimonies of Procopius (Persic. 1. i. c. 23, 24. Anecdot. c. 13, 20) and Suidas (tom. iii. p. 501, edit. Kuster). Ludewig (in Vit. Justinian. p. 175-209) works hard, very hard, to white-wash-the black-a

moor.

74 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 characters (Bibliot. Græc. tom. i. p. 341, ii. p. 518, iii. p. 418, xii. p. 346, 353, 474).