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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:* and the divorced wife resigned the bunch of keys, by the deliv ry 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 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. 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 basin, lest he should encounter the eyes of a virgin or a matron.‡ In a

trespassed on each other's ground. * Scævola, most probably Q. Cervidius Scævola, the master of Papinian, considers this acceptance of fire and water as the essence of marriage. (Pandect. 1. 24, tit. 1, leg. 66. See Heineccius, Hist. J. R. No. 317.)

Cicero (de Officiis, 3, 19) may state an ideal case, but St. Ambrose (de Officiis, 3, 2) appeals to the practice of his own times, which he understood as a lawyer and a magistrate. (Schulting, ad Ulpian. Fragment. tit. 22, No. 28, p. 643, 644.) [In all solemn transfers of property a sale and purchase were supposed, and weighing of money. Gibbon has here brought together all the symbolical law-formalities that he could discover. In this search he has grievously misunderstood the passage in Cicero.-HUGO.] [Schulting, who is here appealed to, distinctly protests against the foolish construction put on Cicero's words, and refers to the correct interpretation of them given by Grævius. The form of the cretio hæreditatis may be found in Gaius. (Instit. 1. ii, p. 166.)—WARNKÖNIG.] [We have here an instructive instance of the propagation of error. Cicero ridiculed the avidity of legacy hunters, and the low arts to which they were ready to demean themselves in the pursuit of their object. Cujacius mistook this for a serious description of the form of acquiring heirship. Gravina believed him, and was not unwilling to provoke a smile at ancient legal nonsense. It was probably by this last writer that Gibbon was deceived, and referred by mistake to Schulting. If he had consulted the original, he would perhaps have seen how indignant Grævius was, that Tully should be so 'plucked by the beard."-ED.]

The furtum lance licioque conceptum was no longer understood

civil action, the plaintiff touched the ear of his 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 the patricians. Like the Chaldean astrologers, they announced to their clients the days 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.*

in the time of the Antonines. (Aulus Gellius, 16, 10.) The Attic derivation of Heineccius (Antiquitat. Rom. 1. 4, tit. 1, No. 13—21) is supported by the evidence of Aristophanes, his scholiast, and Pollux. [Of this procedure no more is known. It had become contemptible in the time of Gaius. (See 1. 3, p. 192, s. 293.) It is evident from this passage, that the basin was not used to cover the person, as most authors, on the authority of Festus, have imagined.—WARNKÖNIG.]

* 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 Gellius (Noct. Attic. 20, 10), Gravina (Opp. p. 265-267), and Heineccius (Antiquitat. 1. 4, tit. 6). [It was by these forms that the early Roman patrons made law comprehensible to their clients. The heavy responsibilities of the first caused them to exact a strict observance of ceremonies, which were binding on their rude inferiors. When the jurists became a distinct class, into which plebeians also had admittance, custom retained what had once been useful, but had become superfluous.-HUGO.] [The law formalities of ancient Rome are too severely condemned by Gibbon. Among all nations, the certainty of law has been based on such solemnities. Their nature may be learned from M. de Savigny's work On the Vocation of our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10.—WARNKÖNIG.] [The presenting the ear to be touched was the form in which a bystander, when appealed to, assented to the arrest of a defendant out on bail. It was thus that Horace escaped from his annoying companion on the Sacred Way. "Licet antestari? Ego vero oppono auriculam." (Sat. i. 9, 76.)-ED.] [Murena

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 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, and distinguished from each other by the mode of instruction and the character of the civilians.* Pride and ignorance contributed, during the first period, to confine within was accused of having obtained the consulship by bribery. As the candidate who had opposed him was a jurist, Cicero strove to make it appear, that a soldier was the more popular character. His sallies against the practitioners of the Forum have, therefore, supplied abundant materials for the assailants of Roman law.-HUGO.]

* The series of the civil lawyers is deduced by Pomponius (de Origine Juris Pandect. 1. 1, tit. 2). 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 especially 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, 1, 10, Epist. ii, 1, 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.

[The epochs into which the history of Roman jurisprudence is here divided, manifest Gibbon's clear and comprehensive view of the sub. ject. They were adopted by M. Hugo in his history.-WARNKÖNIG.]

narrow limits the science of the Roman law. On the public 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 subjects of these consultations, and the verbal or written opinion 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, 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

The

* [It was under this eminent lawyer that Cicero studied. orator had no systematic legal knowledge; but he was so well grounded, by attending in the atrium of his master, that when he was once reproached for this deficiency, he replied: "If I wanted to get it up, it would cost me only a few months' application." (Niebuhr's Lectures, iii, 16.)—ED.]

between the city and country, between business and compo sition; and four hundred books are enumerated a the fruit of his retirement. Of the collections of his rival Capito, the two hundred and fifty-ninth book is expressly qu`ted; and few teachers could deliver 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 civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be 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 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 wants of the first Romans, was polished and improved in the 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.*

*

For

assus, or rather Cicero himself, proposes (de Oratore, 1. 41, 42,) an idea of the art or science of jurisprudence, which the eloquent, but illiterate, Antonius (1. 58) affects to deride. It was partly executed by Servius Su.picius, (in Bruto, c. 41,) whose praises are elegantly varied in the classic latinity of the Roman Gravina. (p. 60.) [M. Hugo is of opinion that Se vius Šulpicius originated the ingenious system of the Institutes, adopted by many ancient lawyers, before it was used by Justinian. (Histoire du Droit Romain, tom. ii, p. 119.)-WARNKÖNIG.] [The "friend of Tully," here noticed, was called Servius Sulpicius Leovina Rufus. Amid the factions by which society was then torn he perserved such impartiality and laboured so sincerely to restore concord, that he was styled "Defensor Pacis" and "Pacificator." While Antony was besieging Lecius Brutus in Mutina, he urged the Senate to send an einbassy, for the purpose of conciliating the hostile leaders, and was himself deputed as the negotiator. But

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