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[ In his Oration for Murena, (c. 9—13,) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candor by Aulus Gellius, (Noct. Attic. xx. 10,) Gravina, (Opp p. 265, 266, 267,) and Heineccius, (Antiquitat. l. iv. tit. vi.) * Note: Gibbon had conceived opinions too decided against the forms of procedure in use among the Romans. Yet it is on these solemn forms that the certainty of laws has been founded among all nations. Those of the Romans were very intimately allied with the ancient religion, and must of necessity have disappeared as Rome attained a higher degree of civilization. Have not modern nations, even the most civilized, overloaded their laws with a thousand forms, often absurd, almost always trivial? How many examples are afforded by the English law! See, on the nature of these forms, the work of M. de Savigny on the Vocation of our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10.—W. This work of M. Savigny has been translated into English by Mr. Hayward.—M.]
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 praetor, 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. [521] 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. [53] Pride and ignorance contributed, during the first period, to confine within 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 honors 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 of the juris-consults 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 Aelius Paetus, 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 Scaevola 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 Caesars, 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 collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; 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.
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[ Compare, on the Responsa Prudentum, Warnkonig, Histoire Externe du Droit Romain Bruxelles, 1836, p. 122.—M.]
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[ The series of the civil lawyers is deduced by Pomponius, (de Origine Juris Pandect. l. 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 Hei neccius, (Hist. J. R. No. 113-351.) Cicero, more especially in his books de Oratore, de Claris Oratoribus, de Legibus, and the Clavie Ciceroniana of Ernesti (under the names of Mucius, &c.) afford much genuine and pleasing information. Horace often alludes to the morning labors 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, reclusâ
Mane domo vigilare, clienti promere jura.
* Note: It is particularly in this division of the history of the Roman jurisprudence into epochs, that Gibbon displays his profound knowledge of the laws of this people. M. Hugo, adopting this division, prefaced these three periods with the history of the times anterior to the Law of the Twelve Tables, which are, as it were, the infancy of the Roman law.—W]
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 Scaevolas had been taught by use and experience; but Servius Sulpicius [5311] was the first civilian who established his art on a certain and general theory. [54] 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 labors 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 entreats 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. [55] Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics [56] 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, [57] 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. [58]