country was adorned by his incomparable genius, CHA P. which converts into gold every object that it XLIV. 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*. 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 armour of the stoics

Perturbatricem autem omnium harum rerum academiam, hanc ab Arcesila et Carnead recentem, exoremus ut sileat, nam si invaserit in hæc, quæ satis scite instructa 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.

XLIV.

CHA P. stoics* 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 †, 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 1.

Jac.

Authority.

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

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

+As he is quoted by Ulpian (leg. 40. ad Sabinum in Pan-. dect. 1. xlvii. tit. ii. leg. 21.). Yet Trebatius, after he was. a leading civilian, qui familiam duxit, became an epicurian (Cicero ad Fam vii. 5.). Perhaps he was not constant or sincere in his new sect.

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 Stoica Jurisconsultorum Philosophia.

ported by the virtues or triumphs of the civic Ħ A P. lian. The patrician arts were long protected by XLIV. 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 *, 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 eloquence or sophistry of an ingenious pleader †. Augustus and Tiberius were the first to adopt, as an useful engine, the science of the civilians; and their servile labours 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 Hadrian 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

*We have heard of the Catonian rule, the Aquilian stipu lation, and the Manilian forms, of 2:1 maxims, and of 247 definitions (Pandect. 1. L. tit. xvi, xvii.).

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

CHA P. of the law; and the use of codicils was a memoXLIV. rable innovation, which Augustus ratified by the advice of the civilians *.

Sects.

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 t. Two sages of the law, Ateius Capito and Antistius Labeo ‡, adorned the peace of the Augustan age: the former distinguished by the favour of his sovereign; the latter more illustrious by his contempt of that favour, and his stern though harmles opposition to the tyrant of Rome. Their legal studies were influenced by

* See Pomponius (de Origine Juris Pandect. 1. i. tit. ii. leg. 2. No. 47., Heineccius (ad Institut. 1. i. tit. ii. No. 8. 1 i. 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.

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

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. 1. p. 1.-24.).

LXIV.

by the various colours of their temper and prin- CHA P. ciples. Labeo was attached to the form of the old republic; his rival embraced the more profit.. able 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*; 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

*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, 1.). since in a simple exchange, the buyer could not be discriminated from the seller.

+ This controversy was likewise given for the Proculeans, to supersede the indecency of a search, and to comply with the aphorism of Hypocrates, who was attached to the septenary number of two weeks of years, or 700 of days (Institut. 1. i. tit. xx.). Plutarch and the stoics (de Placit. Philosoph. 1. v. c. 24) assign a more natural reason. Fourteen years is the age See the vestigia of the sects

περὶ ἦν ὁ σπερματικος κρινεται οῤῥος. in Mascou, c. ix. p. 145-276.