Chapter XLIV: Idea Of The Roman Jurisprudence.—Part III

Among savage nations, the want of letters is imperfectly 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
clinched 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 or dance with real or affected transport. 50 If a
citizen pursued any stolen goods into a neighbor’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. 51 In a 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 praetor; 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 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. 52

49 (return) [ Scaevola, most probably Q. Cervidius Scaevola; the
master of Papinian considers this acceptance of fire and water as
the essence of marriage, (Pandect. l. xxiv. tit. 1, leg. 66. See
Heineccius, Hist. J. R. No. 317.)]

50 (return) [ Cicero (de Officiis, iii. 19) may state an ideal
case, but St. Am brose (de Officiis, iii. 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.) * Note: In this passage the author has endeavored to
collect all the examples of judicial formularies which he could
find. That which he adduces as the form of cretio haereditatis is
absolutely false. It is sufficient to glance at the passage in
Cicero which he cites, to see that it has no relation to it. The
author appeals to the opinion of Schulting, who, in the passage
quoted, himself protests against the ridiculous and absurd
interpretation of the passage in Cicero, and observes that
Graevius had already well explained the real sense. See in Gaius
the form of cretio haereditatis Inst. l. ii. p. 166.—W.]

51 (return) [ 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. l. iv.
tit. i. No. 13—21) is supported by the evidence of Aristophanes,
his scholiast, and Pollux. * Note: Nothing more is known of this
ceremony; nevertheless we find that already in his own days Gaius
turned it into ridicule. He says, (lib. iii. et p. 192, Sections
293,) prohibiti actio quadrupli ex edicto praetoris introducta
est; lex autem eo nomine nullam poenam constituit. Hoc solum
praecepit, ut qui quaerere velit, nudus quaerat, linteo cinctus,
lancem habens; qui si quid invenerit. jubet id lex furtum
manifestum esse. Quid sit autem linteum? quaesitum est. Sed
verius est consuti genus esse, quo necessariae partes tegerentur.
Quare lex tota ridicula est. Nam qui vestitum quaerere prohibet,
is et nudum quaerere prohibiturus est; eo magis, quod invenerit
ibi imponat, neutrum eorum procedit, si id quod quaeratur, ejus
magnitudinis aut naturae sit ut neque subjici, neque ibi imponi
possit. Certe non dubitatur, cujuscunque materiae sit ea lanx,
satis legi fieri. We see moreover, from this passage, that the
basin, as most authors, resting on the authority of Festus, have
supposed, was not used to cover the figure.—W. Gibbon says the
face, though equally inaccurately. This passage of Gaius, I must
observe, as well as others in M. Warnkonig’s work, is very
inaccurately printed.—M.]

52 (return) [ 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.

521 (return) [ Compare, on the Responsa Prudentum, Warnkonig,
Histoire Externe du Droit Romain Bruxelles, 1836, p. 122.—M.]

53 (return) [ 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

5311 (return) [ M. Hugo thinks that the ingenious system of the
Institutes adopted by a great number of the ancient lawyers, and
by Justinian himself, dates from Severus Sulpicius. Hist du Droit
Romain, vol.iii.p. 119.—W.]

54 (return) [ Crassus, or rather Cicero himself, proposes (de
Oratore, i. 41, 42) an idea of 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.)]

55 (return) [ Perturbatricem autem omnium harum rerum academiam,
hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si
invaserit in haec, quae 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.]

56 (return) [ The stoic philosophy was first taught at Rome by
Panaetius, the friend of the younger Scipio, (see his life in the
Mem. de l’Academis des Inscriptions, tom. x. p. 75—89.)]

57 (return) [ As he is quoted by Ulpian, (leg.40, 40, ad Sabinum
in Pandect. l. xlvii. tit. ii. leg. 21.) Yet Trebatius, after he
was a leading civilian, que qui familiam duxit, became an
epicurean, (Cicero ad Fam. vii. 5.) Perhaps he was not constant
or sincere in his new sect. * Note: Gibbon had entirely
misunderstood this phrase of Cicero. It was only since his time
that the real meaning of the author was apprehended. Cicero, in
enumerating the qualifications of Trebatius, says, Accedit etiam,
quod familiam ducit in jure civili, singularis memoria, summa
scientia, which means that Trebatius possessed a still further
most important qualification for a student of civil law, a
remarkable memory, &c. This explanation, already conjectured by
G. Menage, Amaenit. Juris Civilis, c. 14, is found in the
dictionary of Scheller, v. Familia, and in the History of the
Roman Law by M. Hugo. Many authors have asserted, without any
proof sufficient to warrant the conjecture, that Trebatius was of
the school of Epicurus—W.]

58 (return) [ 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.]

Arms, eloquence, and the study of the civil law, promoted a
citizen to the honors 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
praetor gave a sanction and preference to his private sentiments;
the opinion of a censor, or a counsel, 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. Subtile and intricate cases
were elucidated by the disputes of the forum: rules, axioms, and
definitions, 59 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 Scaevolas themselves, which was
often overthrown by the eloquence or sophistry of an ingenious
pleader. 60 Augustus and Tiberius were the first to adopt, as a
useful engine, the science of the civilians; and their servile
labors 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 Adrian restored the freedom of the
profession to every citizen conscious of his abilities and
knowledge. The discretion of the praetor 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 codicils
was a memorable innovation, which Augustus ratified by the advice
of the civilians. 61 6111

59 (return) [ We have heard of the Catonian rule, the Aquilian
stipulation, and the Manilian forms, of 211 maxims, and of 247
definitions, (Pandect. l. i. tit. xvi. xvii.)]

60 (return) [ Read Cicero, l. i. de Oratore, Topica, pro Murena.]

61 (return) [ See Pomponius, (de Origine Juris Pandect. l. i.
tit. ii. leg. 2, No 47,) Heineccius, (ad Institut. l. i. tit. ii.
No. 8, l. ii. tit. xxv. in Element et Antiquitat.,) and Gravina,
(p. 41—45.) Yet the monopoly of Augustus, a harsh measure, would
appear with some softening in contemporary evidence; and it was
probably veiled by a decree of the senate]

6111 (return) [ The author here follows the then generally
received opinion of Heineccius. The proofs which appear to
confirm it are l. 2 47, D. I. 2, and 8. Instit. I. 2. The first
of these passages speaks expressly of a privilege granted to
certain lawyers, until the time of Adrian, publice respondendi
jus ante Augusti tempora non dabatur. Primus Divus ut major juris
auctoritas haberetur, constituit, ut ex auctoritate ejus
responderent. The passage of the Institutes speaks of the
different opinions of those, quibus est permissum jura condere.
It is true that the first of these passages does not say that the
opinion of these privileged lawyers had the force of a law for
the judges. For this reason M. Hugo altogether rejects the
opinion adopted by Heineccius, by Bach, and in general by all the
writers who preceded him. He conceives that the 8 of the
Institutes referred to the constitution of Valentinian III.,
which regulated the respective authority to be ascribed to the
different writings of the great civilians. But we have now the
following passage in the Institutes of Gaius: Responsa prudentum
sunt sententiae et opiniones eorum, quibus permissum est jura
condere; quorum omnium si in unum sententiae concorrupt, id quod
ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici
licet, quam velit sententiam sequi, idque rescripto Divi Hadrian
signiticatur. I do not know, how in opposition to this passage,
the opinion of M. Hugo can be maintained. We must add to this the
passage quoted from Pomponius and from such strong proofs, it
seems incontestable that the emperors had granted some kind of
privilege to certain civilians, quibus permissum erat jura
condere. Their opinion had sometimes the force of law, legis
vicem. M. Hugo, endeavoring to reconcile this phrase with his
system, gives it a forced interpretation, which quite alters the
sense; he supposes that the passage contains no more than what is
evident of itself, that the authority of the civilians was to be
respected, thus making a privilege of that which was free to all
the world. It appears to me almost indisputable, that the
emperors had sanctioned certain provisions relative to the
authority of these civilians, consulted by the judges. But how
far was their advice to be respected? This is a question which it
is impossible to answer precisely, from the want of historic
evidence. Is it not possible that the emperors established an
authority to be consulted by the judges? and in this case this
authority must have emanated from certain civilians named for
this purpose by the emperors. See Hugo, l. c. Moreover, may not
the passage of Suetonius, in the Life of Caligula, where he says
that the emperor would no longer permit the civilians to give
their advice, mean that Caligula entertained the design of
suppressing this institution? See on this passage the Themis,
vol. xi. p. 17, 36. Our author not being acquainted with the
opinions opposed to Heineccius has not gone to the bottom of the
subject.—W.]

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. 62 Two sages of the law, Ateius Capito
and Antistius Labeo, 63 adorned the peace of the Augustan age;
the former distinguished by the favor of his sovereign; the
latter more illustrious by his contempt of that favor, and his
stern though harmless opposition to the tyrant of Rome. Their
legal studies were influenced by the various colors 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 rigor 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; 64 and
he consulted nature for the age of puberty, without confining his
definition to the precise period of twelve or fourteen years. 65
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 Adrian; 66 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, 67 a timid slave of Domitian, while the
favorite of the Caesars was represented by Cassius, 68 who
gloried in his descent from the patriot assassin. By the
perpetual edict, the controversies of the sects were in a great
measure determined. For that important work, the emperor Adrian
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. 69 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
testimonies, 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 the labor of comparing and weighing their arguments. Five
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. 70

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

63 (return) [ 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. I. iii. 82.) See Mascou, de
Sectis, (c. i. p. 1—24.)]

64 (return) [ Justinian (Institut. l. iii. tit. 23, and Theophil.
Vers. Graec. 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. l. xviii. tit. i. leg. 1,) since, in a simple exchange,
the buyer could not be discriminated from the seller.]

65 (return) [ 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. l. i. tit. xxii.) Plutarch and the Stoics (de Placit.
Philosoph. l. v. c. 24) assign a more natural reason. Fourteen
years is the age. See the vestigia of the sects in Mascou, c. ix.
p. 145—276.]

66 (return) [ 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. * Note: The work of Gaius, subsequent to the time of
Adrian, furnishes us with some information on this subject. The
disputes which rose between these two sects appear to have been
very numerous. Gaius avows himself a disciple of Sabinus and of
Caius. Compare Hugo, vol. ii. p. 106.—W.]

67 (return) [ At the first summons he flies to the
turbot-council; yet Juvenal (Satir. iv. 75—81) 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.]

68 (return) [ Tacit. Annal. xvii. 7. Sueton. in Nerone, c.
xxxvii.]

69 (return) [ 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. * Note: This word
has never existed. Cujacius is the author of it, who read me
words terris condi in Servius ad Virg. herciscundi, to which he
gave an erroneous interpretation.—W.]

70 (return) [ See the Theodosian Code, l. 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. Note: We possess
(since 1824) some interesting information as to the framing of
the Theodosian Code, and its ratification at Rome, in the year
438. M. Closius, now professor at Dorpat in Russia, and M.
Peyron, member of the Academy of Turin, have discovered, the one
at Milan, the other at Turin, a great part of the five first
books of the Code which were wanting, and besides this, the
reports (gesta) of the sitting of the senate at Rome, in which
the Code was published, in the year after the marriage of
Valentinian III. Among these pieces are the constitutions which
nominate commissioners for the formation of the Code; and though
there are many points of considerable obscurity in these
documents, they communicate many facts relative to this
legislation. 1. That Theodosius designed a great reform in the
legislation; to add to the Gregorian and Hermogenian codes all
the new constitutions from Constantine to his own day; and to
frame a second code for common use with extracts from the three
codes, and from the works of the civil lawyers. All laws either
abrogated or fallen into disuse were to be noted under their
proper heads. 2. An Ordinance was issued in 429 to form a
commission for this purpose of nine persons, of which Antiochus,
as quaestor and præfectus, was president. A second commission of
sixteen members was issued in 435 under the same president. 3. A
code, which we possess under the name of Codex Theodosianus, was
finished in 438, published in the East, in an ordinance addressed
to the Praetorian præfect, Florentinus, and intended to be
published in the West. 4. Before it was published in the West,
Valentinian submitted it to the senate. There is a report of the
proceedings of the senate, which closed with loud acclamations
and gratulations.—From Warnkonig, Histoire du Droit Romain, p.
169-Wenck has published this work, Codicis Theodosiani libri
priores. Leipzig, 1825.—M.] * Note *: Closius of Tubingen
communicated to M.Warnkonig the two following constitutions of
the emperor Constantine, which he discovered in the Ambrosian
library at Milan:— 1. Imper. Constantinus Aug. ad Maximium Praef.
Praetorio. Perpetuas prudentum contentiones eruere cupientes,
Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem
sectantur, non tam corrigere eum quam depravere maluerunt,
aboleri praecepimus. Dat. III. Kalend. Octob. Const. Cons. et
Crispi, (321.) Idem. Aug. ad Maximium Praef Praet. Universa, quae
scriptura Pauli continentur, recepta auctoritate firmanda runt,
et omni veneratione celebranda. Ideoque sententiarum libros
plepissima luce et perfectissima elocutione et justissima juris
ratione succinctos in judiciis prolatos valere minimie dubitatur.
Dat. V. Kalend. Oct. Trovia Coust. et Max. Coss. (327.)—W]