The History of The Decline and Fall of the Roman Empire
Edward Gibbon

Part 8 out of 15

extant in the Code, and with his father 160. These two princes
are quoted fifty times in the Pandects, and eight in the
Institutes, (Terasson, p. 265.)]
[Footnote 45: Plin. Secund. Epistol. x. 66. Sueton. in Domitian.
c. 23.]
[Footnote 46: It was a maxim of Constantine, contra jus rescripta
non valeant, (Cod. Theodos. l. i. tit. ii. leg. 1.) The emperors
reluctantly allow some scrutiny into the law and the fact, some
delay, petition, &c.; but these insufficient remedies are too
much in the discretion and at the peril of the judge.]

[Footnote 47: A compound of vermilion and cinnabar, which marks
the Imperial diplomas from Leo I. (A.D. 470) to the fall of the
Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i.
p. 504 - 515 Lami, de Eruditione Apostolorum, tom. ii. p. 720 -

[Footnote *: Savigny states the following as the authorities for
the Roman law at the commencement of the fifth century: -

1. The writings of the jurists, according to the regulations
of the Constitution of Valentinian III., first promulgated in the
West, but by its admission into the Theodosian Code established
likewise in the East. (This Constitution established the
authority of the five great jurists, Papinian, Paulus, Caius,
Ulpian, and Modestinus as interpreters of the ancient law. * * *
In case of difference of opinion among these five, a majority
decided the case; where they were equal, the opinion of Papinian,
where he was silent, the judge; but see p. 40, and Hugo, vol. ii.
p. 89.)

2. The Gregorian and Hermogenian Collection of the Imperial
3. The Code of Theodosius II.

4. The particular Novellae, as additions and Supplements to
this Code Savigny. vol. i. p 10. - M.]

[Footnote 48: Schulting, Jurisprudentia Ante-Justinianea, p. 681
- 718. Cujacius assigned to Gregory the reigns from Hadrian to
Gallienus. and the continuation to his fellow-laborer Hermogenes.

This general division may be just, but they often trespassed on
each other's ground]

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

[Footnote 49: 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.)]

[Footnote 50: 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.]

[Footnote 51: 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.]

[Footnote 52: 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 sage 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. ^! 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

[Footnote !: Compare, on the Responsa Prudentum, Warnkonig,
Histoire Externe du Droit Romain Bruxelles, 1836, p. 122. - M.]

[Footnote 53: 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.

- - - - - - - -

Romae dulce diu fuit et solemne, reclusa 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 ^* 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

[Footnote *: 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.]
[Footnote 54: 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.)]

[Footnote 55: 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.]
[Footnote 56: 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.)]

[Footnote 57: 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 -
[Footnote 58: 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

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 ^*

[Footnote 59: 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.)]

[Footnote 60: Read Cicero, l. i. de Oratore, Topica, pro Murena.]

[Footnote 61: 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]
[Footnote *: 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 Augustus, 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
[Footnote 62: 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

[Footnote 63: 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.)]

[Footnote 64: 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.]
[Footnote 65: 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.]
[Footnote 66: 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

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.]
[Footnote 67: At the first summons he flies to the
turbot-council; yet Juvenal (Satir. iv. 75 - 81) styles the
praefect 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.]

[Footnote 68: Tacit. Annal. xvii. 7. Sueton. in Nerone, c.
[Footnote 69: 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.]

[Footnote 70: 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

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
praefectus, 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 praefect, 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]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part IV.

When Justinian ascended the throne, the reformation of the
Roman jurisprudence was an arduous but indispensable task. In
the space of ten centuries, the infinite variety of laws and
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 labor
with their sovereign in the work of reformation. ^71 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. ^72 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: ^73 a double panegyric of
Justinian and the life of the philosopher Theodotus; 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 tonque; 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 Praetorian praefects, he
raised himself to the honors of quaestor, 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 virtue 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 sentiments of an Atheist and a Pagan,
which have been imputed, inconsistently enough, to the last
philosophers of Greece. His 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 Tribonian atone for his baseness, if he
degraded the sanctity of his profession; and if laws were every
day enacted, modified, or repealed, for the base consideration of
his private emolument. In the sedition of Constantinople, his
removal was granted to the clamors, perhaps to the just
indignation, of the people: but the quaestor was speedily
restored, and, till the hour of his death, he possessed, above
twenty years, the favor and confidence of the emperor. His
passive and dutiful submission had been honored with the praise
of Justinian himself, whose vanity was incapable of discerning
how often that submission degenerated into the grossest
adulation. Tribonian adored the virtues of his gracious of his
gracious master; the earth was unworthy of such a prince; and he
affected a pious fear, that Justinian, like Elijah or Romulus,
would be snatched into the air, and translated alive to the
mansions of celestial glory. ^74

[Footnote 71: For the legal labors 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, (l. i. tit. xvii. de Veteri Jure enucleando.) After these
original testimonies, I have consulted, among the moderns,
Heineccius, (Hist. J. R. No. 383 - 404,) Terasson. (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.)]
[Footnote 72: For the character of Tribonian, see the testimonies
of Procopius, (Persic. l. 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 whitewash -
the blackamoor.]

[Footnote 73: 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. Grae. tom. i. p. 341, ii. p. 518, iii. p.
418, xii. p. 346, 353, 474.]

[Footnote 74: This story is related by Hesychius, (de Viris
Illustribus,) Procopius, (Anecdot. c. 13,) and Suidas, (tom. iii.
p. 501.) Such flattery is incredible!

- Nihil est quod credere de se Non possit, cum laudatur Diis
aequa potestas.
Fontenelle (tom. i. p. 32 - 39) has ridiculed the impudence of
the modest Virgil. But the same Fontenelle places his king above
the divine Augustus; and the sage Boileau has not blushed to say,
"Le destin a ses yeux n'oseroit balancer" Yet neither Augustus
nor Louis XIV. were fools.]
If Caesar had achieved the reformation of the Roman law, his
creative genius, enlightened by reflection and study, would have
given to the world a pure and original system of jurisprudence.
Whatever flattery might suggest, the emperor of the East was
afraid to establish his private judgment as the standard of
equity: in the possession of legislative power, he borrowed the
aid of time and opinion; and his laborious compilations are
guarded by the sages and legislature of past times. Instead of a
statue cast in a simple mould by the hand of an artist, the works
of Justinian represent a tessellated pavement of antique and
costly, but too often of incoherent, fragments. In the first
year of his reign, he directed the faithful Tribonian, and nine
learned associates, to revise the ordinances of his predecessors,
as they were contained, since the time of Adrian, in the
Gregorian Hermogenian, and Theodosian codes; to purge the errors
and contradictions, to retrench whatever was obsolete or
superfluous, and to select the wise and salutary laws best
adapted to the practice of the tribunals and the use of his
subjects. The work was accomplished in fourteen months; and the
twelve books or tables, which the new decemvirs produced, might
be designed to imitate the labors of their Roman predecessors.
The new Code of Justinian was honored with his name, and
confirmed by his royal signature: authentic transcripts were
multiplied by the pens of notaries and scribes; they were
transmitted to the magistrates of the European, the Asiatic, and
afterwards the African provinces; and the law of the empire was
proclaimed on solemn festivals at the doors of churches. A more
arduous operation was still behind - to extract the spirit of
jurisprudence from the decisions and conjectures, the questions
and disputes, of the Roman civilians. Seventeen lawyers, with
Tribonian at their head, were appointed by the emperor to
exercise an absolute jurisdiction over the works of their
predecessors. If they had obeyed his commands in ten years,
Justinian would have been satisfied with their diligence; and the
rapid composition of the Digest of Pandects, ^75 in three years,
will deserve praise or censure, according to the merit of the
execution. From the library of Tribonian, they chose forty, the
most eminent civilians of former times: ^76 two thousand
treatises were comprised in an abridgment of fifty books; and it
has been carefully recorded, that three millions of lines or
sentences, ^77 were reduced, in this abstract, to the moderate
number of one hundred and fifty thousand. The edition of this
great work was delayed a month after that of the Institutes; and
it seemed reasonable that the elements should precede the digest
of the Roman law. As soon as the emperor had approved their
labors, he ratified, by his legislative power, the speculations
of these private citizens: their commentaries, on the twelve
tables, the perpetual edict, the laws of the people, and the
decrees of the senate, succeeded to the authority of the text;
and the text was abandoned, as a useless, though venerable, relic
of antiquity. The Code, the Pandects, and the Institutes, were
declared to be the legitimate system of civil jurisprudence; they
alone were admitted into the tribunals, and they alone were
taught in the academies of Rome, Constantinople, and Berytus.
Justinian addressed to the senate and provinces his eternal
oracles; and his pride, under the mask of piety, ascribed the
consummation of this great design to the support and inspiration
of the Deity.

[Footnote 75: General receivers was a common title of the Greek
miscellanies, (Plin. Praefat. ad Hist. Natur.) The Digesta of
Scaevola, Marcellinus, Celsus, were already familiar to the
civilians: but Justinian was in the wrong when he used the two
appellations as synonymous. Is the word Pandects Greek or Latin
- masculine or feminine? The diligent Brenckman will not presume
to decide these momentous controversies, (Hist. Pandect.
Florentine. p. 200 - 304.)
Note: The word was formerly in common use. See the preface
is Aulus Gellius - W]

[Footnote 76: Angelus Politianus (l. v. Epist. ult.) reckons
thirty-seven (p. 192 - 200) civilians quoted in the Pandects - a
learned, and for his times, an extraordinary list. The Greek
index to the Pandects enumerates thirty-nine, and forty are
produced by the indefatigable Fabricius, (Bibliot. Graec. tom.
iii. p. 488 - 502.) Antoninus Augustus (de Nominibus Propriis
Pandect. apud Ludewig, p. 283) is said to have added fifty-four
names; but they must be vague or second-hand references.]

[Footnote 77: The item of the ancient Mss. may be strictly
defined as sentences or periods of a complete sense, which, on
the breadth of the parchment rolls or volumes, composed as many
lines of unequal length. The number in each book served as a
check on the errors of the scribes, (Ludewig, p. 211 - 215; and
his original author Suicer. Thesaur. Ecclesiast. tom. i. p 1021 -

Since the emperor declined the fame and envy of original
composition, we can only require, at his hands, method choice,
and fidelity, the humble, though indispensable, virtues of a
compiler. Among the various combinations of ideas, it is
difficult to assign any reasonable preference; but as the order
of Justinian is different in his three works, it is possible that
all may be wrong; and it is certain that two cannot be right. In
the selection of ancient laws, he seems to have viewed his
predecessors without jealousy, and with equal regard: the series
could not ascend above the reign of Adrian, and the narrow
distinction of Paganism and Christianity, introduced by the
superstition of Theodosius, had been abolished by the consent of
mankind. But the jurisprudence of the Pandects is circumscribed
within a period of a hundred years, from the perpetual edict to
the death of Severus Alexander: the civilians who lived under the
first Caesars are seldom permitted to speak, and only three names
can be attributed to the age of the republic. The favorite of
Justinian (it has been fiercely urged) was fearful of
encountering the light of freedom and the gravity of Roman sages.

Tribonian condemned to oblivion the genuine and native wisdom of
Cato, the Scaevolas, and Sulpicius; while he invoked spirits more
congenial to his own, the Syrians, Greeks, and Africans, who
flocked to the Imperial court to study Latin as a foreign tongue,
and jurisprudence as a lucrative profession. But the ministers
of Justinian, ^78 were instructed to labor, not for the curiosity
of antiquarians, but for the immediate benefit of his subjects.
It was their duty to select the useful and practical parts of the
Roman law; and the writings of the old republicans, however
curious on excellent, were no longer suited to the new system of
manners, religion, and government. Perhaps, if the preceptors and
friends of Cicero were still alive, our candor would acknowledge,
that, except in purity of language, ^79 their intrinsic merit was
excelled by the school of Papinian and Ulpian. The science of
the laws is the slow growth of time and experience, and the
advantage both of method and materials, is naturally assumed by
the most recent authors. The civilians of the reign of the
Antonines had studied the works of their predecessors: their
philosophic spirit had mitigated the rigor of antiquity,
simplified the forms of proceeding, and emerged from the jealousy
and prejudice of the rival sects. The choice of the authorities
that compose the Pandects depended on the judgment of Tribonian:
but the power of his sovereign could not absolve him from the
sacred obligations of truth and fidelity. As the legislator of
the empire, Justinian might repeal the acts of the Antonines, or
condemn, as seditious, the free principles, which were maintained
by the last of the Roman lawyers. ^80 But the existence of past
facts is placed beyond the reach of despotism; and the emperor
was guilty of fraud and forgery, when he corrupted the integrity
of their text, inscribed with their venerable names the words and
ideas of his servile reign, ^81 and suppressed, by the hand of
power, the pure and authentic copies of their sentiments. The
changes and interpolations of Tribonian and his colleagues are
excused by the pretence of uniformity: but their cares have been
insufficient, and the antinomies, or contradictions of the Code
and Pandects, still exercise the patience and subtilty of modern
civilians. ^82

[Footnote 78: An ingenious and learned oration of Schultingius
(Jurisprudentia Ante-Justinianea, p. 883 - 907) justifies the
choice of Tribonian, against the passionate charges of Francis
Hottoman and his sectaries.]
[Footnote 79: Strip away the crust of Tribonian, and allow for
the use of technical words, and the Latin of the Pandects will be
found not unworthy of the silver age. It has been vehemently
attacked by Laurentius Valla, a fastidious grammarian of the xvth
century, and by his apologist Floridus Sabinus. It has been
defended by Alciat, and a name less advocate, (most probably
James Capellus.) Their various treatises are collected by Duker,
(Opuscula de Latinitate veterum Jurisconsultorum, Lugd. Bat.
1721, in 12mo.)
Note: Gibbon is mistaken with regard to Valla, who, though
he inveighs against the barbarous style of the civilians of his
own day, lavishes the highest praise on the admirable purity of
the language of the ancient writers on civil law. (M. Warnkonig
quotes a long passage of Valla in justification of this
observation.) Since his time, this truth has been recognized by
men of the highest eminence, such as Erasmus, David Hume and
Runkhenius. - W.]
[Footnote 80: Nomina quidem veteribus servavimus, legum autem
veritatem nostram fecimus. Itaque siquid erat in illis
seditiosum, multa autem talia erant ibi reposita, hoc decisum est
et definitum, et in perspicuum finem deducta est quaeque lex,
(Cod. Justinian. l. i. tit. xvii. leg. 3, No 10.) A frank

Note: Seditiosum, in the language of Justinian, means not
seditious, but discounted. - W.]

[Footnote 81: The number of these emblemata (a polite name for
forgeries) is much reduced by Bynkershoek, (in the four last
books of his Observations,) who poorly maintains the right of
Justinian and the duty of Tribonian.]
[Footnote 82: The antinomies, or opposite laws of the Code and
Pandects, are sometimes the cause, and often the excuse, of the
glorious uncertainty of the civil law, which so often affords
what Montaigne calls "Questions pour l'Ami." See a fine passage
of Franciscus Balduinus in Justinian, (l. ii. p. 259, &c., apud
Ludewig, p. 305, 306.)]

A rumor devoid of evidence has been propagated by the
enemies of Justinian; that the jurisprudence of ancient Rome was
reduced to ashes by the author of the Pandects, from the vain
persuasion, that it was now either false or superfluous. Without
usurping an office so invidious, the emperor might safely commit
to ignorance and time the accomplishments of this destructive
wish. Before the invention of printing and paper, the labor and
the materials of writing could be purchased only by the rich; and
it may reasonably be computed, that the price of books was a
hundred fold their present value. ^83 Copies were slowly
multiplied and cautiously renewed: the hopes of profit tempted
the sacrilegious scribes to erase the characters of antiquity, ^*
and Sophocles or Tacitus were obliged to resign the parchment to
missals, homilies, and the golden legend. ^84 If such was the
fate of the most beautiful compositions of genius, what stability
could be expected for the dull and barren works of an obsolete
science? The books of jurisprudence were interesting to few, and
entertaining to none: their value was connected with present use,
and they sunk forever as soon as that use was superseded by the
innovations of fashion, superior merit, or public authority. In
the age of peace and learning, between Cicero and the last of the
Antonines, many losses had been already sustained, and some
luminaries of the school, or forum, were known only to the
curious by tradition and report. Three hundred and sixty years
of disorder and decay accelerated the progress of oblivion; and
it may fairly be presumed, that of the writings, which Justinian
is accused of neglecting, many were no longer to be found in the
libraries of the East. ^85 The copies of Papinian, or Ulpian,
which the reformer had proscribed, were deemed unworthy of future
notice: the Twelve Tables and praetorian edicts insensibly
vanished, and the monuments of ancient Rome were neglected or
destroyed by the envy and ignorance of the Greeks. Even the
Pandects themselves have escaped with difficulty and danger from
the common shipwreck, and criticism has pronounced that all the
editions and manuscripts of the West are derived from one
original. ^86 It was transcribed at Constantinople in the
beginning of the seventh century, ^87 was successively
transported by the accidents of war and commerce to Amalphi, ^88
Pisa, ^89 and Florence, ^90 and is now deposited as a sacred
relic ^91 in the ancient palace of the republic. ^92

[Footnote 83: When Faust, or Faustus, sold at Paris his first
printed Bibles as manuscripts, the price of a parchment copy was
reduced from four or five hundred to sixty, fifty, and forty
crowns. The public was at first pleased with the cheapness, and
at length provoked by the discovery of the fraud, (Mattaire,
Annal. Typograph. tom. i. p. 12; first edit.)]

[Footnote *: Among the works which have been recovered, by the
persevering and successful endeavors of M. Mai and his followers
to trace the imperfectly erased characters of the ancient writers
on these Palimpsests, Gibbon at this period of his labors would
have hailed with delight the recovery of the Institutes of Gaius,
and the fragments of the Theodosian Code, published by M Keyron
of Turin. - M.]

[Footnote 84: This execrable practice prevailed from the viiith,
and more especially from the xiith, century, when it became
almost universal (Montfaucon, in the Memoires de l'Academie, tom.
vi. p. 606, &c. Bibliotheque Raisonnee de la Diplomatique, tom.
i. p. 176.)]

[Footnote 85: Pomponius (Pandect. l. i. tit. ii. leg. 2)
observes, that of the three founders of the civil law, Mucius,
Brutus, and Manilius, extant volumina, scripta Manilii monumenta;
that of some old republican lawyers, haec versantur eorum scripta
inter manus hominum. Eight of the Augustan sages were reduced to
a compendium: of Cascellius, scripta non extant sed unus liber,
&c.; of Trebatius, minus frequentatur; of Tubero, libri parum
grati sunt. Many quotations in the Pandects are derived from
books which Tribonian never saw; and in the long period from the
viith to the xiiith century of Rome, the apparent reading of the
moderns successively depends on the knowledge and veracity of
their predecessors.]

[Footnote 86: All, in several instances, repeat the errors of the
scribe and the transpositions of some leaves in the Florentine
Pandects. This fact, if it be true, is decisive. Yet the
Pandects are quoted by Ivo of Chartres, (who died in 1117,) by
Theobald, archbishop of Canterbury, and by Vacarius, our first
professor, in the year 1140, (Selden ad Fletam, c. 7, tom. ii. p.
1080 - 1085.) Have our British Mss. of the Pandects been
[Footnote 87: See the description of this original in Brenckman,
(Hist. Pandect. Florent. l. i. c. 2, 3, p. 4 - 17, and l. ii.)
Politian, an enthusiast, revered it as the authentic standard of
Justinian himself, (p. 407, 408;) but this paradox is refuted by
the abbreviations of the Florentine Ms. (l. ii. c. 3, p. 117 -
130.) It is composed of two quarto volumes, with large margins,
on a thin parchment, and the Latin characters betray the band of
a Greek scribe.]

[Footnote 88: Brenckman, at the end of his history, has inserted
two dissertations on the republic of Amalphi, and the Pisan war
in the year 1135, &c.]

[Footnote 89: The discovery of the Pandects at Amalphi (A. D
1137) is first noticed (in 1501) by Ludovicus Bologninus,
(Brenckman, l. i. c. 11, p. 73, 74, l. iv. c. 2, p. 417 - 425,)
on the faith of a Pisan chronicle, (p. 409, 410,) without a name
or a date. The whole story, though unknown to the xiith century,
embellished by ignorant ages, and suspected by rigid criticism,
is not, however, destitute of much internal probability, (l. i.
c. 4 - 8, p. 17 - 50.) The Liber Pandectarum of Pisa was
undoubtedly consulted in the xivth century by the great Bartolus,
(p. 406, 407. See l. i. c. 9, p. 50 - 62.)
Note: Savigny (vol. iii. p. 83, 89) examines and rejects the
whole story. See likewise Hallam vol. iii. p. 514. - M.]

[Footnote 90: Pisa was taken by the Florentines in the year 1406;
and in 1411 the Pandects were transported to the capital. These
events are authentic and famous.]

[Footnote 91: They were new bound in purple, deposited in a rich
casket, and shown to curious travellers by the monks and
magistrates bareheaded, and with lighted tapers, (Brenckman, l.
i. c. 10, 11, 12, p. 62 - 93.)]
[Footnote 92: After the collations of Politian, Bologninus, and
Antoninus Augustinus, and the splendid edition of the Pandects by
Taurellus, (in 1551,) Henry Brenckman, a Dutchman, undertook a
pilgrimage to Florence, where he employed several years in the
study of a single manuscript. His Historia Pandectarum
Florentinorum, (Utrecht, 1722, in 4to.,) though a monument of
industry, is a small portion of his original design.]

It is the first care of a reformer to prevent any future
reformation. To maintain the text of the Pandects, the
Institutes, and the Code, the use of ciphers and abbreviations
was rigorously proscribed; and as Justinian recollected, that the
perpetual edict had been buried under the weight of commentators,
he denounced the punishment of forgery against the rash civilians
who should presume to interpret or pervert the will of their
sovereign. The scholars of Accursius, of Bartolus, of Cujacius,
should blush for their accumulated guilt, unless they dare to
dispute his right of binding the authority of his successors, and
the native freedom of the mind. But the emperor was unable to
fix his own inconstancy; and, while he boasted of renewing the
exchange of Diomede, of transmuting brass into gold, ^93
discovered the necessity of purifying his gold from the mixture
of baser alloy. Six years had not elapsed from the publication
of the Code, before he condemned the imperfect attempt, by a new
and more accurate edition of the same work; which he enriched
with two hundred of his own laws, and fifty decisions of the
darkest and most intricate points of jurisprudence. Every year,
or, according to Procopius, each day, of his long reign, was
marked by some legal innovation. Many of his acts were rescinded
by himself; many were rejected by his successors; many have been
obliterated by time; but the number of sixteen Edicts, and one
hundred and sixty-eight Novels, ^94 has been admitted into the
authentic body of the civil jurisprudence. In the opinion of a
philosopher superior to the prejudices of his profession, these
incessant, and, for the most part, trifling alterations, can be
only explained by the venal spirit of a prince, who sold without
shame his judgments and his laws. ^95 The charge of the secret
historian is indeed explicit and vehement; but the sole instance,
which he produces, may be ascribed to the devotion as well as to
the avarice of Justinian. A wealthy bigot had bequeathed his
inheritance to the church of Emesa; and its value was enhanced by
the dexterity of an artist, who subscribed confessions of debt
and promises of payment with the names of the richest Syrians.
They pleaded the established prescription of thirty or forty
years; but their defence was overruled by a retrospective edict,
which extended the claims of the church to the term of a century;
an edict so pregnant with injustice and disorder, that, after
serving this occasional purpose, it was prudently abolished in
the same reign. ^96 If candor will acquit the emperor himself,
and transfer the corruption to his wife and favorites, the
suspicion of so foul a vice must still degrade the majesty of his
laws; and the advocates of Justinian may acknowledge, that such
levity, whatsoever be the motive, is unworthy of a legislator and
a man.
[Footnote 93: Apud Homerum patrem omnis virtutis, (1st Praefat.
ad Pandect.) A line of Milton or Tasso would surprise us in an
act of parliament. Quae omnia obtinere sancimus in omne aevum.
Of the first Code, he says, (2d Praefat.,) in aeternum valiturum.

Man and forever!]

[Footnote 94: Novellae is a classic adjective, but a barbarous
substantive, (Ludewig, p. 245.) Justinian never collected them
himself; the nine collations, the legal standard of modern
tribunals, consist of ninety-eight Novels; but the number was
increased by the diligence of Julian, Haloander, and Contius,
(Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)]
[Footnote 95: Montesquieu, Considerations sur la Grandeur et la
Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this
occasion he throws aside the gown and cap of a President a

[Footnote 96: Procopius, Anecdot. c. 28. A similar privilege was
granted to the church of Rome, (Novel. ix.) For the general
repeal of these mischievous indulgences, see Novel. cxi. and
Edict. v.]

Monarchs seldom condescend to become the preceptors of their
subjects; and some praise is due to Justinian, by whose command
an ample system was reduced to a short and elementary treatise.
Among the various institutes of the Roman law, ^97 those of Caius
^98 were the most popular in the East and West; and their use may
be considered as an evidence of their merit. They were selected
by the Imperial delegates, Tribonian, Theophilus, and Dorotheus;
and the freedom and purity of the Antonines was incrusted with
the coarser materials of a degenerate age. The same volume which
introduced the youth of Rome, Constantinople, and Berytus, to the
gradual study of the Code and Pandects, is still precious to the
historian, the philosopher, and the magistrate. The Institutes
of Justinian are divided into four books: they proceed, with no
contemptible method, from, I. Persons, to, II. Things, and from
things, to, III. Actions; and the article IV., of Private
Wrongs, is terminated by the principles of Criminal Law. ^*

[Footnote 97: Lactantius, in his Institutes of Christianity, an
elegant and specious work, proposes to imitate the title and
method of the civilians. Quidam prudentes et arbitri aequitatis
Institutiones Civilis Juris compositas ediderunt, (Institut.
Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]

[Footnote 98: The emperor Justinian calls him suum, though he
died before the end of the second century. His Institutes are
quoted by Servius, Boethius, Priscian, &c.; and the Epitome by
Arrian is still extant. (See the Prolegomena and notes to the
edition of Schulting, in the Jurisprudentia Ante-Justinianea,
Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in
Vit. Just. p. 199.)]

[Footnote *: Gibbon, dividing the Institutes into four parts,
considers the appendix of the criminal law in the last title as a
fourth part. - W.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part IV.

The distinction of ranks and persons is the firmest basis of
a mixed and limited government. In France, the remains of
liberty are kept alive by the spirit, the honors, and even the
prejudices, of fifty thousand nobles. ^99 Two hundred families ^!
supply, in lineal descent, the second branch of English
legislature, which maintains, between the king and commons, the
balance of the constitution. A gradation of patricians and
plebeians, of strangers and subjects, has supported the
aristocracy of Genoa, Venice, and ancient Rome. The perfect
equality of men is the point in which the extremes of democracy
and despotism are confounded; since the majesty of the prince or
people would be offended, if any heads were exalted above the
level of their fellow-slaves or fellow-citizens. In the decline
of the Roman empire, the proud distinctions of the republic were
gradually abolished, and the reason or instinct of Justinian
completed the simple form of an absolute monarchy. The emperor
could not eradicate the popular reverence which always waits on
the possession of hereditary wealth, or the memory of famous
ancestors. He delighted to honor, with titles and emoluments,
his generals, magistrates, and senators; and his precarious
indulgence communicated some rays of their glory to the persons
of their wives and children. But in the eye of the law, all
Roman citizens were equal, and all subjects of the empire were
citizens of Rome. That inestimable character was degraded to an
obsolete and empty name. The voice of a Roman could no longer
enact his laws, or create the annual ministers of his power: his
constitutional rights might have checked the arbitrary will of a
master: and the bold adventurer from Germany or Arabia was
admitted, with equal favor, to the civil and military command,
which the citizen alone had been once entitled to assume over the
conquests of his fathers. The first Caesars had scrupulously
guarded the distinction of ingenuous and servile birth, which was
decided by the condition of the mother; and the candor of the
laws was satisfied, if her freedom could be ascertained, during a
single moment, between the conception and the delivery. The
slaves, who were liberated by a generous master, immediately
entered into the middle class of libertines or freedmen; but they
could never be enfranchised from the duties of obedience and
gratitude; whatever were the fruits of their industry, their
patron and his family inherited the third part; or even the whole
of their fortune, if they died without children and without a
testament. Justinian respected the rights of patrons; but his
indulgence removed the badge of disgrace from the two inferior
orders of freedmen; whoever ceased to be a slave, obtained,
without reserve or delay, the station of a citizen; and at length
the dignity of an ingenuous birth, which nature had refused, was
created, or supposed, by the omnipotence of the emperor.
Whatever restraints of age, or forms, or numbers, had been
formerly introduced to check the abuse of manumissions, and the
too rapid increase of vile and indigent Romans, he finally
abolished; and the spirit of his laws promoted the extinction of
domestic servitude. Yet the eastern provinces were filled, in
the time of Justinian, with multitudes of slaves, either born or
purchased for the use of their masters; and the price, from ten
to seventy pieces of gold, was determined by their age, their
strength, and their education. ^100 But the hardships of this
dependent state were continually diminished by the influence of
government and religion: and the pride of a subject was no longer
elated by his absolute dominion over the life and happiness of
his bondsman. ^101
[Footnote 99: See the Annales Politiques de l'Abbe de St. Pierre,
tom. i. p. 25 who dates in the year 1735. The most ancient
families claim the immemorial possession of arms and fiefs.
Since the Crusades, some, the most truly respectable, have been
created by the king, for merit and services. The recent and
vulgar crowd is derived from the multitude of venal offices
without trust or dignity, which continually ennoble the wealthy
[Footnote !: Since the time of Gibbon, the House of Peers has
been more than doubled: it is above 400, exclusive of the
spiritual peers - a wise policy to increase the patrician order
in proportion to the general increase of the nation. - M.]

[Footnote 100: If the option of a slave was bequeathed to several
legatees, they drew lots, and the losers were entitled to their
share of his value; ten pieces of gold for a common servant or
maid under ten years: if above that age, twenty; if they knew a
trade, thirty; notaries or writers, fifty; midwives or
physicians, sixty; eunuchs under ten years, thirty pieces; above,
fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.)
These legal prices are generally below those of the market.]

[Footnote 101: For the state of slaves and freedmen, see
Institutes, l. i. tit. iii. - viii. l. ii. tit. ix. l. iii. tit.
viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit.
i. - iv., and the whole of the xlth book. Code, l. vi. tit. iv.
v. l. vii. tit. i. - xxiii. Be it henceforward understood that,
with the original text of the Institutes and Pandects, the
correspondent articles in the Antiquities and Elements of
Heineccius are implicitly quoted; and with the xxvii. first books
of the Pandects, the learned and rational Commentaries of Gerard
Noodt, (Opera, tom. ii. p. 1 - 590, the end. Lugd. Bat. 1724.)]

The law of nature instructs most animals to cherish and
educate their infant progeny. The law of reason inculcates to
the human species the returns of filial piety. But the
exclusive, absolute, and perpetual dominion of the father over
his children, is peculiar to the Roman jurisprudence, ^102 and
seems to be coeval with the foundation of the city. ^103 The
paternal power was instituted or confirmed by Romulus himself;
and, after the practice of three centuries, it was inscribed on
the fourth table of the Decemvirs. In the forum, the senate, or
the camp, the adult son of a Roman citizen enjoyed the public and
private rights of a person: in his father's house he was a mere
thing; ^!! confounded by the laws with the movables, the cattle,
and the slaves, whom the capricious master might alienate or
destroy, without being responsible to any earthly tribunal. The
hand which bestowed the daily sustenance might resume the
voluntary gift, and whatever was acquired by the labor or fortune
of the son was immediately lost in the property of the father.
His stolen goods (his oxen or his children) might be recovered by
the same action of theft; ^104 and if either had been guilty of a
trespass, it was in his own option to compensate the damage, or
resign to the injured party the obnoxious animal. At the call of
indigence or avarice, the master of a family could dispose of his
children or his slaves. But the condition of the slave was far
more advantageous, since he regained, by the first manumission,
his alienated freedom: the son was again restored to his
unnatural father; he might be condemned to servitude a second and
a third time, and it was not till after the third sale and
deliverance, ^105 that he was enfranchised from the domestic
power which had been so repeatedly abused. According to his
discretion, a father might chastise the real or imaginary faults
of his children, by stripes, by imprisonment, by exile, by
sending them to the country to work in chains among the meanest
of his servants. The majesty of a parent was armed with the
power of life and death; ^106 and the examples of such bloody
executions, which were sometimes praised and never punished, may
be traced in the annals of Rome beyond the times of Pompey and
Augustus. Neither age, nor rank, nor the consular office, nor the
honors of a triumph, could exempt the most illustrious citizen
from the bonds of filial subjection: ^107 his own descendants
were included in the family of their common ancestor; and the
claims of adoption were not less sacred or less rigorous than
those of nature. Without fear, though not without danger of
abuse, the Roman legislators had reposed an unbounded confidence
in the sentiments of paternal love; and the oppression was
tempered by the assurance that each generation must succeed in
its turn to the awful dignity of parent and master.
[Footnote 102: See the patria potestas in the Institutes, (l. i.
tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l.
viii. tit. xlvii. xlviii. xlix.) Jus potestatis quod in liberos
habemus proprium est civium Romanorum. Nulli enim alii sunt
homines, qui talem in liberos habeant potestatem qualem nos

Note: The newly-discovered Institutes of Gaius name one
nation in which the same power was vested in the parent. Nec me
praeterit Galatarum gentem credere, in potestate parentum liberos
esse. Gaii Instit. edit. 1824, p. 257. - M.]

[Footnote 103: Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p.
286) produces the words of the xii. tables. Papinian (in
Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles
this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in
Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus
receptum; and furiosus filium in potestate habebit How sacred -
or rather, how absurd!

Note: All this is in strict accordance with the Roman
character. - W.]
[Footnote !!: This parental power was strictly confined to the
Roman citizen. The foreigner, or he who had only jus Latii, did
not possess it. If a Roman citizen unknowingly married a Latin
or a foreign wife, he did not possess this power over his son,
because the son, following the legal condition of the mother, was
not a Roman citizen. A man, however, alleging sufficient cause
for his ignorance, might raise both mother and child to the
rights of citizenship. Gaius. p. 30. - M.]

[Footnote 104: Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg.
38, No. 1. Such was the decision of Ulpian and Paul.]

[Footnote 105: The trina mancipatio is most clearly defined by
Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best
illustrated in the Antiquities of Heineccius.

Note: The son of a family sold by his father did not become
in every respect a slave, he was statu liber; that is to say, on
paying the price for which he was sold, he became entirely free.
See Hugo, Hist. Section 61 - W.]
[Footnote 106: By Justinian, the old law, the jus necis of the
Roman father (Institut. l. iv. tit. ix. No. 7) is reported and
reprobated. Some legal vestiges are left in the Pandects (l.
xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum
et Mosaicarum, (tit. ii. No. 3, p. 189.)]
[Footnote 107: Except on public occasions, and in the actual
exercise of his office. In publicis locis atque muneribus, atque
actionibus patrum, jura cum filiorum qui in magistratu sunt
potestatibus collata interquiescere paullulum et connivere, &c.,
(Aul. Gellius, Noctes Atticae, ii. 2.) The Lessons of the
philosopher Taurus were justified by the old and memorable
example of Fabius; and we may contemplate the same story in the
style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri
garius the annalist.]

The first limitation of paternal power is ascribed to the
justice and humanity of Numa; and the maid who, with his father's
consent, had espoused a freeman, was protected from the disgrace
of becoming the wife of a slave. In the first ages, when the city
was pressed, and often famished, by her Latin and Tuscan
neighbors, the sale of children might be a frequent practice; but
as a Roman could not legally purchase the liberty of his
fellow-citizen, the market must gradually fail, and the trade
would be destroyed by the conquests of the republic. An
imperfect right of property was at length communicated to sons;
and the threefold distinction of profectitious, adventitious, and
professional was ascertained by the jurisprudence of the Code and
Pandects. ^108 Of all that proceeded from the father, he imparted
only the use, and reserved the absolute dominion; yet if his
goods were sold, the filial portion was excepted, by a favorable
interpretation, from the demands of the creditors. In whatever
accrued by marriage, gift, or collateral succession, the property
was secured to the son; but the father, unless he had been
specially excluded, enjoyed the usufruct during his life. As a
just and prudent reward of military virtue, the spoils of the
enemy were acquired, possessed, and bequeathed by the soldier
alone; and the fair analogy was extended to the emoluments of any
liberal profession, the salary of public service, and the sacred
liberality of the emperor or empress. The life of a citizen was
less exposed than his fortune to the abuse of paternal power.
Yet his life might be adverse to the interest or passions of an
unworthy father: the same crimes that flowed from the corruption,
were more sensibly felt by the humanity, of the Augustan age; and
the cruel Erixo, who whipped his son till he expired, was saved
by the emperor from the just fury of the multitude. ^109 The
Roman father, from the license of servile dominion, was reduced
to the gravity and moderation of a judge. The presence and
opinion of Augustus confirmed the sentence of exile pronounced
against an intentional parricide by the domestic tribunal of
Arius. Adrian transported to an island the jealous parent, who,
like a robber, had seized the opportunity of hunting, to
assassinate a youth, the incestuous lover of his step-mother.
^110 A private jurisdiction is repugnant to the spirit of
monarchy; the parent was again reduced from a judge to an
accuser; and the magistrates were enjoined by Severus Alexander
to hear his complaints and execute his sentence. He could no
longer take the life of a son without incurring the guilt and
punishment of murder; and the pains of parricide, from which he
had been excepted by the Pompeian law, were finally inflicted by
the justice of Constantine. ^111 The same protection was due to
every period of existence; and reason must applaud the humanity
of Paulus, for imputing the crime of murder to the father who
strangles, or starves, or abandons his new-born infant; or
exposes him in a public place to find the mercy which he himself
had denied. But the exposition of children was the prevailing
and stubborn vice of antiquity: it was sometimes prescribed,
often permitted, almost always practised with impunity, by the
nations who never entertained the Roman ideas of paternal power;
and the dramatic poets, who appeal to the human heart, represent
with indifference a popular custom which was palliated by the
motives of economy and compassion. ^112 If the father could
subdue his own feelings, he might escape, though not the censure,
at least the chastisement, of the laws; and the Roman empire was
stained with the blood of infants, till such murders were
included, by Valentinian and his colleagues, in the letter and
spirit of the Cornelian law. The lessons of jurisprudence ^113
and Christianity had been insufficient to eradicate this inhuman
practice, till their gentle influence was fortified by the
terrors of capital punishment. ^114

[Footnote 108: See the gradual enlargement and security of the
filial peculium in the Institutes, (l. ii. tit. ix.,) the
Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv.
tit. xxvi. xxvii.)]

[Footnote 109: The examples of Erixo and Arius are related by
Seneca, (de Clementia, i. 14, 15,) the former with horror, the
latter with applause.]
[Footnote 110: Quod latronis magis quam patris jure eum
interfecit, nam patria potestas in pietate debet non in
atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l.
xlviii. tit. ix. leg.5.)]

[Footnote 111: The Pompeian and Cornelian laws de sicariis and
parricidis are repeated, or rather abridged, with the last
supplements of Alexander Severus, Constantine, and Valentinian,
in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit.
xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv.
xv.,) with Godefroy's Commentary, (tom. iii. p. 84 - 113) who
pours a flood of ancient and modern learning over these penal
[Footnote 112: When the Chremes of Terence reproaches his wife
for not obeying his orders and exposing their infant, he speaks
like a father and a master, and silences the scruples of a
foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit.

[Footnote 113: The opinion of the lawyers, and the discretion of
the magistrates, had introduced, in the time of Tacitus, some
legal restraints, which might support his contrast of the boni
mores of the Germans to the bonae leges alibi - that is to say,
at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes,
l. i. c. 15) refutes his own charges, and those of his brethren,
against the heathen jurisprudence.]

[Footnote 114: The wise and humane sentence of the civilian Paul
(l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is
represented as a mere moral precept by Gerard Noodt, (Opp. tom.
i. in Julius Paulus, p. 567 - 558, and Amica Responsio, p. 591 -
606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii.
p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding
law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p.
318 - 340. Curae Secundae, p. 391 - 427.) In a learned out angry
controversy, the two friends deviated into the opposite
Experience has proved, that savages are the tyrants of the
female sex, and that the condition of women is usually softened
by the refinements of social life. In the hope of a robust
progeny, Lycurgus had delayed the season of marriage: it was
fixed by Numa at the tender age of twelve years, that the Roman
husband might educate to his will a pure and obedient virgin.
^115 According to the custom of antiquity, he bought his bride of
her parents, and she fulfilled the coemption by purchasing, with
three pieces of copper, a just introduction to his house and
household deities. A sacrifice of fruits was offered by the
pontiffs in the presence of ten witnesses; the contracting
parties were seated on the same sheep-skin; they tasted a salt
cake of far or rice; and this confarreation, ^116 which denoted
the ancient food of Italy, served as an emblem of their mystic
union of mind and body. But this union on the side of the woman
was rigorous and unequal; and she renounced the name and worship
of her father's house, to embrace a new servitude, decorated only
by the title of adoption, a fiction of the law, neither rational
nor elegant, bestowed on the mother of a family ^117 (her proper
appellation) the strange characters of sister to her own
children, and of daughter to her husband or master, who was
invested with the plenitude of paternal power. By his judgment
or caprice her behavior was approved, or censured, or chastised;
he exercised the jurisdiction of life and death; and it was
allowed, that in the cases of adultery or drunkenness, ^118 the
sentence might be properly inflicted. She acquired and inherited
for the sole profit of her lord; and so clearly was woman
defined, not as a person, but as a thing, that, if the original
title were deficient, she might be claimed, like other movables,
by the use and possession of an entire year. The inclination of
the Roman husband discharged or withheld the conjugal debt, so
scrupulously exacted by the Athenian and Jewish laws: ^119 but as
polygamy was unknown, he could never admit to his bed a fairer or
a more favored partner.

[Footnote 115: Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa,
p. 140-141.]
[Footnote 116: Among the winter frunenta, the triticum, or
bearded wheat; the siligo, or the unbearded; the far, adorea,
oryza, whose description perfectly tallies with the rice of Spain
and Italy. I adopt this identity on the credit of M. Paucton in
his useful and laborious Metrologie, (p. 517 - 529.)]
[Footnote 117: Aulus Gellius (Noctes Atticae, xviii. 6) gives a
ridiculous definition of Aelius Melissus, Matrona, quae semel
materfamilias quae saepius peperit, as porcetra and scropha in
the sow kind. He then adds the genuine meaning, quae in
matrimonium vel in manum convenerat.]

[Footnote 118: It was enough to have tasted wine, or to have
stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]

[Footnote 119: Solon requires three payments per month. By the
Misna, a daily debt was imposed on an idle, vigorous, young
husband; twice a week on a citizen; once on a peasant; once in
thirty days on a camel-driver; once in six months on a seaman.
But the student or doctor was free from tribute; and no wife, if
she received a weekly sustenance, could sue for a divorce; for
one week a vow of abstinence was allowed. Polygamy divided,
without multiplying, the duties of the husband, (Selden, Uxor
Ebraica, l. iii. c 6, in his works, vol ii. p. 717 - 720.)]

After the Punic triumphs, the matrons of Rome aspired to the
common benefits of a free and opulent republic: their wishes were
gratified by the indulgence of fathers and lovers, and their
ambition was unsuccessfully resisted by the gravity of Cato the
Censor. ^120 They declined the solemnities of the old nuptiais;
defeated the annual prescription by an absence of three days;
and, without losing their name or independence, subscribed the
liberal and definite terms of a marriage contract. Of their
private fortunes, they communicated the use, and secured the
property: the estates of a wife could neither be alienated nor
mortgaged by a prodigal husband; their mutual gifts were
prohibited by the jealousy of the laws; and the misconduct of
either party might afford, under another name, a future subject
for an action of theft. To this loose and voluntary compact,
religious and civil rights were no longer essential; and, between
persons of a similar rank, the apparent community of life was
allowed as sufficient evidence of their nuptials. The dignity of
marriage was restored by the Christians, who derived all
spiritual grace from the prayers of the faithful and the
benediction of the priest or bishop. The origin, validity, and
duties of the holy institution were regulated by the tradition of
the synagogue, the precepts of the gospel, and the canons of
general or provincial synods; ^121 and the conscience of the
Christians was awed by the decrees and censures of their
ecclesiastical rulers. Yet the magistrates of Justinian were not
subject to the authority of the church: the emperor consulted the
unbelieving civilians of antiquity, and the choice of matrimonial
laws in the Code and Pandects, is directed by the earthly motives
of justice, policy, and the natural freedom of both sexes. ^122

[Footnote 120: On the Oppian law we may hear the mitigating
speech of Vaerius Flaccus, and the severe censorial oration of
the elder Cato, (Liv. xxxiv. l - 8.) But we shall rather hear the
polished historian of the eighth, than the rough orators of the
sixth, century of Rome. The principles, and even the style, of
Cato are more accurately preserved by Aulus Gellius, (x. 23.)]
[Footnote 121: For the system of Jewish and Catholic matrimony,
see Selden, Uxor Ebraica, Opp. vol. ii. p. 529 - 860,) Bingham,
(Christian Antiquities, l. xxii.,) and Chardon, (Hist. des
Sacremens, tom. vi.)]

[Footnote 122: The civil laws of marriage are exposed in the
Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv.
xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum
is yet imperfect, we are obliged to explore the fragments of
Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum,
(tit. xvi. p. 790, 791,) with the notes of Pithaeus and
Schulting. They find in the Commentary of Servius (on the 1st
Georgia and the 4th Aeneid) two curious passages.]

Besides the agreement of the parties, the essence of every
rational contract, the Roman marriage required the previous
approbation of the parents. A father might be forced by some
recent laws to supply the wants of a mature daughter; but even
his insanity was not gradually allowed to supersede the necessity
of his consent. The causes of the dissolution of matrimony have
varied among the Romans; ^123 but the most solemn sacrament, the
confarreation itself, might always be done away by rites of a
contrary tendency. In the first ages, the father of a family
might sell his children, and his wife was reckoned in the number
of his children: the domestic judge might pronounce the death of
the offender, or his mercy might expel her from his bed and
house; but the slavery of the wretched female was hopeless and
perpetual, unless he asserted for his own convenience the manly
prerogative of divorce. ^* The warmest applause has been lavished
on the virtue of the Romans, who abstained from the exercise of
this tempting privilege above five hundred years: ^124 but the
same fact evinces the unequal terms of a connection in which the
slave was unable to renounce her tyrant, and the tyrant was
unwilling to relinquish his slave. When the Roman matrons became
the equal and voluntary companions of their lords, a new
jurisprudence was introduced, that marriage, like other
partnerships, might be dissolved by the abdication of one of the
associates. In three centuries of prosperity and corruption, this
principle was enlarged to frequent practice and pernicious abuse.

Passion, interest, or caprice, suggested daily motives for the
dissolution of marriage; a word, a sign, a message, a letter, the
mandate of a freedman, declared the separation; the most tender
of human connections was degraded to a transient society of
profit or pleasure. According to the various conditions of life,
both sexes alternately felt the disgrace and injury: an
inconstant spouse transferred her wealth to a new family,
abandoning a numerous, perhaps a spurious, progeny to the
paternal authority and care of her late husband; a beautiful
virgin might be dismissed to the world, old, indigent, and
friendless; but the reluctance of the Romans, when they were
pressed to marriage by Augustus, sufficiently marks, that the
prevailing institutions were least favorable to the males. A
specious theory is confuted by this free and perfect experiment,
which demonstrates, that the liberty of divorce does not
contribute to happiness and virtue. The facility of separation
would destroy all mutual confidence, and inflame every trifling
dispute: the minute difference between a husband and a stranger,
which might so easily be removed, might still more easily be
forgotten; and the matron, who in five years can submit to the
embraces of eight husbands, must cease to reverence the chastity
of her own person. ^125
[Footnote 123: According to Plutarch, (p. 57,) Romulus allowed
only three grounds of a divorce - drunkenness, adultery, and
false keys. Otherwise, the husband who abused his supremacy
forfeited half his goods to the wife, and half to the goddess
Ceres, and offered a sacrifice (with the remainder?) to the
terrestrial deities. This strange law was either imaginary or
[Footnote *: Montesquieu relates and explains this fact in a
different marnes Esprit des Loix, l. xvi. c. 16. - G.]

[Footnote 124: In the year of Rome 523, Spurius Carvilius Ruga
repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l.
ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii.
c. 1; Aulus Gellius, iv. 3.) He was questioned by the censors,
and hated by the people; but his divorce stood unimpeached in

[Footnote 125: - Sic fiunt octo mariti Quinque per autumnos.
Juvenal, Satir. vi. 20.

A rapid succession, which may yet be credible, as well as the non
consulum numero, sed maritorum annos suos computant, of Seneca,
(de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband
bury his twenty-first wife, who had interred twenty-two of his
less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But
the ten husbands in a month of the poet Martial, is an
extravagant hyperbole, (l. 71. epigram 7.)]

Insufficient remedies followed with distant and tardy steps
the rapid progress of the evil. The ancient worship of the
Romans afforded a peculiar goddess to hear and reconcile the
complaints of a married life; but her epithet of Viriplaca, ^126
the appeaser of husbands, too clearly indicates on which side
submission and repentance were always expected. Every act of a
citizen was subject to the judgment of the censors; the first who
used the privilege of divorce assigned, at their command, the
motives of his conduct; ^127 and a senator was expelled for
dismissing his virgin spouse without the knowledge or advice of
his friends. Whenever an action was instituted for the recovery
of a marriage portion, the proetor, as the guardian of equity,
examined the cause and the characters, and gently inclined the
scale in favor of the guiltless and injured party. Augustus, who
united the powers of both magistrates, adopted their different
modes of repressing or chastising the license of divorce. ^128
The presence of seven Roman witnesses was required for the
validity of this solemn and deliberate act: if any adequate
provocation had been given by the husband, instead of the delay
of two years, he was compelled to refund immediately, or in the
space of six months; but if he could arraign the manners of his
wife, her guilt or levity was expiated by the loss of the sixth
or eighth part of her marriage portion. The Christian princes
were the first who specified the just causes of a private
divorce; their institutions, from Constantine to Justinian,
appear to fluctuate between the custom of the empire and the
wishes of the church, ^129 and the author of the Novels too
frequently reforms the jurisprudence of the Code and Pandects. In
the most rigorous laws, a wife was condemned to support a
gamester, a drunkard, or a libertine, unless he were guilty of
homicide, poison, or sacrilege, in which cases the marriage, as
it should seem, might have been dissolved by the hand of the
executioner. But the sacred right of the husband was invariably
maintained, to deliver his name and family from the disgrace of
adultery: the list of mortal sins, either male or female, was
curtailed and enlarged by successive regulations, and the
obstacles of incurable impotence, long absence, and monastic
profession, were allowed to rescind the matrimonial obligation.
Whoever transgressed the permission of the law, was subject to
various and heavy penalties. The woman was stripped of her
wealth and ornaments, without excepting the bodkin of her hair:
if the man introduced a new bride into his bed, her fortune might
be lawfully seized by the vengeance of his exiled wife.
Forfeiture was sometimes commuted to a fine; the fine was
sometimes aggravated by transportation to an island, or
imprisonment in a monastery; the injured party was released from
the bonds of marriage; but the offender, during life, or a term
of years, was disabled from the repetition of nuptials. The
successor of Justinian yielded to the prayers of his unhappy
subjects, and restored the liberty of divorce by mutual consent:
the civilians were unanimous, ^130 the theologians were divided,
^131 and the ambiguous word, which contains the precept of
Christ, is flexible to any interpretation that the wisdom of a
legislator can demand.

[Footnote 126: Sacellum Viriplacae, (Valerius Maximus, l. ii. c.
1,) in the Palatine region, appears in the time of Theodosius, in
the description of Rome by Publius Victor.]

[Footnote 127: Valerius Maximus, l. ii. c. 9. With some
propriety he judges divorce more criminal than celibacy: illo
namque conjugalia sacre spreta tantum, hoc etiam injuriose

[Footnote 128: See the laws of Augustus and his successors, in
Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P.
i. p. 323 - 333.]
[Footnote 129: Aliae sunt leges Caesarum, aliae Christi; aliud
Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p.
198. Selden, Uxor Ebraica l. iii. c. 31 p. 847 - 853.)]

[Footnote 130: The Institutes are silent; but we may consult the
Codes of Theodosius (l. iii. tit. xvi., with Godefroy's
Commentary, tom. i. p. 310 - 315) and Justinian, (l. v. tit.
xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii.
cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last
between civil and ecclesiastical law.]

[Footnote 131: In pure Greek, it is not a common word; nor can
the proper meaning, fornication, be strictly applied to
matrimonial sin. In a figurative sense, how far, and to what
offences, may it be extended? Did Christ speak the Rabbinical or
Syriac tongue? Of what original word is the translation? How
variously is that Greek word translated in the versions ancient
and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one
(Matthew, xix. 9) that such ground of divorce was not excepted by
Jesus. Some critics have presumed to think, by an evasive answer,
he avoided the giving offence either to the school of Sammai or
to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18 - 22, 28,

Note: But these had nothing to do with the question of a
divorce made by judicial authority. - Hugo.]

The freedom of love and marriage was restrained among the
Romans by natural and civil impediments. An instinct, almost
innate and universal, appears to prohibit the incestuous commerce
^132 of parents and children in the infinite series of ascending
and descending generations. Concerning the oblique and
collateral branches, nature is indifferent, reason mute, and
custom various and arbitrary. In Egypt, the marriage of brothers
and sisters was admitted without scruple or exception: a Spartan
might espouse the daughter of his father, an Athenian, that of
his mother; and the nuptials of an uncle with his niece were
applauded at Athens as a happy union of the dearest relations.
The profane lawgivers of Rome were never tempted by interest or
superstition to multiply the forbidden degrees: but they
inflexibly condemned the marriage of sisters and brothers,
hesitated whether first cousins should be touched by the same
interdict; revered the parental character of aunts and uncles, ^*
and treated affinity and adoption as a just imitation of the ties
of blood. According to the proud maxims of the republic, a legal
marriage could only be contracted by free citizens; an honorable,
at least an ingenuous birth, was required for the spouse of a
senator: but the blood of kings could never mingle in legitimate
nuptials with the blood of a Roman; and the name of Stranger
degraded Cleopatra and Berenice, ^133 to live the concubines of
Mark Antony and Titus. ^134 This appellation, indeed, so
injurious to the majesty, cannot without indulgence be applied to
the manners, of these Oriental queens. A concubine, in the
strict sense of the civilians, was a woman of servile or plebeian
extraction, the sole and faithful companion of a Roman citizen,
who continued in a state of celibacy. Her modest station, below
the honors of a wife, above the infamy of a prostitute, was
acknowledged and approved by the laws: from the age of Augustus
to the tenth century, the use of this secondary marriage
prevailed both in the West and East; and the humble virtues of a
concubine were often preferred to the pomp and insolence of a
noble matron. In this connection, the two Antonines, the best of
princes and of men, enjoyed the comforts of domestic love: the
example was imitated by many citizens impatient of celibacy, but
regardful of their families. If at any time they desired to
legitimate their natural children, the conversion was instantly
performed by the celebration of their nuptials with a partner
whose faithfulness and fidelity they had already tried. ^* By
this epithet of natural, the offspring of the concubine were
distinguished from the spurious brood of adultery, prostitution,
and incest, to whom Justinian reluctantly grants the necessary
aliments of life; and these natural children alone were capable
of succeeding to a sixth part of the inheritance of their reputed
father. According to the rigor of law, bastards were entitled
only to the name and condition of their mother, from whom they
might derive the character of a slave, a stranger, or a citizen.
The outcasts of every family were adopted without reproach as the
children of the state. ^135 ^!

[Footnote 132: The principles of the Roman jurisprudence are
exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and
manners of the different nations of antiquity concerning
forbidden degrees, &c., are copiously explained by Dr. Taylor in
his Elements of Civil Law, (p. 108, 314 - 339,) a work of
amusing, though various reading; but which cannot be praised for
philosophical precision.]

[Footnote *: According to the earlier law, (Gaii Instit. p. 27,)
a man might marry his niece on the brother's, not on the
sister's, side. The emperor Claudius set the example of the
former. In the Institutes, this distinction was abolished and
both declared illegal. - M.]

[Footnote 133: When her father Agrippa died, (A.D. 44,) Berenice
was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l.
xix. c. 9, p. 952, edit. Havercamp.) She was therefore above
fifty years old when Titus (A.D. 79) invitus invitam invisit.
This date would not have adorned the tragedy or pastoral of the
tender Racine.]

[Footnote 134: The Aegyptia conjux of Virgil (Aeneid, viii. 688)
seems to be numbered among the monsters who warred with Mark
Antony against Augustus, the senate, and the gods of Italy.]

[Footnote *: The Edict of Constantine first conferred this right;
for Augustus had prohibited the taking as a concubine a woman who
might be taken as a wife; and if marriage took place afterwards,
this marriage made no change in the rights of the children born
before it; recourse was then had to adoption, properly called
arrogation. - G.]

[Footnote 135: The humble but legal rights of concubines and
natural children are stated in the Institutes, (l. i. tit. x.,)
the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and
the Novels, (lxxiv. lxxxix.) The researches of Heineccius and
Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164 -
175. Opere Posthume, p. 108 - 158) illustrate this interesting
and domestic subject.]

[Footnote !: See, however, the two fragments of laws in the newly
discovered extracts from the Theodosian Code, published by M. A.
Peyron, at Turin. By the first law of Constantine, the
legitimate offspring could alone inherit; where there were no
near legitimate relatives, the inheritance went to the fiscus.
The son of a certain Licinianus, who had inherited his father's
property under the supposition that he was legitimate, and had
been promoted to a place of dignity, was to be degraded, his
property confiscated, himself punished with stripes and
imprisonment. By the second, all persons, even of the highest
rank, senators, perfectissimi, decemvirs, were to be declared
infamous, and out of the protection of the Roman law, if born ex
ancilla, vel ancillae filia, vel liberta, vel libertae filia,
sive Romana facta, seu Latina, vel scaenicae filia, vel ex
tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel
lenonis, aut arenarii filia, vel quae mercimoniis publicis
praefuit. Whatever a fond father had conferred on such children
was revoked, and either restored to the legitimate children, or
confiscated to the state; the mothers, who were guily of thus
poisoning the minds of the fathers, were to be put to the torture
(tormentis subici jubemus.) The unfortunate son of Licinianus, it
appears from this second law, having fled, had been taken, and
was ordered to be kept in chains to work in the Gynaeceum at
Carthage. Cod. Theodor ab. A. Person, 87 - 90. - M.]

Chapter XLIV: Idea Of The Roman Jurisprudence.

Part V.

The relation of guardian and ward, or in Roman words of
tutor and pupil, which covers so many titles of the Institutes
and Pandects, ^136 is of a very simple and uniform nature. The
person and property of an orphan must always be trusted to the
custody of some discreet friend. If the deceased father had not
signified his choice, the agnats, or paternal kindred of the
nearest degree, were compelled to act as the natural guardians:
the Athenians were apprehensive of exposing the infant to the
power of those most interested in his death; but an axiom of
Roman jurisprudence has pronounced, that the charge of tutelage
should constantly attend the emolument of succession. If the
choice of the father, and the line of consanguinity, afforded no
efficient guardian, the failure was supplied by the nomination of
the praetor of the city, or the president of the province. But
the person whom they named to this public office might be legally
excused by insanity or blindness, by ignorance or inability, by
previous enmity or adverse interest, by the number of children or
guardianships with which he was already burdened, and by the
immunities which were granted to the useful labors of
magistrates, lawyers, physicians, and professors. Till the
infant could speak, and think, he was represented by the tutor,
whose authority was finally determined by the age of puberty.
Without his consent, no act of the pupil could bind himself to
his own prejudice, though it might oblige others for his personal
benefit. It is needless to observe, that the tutor often gave
security, and always rendered an account, and that the want of
diligence or integrity exposed him to a civil and almost criminal
action for the violation of his sacred trust. The age of puberty
had been rashly fixed by the civilians at fourteen; ^* but as the
faculities of the mind ripen more slowly than those of the body,
a curator was interposed to guard the fortunes of a Roman youth
from his own inexperience and headstrong passions. Such a
trustee had been first instituted by the praetor, to save a
family from the blind havoc of a prodigal or madman; and the
minor was compelled, by the laws, to solicit the same protection,
to give validity to his acts till he accomplished the full period
of twenty-five years. Women were condemned to the perpetual
tutelage of parents, husbands, or guardians; a sex created to
please and obey was never supposed to have attained the age of
reason and experience. Such, at least, was the stern and haughty
spirit of the ancient law, which had been insensibly mollified
before the time of Justinian.

[Footnote 136: See the article of guardians and wards in the
Institutes, (l. i. tit. xiii. - xxvi.,) the Pandects, (l. xxvi.
xxvii.,) and the Code, (l. v. tit. xxviii. - lxx.)]

[Footnote *: Gibbon accuses the civilians of having "rashly fixed
the age of puberty at twelve or fourteen years." It was not so;
before Justinian, no law existed on this subject. Ulpian relates
the discussions which took place on this point among the
different sects of civilians. See the Institutes, l. i. tit. 22,
and the fragments of Ulpian. Nor was the curatorship obligatory
for all minors. - W.]

II. The original right of property can only be justified by
the accident or merit of prior occupancy; and on this foundation
it is wisely established by the philosophy of the civilians. ^137
The savage who hollows a tree, inserts a sharp stone into a
wooden handle, or applies a string to an elastic branch, becomes
in a state of nature the just proprietor of the canoe, the bow,
or the hatchet. The materials were common to all, the new form,
the produce of his time and simple industry, belongs solely to
himself. His hungry brethren cannot, without a sense of their own
injustice, extort from the hunter the game of the forest
overtaken or slain by his personal strength and dexterity. If
his provident care preserves and multiplies the tame animals,
whose nature is tractable to the arts of education, he acquires a
perpetual title to the use and service of their numerous progeny,
which derives its existence from him alone. If he encloses and
cultivates a field for their sustenance and his own, a barren
waste is converted into a fertile soil; the seed, the manure, the
labor, create a new value, and the rewards of harvest are
painfully earned by the fatigues of the revolving year. In the
successive states of society, the hunter, the shepherd, the
husbandman, may defend their possessions by two reasons which
forcibly appeal to the feelings of the human mind: that whatever
they enjoy is the fruit of their own industry; and that every man
who envies their felicity, may purchase similar acquisitions by
the exercise of similar diligence. Such, in truth, may be the
freedom and plenty of a small colony cast on a fruitful island.
But the colony multiplies, while the space still continues the
same; the common rights, the equal inheritance of mankind. are
engrossed by the bold and crafty; each field and forest is
circumscribed by the landmarks of a jealous master; and it is the
peculiar praise of the Roman jurisprudence, that i asserts the
claim of the first occupant to the wild animals of the earth, the
air, and the waters. In the progress from primitive equity to
final injustice, the steps are silent, the shades are almost
imperceptible, and the absolute monopoly is guarded by positive
laws and artificial reason. The active, insatiate principle of
self-love can alone supply the arts of life and the wages of
industry; and as soon as civil government and exclusive property
have been introduced, they become necessary to the existence of
the human race. Except in the singular institutions of Sparta,
the wisest legislators have disapproved an agrarian law as a
false and dangerous innovation. Among the Romans, the enormous
disproportion of wealth surmounted the ideal restraints of a
doubtful tradition, and an obsolete statute; a tradition that the
poorest follower of Romulus had been endowed with the perpetual
inheritance of two jugera; ^138 a statute which confined the
richest citizen to the measure of five hundred jugera, or three
hundred and twelve acres of land. The original territory of Rome
consisted only of some miles of wood and meadow along the banks
of the Tyber; and domestic exchange could add nothing to the
national stock. But the goods of an alien or enemy were lawfully
exposed to the first hostile occupier; the city was enriched by
the profitable trade of war; and the blood of her sons was the
only price that was paid for the Volscian sheep, the slaves of
Briton, or the gems and gold of Asiatic kingdoms. In the
language of ancient jurisprudence, which was corrupted and
forgotten before the age of Justinian, these spoils were
distinguished by the name of manceps or manicipium, taken with
the hand; and whenever they were sold or emancipated, the
purchaser required some assurance that they had been the property
of an enemy, and not of a fellow- citizen. ^139 A citizen could
only forfeit his rights by apparent dereliction, and such
dereliction of a valuable interest could not easily be presumed.
Yet, according to the Twelve Tables, a prescription of one year
for movables, and of two years for immovables, abolished the
claim of the ancient master, if the actual possessor had acquired
them by a fair transaction from the person whom he believed to be
the lawful proprietor. ^140 Such conscientious injustice, without
any mixture of fraud or force could seldom injure the members of
a small republic; but the various periods of three, of ten, or of
twenty years, determined by Justinian, are more suitable to the
latitude of a great empire. It is only in the term of
prescription that the distinction of real and personal fortune
has been remarked by the civilians; and their general idea of
property is that of simple, uniform, and absolute dominion. The
subordinate exceptions of use, of usufruct, ^141 of servitude,
^142 imposed for the benefit of a neighbor on lands and houses,
are abundantly explained by the professors of jurisprudence. The
claims of property, as far as they are altered by the mixture,
the division, or the transformation of substances, are
investigated with metaphysical subtilty by the same civilians.

[Footnote 137: Institut. l. ii. tit i. ii. Compare the pure and
precise reasoning of Caius and Heineccius (l. ii. tit. i. p. 69 -
91) with the loose prolixity of Theophilus, (p. 207 - 265.) The
opinions of Ulpian are preserved in the Pandects, (l. i. tit.


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