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“We were very pleasant,” says David | its operations, yet Doctors' Commons has Copperfield, “ going down, and Mr. Spenlow hitherto proved itself, in spite of open asgave me some hints in reference to my pro- sault, or secret murmurs, as irremovable as fession. He said it was the genteelest pro- infelix Theseus himself, and survives alike the fession in the world, and must on no account envy of common lawyers and the besoms of be confounded with the profession of a soli- reforming Parliaments. citor: being quite another sort of thing, We have no intention however of arguing infinitely more exclusive, less mechanical, and either for or against the practice or doctrines more profitable. We took things much more of civilians. We side neither with the Capueasily in the Commons than they could be lets of the Temple, nor the Montagues of the taken anywhere else,' he observed, “and Court of Arches. We have no objection to that, sir, as a privileged class, apart ..... the thriving business of Spenlow, Jorkins Discontented people might talk of corruption and Co. Our purpose is to take occasion, in the Commons, closeness in the Commons, from Mr, Sandar's careful edition of Justin. and the necessity of reforming the Commons,' ian's Institutes, to survey briefly the origin, said Mr. Spenlow, solemnly, in conclusion, progress, and fortunes of a system of laws 'but when the price of wheat per bushel which were once imposed upon the whole had been highest, the Commons had been civilized world, and have proved of more perbusiest; and a man might lay his hand upon durable stuff than the Empire of Rome itself.' his heart and say this to the whole world- The Romans were essentially a litigious Touch the Commons and down comes the people, both in a good and a bad sense of country.'

the word. On the one hand, they were This genteel and indispensable business, deeply impressed with the majesty of law, which Mr. Spenlow describes with such unc- as a controlling idea ; on the other, they tion, is among the residues of a large and were childishly prone to dabble with its thriving concern which at one time employed quibbles and formularies. Next to his landthe talents and the midnight oil of the stu- lord, Dandie Dinmont reverenced a great dents and Universities of half Europe. The lawyer; and next to his general, the Roman Roman or Civil Law, as it is exhibited in the held in honor the gentlemen of the gown. system of Justinian, was for centuries wholly, it must be admitted indeed that the military and still is partially, the rule of all tribunals and legal professions were not kept apart in in Italy, Spain, and the South of France. those days. The peace-loving Cicero donned It forms the acknowledged basis of decision a cuirass; Cæsar was hardly less celebrated in all the German courts of justice, and en- as a pleader than as a captain; and even ters deeply into the principles of Scottish families in which, like that of the Mucii, jurisprudence. In England indeed its recep- legal knowledge was an heirloom, added tion has been limited, and always watched ovations and triumphs to their forensic lau. with jealousy, for its maxims were incom- rels. It may be questioned, however, patible with the system earlier established in whether the Scipios were a more popular our courts of law. But even here, in con- house than the Scævole. The farmer who nexion with the canon law, it has niched brought an action of trespass against his itself securely; and although marriage and neighbor, or Caius of the Vicus Tuscas, who inheritance, death and birth—and conse- lodged an appeal against Titius for obstructquently mankind in general—are affected by ing his watercourse, might hear with indiffer* The Institutes of Justinian, with English Intro: of them would anxiously await the hour

ence of the blockade of Carthage; but both duction. Translation and Notes by Thomas Collet Sandars, M.A. London: John W. Parker ard Son.

when Scævola took his seat in the portico ready to adjudicate or advise. Even if the

1853.

Roman commoner could read, be bad no Cabi. no means disinclined to a joke at the cloth, net Lawyer or Archbold's Practice to refer“ by the remembrance of old words and the to. He depended upon the oral counsel of portraits of ancient manners; they inculcate the professor for the minutest formulary or the soundest principles of government and symbol of his case. The return he gave for morals; and I am not afraid to affirm, that gratuitous advice was his vote; and as every the brief composition of the Decemvirs surRoman of family aspired to the honors of the passes in genuine value the libraries of Grecommonwealth, most Romans, not utterly cian philosophy.” obscure, acquainted themselves with the When such were the rewards of legal procommon rules and practice of the law. Our ficiency, and such the litigious character of own civil and criminal processes are suffi- the people, it may be readily conceived that ciently mysterious to the uninitiated. An there was actually but one civil profession at attorney may be an evil, but there is a worse Rome. Over the clergy a tight hand was evil under the sun than an attorney—the law kept. The pontiffs were nearly as much itself interpreted by the client. But at Rome secular as sacerdotal personages; the chiefs the peril of managing your own cause was of the sacred colleges alone were subjected infinitely greater. To attempt it was pro- to spiritual restraints. They were rarely alclaiming yourself fit for a gaol or Bedlam- lowed to be absent from their dioceses ; and it was so shrouded by symbols, so fenced by one especially, the Flamen Dialis, or Bishop indispensable forms. Hence Rome, if the of Rome, in respect of Jupiter Maximus, its Gehenna of debtors, was the Paradise of law- presiding deity, was forbidden to sleep three yers. Every jurisconsult was, in respect of nights together out of his own house in the his client, an absolute king. He required Via Sacra. The soothsayers and augurs comtheir votes once in a year; but they needed manded as little respect as the French abbés his wisdom every market-day. At such sea- in the year 1790. Politically, indeed, they sons the masters of the art were seen walk- were useful. They were employed in breaking in the forum, ready to impart their ing up an assembly, as soon as the brick bats advice to the meanest of their fellow-citizens; began to fly about the rostrum, or when a and thus indirectly canvassing them for the decision unfavorable to the senate seemed next election. As their years and honors inevitable. But both ethically and theologicincreased, they seated themselves at home, ally these reverend gentlemen were regarded at the entrance of their houses, to expect as little better than priests of Mumbo-jumbo; with patient gravity the visits of their clients, and a Roman paterfamilias would have been who at the dawn of day, from the town and less surprised by a speech from an ox, than country, began to thunder at their door. by word of admonition from a clergyman. The duties of social life, and the incidents of With the medical profession it fared even judicial proceeding, were the ordinary sub

Considering their incessant wars, jects of these consultations, and the verbal and their nearly as frequent rows in the foor written opinions of the jurisconsults were rum, the Quirites must have stood often in framed according to the rules of ethics or need of surgery; yet surgeons are rarely law. The groups in the porch partook of the named, and never with honor, either in Latin character of a school. The youths of their writings or inscriptions. Antonius Musa had own order and family were permitted to probably in his day the most extensive praclisten, and the knowledge of the elders was tice in Rome, yet had he not luckily cured transmitted and inculcated with oracular pre-Augustus of a tertian ague by the applicacision and authority. The professors were tion of a cold shower-bath, he would have enthusiasts in their way. Our devotees to shared the oblivion of all his other patients. Coke and Lyttleton seldom affect to regard As for physicians generally, their civil status their writings as graceful or attractive. An was below that of the meanest free inhabEnglish lawyer seeks intellectual relaxation, | itant of the Saburra. He was sometimes it not in the Statutes at Large, but in ancient freedman, but mostly a slave ; and he was or modern literature. But the Romans af- employed in offices which cone but a slave firmed the study of the law to be in itself would have undertaken. The most innocent pleasant and attractive. The twelve tables of his duties, was the preparation of perwere committed to the memory of the young fumes; but he was often called upon by his and the meditations of the old. They were patron, or bis patron's lady, to concoct a dose studied both for immediate objects and as of poison, either for the purpose of suicide, arcbæological curiosities. “They amuse the or for the removal of an objectionable neighmind,” says Cicero, who, however, was by bor or rival. The profession of the law was indeed in all respects paramount, both under schools were not merely familiar to the Rothe Commonwealth and the Empire. The man magistrates, but liberally employed as lawyer entered into a profitable partnership the ground work of their laws by the most with the orator, and in their combined char- celebrated legislators. The collections of acter they found plenty of business, both in Justinian bear manifold traces of the influthe civil and criminal courts.

worse.

ence of the Stoics; and prætors and proconWhen law was so much in demand, and suls modified their decisions by their respecits professors "so loved and honored," it is tive predilections for the Academic and Epinot surprising that the Roman statutes at curean sects. We do not know whether large attained, even at an early period, a their metaphysical tastes improved their legal most inconvenient bulk. The national genius acumen; but they certainly imparted to the was unimaginative in art and literature. Il body of the Roman law a dignity, coherence, was led in triumph by the Greeks. It had and an ethical tone which we shall vainly even condescended to borrow from the less seek in more recent codes. The Stoical phiinventive Etruscans. But in matters of the losophy, which steeled its professors against law, whether the weightier or the merely the tyranny of the emperors, by instructing formal, it was quick, apprehensive, and “for them to view life and death, evil report and getive.” To devise a new law was almost good report, exile and the rack, as accidents as essential to the reputation of a candidate of mortality, particularly affected the legislafor civil honors at Rome, as a speech in Par. tion of Rome after the accession of Tiberius; liament to that of an English or American nor until Christianity had supplied a higher representative. But the lex scripta was not rule of action, do the traces of the Porch the only addition to the statute-book. The vanish from the laws of Rome. When in the prætors inaugurated their administration with twelfth century the study of civil law revived a programme of the rules which they intend in Europe, its professors naturally imbibed ed to observe in the exercise of their office; many of its philosophical doctrines; and the and the prætorian decisions—or oral law of Christian schools of Bologna and Montpelier the home and foreiga magistrates-were as often afforded the singular spectacle of a various as the characters of their authors, fierce dispute between the followers of Epiand yearly added to the inextricable maze of curus and Zeno. laws. To abridge and codify this heteroge- The Christianized empire of Rome conneous mass of ordinances was a favorite pro- tinued to be governed by the principles of its ject with all the reformers of Rome, from the pagan legislators; and though the instituGracchi to Julius Cæsar. More than one of tions of marriage, slavery, and public worsbip the emperors, whose rescripts augmented the were modified by the new creed, the laws evil, attempted to remedy it; but it was re- which awarded the penalties of crime or served for the indefatigable and ubiquitous regulated the succession and distribution of Hadrian to accomplish the design. His Per property, still reflected the age of the De. petual Edict is sufficient alone, if other me. cemvirs and the Scævolæ. But the new morials were wanting, to immortalize his wine was visibly impairing the old vessels ; reign. This well-digested code at once put the inconsistency between the religion and an end to the vague and arbitrary jurisdic- jurisprudence of the state was with each tion of the provincial governors. It sup generation becoming more apparent, and the

. planted the twelve tables as the standard of rent was made wider by the growing pretenjurisprudence; and if it did not materially sions of the church to control the decisions improve the theory of law, it at least con- of the secular courts. In the reign of Theoferred upon suitors the invaluable boon of dosius, the first attempt was made on a large uniform and invariable practice.

scale to reconcile the inconsistencies, diminish The precepts of philosophy seldom if ever the bulk, and define the rules of the Roman affect the forms or principles of jurisprudence law. The emperor sought to lighten the in this country. A barrister who should duties of the judge by an edict which estab profess to be guided by the doctrines of He- lished five civilians as the oracles of legal gel or Schelling would probably in a single decision. Caius, Paul, Ulpian and Modeslerm find himself briefless. Judges occa- tinus were regarded as equal authorities; but sionally cite Latin in their charges to the the distinction was reserved for Papinian of grand jury; but a chief or puisnè avowing deciding in all cases where they disagreed. himself to be a disciple of Kant or Reid, The task however was still incompletely perwould be regarded by the bar as “fatuus ac formed: the bracles not only often differed furiosus.” But the maxims of the Grecian | irreconcilably with one another, but bad ex

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pressed their opinions so voluminously, as to the Commonwealth they were active politiimpede materially the course of justice and cal partisans ; under the Empire, when poliimpose intolerable burdens upon the skill or tics were nearly extinct, they created schisms conscience of the judges. Justinian, on his of their own. There was indeed fair ground accession to the throne, was compelled either for fighting ; laws and language are ambiguto bridge over and consolidate the chaos of ous and arbitrary: positive institutions are laws and legal opinions which had accumu- often the result of custom and prejudice ; the lated in the space of ten centuries, or to sub- voice of reason is less frequently audible in mit to all the evils of a virtual anarchy. court than the clamor of argument, and the Though himself an Illyrian soldier, he was love of argument is inflamed by the envy of no mean adept in the science of jurispru- rivals, the vanity of masters, and the partial dence; and if he confided to others the reverence of disciples. The quarrels of the labor of selection and condensation, yet for long robe were sometimes also the mask of his choice of the most able civilians, he de political sentiments. The Augustan age proserves to be applauded as the founder of a duced two luminaries of the law, one of whom, new era in the Roman law. His “ Corpus Ateius Capito, was a high Tory, and the Juris Civilis" lacks indeed the harmony and other, Antistius Labeo, a sturdy Whig. Laprecision of the code. It was not the reflec-beo was attached to the form of the old re. tion of one great mind, but the converging public, and indulged, in common with a large rays of the legal experience of nearly a minority of the senate, in dreams of its resthousand years.

It was impossible to cancel toration. Capito, possibly from conviction the legislation of centuries without shaking that monarchy was essential to the security to their centre the foundations of bis empire. of the empire, was the advocate of innovaIt might have been practical still further to tion and of the Cæsar. Yet both were rigid reduce the mass of materials, or to arrange conservators of the formularies of their pro. them on more scientific principles. But the fession; and although Labeo indulged in work was to be done quickly; the number opposition to the government, he adhered and weight of discordant rules were enor- strictly to the letter of the statute book, and mous, and we may rather marvel at the was less accessible than his rival to the apcomparative harmony of Justinian's statute peals of equity. The founders of these book, than cavil at the incoherences of its opposite schools however did not give their structure.

own names to their respective sects. The But we should earn little gratitude from schools were denominated from two of their our readers were we to conduct them into later leaders, Sabinus and Proculius, until the labyrinth of obscure and tedious records these two were supplanted by the yet more which contain the history of Justinian's laws recent influence of Pegasus and Cassius. The —their reception at the time, their fortunes Pegasians and Cassians exbibited a strange afterwards. The names, or at least the writ- anomaly: for the liberal lawyers were repreings of its sages and commentators, are rap- sented by Pegasus, a supple courtier of Doidly pussing into oblivion. The stream of mitian, while Cassius, who gloried in his deliterature has nearly deserted a channel into scent from Cæsar's assassin, was the chief of which at one time both philosophy and learn the imperial party. The conflict between the ing poured their choicest and most copious Proculians and Sabinians endured from the stores. Even in Spain, where improvement age of Augustus to that of Hadrian, when moves tardily, the influence of Accursius, the publication of the Perpetual Edict modiBaldus and Cujacius is on the decline, while fied or removed many of the causes of this in the rest of Europe the studies which once long controversy. The vestiges of these absorbed the favors of monarchs, and confer- schisms however remain deeply imbedded in red the most brilliant of reputations, have the laws of Justinian, where, like the impressfallen into neglect, or lurk in obscure or re- ions of the strange plants and animals which mote corners.

preceded man on this earth, they still record Yet there are some salient points in the ihe legal revolutions of the Roman bar. history of the civilians which, as characteris- The Perpetual Edict, although it silenced tic of the feelings or the manners of the past, the parties, did not remove the discrepancies we shall now briefly survey. The quarrels of the law. The Gregorian, Hermogenian, of lawyers have not been treated of even by and Theodosian Codes which succeeded it, Mr. Disraeli.

are replete with contradictions, and the mass The civil lawyers, it must be owned, from of obsolete and superfluous legislation which the earliest ages belied their name. Under had accumulated in the course of ten centu

VOL. XXXIV.-NO. III.

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1

ries, might have reconciled Lord Eldon him seconded or even surpassed by those of some
self to a revision of the statute-book. But of his ministers; and the last triumphs of the
although Justinian may be justly applauded Roman arms were achieved by his generals,
as having in a great measure brought back Narses and Belisarius. But he could only
the law to a uniform standard, practical at the temporarily revive the dormant and decayed
tribunals and intelligible to the professors, forces of bis empire. Within another cen-
his codification by no means escaped the cen- tury its fairest provinces were swept away
sure either of his own time or of posterity. from it by the Saracens on the one side, and
His position was not favorable for the task. the Teutonic tribes on the other; and the
The despotism of the early Cæsars, which dominions of the Byzantine Cæsars were re-
was more frequently the result of individual duced to a third of the territory which Trajan
caprice or crime than of any regular system, ruled and Diocletian partitioned. The laws
had become in the seventh century of our of Rome however survived its arms. The
era, and at the Byzantine court, an organized Arabian conquerors indeed introduced a sys.
absolutism. The Cæsar stood in awe of the tem of religion and jurisprudence which was
church alone, and the church was more zeal. irreconcilable with the creed or the code of
ous for the orthodoxy than for the civil lib. the vanquished. But the more generous bar-
erty of its subjects. It bitterly and pow. barians of the north, brought with them the
erfülly resented every attempt to relax the rudiments of a liberal civil policy, which,
fetters of its Arian or Athanasian creeds, but though irregular, like their freedom, was yet
it looked without emotion upon the exactions capable of organization, and amalgamated
and oppressions of the civil or military power. readily with the nobler and worthier elements
The Byzantine Cæsar could ill afford to re- of the Roman law. The Franks, Burgun-
vive in his laws even the echoes of republican dians, and Ostrogoths were sufficiently civil-
freedom ; it was dangerous to repeat the ized to embrace with zeal all that was avail.
language of Scævola and Sulpicius; and in able to them in the legal system of Rome;
his selection of ancient laws, he went no fur- and while they rejected the emasculate vices
ther back than the reign of Hadrian. It was of the conquered, acknowledged their profi-
urged, and with reason, against the new ciency in the arts of administration and juris-
Code, that its compilers, and Tribonian espe. prudence.
cially, condemned to silence the genuine and It was greatly to the advantage of the
native wisdom of the sages of the republic: freedom and civilization of Europe that the
the civilians who lived under the first Cæsars unwieldy mass of the empire was broken up
were seldom permitted to speak, while the into smaller kingdoms, and in some instances
Syrian, Greek, and African foreigners, who into petty states. A horde of barbarians,
made law a trade, and regarded servility as like the followers of Genghis Khan, would
a duty, were admitted as the authentic expo- have reacted the despotism without correct-
nents of the science which they disgraced. ing the vices of Byzantine Rome. The aged
It was perhaps as fairly urged in reply, that and withered trunk of the Empire demanded
the maxims of elder and better ages were for its restoration many independent grafts ;
useless to a corrupt court and a degraded and its servile uniformity could be remedied
people, that the theories of the philosophers alone by the separate resuscitation of its frag-
were superseded by the gospel, and that ments. We may deplore the mingled vio-
Justinian conferred upon his subjects the only lence and feebleness of the feudal system-
boon within his power-uniformity of prac- its capricious laws—its essential anarchy-
tice in their civil and criminal affairs. The yet its very vices were effective remedies to
boon indeed was incomplete: either from the more cumbrous evil which they super-
haste or carelessness the code and pandects seded. From the chaos of despotism arose
abound in contradictions; and their antino. once more living communities, as instinct with
mies, or opposite laws, still exercise the inge- life, if less attractive in form, than the Greek
nuity, and increase the profits of modern and Italian republics, which Macedon and
civilians.

Rome respectively absorbed. The divisions There is perbaps no period in the annals of of the feudal system were, in great measure, mankind so melancholy and confused as that healed by the unity of the church ; and at of the four centuries which succeeded Justin - periods when war was the normal condition ian's death. That emperor, although a timid of mankind, and the strong hand was almost and superstitious bigot in whatever related the only arbiter of right and wrong in secuto the church, was a vigilant, active, and effi- lar matters, the progress of crime and cruelty cient statesman. His own abilities were was arrested by tribunals, which professing

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