From Fraser's Magazine.

THE OLD CIVILIANS.*

"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, infinitely more exclusive, less mechanical, and more profitable. We took things much more easily in the Commons than they could be taken anywhere else,' he observed, 'and that, sir, as a privileged class, apart..... Discontented people might talk of corruption in the Commons, closeness in the Commons, and the necessity of reforming the Commons,' said Mr. Spenlow, solemnly, in conclusion, but when the price of wheat per bushel had been highest, the Commons had been busiest; and a man might lay his hand upon his heart and say this to the whole world— Touch the Commons and down comes the country.'

This genteel and indispensable business, which Mr. Spenlow describes with such unction, is among the residues of a large and thriving concern which at one time employed the talents and the midnight oil of the students and Universities of half Europe. The Roman or Civil Law, as it is exhibited in the system of Justinian, was for centuries wholly, and still is partially, the rule of all tribunals in Italy, Spain, and the South of France. It forms the acknowledged basis of decision in all the German courts of justice, and enters deeply into the principles of Scottish jurisprudence. In England indeed its reception has been limited, and always watched with jealousy, for its maxims were incompatible with the system earlier established in our courts of law. But even here, in connexion with the canon law, it has niched itself securely; and although marriage and inheritance, death and birth-and consequently mankind in general—are affected by

The Institutes of Justinian, with English Introduction. Translation and Notes by Thomas Collet Sandars, M.A. London: John W. Parker and Son,

1853.

We have no intention however of arguing either for or against the practice or doctrines of civilians. We side neither with the Capulets of the Temple, nor the Montagues of the Court of Arches. We have no objection to the thriving business of Spenlow, Jorkins and Co. Our purpose is to take occasion, from Mr, Sandar's careful edition of Justinian's Institutes, to survey briefly the origin, progress, and fortunes of a system of laws which were once imposed upon the whole civilized world, and have proved of more perdurable stuff than the Empire of Rome itself.

The Romans were essentially a litigious people, both in a good and a bad sense of the word. On the one hand, they were deeply impressed with the majesty of law, as a controlling idea; on the other, they were childishly prone to dabble with its quibbles and formularies. Next to his landlord, Dandie Dinmont reverenced a great lawyer; and next to his general, the Roman held in honor the gentlemen of the gown. It must be admitted indeed that the military and legal professions were not kept apart in those days. The peace-loving Cicero donned a cuirass; Cæsar was hardly less celebrated as a pleader than as a captain; and even families in which, like that of the Mucii, legal knowledge was an heirloom, added ovations and triumphs to their forensic lau rels. It may be questioned, however, whether the Scipios were a more popular house than the Scævolæ. The farmer who brought an action of trespass against his neighbor, or Caius of the Vicus Tuscas, who lodged an appeal against Titius for obstructing his watercourse, might hear with indifference of the blockade of Carthage; but both of them would anxiously await the hour when Scævola took his seat in the portico ready to adjudicate or advise. Even if the

no means disinclined to a joke at the cloth, "by the remembrance of old words and the portraits of ancient manners; they inculcate the soundest principles of government and morals; and I am not afraid to affirm, that the brief composition of the Decemvirs surpasses in genuine value the libraries of Grecian philosophy."

When such were the rewards of legal proficiency, and such the litigious character of the people, it may be readily conceived that there was actually but one civil profession at Rome. Over the clergy a tight hand was kept. The pontiffs were nearly as much secular as sacerdotal personages; the chiefs of the sacred colleges alone were subjected to spiritual restraints. They were rarely al

Roman commoner could read, he had no Cabinet Lawyer or Archbold's Practice to refer to. He depended upon the oral counsel of the professor for the minutest formulary or symbol of his case. The return he gave for gratuitous advice was his vote; and as every Roman of family aspired to the honors of the commonwealth, most Romans, not utterly obscure, acquainted themselves with the common rules and practice of the law. Our own civil and criminal processes are sufficiently mysterious to the uninitiated. An attorney may be an evil, but there is a worse evil under the sun than an attorney-the law itself interpreted by the client. But at Rome the peril of managing your own cause was infinitely greater. To attempt it was proclaiming yourself fit for a gaol or Bedlam-lowed to be absent from their dioceses; and it was so shrouded by symbols, so fenced by indispensable forms. Hence Rome, if the Gehenna of debtors, was the Paradise of lawyers. Every jurisconsult was, in respect of his client, an absolute king. He required their votes once in a year; but they needed his wisdom every market-day. At such seasons the masters of the art were seen walking in the forum, ready to impart their advice to the meanest of their fellow-citizens; and thus indirectly canvassing them for the next election. As their years and honors increased, they seated themselves at home, at the entrance of their houses, 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 subjects of these consultations, and the verbal or written opinions of the jurisconsults were framed according to the rules of ethics or law. The groups in the porch partook of the character of a school. The youths of their own order and family were permitted to listen, and the knowledge of the elders was transmitted and inculcated with oracular precision and authority. The professors were enthusiasts in their way. Our devotees to Coke and Lyttleton seldom affect to regard their writings as graceful or attractive. An English lawyer seeks intellectual relaxation, not in the Statutes at Large, but in ancient or modern literature. But the Romans firmed the study of the law to be in itself pleasant and attractive. The twelve tables were committed to the memory of the young and the meditations of the old. They were studied both for immediate objects and as archæological curiosities. "They amuse the mind," says Cicero, who, however, was by

one especially, the Flamen Dialis, or Bishop of Rome, in respect of Jupiter Maximus, its presiding deity, was forbidden to sleep three nights together out of his own house in the Via Sacra. The soothsayers and augurs commanded as little respect as the French abbés in the year 1790. Politically, indeed, they were useful. They were employed in breaking up an assembly, as soon as the brickbats began to fly about the rostrum, or when a decision unfavorable to the senate seemed inevitable. But both ethically and theologically these reverend gentlemen were regarded as little better than priests of Mumbo-jumbo; and a Roman paterfamilias would have been less surprised by a speech from an ox, than by word of admonition from a clergyman. With the medical profession it fared even worse. Considering their incessant wars, and their nearly as frequent rows in the forum, the Quirites must have stood often in need of surgery; yet surgeons are rarely named, and never with honor, either in Latin writings or inscriptions. Antonius Musa had probably in his day the most extensive practice in Rome, yet had he not luckily cured Augustus of a tertian ague by the application of a cold shower-bath, he would have shared the oblivion of all his other patients. As for physicians generally, their civil status was below that of the meanest free inhabitant of the Saburra. He was sometimes a freedman, but mostly a slave; and he was af-employed in offices which none but a slave would have undertaken. The most innocent of his duties, was the preparation of perfumes; but he was often called upon by his patron, or his patron's lady, to concoct a dose of poison, either for the purpose of suicide, or for the removal of an objectionable neighbor or rival. The profession of the law was

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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 his empire. Within another cenhis codification by no means escaped the century its fairest provinces were swept away sure either of his own time or of posterity. His position was not favorable for the task. The despotism of the early Cæsars, which was more frequently the result of individual caprice or crime than of any regular system, had become in the seventh century of our era, and at the Byzantine court, an organized absolutism. The Cæsar stood in awe of the church alone, and the church was more ous for the orthodoxy than for the civil liberty of its subjects. It bitterly and powerfully resented every attempt to relax the fetters of its Arian or Athanasian creeds, but it looked without emotion upon the exactions and oppressions of the civil or military power. The Byzantine Cæsar could ill afford to revive in his laws even the echoes of republican freedom; it was dangerous to repeat the language of Scævola and Sulpicius; and in his selection of ancient laws, he went no further back than the reign of Hadrian. It was urged, and with reason, against the new Code, that its compilers, and Tribonian especially, condemned to silence the genuine and native wisdom of the sages of the republic: the civilians who lived under the first Cæsars were seldom permitted to speak, while the Syrian, Greek, and African foreigners, who made law a trade, and regarded servility as a duty, were admitted as the authentic exponents of the science which they disgraced. It was perhaps as fairly urged in reply, that the maxims of elder and better ages were useless to a corrupt court and a degraded people, that the theories of the philosophers were superseded by the gospel, and that Justinian conferred upon his subjects the only boon within his power-uniformity of practice in their civil and criminal affairs. The boon indeed was incomplete: either from haste or carelessness the code and pandects abound in contradictions; and their antinomies, or opposite laws, still exercise the ingenuity, and increase the profits of modern civilians.

from it by the Saracens on the one side, and the Teutonic tribes on the other; and the dominions of the Byzantine Cæsars were reduced to a third of the territory which Trajan ruled and Diocletian partitioned. The laws of Rome however survived its arms. The Arabian conquerors indeed introduced a system of religion and jurisprudence which was zeal-irreconcilable with the creed or the code of the vanquished. But the more generous barbarians of the north, brought with them the rudiments of a liberal civil policy, which, though irregular, like their freedom, was yet capable of organization, and amalgamated readily with the nobler and worthier elements of the Roman law. The Franks, Burgundians, and Ostrogoths were sufficiently civilized to embrace with zeal all that was available to them in the legal system of Rome; and while they rejected the emasculate vices of the conquered, acknowledged their proficiency in the arts of administration and jurisprudence.

There is perhaps no period in the annals of mankind so melancholy and confused as that of the four centuries which succeeded Justinian's death. That emperor, although a timid and superstitious bigot in whatever related to the church, was a vigilant, active, and efficient statesman. His own abilities were

It was greatly to the advantage of the freedom and civilization of Europe that the unwieldy mass of the empire was broken up into smaller kingdoms, and in some instances into petty states. A horde of barbarians, like the followers of Genghis Khan, would have reacted the despotism without correcting the vices of Byzantine Rome. The aged and withered trunk of the Empire demanded for its restoration many independent grafts; and its servile uniformity could be remedied alone by the separate resuscitation of its fragments. We may deplore the mingled violence and feebleness of the feudal system— its capricious laws-its essential anarchyyet its very vices were effective remedies to the more cumbrous evil which they superseded. From the chaos of despotism arose once more living communities, as instinct with life, if less attractive in form, than the Greek and Italian republics, which Macedon and Rome respectively absorbed. The divisions of the feudal system were, in great measure, healed by the unity of the church; and at periods when war was the normal condition of mankind, and the strong hand was almost the only arbiter of right and wrong in secular matters, the progress of crime and cruelty was arrested by tribunals, which professing