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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 worldTouch the Commons and down comes the country.'
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
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.
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."
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 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- worse. 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 a 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 none 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 his patron's lady, to concoct a dose studied both for immediate objects and as of poison, either for the purpose of suicide, archæological 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 | the Commonwealth and the Empire. The lawyer entered into a profitable partnership with the orator, and in their combined character they found plenty of business, both in the civil and criminal courts.
When law was so much in demand, and its professors "so loved and honored," it is not surprising that the Roman statutes at large attained, even at an early period, a most inconvenient bulk. The national genius was unimaginative in art and literature. It was led in triumph by the Greeks. It had even condescended to borrow from the less inventive Etruscans. But in matters of the law, whether the weightier or the merely formal, it was quick, apprehensive, and "forgetive." To devise a new law was almost as essential to the reputation of a candidate for civil honors at Rome, as a speech in Parliament to that of an English or American representative. But the lex scripta was not the only addition to the statute-book. The prætors inaugurated their administration with a programme of the rules which they intend ed to observe in the exercise of their office; and the prætorian decisions-or oral law of the home and foreign magistrates-were as various as the characters of their authors, and yearly added to the inextricable maze of laws. To abridge and codify this heterogeneous mass of ordinances was a favorite project with all the reformers of Rome, from the Gracchi to Julius Cæsar. More than one of the emperors, whose rescripts augmented the evil, attempted to remedy it; but it was reserved for the indefatigable and ubiquitous Hadrian to accomplish the design. His Perpetual Edict is sufficient alone, if other memorials were wanting, to immortalize his reign. This well-digested code at once put an end to the vague and arbitrary jurisdiction of the provincial governors. It supplanted the twelve tables as the standard of jurisprudence; and if it did not materially improve the theory of law, it at least conferred upon suitors the invaluable boon of uniform and invariable practice.
The precepts of philosophy seldom if ever affect the forms or principles of jurisprudence in this country. A barrister who should profess to be guided by the doctrines of Hegel or Schelling would probably in a single term find himself briefless. Judges occasionally cite Latin in their charges to the grand jury; but a chief or puisnè avowing himself to be a disciple of Kant or Reid, would be regarded by the bar as "fatuus ac furiosus." But the maxims of the Grecian
schools were not merely familiar to the Roman magistrates, but liberally employed as the ground work of their laws by the most celebrated legislators. The collections of Justinian bear manifold traces of the influence of the Stoics; and prætors and proconsuls modified their decisions by their respective predilections for the Academic and Epicurean sects. We do not know whether their metaphysical tastes improved their legal acumen; but they certainly imparted to the body of the Roman law a dignity, coherence, and an ethical tone which we shall vainly seek in more recent codes. The Stoical philosophy, which steeled its professors against the tyranny of the emperors, by instructing them to view life and death, evil report and good report, exile and the rack, as accidents of mortality, particularly affected the legislation of Rome after the accession of Tiberius; nor until Christianity had supplied a higher rule of action, do the traces of the Porch vanish from the laws of Rome. When in the twelfth century the study of civil law revived in Europe, its professors naturally imbibed many of its philosophical doctrines; and the Christian schools of Bologna and Montpelier often afforded the singular spectacle of a fierce dispute between the followers of Epicurus and Zeno.
The Christianized empire of Rome continued to be governed by the principles of its pagan legislators; and though the institutions of marriage, slavery, and public worship were modified by the new creed, the laws which awarded the penalties of crime or regulated the succession and distribution of property, still reflected the age of the Decemvirs and the Scævolæ. But the new wine was visibly impairing the old vessels; the inconsistency between the religion and jurisprudence of the state was with each generation becoming more apparent, and the rent was made wider by the growing pretensions of the church to control the decisions of the secular courts. In the reign of Theodosius, the first attempt was made on a large scale to reconcile the inconsistencies, diminish the bulk, and define the rules of the Roman law. The emperor sought to lighten the duties of the judge by an edict which established five civilians as the oracles of legal decision. Caius, Paul, Ulpian and Modestinus were regarded as equal authorities; but the distinction was reserved for Papinian of deciding in all cases where they disagreed. The task however was still incompletely performed: the oracles not only often differed irreconcilably with one another, but had ex
pressed their opinions so voluminously, as to impede materially the course of justice and impose intolerable burdens upon the skill or conscience of the judges. Justinian, on his accession to the throne, was compelled either to bridge over and consolidate the chaos of laws and legal opinions which had accumulated in the space of ten centuries, or to submit to all the evils of a virtual anarchy. Though himself an Illyrian soldier, he was no mean adept in the science of jurisprudence; and if he confided to others the labor of selection and condensation, yet for his choice of the most able civilians, he deserves to be applauded as the founder of a new era in the Roman law. His " Corpus Juris Civilis" lacks indeed the harmony and precision of the code. It was not the reflection of one great mind, but the converging rays of the legal experience of nearly a thousand years. It was impossible to cancel the legislation of centuries without shaking to their centre the foundations of his empire. It might have been practical still further to reduce the mass of materials, or to arrange them on more scientific principles. But the work was to be done quickly; the number and weight of discordant rules were enormous, and we may rather marvel at the comparative harmony of Justinian's statutebook, than cavil at the incoherences of its
But we should earn little gratitude from our readers were we to conduct them into the labyrinth of obscure and tedious records which contain the history of Justinian's laws -their reception at the time, their fortunes afterwards. The names, or at least the writings of its sages and commentators, are rapidly passing into oblivion. The stream of literature has nearly deserted a channel into which at one time both philosophy and learning poured their choicest and most copious stores. Even in Spain, where improvement moves tardily, the influence of Accursius, Baldus and Cujacius is on the decline, while in the rest of Europe the studies which once absorbed the favors of monarchs, and conferred the most brilliant of reputations, have fallen into neglect, or lurk in obscure or re
Yet there are some salient points in the history of the civilians which, as characteristic of the feelings or the manners of the past, we shall now briefly survey. The quarrels of lawyers have not been treated of even by Mr. Disraeli.
The civil lawyers, it must be owned, from the earliest ages belied their name. Under
VOL. XXXIV.—NO. III.
the Commonwealth they were active political partisans; under the Empire, when politics were nearly extinct, they created schisms of their own. There was indeed fair ground for fighting; laws and language are ambiguous and arbitrary: positive institutions are often the result of custom and prejudice; the voice of reason is less frequently audible in court than the clamor of argument, and the love of argument is inflamed by the envy of rivals, the vanity of masters, and the partial reverence of disciples. The quarrels of the long robe were sometimes also the mask of political sentiments. The Augustan age produced two luminaries of the law, one of whom, Ateius Capito, was a high Tory, and the other, Antistius Labeo, a sturdy Whig. Labeo was attached to the form of the old republic, and indulged, in common with a large minority of the senate, in dreams of its res toration. Capito, possibly from conviction that monarchy was essential to the security of the empire, was the advocate of innovation and of the Cæsar. Yet both were rigid conservators of the formularies of their profession; and although Labeo indulged in opposition to the government, he adhered strictly to the letter of the statute book, and was less accessible than his rival to the appeals of equity. The founders of these opposite schools however did not give their own names to their respective sects. The schools were denominated from two of their later leaders, Sabinus and Proculius, until these two were supplanted by the yet more recent influence of Pegasus and Cassius. The Pegasians and Cassians exhibited a strange anomaly: for the liberal lawyers were represented by Pegasus, a supple courtier of Domitian, while Cassius, who gloried in his descent from Cæsar's assassin, was the chief of the imperial party. The conflict between the Proculians and Sabinians endured from the age of Augustus to that of Hadrian, when the publication of the Perpetual Edict modified or removed many of the causes of this long controversy. The vestiges of these schisms however remain deeply imbedded in the laws of Justinian, where, like the impressions of the strange plants and animals which preceded man on this earth, they still record the legal revolutions of the Roman bar.
The Perpetual Edict, although it silenced the parties, did not remove the discrepancies of the law. The Gregorian, Hermogenian, and Theodosian Codes which succeeded it, are replete with contradictions, and the mass of obsolete and superfluous legislation which had accumulated in the course of ten centu21
ries, might have reconciled Lord Eldon him seconded or even surpassed by those of some
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