eloquence or sophistry of an ingenious pleader.[1] Augustus and Tiberius were the first to adopt, as an useful engine, the science of the civilians; and their servile labours 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 Hadrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the prætor 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.[2]
Sects [Scholæ] 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 [Sect of Labeo = Proculians; of Capito = Sabinians] sects of the Proculians and Sabinians.[3] Two sages of the law, Ateius Capito and Antistius Labeo,[4] adorned the peace of the Augustan age: the former distinguished by the favour of his sovereign; the latter more illustrious by his contempt of that favour, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various- ↑ Read Cicero, l. i. de Oratore, Topica, pro Murenâ.
- ↑ 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, an harsh measure, would appear with some softening in the contemporary evidence; and it was probably veiled by a decree of the senate.
- ↑ I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou, de Sectis Jurisconsultorum (Lipsiæ 1728, in 12mo, p. 276), a learned treatise on a narrow and barren ground.
- ↑ 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. l. iii. 82). See Mascou, de Sectis (c. i. p. 1-24). [Accarias observes on Horace's words, referring to the Stoic doctrines of Labeo: "the lawyer was then very young, and the poet must have afterwards regretted his injustice".
