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There was a time when the same complaints were made about the civil law. Cicero repeatedly touches upon the subject, and urges the necessity of introducing into it the light and the order of a philosophical arrangement. In his treatise De Legibus, (i. 5) he exhorts his young friends to elevate their views to loftier objects than were commonly aimed at by men engaged in forensic pursuits. "The science of jurisprudence ought to be drawn," says he, "not from the edict of the Prætor, as is usual nowadays, nor from the Twelve Tables, as was formerly the practice, but out of the very depths of philosophy-penitus ex intima philosophia." His remarks upon the character of his distinguished contemporary, Servius Sulpicius, also deserve to be cited as very apposite and striking. He does not scruple to prefer that jurisconsult before Mutius Scævola, who was generally considered as the first lawyer of the age. In accounting for the preference, he admits that Scævola was as thoroughly versed in the laws as a man can become by long practice and assiduous study. And so were other lawyers who made a figure at that time. But he declares that he knew no one besides Sulpicius, who was master of that higher art, as he calls itvery distinct from mere technical skill, and not to be acquired by the experience and discipline of the forum-which discovered itself in a lucid order, in precise definition, in sound interpretation, in a systematic developement of the whole doctrine in question, and a logical deduction of all its legitimate consequences, at the same time that everything false or irrelevant was rigorouly excluded by the analysis. In another passage, which throws great light upon the subject of the preceding observations, he expresses himself still more fully and precisely to the same effect.*

It is evident from these citations, that the excellencies which have been alluded to as characteristic of the writings of the Civilians, do not arise out of any thing in the nature of that law, but solely from the preparatory discipline and general intellectual habits of its. professors. Philosophical studies had made but little progress at Rome before the time when Cicero and Sulpicius flourished. It was, indeed, principally to the beautiful treatises of the former upon the various questions discussed in the Athenian schools, that the citizens of that martial

De Orat: lib. i. c. 42. Omnia fere quæ sunt conclusa nunc artibus, &c. Ars quædam extrinsecus ex aliò genere quodam quod sibi totum philosophi assumunt, quæ rem dissolutam divulsamque conglutinaret, et ratione quadam constringeret, &c. Si enim aut mihi facere liceret quod jam diù cogito, aut alius quispiam, aut, me impedito occuparit, aut mortuo effecerit, ut primum omne jus civile in genera digerat quæ perpauca sunt, &c. Perfectam artem juris civilis, habebitis, magis magnam atque uberem, quàm difficilem atque obscuram.

commonwealth were indebted for their initiation into such pursuits. It was not to be expected, therefore, that men of business, absorbed in the occupations of the Forum, and attached by habit to its forms, should outstrip their own age so far as to incorporate into the doctrines and method of a practical profession, improvements that were not yet familiar even to men of a speculative turn of mind and of learned leisure. But the subsequent fortunes of the civil law were much brighter. Heineccius states it as a fact, acknowledged on all hands, that the greater part of the ancient jurisconsults of a subsequent period, were very much addicted to the study of philosophy, and employed in expounding and interpreting their own science, those rules and principles which they had learned in the discipline of the Lyceum and the Porch. Indeed, this fact, especially as regards the latter school, cannot fail to strike every one who looks, however superficially, into the Corpus Juris Civilis, many of the reasonings collected there, and even the very maxims and definitions, being strongly tinctured with the characteristic subtlety, as well as with the severe and elevated ethics of this favourite sect. In modern times, that jurisprudence has enjoyed the same advantage. While in all the courts of continental Europe, it has been consulted as written reason, or enforced as common law from the time of Irnerius even down to the present day, it has been considered in their universities as a necessary part of a regular academic education. It has thus been taught as a branch of liberal studies, and, indeed, most of the great men who have identified their names with it, were, in the strictest sense of the word, mere scholars and philosophers. Gravinaț mentions Brissonius as a singular exception to this remark. Cujacius, the great coryphæus of the band, was not only himself a scholastic man, but went so far as to declare that, if he had ever acquired any knowledge of the law by practice, he should strive to forget it-"ne a Romano júre distraheratur." Some of these writers it is true, have treated questions of jurisprudence altogether as matters of elegant literature—"flores magis quam fructus attulerant," as the author just quoted, says of Peter Faber, Vultejus, Pacius, &c.§

There are among the Civilians those who have pushed this love of systematic arrangement and close rigorous logic so far,

Antiq. Jur. Civ. v. i. 34.

It is not generally known that the stoics were the most subtle of dialecticians. Cicero says they were so remarkable for this, ut sint architecti pæne verborum.— Brutus. See also Pickett v. Loggon 14 Ves. 229.

Orig J. C. 222.

§ Ibid. 227. Gravina adds indignantly-quod nostrates pragmatici de universo Jetm eruditorum genere insulsè admodum, ne dicam stultè pronunciant.

as to emulate the reasonings of the geometricans. Thus, Puffendorf made his debut in the learned world by a work, entitled "Elements of Natural Law, according to a Mathematical Order." Heineccius also, who has been pronounced by a high authority, the first of elementary writers, adopts the same precise method in his popular commentaries upon the Digest and the Institutes. His way is to begin with a definition, which is made as comprehensive as possible. He then proceeds to deduce from it, what he calls axiomata, or clear, indisputable propositions. These he again applies to more complicated questions, and runs them down to all their consequences, with wonderful exactness and logical connexion.

It is, no doubt, such examples that suggested to Dugald Stewart some very just and striking observations, which as they are connected with the subject of elementary institution in the law, we shall present to our readers. They serve also to illustrate and confirm a position advanced in the course of the preceding remarks, that with the single exception of mathematics, jurisprudence is that department of knowledge, of which the principles are best settled, the reasonings at once the most refined and the most exact, and the conclusions the most safe and satisfactory.

"In those branches of study," says the Scotch philosopher, "which are conversant about moral and political propositions, the nearest approach, which I can imagine, to a hypothetical science analogous to mathematics, is to be found in a code of municipal jurisprudence; or rather might be conceived to exist in such a code, if systematically carried into execution, agreeably to certain general or fundamental principles. Whether these principles should or should not be founded in justice and expediency, it is evidently possible, by reasoning from them consequentially, to create an artificial or conventional body of knowledge, more systematical, and, at the same time, more complete in all its parts than, in the present state of our information, any science can be rendered, which ultimately appeals to the eternal and immutable standards of truth and falsehood, of right and wrong. This consideration seems to me to throw some light on the following very curious parallel which Leibnitz has drawn (with what justness I presume not to decide) between the works of the Roman Civilians and those of the Greek Geometers. Few writers, certainly, have been so fully qualified as he was, to pronounce upon the characteristical merits of both.

"I have often said, that after the writings of the Geometricians, there exists nothing which, in point of force and sub

tlety, can be compared to the works of the Roman lawyers. And as it would be scarcely possible, from mere intrinsic evidence, to distinguish a demonstration of Euclid from one of Apollonius or Archimides, (the style of all of them appearing no less uniform than if reason herself were speaking through their organs) so also, the Roman lawyers all resemble each other like twin-brothers; insomuch, that from the style alone of any particular opinion or argument, scarcely any conjecture could be formed with respect to the author. Nor are the traces of a refined and deeply meditated system of natural jurisprudence any where to be found more visible or in greater abundance. And even in those cases where its principles are departed from, either in compliance with the language consecrated by technical forms, or in consequence of new statutes, or of ancient traditions, the conclusions which the assumed hypothesis renders it necessary to incorporate with the eternal dictates of right reason, are deduced with the soundest logic, and with an ingenuity which excites admiration. Nor are these deviations from the law of nature so frequent as is commonly imagined."*

In order fairly to appreciate the justness of the comparison instituted in the preceding paragraphs, between jurisprudence and the exact sciences, it would be necessary to go at large into Mr. Stewart's theory of mathematical evidence. This our limits will not permit us to do-but it is worth while, with a view to make the illustration of our own remarks more perfect, to state his general principle. It is, that in all other sciences, the propositions which we attempt to establish, express facts, real or supposed, whereas in mathematics, (and we may add, in jurisprudence also) the propositions which we demonstrate, only assert a connexion between certain suppositions and certain consequences. The premises which we proceed upon are altogether arbitrary-we frame our definitions at will and reason from them. Thus all the properties of a circle are deducible from the assumed equality of the radii. Our reasonings, therefore, in mathematics and in law, are directed to objects essentially different from those of the other sciences-not to ascertain truths with respect to real existences, but to trace the logical filiation of consequences which follow from an arbitrary hypothesis, and, if from this hypothesis, we reason with precision, the evidence of the result is of course irresistible. Scotch philosopher, it is true, takes too much for granted, when he speaks of its being possible to devise a set of arbitrary definitions in jurisprudence that shall be as precise as those of * Philosophy of the Human Mind, v. ii. p. 147.

+ Which he took from Hobbes without acknowledging the obligation.

The

geometry-a notion, by the way, which ought to be particularly acceptable to the reformers of the Jeremy Bentham school, but which is unfortunately not quite just. But the fact, that such a degree of accuracy may even be approximated, is sufficient to shew that the logical method of the Civilians, is not mere formal parade and idle affectation.

Blackstone ascribes the neglect of the common law, as a branch of a liberal education, and, therefore, a good share of the defects adverted to in the preceding remarks, to the influence of the Romish Clergy, who had an absolute control over the English schools and universities. The discovery of the Pandects at Amalfi, which is supposed to have taken place early in the century after the conquest, he adds, had nearly occasioned its total ruin, and, indeed, nothing seems more probable. England was at that time overrun with foreign ecclesiastics who engrossed all the little knowledge of the age, and had an unbounded influence over the opinions of mankind. Being the only persons that had any acquaintance with the Latin language, they alone had access to these long hidden treasures of ancient wisdom and civilization, and to make their devotion for them more exclusive and bigotted, Pope Innocent IV., it seems, forbade them so much as to look into the volumes of the common law. Independently, however, of any undue influence of this kind, it is easy to imagine what an impression the sudden appearance of such a volume as the Pandects must have made in the midst of the darkness and barbarism of the twelfth century, when we consider that, according to the forcible expression of a late writer, it was the very first book which spoke the language of reason to the modern world. All Christendom resounded with its praises-there sprang up among the nations a general emulation to understand and to adopt its principlesand in less then half a century after Irnerius began his lectures at Bologna, a professorship of civil law was established at Oxford, under the patronage of the Norman Archbishop of Canterbury, to which Vaccarius, a dependent of that Dignitary, was appointed. The common law was, in the mean time, left to barons and barbarians, and upon the whole, we ought rather to wonder how, under such disadvantages, that venerable code should have come down to us in so perfect a state as to present upon the whole, as noble a scheme of pratical liberty and justice as the world has ever seen.*

We have spoken of the discovery of the Pandects at Amalfi, in compliance with Blackstone and custom; though the better opinion is, that no such event ever took place. See Ginguené Hist. of Ital. Lit. c. 3: Pfeffel, v. i. p. -. It is certain, however, that the civil law began about that time to be generally studied.

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