Page:1909historyofdec04gibbuoft.djvu/555

 chap, xliv] OF THE ROMAN EMPIRE 489 of the profession to every citizen conscious of his abilities and knowledge. The discretion of the praetor 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 codi- cils was a memorable innovation, which Augustus ratified by the advice of the civilians. 62 The most absolute mandate could only require that the sects 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 am- biguous and arbitrary ; where reason is incapable of pronounc- ing, the love of argument is inflamed by the envy of rivals, the vanity of masters, the blind attachment of their disciples ; and the Koman jurisprudence was divided by the once famous sects of the Proculians and Sabinians. 63 Two sages of the law, [sect of Ateius Capito and Antistius Labeo, 64 adorned the peace of the procui" Augustan age: the former distinguished by the favour of hiscapito= sovereign ; the latter more illustrious by his contempt of that favour, and his stern though harmless opposition to the tyrant of Eome. Their legal studies were influenced by the various colours of their temper and principles. Labeo was attached to the form of the old republic ; his rival embraced the more profitable substance of the rising monarchy. But the disposi- tion of a courtier is tame and submissive ; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors ; while the bold republican pursued his independent ideas without fear of paradox or innovations. 62 See Pomponiue (de Origine Juris Pandect. I. i. tit. ii. leg. 2, No. 47), Heinec- oius (ad Institut. 1. i. tit. ii. No. 8, 1. 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 deoree of the senate. 63 I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou, de Sectis Jurisconsultorum (Lipsiae 1728, in 12mo, p. 276), a learned treatise on a narrow and barren ground. 64 See the character of Antistius Labeo in Tacitus (Annal. iii. 75) and in an epistle of Ateius Capito (Aul. Gellius, xiii. 12), who aocuses his rival of libertas nimia et vecors. Yet Horaoe would not have lashed a virtuous and respectable senator ; and I must adopt the emendation of Bentley, who reads Labieno insanior (Serm. 1. 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 ". A. Pernice has taken Labeo'B name for the title of his elaborate study on the development of law under Augustus and his suo- oessors : Marcus Antistius Labeo, das romische Privatrecht im ersten Jahrhunderte der Kaiserzeit, 3 vols,, 1873-92.]