fortunes of hia ward. TIuh Bort of cauao was called Judicium Intcla. OctBTius defBodad the gunrdian. TiiB judge of thia controvai'sy was Urtrou9 Craflaufl, then citf prEctor^ B.e, 10^. Ue tLat was condeomed on Buch a. trial, was decreed to pay damages to hia ward to the amount of what bia aSaira had anScred through hia meaoB, and, in addition, by the law of the Twelve Tables, was to paj flomething by way of fine. But if the ward, or bia adToeate, aon^t to recover more from the defendant than was due, he lost hi!i cauae. HypaECua proceeded in this mamier, and iberefore ought to have heen noiisuited. Octavius, an miakjlful defender of his client, ahonld have rejoiced at thia, for if he had made the objection and proved it, he would have obtained his causa; but lie rafuaed to permit Hypaaiua to proceed for mora than was dne, though such proceeding would, by ilio law, have beau fatal to his BuiC Proutl.
' QuintuB Muciua ScEOvola, mentioned in the laat note but ona ' The cause waa thia. One man owed another a aum of mouey, to be paid, for instance, in the beginning of Januazy; the plaintiff would Dot wait till that time, but brought bia action in December; the igno- rant lawyer who wae for the defendanl^ instead of conteeting with the plaintiff thia point, that he demandad hia money before it was due, (which if ha had proved, the plaintiff would have lost bia cauae,) only prajad the bcneSt of the exception, which forbado an action to be brought for money before the day of payment, and bo only put off the cause for that time. Thia be did not perceive to be a clause inserted for the odvuntaee of the plaintiff, that be might know when to bring bJH fluit. Tbufl the plaintiff; when the money became due, waa at liberty to bring a new action, aa if this matter hod never come to trial, whicb action be could never have brought, if the Gmt had been deter- mined on the otbor point, namely, ita having been brought before the money waa duo; for then the defendant might have pleaded a former judgment, and precluded the plaintiff &om hia Hocond action. See I Justin. Instit. iv. 13. 5. dtn Judicald. " Of which aum there is a tima " were words of form in the exception from whence it was OS, " That the matter had before come into judgment," 1 at the tribunal of our friend QuiutuB Pompeiua, the citypnetor, did uot a man who ia ranted among the elociuent pray that the benofit of the ancient and usual esception, ofwhieh aum, there is iims for faymtid, naight be allowed to a party from ■whom a sum of money was demanded; an exception which he did not underatand to be made for the benefit of the creditor; eo that if the defendant^ had proved to the judge that the action was brought for the niouoy before it became due, the plaintiff,'^ on bringing a fresh action, would be pre- cluded by the exception, ihat ike matter had before come Mrfo judgment. What more disgraceful therefore can possibly be said or done, than that he 'nho has assumed the character of~ an advocate, ostensibly to defend the causes aad interests of his friends, to assist the distressed, to relieve such as are sick at heart, and to cheer the afflicted, should so err in the dightest and moat trivial matters, aa to seem an object of pity to some, and of ridicule to others! I consider my relation, Publiua Craasus, him who from his wealth had the sur- name of Dives,^ to have been, in many other respects, a man of taste and elegance, but especially worthy of praise and commendation on this account, that (as he was the brother of Publius SoievoJa)* ha was accustomed to observe to him, ^uzt Tteiiher could ke^ have aatUfied the claims of the civil law if he had not added the power of speaking (which his son here, who was my colleague in the constdate, has fiilly attained}! nor had he himself begun to practise, and plead the causes of his friends, before he had gained a knoviledge of the civil law. ware iu tha other Exception rri^dseoiiB. Pronet. jB. See Gaius, Jnatit. iv. ISJ, and Haffler, Obs. on Goius, It. 23, p. 109 leq. SOeadl.
' JiyEitoJor. The defoDdant or debtor, ■ PetiloT, The plaintiff or creditor.
* PnbliuB Lioiaias CrasauB Mucianus, aoo of Publina MaeiuB Sciovola, who hud been adopted into the Licinian faniily. Ha -wns oonaol with LuoiuB Vftleriua ITaoauB, A.ti.0. S25 But the name of Divaa had previously bean in the fainily of the Crasai, for Pnbhiia CrEBSiia, who WBfl consul with PubhuB Africanua, i.c.0. 549, was bo called. Ellatdt, * Bj birth. Ha had lua name of Gmeeua from adoption, aa BtAted in the preceding note.
' PnblinH Scajvola, hia brother. In tie phraae, tugve iUv/m, in jure eivili (aEi> iSi arti facere fio«>e, the worda illi arli are regarded b; Emesti and Orellius aa Bparicua, bnt Elleiidt thinks them genuine, Biplaiziing Ml jure civiti by quad ad jtM eisilt cUtiittt, I have followed OnlliuB and Erneati in tnj tnmalation.
' Publina Craflsoa, _,„.
tACTER OF THE ORATOIl.
"What sort of character was the iUuetrious Marcus Cato 1 Was LenotposHesBedofas great a share of eloquence as thoee times and that age^ would admit in this- city, and at the same time the moat learned of all men in the civil law! I have been speaking for some time the more timidly on this point, because there IB with ua a man- eminent in speaking, whom I admire as an orator beyond all others; but who has ever held the civil law in contempt. But, aa yon desired to learn my HentimentB and opinions, I will conceal nothing from you, hut, ns far as I am able, will communicate to you my thoughts upon every subject.
XXXV III. "The almost incredible, unparalleled, and divine power of genius in Antonius, appears to me, although wanting in legal knowledge, to be able easily to suatain and defend itself with the aid of other weapons of reason; let h'lvi there- fore be an exception; but I diall not hesitate to condemn others, by my sentence, of want of industry in the fli-st place, and of want of modesty in the nest. For to flutter about the forum, to loiter in courts of justice and at the tribunals of the prtetora, to undertake private suits in matters of the greatest concern, in which the question ia often not about fact, but about equity and law, to swagger in causes heard before the centumvi^,'* in which the laws of prescriptive rights, of guardianship, of kindred,' of agnation,'' of alluvions, circumluvions,^ of bonds, of transferring pro- '~ ' lUa laapora aiqiu ilia irlus. By tempora is me&nt the atalo of tliB times as to politiual nffiiirs; by atat, the period of advancement in leiinimg and civilization whidi Home had reached.
' Antonius.
' A body of inferior judiea, chosen three out of each tribe, so that the fidl number was a, hundred and five. They took cognisance of anch ■minor cansas as the pnetor entrusted to their dadaioo.
* Qentilitatani, Kindred or family. ParBona of tho Bame family or descent had certain peculiar rights, e.g. m entering upon an inheritajice, in aadertakiug guordiaDship. In such ri^ta slaves, freedmen, and eapite lUmiauti had no participation. See Cic. Top. 6, SB. Promt.
' The agnati, as a brother by the same fntber, a brother's son ot grandson, an uncle's bdq or grandson, had their peculiar rights. See Oaios, i 159.
' About these, various controveraieB might arise; aa, when the force of a river has detached a portion from your land, and added it to that of your neighbour, to whom does that portion belong f Or if trees have been carried away troia your land to that cf your nei^bour, and have taken root there, &c. Prouit.
I I DB OIUTOBE; OH, pei'ty, of party waUa, lights, stillicldia,^ of willa, transgressed or established, and ionuiiierable other matters are debated, when a man is utterly ignorant what is properly his own, aad what hia noighhour's, why any person is considered a citizea or a foreigner, a slave or & fi^eeman, is a proof of estraordinary impudence. It is ridiculous arrogance for a mau to confess himself unskilful in navigating smaller vessels, and yet Bay that he has learned to pilcjt galleys with five banks of oarH, or even larger ships. You who aro deceived by a quibble of your adversary in a private company, you who set your seal to a deed for your client, in which that is written by which he is overreached; can I think that any cause of greater consequence ought to be entrusted to youl Sooner assuredly ehall he who oversets a two-oared boat in the harbour steer the vessel of tho Argonauts in the Euiine Sea.
"But whftt-if-the eaoses are not trirird, but often of the utmost importanee, in which diapntes arise concerning points of civil l&w 1 What front must that advocato have who dares to appear in causes of such] a nature without any knowledge of that lawl What cause, for instance, could be of more cODBequeuco than that of the soldier, of whose death a felse report having been brought home from the army, and his fiither, through giving credit to that report, having altered his will, and appointed another person, whom he thought proper, to be his heir, and having then died himself, the affair, when tho soldier returned home, and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly ia that case was a question of civil law, whether a son could be disinherited of his fiither' possessions, whom the father neither appointed hk heir " will, nor disinherited by name!- ' When a person was obligod to let the water, which dropped fr Ilia house, rim ioto tho garden or areB of his neighbour; or to rece the water that fell from his neightour'B houao into hin area. Adam't Eoman Antiquitiea, p. 4B.
' Foe he who had a sou undeF hia power ahould have taken care t< iiifltitutG him his heir, or to diainheiit him by name; since if a fathei pretermitted or pused over hie son in BllenDe, ths testamont was of m effect Just. Inst ii 13. And if the parenta diainheritad their chil dren without cause, the civil taw was, that they might complain thai Each testaiaeDtfi were invalid, utider colour thut their parenta were nol of aound znind when they made theui. Joat. Inat. iL 13.
'r^o^ 3 CHAHACTER C ' THE ORATOa XXXIX. " On the point too which, tbo Mntumviri decided between the Marcelli and the Claudii, two patrician iainilies, wbeo the Marcelli said that an estate, which had belonged to the son of a, freedman, reverted to them by right of ttirps, and the Claudii alleged that the property of the man reverted to them by right of gens, was it not necessary for the pleaders in that cause to apeak upon all the rights of stii-jia and gent l^ Aa to that other matter also, which we have heard was con- tested at law before the centumvirij when an esile came to Home, (who had the privilege of living in exile at Rome, if he attached himself to any citizen as a patron,) and died in- testate, was not, in a cause of that nature, the law of atlach~ merU,^ obscure and indeed unknown, expounded and illustrated by the pleader? When I myself lately defended the cause of Sergiiis Aurata, on a private suit against our frieud Antoaius, did not my whole defence turn upon a point of law) For when Marius Gratidianna had sold a house to Aurata, and had not specified, in the deed of side, that any part of the building owed service,' we argued, that for what- ' The son of a freedmim of the Claudisn familj bad died without tnoUng a will, und his property Ml b; law to the Claudii; but there were two families of them,— the Claudii Pulchri, who were patrioiane, and the Claudii Marcelli, who wore plebeiaDB; and theee two familioa went to law about the poasesBiuu of the dead ciau'a property. Tha patrician Claudii (whose fomil; was tha eldest of the name) daimed the ioherltancB hy right of gem, on the ground that the freedmaD was of the gem Claudia, of which their family wtu the chief;,...while the ClAudii Mnrcslli, or plebeian Claudii, claimed it by right of ttiryi, on the ground that the freedman was more nearly related to them than to the Pulohn. Pearee. The teim gem was used in teferenoe to patri- oiaiJBj that of If )r]», to plebeians. ProtatA ' Jul applicaiiiyaia. This was a right which a Roman gutui-jia'roniu bod to the estate of a foreign client dying iuteatate. He was called qwui-patrojivs, hecauae none but Roman citizeni) could have patroos. The difficulty in this cause proceeded from the obacurity of tha law on which thia tinil of right was founded.
• Tha Bervices of city entates are those which appertain to buildings. It is required by city servicee Qiat neighbours should bear the burdens of neighbouTH; and, by such servlcea, one neighbour may be permitted to place a beam upon uie wall of another; may be compelled to receive the droppings and currents from the gutter-pipes ot another man's house upon his own house, area, or eewer; or may be exempted from receiving them; or may he restrained from raising his houeo in height, lest he should darken the habitation of his neighbour. Uarris's Jua- tinian, il 3. B, I DE OttiTORE; O eyer inournbrance attended the thing aold, if the seller knew of it, and did not make it known, he ought to iudemniiy the pur- chaser.^ In thia kind of action our friend Marcus Bucculeins, a man not a fool in my opinion, and very wise in his own, and one who has no aversion to the study of law, made a mistake lately, in an affair of a somewhat similar nature. For when he Bold a house to Lucius Fufius, be engaged, in the act of conveyance, that tho window-lights should remain as tbey then were. But Fufius, aa soon aa a building began to riae in some part of the city, which could but just be aeon from that house, brought an action against Bucouleiua, oa the ground that whatever portion of the sky was intereepted, at however great a distance, the window-light underwent a change." Amidst what a coucourao of people too, and with what universal interest, was the fomous cause between Manius Curius and Marcus CoponiuB lately conducted before tho cen- tumviri! On which occasion Quintua Scievola, my equal in age, and my colleague,' a man of all others the most learned in the practice of the civil law, and of most acute genius and discernment, a speaker most polished and re&ued in his lan- guage, and indeed, as I am accustomed to remark, the best oiator among the lawyers, and the best lawyer among the ' There is a mora particular statemant of tlas cause between Qrati- dianuB and Aurata in acero'a Offices, iiL 16. Tks Boman law, inthat par- tjcnlor founded on tbe law of nature, ordained, to avoid deceit in bargain and Bale, that the seller should give notice of all tho tiad qualities ' the thing aold which be knew of, or pay doioi^ca io the purchMOI ' hia lilencs; to which law Horace sUadea, Sit. iii, 2; Mentem msi Utigiosoa Eiciperet dominuB cum venderet. But if he told the laujta, or they wero Such aa must be geoQ hy a iioing oommonicara, the buyer Buffered for his negligence, as again indicate Epiet^ 11. S: Die feret pretium poinlB securuH opinor; Frudens emisti vitioaum. Dicta tibi eat Lex. See also Orotjna, iL 12, and Puffendorf, v. 3. a. i, 5. B.
' The mistake of BucculeiuB seems to have coiuisted in thia; he meant to restrain Fufine &om raisiag the house in height, which might darken, or making any now windows which might overlook, Boma neighbouring habitation which beJonged to him; but by thf worda adapted by low for another purpose, ha restrained himsf building within tbs pFospect of those windows already moda house which Fuflua purchased. S.
* In t^o consulship.
imself frcal^B [iBdaiu tbrfB oratora, argued] the law from tte letter of the will, and xoaiatained that ha who was appointed second heir, after a poathumouB sou should bo bom and die, could sot possibly inherit, unless such postbuinoua son had actually been bom, and had died before he came out of tutelage: I, on the other side, argued that he nho made the will had this intention, that if there was no Bon at all who could come out of tute- l^e, Manius Curius ahould be his heir. Did either of us, in that caiae, fiii! to exert ourselves in citing authoritiea, and precedenta, and forms of wills, that is, to dispute on the pro- foandcBt points of civil law 1 ^ XL. " I forbear to mention many examples of causes of the greatest consequence, which are indeed without number, It may often happen that even capital cases may turu upon a point of law; for, as an esample, Publius Kutilius, the son of Marcus, when tribune of the people, ordered Caius Man- cinus, a most noble and excellent man, and of consular dignity, to be put out of the senate; on the occasion when the chief herald had given him up to the Numantines, according to n. decree of the senate, passed on account of the odium which he had incurred by his treaty with that people, and they would not receive him,^ and he had then returned home, and had not hesitated to take his place in the senate; the tribune, I say, ordered him to be put out of the house, maintaining that he was not a citizen; because it was a re- ceived tradition, That he whom hU own father, or ths people, had told, or the chief herald had ffiven up, had no postlimi- nium' or right of return. What more important cause or argumeut can we find, among aU the variety of civil transac- tions, than one concerning the rank, the citizenship, the liberty, the condition of a man of consular dignity, especially as the case depended, not on any charge which he might deny, but on the interpretation of the civil law? In a hke case, but concerning a person of inferior degree, it was in- quired among our ancestors, whether, if a person belonging ' This celebrated cause ia aa cleuly etetod by Ciccra aa to require no eipknation. It was gained by Crassiis, the evident iatcntion of UiB teetator prsvailing over the letter of iha vrilL It ia quoted as a precedent by Cicero, pro CtEcinu, c. 1 S.
» See Floma, ji, 18; VelL Pat IL 1.
I DB 0R4T0RH; OB, I state ia alliance witli Borne had been in Gervitude B, and gained his freedom, and afterwards returned home, he returned by the right of poitliminiuvi, and lost the citizeuship of this oitj, May not a dispute arise on a fmhit of civil law respecting liberty, tban vfhiah no <smse can be of more importance, when the question is, for example, whether he who is enrolled as a oitiaen, by hia master's conseat, is free at once, or when the lustrum is completed? As to the case also, that happened in the memory of our fathers, when the &ther of a family, who had come &om Spain to Rome, and bad left o wife pregnant in that province, and married another at Home, without sending any notice of divorce to the former, and died jutestat«, after a son bod been born of each wife, did a small matter come into controversy, when the question was concerning the rights of two citizens, I moan concerning the boy who was bom of the latter wife and his mother, who, if it were adjudged that a divorce was effected from a former wife by a certain set of words, and not by a second marriage, would be deemed a concubine? for a man, then, who is ignorant of these and other similar laws of his own country, to wander about the forum with a great crowd at liia heeb, erect and haughty, looking hither and thither with a gay and assured face and air, offering and tendering protection to his clients, assistance to his friends, and the light of bis genius and counsel to almost all his fellow-citizens, ia it net to be thought in the highest degree scandalous] XLI. " Since I have spoken of the audacity, let me also censure the indoleace and inertness of mankind. For if the study of the law were illimitable and arduous, yet the great- ness of the advantage ought to impel men to undergo the labom' of learning it; but, O ye immortal gods, I would not say this in the hearing of Scievola, unless he himself were accus- tomed to Bay it, namely, that (Ae atiainment of no science seem* to km more eci»y. It is, indeed, for certain reasons, thought otherwise by most people, first, because those of old, who were at the bead of this science, would not, for the sake of securing and extending their own in£uence, allow their art to be made public; in the iie;d: place, when it was published, the forms of actions at law being first set forth by Cneius Flavins, there were none ivho could compose a general system of those matters arranged under regular heads. For nothing B CHARACTEK OF TnE OHiTOR.
can bo reduced into a science, unless he who understands the mattere of which he would form a science, has previously gained such knowledge as to enable him to cnnstituta a. science out of subjects in which there has never yet beea any soienoe, I perceive that, from desire to eipreea this briefly, I ha,ve expressed it rather obscurely; but I will make an effort to eiploin myself if possible, with more perspicuity.
XLll. " All tilings which are now comprised in sciences, were formerly unconnected, and in a state, as it were, of dia- peraiou; as in music, nnmbera, sounds, and mcaBureH; in geometry, lines, figures, spaces, magnitudes; in astronomy, the revolution of the beavens, the rising, setting, and other motions of the stars; in grammar, the study of the poets, the knowledge of history, the interpretation of words, the peculiar tone of pronunciation; and finally, in this very art of oratory, inventioDi Rmhrjllishtnent, arraiagemenl, pipi^y, ijelivery, aeeniefl of old not to be folly undSrefoodby any, and to 1m wholly unconnected. A certain extrinsic art was therefore applied, adopted irom another department of knowledge,^ wluoh the philosophers wholly claim to themselves, an art which might serve to cement things previously separate and tiDcombined, and unite them in a kind of system.
[_^ Let then the end proposed in civil law be the preserva- tion of legitimate and practical equity in the afiairs and causes of the citizens. The general heads of it are then to be noted, and reduced to a certain immber, as few as may be. A general head is that which comprehends two or more par- ticulars, similar to one another by having something in common, but differing in species. Particulars are included under tbe general heads from which they spring. All names, which are given either to general heads, or particulars, must be limited by definitions, showing what exact meaning they have. A definition is a short and concise specification of ' whatever properly belongs to the thing which we would define. I should add examples ou these points, were 1 not Bensible to whom my discourse is addressed. I will now comprise what I proposed in a short space. For if I should hove leisure to do what I have long meditated, or if any 9tlier person should undertake the task while I am occupied, ' From pMiwoplij.
\ I I SB OR&TORE; OB, or accomplish it after my death, (I mean, to digest, first of all, the whole civil law under ganeral heads, which are Tcry few; next, to branch out those general heads, as it were, into members; then to explain the peculiar nature of each by a definition;) you will have a complete system of civil \a.w, large and ftill indeed, but neither difficult nor obscure. la the meantinke, while what ie unconnected is being combinat^ a person may, even by gathering here and there, and lecting from all parts, be ftitnished with a competent kno' ledge of the civil law.