malis, et principem, et ducem esse; et secundùm hoc, regulam esse justorum et injustorum, et eorum, quæ naturâ civilia sunt animantium, præceptricem quidem faciendorum, prohibitricem autem non faciendorum.'

In short, the precepts of law as given by Ulpian are precisely those of the morals of Zeno.' The philosopher says that honesty alone is useful, and he commands benevolence and charity towards others. The jurisconsult says: Juris præcepta sunt hæc: honestè vivere, alterum non lædere, suum cuique tribuere.*

The science of law, setting out from these great principles, which it had borrowed from the stoic philosophy, carried into each of its parts the logical deductions therefrom, like the corrollaries of a mathematical theorem; and philosophy thus infused its beneficent influence into all the theories of the civil law. According to Marcian, the law was a supreme recommendation of benevolence and humanity; and, according to Cicero, there was a common and natural bond between men. Seneca proclaimed the natural relationship of all men; and the great Papinian established it as a principle of law, that no man should be permitted to lay snares for his fellow-man, and that a benefit received by one was for the interest of another. What would the decem virs have said of these revolutionary principles, which made the blood of the plebeian equal to that of the patrician? But the old Roman no longer existed; and under the ragged robes of the citizen, the law sought out and found the man. The combined efforts of philosophy and jurisprudence were admirably made use of for this purpose, by means of the institution of the prætorship. Every thing seemed to conspire in favor of the new state of things.

1 Marcian, fr. ii. D. 1. 3.

2

Diogenes Laertes, in Zenone. 'See the Historia philosophiæ Juris, of Veder (Lugd. Bat. 1832,) page 306, and foll. de stoicis.

Following the example of the stoics, the jurisconsults gave peculiar attention to philology; and investigated the origin and meaning of terms.' Imitating the stoics in their mode of treating philosophy, they organized the law into an exact science of a high order, founded in established axioms; and they made a merit of brevity and conciseness, for Zeno was brief and concise according to Diogenes Laertes, and Seneca makes a similar eulogium on Chrysippus. Hence the admirable precision of the Roman jurisconsults. The Latin language seems, in their hands, to have become the technical, authorized, and inimitable language of the law. No other juridical language has as yet attained the same admirable perfection.

The form of juridical argumentation was borrowed by the jurisconsults from the stoic philosophy;-examples of which might be multiplied. The stoics pursued the study of dialectics with peculiar care, and very much multiplied its weapons and resources; but they frequently pushed their logical deductions into the regions of subtilty. The same defects and the same qualities are observable in the Roman jurisconsults who belonged to that school; and we shall see the results, when we come to speak of the different sects, into which the jurisconsults of the following period were divided.

As to the doctrines of the interior philosophy of the stoics, we find profound traces of them in the Roman law: as, for example, the general division of things into corporeal and incorporeal; the determination of things public, common to

1 Audeamus imitari stoicos qui studiosè exquirunt undè verba sunt ducta. Cicero, Off. lib. 1. Aulus Gellius says of the jurisconsult Labeo: Latinarumque vocum origines rationesque percalluerat eâque præcipuè scientia ad enodandos plerosque juris laqueos utebatur. Noct. Att. xiii. 10. Examples of these etymological researches occur in a great number of the texts of the Roman law, as testamentum, testatio mentis, &c. Sometimes the investigation degenerates into mere subtilty.

all men or only to citizens; the theories concerning obligations contracted under the influence of fear or of violence; the definition of natural law: Jus naturale est quod natura omnia animalia docuit; certain provisions concerning suicide;' and the favor always accorded to liberty. We might find also in the fragments which remain to us of the great stoic jurisconsults, Labeo, Ulpian, Papinian, Salvius Julian, and others, traces of the psychological dogmas of the portico, of the synchretism which mingled with its philosophy, of its theurgy, and even of its physics. We shall confine ourselves to remarking, that the judicial literature of the Romans received this general character, derived from the doctrine of the stoics, of being essentially an instrument of conservation and of resistance.

Such, in substance, was the influence of the stoic philosophy on Roman jurisprudence; but there are certain parts of the system of Roman law, in which this influence has left more marked traces.

The theory of the three positions of law, civile, gentium, naturale, corresponds to the stoic doctrine, which considers man as an animal, as a man, and as a citizen; but which, however, did not result in the establishment of the duties of men towards animals; on the contrary, every thing was born for man,the world was his domain.

On the subject of the law of usufruct, we also trace the stoic philosophy in that provision of the Roman laws, which excluded from the category of fruits acquired to the usufructuary, the offspring of slaves subject to the usufruct. This is the decision of Gaius, on the authority of Cato, the stoic: Partus verò, ancillæ in fructu non est; itaque ad dominum proprietatis pertinet. Absurdum enim videbatur hominem in fructu esse, cùm omnes fructus rerum natura, hominum gratia, comparaverit..... Bruti sententia obtinuit

1 D. 48, 21, 3, § 4.

Gaius, fr. 28, D. 22, 1.

2 See Veder, p. 319.

fructuarium in eo locum non habere; neque unius in fructu hominis homo esse potest.'

3

In regard to usury, the doctrine of the stoics was adopted by the jurisconsults. The former denominated usury: Humanæ cupiditatis extrá naturam quæsitum nomen. The jurisconsults express the same opinion of it, when they call it a contract which is not in nature, but which the law admits and tolerates: Usura naturâ non provenit, sed jure percipitur. It is upon this ground, that Pomponius has established another principle: Usura pecuniæ quam percipimus, in fructu non est, quia non ex ipso corpore, sed ex aliâ causâ est.

3

The stoic dogma of septennial revolutions, in the course of the human life, had an influence in jurisprudence. It was from this theory, that the determination of the age of seven years for some capacities, and of twice seven years for the epoch of puberty, was derived. Thus at seven years, one was no longer an infant (infans), but could speak (fari): this, at least, was the philosophical presumption. At fourteen years, males were pubate, which was also a philosophic dogma; and, in this fixation of puberty by the mere revolution of a precise period, we recognise that stoic decency, which interdicted every material examination which might offend chastity. In reference to this subject, Hugo remarks upon the extreme reserve which we meet with in the Roman jurisconsults, whenever they have occasion to speak of certain objects connected with man

ners.

The doctrines of the stoics appeared also in the theories

Ulpian, fr. 68, D. 7. 1.

* Nomen, in the language of the Roman law, signifies a credit. The translator of Gravina has rendered it by the word name: "The name of human cupidity imagined against nature."

Pomponius, fr. 121, D. de verb. sig.

4 Roman History.

of the Roman law relative to accession and its different kinds. They placed art, genius, and power above mere brute matter, and thus effected a revolution in this part of the law. Their victory in this great discussion was the triumph of reason. It had been formerly decided, that a picture painted upon the canvass of another person belonged to the owner of the canvass, because that was the principal matter of the picture, and not to the artist, whose work was only an accessory; but, thanks to the influence of philosophy, this barbarous opinion was abandoned.

The same influence restored to the relations of father and child, and of husband and wife, the character which belongs to them by nature, and which is sanctioned by a good economy of the social order, but which they had not hitherto possessed.

Finally, there is one doctrine, which, more evidently than all others, indicates the influence of the stoic philosophy upon jurisprudence, because it shows us the jurisconsults adopting the errors of the philosophers even to the deduction of consequences the least reasonable, though in appearance the most logical: this doctrine is that of the equality of crimes. Chrysippus, following Zeno, reasoned thus: whether you are at the distance of a hundred stadia from Canopus, or are within one of it, in both cases you are not at Canopus; in like manner, whether you are within a few steps of virtue or are at a great distance from it, you cannot be said to be in virtue. In the same spirit, a Roman jurisconsult informs us, that he who touches the ear touches the entire body; and that he who steals a part of a heap of corn or of a cask of wine is equally guilty as if he had stolen the whole. Vulgaris quæstio est, says Ulpian,' an is qui ex acervo frumenti modium sustulit, totius rei furtum faciat, an verò ejus tantùm quod abstulit? Ofilius

'Ulpian, fr. 21, Dig. 47, 11. de furtis.