is impossible to answer precisely, from the want of historic
evidence. Is it not possible that the emperors established an authority
to be consulted by the judges? and in this case this authority must have
emanated from certain civilians named for this purpose by the emperors.
See Hugo, l. c. Moreover, may not the passage of Suetonius, in the Life
of Caligula, where he says that the emperor would no longer permit
the civilians to give their advice, mean that Caligula entertained the
design of suppressing this institution? See on this passage the Themis,
vol. xi. p. 17, 36. Our author not being acquainted with the opinions
opposed to Heineccius has not gone to the bottom of the subject.--W.]

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 sects of the
Proculians and Sabinians. [62] Two sages of the law, Ateius Capito and
Antistius Labeo, [63] adorned the peace of the Augustan age; the former
distinguished by the favor of his sovereign; the latter more illustrious
by his contempt of that favor, and his stern though harmless opposition
to the tyrant of Rome. Their legal studies were influenced by the
various colors 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 disposition 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. The freedom of Labeo was enslaved, however, by the rigor of
his own conclusions, and he decided, according to the letter of the
law, the same questions which his indulgent competitor resolved with
a latitude of equity more suitable to the common sense and feelings
of mankind. If a fair exchange had been substituted to the payment of
money, Capito still considered the transaction as a legal sale; [64]
and he consulted nature for the age of puberty, without confining his
definition t