to the law inherent in the concrete circumstances, which law, when § 18. found supplies the rule-with many practical variations of course-for all other circumstances of the same kind :-these are the features which give to the writings of the Roman jurists their incomparable charm, and to the work they have achieved its indestructible force. It was no mere 'arithmetic of abstractions,' as it has been called, that made the Roman jurists as great as they were, it was rather that practical tact, which, without always being intellectually conscious of the abstract conception, nevertheless invariably acted in accordance with it, and thus succeeded in bringing out, in the individual case, the general law inherent in all cases of a similar description. The department of law where the peculiar genius of the Roman jurists found full scope, is the law of obligations, the law of debtor and creditor, the law, in other words, which is most properly concerned with the mutual dealings between man and man; and here again it is more especially the law relating to those contracts, where not merely the expressed, but also the unexpressed intention of the parties has to be taken into account (the so-called bonae fidei negotia). And in regard to this unexpressed intention which is not,, for the greater part, present to the mind of the party himself at the moment of concluding the contract, it was the Roman jurists who discovered it, and discovered it for all time to come, and enunciated the laws which result from its existence. This is a task which will never have to be done over again. And, at the same time, they clothed these laws in a form which will remain a model for all future ages. That is the reason why the law of obligations, and it aloneand more particularly the law of those bonae fidei negotia, and it alone-constitutes what is, in the truest and strictest sense, the imperishable portion of Roman law. As to the remaining parts of Roman private law, they never again attained to full and absolute dominion, and they have all been, more or less, superseded and even formally abrogated by the German Civil Code which has now come into force. But the Roman law of obligations will endure. It cannot be abolished. The intention of the purchaser, the hirer, &c. is the same in all ages, and it is this intention alone that Roman law has made clear. The legislation of Germany may indeed repeal § 18. the Roman law on this subject, in point of fact, however, it cannot fail to be in the main a substantial re-enactment of it. It was just the manner in which the Roman jurists exercised their vocation that enabled them to accomplish these striking results and to secure to Roman law its imperishable and irresistible power. For the centre and pivot of all their learning lay at all times in the art of giving 'responsa,' i. e. in the treatment of concrete cases. Roman jurisprudence grew up in immediate contact with practical life, immersed, so to speak, in a multitude of concrete cases, but never at a loss to discover the law inherent in each,-a law which, though abstract, met the requirements of details and which, with all its elasticity, was strong and firm enough to govern the vast field of human dealings with triumphant certitude. The praetorian law was the channel through which the jus gentium. had, in the first instance, gained admittance to, and had then rapidly permeated, Roman law. But it was only in the hands of the Roman jurists that the jus gentium, that law of human dealings which, in itself, was so intangible, so shifting and so free, received the tangibleness, the perspicuity and, at the same time, the necessary limitations without which the principles of bona fides, in the form in which the Roman jurists had embodied them, could never have retained their indestructible vitality. The real task which had devolved on Roman law in the course of its development was thus accomplished. The jural reason inherent in the various relations of human intercourse had found an expression of classic beauty in the writings of the Roman jurists. The last touch was all that was wanting. To apply it was reserved for the imperial power. L. 2 § 47 D. de O. J. (1, 2) (POMPONIUS): Maximae auctoritatis fuerunt Atejus Capito, qui Ofilium secutus est, et Antistius. Labeo, qui omnes hos audivit, institutus est autem a Trebatio. Ex his Atejus consul fuit: Labeo noluit, cum offerretur ei ab Augusto consulatus quo suffectus fieret, honorem suscipere, sed plurimum studiis operam dedit, et totum annum ita diviserat ut Romae sex mensibus cum studiosis esset, sex mensibus secederet et conscribendis libris operam daret; itaque reliquit quadringenta volumina ex quibus plurima § 18. inter manus versantur. Hi duo primum veluti diversas sectas fecerunt: nam Atejus Capito in his quae ei tradita fuerant perseverabat; Labeo ingenii qualitate et fiducia. doctrinae, qui et ceteris operis scientiae operam dederat, plurima innovare instituit. The first book in which a reconstruction, on scientific lines, of the writings of the Roman jurists (more especially from the materials preserved in Justinian's Digest) has been undertaken, is Otto Lenel's Palingenesia juris civilis (2 vols., 1889), in many respects a work of fundamental importance. For the jurists prior to Hadrian, reference should be made to the work of Bremer mentioned on pp. 19 and 91, n. 1. § 19. The Republican Empire and the Imperial The imperial power passed through two stages of development. § 19. In its first stage, that of the principatus1, the power of the emperor is simply the power of the 'first citizen' of the republic; in its second stage, i. e. from the time of Diocletian and Constantine, it is the power of a monarch. This development is reflected in the history of law. The princeps of the first epoch has no legislative powers; the imperial monarch of the fourth and subsequent centuries has legislative powers. During the period of the principate the emperor's influence on the development of the law is merely incidental and supplementary; during the period of the monarchy he assumes, by means of his legislative authority, the exclusive leadership in all further legal progress. During the first stage, which extends down to about 300 A. D., the princeps influences the development of law in four ways: by his decisions of particular cases (decreta, interlocutiones); by his 'opinions' on particular cases (rescripta); by his instructions to officials (mandata); by his public ordinances (edicta). 1 The princeps, as such, was a private individual, distinguished, however, from other private individuals by the fact that he possessed, first, the tribunicia potestas for life, which secured him a decisive influence in the city of Rome, and secondly, the imperium for life, which made him military commander in-chief in the empire. Cp. A. Nissen, $ 19. 'Decreta' and 'Rescripta ' must be regarded as means of authentic interpretation. The emperor interprets the law by applying it to a particular case, but the imperial interpretation of the law is authoritative, and conclusive for all cases of the same kind. A rescript (cp. infra, § 57, n. 2) was granted in reply to an enquiry addressed to the emperor either by a magistrate or--as was far more frequently the case-by a private party. It took the form either of an independent reply (epistola) or of a note appended, by way of answer, to the written enquiry (subscriptio). The quasi-statutory force of decrees and rescripts (legis vicem habent), like that of the responsa prudentium (§ 18), is not limited to the life of the emperor who issues them. The authentic interpretation shares the legal force of the law it interprets 2. The 'Mandata' which the emperor addressed to his officials became, as a matter of fact, a source of law in so far as certain portions of them (capita ex mandatis) were regularly repeated in every set of official instructions. The imperial 'Edicts,' lastly, were the outcome of that right to issue public orders which vested in the emperor in his magisterial capacity. By means of his edicts on questions of private law he made known the principles by which he intended to be guided in the exercise of his imperial power in reference to any such questions coming before him. Edicts and mandates were only valid, on principle, during the life of the emperor who issued them; if their validity was to extend any further, the next emperor had to repeat them". e. g. the decretum divi Marci on selfhelp, 1. 7 D. ad leg. Juliam de vi privata (48, 7), the epistola divi Hadriani on the beneficium divisionis for several cosureties, § 4 I. de fidejuss. (3, 20), l. 26 D. eod. (46, 1). - Cp. Mommsen, Röm. Staatsrecht, vol. ii. 3rd ed., p. 911 ff.; Wlassak, Kritische Studien zur Theorie der Rechtsquellen (1884), p. 132 ff.; Karlowa, Röm. RG., vol. i. p. 646 ff.; Krüger, G. d. Quellen, p. 93 ff. It was not till Hadrian (supra, p. 90, n. 5) that it became the practice for the emperor to give a legal opinion in reply to the petition of a litigant party. Altogether the reign of that emperor marks The jurists gave these various manifestations of the imperial § 19. power, so far as they bore on the development of law, the collective name of 'constitutiones,' and assigned to such constitutiones a quasistatutory force in so far as the conditions of permanent validity had been satisfied, which (as we have seen) was not a matter of course in the case of edicts and mandates. During this epoch, however, a statute proper assumed, as a rule, the form, not of an imperial ordinance, nor again of a popular statute-examples of the latter occurred but exceptionally, and only in the early part of this period-but of a senatusconsultum. During the Republic, the authority of the senate was still confined to regulating the execution of the laws by means of an authoritative interpretation. From the beginning of the Empire, however, though at first in the face of some opposition (Gaj. 1, 4), the senate exercised an independent legislative power operating, of its own force, as a source of jus civile. The decree of the senate was now regarded as taking the place of the popular statute. The princeps has the right to treat with the senate and to originate a decree of the senate by means of a motion (oratio); since Hadrian, in fact, the power to submit bills to the senate for the purpose of having them enacted as senatusconsulta is exclusively exercised by the emperor. To what extent the right of the senate to agree to a motion of the emperor's had, in the course of this epoch, sunk to a mere matter of form, is apparent from the fact that it could become the practice, at a subsequent date, to quote, not the senatusconsultum, but merely the oratio, i. e. the motion of the emperor. GAJ. Inst. I § 4: Senatusconsultum est, quod senatus jubet atque constituit, idque legis vicem optinet, quamvis fuerit quaesitum. §5: Constitutio principis est, quod imperator decreto vel edicto vel epistula constituit, nec umquam dubitatum est quin id legis vicem optineat, cum ipse imperator per legem imperium accipiat. sorted to edicts for the purpose of introducing rules of law which were intended to be permanent. 6 e. g. the oratio divi Severi on the property of wards, 1. 1 D. de reb. eor. (27, 9). Karlowa, loc. cit. p. 643 ff.; |