Aug. Con. 5, 8.

taining academies for the pursuit of "liberal studies" in a constitution of Valentinian I., Valens, and Gratian, in A.D. 370; and it is interesting to notice that St. Augustine in his "Confessions" mentions that in A.D. 372, two years after the promulgation of that law, he resorted to Rome for purposes of study, because he heard that the young men there pursued their studies in a quieter and better disciplined way than at Carthage. By a later constitution of Theodosius II. and Valentinian Cod. J. (xi. III. (A.D. 425), a school was especially estab- 18). lished, or rather the existing one was reorganized, at Constantinople. Out of a number of professors of different subjects, two were to be specially appointed to explain the rules of law and right (qui juris ac legum voluntates pandaut). All unauthorized professors were forbidden to teach publicly, and the authorized professors were forbidden to teach privately.

But it is from the remarkable preface (already cited) which Justinian addresses, at the commencement of his Digest, to the legal professors of his day that the state of legal education then and previously can best be understood. In criticising the subjects and mode of teaching in the five years' legal course, Justinian chiefly complains of the partial, irregular, and unsystematic training that was given in the successive years; and he evidently considers (what is obvious enough from other indications) that one use which his Institutes, Digest and Code will serve will be that of supplying, each in its turn, the special sort of instruction needed at the corresponding stage. He clearly is of opinion, also, that legal education was suffering from a too narrow-minded adhesion to a very few popular models, and that this fault would be corrected by the wider view of legal writers which his Digest had opened out.

It is thus plain that, during the previous three hundred years, all that a highly organized legal education could do, in the chief capital cities, to advance the strict logical progress of law in the grooves which the Antonine jurists had prescribed for it, was abundantly done—even in excess. Justinian, indeed, in confining the public teaching of law

to the cities of Rome, Constantinople, and Berytus, and disallowing such teaching in Alexandria and Cæsarea, assigns, as grounds for his protective policy, reasons which had no doubt silently operated long before his time. He alleges that in Alexandria and Cæsarea, and other cities incompetent persons were dispersed about, and communicated "adulterated doctrines" to their disciples. Should they repeat their offence, they are threatened with the Con. ad. penalty of a fine and of being ejected from the Antecess. § 7. city in which "they do not teach but break the laws."

With respect to the methods of legal education as bearing on the progress of law, it is observable that (as appears from Justinian's preface) a considerable part of it consisted in committing the very words of eminent legal writers to heart. The lecturer seems, in fact, to have dealt out from time to time particular parts of the written law (as of the Prætor's "Perpetual Edict ") or of the treatise of a wellknown writer, selecting always the parts which were neither obsolete nor unsuited for students. The want of printed books rendered this course necessary; and the habit of thus learning law largely by rote no doubt had its influence on the mind of lawyers and on the form of the law as they cited and argued from it. It would always have a tendency to become neat and aphoristic, and even what is called "sing-song" and alliterative. The vast quantity of brief legal maxims existing in Roman law, as well as the extraordinary condensation of style in which it is always expressed, give considerable colour to this theory of the influence of recitative exercises.

During the period now under review, we are able to trace in the constitutions of the emperors the influence they exercised, by interposing their personal authority, in determining the measure of judicial credit which should be accorded to the writings of deceased jurists. The early constitution of Hadrian, already alluded to, by Gaius. 1, § 7. which he accorded the force of law to the opinions of publicly qualified lawyers may or may not have extended to the writings of lawyers who were

deceased; but, any way, it was a precedent for applying, at the discretion of the emperor, a quantitative and qualitative test to legal opinions. In A.D. 321 Cod. Th. (ix. Constantine enacted that Papinian's opinion 43).

was not to be held to be qualified by the notes with which Ulpian and Paul had supplemented it; and this law of interpretation is alluded to and re-enacted in a later law (A.D. 426) of Theodosius II. and ValenL. 3, Cod. Th. tinian III., and again re-inforced by Justinian (i. 4). L. 1, in A.D. 530, who further alludes to a similar Cod. J. (i. 17.) exclusion of notes of Marcian on Papinian. The exact terms of a constitution of the year A.D. 327, in favour of the writings of Paul, have only come to light through the recently discovered texts of the Theodosian code. It declares that "everything that is contained in L. 2, Cod. Th. the writings of Paulus is confirmed and autho- (i. 4). ritatively established;" and it goes on to speak of his sentences in language of almost exuberant praise. What is called the "Law of Citations" of Theodosius II. and Valentinian III. (A.D. 426) respecting the weight L. 3, Cod. Th. which is to be attached to the writings of (i. 4). Papinian, Paulus, Gaius, Ulpian, and Modestinus, or to the majority, or to the side on which Papinian was found, has been previously alluded to.

This class of imperial legislation, in which Papinian throughout maintains his position of authority untouched, is a proof of the curious conflict that was at work between the influence of statutory legislation, as represented by the emperor, and the spontaneous progress of the law, as represented in the free commentaries of professional jurists. It would seem, however, that the interference of the emperor was not capricious, and, in fact, coincided with the dictates of an honest and genuine criticism. In this way it was perhaps a serviceable guide to judges, and was the more necessary in consequence of the appellate jurisdiction which rested in the emperor.

The actual mode in which the opinions of deceased jurists were worked into the legal system of the day, and qualified by the constantly appearing imperial constitutions,

will be understood from a study of those remarkable fragments, bearing date about the middle of the fifth century and, thus, nearly contemporary with the construction of the Theodosian code (A.D. 438). They are termed the See Ortolan I. "Vatican fragments," "A Comparison of the § 511. Mosaic and Roman Laws," and a " Consultation of an Ancient Jurisconsult." These works are, of course, of the greatest value, not only for establishing actual tests of the law, but also for indicating the mode of legal reasoning prevalent at a date two hundred years later than that of the most eminent of the great race of jurists.

CHAPTER III.

JUDICIAL LEGISLATION.

§ 1. From the Earliest Times to the Suppression of the Formulary System by Diocletian (A.D. 294).

THE most decisive way in which law progresses in the earlier stages of society lies in the process of administering or applying the law. Laws of procedure are the earliest of all laws; or, to express it differently, it is by the formal adjudication of a disputed claim that the reality and the limitations of the claim itself first come to the light. Unconsciously pursued habits become recognized as prevalent customs; these customs are cited as rules to guide the arbitrator; the rules which have guided former arbitrators are held to be binding on each succeeding one; and, as the State grows and its executive organization becomes strengthened, the rules and principles in conformity with which rights are actually protected become transmuted into the laws which, on the one hand, define rights themselves, and, on the other hand, ascertain the modes of protecting and enforcing them. This intimate connection between the right and the remedy permanently subsists, though all the other circumstances which determine the growth of the law of course qualify its operation. Among these circumstances the conscious and independent action of judges is one of the most dominant, and the more so as that action is supported by traditional concurrence and sympathy.

Roman law affords a signal illustration of the enormous influence which a merely professional habit of administering justice, handed down by royal tradition, may exercise on the substance of law itself, even when the officials who are