Page images

would doubtless have been carried on by other organs; for instance, we know that a fresh impulse was given to the growth of the praetorian law of succession by the lex Papia Poppaea in the time of Augustus. But, as a matter of fact, the two praetors at Rome, and the governors in the provinces, continued to issue their annual edicts under not only Augustus but also his successors, and the ius gentium was still, as before, being constantly worked into the legal system, and alterations and additions being made in that large part of the urban edict which had now been handed down from praetor to praetor for generations. These additions and alterations, however, were in the main occasioned by contemporaneous legislation (e. g. the leges Falcidia, Iulia et Papia, and various senatus consulta); for we may venture to suppose that, when the comitia passed no statutes which were not originated by the emperor, a magistrate would have hesitated to repeal or alter, or extend the law, with the independence which had been usual under the free Republic.

From the time of Hadrian (a. D. I I 7-138) the formal separation which has been noticed between the respective edicts of successive praetors ceased to' exist. That emperor divided the whole of Italy into Rome, with its immediately surrounding territory, and four other districts; Rome and its suburbs remained under the authority of the old magistrates, and among them of the praetor, while the other districts were placed under the administration of a new class of officials, called at first consulares, and after M. Aurelius (a.d. I 61-180) iuridici. With this change was in all probability connected a still more sweeping reform effected by Hadrian. In the year 131 A.d. he issued, through Salvius Julianus, praetor designate, a revised edition of the edicts of the praetores urbanus and peregrinus, arranged in a systematic form, in which also the edictum provinciale and aedilician edict seem to a large degree to have been incorporated. This, which was called the 'edictum perpetuum' par excellence, was published with the force of law for the whole empire, and the ius honorarium from this time onward 'legis vicem obtinuit,' instead of depending for its validity on an annual re-enactment. Henceforward too, though the magistrates formally retained their ius edicendi, the old practice, according to which each praetor issued an edictum perpetuum at the commencement of his year of office, was relinquished; the jurists after Hadrian regard the edict of their own time as something permanent and unalterable, except by the action of the emperor; and Hadrian himself evidently directed that any defect which might subsequently be discovered in the law should be supplied by imperial legislation: 'et hoc non primum a nobis dictum est, sed ab antiqua descendit prosapia, quum et ipse Iulianus, legum et edicti perpetui subtilissimus conditor, in suis libris hoc retulit, ut, si quid imperfectum inveniatur, ab imperiali sanctione hoc repleatur; et non ipse solus, sed et divus Hadrianus, in compositione edicti et senatus consulto, quod eam secutum est, hoc apertissime definivit, ut si quid in edicto positum non inveniatur, hoc ad eius regulas eiusque coniecturas et imitationes possit nova instruere auctoritas' (Justinian in Const. ' tanta' de Confirm. Digest. § 18).

The mention of the responsa prudentium among the sources of the ius civile makes it necessary to speak of the work done by the jurist class in the development of Roman law; and as it was to the jurists that that law owed what scientific form it possessed, besides many of its other special merits, it will not be amiss to discuss this subject with some fullness. The names of the early prudentes who lived under the free Republic are collected by Pomponius in Dig. 1. 2. 2.35-39; the first is that of Papirius, whose compilation of the leges regiae has been already noticed. These earliest lawyers are styled prudentes not because their knowledge of the law was more scientific, less empirical, than that of other men, but rather because they knew it more fully; a philosophical treatment of law had not yet commenced, and such distinction as there was between their legal knowledge and that of the ordinary citizen was quantitative rather than qualitative. The first condition of their existence as a professional class was the cessation of the pontifices to be 'iuris conditores,' and the liberation of private law from the fetters of the ius sacrum; it has been suggested that this was effected in the main by the incorporation of the plebeian element in the state. The direction of their legal activity is denoted by Cicero (de Orat. i. 48) by the four terms respondere, cavere, agere, and scribere. Respondere expressed the delivery of opinions (' iuris civilis scientiam publice profited') when consulted by either judges or private persons; cavere, the advising more definitely on legal matters, such as the proper mode of concluding some transaction, or of enforcing a right in the courts; agere, the actual participation in the process as patronus, or by presently superintending a legal disposition; scribere, the drafting of technical documents in proper legal phrase, the more mechanical part of the labour being perhaps undertaken by clerks or secretaries. But the most prominent of their functions, the capacity in which the ordinary citizen had most frequent occasion to consult them, was as advisers on the practice of the law. The ordinary citizen could not be acquainted with the complicated forms of procedure, or master the difficulties of the calendar, upon whose distinctions of dies fasti and dies nefasti the successful issue of an action so much depended. These mysteries were somewhat simplified by Cn. Flavius, who, as aedile (circ. 312 B. с), for the first time published a calendar, in which dies fasti and dies nefasti were distinguished, the people being thus enabled to know the days on which they could and those on which they could not perform public acts; and who also made a compilation of formulae required in the legis actiones and in the due performance of solemn dispositions: 'postea cum Appius Claudius proposuisset et ad formam redegisset has actiones, Cn. Flavius, scriba eius, libertini alius, subreptum librum populo tradidit; et adeo gratum fuit id munus populo, ut tribunus plebis fieret, et senator et aedilis curulis. Hie liber, qui actiones continet, appellatur ius civile Flavianum, sicut ille ius civile Papirianum; nam nec Cn. Flavius de suo quidquam adiecit libro. Augescente civitate, quia deerant quaedam genera agendi, non post multum temporis spatium Sextus Aelius alias actiones composuit, et librum populo dedit, qui appellatur ius Aelianum' (Pomponius in Dig. 1. 2. 2. 7). The mode in which the early prudentes acquired their knowledge was by attending as auditores, while young, an experienced jurisconsult in the practical work of his profession, and by a careful study of the Twelve Tables and such other books on the subject as were available. Among these may be mentioned those of Cn. Flavius and S. Aelius, alluded to in the passage just cited from Pomponius, and works by the Catos, P. Mucius, Brutus, and Manilius. Of systematic teaching in schools or lecture-rooms there is as yet no trace. The influence of the jurists on the law in this earliest period is of a very definite character, and is expressed by the term ' interpretatio,' by which should be understood the completion or supplementing of the written out of the unwritten law; not in the sense that they were strictly tied by the letter of the statute, or by the express words of the lawgiver, but that they were guided by its spirit, by a conception of law as a living and growing organism, and by a realisation of the necessity of adapting it to the growing requirements of an advancing civilisation. It was then on the Twelve Tables and succeeding statutes that this 'interpretatio' was to bear; and its operation may be illustrated by an example. The Twelve Tables had given an action against the owner of a quadruped which caused a damnum; as cases occurred in which damage was done by twofooted animals in the same way as the statute had contemplated, it was inferred that to grant an action here too was required by its spirit; the action was accordingly introduced, and brought as under the Twelve Tables, new law being thus grafted on to the old The leading feature of this juristic interpretation is perhaps its strict reference to the civil law, as distinct from other jural elements which were beginning to intrude themselves into the system: 'his legibus (XII Tab.) latis coepit, ut naturaliter evenire solet, ut interpretatio desideraret prudentium auctoritatem necessariam esse disputatione fori' (Pomponius in Dig. 1. 2. 2. 5); and this will explain the curious use of ius civile, already alluded to (note p. 28, supr.), to indicate specifically law made by the prudentes. This limitation of ' interpretatio' had, however, ceased in the time of Cicero, who says (de Leg. i. 5) that the jurists who were his contemporaries applied themselves also to the praetorian edict, while their predecessors had not gone beyond the ius civile. The sphere of their activity was largely extended on the fall of the free Republic. Savigny has remarked (Hist, of the Roman Law in the Middle Ages i. p. 25) that the art of public speaking, which in the time of freedom had been the first among the arts of peace, had with the disappearance of freedom lost all power and influence. Yet the Romans had from the earliest time devoted themselves more to law than to any other branch of public life, and it was accordingly in the study of law that the highest and noblest intellects now engaged, and in which they found the completest satisfaction of such aspirations as were still tolerated by the empire *. With them we first get the idea of a scientific knowledge of the principles of law or jurisprudence, a science which was entirely of their creation. Its favourable and symmetrical growth under their hands was due in no small degree to a peculiarity which is worthy of attention, namely, the theoretical, scientific purpose of the work by which it was elaborated, or rather the complete adjustment which they effected between theory and practice, between principle and detail. The Roman jurists to whom the science of law is most indebted held themselves aloof from the mechanical business which had formed a considerable portion of the vocation of the older prudentes, and left it to their pupils or to men of less repute than themselves. Their theory was thus always full of life, their practice always in harmony with and conducted with reference to their principles; with them 'theory and practice stood to one another in the only possible true relation, that each paid due regard to the other.' Thus the practitioner could not reproach the scientific jurist with being a mere theorist or dreamer, or the scientific jurist the practitioner with

1 Cf. the interpretatio of the lex Aquilia in Inst. tv. 3. 10.
1 Cf. Maine, Ancient Law p. 36a.

having nothing but 1 a beggarly account of scraps and fragments V Thcre are points of resemblance which make a comparison between thc development of law at Rome by the prudentes and its growth in England through avast series of judicial decisions, both interesting and instructive; but there is a difference of very great importance between them, which is this;—at Rome the jurists were not usually judges, nor were the judges usually jurists; and hence it was not with strict reference only to an actual concrete case that a jurist could make new law, but he could do this upon a hypothetical set of circumstances submitted to him by a pupil or any other person; and, as is remarked by Sir Henry Maine *, 1 where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased.' The development of English case law, on the other hand, has been merely the outcome of practical necessity, and from the scientific point of view is open to many of the objections which have been stated as against it by Austin'. The Roman jurisprudence owed its perfection precisely to the fact that in it theory and practice were never in a constant state of antagonism; whereas in. England the practical disregard of the one in favour of the other, or injudicious efforts at reconciliation, have often had the effect of at once marring the theory, and perverting the practice.

As has been observed, the first Roman jurist who can be credited with a genuine scientific treatment and exposition of the law was Q. Mucius Scaevola, who 'ius civile primus constituit generatim in libros decem et octo redigendo' (Pomponius in Dig. 1. 2. 2. 41). From another work of his, Liber singularis Spav (definitions), there are four excerpts in the Digest. C. Aquilius Gallus, Cicero's colleague in the praetorship, to whom are due the exceptio doli, postumi Aquiliani, and the Aquilian stipulation (Inst. iii. 29. 2), was Scaevola's most celebrated auditor, and himself the teacher of Servius Sulpicius Rufus, consul B. c. 51, whom Cicero calls the first of all jurists, and who in his discussions of legal questions followed a logical method which gave a powerful impulse to the scientific treatment of law. Among the jurists of Cicero's age who composed works on the subject are Aufidius Namusa, Aulus Ofilius (author of the first commentary on the edict), Alfenus Varus, C. Trebatius Testa, Aulus Cascellius, Q. Tubero, and Aelius Gallus.

1 Austin, Jurisprudence vol. i. p. 483.

* Ancient Law p. 39.

* Juris^rudence^Lectures 38, 39.

« PreviousContinue »