that law is but one of the agencies by which the life of a nation is developed, and that it stands in close relation to other influences all of which must play their part in duly promoting the welfare of the social organism. These other influences-literature, what are now called the moral or social sciences, art, and, we may perhaps add, religion-they left more or less out of sight, or at any rate failed to see the inevitable correlation between them and their own favourite subject, to appreciate the function of philosophy as the common element in, the connecting link between, the various branches of human thought. As the queen of the sciences, philosophy watches over the element which they share each with one another, by keeping them before her in orderly review, by restraining each within its due sphere, by maintaining them in their proper relation, she discharges her function of giving to each its perfect form, its true development. This relation between philosophy and the sciences was not adequately perceived by the Roman jurists, because its true appreciation depends on conditions many of which are realised only in the modern world. To them jurisprudence was philosophy and all philosophy. Ulpian says, 'iustitiam colimus, et boni et aequi notitiam profitemur; aequum ab iniquo separantes, licitum ab illicito discernentes, bonos non solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes, veram nisi fallor philosophiam, non simulatam affectantes.' The words are those of a moralist, not of a lawyer; and the failure to distinguish sufficiently between jurisprudence and the other sciences, notably ethics, resulted in logical faults, especially of definition, which mar to no small degree the excellences by which the Roman law is on other grounds distinguished 1.

The mode in which the earlier prudentes acquired their knowledge of law has been already noticed. After a short preliminary instruction in the leading terms and distinctions of jurisprudence, which was denoted by the term 'instituere,' their training was purely practical, and consisted in attending a leading lawyer in court and chambers, and in thus picking up both learning and the modes of applying it. No jurist refused the youth of Rome the privilege of thus attaching themselves to him as auditores, in order under his auspices to learn the law; indeed it was considered an honourable distinction. Ius civile docere,' says Cicero, semper pulcrum fuit, hominumque clarissimorum discipulis floruerunt domus;' and of

1 See, for example, the definitions of justice and jurisprudence in the first three lines of Inst. bk. i.

Q. Scaevola he says, 'qui quamquam nemini se ad docendum dabat, tamen consulentibus respondendo studiosos audiendi docebat.' This practical course of instruction continued throughout to be the principal mode in which a professional lawyer acquired a knowledge of his subject-matter and of civil procedure. The only change was that it now usually extended over a longer period; a prominent jurist's auditores continued their connection with him even after they had attained a competent legal knowledge, in order to have the advantage of his authority and advice in their own practice. In this relation they were called studiosi. Modestinus was studiosus to Ulpian (Herennio Modestino studioso meo de Dalmatia consulenti rescripsi' Ulp. in Dig. 47. 2. 52. 20), and Paulus says (Dig. 50. 13. 4) 'Divus Antoninus Pius rescripsit, iuris studiosos, qui salaria petebant, haec exigere posse;' so that studiosi are frequently contrasted with iuris auctores, as lawyers who had not achieved an independent position. Naturally too book learning now occupied a larger share of a student's attention than before, owing to the increase and greater excellence of the juristic literature.

In the preliminary course which, as has been observed, preceded the stage in which one became an 'auditor,' there were considerable changes in the time of the classical jurists. Systematic teachers of elementary legal knowledge arose, after the pattern of the rhetoricians whom Cicero decried (Orat. 41. 42), and opened regular schools with a fixed rate of remuneration. The exact date of this innovation is uncertain, but it can hardly be later than Antoninus Pius (A.D. 138161); Gellius, who wrote shortly after this period, alludes to a legal problem which in his youth was much discussed 'in plerisque Romae stationibus ius publice docentium aut respondentium,' and by the stationes ius docentium (whom he distinguishes from respondentes or jurists) he probably meant elementary schools of law. These teachers are called by Ulpian 'iuris civilis professores' (Dig. 50. 13. 1. 5), and to the profession of a liberal art were attached some not inconsiderable privileges (see Inst. i. 26. 15); but they were not held in any very high esteem, such as that enjoyed by the great jurists, though some writers have erroneously thought that the latter even actually engaged in this form of instruction. But the old theory that the teaching of a liberal art should be gratuitous, which was in part the foundation of the dislike of the sophists, was maintained. Ulpian says (Dig. loc. cit.) that the iuris civilis professores could not sue in the courts for their fees, for to make a traffic of such a 'res sanctissima' was a disgrace; though one of the statutory privileges

of all 'professors' was the obligation of the praeses to assist them in recovering their honoraria by his extraordinaria cognitio (Dig. loc. cit. § 6).

Under Constantine (A.D. 306-337) the constitution lost its last semblance of republican form, and assumed the character of an open despotism. The most important results of this were a more rigid concentration of all executive authority, separation of the civil and military administrations, which had hitherto existed in close combination, and the institution of a graduated official hierarchy, with a consequent division of ranks and dignities. The distinctions of condition rest either on an independent foundation or on the simple will of the emperor. Of the first kind are the old contrasts between cives, Latini, and peregrini, between ingenui and libertini, and between men of unblemished civil reputation and infames; also a new one between proprietors and non-proprietors of land. Of the second kind. are the patriciate, a new distinction devised by the emperors as a reward for faithful service in the state or in the field, and the other dignities of the court and of the civil and military administration, dignitates palatinae, civiles, militares. All of these were arranged in a fixed order of precedence, and differentiated from one another by terms of honour such as illustris, spectabilis, clarissimus. It would be tedious, however, to enter into a full account of these, though more or less connected with the subject of legislative power. Constantine's three sons, Constantine II, Constantius, and Constans (A.D. 336–361), by their internal discords and the weakness of their efforts to suppress other pretenders to the throne, paved the way to the final division of the empire into West and East, which took place under Arcadius and Honorius, A. D. 395. For some generations the two empires subsisted side by side with one another. From the commencement of the fifth century, however, the Germanic peoples began to intrude themselves into the dominions of the Western Emperor, and their aggressions became year by year more menacing, until, after having long been a mere object of booty to the barbarians, the Western empire was finally absorbed in their conquests A.D. 476.

From this brief notice of the political history we turn to a more appropriate subject, the condition of the law in the period intervening between Constantine and Justinian. Of the influences to which must be attributed the general character and tendency of its development one is intimately connected with the division of the empire into West and East. The jurists had raised the ius gentium to a level with the ius civile, and had esteemed naturalis as powerful a principle as civilis

ratio. But among the peoples which composed the Eastern Empire, and which were Roman in name only, it was inevitable that the universal should gain the preponderance over the particular jural element, as more favourable to the survival of the legal system beyond the life of the individual nation; the part which was 'civitatis proprium' and strictly national could not fail to decay and gradually disappear. Old legal dispositions, such as mancipatio and in iure cessio, were practically superseded by free forms peculiar to no single nation, and simultaneously the distinctions of cives, Latini, and peregrini ceased to have any real meaning, even if they were still occasionally to be found; thus the old separation of ius civile and ius. gentium rapidly tended to disappear by the former becoming absorbed in and swallowed up by the latter. Secondly, it is to be observed that Constantine had formally made Christianity the religion of the empire which he ruled, and the effects of this began to show themselves at once in the field of private law. There was thus infused into both legislation and judicature the spirit of a higher equity and a diviner justice than had been familiar to the classical jurists, which left its traces during this period on many of the rules relating to slavery, colonatus, marriage, concubinage, and patria potestas. Justinian himself legislated openly in favour of the Church; for examples of this reference may be made to the index to the text (s. v. Church'). Lastly, the constitutional changes which have been briefly noticed produced modifications in private law through the revolution which they effected in judicature, and consequently in civil procedure, and which will be treated in a later part of this book.

The legislative authority by which the legal changes thus generally described were introduced requires some notice. The old magistrates of the populus had now formally been transformed into imperial officials, and we can hardly believe that the latter could have deemed themselves competent to exercise the praetor's function of harmonising the strictum ius' with the 'ius aequum' by their own independent action. Ex abundanti cautela,' however, Constantine issued a constitution expressly forbidding them to attempt any such task: 'inter aequitatem iusque interpositam interpretationem nobis solis et oportet et licet inspicere' (Constantine in Cod 1. 14. 1). Nor is it to be expected that, under such conditions as those of the Eastern Empire, new law could be begotten by usage. Usage or custom, so far as it is fitted to become law, is grounded upon a common apprehension of an unwritten rule, upon a common conviction that so and so is

right and ought to be done. Now the peoples of whom the empire was composed were so diverse that they had but one characteristic in common, viz. that they were not Romans. They could have no common legal habit as a nation, and thus could generate no new positive customary law save merely local rules; the only influence they could unite to exercise was a negative one, to abandon all such portions of the system as were purely and exclusively Roman. And this destructive work, as we have seen, they did do. So with the other sources of the ius scriptum which are enumerated in the Institutes (i. 2. 3). Leges proper, plebiscita, and senatus consulta, as we know, had long been obsolete; and by the ordinance cited a few lines above, Constantine had given the last blow to the edicta magistratuum. Still, the development of law might have been carried on, as it had been from Augustus to Maximian, by the responsa prudentium and systematic treaties of authorized jurists; but we look in vain for these forms of legal activity, for true jurisprudence had already died a natural death. The juristic literature of the period now under consideration consists merely of compilations from statutes or constitutions and from the writings of earlier prudentes. Theodosius II (A.D. 408-450) attests the cessation of true juristic work in the enactment by which he promulgated his codex constitutionum : 'saepe nostra clementia dubitavit, quae causa faceret, ut tantis propositis praemiis, quibus artes et studia nutriuntur, tam pauci raroque extiterint, qui plena iuris civilis scientia ditarentur, et in tanto lucubrationum tristi pallore vix unus aut alter receperit soliditatem perfectae doctrinae.' His own.explanation of the phenomenon is the vast multiplicity of imperial ordinances and juristic books without an adequate study of which a knowledge of the law was impossible; and the hope is expressed that a remedy for this will be afforded by the comparatively small dimensions of his own compilation.

Direct imperial legislation thus remained the only form in which changes could be effected in positive law. What Justinian says in Cod. 1. 14. 12 is true of the whole period extending backward from himself to Constantine: 'In praesenti leges condere soli imperatori concessum est, et leges interpretari solum dignum imperio esse oportet;' and this will account for the ever-increasing activity of the imperial legislation. In the interval of 130 years between Constantine and Theodosius II the mass of general constitutions had already become so great that the latter emperor's compilation formed a book of very considerable dimensions, and yet in this much was curtailed, still more omitted; for instance, it contained none of the enactments