never at a loss to discover the law inherent in each,—a law which, § 15. 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 its course of 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 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, in many respects a work of fundamental importance.

§ 16.

§ 16. The Imperial Legislation.

The imperial power passed through two stages of development. In its first stage, that of the principatus', 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, but 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, whereas during the period of the monarchy he assumes, by means of his legislative authority, the exclusive leadership in all further legal progress.

1. First Stage.

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).

'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 law is authoritative, and conclusive for all cases of the same kind. A rescript 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 petition (subscriptio). The quasi-statutory force of decrees and rescripts (legis vicem habent), like that of the responsa prudentium (§ 15), is

The princeps, as such, is a private individual, distinguished, however, from other private individuals by the fact that he possessed firstly 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 commanderin-chief in the empire. Cp. A. Nissen, Beiträge zum röm. Staatsrecht (1885), p. 209 ff. Mommsen (Staatsrecht, vol. ii. p. 723 ff.) takes a somewhat different view and holds that the power of the princeps was, on principle, magisterial.

The § 16.

not limited to the life of the emperor who issues them. authentic interpretation shares the legal force of the law it interprets2. 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' 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, in such cases, to be guided in the exercise of his imperial power. 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 5.

The jurists gave these various manifestations of the imperial power, so far as they bore on the development of law, the collective name of 'constitutiones,' and assigned to such constitutiones a quasi-statutory 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 law proper did not ordinarily take the form of an imperial ordinance, nor again of a popular statute-which latter occurred only very exceptionally, and only in the early part of this period but the form of a senatusconsultum. During the republic, the authority of the senate was still confined to regulating

2e. g. the decretum divi Marci on self-help, 1. 7 D. ad leg. Juliam de vi privata (48, 7), the epistola divi Hadriani on the beneficium divisionis for several co-sureties, § 4 I. de fidejuss. (3, 20), 1. 26 D. eod. (46, 1).—Cp. Mommsen, Staatsrecht, vol. ii. p. 873 ff.; Karlowa, Röm. RG., vol. i. p. 646 ff.; Krüger, G. d. Quellen, p. 93 ff. It was not till Hadrian (sup. p. 57, n. 14) 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 a perceptible advance from the principate of the old style to the later mon

§ 16. 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.

L. II D. de const. princ. (1, 4) (ULPIAN.): Quodcumque igitur imperator per epistulam et subscriptionem statuit vel cognoscens decrevit vel de plano interlocutus est vel edicto praecepit, legem esse constat. Haec sunt, quas vulgo constitutiones appellamus.

2. Second Stage.

From the close of the third century the power of Roman jurisprudence began to decline. From the same date, i. e. from the reign of Diocletian, the imperial power, which had now definitely become monarchical, commences to exercise an exclusive control over the further development of law. The emperor reserved for himself not merely the right formally to create new law (viz. by legislation), but also the right to interpret the existing law, out of

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.; Krüger, loc. cit. p. 83 ff.

which he was thus able in cases of doubt to develop new principles. § 16. The imperial opinions (rescripta) took the place of scientific interpretation and consequently increased enormously in number. (We possess over a thousand rescripts of Diocletian's.) In addition to the rescript, we have, as before, the 'decretum' or judicial decision of the emperor, and, above all, the imperial statute, representing the new form in which the development of the law is carried on. The imperial statute originated in the motion which the emperor introduced to the senate (oratio), but the form of communicating it to the senate has now been discarded. Imperial legislation supersedes senatorial legislation. An imperial statute

is, so to speak, an 'oratio' directly promulgated to the nation at large. Hence it is described as an 'edictum' or 'lex generalis.' When the emperor had acquired the power to legislate, it became necessary to distinguish his merely interpretative or judicial from his legislative functions. Whereas in the earlier epoch every rescript and decree had possessed the force of general law, unless its validity were expressly limited to the particular case ('constitutio personalis'), the position was now reversed, and every rescript and decree, as such, was treated as a 'constitutio personalis,' i. e. as valid only for the particular case, unless the general validity of the principle applied were expressly ordained. It was only when the emperor chose to act as lawgiver that a law binding on the whole empire ('constitutio generalis') came into existence, and (on principle at least) it was the form which marked and characterized a statute as such. In ordinary cases, then, a law takes the form of an edict, i. e. a law officially promulgated; in extraordinary cases, it takes the form of a rescript or decree (expressly issued with the force of law), i. e. a law not officially promulgated. There are still laws which are not officially promulgated, and which only become known to the people at large through the medium of literature, because the emperor, in legislating, still continues, to some extent, to avail himself of the forms of an earlier period when, formally, he possessed no legislative powers. Nevertheless, the principle of the distinction between a law, as something which requires to be promulgated, and a mere detached decision, as something which