degree lower in dignity than that of the political orator, or even the forensic advocate. The interesting Cic. Brutus, passage in which Cicero compares the attain- xl., xli. ments of Scævola and of Servius Sulpicius discloses a certain consciousness in the contemporary Roman mind of the inferiority of the purely logical exercise to which an exclusive study of law gave rise, as contrasted with the nobler uses of the intellect called for by a philosophical, rhetorical, or merely political concern with law.

No doubt, in Cicero's own mind, always tempted to be diffuse and imaginative, there lurked a certain impatience with, and scorn of, all sorts of antiquated legal formalities, even the most indispensable. He sometimes indulges himself in not only deriding obsolete ceremonials which had survived their usefulness, but in talking of the very flesh and bones of the Roman as of all other possible legal systems, as if such topics were nauseous to every enlightened and public-spirited intellect.

xxxviii.

Thus Cicero's own writings would supply the proof, if proof were not abundantly supplied elsewhere, Cic. Murenâ, that by his time the Roman civil law had, quite xii.; De Orat. independently of all that express legislation and the interposition of the Prætor could effect, marched forward in an even, rapid, and strictly logical course; that it had drawn to itself the absorbed attention of the most luminous thinkers of the day; and that, while it had long ceased to be cabined and confined by the bands of early local usage, it had none the less retained the severe lines and landmarks which the national capacity for legal logic impressed and perseveringly maintained.

§ 2. The Period from the Birth of Cicero (B.C. 106) to the era of Modestinus (A.D. 245).

The period of the life of Cicero included events of wide political importance to Rome, which of themselves could not but have had a profound and lasting influence on the structure of Roman law. But it would be an historical

as much as a political error to consider such catastrophes as the Social, Servile, and Civil wars as sudden and incalculable phenomena, rather than as the necessary development of a long train of ceaselessly operating causes.

For the purpose of strictly legal history, it is only necessary here to advert to the inappropriateness which the circumscribed legal rules and institutions of early Roman law must have soon disclosed as they came to be applied to persons, things, and places, wholly diverse from those amidst which they had grown up. For a long period the intervention of the Prætor Peregrinus, and subsequently of the other Prætors and provincial governors, succeeded in straining the older Civil Law so as to enable it to bear the constantly increasing weight cast upon it.

How much these magistrates contributed, and in what ways, will be the special subject of a later chapter. It is here to be noted that the two main directions in which their characteristic work displayed itself was in amplifying and simplifying procedure, and, in cases where moral claims seem to come into competition with strict legal rights, supporting the former as against the latter. It is obvious that legal reformation of these sorts, widely important as it was, could never be sufficient to meet the exigencies of such a rapidly expansive community as that of the Roman State. The true need was that of an internal reconstitution of the very kernel of the Civil Law, and it was because the Romans showed themselves capable of effecting this by a series of almost imperceptible changes that they proved themselves masters of that part of the art of government which consists in justly regulating the relationships of private, social, and commercial life.

The modes in which this process of reconstitution were gradually effected, up to nearly the close of the republic, have been already dwelt upon. But it was in the last century of the republic and at the commencement of the empire that the demands for an adequate legal system, based upon notions of moral justice and a peremptory logic, became most urgent. It is remarkable that Julius Cæsar,

the best exponent of the ideas of his time—that is, of the expiring republic and the dawning empire-is related to have desired to "reduce the whole civil law into a moderate bulk, and out of the immense and scattered abundance of laws to compress what was best and most Suetonius, serviceable into as few books as possible." Jul. 14.

It has often been remarked that as public liberty died out in Rome, and all honest avenues to public reputation were closed, the professional study of law acquired an enormous impetus, and law itself attained a development such as no other condition of society has ever witnessed. It has been noticed above that Cicero recognized a certain antipathy between the functions of the political orator or advocate and the mere jurisconsult, and that he compared the dignity of their functions in a way not wholly favourable to the latter.

It might well be, when the freedom of advocacy and political liberty of speech were both at an end, that the functions of the jurisconsult acquired fresh life. This was the more likely to be the case, as law was the only original product of the Roman mind. Philosophy, science, poetry, and even history have been wrought to a far higher pitch of perfection by the Greeks, who were first in the field, and whom the Romans only limped after with a halting step. But the peculiar family and civic relationships of private life in Rome, as well as the ceaselessly new problems of government presented by every fresh conquest, at once originated the need for an adequate legal system, and roused all the best intellectual energy of Rome to provide it.

The patronage extended to the jurisconsults by the emperors, interesting as it is as a proof of their recognized political importance, was probably an effort to destroy the last refuge of independence, and was not dictated by a genuine zeal for legal improvement. PomDig. (i. 2). ponius relates that Augustus, "with a view to greater authority being imparted to the law, enacted that legal opinions should be given on his own authority (ex autori-tate ejus), and that from this time this right began

Suet. Calig. 34.

A. D. 117.

to be applied for as a privilege." Caligula (B.C. 67), with a wild petulance worthy of him, is described by Suetonius as boasting that "with respect to the jurisconsults (as though he was going to abolish all use of their skill), he would effectually secure that no one should give any legal opinions but himself." A rescript of Hadrian, quoted by Pomponius as having been written in reply to a request of some persons of prætorian rank, that they might have the privilege of giving legal opinions under the emperor's sanction, was to the effect that "this was not a matter of petition, but was a service to be rendered by them, and so he should be delighted if any one who believed himself competent would set himself to giving legal advice to those who required it." The exact import of this rescript has been largely discussed by modern French and German writers, in order to extract from it the exact import and effect of the special patronage alluded Puchta's opinion seems reasonable enough Puchta, Instit. that the rescript is merely cited by Pomponius by way of showing the flattering manner in which the emperor regarded the juristical profession, and that the passage cannot be used for establishing any theory whatever. A more cogent indication of the nature and limits of the imperial patronage is given by Pomponius himself, when he says, that before the time of Augustus "the privilege of giving legal opinions to all who require them (publice respondendi) was not recorded, but every one who held himself to be competent gave them freely; and that they did not give their opinions under seal, but generally wrote themselves to the judges, or those who consulted them called them as witnesses." And Gaius,

to.

Gaius i. 7. in a well-known passage, says that in his time (circ. A.D. 120), "if all the jurists who had a special licence to give advice were of one opinion, that opinion was held to be law; if they differed, the judge might follow what opinion he chose, as is laid down in a rescript of the Emperor Hadrian."

The direct influence which the emperors must have exerted over the jurisconsults, as well as the reciprocal

influence which the jurisconsults must have exerted over the imperial legislation, is manifest from what Suetonius and the other imperial biographers tell us of the practice of the emperors to summon to their councils leading persons in the State, specially qualified by their studies and attainments to advise on the particular business in hand. This council (concilium), so irregularly Suet. Octav. 35; and see constituted, became a fixed institution under Ortolan. i. the name of the Consistorium after the time of P. 285. Diocletian, and the auditorium, mentioned by A.D. 284. Ulpian in the Digest, seems to have been the Prf. L. 22, same council sitting for the purpose of giving D. (xxxvi. 1). judgment.

Instit. iv. 25.

The passage in Aulus Gellius, in which he speaks of the public places at Rome specially used by those engaged in publicly teaching law, or in giving opinions, seems to indicate a transitional stage between the purely domestic character of the functions of the earlier jurisconsults and the purely official character into which the functions of the later jurists degenerated.

The history of the celebrated division of the Roman jurisconsults in the time of Augustus, afterwards known as the two schools of the Sabinians and the Proculians, dating their descent severally from Ateius Capito and Antistius Labeo, is interesting, rather from the light it throws on the high organization which had begun to prevail in juridical studies than from any certain conclusions which can thereby be drawn as to the principles at issue between the rival schools. There are several suggestive notices, by the earliest Roman authorities, of the biographies of the founders of these two schools, Tacit. Annal. and it is natural that circumstances in their iii. 75. Aul. Gell. xiii. 12. personal history should have been made the D. (i. 2.) most of to explain such characteristic modes Suet. Oct. 54. of thought as can clearly be attributed to one school or to the other. It would seem that at least it was the prevalent belief among their successors, that while both Capito and Labeo were equals in erudition and in acuteness of mind, yet that Capito owed his eminence rather to imperial