vigorously the laws as they were than to devise changes in them. The very novelty of the ground on which he was treading would make him disposed rather to err on the side of caution than of precipitancy. It is, indeed, probable that the actual modifications incorporated from time to time into the Edict had been gradually adopted in practice in order to remedy special cases of injustice before they were elevated into rules of law for the year of their formal publication. It thus appears rather surprising, considering the severely conservative habits of Roman lawyers and statesmen, not that the Prætors innovated so little, but that they innovated so much.

The gradual absorption of all legislative power, whether statutory or judicial, by the emperors, naturally led to the suppression of the functions of the Prætor Urbanus as a source of legislation; while the reconstruction of the provincial administration, and the increasing separation between the eastern and western provinces of the empire, which was taking place between the middle of the second and the end of the third century, all tended to divest the Perpetual Edict of its importance as a universal code. It was, no doubt, for a long time one of the leading written authorities of the law, and as such was constantly commented upon and reverently handled as a starting-point in statutory legislation. But the comments of authoritative jurists were of an importance equal at least to that of the text; and a rescript of the emperor could any day suspend or modify (though, apparently, not openly abrogate) its most familiar clauses. The Prætor became, at the same time, divorced from his Edict and degraded into an ordinary magistrate hemmed in on every side by the written letter of the law. The office itself was in existence certainly up to the time of Constantine, but the Prefect of the city was treated as a higher judicial officer. The degradation of the functions of the Prætor marked another significant change, the gradual abolition of the Formulary system. This was apparently brought about by two distinct causes, one, the superior convenience of requiring the magistrate (no longer the

L. 17, C. (vii. 62). L. 18, C. (v. 71).

dignified official of the republic), who presided over the proceedings, to take cognizance of them from first to last, without referring the case to another tribune; the other, the pettifogging distinctions which the abuse of the Formulary system had brought in its train, to the subversion of practical justice. The constitution of Diocletian (A.D. 294) abolishing the practice of referring matters to subordinate judges, except in the case of the urgent preoccupation of the superior judge, seems to point to the first of these causes. The constitution of Constantius (A.D. 343), for, the suppression of the C. (ii. 58). formulæ, as "laying snares for the acts of every one," seems to point to the second of these causes.

L. 2, C. (iii. 3).

§ 2.—From the Suppression of the Formulary System by Diocletian (A.D. 294), to the Death of Justinian.

The subject of this section is more conveniently treated in the chapter on Procedure. It is pointed out there that there is so unbroken a continuity between the earlier and the latest Roman procedure, that this subject must needs be treated after a more strictly historical method even than other parts of the law. It becomes then necessary, in order to introduce the system of procedure as it stood under Justinian's latest development, to revert in some detail to the whole course of Roman procedure from the first. This again necessitates repetition, but it will be avoided to some extent by deferring the completion of the history of judicial legislation between the time of Diocletian and that of Justinian to a later chapter, and there treating it once for all.

CHAPTER IV.

STATUTORY LEGISLATION AND CODIFICATION.

§ 1.-Legislation during the Republic.

IN Rome, as in all other States, not only was the customary and unwritten law anterior to all express legislation, but when the habit of express legislation was fully formed, the occasions on which it was actually resorted to were, during a long period, few and far between. These occasions, indeed, were, at first, chiefly dictated by political or constitutional necessity, and were not the outcome of a comprehensive reforming spirit. Thus, in giving an account of the organs and methods of legislation in republican Rome, two difficulties have to be encountered. One is that of recognizing the place which statutory legislation occupied in relation to the unwritten rules and customs as usages in vogue, as well as to the ceaselessly progressing judicial legislation. The other difficulty is the discrimination of what belongs to the process of legislation, regarded from a purely juridical point of view, and what belongs to it as an instrument of political change.

It will be found that in early Rome, as in more modern States, it was out of an urgent need for political renovation-often expressing itself in revolution-that a conscious energy in the direction of the amendment of the rules of the customary law, or jus civile, developed itself. The XII. Tables themselves, regarded from this point of view, as a product of the temporary legislation of the decemvirs, are a remarkable instance of the stimulus to reform of the private law supplied by popular zeal for fresh constitutional securities.

Throughout the whole course of the republic, this intimate intermingling of general legislation with constitutional reform is conspicuous, and the comprehensive legal amendments in the later days achieved by the Gracchi, by Sulla, and by Julius Cæsar, are only specimens, on a wide scale, of a course of beneficial change which, during a long series of epochs, was incessantly at work. Though, politically and socially, the personal agent, whether consul or tribune, who inaugurated legislative measures by bringing them before the appropriate assembly, naturally fixes attention on himself, and, consequently, often gave his name to the new law, yet it is to the legislative organ itself that attention must be directed, if the logical history of Roman law is to be correctly expounded. This legislative organ is either one or other of the comitia or the senate.

At this point an initial perplexity presents itself to the historical student of Roman law. There is no doubt but that, through a series of exceptional proceedings, which will shortly be described, there were periods when, in theory at least, there were simultaneously in existence three if not four legislative bodies practically independent of each other, and yet each of them possessed of sovereign power. That no record is preserved of any purely legislative conflicts between the several assemblies, and that, in fact, at any given moment, the task of legislation was either absorbed by one of them or distributed on recognized principles between them, is an illustration of the way in which constitutional anomalies often vanish in practice before the presence of innumerable minute facts and influences, of which no account is taken in formal and technical descriptions.

In republican Rome, indeed, owing to the foreign wars, in which it was ceaselessly engaged, and the social emergencies, to the relief of which so much of its political activity was directed, executive action far surpassed legislative action in prominence and immediate importance. Hence the chief functions of the legislative assemblies, and those about which the only serious controversies and constitutional struggles arose, were concerned with the appointment of

the numerous officers of the executive. But, as to these tasks, the respective functions of each assembly were, at any given moment, clearly and sharply defined. Not, indeed, that no irregularities and usurpations occurred, but they were at all times known to be such, and proceeded, less from any indefiniteness attaching to the limits of any assembly's province, than from the overbearing influence of some particular person, or from the casual pressure of outward events.

There were three leading causes which severally determined, at different epochs, the quarter to which the plenary legislative authority was gravitating. The first cause was the chronic insurrection of the plebeians against the patricians, represented in the progressive development of the plebeian assembly, the comitia tributa. The second cause was the insurrection of the middle-class freeholders against the capitalists, represented in the reconstruction of the plutocratic assembly of Servius Tullius, the comitia centuriata, in such a way as to qualify the franchise of wealth by a franchise of residence. The third cause was the gradual overweening weight of the executive, which was represented, now by the legislative assumptions of the Senate, now by the influence of some demagogic consul or tribune over the multitudinous and disorganized assemblies which become habitual-heralded the advent of the empire.

In order to appreciate the respective shares in legislation of the different assemblies at different epochs, it is necessary to travel over the successive steps by which the constitutional development was effected, but without dwelling on notorious historical facts, which belong rather to politics than to law.

At the outset of well-accredited history, that is about the time of the expulsion of the kings, or a little later, the only constitutional assemblies are the senate and the comitia curiata. The comitia calata resembled the comitia curiata in being, in fact, composed of exactly the same persons, that is, the heads of the patrician families. But, inasmuch as the people present took only a passive