and censorship above it. Thus, in general, the prætor was not an elderly lawyer, but a middle-aged politician. In matters of delicacy or difficulty he was naturally dependent on the advice of the jurisconsults. They were the experts in law, respected and resorted to as such by all concerned in the administration of justice, by the prætor, the judex, the orator or advocate, as well as by private persons who wanted to know their legal rights or the means of asserting and securing them. Often, especially in earlier times, they were elderly men who, after passing through the whole series of political distinctions, found an agreeable occupation for their advanced years in giving to their fellow-citizens the benefit of their knowledge and experience. Cicero, in more than one passage, shows us attractive pictures of Roman statesmen passing a serene, useful, and honored old age in such employments. But as time went on, and the law became more extended and complex, the jurisconsults were usually men who devoted their lives to the study and exposition of the law; that is, they were professional lawyers and counsellors. An example of the former class is the elder Cato-Cato the Censor-who died at an advanced age in the year 149 B. C.; among his prodigious and multifarious activities, he is said to have composed, apparently in his later years, several books on law. His son of the same name, who died in middle life a few years before the father, would be an example of the latter class. He

gave his strength to the law, made it the main business of his life, and wrote books upon it more numerous than his father's.

We have placed the beginning of a scientific lawliterature at about 100 B. c. There was an earlier lawliterature, to which these books of the Catos belonged, and were by no means its first productions. We hear of a law-book written as early as 300 B. c. But for a long time these books of law had no claim to a scientific character. They were mere collections of forms and rules, without any attempt to trace the principles involved in them, or to arrange the materials according to a logical system. The first jurisconsult who applied a scientific method to the treatment of the law was Q. Mucius Scaevola, whose old age coincided with the early youth of Cicero. He was, as we have already seen, the earliest writer cited in the Digest; four passages from a book of definitions written by him are found in the collection. He was followed by a scholar of no less ability and fame, Servius Sulpicíus Rufus, of about the same age with Cicero, who praises him in high terms as the greatest of all jurists. As an orator he was surpassed only by Cicero himself. And now the number of jurisconsults who wrote treatises on law, begins to be large. It would not be worth while to enumerate here even the more distinguished names in the series. It may be curious, however, to notice a division into opposing schools or sects which arose

among them and continued for nearly two centuries. This division commenced in the reign of Augustus, with two jurists of strongly-contrasted characters and tendencies, Ateius Capito, a warm supporter of the imperial despotism, and Antistius Labeo, a man of independent spirit and strong leanings toward the old republicanism. The schools, however, were named from later chiefs. The followers of Capito were usually called Sabinians, from his scholar Masurius Sabi

those of Labeo were called Proculians, from Julius Proculus, a scholar, not of Labeo himself, but of his follower Nerva, grandfather of the Emperor Nerva. It is remarkable that for a series of generations, from the days of Augustus to those of the Antonines, every jurist enrolled himself under one flag or the other, and was known as a Sabinian or a Proculian. The student followed the juristic faith of the master under whom he studied; if the teacher was a Sabinian, all his pupils were Sabinians, and all their pupils likewise. There may have been cases of conversion from one denomination to the other, but we hear nothing of them. It does not appear that the controversies of the two schools were conducted with bitterness or exasperation; yet the party lines were drawn with much distinctness. The two schools differed on many single points of opinion and doctrine. It is remarkable, however, that these differences do not appear to depend on any general principle, or mode of thought, or method

of investigation, characteristic of either party. Repeated attempts have been made to trace some such general ground of separation. Thus the differences have been referred by some to the influence of the Stoic or the Epicurean philosophies; by others, to an historical or an unhistorical method in the interpretation of the old law; by others, to innovating or conservative tendencies; by others, to a recognition of reason or of authority as the supreme guide. But none of these solutions will explain more than a part of the facts. From what we know of the personal characters of Labeo and Capito, it is likely enough that the original differences may have been of the kind last mentioned that Capito may have been more inclined to follow established rules without thinking or judging for himself; Labeo more disposed to break over established rules, in reliance on his own thinking and judgment. But, as the schools passed down from one generation to another, new questions and controversies were continually added to the old ones; and if the differences had at first a common character, such as the one just supposed, this soon ceased to be the case. In fact, it was this multiplication of unconnected controversies that led eventually to the dissolution of the schools. Men must arise sooner or later who would be unable to agree with either school on all the points of distinction, who would recognize the Sabinians as right on some, the Proculians on others, and on others,

perhaps, would be inclined to dissent from both, preferring some third view of their own. The jurist Gaius, in the time of the Antonines, often speaks of himself as a Sabinian; perhaps he was the last who gave himself that name. Certain it is that the later jurists included in the Digest-Papinian, Ulpian, Paulus, and others-do not refer themselves to either school, but hold themselves free to exercise an independent judgment on all points of legal controversy.

A few words now as to the authority attached to this juristic literature. We have seen that the jurisconsults were the great expositors and interpreters of the law, and that courts and magistrates, as well as private parties, relied on them for legal information and counsel. Yet for a long time-through the whole period of the republic—their influence was only moral. Their counsel was received because they were believed to be able, learned, and honest; but nobody was legally bound to receive it. The prætor and the judex might act upon their own opinions of the law against the concurrent judgment of the jurisconsults. doubt they did so very rarely, if ever; but there was no law to prevent them from doing so. But under the imperial régime there was a change in this respect. Augustus gave to certain jurists a privilege called jus respondendi: they could not only give answers when consulted on points of law (that right they had always enjoyed), but their answers were now to have the force

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