having nothing but 'a beggarly account of scraps and fragments '.' There are points of resemblance which make a comparison between the development of law at Rome by the prudentes and its growth in England through a vast series of judicial decisions, both interesting and instructive; but there is a difference of very great importance between them, which is this;-at Rome the jurists were not usually judges, nor were the judges usually jurists; and hence it was not with strict reference only to an actual concrete case that a jurist could make new law, but he could do this upon a hypothetical set of circumstances submitted to him by a pupil or any other person; and, as is remarked by Sir Henry Maine 2, 'where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased.' The development of English case law, on the other hand, has been merely the outcome of practical necessity, and from the scientific point of view is open to many of the objections which have been stated as against it by Austin. The Roman jurisprudence owed its perfection precisely to the fact that in it theory and practice were never in a constant state of antagonism; whereas in England the practical disregard of the one in favour of the other, or injudicious efforts at reconciliation, have often had the effect of at once marring the theory, and perverting the practice.

As has been observed, the first Roman jurist who can be credited with a genuine scientific treatment and exposition of the law was Q. Mucius Scaevola, who 'ius civile primus constituit generatim in libros decem et octo redigendo' (Pomponius in Dig. 1. 2. 2. 41). From another work of his, Liber singularis öpwv (definitions), there are four excerpts in the Digest. C. Aquilius Gallus, Cicero's colleague in the praetorship, to whom are due the exceptio doli, postumi Aquiliani, and the Aquilian stipulation (Inst. iii. 29. 2), was Scaevola's most celebrated auditor, and himself the teacher of Servius Sulpicius Rufus, consul B. C. 51, whom Cicero calls the first of all jurists, and who in his discussions of legal questions followed a logical method which gave a powerful impulse to the scientific treatment of law. Among the jurists of Cicero's age who composed works on the subject are Aufidius Namusa, Aulus Ofilius (author of the first commentary on the edict), Alfenus Varus, C. Trebatius Testa, Aulus Cascellius, Q. Tubero, and Aelius Gallus.

Under Augustus we first find traces of a division of the jurists into two sects or schools. Their respective leaders, distinguished from one another by a difference of political no less than of legal views, were Antistius Labeo and C. Ateius Capito. Labeo had inherited from his father Quintus a strong republican sentiment, and was in the habit of lamenting the prevailing disrespect of the good old laws which had never been constitutionally abrogated. At first an auditor of Trebatius, he attended the chambers of all the prominent jurists of his day; and the width of his studies liberalised his views on law, and saved him from a failing which was not uncommon among his contemporaries, a slavish devotion to the tenets of some particular teacher. A man of varied culture and instructed in far more than one department of knowledge, his leading characteristics were a wide intellectual range, a correct appreciation of the place of law in social development and of its relation to other sciences, a dislike of all pedantry, a wealth of new views and principles, with which he was ever ready to challenge and supersede the old. Sixty-three excerpts from his writings are preserved in the Digest. Capito was more or less of a novus homo, and a supporter of the imperial régime, in which he saw the best prospects of his own advancement. It is related of him that, with a false show of independence, he opposed Tiberius when the latter wished to stop the prosecution of a man accused of putting an affront upon the imperial dignity. As a jurist, he was distinguished by a devotion to the letter of the law and the traditional treatment of legal questions, and by a too literal interpretation of positive rules.

The opposition between the two was thus the opposition between an absolute reliance on traditional principles and opinions supported by approved authority, and a legal mind conscious of its powers, of the living organic nature of law, of the inevitableness of its growth and expansion. It resulted in a number of legal controversies between Labeo and Capito, which they bequeathed to their successors; thus originating the two schools whose disputes were ever widening their range, and which termed their founders and leaders 'nostri praeceptores,' and those of their opponents 'diversae scholae praeceptores,' respectively. The leading disciple of Capito was Masurius Sabinus (Gaius ii. 218), from whom the school derived its name 'Sabinian,' and who, as having given it a new direction, is to be regarded as its proper founder. Capito had contented himself with a passive resistance to Labeo's innovations; Sabinus and his followers even went so far as to adopt Labeo's tendency to develope new views, but were careful to disagree from the other school whenever an

opportunity displayed itself. Among the leading Sabinians may be mentioned C. Cassius Longinus, who died under Vespasian, Caelius Sabinus, Javolenus Priscus1 (206), Salvius Julianus (457), who has been already mentioned as the compiler of the Edictum perpetuum under Hadrian, Sextus Pomponius (585), Sextus Caecilius Africanus (131), and finally Gaius (535), author of the Institutionum Commentarii quatuor, the first book, so far as we know, bearing this title and intended for elementary instruction, and also of Libri septem rerum quotidianarum sive aureorum, and Commentaries on the Twelve Tables, the lex Iulia and Papia, and the urban, provincial, and aedilician Edicts. Labeo's first two successors were M. Cocceius Nerva, mentioned in Tacitus, Ann. vi. 26, and Sempronius Proculus (37), after whom this school was called Proculian; his principal followers were Pegasus, praefectus urbi under Vespasian, the younger Juventius Celsus (142), and Neratius Priscus (64), whom Trajan is said to have preferred to Hadrian as his successor in the empire. After him on the one hand, and Gaius on the other, we have no further traces of the controversy between the schools. It would seem that a reaction had set in, probably because differences of opinion which had once been genuine had now been degraded to mere hair splitting, or because the jurists. on both sides had become possessed with the spirit of Labeo, and were beginning to revolt against the abuse of authority; at least we may infer from Gaius (iii. 98) that the pupils had taken to criticising their masters. Böcking (Institutionen § 17) is of opinion that the disappearance of the schools is sufficiently accounted for by the condition of law and legislation in the age of the Antonines, and by the establishment of public instruction in legal subjects, upon which more will be said hereafter. However this may be, the subsequent jurists took each his own line, though only the most famous of them need be mentioned here. From Ulpius Marcellus, commander-in-chief in Britain under Commodus, there are a hundred and fifty-nine excerpts in the Digest; Q. Cervidius Scaevola (307) was teacher of Papinian and of the emperor Septimius Severus; besides these, Claudius Tryphoninus (79), Venuleius Saturninus (71), Callistratus (29), Aelius Marcianus (275), and Florentinus (42), deserve notice. But the greatest names are yet to come. Aemilius Papinianus was esteemed by all his successors the greatest of Roman jurists. He commenced under Marcus Aurelius (A. D. 161-180) a political career which ended in his

1 The figures in brackets after a jurist's name denote the number of extracts from his writings preserved in the Digest.

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being made praefectus praetorio, next to that of the princeps the highest post in the empire, and throughout which he maintained a moral rectitude and an integrity of character to which he owed his fame no less than to his distinction as a lawyer. After Caracalla (A. D. 211–217) had murdered his brother Geta, he called upon Papinian to justify the deed before the senate and people; but the jurist replied that to accuse a man who had been wrongfully put to death was as good as to murder him a second time, and steadily refused to speak a word in the emperor's behalf; the refusal cost him his head. From his writings there are five hundred and ninety-five excerpts in the Digest, but this number is no criterion of the authority which he enjoyed in legal circles. Contemporary with Papinian was Domitius Ulpianus, who wrote principally under Caracalla, and became praetorian prefect to Heliogabalus (218-222 A. D.); he met with a violent death at the hands of the soldiers under his command in A. D. 222. Owing to the large number of his writings which were extant in the time of Justinian, the aggregate of extracts from them (2462) in the Digest exceeds that from any other jurist; in fact he contributed to that compilation nearly one-third of its contents. Julius Paulus, who sat in the council of Septimius Severus (198-211 A. D.) and was praefectus praetorio under Alexander, was author of the receptae sententiae, and is represented in the Digest by two thousand and eighty passages. The series of classical jurists closes with Herennius Modestinus, a pupil of Ulpian, and teacher of the young Maximinus about A.D. 238, from whose writings the Digest contains three hundred and forty-five extracts.

After this tedious enumeration of the names of the most celebrated jurists, we may turn aside to consider briefly the nature of their influence and the modes in which it was exercised, including their styles of teaching and of legal treatment. The establishment of the empire brought with it a considerable change in respect of the responsa prudentium. Under the free Republic it had been competent to any one to profess the law, and to give advice on consultation; the form and effect of the responsa had been under no limitations. The influence of the jurists was one which the emperors would naturally find it difficult to destroy, not only because by its long and steady growth it had achieved a stature and a traditional position which might have long defied the direct attacks of opponents, but because it had always been independent of political rank, and unconnected with any constitutional office through which it might have been assailed. The craft of Augustus suggested the scheme of

bringing it into connection with, and placing it in a subordinate relation to, the new imperial system. He resolved to make the function of a jurist, so far as the class was to possess any authority, a quasi-public function; and this was effected by conferring on certain jurists the ius respondendi, whereby their responsa would be given, as it were, under imperial sanction: 'et, ut obiter sciamus, ante tempora Augusti publice respondendi ius non a principibus dabatur, sed, qui fiduciam studiorum suorum habebant, consulentibus respondebant. Neque responsa utique signata dabant, sed plerumque judicibus ipsi scribebant, aut testabantur, qui illos consulebant. Primus divus Augustus, ut maior iuris auctoritas haberetur, constituit, ut ex auctoritate eius responderent, et ex illo tempore peti hoc pro beneficio caepit. Et ideo optimus princeps Hadrianus, cum ab eo viri praetorii peterent, ut sibi liceret respondere, rescripsit eis, hoc non peti, sed praestari solere, et ideo, si quis fiduciam sui haberet, delectari se, populo ad respondendum se praepararet' (Pomponius in Dig. 1. 2. 2. 49). A form was thus prescribed in which official responsa should be delivered; they must be written and sealed by their author, as a precaution against forgery. This practice of investing certain selected jurists with the ius respondendi was followed by Augustus' successors, and the prerogative was constantly assuming more and more the character of a magisterial function; thus Gaius (i. 7) defines the prudentes as those 'quibus permissum est iura condere,' and a later writer speaks of a jurist being possessed of νομοθετικὴ δύναμις. It is not certain what discretion a iudex had under the older system as to accepting or rejecting the opinion of a prudens whom he consulted. Now, however, he was obliged to decide in accordance with the advice of any jurist to whom the ius respondendi had been delegated by the Emperor. Yet among those who were possessed of this privilege there was no ascertained order of precedence; how then was the matter decided if the two parties to an action submitted discordant responsa? In such a case we must suppose that the judge was free to choose whichever of the two opinions seemed to him the more satisfactory. But the difficulty became greater as in course of time the writings of the privileged jurists, the 'iuris auctores,' accumulated; for these writings were as authoritative as the responsa, of which in a large degree they consisted (whence Justinian says (Cod. i. 17. 1. 4) Antiquorum prudentium, quibus auctoritatem conscribendarum interpretandarumque legum sacratissimi principes praebuerunt'); and it obviously became easier every day for a party to quote from this or that jurist a view diametrically opposed to the