Gaius' Institutes of Roman Law: An Historical Introduction

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Source: Poste's Historical Introduction to Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).


In order to justify the character of this introductory essay it is necessary to say a few words about the intention with which it is written. The reader must regard it mainly in the light of an introduction to the Institutes of Gaius, not in the light of a disinterested sketch of the history of Roman Law. Had it been intended to have the latter character, both some of its omissions and some of its inclusions would be wholly unjustifiable. The most signal of the omissions is the neglect to give an adequate treatment to the stage of Roman Law which yields to no other in importance—the stage at which it passes from the religious to the secular sphere, from Fas to Jus. One of the chief questions which is, or should be, agitating students of Roman Law at the present day, is that of the period at which this transition was effected. For, if it is true that Roman Law retained its priestly character and its religious sanctions to a late period of the Republic1 , then the traditional history of the Twelve Tables is an improbability, and the account given by Cicero and other writers of the legislation and procedure of the Monarchy and early Republic is an anachronism. The student of Gaius, however, is not very intimately concerned with this far-reaching historical question; and I have been content to state my general adherence to the traditional view without attempting to justify it by evidence.

Amongst subjects included in this sketch, which have little direct bearing on the history of Roman Law, I may mention the descriptions of the structure of the different Comitia at Rome and the account of the manner in which the powers of the Princeps were conferred. From the point of view of the general history of the civil and criminal law in a State it is not of much importance to determine the particular mode in which a legislative assembly is constituted, or the precise manner in which a sovereign (whether nominal or real) is invested with his authority. But these historical questions do to some extent underlie subjects which are treated by Gaius; and, as it was not found convenient to deal with them at any great length in the commentary, a place had to be found for them in this introduction.

§ 1.

The Unification and Extension of Roman Law.

The history of Roman Law begins for us with the traditions that have been preserved concerning the Roman Monarchy. The existence of a Monarchy such as that described for us by annalists like Livy and Dionysius, implies the existence of a consolidated State, with a central legislative and executive power and a tolerably uniform system of law. In the Monarchy, however, and even in the early Republic it seems that the system of law was not marked by perfect uniformity, since the two classes of Patricians and Plebeians, which made up the Roman State, appear to have been distinguished, not only by the possession of different political privileges, but also by the possession of different systems of customary law1 . It is even possible that a further divergence of practice may have existed in the most primitive society, or societies, out of which the City and Monarchy of Rome developed—that a considerable amount of autonomy in legal relations may have existed in the Clans (Gentes) and Villages (Vici), out of which the earliest Rome was formed. The history of Roman law, from its beginning to its close, would thus be marked by a process of gradually increasing unification. First the customs of the Clans were merged in the customs of a State; but this State consisted of two classes, Patricians and Plebeians; and each of these classes seems to have had a customary law of its own. Then an attempt was made to create a uniform system; and this uniformity was probably secured by making patrician law approximate as closely as possible to plebeian—the law of the few to the law of the many. A further advance was made when Rome had become the mistress of Italy. Italian customs were made ultimately to conform to those of the leading State, and the free cities of Italy became the municipalities of Rome. Lastly, Rome had created an Empire. For a very long period she adopted the wise and cautious policy of recognizing, as far as possible, the local and tribal law of the cities and peoples under her control. The recognition of this local or tribal law was not, however, merely a symptom of the favourite Roman principle of non-interference. It was also a sign that the privileges of Romans and Italians were not possessed by provincials; for the conferment of Roman citizenship, or even of Latin rights, necessarily carried with it the use of the forms of Roman Private Law2 . Hence, when a time came at which Rome was willing to raise States or individuals in the Provinces to a level with her own citizens, the law of Rome came to take the place of the territorial or tribal law of these political units. The process of a thorough imperial unification by means of a common system of Roman Private Law had begun.

§ 2.

The Epochs in this process of Unification and Extension.

The dates of the three epochs which we have touched on can only be vaguely indicated. We have no knowledge of the year, or even of the century, when the smaller political units, out of which Rome was formed, became so thoroughly marshalled under the rule of a common government that the customs of the Clans were made to conform to the principles laid down and enforced by a single superior authority. For the second epoch—the period, that is, at which an attempt was made to secure a uniform system of law which would be binding equally on Patricians and Plebeians—tradition does supply a date, one, however, that has more than once been doubted by modern writers on Roman History and Law1 . This traditional date is comprised in the years 451-448 b.c., years which the Romans believed to mark the creation of the Decemviral Commission and the publication of the Law of the Twelve Tables. The third tendency—that of the unification of Rome with Italy,—although it had begun to be felt in isolated cases from a very early period of Roman History, may be said to have received its final impulse at the close of the great war for Italian freedom, generally known as the Social war, in 89 b. c. The last epoch—that of imperial unification—may be said to have been ushered in by the accession of Caesar to supreme power in 49 b. c. It had not been closed even by the time of Gaius, about the middle of the second century a. d.; for, even at that late period the Eastern part of the Empire still abode by Eastern forms of law2 . It may even be questioned whether the Edict of Caracalla, which is believed to have extended Roman citizenship to all the free inhabitants of that portion of the world that was ruled by Rome, between the years 212 and 217 a d., really eliminated all the local varieties of customary law. Local customs tend to die hard, and it was never in the spirit of the Roman Empire to suppress them. The legal unity of the Empire was always more strongly marked in the matter of Procedure than in the matter of Substantive Law. The processes of the Courts were the same for every Province at a time when the greatest varieties of customary law were recognized by these courts.

§ 3.

Stages of Roman Legal History—The Clan and the Family—Evolution of individual rights.

We may now attempt to treat in greater detail the stages of Roman Legal History which we have outlined. The earliest stage—that marked by the independent or almost independent life of the Clan or Gens—is one for which, by the nature of the case, no definite historical evidence exists. The reality of such a life is merely an inference drawn from the characteristics of the Gens as it appears before us in the historical period. These characteristics seem to prove that the Gens is not a really primitive institution, but a late and advanced stage in the social development of the Latin races; but, on the other hand, they may show that it was in many respects a more primitive unit than the State; that is, that it exercised rights and duties which were ultimately exercised by the State. No political society worthy of the name can deal with Clans as the subjects of rights; it can deal only with Families or Individuals. Hence, if the Roman Gens ever lived a strong corporate life, the authority of the Roman State must in those days have been weak.

The organization of the Gens was based on the patriarchal idea in its extreme form: that is, on the conception that relationship is only binding when it can be traced through the male line. And this is the fact which seems to prove that the Gens marks a late and mature stage in the development of Latin societies; for the patriarchal idea is not one that is readily grasped by the mind of primitive man. Yet, late as the Gens is when considered in reference to the prehistoric development of the Latin race, it perhaps possessed, before the very dawn of history, a unity and power of its own, of which but pale reflections survive in the historical period. In historical times the only test of unity was the common name borne by the Gentiles1 ; the chief signs of corporate action were their guardianship of the insane and their reversionary right of guardianship over women and children2 — powers which the Gentiles must have exercised by delegating their authority to a personal representative. The further right which they possessed in later times, of succeeding to intestate inheritances in the last resort1 , was perhaps a right possessed by individual members of the corporation rather than by the corporation itself. But a corporate activity far greater than this has been suspected for earlier times. There is indirect evidence that all Private Land (Ager Privatus) was at one time owned by the Gentes, not by families or individuals2 , and the view that the primitive Roman Senate was in some way representative of the Gentes is in accordance with the belief of Roman antiquity3 . The fact that the primitive Roman State was in many ways conditioned by its clan organization seems to be certain. As the State grew stronger, it substituted the Family for the Clan. Between the two there is only a difference of degree. The Family (Familia) is the aggregate of the members of a household under a common head, the Paterfamilias; whereas the Gens is the aggregate of all individuals who bear a common name and who, therefore, if their ancestry could be traced in the male line through all its stages, would be found to be the descendants of some ultimate common ancestor. But the Familia is a far smaller, and therefore a far less powerful, unit than the Gens. It cannot so effectively dominate the State or impede its activities4 . Again, the heads of families are many in number; the heads of the Gentes (who must have existed at the time when the Gens was the important unit) were necessarily few. The State which deals with families deals with a multitude of individuals, not with an oligarchy representing the interests of a number of corporations. The conception of individual rights, in their modern sense, was, it is true, never fully recognized in Roman Private Law. It was impeded by the Patria Potestas—the life-long power of the father over the son. But much was ultimately done to lessen the rigour of this patriarchal rule; and the principles of Roman Law were finally extended to races which knew nothing of the Patria Potestas. This law ultimately gave the most perfect expression hitherto witnessed by the world of rights which were both universal and individual. The existence of the Empire gave Rome the power, possessed in as high a degree by no other State, of dealing with the individual on universal lines, because she was not hampered by the barriers between man and man thrown up by separate national institutions.

§ 4.

Early Religious Law (Fas)—The Leges Regiae—The Secularization of Law.

A process, which runs parallel with that which we have just described, is the process by which Roman Law came to be secularized; the process, that is, by which human were gradually substituted for divine sanctions. The customary law of a primitive society is either identical with, or developed from, some form of belief which implies the omnipresence of the gods and their detailed interest and activity in human affairs. In primitive Rome the pleading (actio) of the litigant in a civil suit is a religious chant, every word and cadence of which must be learnt from the priest; the wager (sacramentum), by which the process is stated, is a gift to a temple, and is probably conceived as an atonement for the involuntary perjury of the man who loses his case1 ; the penalties of the criminal law are means of expiating the anger of the gods, the severest form of atonement being the sacrifice of the sinner on the altar of the deity whom he has offended2 . Rome in the historical period still preserves many traces of these beliefs of her infancy. They are found in the respect for the Auspices, in the conservatism which maintained the cumbrous forms of the old pleadings (actiones) and the custody of these forms by the Pontifical College; in the varied methods by which crime or sin is punished, some offences being reserved wholly for the secular courts, others being visited by the judgments of the Pontifical College, others again being subject to the milder chastisement of the Censor before he performs the religious rite of Purification (Lustratio). But the belief of the Romans themselves was that, in the very earliest stages of their recorded or imagined history, the primitive epoch of complete subservience to religious forms, if it ever existed, had been already passed, and that even in the time of the Kings something approaching a clear line could be drawn between the functions of Religious Law (Fas) and those of Secular Law (Jus). At the close of the history of the Republic there could be shown, in contradistinction to the great secular code of the Twelve Tables, a collection of religious ordinances, believed to be even more ancient than this code, and known as the Laws of the Kings (Leges Regiae)3 . These laws are not represented as having formed a code, but merely a compilation. They were believed to be regal ordinances, issued by different Kings, which had been collected in the early days of the Republic by a Pontiff named Papirius1 . It was held that they had been publicly exhibited in Rome, and were restored, like the Twelve Tables, after the burning of Rome by the Gauls (390 b. c)2 . At the end of the Republic the compilation was edited, perhaps to some extent revised, by a scholar named Granius Flaccus, who is believed to have been a contemporary of Caesar3 ; but there is no reason for supposing that Flaccus introduced any essential alteration in the tenor of the ordinances. These ordinances, in the form in which they have been preserved to us, bear the strongest internal marks of their genuineness. Some of the provisions which they contain are quite prehistoric and could never have been valid at any period of the history of the Republic. Others deal with purely religious observances, which may belong to any date, but may be as early as the city of Rome itself. The Royal Laws, in fact, contain a series of ordinances, dealing with social, moral and religious life, such as may have been issued over a long period of time by the College of Pontiffs. It is not likely that all of these rules really go back to the epoch of the Kings; but many of them must do so, for they reflect an extremely primitive stage of culture and religious belief. In fact, one of the most surprising features of the Royal Laws is their lack of significance for the ordinary current of Roman life, as it was lived in the historical period. Where they are not a dead letter, they refer only to slight and exceptional contingencies, to the bare outline of the political life of the State and to the faintly defined structure of its hierarchical organization; whereas the Law of the Twelve Tables is a great living force, which pervades the whole of Roman business life. The Royal Laws reflect on the whole the rule of Fas; the Twelve Tables almost entirely the rule of Jus. A comparison of the former compilation with the latter code, in regard to their respective influences, exhibits more effectively than any other evidence could do the triumph of secular over religious law even in the early period of the Republic.

§ 5.

Jus—Its different forms as exhibited in Procedure.

The counterpart to the rule of Fas is the rule of Jus. Jus seems originally to have meant ‘That which is fitting’4 , and the word never necessarily conveys the implication, contained in the word Law, that the thing it describes is the result of enactment by a Sovereign. It conveys rather the idea of valid custom, to which any citizen can appeal, and which is recognized, and can be enforced by, a human authority. Jus is a nugatory thing, a vain abstraction, until it can be realized; it is a thing recognized only in practice; and so indissolubly were the ideas of Right and Satisfaction connected with one another in the minds of the Romans that they used the same word ‘Jus’ for Right and for Court1 . This association of ideas gives us the clue to the fact that the only possible method of distinguishing between the different kinds of Jus is by appealing to Procedure. In early societies, where there is no science of Jurisprudence, the only way in which the distinctions between different kinds of law—public and private, civil and criminal—can be exhibited, is by pointing to the fact that different kinds of mechanism have been created for satisfying different kinds of claims. Thus the characteristics of private law are those of a civil suit. Here the action can be brought only by the injured party or his representative, the satisfaction recovered belongs to the injured party, the Court which gives the satisfaction is composed of some arbitrator or judge (arbiter or judex) chosen by the consent of the parties, but approved by the judicial magistrate who represents the State. Criminal Law may similarly be defined in terms of Criminal Procedure. Here the wrong done is regarded as inflicted, not merely on the individual injured, but through him on the State. The State, therefore, will not depend on the initiative of the injured individual to undertake the prosecution. It can either be taken up by any citizen, or is regarded as the peculiar duty of a magistrate. The magistrate is often both prosecutor and judge. The defendant has no voice in the selection of the Court. The Court consisted, in the earlier procedure at Rome which never became wholly extinct during the Republic, of a magistrate representing the State, or of the State itself in the form of the Sovereign Assembly of the People; at a later period, of a select body of Judices with a President (Quaesitor), both Judges and President being created by statute. The satisfaction recovered from the defendant in such a trial, if it takes the form of a fine, belongs not to the aggrieved individual but to the State; if it assumes the form of punishment which is not pecuniary, such punishment is inflicted by the State. The third class of occasions on which the State intervenes to correct a wrong or to chasten an individual, is that governed by the rules of Administrative Law2 . The procedure springing from this Law has analogies both to civil and to criminal jurisdiction. Administrative jurisdiction has as its object either the enforcement of a personal service to the State on an individual, or the exaction of a debt which he owes to the State. The obligation to service is generally enforced by a fine imposed by the magistrate. But whether what is demanded by the State takes the form of personal service or a pecuniary debt, the characteristic of Administrative jurisdiction at an early period of Roman History is that the magistrate who represents the State has a double character. He is not only prosecutor or plaintiff but also judge. This principle, however, was eventually modified. If the fine imposed exceeded a certain limit, an appeal to the People was allowed1 ; and, later still, the penalty might be sought either by a magistrate or a common informer before a civil court1 . When a debt to the State was the object of dispute, the custom may eventually have been established that the magistrate should not himself judge, but should appoint for this purpose a panel of those assessors of debts or damages who were known as Recuperatores2 .

The question as to what particular cases shall fall under each of these three heads of Civil, Criminal and Administrative Law is one that is answered differently by different political societies; and Rome herself gave different replies to this question at various periods of her history. But we know of no period in the life of Rome when the distinction between these three types of Law and Procedure was not clearly grasped, and expressed by the higher judicial authorities, who were at Rome in a very real sense the makers of law.

§ 6.

The ultimate sources of Jus—The Monarchy and the Early Republic.

The problem of the ultimate source and sanction of Jus was not one that troubled the Roman to any appreciable degree at any period of history. He was content to regard it as the product of Custom assisted by Interpretation. At a later period he supplemented it by acts of Legislation; but, even when he did so, he was much less concerned with the words of the enactment than with the manner in which these words were interpreted. Scarcely any people has had less of a gift, or natural inclination for, scientific legislation or the formation of a Code. The Roman’s dependence on authority and skilled interpretation was, therefore, great; and this authority and power of interpretation are believed to have been represented, in the earliest times, by the King and the College of Pontifices. Justice could only be obtained by a litigant who knew the formularies of action, precise verbal accuracy in which was necessary for the successful conduct of a suit1 . But this knowledge could be obtained only from the King and his Pontiffs. The King, too, must have given the ruling in law which determined what form of action should be employed2 . Even at this early period the private Judex or Arbiter may often have been used for the final settlement of a suit3 ; but the King must have assisted in his appointment; and his judgment must have been conditioned by the preceding form of action which the King and the Pontiffs had thought appropriate to the suit.

The change from Monarchy to Republic could have made little difference in the manner in which the law was revealed to the Roman litigant, except in so far as this change may have increased the power of the College of Pontiffs. The annual tenure of the consulship, and the fact that each occupant of this office was hampered by a colleague, prevented the new magistracy, which was supposed to give the forms of Jus, from exercising over its skilled advisers the authority which had been once wielded by the King; and the patrician aristocracy, each member of which might be a consul or a pontiff, must now have attained a solidarity which it had never known before. The tendency of this aristocracy was to close up its ranks and to assert a monopoly, not only of office, but of knowledge of the forms of law.

§ 7.

Patricians and Plebeians.

Had Rome been a homogeneous community, there would perhaps have been no agitation for the revelation of the principles of law which underlay the forms of procedure, and there would therefore have been no tendency towards an early codification. But Rome was composed of two communes, not of one. There was a Plebs within the Populus; and this Plebs possessed a solidarity which gave it the means of lifting up its voice in a demand, not for power, but for the protection of legal rights, and for the knowledge which was essential to that protection. The origin of the Plebs is wholly unknown. The favourite assertion of modern writers, that the Plebeians were a class which had emerged from a condition of clientship to the Patricians, does very little to solve the problem of the origin of the former class, except in so far as it suggests that some of the Plebeians were inhabitants of conquered cities that had been deported to Rome, and that others were voluntary sojourners from distant cities who were protected by the government and the patrician clans. But it seems impossible that causes such as these could have led to the creation of a mass of men that appears in early Roman history as forming the bulk of the community; and it is possible that further evidence (archaeological and ethnological) may show that the distinction between Patricians and Plebeians is one based on race, and that the existence of the Patricians as a governing class is the result of the conquest of a native race by bands of immigrant wanderers1 . Throughout Roman law there is a curious persistence of dual forms for the attainment of the same end which may be a survival of two distinct systems of customary law possessed by different peoples, the conquerors and the conquered. Thus we have the Sponsio side by side with the Nexum, marriage by Confarreatio side by side with marriage by Usus or Coemptio, the testament in the Comitia Calata side by side with the testament ‘per aes et libram.’ The procedure ‘by the copper and the scales,’ in the manifold forms which it assumes, seems to be especially a characteristic of the popular law of the commons. The exclusion of the Plebeians from the magistracy and the priesthood, and the denial to them of the right of Conubium with Patricians, may also point in the direction of a fundamental racial distinction between the two classes. But the disabilities consequent on this racial distinction, if we suppose it to have existed, were by no means limited to the domain of public rights. They pervaded the whole of Roman life to such an extent that there is considerable justification for the view that the early condition of the Plebeian was very like that of the client. In the first place, the Patricians maintained that they alone formed Gentes, and the condition of being a member of a Gens, or Gentilis, was that the man who made the claim should be able to point to a perfectly free ancestry2 . In this claim of the Patricians we therefore have the implication that the ancestors of the Plebeians were not free. In all respects but this, the Plebeians formed Clans just like the Patricians. A group of Plebeians who bore a common name formed a Stirps, but this Stirps was supposed to be a mere offshoot of some patrician Gens on which it was held to be dependent. It possessed no independent rights of its own. A group of Plebeians who could trace their ancestry back to a common head were called Agnati; but these Agnati had not the rights of inheritance, or perhaps the other family rights, possessed by the Gentiles. The rights of plebeian Agnati were recognized by the Twelve Tables; but this was perhaps the first recognition that they gained. In the second place, of the two rights which were subsequently considered as forming the minimum conditions of citizenship, the Jus Conubii was, we know, not possessed at all by Plebeians, and it is probable that they possessed the Jus Commercii in a very imperfect form. We cannot, it is true, point to a time when no Plebeian could conclude a contract, or bring an action, unless, like a client, he acted through a patron. But it is probable that in early times he had a very limited capacity for controlling land; that he held the ground, which he worked for himself, merely on sufferance (Precario), and not in virtue of his civic right (ex Jure Quiritium)1 . This seems proved by the fact that he was not originally liable to service in the legions2 : for there can be little doubt that such service was a burden imposed on landowners3 . It seems that the one great condition which led to the rise of the Plebeians as a power in the State was the recognition of their rights as independent holders of land. This recognition was accorded because their services were required as soldiers in the legions and as tax-payers. They could now hold and dispose of Res Mancipi; that is, those kinds of property which were assessed at the Census (Res Censui Censendo)4 and which, as being liable to such assessment, required peculiar methods of transfer as evidence of ownership. This change must have preceded or accompanied the great epoch of reform which is associated with the name of Servius Tullius.

§ 8.

Acquisition of voting rights by Plebeians—Assemblies of the Populus and of the Plebs.

When the army was made the basis of the new Comitia Centuriata, the wealthier Plebeians who were members of the army gained a vote; and the Comitia Curiata, originally patrician, must soon have come to admit members of the Plebs. But this voting power did little good to the class as a whole. Its true strength lay in its military organization. The first secession was an incident in a campaign; and it is not surprising that the officers whom the Plebeians appointed to protect their persons against the patrician magistrates, bore the military name of Tribuni. The creation of the Tribunate gave the Plebs a political organization, and was the starting-point of that dualism which runs through the whole of the Roman constitution—a dualism expressed in the distinction between the Comitia of the People and the Concilium of the Plebs, between Lex and Plebiscitum, between Magistratus Populi and Magistratus Plebis, between the Imperium of the one and the Sacrosanctitas of the other. The tribunes, however, could offer only personal assistance to outraged individuals, and though they proved a potent channel for the petitions of the Plebs as a whole, they were a very ineffective means of protecting the private rights of individual members of this order. Effective protection was in any case impossible until a fuller light had been thrown on the question what the rights to be protected actually were. Hence the demand for the publication of the principles of the law on which the jurisdiction of the patrician magistrates was based.

§ 9.

Unification of the Law by means of the Twelve Tables.

The story of the creation of the Decemvirate and the formation of the Code of the Twelve Tables, which has come down to us in a highly picturesque and legendary shape, presents us with the picture, first of a prolonged agitation of ten years (462-452 b. c.) maintained by the tribunes of the Plebs, then of a commission sent to gain knowledge of Hellenic codes, next of the appointment of two successive boards of Decemvirs for the years 451, 450 b. c., and finally of the ratification of the Code by the Comitia Centuriata and of its publication, in its completed form, by the consuls of 448 b. c1 The Greek influence on the Code2 , although slight, is undeniable, because it was unavoidable. It may not have been gathered, in the way affirmed by tradition, by the appointment of a commission to inspect the systems of law of different Hellenic states; but it was, at the least, an inevitable result of the prolonged influence of the civilization of Magna Graecia3 , to which Rome had been subject from the days of her infancy—an influence which successively moulded her army, her coinage, her commerce and her literature. Again no State, however self-centred, could dream of undertaking such an enterprise as a written system of law without glancing at similar work which had already been accomplished by neighbouring cities. But, in spite of the fact that some of its outline and a few of its ideas may have been borrowed from Greek sources, the Law of the Twelve Tables is thoroughly Roman both in expression and in matter. The form of expression is, it is true, not that of later Roman legislation—complicated, technical, obscure. Had it been so, the Twelve Tables could scarcely have survived. It was the form that was current in the verbal juristic maxims of this and a later period—brief, gnomic, rhythmic and imperative1 . As to the matter, that was conditioned by the task which the Decemvirs had to perform—a task which they accomplished with an astonishing degree of success. Their object was to make a common law for Roman society considered as a whole. It was no business of theirs to abolish patrician privileges or to remove the peculiarities of patrician ceremonial; but they had to find a system of Jus which would be equally valid for all Romans; and this they naturally found in the customary law of the mass of the people; that is, of the Plebs. They were forced to recognize a social disability of the Plebs, as exemplified in the absence of Conubium with Patricians2 ; for to remove it would have been an alteration of the Constitution as well as an infringement of patrician rights. But how completely they ignored the existence of the Plebs as a separate political community is shown by the fact that the tribunes do not seem to have been mentioned in the law at all. The assumption probably was that the publication of the Code should render the Tribunate unnecessary; and this it might have done, had the patrician government lived up to its promises.

The law of the Twelve Tables, as the ‘body of the whole of Roman law’ (‘corpus omnis Romani juris’) and the ‘fountain of all public and private law’ (‘fons omnis publici privatique juris’)—designations both of which are applied to it by Livy3 —contained ordinances on all the three branches of Jus, civil. criminal and constitutional. In the matter of civil law, we find regulations as to marriage and family relations, inheritance, testamentary disposition, debt and usury. The marriage recognized was that known as the result of usus—a contract, that is, which was concluded by consent and strengthened by prescription4 . It was ordained that the threefold sale of a son by his father should issue in the freedom of the son5 : although whether the Twelve Tables made this form of emancipation the basis of adoption is uncertain. The manumission of slaves who had been left free by testament, on the condition of purchasing their freedom, was also facilitated6 . Recognition was given to testamentary disposition as performed ‘per aes et libram’1 ; while, in the matters of intestate inheritance and guardianship, the rights of the Agnati, common to Plebeians and Patricians, were regarded as prior to those of the Gentiles2 The harsh law of debt, which was a result at once of freedom of contract and of the very severe view which ancient societies take of the defaulting debtor, was maintained; the Judicatus still became the bondsman of his creditor3 , but now (perhaps for the first time), all the stages of the process of execution were published to the world, the rights of the creditor were defined, the chances of escape open to the debtor were accurately described. Loans on interest were permitted; but the maximum rate of interest was fixed at ‘unciarium foenus’4 (probably ten per cent.); and the usurer who exceeded this rate was punished more severely than the ordinary thief; he was compelled to restore fourfold5 . With respect to Civil Procedure (the exclusive knowledge of which had been one of the greatest elements of strength in the patrician government) it is clear that the outlines of the process—such as the rules for the summons of parties and witnesses, and for the length of the trial6 —were described. But it is very questionable whether the Tables went so far as to specify the Forms of Action; the actual words and gestures, that is, which had to be employed in any given case. We find a tradition that these forms were not revealed until nearly 150 years later, and that they were first given to the world in 304 b. c. by a certain Cnaeus Flavius7 , a freedman’s son and the clerk of Appius Claudius, the censor of 312 b. c., who was apparently also pontiff. But the traditions connected with the publication at Rome, even of the simplest information about Procedure, are exceedingly obscure. On the one hand, we hear that this same Cnaeus Flavius published a Calendar which gave a record of Court Days (Dies Fasti)8 ; on the other hand, it was believed that a Calendar of some kind had been already published by the Decemvirs9 . It is possible that the decemviral Calendar had become antiquated, or that it had not been restored or republished after the burning of Rome by the Gauls (390 b. c.)10 ; but it is clear that the Romans of Cicero’s time had much vaguer ideas about the epoch at which the forms of Procedure were made accessible to the public, than they had about the date at which the principles of Substantive Law were given to the world.

The criminal law of the Twelve Tables reflects a more primitive stage of thought than its civil ordinances. But this is not surprising; for, throughout the whole of Roman History, the criminal law lags far behind the civil. The Tables recognize the principles of self-help and retaliation. A limb is to be given for a limb; but for minor assaults pecuniary compensation is allowed1 . We still find the idea of capital punishment taking the form of an expiation to an outraged deity; thus the man who destroyed standing corn by night was hanged as an offering to Ceres2 . The belief in witchcraft still survives; for death is the penalty for incantations3 . It is also the penalty on the judex who has taken bribes, and for treason (Perduellio) in the form of ‘rousing an enemy against the State or handing over a citizen to the enemy4 .’

But it is where criminal law touches questions of personal liberty, and is connected with constitutional law, that the legislation of the Twelve Tables is most advanced. The principle of the Appeal to the People (Provocatio) against the sentence of the magistrate was maintained5 ; it was enacted that no law or sentence should be passed to the detriment of an individual (Privilegia ne inroganto)6 ; and it was laid down that no capital sentence could be issued except by ‘the greatest of the Comitia’ (nisi per maximum comitiatum)7 ; that is, by the Assembly of the Centuries, or Exercitus, gathered in the Campus Martius.

An important aspect of the Public Law of the Twelve Tables is the guarantee of the right of free association, provided that it have no illegal intent. While nocturnal gatherings (coetus nocturni) are prohibited8 , the formation of gilds (collegia) is encouraged. Such gilds were to require no special permit for their existence, and the rules which they framed for their own government were to be valid, provided that these rules were no infringement of public law9 .

Lastly, the most typical and important utterance of the Tables is to be found in the injunction that ‘the last command of the People should be final10 .’ It is an utterance which shows how little the Decemvirs regarded their own work as final, how little they were affected by the Greek idea of the unalterability of a Code, of a Code forming a perpetual background of a Constitution—in fact, by the idea of a fixed or written Constitution at all. It is an utterance that expresses the belief that law is essentially a matter of growth, and prepares us for the fact that Rome saw no further scheme of successful codification until nearly a thousand years had passed.

§ 10.

Future Progress of Law. Legislation and Interpretation; the Legislative Assemblies.

For the future the progress of law was to depend on the two processes of legislation and interpretation. The legislative assemblies were those of the Populus and the Plebs. The Populus, which comprised the whole of the Roman people, Patricians as well as Plebeians, met, either by centuries, as the Comitia Centuriata, or by tribes, as the Comitia Tributa, under the presidency of a Consul or Praetor.

The Comitia Centuriata was an assembly that had grown out of the army-organization of the whole Roman people. It was the whole Host or Exercitus expressing its political will. It was for this reason that the military unit (the centuria) was the voting unit. And this was also the original reason why we find in this assembly the division into classes, or aggregates of citizens grouped together on the basis of a particular property qualification; for the different types of military service were originally determined by degrees of wealth. But the element of wealth in this assembly, which is exhibited by the division into classes, soon gained a political significance. The voting power of the classes differed considerably. That of the wealthy was greater than that of the middle-class, and that of the middle-class far in excess of that of the poor. Thus the Comitia Centuriata was always assumed to have something of an aristocratic character; and the change which its constitution underwent during the Republic was at least partly directed by an effort to modify this character. The scheme recognized five classes, the census of each being (in terms of the later assessment of the historical period) respectively 100,000, 75,000, 50,000, 25,000, and 11,000 (or 12,500) asses. The first class contained eighty centuries, the second, third, and fourth, twenty each; the fifth, thirty. Thus the centuries of the first-class were almost equal to those of the four other classes put together. The weight of aristocratic influence may be still more fully realized if we remember that the corps of Roman Knights (centuriae equitum equo publico) formed eighteen centuries in this assembly, and that the mass of citizens whose property fell below the minimum census were grouped in a single century. The collective vote of the first class and the knights was represented by ninety-eight centuries; the collective vote of the whole of the rest of the community (including four or five centuries of certain professional corporations connected with the army, such as the Fabri) was represented by ninety-five or ninety-six centuries1 . Thus the upper classes in the community possessed more than half the votes in this assembly.

A modification in the structure of the Comitia Centuriata was subsequently effected, which had the result of giving a more equal distribution of votes. No precise date can be assigned for the change; but it has been thought not to be earlier than 241 b. c., the year in which the number of the tribes was raised to thirty-five2 . The principle of the new arrangement was that the tribe was made the basis of the voting power of the classes. There is considerable divergence of opinion as to the method in which the centuries were distributed over the tribes; but, according to the more usually accepted view which has been held by scholars from the seventeenth century onwards3 , the five classes were distributed over all the tribes in such a manner that there were two centuries of each class—one century of seniores and one of juniores—in a single tribe. Each class would thus have two votes in each tribe and seventy votes in all. The total number of centuries belonging to the five classes would be 350, of which the first class would possess but seventy votes; or, if we add the other centuries of knights (18), of corporate bodies such as the Fabri (4), and of Proletarii (1), we find that the first class and the knights commanded but eighty-eight votes out of a total of 3731 . This system, which lessened the influence of the wealthier classes, was temporarily abolished by Sulla in 88 b. c.2 ; but it was soon restored, and there is every reason to suppose that it survived the Republic and formed the basis of the arrangement of the Comitia Centuriata under the Principate3 . Although the Comitia was organized on this tribal basis for the distribution of voting power, the voting unit was still the century and not the tribe. The seventy centuries of each class voted in turn; the decision of each century was determined by the majority of the votes of its individual members; and the majority of the centuries determined the decision of the assembly.

The Comitia Centuriata, although of the utmost importance in the structure of the Roman Constitution as the body that elected the magistrates with Imperium and the censors, that exercised capital jurisdiction and declared war, ceased to be employed in the period of the developed Republic as an ordinary legislative assembly. It was difficult to summon and unwieldy in its structure, and its position as a legislative body came to be usurped by the two assemblies of the tribes. Yet, as we shall see4 , it may have been held that legislative acts, which affected the fundamental principles of the Constitution, should be submitted to the centuries.

The Comitia Tributa Populi had probably been instituted in imitation of the Plebeian Assembly of the Tribes. It was found convenient that the Populus should meet in this way as well as the Plebs; and the Tribus—the voting unit which had already been employed for assemblies of the Plebs—was used for assemblies of the whole people. The Tribus was always a division of the territory of the Roman State in Italy, and the tribes grew in number as this territory increased until by the year 241 b. c. they had reached their final total of thirty-five. It is generally believed that originally only holders of land were registered as members of a tribe5 ; but there is no sufficient evidence for this view, and it seems safer to conclude that, while every holder of land was registered in the tribe in which his allotment lay, every landless man was registered in the tribe in which he had his domicile. At a later period registration became more arbitrary, and had little or nothing to do with the residence of the person registered. The censor enrolled individuals in tribes at his pleasure; usually he entered a man in the tribe to which his father had belonged; but he might, if he willed, transfer him from one tribe to another (tribu movere).

In an assembly organized by tribes (tributim) the vote of the majority of the members of a particular tribe determined the decision of that tribe, and the vote of a majority of the tribes the decision of the assembly. The Comitia Tributa Populi must have been instituted later than 471 b. c., which is the traditional date at which the Plebs began to meet by tribes1 ; and it may have been in existence some twenty years later, at the date of the formation of the Twelve Tables2 . The first evidence for it as a legislative assembly belongs to the year 357 b. c.3 . In the later Republican period it was probably quite the most active of the legislative assemblies of the whole people.

The Comitia Curiata, the oldest of all the Roman assemblies, whose structure was based on the ancient Curiae or Parishes of Rome, ceased in the historical period to be a true legislative assembly. It met only for the performance of certain formal acts, such as the lex curiata which ratified the Imperium of the higher and the Potestas of the lower magistrates4 . For this purpose the thirty Curiae were in Cicero’s day often represented by but thirty lictors5 . The assembly may have been as scantily attended when it performed the formal acts vested in it when it met as the Comitia Calata6 . In this capacity it was gathered under the presidency of the Pontifex Maximus for the inauguration of the Rex Sacrorum and the Flamines, and for the Detestatio Sacrorum—the renunciation of preexisting religious obligations which was made by a man who passed from his Gens, either by an act of Adrogatio or by transition from the patrician to the plebeian order1 .

The assembly of the Plebs2 excluded the patrician members of the community, and continued to be organized by tribes Its true designation was Concilium Plebis, Concilium differing from Comitia as a gathering of a part of the people differs from a gathering of the whole3 . This assembly is often spoken of by ancient writers as the Comitia Tributa; but it differed from the Comitia Tributa Populi in two respects. It did not include Patricians, and it was presided over, not by a magistrate of the People, but by a magistrate of the Plebs. When it met for legislative purposes, it was presided over only by the Tribune of the Plebs. The legislative authority of the Concilium Plebis had developed steadily during the first two centuries of the Republic. At first this assembly could only pass ordinances binding on the members of the Plebs themselves. Then, by the Valerio-Horatian and Publilian laws (449 and 339 b. c.) it gained the right of considering and initiating proposals which affected the interests of the whole community; this right being probably acquired and exercised by the creation of increasing facilities for bringing resolutions of the Plebs as petitions to the assemblies of the people, to be confirmed or rejected by the latter4 . Since the Plebs came gradually to constitute the majority of voters in the assemblies of the people, these petitions must as time went on have been almost invariably confirmed. The distinction between Plebiscita and Leges must have been growing more and more formal and unreal when the Lex Hortensia (287 b. c.) enacted that henceforth Plebiscita should have the force of Leges5 . From this time onwards there was no difference between the Populus and the Plebs in matters of legislation, except that it may have been held by some thinkers that fundamental changes in the Constitution, such as those introduced by Sulla, ought to be ratified by the Comitia Centuriata1 . But in nearly all the spheres subject to the commands of the people, the Populus and the Plebs were equally competent; a Lex could repeal a Plebiscitum and a Plebiscitum a Lex2 . This dual sovereignty, which is one of the most curious of the theoretical features of the Roman Constitution, was rendered possible and harmless by the fact that the mass of the voters in all the different assemblies were composed of the same individuals, and by the central control exercised by the Senate over all magistrates, and therefore over all assemblies before which these magistrates introduced their proposals. The initiation of legislation was, in fact, during the days of Republican stability, in the hands of the Senate; but, apart from the exercise of this authority, which had long had a de facto recognition, but was not recognized by law until the time of Sulla (88 and 81 b. c.)3 , the Senate did not pretend to exercise legislative power during the Republic. In its own right it could only exercise certain powers approximating to those of legislation. We find it, for instance, fixing the rate of interest4 ; but such an ordinance technically assumed the form merely of advice to the judicial magistrates as to the rates which they should recognize in their edicts. The Senate, however, exercised the power of dispensing individuals from the existing laws5 ; and we find it also warning the community that some enactment which had passed the people was, on technical grounds, invalid, and was therefore not binding either on the magistrates or on any member of the State6 .

In few societies of the ancient world was the legislative power so unfettered as it was at Rome. The Romans drew no distinction between constitutional law and other laws; the Roman assemblies could create new assemblies, could alter their own structure, could modify or even suspend the Constitution by granting enormous powers to individuals. There was no sphere of human interest outside their control; their power of utterance was limited only by a respect for religious law7 . We might, therefore, have expected that legislation would have been the chief path on which Roman law advanced to its maturity. But this expectation is disappointed, so far as the progress of the Jus Privatum is concerned. We do indeed find a certain number of statutes which deal with important matters of private law, such as the Lex Aquilia de Damno, the Lex Furia on testaments, the Lex Voconia on inheritances; and it is also true that certain important changes in civil procedure were sanctioned by the people, the most far-reaching of these changes being perhaps that effected by the Lex Aebutia, which helped to replace the Legis Actio by the Formula1 . But the legislation referring to private law and civil procedure at Rome is in no way comparable in bulk to that which dealt with criminal and constitutional law. Even those Leges or Plebiscita that dealt with civil procedure, perhaps did little more than ratify a change that had been already accomplished in the courts, or carry this change a few steps further. And, as to the alterations in the material elements of private law, these alterations were determined to a far greater extent by interpretation than by legislation.

§ 11.

Law as the result of Interpretation.—Interpretation by the Magistrate.

Interpretation at Rome assumed two forms. It was either the work of the magistrate or the work of the jurisconsult. The magistrate chiefly concerned with the interpretation of private law was the Praetor. The office of Praetor is said to have originated as a result of the Licinian laws of 367 b. c.2 This new magistrate was created for the purpose of performing most of the judicial business of the Consuls, who, on account of the increasing complexity of political life, were found incapable of conducting the whole of the home and foreign affairs of Rome. For more than 120 years this single magistrate administered civil justice to citizens and aliens. At the close of this period (242 b. c.) a second Praetor was appointed3 whose duty it was to decide cases between aliens (Peregrini) and between citizens and aliens. The former (Praetor qui inter cives jus dicit) was known by the colloquial name of Praetor Urbanus; the latter (Praetor qui inter peregrinos jus dicit) was known by the similarly abbreviated title of Praetor Peregrinus.

Every magistrate at Rome was in the habit of notifying to the public the manner in which he meant to exercise his authority, or any change which he comtemplated in existing regulations, by means of a public notice (Edictum). In the case of magistrates who were merely concerned with administrative work, such notices were often occasional (edicta repentina); in the case of magistrates concerned with judicial business, they were of necessity valid for the whole period during which the magistrates held their office, and capable of transmission to their successors (perpetua et tralaticia); for jurisdiction does not admit of occasional and isolated ordinances which have only a temporary validity. The edicts of the Praetors were necessarily of this latter type. Each new occupant of the office might admit rulings not recognized by his predecessors; these rulings were forced on him by the fact that new and unexpected combinations in legal relations had been presented to his notice, or that the existing rules did not answer to a growing sense of equity. New rulings cannot be introduced into a system of law without affecting old ones. The fact that there was an edict gave the Praetor a chance of smoothing out anomalies, instead of exhibiting inconsistencies, in the law. The edict admitted of change and development; but it was a change that was subtle and gradual, not violent and rapid. The process by which it was reached professed to be a process of interpretation. It was really creative work of a highly original kind.

The Edictum of the Praetor1 , in the sense in which this word is commonly used, is really a colloquial expression for the Album, or great notice-board exhibited by the Praetor, which contained other elements besides the Edicta in their true and proper sense. It contained the Legis Actiones and the Formulae of the Civil Law (Jus Civile)2 , probably preceded by certain explanatory headings, but by no edict; for the Praetor did not create the rulings on which these civil actions and formulae were based. But it contained as well the Formulae which were the creation of him and his predecessors—the Formulae which were the product of what was known as ‘Magistrate’s Law’ (Jus Honorarium); and each of these Formulae was no doubt preceded, at least eventually, by the Edictum or ruling in law, which might have grown out of the Formula, but finally served as its basis and justification. Thus the edictal part of the Album was really a series of separate Edicta, each edict being followed by its Formula; it was regarded as being a supplement to that portion which specified the Actions of Civil Law; and it really had this character of being a mere supplement in so far as ‘honorary’ actions were seldom granted where a ‘civil’ action would have sufficed. But its supplementary character was of a very far-reaching kind. Thus the edicts might take cognizance of cases not provided for by the civil law at all, they might replace the mechanism provided by the civil law for attaining a legal end, and they might alter the character of the end itself. All these functions are summed up by Papinian when he says that the work of the Jus Praetorium was ‘to assist, to supplement, to correct the civil law for the sake of public utility1 .’ The edict of the Praetor Peregrinus was necessarily still more of a substitute for the civil law than that of the Praetor Urbanus. For, since the Legis Actiones could not (at least in many cases) be employed by Peregrini2 , he was forced to invent equivalents for these forms of action.

The third Edictum Perpetuum which was valid in Rome was that of the Curule Aediles3 . It was of no great content, since it was concerned exclusively with the jurisdiction over the market, and the control of public sites—a jurisdiction and control which were possessed by these magistrates. For an edict in any way comparable to those of the Praetors we must turn to the provinces. Here the governors (whether Proconsuls or Propraetors) issued notices of their intentions with respect to jurisdiction, similar to those of the Praetors at Rome as regards their permanent character and the possibility of their transmission, but peculiarly applicable to the particular governor’s special sphere of administration. A special edict was issued for each separate province (thus we read of an Edictum Siciliense)4 ; but this special character did not prevent certain inter-relations between the edicts of separate provinces. We know that the Provincial Edict might be prepared at Rome, before the governor went to his province5 ; and although the man who prepared it (of course, with the assistance of professional lawyers), tried to model his rules as closely as possible on those of his predecessor in the province to which he was going, yet he might borrow improvements which had been initiated by the late governor of some other province. Again, the same man might pass from one province to another, and, much as the circumstances of the separate spheres of government differed from one another, it is inconceivable that he should not have carried some of his favourite rules of procedure with him. A general conception of what a Provincial Edict should be like, must have grown up; the differences between the edicts being probably those of matter rather than of form—the matter being determined by the local customary law of the subject peoples, which Rome rigidly respected. Where there were striking differences of form, these must have been mainly due to the varieties of rights granted by the Charters of the different provinces (Leges Provinciarum). It is obvious that, where much was granted by Charter, little was left to the discretion of the governor. Where the Charter granted only a few elementary rights, he had a much freer hand.

One important point in which the governor of a province differed from a Praetor at Rome, was that he was an administrative as well as a judicial official. Hence the Provincial Edict had to contain a good many rules of administrative law which were not to be found in its counterpart at Rome. This portion of the edict spoke about the financial relations of the states of the province to the Roman government and to its agents, and stated the rules which regulated the relations of the tax-gatherers (Publicani) to the tax-payers. The rest of the edict which took a definite shape, covered the procedure which the governor promised to apply for the recovery of certain rights by individuals—rights such as those entailed in inheritance or the seizure of a debtor’s goods. These rules were based on those of Roman law; but they were mere outlines capable of adaptation to the local customs of the subject states. But there was, at least in certain provinces, a portion of the edict, still dealing with the rights of individuals, which assumed no definite shape. There were points on which the governor did not care to frame rules until he knew the emergencies which he would have to meet. He was content (at least Cicero was, when governor of Cilicia) with promising that, in issuing decrees on such points, he would conform to the principles of the urban edicts1 .

§ 12.

The debts which this development of law owed to the Italian and provincial world.

If we ask what was the great motive power which lay behind this development of law through interpretation by the magistrate, we shall find it to consist, partly in contact with foreign peoples; partly (although probably in a less degree) in the new educational influences which were moulding the lives of the Roman nobles. The tendency to experiment and adaptation, to a disbelief in anything fixed and rigid, is thoroughly Roman; but external circumstances were very largely responsible for the particular lines on which this tendency was to move. The legal consequence of contact with foreign races is summed up in the phrase Jus Gentium. The word ‘Gentes’ in this collocation means ‘the world2 ’; and it is possible that, when the expression Jus Gentium was first formed, Rome regarded herself as rather outside this world whose customs she was contemplating, although even her earliest practice showed an inner conviction that she was a very integral part of it indeed. The moment that she began to trade with the foreigner, whether in Italy, Sicily, or Africa, she must have seen that her own Jus Civile was an impossible basis for trading relations. If the Roman had no liking to submit to the intricacies of the law of some other state, the foreign trader had equally little inclination to conform to the tedious formalities of Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on the claims of Private International Law. This common ground was found in the Jus Gentium; the common court was that of the Recuperatores of early times1 . The history of the Praetorship leads us to think that the Jus Gentium must have begun to exercise a modifying influence on Roman law long before the middle of the third century b. c.; for we have seen that for more than 120 years a single Praetor administered justice both to Cives and Peregrini2 . A single magistrate therefore published and dealt with two distinct systems of law. But it would seem to be impossible that he could have kept the two absolutely distinct, especially when the simplicity and universality of the Jus Gentium stood in marked contrast to the complexity and singularity of the Jus Civile. The rigidity of the forms of Roman law may have been shaken even at this early period. But when a second Praetor was appointed to frame a special edict for Peregrini, the Jus Gentium must have found a still more complete and systematic expression. The procedure by which the legal claims of aliens were asserted must have been more fully elaborated. This was the procedure by Formula, which was to furnish the prototype for the method adopted by the Praetor Urbanus, and to replace the older procedure by Legis Actio in most of the Roman courts of law. Nor can we ignore the influence of the Edictum Provinciale, although this came later and at a time when the typical elements in Roman procedure had been fixed. Rome gained some ideas from the Hellenised East, as in early days she had gained some from Magna Graecia. It was probably from contact with the East that she gained the knowledge of such simple forms of written agreement as Syngrapha and Chirographa, and that she acquired her theory of Mortgage (Hypotheca).

§ 13.

The idea of the Law of Nature; its influence on Slavery.

The Jus Gentium could not pass from being a mere fact to being an ideal without gaining some theoretical justification for its existence and acceptance. This justification was found in the idea that it was a product of the Law of Nature. It is not improbable that the superior ‘naturalness’ of the Jus Gentium to the Jus Civile had begun to appeal to the Romans long before they had begun to be affected by Greek philosophic thought; for we know the effect which was produced on the minds of the Greeks themselves by their early contact with foreign civilizations. They rapidly drew the conclusion that what was common to various countries existed by nature (ϕύσει), what was peculiar to a country existed by convention (νόμῳ); and the κοινὸς νόμος1 or τὸ ϕυσικὸν δίκαιον2 of the Greeks is practically identical with the Jus Gentium of the Romans. Even to the primitive mind the universality of an institution implies its naturalness. But it is very probable that the Stoic conception of Nature did, to the Roman mind, complete the train of thought and give a scientific stability to a vague impression. It was not, indeed, possible to identify the Jus Gentium with the Lex Naturae; for a Jus cannot be the same as a Lex. But it might be regarded as the product of that Lex, as its concrete expression in human society. The immediate product, however, of the Lex Naturae is the Jus Naturale. The Jus Gentium tended, therefore, to be identified with the Jus Naturale; and the identification seems to be complete except in one important point. According to the view finally adopted by the jurists, the Jus Naturale implies personal freedom; for all men are born free in a state of nature3 . But the Jus Gentium (the law of the civilized world) admits the institution of Slavery. In this point, therefore, the two are in conflict, and the Jus Naturale presents an even higher ideal of society than the Jus Gentium. The relation between the three types of Jus, known to the theory of Roman jurisprudence, may be expressed by saying that the Jus Civile is the Right of man as a member of a state, the Jus Gentium the Right of the free man, the Jus Naturale the Right of man4 .

The appeal to Nature on behalf of the slave is an index of the part which he was to play in the development of Roman law. Roman slavery cannot be judged solely either by the dismal picture presented by the plantation system, or by the legal theory that the slave was a mere Thing (Res), a chattel, not a person. We must remember that the slave, often of an intelligence and culture superior to those of his master, and gifted with the practical genius and the capacity for detail characteristic of the Greek, was frequently an active man of business. We must remember too that the very fact that he was a chattel might be employed by the law as the basis for the theory that he was, for this very reason, an excellent Instrument of Acquisition. So essential was he to his master in his capacity of agent that the law was forced to recognize that he could be a party to an obligation. The obligation, it is true, could not be called legal; it was only natural (Naturalis obligatio)1 ; but still it was an obligation that could benefit the master, without making that master’s condition worse2 . It was necessary, however, to protect other parties to these contracts; and the Praetor gradually created a series of quasi-liabilities for the master of the trading slave. Such liabilities are expressed in the actions Quod Jussu, Tributoria, De Peculio, De in Rem Verso3 . They were created in the interest of the master as well as in that of the other party to the contract; for without these guarantees slave-agency would have become impossible. In the history of agency the slave plays a distinguished part; and the part that he plays is formally justified by the view that he is the possessor of Natural Rights.

§ 14.

Interpretation by the jurisconsults.

All these new influences on Roman law, although they found their most marked expression in the edicts of the magistrates, were also absorbed by that Professional Jurisprudence which gives us the other aspect of the science of Interpretation. It may have been the more important aspect; for the teaching of the schools, and the advice of jurisconsults, no doubt did much to stimulate and guide the activity of the magistrates. We are told that the influence of skilled lawyers was for a very long time represented by the College of Pontifices. Even after the publication of the Twelve Tables and the revelation of the forms of Action (448, 304 b. c.), and during the period when secular was becoming more and more divorced from religious law, the knowledge of jurisprudence was, in virtue chiefly of the familiar fact that professions once associated are not easily separated, exhibited mainly in the person of the Pontifex Maximus; and the men who held this office still furnished for centuries the leading names to Roman jurisprudence. At first the science was imparted with an air of mystery; the advice was occasional and elicited only by special request. But finally the profession of law on the part of the Pontiffs became more open and more systematic. The first of these who taught the science publicly is said to have been Tiberius Coruncanius1 (circa 280 b. c.), who was also the first plebeian Pontifex Maximus. Lastly, the stage of written commentaries was reached. These commentaries were stimulated by the increasing difficulty of interpreting the language and meaning of the Twelve Tables. The earliest commentator on this code who is known to us, was Sextus Aelius Paetus, consul in 198 and censor in 193 b. c. He busied himself with the interpretation of the legal difficulties connected with the Tables, and published a work called Tripertita, which gave in three divisions the text of the Tables, an explanation of each ordinance, and the form of action applicable to the cases which these ordinances raised2 . His later contemporary, Acilius, seems also to have been a legal commentator3 . An explanation of the obsolete language of the Tables was, so far as we know, first attempted by the great philologist Lucius Aelius Stilo Praeconinus, who was born about 154 b. c.4 One of the results of the work of these commentators was that the text of the Tables, as it appeared in their editions, became the recognized, and in fact the only, text for all subsequent ages; for it seems quite clear that the later commentators, as for instance Gaius, had no knowledge of any antique copy of the Tables, engraved on metal and posted up in some public place5 . But there was another reason why a knowledge of the Tables, in their original form, was becoming decadent even during the period of the later Republic. The Praetor’s Edict, as a living source of law, was superseding the ancient Code. Juristic investigation was grappling with present problems and did not care to concern itself with the antique The Tables had been explained; now they were to be expanded. But the expansion came with the edict, and with the creative jurisprudence which was a product of the new Greek culture and the extension of the Roman Empire. The founders of this scientific jurisprudence, whose labours were to be perpetuated by the lawyers of the Principate, were Marcus Junius Brutus, Marcus6 Manilius and Publius Mucius Scaevola, all of whom flourished about the middle of the second century b. c. They were followed by a long line of distinguished successors to the close of the Republic1 . The study of law was becoming professional, but it was not confined to a body of men who made jurisprudence the sole business of their lives2 . The knowledge and exposition of law was an incident in the career of some of the greatest statesmen of the day. It may have been their ruling, but it was by no means their sole interest; and sometimes the fruitful experience of a lifetime spent in an active forensic and political career was given to admiring students during the repose which marked the closing years of the statesman’s life3 . The rewards of the profession were purely honorary; the only payment was repute, gratitude, or political support; and the practical utility of the jurists was as much valued as their theoretical knowledge. They pleaded or gave advice to pleaders; they gave a scientific precision to the formulae of legal business; and they returned replies (responsa) to the questions of litigants, magistrates, or judices on legal points which arose whether before or in the course of the hearing of a case4 . It was through these replies, which were given sometimes in private, sometimes in the Forum5 , that the jurisconsults became great oral and literary teachers. The replies were sometimes given in writing6 ; but, even when verbal, were often collected into books; and the audience which received them was by no means confined to those who were primarily interested in the answers. The young were admitted to the consultations7 , and the consultation often closed with a disputation8 . This practice led eventually to systematic teaching; disciples attached themselves to a particular exponent of law, who gave some a preliminary training and directed others in a course of study that was more advanced9 . In no respect was this system of education regulated by the State. No teacher was more authentic than another. Controversy grew and flourished1 . The only proof of the validity of an opinion was its acceptance by a court. But even this was but a slender proof; for different Praetors or Judices might be under the sway of different jurists. It required a single superior court and a single controlling authority (both of which were found in the Principate) to guide the stream of legal opinion into narrower and more certain channels.

Amidst this stream of interpretation we discern one attempt to give a fixity to at least a part of Roman law. Ofilius, a Roman knight of the period of Cicero and Caesar, was the first to reduce the Praetor’s Edict to some kind of system2 . It is probable that a still greater work of revision was at one time projected for this jurist; for we are told that Caesar, amidst his ambitious schemes for the regeneration of the Roman world, conceived the idea of making a digest of the Roman law3 . Had he lived to carry out this scheme, it is probable that Ofilius would have been entrusted with the work.

§ 15.

Reforms in Procedure effected during the later period of the Republic.

The progress effected during this period in the theory of law was accompanied by a great reform in procedure. From about 150 b. c. the process both of the civil and criminal courts began to assume a form which was final for the period of the Republic, and which was supplemented, but not altered, during the greater part of the period of the Principate4 . In the domain of Civil Procedure, a Lex Aebutia gave some kind of formal sanction to the practice by which the Praetor tended to substitute the simpler Formula for the more complex Legis Actio5 . The Formula had perhaps first been employed in the statement of cases for Peregrini. Its utility commended its use for cases in which Roman citizens alone were involved. The Praetor Urbanus employed it for his honorary jurisdiction; it was then transferred (doubtless by the Lex Aebutia) to the civil law as an alternative, in most cases, to the Legis Actio. We cannot say in what form the alternative was presented. We know that the law must have exempted certain kinds of jurisdiction from the Formula—the jurisdiction, for instance, of the Centumviral and Decemviral courts. But it may have allowed the Praetor to substitute the one procedure for the other in most spheres of civil jurisdiction; and, where the Praetor still permitted the Legis Actio and the Formula to stand side by side in his Album, it may have given the litigants a choice between the two. The two methods of procedure still exist side by side in Cicero’s time; but the formulary procedure is demonstrably the more general of the two.

About the time when this reform was being effected, an attempt was made to create a method of criminal procedure, simpler and more effective than that of a trial before the People. The type on which the new criminal courts were constituted was furnished in the main by Civil Procedure. Cases of extortion (Repetundarum), in which compensation was demanded for a delict, were first tried before a Praetor and Recuperatores. This was a mere provisional arrangement initiated by the Senate for the benefit of the provincials1 . But the system, or one closely modelled on it, was perpetuated by the Lex Calpurnia Repetundarum of 149 b. c.2 , and gradually these recuperatorial boards grew into great panels of Judices, the qualifications for the jurors being specified by judiciary laws (Leges Judiciariae). Finally, almost the whole sphere of the criminal law was embraced by a series of enactments which created standing courts (Quaestiones Perpetuae, or Judicia Publica), each for the trial of a special offence or a group of related crimes. All of these courts followed the same model. In each a President (Quaesitor), who was generally a Praetor, sat with a bench of Judices who pronounced a penalty fixed by the law which had constituted the court. From the judgment of these Judices there was no appeal to the People.

§ 16.

The Creation of the Principate—Changes in the Sources of Law.

The change from the Republic to the Principate introduced no very sudden alterations in the sources of law or the methods of procedure. Both, as we shall see, were supplemented by new creations; but up to the time of Gaius it was possible to appeal to the Republican system as the one that underlay the legal life and the judicial organization of Rome3 . All that was added by the Principate was in the nature of an excrescence—one that was probably healthy in its effects, in spite of the fact that it does seem to have limited to a certain extent the creative activities of juristic thought. The birth of the Principate was not conditioned by strictly legal necessities. There seems to have been little sense that a single controlling force was needed for the guidance of the law of Rome, Italy, and the provinces. The justification for the Principate was found in the fact that a single controlling power was necessary for the command of the army and the routine administration of the provinces. But it was impossible to create such a power without bringing it into some contact with every department of the State. The guidance of legislation and judicature by an individual will was a necessary outcome of the new order of things; and it is possible that this guidance was needed. There is a stage in the history of law where liberty of interpretation may lead to perplexing uncertainty, and there is a stage in the history of any national judicial organization where certain radical methods are necessary to adapt it to new needs. The Principate gave a definiteness to law, but a definiteness that was in no sense illiberal. On the contrary, it prevented law from being narrowly Roman as effectually as it checked it from recklessly absorbing foreign elements. It adapted law to provincial needs by expanding, but not impairing, its national character. At the same time it widened the scope of jurisdiction by methods which we shall soon describe—methods which seem to have increased the efficiency at least of the civil courts at Rome, and which brought the provincial world into closer judicial relations with the capital. The changes effected both in legislation and in jurisdiction were gradual and progressive; and, though they were from a formal point of view initiated by the will of individual monarchs, it is important to remember that, at Rome as elsewhere, monarchical power is the outcome of the concurrence of many individual wills. For the sake of convenience we are accustomed to treat the Princeps as the chief source of law and the chief influence on jurisdiction. Sometimes a purely personal power of this type may have been realized for a while, although when so realized it always had a flavour of tyranny1 . But as a rule, when we think of the Princeps as a source of law and justice, we should be thinking of his judicial advisers and assessors. The trained jurist still plays a leading part in legal progress. His control of the Princeps, and the Princeps’ control of him, must both be taken into account, although the actual extent of the respective influences—of the administrator over the jurist and of the jurist over the administrator—can never be determined for any given act or for any given moment of time.

A division of power of this type is perhaps common to all monarchies. But in the Roman Principate, which was not technically a monarchy, we find it expressed in yet another way—a way which is of more importance theoretically, although perhaps of less practical import. It is expressed in the form that the Princeps is merely the ‘extraordinary magistrate’ of a Republican Constitution. By an ‘extraordinary magistracy’ is meant a magistracy formed by an accumulation of functions, each of which is usually exercised by a particular magistrate. The chief powers with which the Princeps was invested were the Proconsulare Imperium conferred by the Senate, and the Tribunicia Potestas conferred on a recommendation of the Senate in a formal meeting of the People. The Proconsulare Imperium was technically valid only outside the limits of Italy; but, as it was absolutely necessary that the Princeps should possess Imperium within Rome, he was specially exempted from losing his Imperium by his presence within the city. The effect of this exemption probably was to create for the Princeps a kind of consular Imperium in Rome and Italy. But even this device was not sufficient to secure for him the authority which he required as a moderator of the whole State. The Proconsulare Imperium and the Tribunicia Potestas required to be supplemented by a number of separate powers conferred by special grants. These grants must originally have been made by special laws and decrees of the Senate that were passed at various times; but the practice seems soon to have been adopted of embodying them in a single enactment, which was submitted to the formal assent of the People at the time when the Proconsulare Imperium and the Tribunicia Potestas were conferred. A fragment of such an enactment is the extant Lex or Senatusconsultum which enumerates powers conferred on the Emperor Vespasian at his accession1 . The rights of the Princeps enumerated in this document are of a very heterogeneous kind—they include the powers of making treaties, extending the pomerium of the city, commending candidates for office, and issuing edicts as interpretations of law, human and divine; and, important as they are, they have no direct connexion with either the Proconsulare Imperium or the Tribunicia Potestas. Some of the most imposing powers of the Princeps were dependent on neither of these two sources, but were contained only in this general Lex; and as fresh prerogatives were added to the Principate, the Lex would grow in bulk and importance. Some development of this kind may account for the fact that Gaius and Ulpian both speak of the Princeps receiving his Imperium through a Lex1 . Such an expression could not have been used of the early Principes; for the Proconsulare Imperium was received through a decree of the Senate; but it is possible that in the course of time the general Lex, as enumerating the majority of the prerogatives of the Princeps, came to overshadow the other sources of his authority.

Since the authority of the Princeps was built up in this gradual and unsystematic way, it is quite impossible for the modern inquirer to determine with precision the sources of the exercise of his different powers. But a rough estimate may be made of five distinct kinds of prerogative and of the activities flowing from each. (1) With the Imperium were connected the control of the army and the provinces, the right of declaring war and of making treaties, the power of conferring Roman citizenship or Latin rights, civil and criminal jurisdiction, and the general power of legal interpretation. (2) The Tribunician Power, besides making the Princeps sacrosanct, gave him the right, exercised during the earlier period of the Principate but afterwards neglected, of initiating measures in the Assembly of the Plebs, and also the right of transacting business with the Senate, although this second right was extended by special grants. The power of veto, inherent in the Tribunicia Potestas, gave the Princeps a control over all the other magistrates of the State, enabled him to exercise over the jurisdiction of the Senate a power akin to that of pardon, and probably formed the basis of much of his appellate jurisdiction. (3) Two of the Principes, Claudius and Vespasian, were invested with the temporary office of censor, and Domitian declared himself censor for life. His example was not followed by succeeding rulers; but the most important of the functions of the censors—the revision of the lists of Senators and Knights—continued to be a part of the admitted prerogatives of the Princeps. Akin to this right was that of creating Patricians, which had been conferred by law on Caesar and Augustus, had been exercised by Claudius and Vespasian as censors, and finally became a right inherent in the Principate itself. (4) The Princeps, besides being a member of all the great religious colleges, was, as Pontifex Maximus, the official head of the state-religion, and was invested by law with the power of executing ordinances which were to the interest of the religious life of the community1 . (5) Supplementary powers, which cannot be described by a common name or connected with any definite office, were granted to the Princeps. Some of these were means by which his control over the magistrates and the Senate was increased. Such were the rights of securing the election of certain candidates for office by means of a recommendation (Commendatio), and of exercising powers in relation to the Senate superior to those possessed by the other magistrates.

An authority thus endowed could not fail to exercise a strong directing influence on the sources of law and the methods of procedure. The influence asserted itself from the first; yet for at least two centuries there was always a formal, and sometimes a real recognition of the theory on which the Principate was based—the theory of a dual control exercised by the Princeps on the one hand, by the usual organs of the Republic on the other. The chief organ by which the Republic was represented was now no longer the People, but the Senate; and the dual sovereignty—or ‘Dyarchy,’ as it has been called—can be illustrated chiefly by the division of authority between the Princeps and the Senate.

As regards the sources of law, even the utterances of the People were for some time elicited. Leges and Plebiscita—specimens of which are to be found in the Leges Juliae of Augustus, the Lex Aelia Sentia belonging to the reign of the same monarch, the Lex Junia Norbana of the reign of Tiberius, the Leges Claudiae of the Emperor Claudius — continued to be passed during the early Principate. The last trace of legislation belongs to the reign of Nerva (96-98 a. d.)2 .

Even before legislative power had been surrendered by the Comitia, it had begun to pass to the Senate; and down to the third century a.d., such general ordinances as tended to alter the fundamental legal relations of Roman citizens to one another were generally expressed in the form of Senatusconsulta. The Senatusconsultum was a true source of the Jus Civile. Yet it did not attain the formal structure, or always adopt the imperative utterance, of a law. Its utterances are often couched in an advisory form3 , as though the Senate of this period, like that of the Republic, were merely giving counsel to a magistrate. Gaius attributes to these decrees ‘the binding force of law’; and it does not seem that the early doubts as to whether the Senate could pass ordinances immediately binding on the community1 survived the beginning of the Principate.

The Praetor’s edict still continued to be issued; nor are we told that the edictal power was in any way infringed during the early Principate. But there are two considerations which would lead us to conclude that it was seriously weakened. The first is based on the fact that edictal power in the highest degree was conferred by law on the Princeps himself2 ; and the existence of two interpreters of the civil law possessing equal authority is almost inconceivable. The second consideration rests on the probability that the Praetor’s rulings in detail were subject to the veto of the Princeps. A new ruling was often the basis for a new formula and a new edict, and if the first of these was inhibited, its successive developments could not be realized. Progressive legislation was effected elsewhere, in decrees of the Senate and in the imperial constitutions; and the final sign that the creative work of the Praetors was a thing of the past was given when, in the reign of Hadrian (117-138 a.d.), and therefore probably in the lifetime of Gaius, the work which Ofilius had begun3 was perfected by the jurist Salvius Julianus. He reduced the edict to a fixed and definite system4 ; and from this time onward the Edictum Perpetuum was, in its essential features, unalterable. Absolute validity was given to the new redaction by a Senatusconsultum introduced by a speech from the Emperor Hadrian, who declared that any new point, not contemplated in the edict, should be decided by analogy with it5 . It is probable that such new points were still mentioned in successive edicts; for it is certain that the edict still continued to be issued annually. The work of Julian could, therefore, never have been meant to be unalterable in a literal sense. Such invariability would indeed have been impossible; for, though changes in law were now beginning to be made chiefly by ordinances of the emperor, yet these very changes would necessitate corresponding changes in the details of the edict. The fixity of Julian’s edict was to be found both in its structure and in its leading principles; in the order in which the rules of law were marshalled and in the general significance of these rules. It has been supposed that Julian’s work was not confined to the edict of the Praetor Urbanus, but that he dealt also with the edicts of the Praetor Peregrinus and of the Curule Aediles1 . He may have treated these edicts separately; but the three may have been combined in a single comprehensive work which was spoken of as ‘The Edict2 .’

By the side of these sources of law which survived from the Republic stood the new authority, the Princeps. He was not regarded as, in the strict sense, a legislative authority; but he or his advisers exercised a profound influence on the growth and structure of law in virtue of his power of issuing Edicts, Decrees, Rescripts, and Mandates. The Edictum of the Princeps was, like that of the Praetor in the Republic, technically an interpretation of law, but, like the Praetor, the Princeps could supplement and alter under the guise of interpretation: and his creative power, as exercised by his edictal authority, was very great. An edict of an emperor did not necessarily bind his successors; but, if it had been accepted as valid by a series of emperors, it was considered to be a part of the law, and its subsequent abandonment had apparently to be specified by some definite act of repudiation3 . The Decretum was a judgment of the Princeps as a court of justice; and, unless it was rescinded in a succeeding reign, its validity as a precedent seems to have been unquestioned. The Rescriptum was technically an answer to a letter by which the advice of the Princeps was sought; but the word soon came to be used for the Princeps’ letter (Epistola) itself. It contained instructions either on administrative or on judicial matters. In its first capacity, it was addressed to some public official subordinate to the emperor; in its second, it was addressed either to the judge or to the litigant. It was elicited either as an answer to the consultation (Consultatio) of an official or a judge who hesitated as to his course of procedure, or as a reply to a petition (Libellus, Supplicatio) of one of the parties to a suit. The Rescript which dealt with judicial matters might settle a doubtful point of law by showing, or extending, the application of an existing principle to a new case. The Rescript was the most powerful instrument of law-making wielded by the Princeps. The definiteness of its form gave the opinion an authority which, once accepted by a successor, could not easily be questioned; while the immense area over which these letters of advice were sent kept the Princeps in touch with the whole provincial world, and caused him to be regarded by the provincials as the greatest and most authentic interpreter of law. The Edicts, Decrees, and Rescripts came to be described by the collective name of ‘Imperial Constitutions’ (Constitutiones Principum), and by the time of Gaius they were held to possess, in a uniform degree, ‘the binding force of law1 .’ On a lower level, with respect to legal validity, stood the Mandatum. This was a general instruction given to subordinate officials, for the most part to governors of provinces, and dealt usually with administrative matters, although sometimes it had reference to a point of law. Such mandates might be, and often were, withdrawn by the Princeps who had issued them, or by his successor. Hence it was impossible to attach perpetual validity to their terms. But, when a mandate dealt with a precise point of law, and was renewed by successive emperors, it must have acquired the force of a Rescript2 .

§ 17.

Changes in Procedure under the Principate.

The creation of the office of Princeps, and the extension of the authority of the Senate, exercised an influence on jurisdiction as well as on legislation. The two new features of the judicial system were the growth of extraordinary jurisdiction and the growth of Courts of Appeal. The name ‘extraordinary’ (extra ordinem) was given to all jurisdiction other than that of the ordinary civil and criminal courts (Judicia Ordinaria) which had survived the Republic. It often dealt with cases not fully provided for by these courts; and its chief characteristic was that the cognizance (Cognitio), both on the question of law and on the question of fact, was undertaken solely by the magistrate or by a delegate nominated by him (judex extra ordinem datus)3 . In civil matters, the Princeps sat as such an extraordinary court, and either exercised, or delegated, jurisdiction in matters such as Trust or Guardianship. He might take other cases, if he willed; but his jurisdiction was always voluntary; and, if he declined to act, the case went before the Praetor. In criminal matters, two high courts of voluntary and extraordinary jurisdiction were created—that of the Princeps and that of the Senate. The Princeps might take any case, but often limited his intervention to crimes committed by imperial servants or by officers of the army. The jurisdiction of the Senate was especially concerned with offences committed by members of the upper ranks of society, or with crimes of a definitely political character.

The system of appeal introduced by the Principate was of a complicated character, and many of its features are imperfectly understood. It seems that, at Rome, the Princeps could in civil matters veto, and perhaps alter, the decision of a Praetor, but could not annul the verdict of a Judex, except by ordering a new trial1 . He could of course vary the decisions of his own delegates in matters of extraordinary jurisdiction. In criminal matters the Princeps does not seem to have had the power of altering the decisions of the Quaestiones Perpetuae; but he could probably order a new trial2 . There was technically no right of appeal from the Senate to the Princeps3 ; but the Princeps could exercise what was practically a power of pardon by vetoing the decisions of the Senate in virtue of his Tribunicia Potestas. In the provincial world, the right of appeal was at first regulated in accordance with the distinction between Caesar’s provinces and the provinces of the Roman people. From Caesar’s provinces the appeal lay to Caesar; from the other provinces it came to the Consuls and, at least if it was concerned with a criminal matter, was by them transmitted to the Senate. But we know that this system of dual jurisdiction was breaking down even in the first century of the Principate, and that the appellate jurisdiction of the Princeps was tending to encroach on that of the Consuls and Senate4 . The extent to which it had broken down in the time of Gaius is unknown. But we know that, by the end of the second century a. d., the Princeps was the Court of Appeal for the whole provincial world. For this purpose he was usually represented by the Prefect of the Praetorian Guard.

§ 18.

The work of the Jurisconsults under the Principate.

The official organs which made Roman law were now, as under the Republic, assisted by the unofficial or semi-official activity of the jurisconsults. Some of these teachers were now given public recognition as authoritative sources of law. We are told that Augustus granted the right to certain jurisconsults to respond under imperial authority; and this practice was continued by his successors on the throne. Amongst the earlier of these patented jurisconsults was Masurius Sabinus, of the time of the Emperor Tiberius1 . The granting of this privilege did not diminish the activity of the unpatented lawyers2 , although it doubtless diminished their influence; but it gave the response of its possessor as authoritative a character as though it had proceeded from the emperor himself3 . The response was usually elicited by a party to the suit and presented to the Judex4 . He was bound by the decision5 ; but naturally only on the assumption that the facts as stated in the petition which elicited the Rescript were the facts as exhibited in the course of the trial6 It may have been understood that the opinion of only one patented counsellor was to be sought in any single case; for in the early Principate there seems to have been no provision determining the conduct of a Judex when the opinions of his advisers differed. Later it must have been possible to elicit the opinion of several patented jurists on a single issue; for the Emperor Hadrian framed the rule that, in the case of conflicting responses, a Judex should be entitled to use his own discretion7 .

§ 19.

Literary activity in the domain of Law to the time of Gaius.

The literary activity in the domain of law, during the period which intervened between the accession of Augustus and the time of Gaius, was of the most varied character8 . Religious law (Jus Pontificium) attracted the attention of Capito. Labeo wrote on the Twelve Tables. The Praetor’s Edict was the subject of studies by Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the Curule Aediles was commented on by Caelius Sabinus. Salvius Julianus, besides his redaction of the Edicts1 , produced a work known as Digesta, which perhaps assumed the form of detailed explanations of points of law systematically arranged. Comprehensive works on the Civil Law were furnished by Masurius Sabinus and Caius Cassius Longinus. Other jurists produced monographs on special branches of law, as the younger Nerva on Usucapion, Pedius on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote commentaries on the works of their predecessors. It was thus that Aristo dealt with Labeo, and Pomponius with Sabinus. Other works took the form of Epistolae, which furnished opinions on special cases which had been submitted to their author, and collections of Problems (Quaestiones). Nor was history neglected. There must have been much of it in Labeo’s commentary on the Twelve Tables; and Pomponius wrote a Handbook (Enchiridion), which contained a sketch of the legal history of Rome from the earliest times.

§ 20.

The Institutes of Gaius; their place in the Literature of Law.

The Institutes of Gaius are a product of this activity; for it is necessary that a great deal of detailed and special work shall be done in a science before a good handbook on the subject can be written for the use of students. The name of Gaius’s work does not appear in the manuscript; ‘but2 from the proem to Justinian’s Institutes appears to have been Institutiones, or to distinguish it from the systems of rhetoric which also bore this name, Institutiones Juris Civilis. From the way in which it is mentioned by Justinian, we may infer that for 350 years the élite of the youth of Rome were initiated in the mysteries of jurisprudence by the manual of Gaius, much as English law students have for many years commenced their labours under the auspices of Blackstone. It is probably in allusion to the familiarity of the Roman youth with the writings of Gaius that Justinian repeatedly calls him (e. g. Inst. proem. 6; Inst. 4, 18, 5; and in the Constitution prefixed to the Digest, and addressed ad Antecessores, § 1), “our friend Gaius” (Gaius noster). The shortness of the time that sufficed Tribonian and his colleagues for the composition of Justinian’s Institutes (apparently a few months towards the close of the three years devoted to the compilation of the Digest, Inst. proem) is less surprising when we see how closely Tribonian has followed the arrangement of Gaius, and how largely, when no change of legislation prohibited, he has appropriated his very words.’

‘Certain internal evidences fix the date at which portions of the Institutions were composed. The Emperor Hadrian is spoken of as departed or deceased (Divius) except in 1. § 47 and 2. § 57. Antoninus Pius is sometimes (1. § 53, 1. § 102) named without this epithet, but in 2. § 195 has the style of Divus. Marcus Aurelius was probably named, 2. § 126, and the Institutions were probably published before his death, for 2. § 177 contains no notice of a constitution of his, recorded by Ulpian, that bears on the matter in question. Paragraphs 3. § 24, 25, would hardly have been penned after the Sc. Orphitianum, a. d. 178, or the Sc. Tertullianum, a. d. 158.’ It has, however, been held that Gaius when he wrote the Institutions was acquainted with the Sc. Tertullianum, and that a mention of it occupied a gap in the manuscript which is found in 3. 33. See the commentary on this passage.

The discovery of the text of the Institutions was made in 1816. In that year ‘Niebuhr noticed in the library of the Cathedral Chapter at Verona a manuscript in which certain compositions of Saint Jerome had been written over some prior writings, which in certain places had themselves been superposed on some still earlier inscription. In communication with Savigny, Niebuhr came to the conclusion that the lowest or earliest inscription was an elementary treatise on Roman Law by Gaius, a treatise hitherto only known, or principally known, to Roman lawyers by a barbarous epitome of its contents inserted in the Code of Alaric II, King of the Visigoths (§ 1, 22, Comm.). The palimpsest or rewritten manuscript originally contained 129 folios, three of which are now lost. One folio belonging to the Fourth Book (§ 136-§ 144), having been detached by some accident from its fellows, had been published by Maffei in his Historia Teologica,a.d. 1740, and republished by Haubold in the very year in which Niebuhr discovered the rest of the codex.’

‘Each page of the MS. generally contains twenty-four lines, each line thirty-nine letters; but sometimes as many as forty-five. On sixty pages, or about a fourth of the whole, the codex is doubly palimpsest, i.e. there are three inscriptions on the parchment. About a tenth of the whole is lost or completely illegible, but part of this may be restored from Justinian’s Institutes, or from other sources; accordingly, of the whole Institutions about one-thirteenth is wanting, one half of which belongs to the Fourth Book.’

‘From the style of the handwriting the MS. is judged to be older than Justinian or the sixth century after Christ; but probably did not precede that monarch by a long interval.’

‘In a year after Niebuhr’s discovery the whole text of Gaius had been copied out by Goeschen and Hollweg, who had been sent to Verona for that purpose by the Prussian Royal Academy of Sciences, and in 1820 the first edition was published. In 1874 Studemund published an apograph or facsimile volume, the fruits of a new examination of the Veronese MS.; and in 1877 Studemund, with the assistance of Krueger, published a revised text of Gaius founded on the apograph.’

‘In the text of Gaius, the words or portions of words which are purely conjectural are denoted by italics. The orthography of the Veronese MS. is extremely inconstant. Some of these inconstancies it will be seen are retained: e.g. the spelling oscillates between the forms praegnas and praegnans, nanctus and nactus, erciscere and herciscere, prendere and prehendere, diminuere and deminuere, parentum and parentium, vulgo and volgo, apud and aput, sed and set, proxumus and proximus, affectus and adfectus, inponere and imponere &c. Some irregularities likely to embarrass the reader, e. g. the substitution of v for b in debitor and probare, the substitution of b for v in servus and vitium, have been tacitly corrected. The numeration of the paragraphs was introduced by Goeschen in his first edition of Gaius, and for convenience of reference has been retained by all subsequent editors. The rubrics or titles marking the larger divisions of the subject, with the exception of a few at the beginning, are not found in the Veronese MS. Those that are found are supposed not to be the work of Gaius, but of a transcriber. The remainder are partly taken from the corresponding sections of Justinian’s Institutes, partly invented or adopted from other editors.’

§ 21.

The Life and Works of Gaius.

Of the life of Gaius we know little. Even his full name has been lost; for, if ‘Gaius’ is the familiar Roman praenomen1 , he must have had a family or gentile name as well. It is probable that he was a foreigner by birth—a Greek or a Hellenised Asiatic; but it is also probable that he was a Roman citizen, and possible that he taught at Rome. It is not likely that he belonged to the class of patented jurisconsults; for his opinions are not quoted by the subsequent jurists whose fragments are preserved in the Digest; it has even been inferred that he was not a practising lawyer; for amidst his voluminous writings there is no trace of any work on Quaestiones. His treatises may all have been of a professorial kind. They included, beside the Institutions, Commentaries on the Provincial Edict and the Urban Edict; a work on the Lex Julia et Papia Poppaea; a Commentary on the Twelve Tables; a book called Aurea or Res Quotidianae, treating of legal doctrines of general application and utility in every-day life; a book on Cases (apparently of a hypothetical character); one on Rules of Law (Regulae); and special treatises on Verbal Obligations, Manumissions, Fideicommissa, Dowries, and Hypotheca. He also wrote on the Tertullian and Orphitian Senatusconsults. Gaius’s Commentary on the Provincial Edict is the only work of the kind known to us. It is not necessary to believe that this Provincial Edict was the edict of the particular province (perhaps Asia) of which he was a native. It may have been a redaction of the elements common to all Provincial Edicts1 .

The value attached to Gaius’s powers of theoretical exposition, and to the admirable clearness and method which made his Institutions the basis of all future teaching in Roman law, must have been great; for, in spite of the fact that he was not a patented jurisconsult, he appears by the side of Papinian, Paulus, Ulpian, and Modestinus, in the ‘Law of Citations’ issued by Theodosius II and Valentinian III in 426 a. d. The beginning of this enactment runs2 : ‘We accord our approval to all the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, granting to Gaius the same authority that is enjoyed by Paulus, Ulpian and the others, and sanctioning the citation of all his works.’

Although so little is known of Gaius, yet his date can be approximately determined from the internal evidence of his works. ‘We know that he flourished under the Emperors Hadrian (117-138 a. d.), Antoninus Pius (138-161 a. d.) and Marcus Aurelius Antoninus (161-180 a. d.). Gaius himself mentions that he was a contemporary of Hadrian, Dig. 34, 5, 7 pr. He apparently wrote the First Book of his Institutions under Antoninus Pius, whom he mentions, § 53, § 74, § 102, without the epithet Divus (of divine or venerable memory), a term only applied to emperors after their decease, but in the Second Book, § 195, with this epithet. The Antoninus mentioned, § 126, is either Pius or Marcus Aurelius Philosophus. Respecting the rules of Cretio, 2. § 177 Gaius appears not to be cognizant of a Constitution of Marcus Aurelius mentioned by Ulpian, 22, 34. That he survived to the time of Commodus appears from his having written a treatise on the Sc. Orphitianum (178 a. d.), an enactment passed under that emperor’ during his joint rule with his father Marcus Aurelius (177-180 a. d.). This is the latest date which is traceable in the life of Gaius.

Gaius was thus an elder contemporary of Papinian, who had already entered active life in the reign of Marcus Aurelius; and he stands at the threshold of that brilliant period of the close of Roman Jurisprudence which contains the names of Scaevola, Papinian, Ulpian and Paulus, and extends from the reign of Marcus Aurelius to that of Severus Alexander (180-235 a. d.).

[1 ]This thesis has been vigorously maintained by Lambert in his work La fonction du droit civil comparé (1903).

[1 ]See p. xix.

[2 ]The Latins possessed commercium and some of them conubium. Full citizenship would also be possessed by a considerable class in Latin towns, i. e. by all who, through holding a magistracy, had become Roman citizens.

[1 ]Pais, in his Storia di Roma, has stated the view that the Decemviral Legislation has been antedated by about a century and a half. He brings it down to the close of the fourth century b c He believes that Appius Claudius, the Decemvir, is a duplicate of Appius Claudius, the censor of 312 b c., and that the story of a publication by the Decemvirs is a duplicate of the story of the revelation of the forms of Law by Cn. Flavius in 304 b. c. Lambert has gone still further in a view expressed in three works (La question de l’authenticite des XII Tables et les Annales Maximi; La fonction du droit civil compare; L’histoire traditionnelle des XII Tables). He thinks that the Twelve Tables, as a code, originated with Sextus Aelius Paetus, consul in 198 b. c., whom tradition regards as their earliest commentator, although he admits that there may have been successive partial compilations before this date.

[2 ]Mitteis, Reichsrecht und Volksrecht.

[1 ]Cic. Top. 6. 29 ‘Gentiles sunt inter se, qui eodem nomine sunt.’

[2 ][Cic.] ad Her. i. 13. 23; Cic. pro Domo, 13 35; Gaius, i. 157, ii. 47.

[1 ]Ulpian in Collatio, 16. 4 2; cf Gaius, iii. 17.

[2 ]Mommsen, Staatsr. iii, p 23 foll

[3 ]Cic. de Rep ii. 20. 35; Liv. i. 35.

[4 ]See Daily News, Sept 5, 1901 (‘The Genius of Rome’).

[1 ]See Danz, ‘Das Sacramentum und die lex Papiria,’ in Zeitschr. f. R. G. vi (1867), p. 339 foll.; Der sacrale Schutz, p. 151 foll.

[2 ]This must have been the original meaning of the consecratio capitis, the penalty of the leges sacratae. See Liv. iii. 55; Festus, p. 318; Bouché-Leclercq, Les pontifes de l’ancienne Rome, p. 196.

[3 ]The extant Leges Regiae are to be found in Bruns, Fontes juris Romani antiqui, I. 1.

[1 ]Dionys. iii. 36; Pompon. in Dig. 1. 2. 2 36.

[2 ]Liv. vi. 1.

[3 ]Paulus in Dig. 50. 16 144; Censorinus, De Die Nat. iii 2.

[4 ]Clark, Practical Jurisprudence, p. 17 Nettleship (Contributions to Latin Lexicography, p. 497) enumerates the following senses of jus in Latin literature:—(1) a law court (e. g. in the phrases ‘In jus ducere,’ ‘Res est in jure’), (2) a bond or tie (e g in the phrases ‘Jus amicitiae,’ ‘Jura necessitudinis’), (3) power, authority, (4) right to do a thing, (5) law, or a system of law, (6) what is right and fair, (7) the plural jura means either (a) rights or (b) rules of law, ordinances, decisions, and so authority.

[1 ]See note 4, p. xv.

[2 ]On this branch of Public Law see Mommsen, Staatsr. i, p. 172.

[1 ]This procedure is illustrated by the Lex Bantina (Bruns, Fontes, iii. 9). It is there ordained ‘Eam pequniam quei volet magistratus exsigito. Sei postulabit quei petet, pi (aetor) recuperatores . . dato . . . facitoque joudicetur.’

[1 ]This procedure is illustrated by the Lex Bantina (Bruns, Fontes, iii. 9). It is there ordained ‘Eam pequniam quei volet magistratus exsigito. Sei postulabit quei petet, pi (aetor) recuperatores . . dato . . . facitoque joudicetur.’

[2 ]Compare the procedure ordained by the Lex agraria of 111 b. c. (Bruns, Fontes, iii. 11), ll. 36-39.

[1 ]Gaius, iv 11.

[2 ]Cic. de Rep. v. 2, 3.

[3 ]Savigny, System des röm. Rechts, vi. p. 287; Bernhöft, Staat und Recht dei Konigszeit, p. 230.

[1 ]Compare Ridgeway, The early age of Greece, p. 257. ‘We may conclude that the two main elements in the population of early Rome were the aboriginal Ligurians, who formed the Plebs, and the Umbrian Sabines, who formed the aristocracy’ The evidence is perhaps not sufficient to warrant so definite a conclusion; but the more that I have dwelt on the lack of homogeneity in early Roman life, the more definite has become my conviction that we have to deal with racial, not merely with social, differences.

[2 ]‘Gentiles sunt . . . quorum majorum nemo servitutem servivit’ (Cic Top. 6. 29).

[1 ]Cf Savigny, Recht des Besitzes (seventh edition), p. 202

[2 ]If we believe that the Servian census was intended to create liability to service for Plebeians. Cf. p. xxv.

[3 ]This seems shown by the continuance of the use of the word assidui for the members of the Servian Classes.

[4 ]Cic. pro Flacco, 32. 80.

[1 ]Liv. iii. 57.

[2 ]See Pais, Storia di Roma, i. 1, p 584 He describes the law of the Tables as the result of a fusion of the rude national law with the more civilized dispositions of Greek culture.

[3 ]Cf Voigt, XII Tafeln, 1, p. 14.

[1 ]Cf. Diod. xii. 26 ἡ δὲ γραϕεɩ̂σα νομοθεσία, βραχέως καὶ ἀπερίττως συγκειμένη, διέμεινε θαυμαζομένη μέχρι τω̂ν καθ’ ἡμα̂ς καιρω̂ν.

[2 ]Cic. de Rep 11. 37, 63.

[3 ]Liv. iii. 34.

[4 ]Gaius, i. 111.

[5 ]Gaius, i. 132.

[6 ]Ulpian, Reg. ii 4.

[1 ]Cic. de Inv ii. 50 148; [Cic.] ad Her. i. 13 23; Gaius, ii 224.

[2 ]Ulpian in Collatio, 16. 4. 2.

[3 ]Gell. xv. 13 11; xx. 1 45.

[4 ]Tac Ann. vi. 16.

[5 ]Cato, de Re Rust. praef.

[6 ]Bruns, Fontes, i. 2, Tab. i.

[7 ]Cic. de Or. i. 41 185; ad Att vi. 1 8; Liv. ix 46 5

[8 ]Cic ad Att. l. c; pro Mur. 11. 25; Liv. l. c.; Plin. H. N xxxiii 1. 17.

[9 ]Macrob. i. 13. 21.

[10 ]Liv. vi. 1, Cic. ad Att. l. c.

[1 ]Gell xx. 1. 12-14

[2 ]Plin H. N. xviii. 3 12.

[3 ]Cic. de Rep. iv. 10. 12.

[4 ]Marcian in Dig 48. 4 3.

[5 ]Cic. de Rep. ii 31. 54.

[6 ]Cic de Leg. iii 4. 11.

[7 ]Cic de Leg l. c

[8 ]Decl in Catil 19

[9 ]Gaius in Dig 47. 22. 4.

[10 ]‘Ut quodcumque postremum populus jussisset, id jus ratumque esset’ (Liv. vii. 17).

[1 ]The scheme was as follows:—

The Cavalby.

18 centuries, chosen from the richer classes (Dionys. iv. 18), but probably with no fixed property qualification.

The Infantry.

1st classis 100,000 asses (Liv i. 43, Dionys. iv. 16, Polyb. vi. 23); 120,000 asses (Plin. H N. xxxiii 3, Festus, p. 113).
Seniores, 40 centuries } 80
Juniores, 40 centuries } 80
2nd classis 75,000 asses (Livy and Dionysius).
Seniores, 10 centuries } 20
Juniores, 10 centuries } 20
3rd classis 50,000 asses (Livy and Dionysius).
Seniores, 10 centuries } 20
Juniores, 10 centuries } 20
4th classis 25,000 asses (Livy and Dionysius).
Seniores, 10 centuries } 20
Juniores, 10 centuries } 20
5th classis 11,000 asses (Livy); 12,500 (12½ minae, Dionysius).
Seniores, 15 centuries } 30
Juniores, 15 centuries } 30
Fabri—2 centuries (voting with the 1st class, Livy; with the 2nd class, Dionysius). } 5 centuries (Livy).
Accensi, cornicines, tibicines, 3 centuries, Livy; 2 centuries, Dionysius (voting with the 4th class, Dionysius) } 4 centuries (Dionysius).
Capite censi or Proletarii, 1 century (Livy). 1 century.
Total 193 or 194 centuries.

[2 ]Cf. Liv. i. 43. He describes the new organization as existing ‘post expletas quinque et triginta tribus.’ Yet he does not say that it began its existence at that date. Mommsen (Staatsrecht, iii, p. 270) conjecturally assigns the change to the censorship of C Flaminius (220 b. c).

[3 ]This system was first suggested by Pantagathus, who died in 1657.

[1 ]Mommsen’s system (Staatsr. iii, p 275) is different, and is based on the view that the description given by Cicero (de Rep. ii. 22, 39, 40) refers, not to the older arrangement, but to the reformed Comitia. Mommsen allows the 70 votes for the 70 centuries of the first class, but thinks that the 280 centuries of the other classes were combined so as to form only 100 votes. The total votes in the Comitia would thus be 70 + 100 + 5 (Fabri, &c) + 18 (Knights); i. e. 193 in all, as in the earlier arrangement.

[2 ]App. Bell. Civ. i. 59.

[3 ]This Comitia seems still to have met for formal business as late as the third century a d. At least Dio Cassius (Consul 219 or 220 a. d) describes the flying of the flag from the Janiculum as a custom still surviving in his day (xxxvii. 28).

[4 ]P. xxix.

[5 ]This was the view taken by Mommsen (Staatsr. iii, pp. 182, 184) He held (ii, p. 403) that Appius Claudius, the censor of 312 b. c, first included the landless citizens in the tribes (cf. Girard, Manuel. p. 31); but our authorities (Diod. xx 46, Liv ix 46) only represent Appius Claudius as allowing citizens to be registered where they pleased, and as spreading the lower classes (humiles) over all the tribes. The definition which we possess of the Comitia Tributa (Laelius Felix ap. Gell xv. 27) speaks of it only as an assembly at which the votes are given ‘ex regionibus et locis.’

[1 ]Liv ii. 56. Previously it had probably met by Curiae. Hence the tradition that the early tribunes were elected in the Comitia Curiata (Liv. l. c., Cic. ap. Ascon. in Cornelian. p. 76).

[2 ]When the Tables enacted ‘De capite civis nisi per maximum comitiatum . . . ne ferunto’ (Cic de Leg iii 4 11), this mention of the ‘greatest Comitia’ (i. e. the Comitia Centuriata) seems to imply the existence of a lesser Comitia with judicial powers; and the latter could scarcely have been the Comitia Curiata of the period.

[3 ]Liv vii. 16

[4 ]For the application of the lex curiata to the minor magistracies, as well as to those with Imperium, see Messala ap. Gell. xiii. 15 4 ‘Minoribus creatis magistratibus tributis comitiis magistratus, sed justus curiata datur lege.’

[5 ]Cic. de Leg. Agr. ii. 12. 31

[6 ]Gaius, ii. 101; Gell. xv. 27.

[1 ]Gell. l. c

[2 ]P. xxi.

[3 ]Laelius Felix ap. Gell. xv. 27 ‘Is qui non [ut] universum populum, sed partem aliquam adesse jubet, non “comitia,” sed “concilium” edicere debet.’ See Mommsen, Staatsr. iii, p 149.

[4 ]Strachan-Davidson, starting from the view that Plebiscita were originally sent as petitions to the consuls and senate (cf. Dionys. x. 31), suggests that the Valerio Horatian law may have ‘laid down that the consul must so consult the senate, or it may even have forbidden him arbitrarily to disregard a recommendation of the senate (should such be obtained) that he should put the question to the populus’; and that the Publilian law ‘may have struck out the intervening consultation of the senate, and may have required the consul to bring the petition of the plebs at once before the populus’ (Smith, Dict. of Antiq. ii, p. 439).

[5 ]Gaius, i. 3; Pompon. in Dig. 1. 2. 2. 8.

[1 ]We know, at least, that some of Sulla’s legislation was effected through the Comitia Centuriata (Cic pro Dom. 30 79).

[2 ]Thus, Cicero was exiled by a Plebiscitum, but restored by a Lex Centuriata.

[3 ]App. Bell. Civ. i. 59.

[4 ]Cic. ad Att. v. 21. 13.

[5 ]Ascon in Cornelian. p. 58.

[6 ]Cic. pro Domo, 16. 41; Ascon. in Cornelian. p. 68.

[7 ]Hence the saving clause in enactments, ‘Si quid sacri sancti est quod non jure sit rogatum, ejus hac lege nihil rogatur’ (Probus). Cf. Cic. pro Caec. 33. 95.

[1 ]P. xl.

[2 ]Liv. vi. 42.

[3 ]Liv. Ep. 19. The date is not quite certain. Lydus (de Mag. i. 38) places the event in 247 b. c. See Mommsen, Staatsr. ii, p. 196.

[1 ]See Wlassak, Edict und Klageform.

[2 ]P. xl.

[1 ]‘Adjuvandi vel supplendi vel corrigendi juris civilis gratia propter utilitatem publicam’ (Papin. in Dig. 1. 1 7. 1).

[2 ]It has sometimes been thought that Peregrini were wholly excluded from the use of the Legis Actio. See Girard, Manuel, p. 110.

[3 ]Dig. 21. 1; Cic. de Off. iii. 17. 71; Gell. iv. 2.

[4 ]Cic. in Verr. i. 45. 117.

[5 ]Cic. ad Fam. iii. 8. 4.

[1 ]Cicero thus sketches the contents of the whole edict which he published as governor of Cilicia (ad Att. vi. 1. 15):—‘Unum (genus) est provinciale, in quo est de rationibus civitatum, de aere alieno, de usura, de syngraphis; in eodem omnia de publicanis. Alterum, quod sine edicto satis commode transigi non potest, de hereditatum possessionibus, de bonis possidendis vendendis, magistris faciendis: quae ex edicto et postulari et fieri solent Tertium, de reliquo jure dicundo ἄγραϕον reliqui. Dixi me de eo genere mea decreta ad edicta urbana accommodaturum.’

[2 ]Clark, Practical Jurisprudence, p. 354. On the content of the Jus Gentium see Nettleship, Contributions to Latin Lexicography, p. 503; Mommsen, Staatsr. iii, p. 604.

[1 ]Festus, p. 274: ‘Reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitates peregrinas lex convenit quomodo per reciperatores reddantur res reciperenturque, resque privatas inter se persequantur.’

[2 ]P. xxxi.

[1 ]Arist Rhet. i. 13.

[2 ]Arist. Eth. v. 7.

[3 ]‘Cum jure naturali omnes liberi nascerentur’ (Ulpian in Dig. 1. 1 4).

[4 ]See Muirhead, Historical Introduction to the Private Law of Rome, p. 281. ‘While the jus civile studied the interests only of citizens, and the jus gentium those of freemen irrespective of nationality, the law of nature had theoretically a wider range and took all mankind within its purview.’ Compare Carlyle, Mediaeval Political Theory in the West, ch. 3 (‘The Theory of the Law of Nature’).

[1 ]Ulpian in Dig. 44. 7. 14: ‘Servi . . . ex contractibus . . . civiliter . . . non obligantur; sed naturaliter et obligantur et obligant.’

[2 ]‘Melior condicio nostra per servos fieri potest, deterior fieri non potest’ (Gaius in Dig. 50. 17. 133).

[3 ]Gaius, iv. 69-74; Justin. Inst. iv. 7.

[1 ]Pompon. in Dig. 1. 2. 2. 38.

[2 ]Pompon. l c.; cf Cic. de Leg. ii. 23. 59; de Or. i. 56. 240; Brut. 20. 78; de Rep. i. 18. 30.

[3 ]Cic. de Leg. ii. 23 59; de Amic. 2. 6. He is called Atilius by Pomponius (l. c.). See Schöll, Legis duodecim tabularum reliquiae, p. 25.

[4 ]Teuffel-Schwabe, Geschichte der romischen Litteratur, § 125; Schöll, op. cit. p. 26.

[5 ]Schöll, op. cit. pp. 11, 15.

[6 ]Sometimes written ‘Manius.’

[1 ]See Roby, Introduction to the Study of Justinian’s Digest, pp. 95-124

[2 ]On the characteristics of the study of law during this period see Kruger, Geschichte der Quellen und Litteratur des römischen Rechts, pp. 48 foll.

[3 ]Cic. de Or. i. 45 199-200, ‘Quid est enim praeclarius, quam honoribus et rei publicae muneribus perfunctum senem posse suo jure dicere idem, quod apud Ennium dicat ille Pythius Apollo, se esse eum, unde sibi si non populi et reges, at omnes sui cives consilium expetant . . . Est enim sine dubio domus jurisconsulti totius oraculum civitatis.’

[4 ]These three functions are summed up by Cicero in the words agere, cavere, respondere See Cic. de Or. i. 48 212: ‘Sin autem quaereretur, quisnam jurisconsultus vere nominaretur, eum dicerem, qui legum et consuetudinis ejus, qua privati in civitate uterentur, et ad respondendum et ad agendum et ad cavendum peritus esset.’ Cf Kruger, op. cit. p. 49.

[5 ]Cic. de Or. iii. 33. 133.

[6 ]Cic. pro Mur. 9 19. Cicero here describes the ‘urbanam militiam respondendi, scribendi, cavendi’ The interpretation that I have given to scribere is that of Kruger, op. cit. p. 50. Cf. Cic. Top. i. 1. 4.

[7 ]Cic. Orator, 41. 142, 42. 143.

[8 ]Cic. Top. 14. 56.

[9 ]Kruger, op. cit. p. 51.

[1 ]Cic. de Or. i. 38. 173; 57. 241, 242; pro Mur. 12 27; 13 28.

[2 ]Pompon in Dig. 1. 2. 2. 44: ‘De jurisdictione idem (Ofilius) edictum praetoris primus diligenter composuit.’

[3 ]Suet. Jul. 44. Ofilius’ intimacy with Caesar is noticed by Pomponius (Dig l. c).

[4 ]The civil procedure of the judicia ordinaria survived the Principate. When the criminal procedure of the quaestiones perpetuae disappeared is unknown. Their disappearance has been placed as early as the close of the first century a. d. (Geib, Criminalprocess, pp. 392-397). But it has been thought that Dio Cassius (lii 20, 21) implies their existence in his own time, at the beginning of the third century a. d.

[5 ]Gaius, iv. 30; Gell. xvi. 10. 8. The date of the law is unknown, but is not likely to be earlier than 150 b. c. Girard (Manuel, p. 987) finds indications for placing it between 149 and 126 b. c.

[1 ]Liv. xliii. 2.

[2 ]Cic. Brut. 27. 106; de Off. ii. 21. 75.

[3 ]Yet it is to be observed that Gaius, in his statement of the sources of law (i. 2), puts those which were antiquated in his time (Lex and Plebiscitum) on the same level as those which were living. The statement is juristically correct, in so far as the body of Roman law in his time had sprung from all these sources; but the method of statement is likely to convey a false historical implication. Cf pp. xlv-xlviii

[1 ]We may instance the view of Caligula on the jus respondendi of the jurisconsults. Suetonius says (Calig. 34) ‘De juris quoque consultis, quasi scientiae eorum omnem usum aboliturus, saepe jactavit “se mehercule effecturum ne quid respondere possint praeter eum.” ’ This was a desire that found no fulfilment during the Principate.

[1 ]The document is to be found in the Corpus Inscriptionum Latinarum, vi. n. 930, and in Bruns, Fontes Juris Romani Antiqui, v. 19. It describes itself as a law (l. 34 ‘Si quis hujusce legis ergo,’ &c.), and is generally known as the Lex de imperio Vespasiani. But its wording bears more analogy to that of a Senatusconsultum. It seems to be a decree of the Senate which is intended to be submitted to the People for their formal assent. See Mommsen, Staatsr. ii, p. 878.

[1 ]Gaius, i. 5; Ulpian in Dig. 1. 4. 1: ‘Quod principi placuit, legis habet vigorem; utpote cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem conferat.’ It has been questioned whether the expression lex regia was in vogue even in the time of Ulpian, and it may be an interpolation. The expression is found in Justinian (Cod. 1. 17. 1. 7). See Mommsen, Staatsr. ii, pp. 876, 877.

[1 ]Lex de Imp. Vesp. l. 17.

[2 ]Dig. 47 21. 3. 1.

[3 ]Thus the S. C. Velleianum beings: ‘Quod Marcus Silanus et Velleus Tutor consules verba fecerunt . . . quid de ea re fieri oportet, de ea re ita censuere.’ See Kruger, op. cit. p. 82.

[1 ]Gaius, i. 4. Cf. Ulpian in Dig. 1. 3 9 ‘Non ambigitur senatum jus facere posse’ Papinian (Dig 1 1. 7) recognizes senatusconsulta as a source of jus.

[2 ]Lex de Imp. Vesp l. 17 ‘Utique quaecunque ex usu rei publicae [Editor: illegible character] censebit, ei agere facere jus potestasque sit.’

[3 ]P. xl.

[4 ]Victor, Caes. 19 ‘Primus edictum quod varie inconditeque a praetoribus promebatur in ordinem composuit.’ Eutrop. viii. 17 ‘Perpetuum conposuit edictum’

[5 ]Cod. 1. 17. 2. 18; Constitution Δέδωκεν (prefixed to Digest), 18

[1 ]We hear of the Edictum Aedilium in the Constitutions ‘Omnem’ (4) and Δέδωκεν (5) prefixed to the Digest.

[2 ]It is possible that the common elements in the provincial edicts were reduced to a system at this time. Cf. p xxxiii.

[3 ]Paulus (Dig. 28. 2. 26) uses the expression ‘Jam sublato edicto divi Augusti,’ a phrase which suggests something more than mere neglect.

[1 ]Gaius, i. 5 Cf Ulpian in Dig. 1. 4 1 1 ‘Quodcumque . . . imperator per epistulam et subscriptionem statuit vel cognoscens decrevit . . . vel edicto praecepit, legem esse constat. Haec sunt quas vulgo constitutiones appellamus.’

[2 ]Thus the soldier’s testament was created by a series of mandates (Dig. 29. 1. 1).

[3 ]Such a delegate might be given by the consuls when exercising extraordinary jurisdiction (Gell. xii 13. 1 ‘Cum Romae a consulibus judex extra ordinem datus pronuntiare . . . jussus essem’). Such a judex represented the magistrate more fully than the judex of ordinary jurisdiction. He was not tied down within the limits of a formula.

[1 ]This was done by the fiction of In integrum restitutio. Cf. Suet. Claud. 14 ‘(Claudius) iis, qui apud privatos judices plus petendo formula excidissent, restituit actiones.’

[2 ]The Emperor Gordian is spoken of as παλινδικίαν διδοὺς τοɩ̂ς ἀδίκως κατακριθεɩ̂σι (Herodian, vii. 6. 4).

[3 ]Ulpian in Dig. 49. 2 1. 2 ‘Sciendum est appellari a senatu non posse principem, idque oratione divi Hadriani effectum.’ There can be little doubt that the principle was confirmed, not created, by Hadrian.

[4 ]Nero at the beginning of his reign in 54 a. d professed a desire to restore the original principle (Tac. Ann. xiii. 4 ‘Teneret antiqua munia senatus, consulum tribunalibus Italia et publicae provinciae adsisterent’).

[1 ]Pomponius in the Digest (1. 2. 48-50) says ‘Massurius Sabinus (of the time of Tiberius) in equestri ordine fuit et publice primus respondit’; but he also adds: ‘Primus divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex auctoritate ejus responderent’ To make the statements square with one another, Mommsen would strike out the words ‘fuit et’ in the first paragraph, as being the addition of an interpolator. The statement would then be that Sabinus was the first patented jurisconsult of equestrian rank.

[2 ]This seems shown by the story told by Pomponius in Dig. 1 2. 2. 49.

[3 ]Yet the response was not regarded as a delegation of the power of the Princeps to issue Rescripts It may, however, have formed the model for the judicial Rescript. See Krüger, op. cit. p. 110, note 5

[4 ]Not merely to the Judex privatus, but to the Judex extra ordinem datus, and even to the magistrate who was judging

[5 ]Justin. Inst. i. 2. 8.

[6 ]Krüger, op. cit. p. 110.

[7 ]Gaius, i. 7.

[8 ]For a detailed description of this literature see Roby, Introduction to the Study of Justinian’s Digest, pp. 124-174.

[1 ]P. xlvii.

[2 ]These passages in inverted commas are taken from Mr Poste’s preface to the third edition of his work.

[1 ]It is a curious fact that Gaios (Γάιος) is found as the name of an Asiatic (Gaios, son of Hermaeus, one of the σύντροϕοι of Mithridates Eupator, King of Pontus. See Delian inscription in Th. Reinach, Mithridate Eupator, roi du Pont, p. 52, and Plut. Pomp. 42). Yet, if Gaius the jurist was a Roman citizen, we should have expected him to bear a Roman, or Romanised, name.

[1 ]Cf p. xxxiii and p. xlvii, note 2.

[2 ]Cod. Theod. 1. 4. 8.