a Cf. § 5. Papin. Ius praetorum est, quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam.—D. I, 1, 7, I.1 Marcian Ius honorarium viva vox est iuris civilis.-1. 8, eod.2 Auctoritas prudentium, legal doctrine, Law of the jurists. Besides the Praetorian Edict, the development of the Law resulted mainly from the work of the jurists, called 'iurisconsulti,' iurisperiti,' 'iurisprudentes,' who in the process of interpretation explained the Law formulated in the Twelve Tables, developed it by way of analogy," and adjusted it to the growing exigencies of practical life. This interpretatio, eliciting legal maxims from the provisions of the Twelve Tables, led to the formation of a ius non scriptum alongside of the written Law of the Twelve Tables. The same result was also in a special way obtained by the disputatio fori. It was the discussion of disputed questions and of the legal maxim to be applied in concreto by those versed in Law, as legal decision afforded them opportunity. Pomp.: Proprium ius civile, quod sine scripto in sola prudentium interpretatione consistit.— Dig. 1, 2, 2, 12.3 Those possessed of legal knowledge were at first and for long the pontifices, in whose collegium not only were established and handed down the Calendar, important 1 The Praetorian Law is that which has been introduced by the praetors from general considerations of utility, with the view of aiding, of supplementing, and of improving the Civil Law. 2 The i. h. is the living voice of the i. c. 3 Our own ius civile which, unwritten, is made up of the mere interpretation of those skilled in Law. for legal procedure, and the 'legis actiones' (which were the forms and technicalities required for legal acts, and especially for the judicial prosecution of rights), but the tradition of the ius civile was always handed down. tab. Id.: Harum et interpretandi scientia et actiones a Sc. leg. xii. apud collegium pontificum erant, ex quibus constituebatur, quis quoque anno praeesset privatis ; et populus annis prope Cb hac consuetudine usus Until the adest. § 6, eod.' The pontiffs were not deprived of the exclusive possession of such knowledge until after the publication-effected by Cn. Flavius (450 U.c.), though composed by Appius Claudius-of a collection of the judicial calendar and the legis actiones known as the 'ius Flavianum;' and when the coll. pontificum was soon afterwards thrown open to the Plebeians also, knowledge of the Law began to spread by means of teaching and writing. An order of jurists was formed, which attained a very considerable and influential position in the State, and there gradually sprang up a special Science of Law, to the fostering of which later on the ablest men of the nation earnestly devoted themselves. The most eminent of these 'Veteres' or older jurists are -- 1. Tib. Coruncanius, the Father of Jurisprudence, first plebeian Pont. Max. (c. 500 U.C.). 1 mission of Plebeians to the praetorship, 417 U.C. scientiam. Id.: Ante Tib. Cor. publice professum neminem Sc. iuris Acquaintance with interpretation of these [i.e., laws of the Twelve Tables] and the forms of action could only be found in the college of the pontiffs, from whom each year one was appointed to superintend private suits. The people adhered to this custom for nearly 100 years. 2 * No one is reported to have come forward as a public teacher a Velut cunabula iuris,' D. 1, 2, 2, 38; cf. Coke, Preface to the Commy. on Cf. § 184. 2. S. Aelius (c. 550 U.c.), author of the 'ius Aelianum'a new and enlarged redaction of the ius Flav. -and the 'Tripertita,' containing the xii. tab. interpretatio leg. actiones' spoken of by Pomponius as the 'cradles (rudiments) of Law.'" 3. M. Porcius Cato (c. 600). 4. Publius Mucius Scaevola, M. Junius Brutus, M'. Manilius, qui fundaverunt ius civile.' The Manilianae actiones were a collection of formulae for contracts of the most diverse kind, especially for those of Sale and of Hiring. 5. Q. Mucius Scaevola (c. 650): 'he was the first to compose a system of the Civil Law, the general Ius civile pri- principles of which he treated in eighteen books.'d mus constituit With him the customary empirical casuistry was replaced by a more systematic treatment of Law. generatim in libros xviii. redigendo' So (Dig. 1.c. § 41). late jurists as Gaius and Pomponius wrote commentaries on his libri iuris civilis.' • Cf. § 141. f Sec generally, Huschke, 'Iurispru dentiae ante iustinianae,' 6. Aquilius Gallus. 7. Servius Sulpicius (c. 700). By the employment of dialectic methods he laid the basis of an 'ars iuris civilis' or scientific theory of Law, and left a great number of writings, amongst which are the 'notata Mucii,' being polemical notes on the system of that jurist. As pupils of Servius were 8. Alfenus Varus, author of a systematic collection of responsa under the title of Digesta, from which extracts appear in Justinian's Digest. 9. Aulus Ofilius, who re-arranged, amongst other things, the Praetorian Edict-at first in detail-and laid the basis for a scientific treatment of the 'ius honorarium,' as well as for the later commentaries on the Edict. 10. C. Trebatius Testa, A. Cascellius, Q. Aelius Tubero. f ed. iv. pp. 1-18, of Law earlier than T. C.; until he did so, the rest were dis84-104; and posed to keep the ius civile secret, and did but care rather to lend an ear to clients than to hold out their services to those desirous of instruction. Roby, Introd. to the Digest,' pp. lxxxiii.cxxiv. Not merely by literary labours ('scribere'), but above all by practical work, as iurisconsulti ('respondere '), did the jurists take part in the development of the Law. They thus exercised a great influence upon the administration of Law, through their responsa' or opinions taken by private persons, magistrates and judges, who repeatedly resorted to them for advice upon questions of law. Moreover, by skilled composition of formulae for legal matters ('cavere')-formulary and cautelary jurisprudence-they contributed not a little to the development of Private Law itself, because people thus became clearly conscious of the juristic character of their legal transactions and of the consequences that resulted from them. With the practical work of the jurists was at the same time associated the education ('instructio') of young men for the legal profession; who attended. consultations as listeners (auditores') and received practical instruction. § 8. THE PERIOD OF THE CLASSICAL LAW. The new and permanent constitution founded by Augustus, the principatus,' was a monarchy with republican forms, in which the Emperor-variously called 'Princeps,' Imperator,' Caesar,' Augustus '-united in his person the highest republican powers of office; the republican magistrates (consules, praetores, aediles, tribuni plebis), although in some respects alone nominally, continued alongside of the new imperial functionaries (praefecti praetorio, praef. urbi, praef. vigilum, praef. annonae, etc.); and the sovereignty, in conformity with the constitution, was divided similarly between Emperor and Senate, so that the latter not only was associated with the Emperor in the government, but also, though not for long, retained the superintendence of the public treasury and the finances (aerarium) and the immediate administration of a part of the provinces. And so we find, on the one hand, 'provinciae senatus populique Rom.' administered by 'proconsules,' and on the other, 'provinciae Caesaris,' governed by 'legati Augusti.' Nevertheless, in course of time the Senate was little by little through the power of the Princeps dispossessed of the joint government, and retained only formal rights, until at last the whole power of the State was concentrated in the hand of the Emperor, and the last spark of the republican constitution fully disappeared. Although during this period the Orbis terrarum, in consequence of its subordination to the imperium of the Emperor, took the form of a politically united and ordered whole, the consolidation into one political body of the many lands and populations subject to Roman sovereignty was not yet accomplished. The provinces were not organically welded to the Roman State; for whilst under the principatus their condition considerably improved and a prosperous time set in for many of them, they remained until towards the end of this period as they had been before, dependent tributary territories of the Empire, which were regarded as 'praedia populi Romani,' and were obliged to contribute to the maintenance of Roman sovereignty itself. In consequence of the theoretical continuance of the supreme sovereignty of the People, from which the imperial power was derived, the popular assembly also remained provisionally recognised as a factor in legislation, and at the beginning of the imperial period a series of important popular decrees (leges) were still published. But already from the time of Tiberius popular legislation disappeared, and the legislative functions of the comitia were transferred to the Senate, which, however, in its decrees always chanced to be dependent upon the control of the Princeps; until at last, under Septimius Severus, the formal co-operation in legislation of the Senate also came to an end. Senatus-consulta were by this time entirely replaced by Constitutiones principum, which gained importance from the time of Hadrian; their legal force, indeed, had always been acknowledged, but until then-in agreement with their nature, as declarations of the |