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the time of the law's highest development, when the most eminent jurisconsults flourished. Their responsa " were authoritative, as decisions of actual cases in the imperial court, of which they were members. More especially the opinions of five of them, Gaius, Julian, Papinian, Ulpian, Paulus, were recognized as of the highest authority by Justinian's Digest, compiled from such responsa "three centuries later.

Looking to the sources, and considering the complex modes of growth of the Roman law, these jurists distinguished the jus gentium from the jus civile. In the time of the Republic, it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection which her jus civile afforded only to her citizens. The edict of the praetor peregrinus covered their rights, and sanctioned simple modes of sale and lease, which did not observe the forms set by the jus civile. This edict, renewed and amplified from time to time, became the chief source of the so-called jus gentium, to wit, liberal rules of law which ignored the peculiar formalities required by the law of Rome. Probably the edict recognized the foreign laws or commercial customs of the Mediterranean peoples; and a study of them led to a perception of elements common to the laws of different peoples. In course of time, the jus gentium came to be regarded as consisting of universal rules of law which all peoples might follow naturally.

The judicial recognition of informal contracts rests on the principle of giving legal effect to the intention of the parties. Such a principle, with a knowledge that similar laws might obtain with different peoples, fostered a conception of natural justice. This could not fail to spring up in the minds of Roman jurists educated in a Stoical philosophy which had so much to say of human reason existing among all men. The idea of a naturalis ratio was in the air, and these jurists began to treat the jus gentium and the jus naturale as identical.

Thus, rules conceived as belonging to the jus gentium or the jus naturale, and representing rational principles, impressed themselves upon the development of the jus civile. The jurists applied them effectively to broaden and rationalize the whole Roman law. Judge and jurist learned when to disregard the formal requirements of the older and stricter Roman law, and found ways to recognize what was just and expedient. So the demands of aequitas were met, which is a progressive and discriminating legal justice. Law (jus) might be identified with aequitas conceived as the ars boni et aequi.

Roman jurisprudence was finally incorporated in Justinian's Digest, promulgated in the year A.D. 530. It was a codification of the responsa of the ancient jurists, using their very words, citing their names, and never speaking in the language

of Justinian's time. It opens with statements of those general principles which, as already said, might have hung in the air but for the power of the Roman legal genius to apply them to the concrete case. Jus est ars boni et aequi-what a wealth of significance has gathered around these words! Again, other famous words: Justitia est constans et perpetua voluntas jus suum cuique tribuendi " Justice is the constant and unceasing will to render each his due (his right, his law). The precepts of the law are these: to live honestly, not to injure another, to render each his own. Jurisprudence is... the science of what is just and unjust."

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The second of these passages may be taken as an expansion of the first. Both expressed the most advanced and philosophic ethics of the ancient world. Further exposition follows: "Jus has different meanings; that which is always aequum ac bonum is called jus, to wit, the jus naturale: Jus also means the jus civile, that which is expedient for all or most in any state. And in our state we have also the praetorian jus."

This passage indicates the course of the development of the Roman law: the constantly growing core of specifically Roman law, called the jus civile; its continual equitable application and enlargement, which was the contribution of the praetor, the chief judicial magistrate of Rome; and the persistent application of the aequum ac bonum, noticed in legal

rules common to many peoples, but more surely emanating from the reasoning of jurists instructed in the best ethics and philosophy of the ancient world, and learned and practised in the law.

We pass to certain general, but distinctly legal, rather than ethical, rules collected in the Digest. "The laws cannot provide specifically for every case that may arise; but when their intent is plain, he who is judging a cause should proceed ad similia, and thus declare the law in the case. 99 1 This states the general principle that new cases should be decided logically, and in accordance with established rules.

Sometimes, however, legal incongruities may be found in a statute or in some rule made for a special exigency. They are not to be applied to other cases: "What has been accepted contra rationem juris, is not to be drawn out to its consequences or, again, “What was introduced not by principle, but at first through error, does not obtain in like

;

Such principles make for the consistent development of a body of law. Observe the scope and penetration of some other rules: "Consent, not cohabitation, makes a marriage." This goes to the root of the whole conception of matrimony, and is the starting-point of all subsequent law upon that subject. Again: "An agreement to perform what is impossible will not sustain a suit." This 1 Dig. i. 3, 10, and 12. 2 Dig. i. 3, 14, and 39.

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is still a fundamental principle of the law of contracts. Again : No one can transfer to another a greater right than he would have himself." 1 The last is likewise of fundamental validity, but, like other rules of law, subject in its application to the qualifying operation of other rules.

Much private Roman law came from the enactments of the people or the rescripts of emperors. Yet the chief means and method of its development lay in the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the free constructive intelligence of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice rooted in a philosophic consideration of human life; matchless also in the carrying through of such principles into the body of the law and the decision of each case. One will scarcely find a more apt example of the freedom of the mind working in the creation of civil institutions.

IV

RETROGRESSION AND CHANGE

During periods of what is called advancing civilization, men build up the political fabric. When this ceases to draw so large a proportion of their energies, they may turn more to trade or commerce, handicraft or art, or philosophy. So it 1 Dig. L, 17, 30, 31, and 54.