multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.

*After many struggles, the patricians were obliged, by *527 the lex Hortensia, to submit to the authority of the plebiscita, enacted by the plebians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. (a) The senate also frequently promulgated laws under the name of senatus consulta, by their own authority. (b) A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Caius Cornelius, the senate could not exercise their dispensing power, unless two hundred senators were present. By the Publilian law, passed in the year of the city 416, the comitia of the curia were deprived of their veto or power as a branch of the legislature in passing upon laws enacted by the comitia of tribes, and their consent was no longer requisite to laws submitted by the senate to the comitia of the centuries. But the senate, which now consisted of the most eminent men, and was a mixed body of both patricians and commoners, continued to be the great national council. (c) Within a very few years after

(a) The Hortensian law abolished the senate's veto upon plebiscita, after the Publilian law had done away with the authority of the curio respecting them; and Niebuhr considers the Hortensian law as the commencement of the destruction of the constitution. Niebuhr's Hist. vol. iii. 419-421.

(b) Inst. 1, 2, 4. Dig. 1, 2, 9. The proofs are abundant, that even before the Augustan age, the senatus consulta had become one of the regular sources of the Roman law. Cicero, De Legibus, b. 3. Histoire du Droit Rom. par G. Hugo, sec. 174, 175, 176. Qui consulta Patrum, qui leges juraque servat. Hor. Epist. 1, 16, v. 41.

(c) Arnold's Hist. of Rome, vol. ii. 155, 158. It was the province of the censors to revise the list of senators and add to the roll, as well as to revise the rolls of the sev eral tribes. The censorship was an office of the highest rank and power, with a command of the public moneys, and with the power of commencing and conducting public works, such as roads and aqueducts. Id. 282-287. Cicero, De Legibus, b. 3. With respect to the senate, the Hortensian law, prior to the year of Rome 474, deprived the senate of its veto, and declared the people assembled in their tribes to be a supreme

the adoption of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was effected by the institution of Legal forms.

legal forms of judicial proceeding, called legis actiones, and by means of the pontifices, who regulated the calendar, and were the repositories of the laws and annals, and assumed the power of fixing the lawful days of business, and dies fasti et nefasti. These judicial forms and solemnities gave order and uniformity to the administration of justice; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to inter

pret them belonged to the pontifical college, and the *528 patricians had retained the exclusive right of being

eligible to the offices of the priesthood. (a) The forms remained confused and undigested until Appius Claudius Cœcus, a member of the pontifical fraternity, reduced them into one collection, which his scribe, Cnæus Flavius, surreptitiously published, together with the calendar, or fasti, to the great satisfaction of the people. (b) It acquired the title of the Jus civile Flavianum; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Ælianum. (c) This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious. (d)

legislative power. The tribes in the forum and the senate were placed on a footing of equality; neither had a veto on the enactments of the other, and the tribunes had a veto upon both alike. The enactments of both were considered as equal to laws. The senate, in its original form, was only a select assembly of the patres, whose great assembly was the comitia curiata. Id. 383-385.

De Orig. Jur. sec. 6.

(a) Dig. b. 1, tit. 2. Gravina says, De Ortu et Prog. J. C. sec. 33, that they were established by the policy of the ancient lawyers.

(b) Cic. pro. Muræna, sec. 11. De Orat. 1, 41.

(c) Dig. 1, 2, 7. Livy's Hist. 9, 46. Gravina, de Ortu Jur. Civ. sec. 33, and De Jur. Nat. et XII. Tab. sec. 79, 80.

(d) Leguleius quidam cautus et actutus præco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. 1, 55. See, also, Cod. 2, 58. De formulis et impetrationibus actionum sublatis.

Prætorian

The edicts of the prætor became another very important means of the increase and improvement of the law. Roman law. By the Licinian law, passed in the year of Rome 384, the office of consul was no longer confined to the patrician order, and a plebeian consul was elected in the centuries, and confirmed by the curia. But as a compensation for this loss of patrician power, the judicial was separated from the consu lar office, and a prætor was instituted, who was always to be a patrician. (a) The judicial decisions of the prætors, or edicta prætorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honor of the prætor. (b) There had been, from the foundation of the city, a magistrate called præfectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city prætor, and they confined his province to the administration of justice; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties. (c) The prætor was at first a patrician, and

elected in the comitia centuriata, though the office in 529 time became accessible to plebeians. Business soon required a second prætor to preside over the causes of foreigners, called prætor peregrinus, (d) and prætors were afterwards allotted to the provinces as the empire widened. Under Augustus the prætors had multiplied to sixteen; and in the time of Pomponius there were eighteen, and one of them judged de fideicommisso. (e) Every prætor, on entering into office, established

(a) Dr. Arnold gives an interesting history of the struggles which produced this great innovation in the Roman constitution. History of Rome, vol. ii. 33-61. The institution of the office of prætor was in A. U. C. 387.

(b) Dig. 1, 1, 7, and 1, 2, 10.

(c) Dig. 1, 2, sec. 26, 28.

(d) Professor Hugo, in his History of the Roman Law, sec. 158, attributes to the institution of the praetor peregrinus the rise and growth of the jus gentium, which had a propitious influence even upon the Roman municipal jurisprudence. The civilians used the jus gentium as synonymous with reason and natural law, and in contradistinction to the jus civile, which was considered as local, peculiar, and exclusive to one particular people. It was their municipal law; the other was international. To the authority of the jus prætorium, the edicts of the prætor urbanus, and the prætor peregrinus, seem to have equally contributed. Ibid. sec. 188, 189.

(e) Dig. 1, 2, 32.

and published certain rules and forms, as the principle and method by which he proposed to administer justice for the year. He had no power to alter these rules, and this jus prætorium vel honorarium, tempered the ancient law by the spirit of equity and public utility, and it was termed the living interpreter of the civil law. (a) The edicts of the prætor were generally declaratory of the customary or unwritten law and practice of his predecessors. But as the prætor was apt to vary from his annual edict, and to change it according to circumstances, which opened the way to many frauds, it was provided, by a law enacted at the instance of the tribune Caius Cornelius, that the prætor should adhere to his edicts promulgated on the commencement of his magistracy. These prætorian edicts were studied as the most interesting branch of Roman law, and they became a substitute, for the knowledge of the twelve tables, which fell into neglect, though they had once been taught as a carmen necessarium, and regarded as the source of all legal discipline. (b)

* 530

* The opinions of lawyers, called the responsa, or interResponsa pretationes prudentum, composed another and very effi prudentum. cient source of the ancient Roman jurisprudence.

The most ancient interpreters were the members of the college of pontifices, composed of men of the first rank and knowledge. Civil statesmen and eminent private citizens followed their example, and sometimes debated in the forum. Their answers to questions put were gradually adopted by the courts of justice, by reason of their intrinsic equity and good sense; and they became incorporated into the body of the Roman common law under the name of fori disputationes, and jus civile, or responsa prudentum.(c) This business, undertaken gratuitously by persons of the highest distinction, grew into a public profession,

(a) Dig. 1, 1, 7, 8.

(b) Cic. de Leg. b. 1, c. 5, and b. 2, c. 23. Cic. de Orat. b. 1, c. 10. Gravina, de Ortu et Prog. J. C. sec. 38 The Edicta Magistratuum or Jus Prætorium, was not only a fruitful, but a legitimate source of the Roman law, as Hugo has labored to prove. Hist. du Droit Rom. sec. 177, 178, 179. He compares this prætorian law to the English equity jurisprudence. Many of the edicts bore a resemblance to the modern ordinances, or Codes de Procedure Civile.

(c) Dig. 1, 2, 5.

*

and law became a regular science, taught openly in private houses as in schools. The names of the principal lawyers who became, in this way, public professors of the law, are to be found in the work of Pomponius, (a) and in the writings of Cicero, Horace, Tacitus, and the other authors of the classical ages. Their opinions were preserved by their successors, and fragments of them are, no doubt, dispersed in different parts of the Pandects, without the sanction of their names. (b) Cicero speaks of this employment of distinguished *531 jurists with the greatest encomiums, and as being the grace and ornament, and most honorable business of old age. The house of such a civilian becomes a living oracle to the whole city; and this very accomplished orator and statesman fondly anticipated such a dignified retreat and occupation for his declining years. (c) The philosophy, and policy, and wisdom of Greece, were collected together, says Gravina, (d) by the Roman civilians, and all that was useful introduced into the Roman law; and if it were really true that the twelve tables were not drawn by the rough agents who compiled them directly from Grecian fountains, we are assured that the omission was abundantly supplied in after ages; and the institutions of Greece were studied by more enlightened statesmen, and contributed to perfect and adorn the Roman law. (e)

(a) Dig. 1, 2.

(b) In the times of the republic, the practice of the law was gratuitous and highly honorary. All employment for hire was prohibited by a law enacted in the year of the city 550, at the instance of the tribune Marcus Cincius. The profession at length became a business of gain, and was abused, until Augustus revived the Cincian law, with additional sanction by a decree of the senate. But as a reasonable compensation was necessary to advocates who devoted their time and talents to the profession, the compensation was allowed and regulated by a decree of the senate in the time of Claudius; (Tacit. Ann. b. 11, c. 5, 6, 7,) and afterwards, according to the law of the Pandects, b. 50, tit. 13, c. 1, sec. 5, 10, 12, the judges in the province were to determine on, and allow a reasonable charge to the advocate.

(c) Cic. de Orat. 1, 45. De Legibus, b. 1. See, also, Quintilian's Inst. lib. 12, c. 11, where he alludes to Cicero, and strongly approves of this employment of the orator when he retires from practice at the bar.

(d) Orig. Jur. Civ. b. 1. Proæm.

(e) The Grecian philosophy was not more fatal to the ancient Roman superstition than Grecian forensic eloquence was to the severity of the Roman civil law. Hugo's Histoire du Droit Romain, sec. 161. Cicero was of opinion that his countrymen excelled the Greeks in laws and institutions, as well as morals and manners. Mores et