* 532

In the Augustan age, the body of the Roman law had grown to immense magnitude. (a) It was composed of the leges, or will of the whole Roman people declared Age of Augustus. in the comitia centuriata; the plebiscita, enacted in the comitia tributa; the senatus consulta, promulgated by the single authority of the senate; the legis actiones; the edicta magistratuum; the responsa prudentum; and, subsequent to the age of Cicero, is to be added the constitutio principis, or ordinances of the Roman emperors. (b) The Roman civilians began very early to make collections and digests of the law. The book of Sextus Ælius contained the laws of the twelve tables, the forms of actions, and the responsa prudentum. Publius Mucius, Quintus Mucius, Brutus, and Manilius, all left volumes upon law, and the three books of the latter existed in the time of Pomponius as monuments of his fame. (c) Servius Sulpicius left behind him nearly one hundred and eighty volumes upon the civil law. Many distinguished scholars arose under his discipline, who wrote upon jurisprudence; and Aufidius Namusa digested the writings of ten of those scholars into one hundred and forty books. Antistius Labeo, under Augustus, surpassed all his contemporaries, and he compiled four hundred volumes, many of which, Pomponius says, he possessed. (d) The noble design of reducing the civil law into a convenient digest, was conceived by such great men as Cicero, (e) Pompey, and Julius Cæsar; (f) though it is certain

instituta vitæ, resque domesticas ac familiares nos profecto et melius tuemur et lautius; rem vero publicam nostri majores certe melioribus temperaverunt et institutis et legibus. Tuscul. Quæst. lib. 1, c. 1. He supposes that the early Romans had imbibed a tincture of the philosophy of the Greeks from the doctrines of Pythagoras, who dwelt in southern Italy at the time of the expulsion of the Tarquins. Ibid. lib. 4, 1. But it was Cicero himself, who, by his writings, transferred into his own vernacular tongue the great body of the Grecian philosophy.

(a) Immensus aliarum super alias acervatarum legum cumulus. Livy, 3, 34. Heineccius applied this passage of Livy to the civil law, but Hugo says he was in an error, and that the most part of the laws referred to by Livy were political regulations, and had no concern with private right. Hist. du Droit Rom. par Hugo, sec. 167.

(b) Dig. 1, 1, 7, and 1, 2, 12. Inst. 1, 2, 3. Gaius, 1, 2.

(c) Dig. 1, 2, 36, and 39.

(d) Dig. 1, 2, sec. 41, 43, 44, 46, 47.

(e) Cicero says he had long thought of the task of digesting and reducing the civil law into a few elementary and definite principles, and thereby relieving it from difficulty and obscurity. De Orat. lib. 1, c. 42.

(f) Suet, J. Cæsar, sec. 44.

that no systematic, accessible, and authoritative treatise on the civil law appeared during the existence of the *533 republic; and Cicero says that the law lay scattered and dissipated in his time. (a) The Roman jurisprudence was destined to continue for several centuries under the imperial government, a shapeless and enormous mass, receiving continual accumulations; but it was fortunately cultivated under the emperors by a succession of illustrious men, equally distinguished for their learning, wisdom, and probity.

Before the time of Augustus, the responsa prudentum were given viva voce, and they had not the force of any authority in the forum, and the business was free to all persons. The character of these responsa was abused and discredited by the crude opinions of pretenders, and Augustus restrained the profession of the jurisconsults to such as he should select as most worthy, and they were to be first approved of and commissioned by him. They then began to give their opinions in writing, with their reasons annexed. (b) This raised their influence, and reduced the prætors to a state of comparative dependence upon those living oracles of law, who were under the influence of the emperor, and who obtained, by their means, the control of the administration of the law. (c) Heineccius says that Augustus instituted this college of civilians in order that he might covertly assume legislative power, and adapt the republican jurisprudence to the change in the government. He likewise instituted a cabinet council, which was called the consistory, by succeeding princes. It was composed of the consuls, several other magistrates and jurists, and a certain number of senators chosen by lot. (d) Ulpian was a member of this royal council under Alexander Severus. It was the *534 imperial legislature. The power of the comitia was transferred to this shadow of a Roman senate, for the old con

*

(a) Cic. de Orat. lib. 2, c. 33. Heineccii, Elementa Juris. Inst. Proæm. sec. 2. Dr. Taylor's Elements of the Civil Law, p. 14.

(b) Dig. 1, 2, 47. Heinec. Hist. Jur. Civ. lib. 1, sec 157, 158, 180. (c) Gravina, de Ortu et Prog. sec. 42, 43.

sec. 39.

Heinecc. Antiq. Rom. lib. 1, tit. 2,

This imperial consistory was imitated

(d) Gravina, de Romano Imperio, sec. 17. by the provincial governors. History of the Roman Law during the Middle Ages, by Savigny, vol. i. p. 87.

stitutional senate, not being able conveniently to govern all the provinces, (according to the courtly language of the Pandects,) (a) gave to the prince the right to make laws. The judgments of the prince were called imperial constitutions, and they were usually enacted and promulgated in three ways: 1st. By rescript, or letter in answer to petitions, or to a distant magistrate. (b) 2d. By decrees passed by the emperor on a public hearing in a court of justice; and Paulus collected six books of those decrees, and from which he for the most part dissented. (c) 3d. By edict, or mere voluntary ordinances. Gravina says that these imperial constitutions proceeded not as from a single individual, but as from the oracle of the republic, by the voice of the senators, who were consulted, and were the visible representatives of the majesty of the commonwealth. (d) Many of these imperial ordinances were suggested by the best of the civilians, and do great honor to their authors; and with regard to private and personal rights, the Romans enjoyed, to a very great degree, under the emperors, the benefit of their primitive fundamental laws, as they existed in the times of the republic. The profession of the law was held in high estimation under the emperors; and during the second and third centuries, the science of jurisprudence was elevated higher than it ever has been in any other age, or among any other people. Hadrian

took off the restriction of Augustus, and gave the privi* 535 lege of being a public interpreter of the law to the profession at large. (e) It was restored by the Emperor Severus, and the responsa prudentum assumed an air of great importance. Though in the first instance they were received as mere opinions, they gradually assumed the weight of authority. The opinions were sent in writing to the judges, and in the time of Justinian they were bound to determine according to those opinions. (f) These responsa (of which many are preserved in the Pandects) were not of the same authority as

(a) Dig. 1, 2, sec. 11.

(b) Code 1, 14, 3. Gravina, de Ortu et Prog. sec. 123, 124.

(c) Gravina, Ibid. sec. 122. De Romano Imperio, sec. 20.

(d) Gravina, de Romano Imperio, Ibid. The imperial rescripta thus assumed the character and weight of judicial precedents, and were entitled to at least equal authority with the responsa prudentum.

(e) Dig. 1, 2, 2, 47.

(f) Inst. 1, 2, 8.

the constitutional leges, but they were law for the case, and they were applied to future cases under the character of principles of equity, and not of precepts of law. In the ages immediately preceding Justinian, the civil law was in a deplorable condition, by reason of its magnitude and disorder; and scarcely any genius, says Heineccius, was bold enough to commit himself to such a labyrinth. As a remedy for the evil, the Emperor Theodosius the younger, and Valentinian III., addressed to the senate of the city of Rome an imperial constitution, which confirmed, by decree, the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, by name, and directed that they alone be permitted to be cited in the courts of justice, with the exception of such extracts as they had transferred into their books from the ancient lawyers, and with some other qualified exceptions in favor of Scævola, Sabinus, Julianus, and Marcellus. The opinion of the majority of these five legislative characters was to govern; and where there was in any case an equal division of opinion, that of Papinian was to be preferred. (a)

the civil law.

The first authoritative digest of the Roman law 536 which actually appeared, was the Perpetual Edict, compiled by Salvius Julianus, under the orders of the Digests of Emperor Hadrian, and of which nothing now remains but some fragments collected and arranged by Gothofrede, and published along with the body of the civil law. Hadrian was the first emperor who dispensed with the ceremony of the senatus consulta, and promulgated his decrees upon his sole authority. (b) The prætorian edicts had been so controlled under the government of the emperors by the opinions of the civilians, that they lost the greater part of their ancient dignity, and

(a) Heinec. Antiq. Rom. Jur. lib. 1, tit. 2, sec. 41. Histor. Jur. Civ. lib. 1, sec. 378. Heineccius says, that Papinian was everywhere called Juris asylum et Doctrinæ legalis thesaurus, and he far surpassed all his brethren, omnes longo post se intervallo reliquerit. Gaius (Inst. lib. 1, sec. 2) refers to a rescript of the Emperor Hadrian, in which the responsa prudentum were to be received as law, if they were unanimous, and if not, the judge was at liberty to follow his own judgment. At the period of Valentinian, the writings of the great jurists and the constitutions of the emperors, were alone consulted as authorities. Savigny's History of the Roman Law, vol. i. p. 7.

(b) Gibbon's History, vol. viii. p. 16. The plebiscita had ceased under Augustus, but the senatus consulta did not absolutely cease with Hadrian. They continued to enrich the civil law in matters of private right long afterwards. Hugo, Hist. du Droit Rom. sec. 284, 307.

Hadrian projected the design of reducing the whole Roman law into one regular system. All that he however lived to perform, was to procure the compilation of those edicts of the prætors which had stood the test of experience on account of their authority and equity, and had received the illustrations of civilians. (a) Many able professors undertook, from time to time, a digest of the civil law. Papirius Justus collected some of the imperial constitutions into twenty books, and Julius Paulus compiled six books of decrees, or imperial decisions. Gregorius made a collection of a higher character, and he digested into order the chief, if not the whole of the imperial rescripts, from Hadrian down to the reign of Diocletian and his colleagues, and which was called the Gregorian Code, and attained great authority in the forum. Hermogenes continued

this collection under the name of the Hermogenian * 537 Code. (b) Theodosius the younger appointed a committee of eight civilians to reduce the imperial constitutions, or the edicts and rescripts of a succession of emperors, from the time of Constantine, into a methodical compendium; and this Theodosian Code became a standard work throughout the empire, and it was published in six folio volumes in 1665, with a vast and most learned commentary by Gothofrede. (c) Another century elapsed before Justinian directed Tribonian, who was an eminent lawyer and magistrate, to unite with him a number of skilful civilians, and to assume the great task of collecting the entire body of the civil law, which had been accumulating for fourteen centuries, into one systematic code. Whether the Roman law at that period exceeded or fell short of the number of volumes in which the English law is now embodied, it is not easy to determine. Tribonian represented to the emperor, that when he and his learned associates under

(a) Gravina, de Ortu et Prog. Jur. Civ. sec. 38.

(b) Heinec. Hist. Jur. Civ. lib. 1, sec. 368-372.

(c) The great merit of this edition of the Theodosian Code, and the fitness of Gothofredus for the task, by his extraordinary industry, erudition and judgment, are forcibly stated by Dr. Irving, in his Introduction to the Study of the Civil Law, 4th edit., London, 1837 - a work well worthy of the attention of the student in the civil law, for its historical and biographical learning, and the critical sagacity of the author.