this employment of distinguished jurists with the greatest encomiums, and as being the grace and ornament, and most honourable 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. The philosophy, and policy, and wisdom of Greece, were collected together, says Gravina," 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.c

In the Augustan age, the body of the Roman law had Age of Au

gustus.

the law of the Pandects, b. 50. tit. 13. c. 1. sec. 5. 10. 12. the judges in the provinces were to determine on, and allow a reasonable charge to the advocate.

a Cic. de Orat. 1. 45. See also, Quinctilian'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.

b Orig. Jur. Civ. b. 1. Proam.

c 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 in morals and manners.— Mores et 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. ch. 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.

grown to immense magnitude. It was composed of the leges, or will of the whole Roman people declared 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. The Roman civilians began very early to make collections and digests of the law. The book of Sextus Elius 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. Servius Sulpicius left behind him nearly 180 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 140 books. Antistius Labeo, under Augustus, surpassed all his contemporaries, and he compiled 400 volumes, many of which, Pomponius says, he possessed. The noble design of reducing the civil law into a convenient digest, was conceived by such great men as Cicero, Pompey, and Julius Cæsar; though it is certain that no systematic, accessible, and authoritative treatise on the civil law, appeared during

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.

c Dig. 1.2. 36. and 39.

d Dig. 1. 2. sec. 41. 43, 44. 56, 57.

Gaius, 1.2.

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. ch. 42.

the existence of the republic; and Cicero says, that the law lay scattered and dissipated in his time. 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." 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. 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 a certain number of senators chosen by lot. Ulpian was a member of this royal council under Alex

a Cic. de Orat. lib. 2. c. 33. Suet. J. Cæsar. sec. 44. Heineccii Elementa Juris Inst. Proam. sec. 2. Dr. Taylor's Elements of the Civil Law, 14.

b Dig. 1. 2. 47. Heinec. Hist. Jur. Civ. lib. 1. sec. 157, 158. 180. e Gravina de Ortu et Prog. sec. 42. Heinec. Antiq. Rom. lib. 1.

tit. 2. sec. 39.

d Gravina de Romano Imperio, sec. 17.

This imperial consistory

ander Severus. It was the imperial legislature. The power of the comitia was transferred to this shadow of a Roman senate, for the old constitutional senate not being able conveniently to govern all the provinces, (according to the courtly language of the Pandects,) gave to the prince the right to make laws. The judgments of the prince were called imperial constitutions, and they were usually enacted Imperial and promulgated in three ways: 1st. By rescript, or letter Rescripts. in answer to petitions, or to a distant magistrate. 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. 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. Many of these imperial ordinances were suggested by the best of the civilians, and do great honour 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 privilege of being

was imitated by the provincial governors. History the Roman Law during the Middle Ages, by Savigny, vol. 1. 87.

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.

a public interpreter of the law to the profession at large." 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. These responsa (of which many are preserved in the Pandects) were not of the same authority as 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 Valentinian the 3d, 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 favour 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.c

a Dig. 1. 2. 2. 47.

b Inst. 1.2.8.

Histor. Jur. Civ.

c Heinecc. Antiq. Rom. Jur. lib. 1. tit. 2. sec. 41. lib. 1. sec. 378. Heineccius says, that Papinian was every where called Juris asylum et Doctrinæ legalis thesaurus, and he far supassed 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 prudentium were to be received as law, if they were unanimous, and if not, the judge was at liberty to follow his own judg