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creed that, in some cases, three months should be sufficient. The Decemviral code did not recognize attorneys; the prætor did. The XII Tables gave to the defendant the privilege of refusing to go before the magistrate; the prætor made his property responsible for a refusal. The XII Tables conferred rights on the heir who had been appointed with certain formalities; the prætor's edict said that he would recognize the rights of a person appointed without those formalities "as if he were an heir." The prætor did not say that the person appointed informally was an heir, but that he should be treated by the courts as if he were. A distinction of terms without a difference of rights is not a modern invention.'

We have no copy of a prætor's edict issued under the republic, nor any connected account by a Roman author of the development of jurisprudence in any period of the state. About 80 B. C. the prætor's edict was more bulky and more important in practice than the Decemviral code, but the latter was still nominally, at least, in force, and was studied by those young patricians who looked to learning rather than to arms for their advancement.

Out of more than four hundred men who held the office of prætor under the republic, not a score had any repute for knowledge of the law, and many of them. were rude soldiers without learning of any kind. The most distinguished scholar among them was Cicero, and he declared that he was an advocate, not a jurisconsult. Among the numerous legal authorities cited in the compilations of Justinian, the name of Cicero does not appear

even once.

SEC. 479. Imperial Law.-After the establishment of the empire the tribal assembly was never convened, and the centuriate assembly was invited on rare occasions to

give its sanction to laws. No bill was enacted until it was proposed by the emperor, and every measure urged by him was adopted. The resolutions of the senate approved by him obtained the authority of law and soon became the chief class of legislative acts. After 100 A. D. the popular assembly was never convened, and a century later imperial decrees, issued without the concurrence of the senate, were the only laws. These decrees— I use that word to include numerous different forms in which the emperors exercised their exclusive legislative power-were published in circulars, and a copy of each was sent to every high official in the empire. "For the prevention of fraud or falsification [of the decrees], special care was taken, and precise methods of testing the genuineness of the rescripts were prescribed. Thus the original had to be produced, bearing the properly authenticated signature of the emperor; the date and year had to appear on the face of it; the color of the ink and the nature of the substance to be written upon were exactly indicated. All rescripts resting on false allegations of fact or found to be in violation of the public interests or common law were . invalid. This last

provision must have opened out the way to an almost indefinite amount of argument whenever a rescript was produced in court."1

Under the empire the prætorship, instead of being mainly political and military, became a judicial office. The term instead of being limited practically to a single year was prolonged. A salary was given to it. The appointment was offered, not to spendthrifts of senatorial family who were ready to give large bribes to the people, but was bestowed on scholars who had studied law and were supposed to be fit for judicial position. The prætors

became responsible, not to senators who wanted to plunder the provinces, but to an emperor who wanted justice. These changes greatly influenced the judicial department of the government. The courts rose in credit. The laws were developed. Schools were established for their study. Books were published to explain them. Controversies about legal principles attracted attention. Old forms of action were abrogated and new ones were introduced.

Augustus licensed distinguished jurisconsults, and issued orders that their opinions on points of law, when produced in the courts, should be accepted as authoritative; and if unanimous, as conclusive. The opinions were to be rendered in writing at the request of any litigant, but were to be sent in sealed envelopes to the court, before which the case was tried. It has been supposed that these jurisconsults were members of a corporate body or college.

Under Hadrian, and probably at his suggestion, about a century and a half after the establishment of the empire of Augustus, Salvius Julianus, a lawyer and prætor, prepared an edict comprising all the sound legal principles previously adopted in the prætorian edicts, besides many others, and this document was published by Hadrian as his edict, of permanent authority throughout the empire. Its comprehensiveness and its durable character had a great influence in stimulating the study of the law, and its publication was soon followed by the appearance of a succession of law writers far more learned than any who had previously appeared. It was not intended to be final. It might be amended by the emperor, and as to those points in regard to which it laid down no rules, it might be supplemented by any prætor; and the supplementary

provisions when adopted by the emperor became the law for all parts of the empire.

SEC. 480. Roman Law Books.-The earliest Roman law book of note, that of Flavius, published in 310 B. C., contained the formulas in which lawsuits were conducted, and a list of the days when courts might be held. The information thus given to the people had previously been the exclusive possession of some patricians, who used it as a secret means of levying an oppressive tribute on litigants. The next notable law book, that of Ælius, who was consul in 198 B. C., commented on the XII Tables, explained the meaning of disputed passages, and gave a new collection of formulas for legal papers. His work was called by Pomponius "the cradle of the law," as if it were the first that gave a statement of the principles of jurisprudence. Quintus Mucius Scævola was the earliest distinguished lawyer of a family that held a prominent place in the Roman courts for several centuries. According to Pomponius, he "first constituted the civil law." All of these books, as well as that of Sulpicius Rufus, published about 65 B. C., the last of note under the republic, have been lost. Nearly everything considered worthy of preservation by the later Roman jurists, and they have transmitted to us a large amount of legal material, was of imperial origin. The works of Cicero, including his arguments in court, his letters and his books on government and law, convey the general impression that the definitions of legal rights and remedies in his day were vague and incomplete.

The oldest Roman treatise on law now in existence, that of Gaius, who wrote about 160 A. D., is a comprehensive work, admirable in its arrangement and clearness of expression, and is studied and worthy of study in our

day. It is styled Institutiones or Institutes, and its arrangement and material are copied in the elementary law book of Justinian, and have since been copied in many of their features by such modern authors as Blackstone and Kent.

Of Gaius we know but little more than that he was a teacher of law, and that he died at the age of fifty-five, about 170 A. D. It is supposed that his book is a summary of the lectures which he delivered to his students. His full name and his place of birth and residence are unknown. The next great name in the list of Roman lawyers and law writers is that of Papinian, a high judge, who was executed because he refused to approve and publicly commend the murder of Geta by his brother, the emperor Caracalla. Ulpian and Paulus were pupils of Papinian, and Modestinus, who died in 245 A. D., was a pupil of Ulpian, and the last of the great law writers of ancient Rome. Ulpian composed an elementary book, a portion of which has been preserved. Papinian, Paulus,

and Modestinus wrote works of which we have nothing save disconnected paragraphs preserved in the compilations of Justinian, but enough to prove that they were learned and able jurists.

The reputations of Gaius, Papinian, Ulpian, Paulus, and Modestinus were so high that an imperial decree issued in the Vth century A. D. declared them to be the controlling authorities. Any opinion in which all of them or a majority of them agreed, or in which Papinian was supported by one of the others against any other two, was to be accepted as the law. Of the five, Sheldon Amos says: "All but Gaius held high offices in the state, and generally enjoyed the personal confidence of the reigning emperor and his family. They are all represented as

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