Roman Law

occupation was agriculture. Among the subjects of Rome were the great trading nations of the ancient world, the Greeks and the Phoenicians. Rome itself became more and more the center of Mediterranean commerce, and when piracy had been crushed out by her fleets, this commerce rose to unexampled importance.

A new and very different body of rules was required to govern the relations between the provincials themselves and between them and the Romans. These problems were solved in a thoroughly Roman way -- tentatively and gradually.

A second praetor had been elected at Rome since 247 B. c., and to this magistrate was assigned the duty of administering justice to foreigners in the city. The governors of the several provinces were charged from the outset with similar duties. No rules were laid down for their guidance; they were left to make their own law. In accordance with the old Roman rule that cases should not be actually decided by the magistrate, these officers, after hearing the allegations of the parties, sent each case to a referee (judex), with a brief note of instruction (formula) which ran somewhat as follows : "If it appear that such and such allegations are true, condemn the defendant; if not, absolve him." Each formula contained, by implication, a rule of law; and a collection of the formulas regularly issued would, in course of time, have amounted to a digest of the new law.

From the very outset, however, the praetor of the foreigners and each provincial governor published at the beginning of his term an edict (edictum), in which he stated the grounds upon which he would give actions and "exceptions " or defenses. Each successive magistrate adopted the edict of his predecessor, with such additions and improvements as the latter's experience or his own might suggest ; so that the codification of the new law kept pace with its development. The foreign edict at Rome served as a general model for the provincial edicts, and was itself steadily enriched by provisions which first made their appearance in this or that provincial edict. In this whole development the Roman jurists exercised a controlling influence, partly through actual possession of the magistracies, but far more through their activity as councilors. Every Roman magistrate, before entering upon his duties, selected a body of advisers (consilium); and those magistrates who were charged with the administration of justice naturally sought the assistance of jurists of established reputation.

Character of the New Law.—In matters which bore no relation to commerce no effort seems to have been made to create uniform law for all the provinces. Family relations and questions of inheritance seem to have been differently regulated in the various provincial edicts, in accordance with national or local customs. As regarded property and obligations, however, the foreign edict at Rome and the various provincial edicts were kept in substantial harmony, so that a uniform system of commercial law was established for the entire civilized world. This law, as the Romans themselves declared, was based upon the rules which prevailed among all the nations (or rather upon the common elements found in all their various rules), and upon natural reason. As compared with the law of the city, the new law was far less formal, far broader, freer, and more equitable. It gave remedies against mistake and fraud which the civil law did not give. It went back of the form of transactions, and regarded their substance. It laid the greatest stress, in contractual relations, upon the demands of "good faith."

3. FUSION OF THE Two SYSTEMS.—The City Edict.—As soon as the jus gentium was fairly developed, the impulse to reform the law of the city became irresistible. The method by which the new system had been developed naturally suggested itself as a method by which the old system might be reformed. The jus gcntium had been created by magistrates whose activity was unfettered by forms and whose authority was unrestrained by law. The basis of its development was the power of the magistrate to instruct the referee. The city praetor, who administered justice to Roman citizens, had not this power. Under the technical forms of civil pleading (legis actiones), the litigants themselves formulated the issue and the judges or referees were bound to decide according to established law. By a lex AEbutia, passed about 150 B. c., informal pleadings were permitted and the city praetor was empowered to instruct the referee. The edict of this magistrate at once became the central factor of legal development. The law of the city was not only supplemented, but " corrected." The principles of the jus genii= were applied to Roman property and Roman contracts, and received further improvements. As far as these matters were concerned, the city edict now set the pace of development for the provincial edicts. The city praetors also reformed and modernized the law of the family and of inheritance. The reform of the civil law by the praetors is a movement which presents striking analogies to the reform of the English common law by the English chancellors.

The growth of the praetorian law practically ceased with the overthrow of the republic. In the reign of Hadrian a noted jurist, Salvius Julianus, was charged with a final revision of the edict. From this time the development of the law was accomplished by interpretation and by legislation. Legislative power had been transferred from the people to the emperor and the senate. The controlling influence was exercised by the emperors. At first they legislated with the advice and consent of the senate ; but the oratio principis, or proposal of the emperor, was invariably accepted, and in the second and following centuries the emperors habitually employed the form of direct decree or "constitution." In the field of private law, however, the dominant influence was that of the jurists, and the development of the law was carried on by juristic interpretation far more than by legislation. The Jurists of the Empire.—The recognition and influence which were accorded to the jurists, under the republic, by opinion and custom, now received legal sanction. To the most noted jurists the emperor gave a formal right of response (jus respondendi), and the judges or referees were bound to follow the responses of these "patented jurists" unless conflicting responses were submitted. In the second and third centuries, when jurisdiction at Rome had been transferred from the praetors to imperial prefects, when all the provincial governors were imperial appointees, and when, in consequence of the disappearance of the reference (judicium), these officials were judges of both law and facts, the leading jurists were regularly charged with the direct administration of justice. The office of praetorian prefect, to whose court appeals were carried from all parts of the empire, was successively occupied, in the first half of the third century, by Papinian, Ulpian, and Paul, the three writers whose names stand highest in the roll of Roman jurists ; and Ulpian and Paul, before their promotion to the chief-justiceship, had served as " assessors " or associate justices in the court of Papinian. The great body of new law which was worked out by the jurists of the early empire was therefore judge-made law. The decisions by which it was gradually elaborated were reported and digested by the jurist-judges themselves.

Juristic Literature.—Toward the close of the republican period the leading jurists began to write legal treatises. Early in the imperial period law schools were established, and the development of systematic instruction gave an important impulse to the systematic presentation of the law. The famous Institutes of Gaius, written in the second century, is apparently a course of lectures. Most of the great jurists, including Ulpian and Paul, published detailed commentaries upon the civil and the praetorian law, as well as monographs upon special subjects. All of them, including Papinian, published books of "questions," "opinions," or " responses.' These latter works, as their names imply, were collections of cases, and the systematic treatises were full of illustrative decisions. In the fourth and following centuries a peculiar degree of authority was attached to this body of literature. The laws of the republic, the praetorian edict, the decrees of the senate, the constitutions of the earlier emperors were no longer cited in the courts ; the great jurists alone were cited. Their writings were identified with the law existing in their time ; jus came to mean the juristic literature of the first three centuries. A " law of citations," issued by the West Roman emperor Valentinian III. (426), recognized and regulated the use of this body of jurisprudence. In case of divergent dicta that opinion was to be followed which was supported "by the greater number of authorities." " If the number on each side be the same, that opinion shall prevail which has the support of Papinian." Only when these tests failed was the judge to employ his discretion. Citations were limited to the writings of Gaius, Papinian, Ulpian, Paul, and Modestine, and of the earlier jurists cited and approved by these five.

A considerable portion of this literature has come down to us in the Digest of Emperor Justinian. Outside of the Digest little remains except the Institutes of Gains (a palimpsest of this work was found in Verona in 1816), and parts of treatises by Ulpian and Paul. Continued ....