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 Elianum. (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)

3. The Prætorian Law. The edicts of the prætor became another very important means of the increase and improvement of the 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 curio. But as a compensation for this loss of patrician power, the judicial was separated from the consular office, and a prætor was instituted, who was always to be a patrician. (e) 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. (f) 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 con

suls were engaged in foreign and executive duties. (g) The *529 prætor was at first a patrician, and * elected in the comitia centuriata, though the office in time became accessible to plebeians. Business soon required a second prætor to preside over the causes of foreigners, called prætor peregrinus, (a) and

(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 acutus præco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. 1, 55. See also Cod. 2. 58. De formulis et impetra

tionibus actionum sublatis.

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

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

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

(a) Professor Hugo, in his History of the Roman Law, sec. 158, attributes to the

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. (b) Every prætor, on entering into office, established 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. (c) 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. (d)

*

4. Responsa Prudentum. The opinions of lawyers, *530 called the responsa or interpretationes prudentum, composed another and very efficient 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. institution of the prætor 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. Ib. sec. 188, 189.

(b) Dig. 1. 2. 32.

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

(d) 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 Procédure Civile.

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. (a) This business, undertaken gratuitously by persons of the highest distinction, grew into a public profession, 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, (b) 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. (c) Cicero speaks of *this employment of distinguished 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. (a) The philosophy and policy and wisdom of Greece were collected together, says Gravina, (b) 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 (a) Dig. 1. 2. 5. (b) Dig. 1. 2.

(c) 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. [Kennedy v. Broun, 13

C. B. N. s. 677.]

(a) 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.

(b) Orig. Jur. Civ. b. 1, Proæm.

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 * grown to immense magnitude. (a) It was composed * 532 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. (b) 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. (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

(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 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, 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. Ib. 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.

convenient digest was conceived by such great men as Cicero, (e) Pompey, and Julius Cæsar; (ƒ) though it is certain that no sys

tematic, accessible, and authoritative treatise on the civil 533 law appeared during the existence of the 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 rira 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 pretors 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. (e) 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 let (4) Ulpian was a member of this royal council under

(e. Core says he had long thought of the task of digesting and reducing the civil law unde a few elementary and definite principles, and thereby relieving it from diffieulgy and obscurity. De Orat. lib. 1, c. £2.

Sat. J. Cæsar. sec. 44

pei Cic. de Orat. bd. 2. c. $; Heinecci Elementa Juris Inst. Proæm. sec. 2; Dr. Drive's Fivets of the Civil Law, 14.

j) Pg 124; Heinecc. Hist. Jur. Civ. lib. 1, sec. 157, 158, 180.

(e) Gravina, de Orta et Prog. sec. 42; Heinecc. Antiq. Rom. lib. 1, tit. 2, sec. 89. (ề Gravina, de Romano Imperio, sec. 17. This imperial consistory was imitated by the provincial governors Estory of the Roman Law during the Middle Ages, Ay Singer, & ST