Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/729

Rh JUS NATURALE.] ROMAN LAW 705 tion and amendment were no longer in their hands but in those of the emperor. The Julian Edict does not seem to have been divided into books, but only into rubricated titles ; and the general impression is that the formularies of actions were split up and distributed in their appropriate places. The arrangement is not difficult to discover by comparison of the various commentaries upon it, particularly those of Ulpian and Paul, which each contained over eighty books. First came a series of titles dealing with the foundations and first steps of all legal procedure, jurisdiction, summons, intervention of attorneys or procurators, &c. ; secondly, ordinary process in vir- tue of the magistrate's jurisdictio ; thirdly, extraordinary process, originally in virtue of his imperium ; fourthly, execution against judgment-debtors, bankrupts, &c. ; fifthly, interdicts, exceptions, and praetorian stipulations ; and lastly, the sedilian remedies. From the quotations from the Julian Edict embodied in the fragments of the writings of the commentators preserved by Justinian re- peated attempts have been made to reproduce it. Most of them are nothing. more than transcripts or attempted reconstructions of passages in the Digest which are supposed to have been borrowed from it, and are of comparatively little value. The only really scientific and worthily critical efforts are those of Rudorff in 1869 and Leuel in 1883. * The Responses of Patented Counsel. The right of responding 563 under imperial authority (jus respondendi ex auctoriiate principis), first granted by Augustus and continued by his successors down to ited the time of Alexander Severus, did not imply any curtailment of sd. the right of unlicensed jurists to give advice to any one who chose to consult them. What it did was to give an authoritative char- acter to a response, so that the judge who had asked for it and to whom it was presented for the judges were but private citizens, most of them unlearned in the law was bound to adopt it as if it had emanated from the emperor himself. It may be that Augus- tus was actuated by a political motive, that he was desirous by this concession to attach lawyers of eminence to the new regime, and prevent the recurrence of the evils experienced during the re- public from the too great influence of patrons. But, whatever may have prompted his action in the matter, its beneficial consequences for the law can hardly be overrated. For the quasi - legislative powers with which they were invested enabled the patented counsel to influence current doctrine not speculatively merely but positively (jura condere), and so to leaven their interpretations of the jus civile and jus honorarium with suggestions of natural law as to give a new complexion to the system. Instead of giving his opinion like the unlicensed jurist by word of mouth, either at the request of the judge or at the instance of one of the parties, the patented counsel, who did not require to give his reasons, reduced it to writing and sent it to the court under seal. Augustus does not seem to have contemplated the possibility of conflicting responses being tendered from two or more jurists equally privileged. It was an awkward predicament for a judge to be placed in. Hadrian solved the difficulty by declaring that in such a case the judge should be entitled to use his own discretion. 2 That on receiving a response with which he was dis- satisfied he could go on calling for others until he got one to his mind, and then pronounce judgment in accordance with it on the ground that there was difference of opinion, is extremely unlikely. The more probable explanation of Hadrian's rescript is, that the number of patented responding counsel was very limited ; that a judge, if he desired their assistance, was required by this rescript to consult them all (quorum omnium si, &c.) ; that, if they were unanimous, but only then, their opinion had force of statute (legis vicem optinet] ; and that when they differed the judge must decide for himself. ts of Constitutions of the Emperors* Gaius and Ulpian concur in irors. holding that every imperial constitution, whether in the shape of rescript, decree, or edict, had the force of statute. It may be that by the time of Ulpian that was the prevailing opinion ; but modern criticism is disposed to regard the dictum of Gaius, written in the time of Antoninus Pius, as coloured by his Asiatic notions, and not quite accurate so far as the edicts were concerned. As supreme 1 Rudorff, De jurisdictione edictum : edicti perpetui quae reliqua sunt, Leipsic, 1869, and rev. by Brinz in the Krit. Vierteljahrschrift, vol. xi. (1870), p. 471 sq. ; Lenel, Das Edictum Perpetuum : ein Versuch KU dessen Wiederherstellung, Leipsic, 1883. The last gained the "Savigny Foundation Prize" offered by the Munich Academy in 1882 for the best restitution of the formulae of Julian's Edict, but goes far beyond the limited subject prescribed ; see Brinz's report upon it to the Academy in the Zeitschr. d. Sav. Stift., vol. iv. (1883), Rom. Abtheil., p. 164 sq. 2 Gaius, i. 7. Justinian, Inst., i. 2, 8, gives it somewhat differently. 3 Gai., i. 5 ; Ulp., in Dig., i. 4, fr. 1, 1 ; Mommsen, Rom. Staats- recht, vol. ii. p. 843 sq. ; Wlassak, Krit. Studien zur Theorie der Rechts- qnellen im Zeitalter d. Jdass. Juristen, Gratz, 1884 ; A. Pernice (crit. Wlassak), in Zeitschr. d. Sav. Stiff., vol. vi. (1885), Rom. Abtheil., p. 293 sq.; Karlowa, Rom. Rechtsgesch., vol. i. 85. magistrate the emperor had the same jus edicendi that kings, con- suls, and praetors had had before him, and used it as they did to indicate some course of action he meant to adopt and follow or some relief he proposed to grant. His range, of course, was much greater than that of the praetors had been ; for his authority en- dured for life, and extended over the whole empire and every department of government. But originally, and in principle, his successor on the throne was no more bound to adopt any of his edicts than a praetor was to adopt those of his predecessors. That it was not unusual for an edict to be renewed, and that it occasion- ally happened that the renewal was not by the immediate successor of its original author, are manifest from various passages in the texts. Very frequently, when its utility had stood the test of years, it was transmuted into a senatusconsult ; this fact proves of itself that an edict per se had not the effect of statute. But their adoption by a succession of two or three sovereigns, whose reigns were of average duration, may have been held sufficient to give them the character of consuetudinary law ; and, by a not unnatural process, unreflecting public opinion may have come to impute force of statute to the edict itself rather than to the longa consuetude that followed on it, thus paving the way for the assertion by the sove- reigns of the later empire of an absolute right of legislation, and for the recognition of the lex edictalis (infra, p. 710) as the only form of statute. The imperial rescripts and decrees (rescripta, decreta) had force of Rescripts law (legis vicem habcnt) from the earliest days of the empire, and and their operation was never limited to the lifetime of the prince from decrees, whom they had proceeded. But they were not directly acts of legislation. In both the emperor theoretically did no more than authoritatively interpret existing law, although the boundary be- tween interpretation and new law, sometimes difficult to define, was not always strictly adhered to. The rescript was an answer by the emperor to a petition, either by an official or a private party, for an instruction as to how the law was to be applied to the facts set forth ; when the answer was in a separate writing it was usually spoken of as an epistula ; when noted at the foot of the application its technical name was subscriptio or adnotatio. The decree was the emperor's ruling in a case submitted to him judicially ; it might be when it had been brought before him in the first instance extra ordinem, or when it had been removed by supplicatlo from an inferior court in its earliest stage, or when it came before him by appeal. It was as a judge that the emperor pronounced his decree ; but, proceeding as it did from the fountain of authoritative interpretation, it had a value far beyond that of the sentence of an inferior court (which was law only as between the parties), and formed a precedent which governed all future cases involving the same question. Those decrees and rescripts constituted one of the most important sources of the law during the first three centuries and more of the empire, and were elaborated with the assistance of the most eminent jurists of the day, the rescripts being the special charge of the magister libellorum. From the time of the Gordians to that of the abdication of Diocletian they were almost the only channel of the law that remained. Professional Jurisprudence. A sketch of the history of Roman law can hardly be considered complete without some account of the jurists of the first two centuries and a half of the empire, who con- tributed to it the great body of doctrine embalmed in the Digest of Justinian. But the exigencies of space compel us to refrain from entering upon a branch of our subject that cannot be satisfactorily treated without considerable detail, and to content ourselves with referring the reader to the recent work of Mr Roby, or the Rechts- geschichte of Professor Karlowa of Heidelberg, where all will be found that the most inquisitive could desire.* For an account of the extant remains of their writings outside the Justinianian Digest, such as the Institutes of Gaius, the Rules of Ulpian, the Sentences of Paul, and a variety of minor pieces, we must likewise refer to Karlowa's book, 5 which promises to be the most elaborate history of Roman law as yet given to the public. II. SUBSTANTIVE CHANGES IN THE LAW. Concession of Peculiar Privileges to Soldiers. While the period with which we are dealing saw the substantial dis- appearance of the distinction between citizen and peregrin, it witnessed the rise of another, that between soldiers and civilians (milites, pagani). The most remarkable effluxes 4 Roby, Introduction to the Study of Justinian's Digest, Cambridge, 1884, chaps, ix.-xv. ; Karlowa, Rom. Rechtsgeschichte, vol. i. (Staats- recht und RechtsqueUen), Leipsic, 1885, 87-91. Karlowa's 2d vol. will contain the history of the private law, the criminal law, and civil and criminal procedure. 5 Karlowa, op. cit., 92. An account of the jurists of the empire and their remains outside the Digest will be found in an expansion of the present article now in the press, under the title of Historical Intro- duction to the Private Law of Rome. XX. 89