Latinum and the jus Italicum. In Italy, before the social war (B.C. 90), there were certain municipia and colonies which had no privileges, either political or civil: they were in fact peregrini; but there were others, the inhabitants of which, like the Latini, enjoyed the jus commercii, and in some cases the jus connubii, in other words, who had civil, not political, privileges (civitas absque suffragio). These were said to have the jus Latinum. But after the social war, and the Julian and Plautian laws (B.C. 90-88), the inhabitants of the Italian colonies and municipia obtained full citizenship, and the right of voting; Rome became the mere capital of Italy, and the jus Italicum was law throughout the peninsula; now this jus Italicum implied, besides the jus commercii, municipal self-government and freedom from direct taxation (1). Beyond Italy specified places enjoyed these privileges, but they were not yet extended to the Provinces generally, which in the mean time remained subject to a pro-consul or pro-prætor, and paid taxes to the Roman treasury.

Under Diocletian and Constantine, however, the Roman empire was re-organised. It was divided into Præfectures, each under a prætorian Præfect; each Præfecture was divided into several Dioceses under a Vicarius, and each Diocese was divided into various Provinces under a President (Præses, Rector). The cities in the Provinces were governed by a senate, Curia, or ordo decurionum; besides which Valentinian instituted the Defensores Civitatis, whose duty it was to stand between the burghers and the oppression of the imperial government. The Defensor was appointed for two years out of the Decuriones of the city. In some cases these Defensores had a jurisdiction up to 50 solidi, which Justinian raised to 300. An appeal lay to the Prases. Moreover, the Defensor had power to nominate tutors, and to register certain solemn acts, donationes, and testaments. Lastly, they exercised a criminal jurisdiction over minor

offences.

Having made these general observations, we have now to explain very briefly the various sources of law to be met with in the Corpus juris civilis, of which we shall notice seven, and to give a slight sketch of Justinian's legal reforms.

1. Leges. The original assembly of citizens at Rome was the Comitia Curiata; but this patrician assembly was soon replaced by the Comitia Centuriata of Servius Tullius, in which the patricians and plebeians met together, and in which the right of voting was allowed according to a property qualification. In this Comitia Centuriata those leges, or laws, were passed which are mentioned as one of the sources of law; criminals were tried, and magistrates were nominated. At first its

(1) The importance of these distinctions between citizens ceased, of course, after the

time of Justinian, when all free inhabitants of the empire became Roman citizens.

enactments required the sanction of the Comitia Curiata: but when that necessity ceased, the Curiae were only summoned for the transaction of certain formal business, such as adoptions, adrogations, and the making of testaments.

2. Plebiscita. This Comitia Centuriata was succeeded by the Comitia Tributa, in which the voter, instead of claiming his right by a property qualification, claimed it by residing within a particular district. The bills passed by the Comitia Tributa originally bound none but the Plebeians, hence their name Plebiscita; but in the year 286 B.C. the lex Hortensia made them binding on all Roman citizens.

3. Senatus-consulta. The other legislative body was the Senate. Under the kings this royal council was composed of the wealthiest and most illustrious Patricians. Until the close of the Republic, it does not appear to have had the direct power of enacting laws; nevertheless its orders issued to magistrates bound those subject to their jurisdiction. Moreover it exercised a dispensing power with respect to individuals, and even made additions to certain laws; but in general its functions were more administrative than legislative. But from the time of Augustus, the Senatus-consulta, or Ordinances of the Senate, became a fruitful source of law: thenceforward, till the time of Severus, A.D. 222, they are numerous. After Hadrian's time it became usual to add to a Sc. the formula Auctore D. Hadriano, which shows the dependence of the Senate on the emperor.

4. The Twelve Tables. Just laws are vain unless they are justly administered. At Rome the Patricians, the avowed rivals and foiled oppressors of the Plebeians, administered justice; so that the motives and facilities for its perversion are obvious. Moreover, as the law consisted merely of a body of rules, embodied in tradition, and ascertained by custom, the urgent desire of the Plebeians to have a written code (scriptæ leges) is easily appreciated. But besides this, it seems to be generally admitted that one, if not the chief, object of a new code was to amalgamate the orders of Patricians and Plebeians, by assimilating the legal rights of both. After various unsuccessful attempts, an embassy was at length dispatched to Greece, B.C. 454, to obtain whatever information it could as to the practical working of the laws of Solon, and having returned, the commission called Decemviri drew up ten Tabulæ, which was followed next year by two more, all of which were engraved, and hung up in the forum for the public information. These laws, the Duodecim Tabula (a few fragments of which have descended to our times) formed the basis of Roman law till the times of Justinian; and if we may at all regard the testimony of Cicero, it seems impossible to exaggerate their importance. They settled all the most important rights of a Roman citizen: the mode of suing; the penalties for theft; the

rate of interest, which was not to exceed fanus unciarum (8 p. c. for 10 months); the rights of creditors over their debtors; the power of a pater-familias; the making of wills; the rules as to succession (hæredilas), guardianship (tutela), ownership (dominum), and possession; wrongs, delicta; breaches of trust; prædia rustica; the common rights of the people, forbidding special privileges; the punishment of corrupt judices; trials as to life, liberty, or status; the expenses of funerals, and the mode of interment; the jus sacrum; and marriage and divorce, prohibiting intermarriage between Patricians and Plebeians.

5. Responsa Prudentum. But the Twelve Tables required an interpreter. Being the mere record of customs already known, and in living force at the time, they were laconic in expression and left much to construction. At first the Patricians undertook this necessary office, because they alone were instructed in the forms of the legis actiones, which were absolutely essential to set the law in motion, and the dies fasti and nefasti, or proper times for instituting proceedings. But, in the year B.C. 312, Cn. Flavius, a scribe, published a calendar in which all the dies fasti and nefasti were marked, and a collection of the formulæ of the legis actiones. Thenceforth the monopoly enjoyed by the Patricians declined: and this change was completed when T. Coruncanius, the first plebeian Pontifex Maximus, B.C. 281, introduced the practice of giving legal advice. Others followed his example, and hence arose the jurisprudentes or jurisperiti, who walked the forum and acted as advocates. They accompanied their clients to the magistrate, and stated their opinions as to the law; and these opinions, according to their soundness and ingenuity, naturally obtained the force of law. Such was the origin of that branch of Roman jurisprudence, which was sometimes called jus receptum or sententia receptæ, or jus civile (1), because, no doubt, it was a development of the principles laid down in the Twelve Tables.

Augustus, however, was the first who gave these opinions legal authority, though Hadrian afterwards defined that authority differently. Subsequently Theodosius II., by a Constitution dated A.D. 426, declared that a judge should decide according to the majority of the great jurists Gaius, Papinian, Ulpian, Paul, Modestinus; and that if there was an equal division of opinion, Papinian should decide, but that if there was none, the judge should decide for himself.-Though there had always been differences of opinion upon various points among Roman jurists, it is not until the reign of Augustus that we find these differences so far developed as to have given rise to two great schools of Roman law

(1) Jus civile denotes: 1. The law of a particular state, as opposed to the jus gentium; 2. All Roman law except the

prætorian law; 3. The responsa pruden· tum alone.

-the Sabinians and the Proculeians. The former derived their name from Sabinus, a disciple of Ateius Capito, who flourished under Augustus; the latter from Proculus, a disciple of Antistius Labeo, who lived about the same time. Proculus, imbued with the principles of a liberal philosophy, endeavoured to enlarge the principles of Roman law, whilst Sabinus adhered with scrupulous fidelity to the legal doctrines as they had been handed down to him. These schools survived till the time of the Antonines, for Gaius, who wrote under them, declares himself a Sabinian. From the beginning of the Empire, therefore, to the time of Justinian, may be taken as the most important period in the history of Roman law-a period during which that noble system was gradually moulded and matured by the sagacious ingenuity of such men as Gaius, Papinian, Paul, Ulpian, and Modestinus-the five great Roman jurists. -Gaius was probably born in Hadrian's reign, A.D. 117, and wrote under the Antonines. Besides his Commentary on the Twelve Tables and the edictum provinciale, he wrote the Institutes. This work was lost until Niebuhr, in 1816, discovered it in the library of the chapter of Verona, the manuscript having been written over with the letters of St. Jerome. -Emilianus Papinianus was the Prætorian Prefect of Septimius Severus, A.D. 193–211. He was executed by Caracalla. Papinian was the greatest of all the jurists.-Paul, Ulpian, and Modestinus were all pupils of Papinian. Julius Paulus was a member of the imperial council, and Prætorian Prefect under Alexander Severus (A.D. 222).-Domitius Ulpianus was from Tyre, in Phoenicia. He wrote under Septimius Severus and Caracalla, and was slain (A.D. 228) by the soldiers before the eyes of A. Severus. He was Prætorian Prefect at his death, and the Digest is full of extracts from his works.-Herennius Modestinus, the pupil of Ulpian and Papinian, was a member of the imperial council in the time of A. Severus, but very little is known of him.

6. Edicta. Originally the judicial authority resided with the King; it was afterwards shared by the Consuls, and subsequently vested in the Prætor. The law was that of the Twelve Tables; but it was impossible that principles so narrow and rigorous could long maintain their ground, for they availed none but Roman citizens. With conquest and civilization came enlightenment; and the rules of a barbarous and exclusive system proved inadequate to satisfy the requirements of justice, increased as they were by the multiplied relations between man and man. The dispute was no longer between citizen and citizen, but between citizens and strangers, who had come to reside, for purposes of commerce or recreation, within the Roman territory. The Prætor Urbanus might suffice for the people of Rome, but some magistrate was required who should administer justice to foreigners: hence the Prætor Peregrinus, who was created B.C. 243. This magistrate, instead of confining himself

to the strict law, which was totally inapplicable to any but Roman citizens, adopted a broader and more liberal basis, and administered justice according to those universal principles of law which are founded upon reason and admitted by all mankind. In short, he followed the Jus Gentium.

The superior wisdom of its principles soon became obvious even to the Roman citizen; but any direct interference with the hallowed decrees of the Twelve Tables was impossible. Nevertheless, it was possible to attain the same end by indirect means, and the plan was this:-The Prætor, on assuming office, published an Edictum, in which he defined the principles according to which he should administer justice. Edicts were published (in tabulis, in albo) by successive Prætors; but the authority of each expired with its author. Experience, however, often proved the utility of some regulations suggested by a Prætor; these were re-enacted by his successor, and not unfrequently became permanent. By these means the strict rules of the Twelve Tables were modified and its deficiencies supplied, till at last the Prætor's Edict became, as Cicero tells us, the text-book of the Roman student, even to the neglect of the Twelve Tables. It is impossible at present to explain the ingenious means by which the Prætors managed to extend their jurisdiction, and to modify and enlarge the principles of the Twelve Tables. The study of the Civil Law itself can alone do this.

We know, however, that the Edict was the subject of most elaborate treatises by the most eminent Roman lawyers; and, in Hadrian's time, Salvius Julianus was directed to draw up an Edict which should be recognised by all future Prætors, and form a permanent chapter of the law. This was called the Edictum perpetuum-perpetuum, however, in a different sense from that ordinarily attached to the term, for it generally signified that the Edict was to continue during the whole of the Prætor's year of office.-We may add that the Edictum Prætoris denotes that published by the two prætors; Edictum Provinciæ, that published in the provinces; Edictum Tralatitium, the portion of the Edict transferred from the old one to the new; Edictum novum, the new portion.

Moreover, the Prætors were not the only magistrates who published an Edict, for the Ediles did the same with regard to the police of the markets. Lastly, we may mention that the Edicts of the Prætors and the Ediles were denoted by the term jus honorarium, because the law so created was promulgated or created by magistrates, qui honores gerebant; honores signifying offices entitling the possessors to certain external marks of dignity.

7. Constitutions. After the destruction of the republic by Augustus,