Chapter II: Jurists as Makers of Law

Let us begin with the Jurists, since they are the first repositories and interpreters of those customs out of which law grew. One may distinguish three stages in their attributes and their action at Rome. In the first stage, during the days before the enactment of the Twelve Tables, and even after that date down to the third century B.C., they were a small body of men, all of them patricians, and some of them priests, retaining in their memory and transmitting to their disciples a number of rules and maxims, often expressed in some carefully phrased and scrupulously guarded form of words, such as the _lex horrendi carminis_, which Livy quotes in his account of the trial of Horatius for killing his sister[108]. An important place among these rules was held by the formulas which it was necessary to use in actions or other legal proceedings, the slightest variation from the established phraseology of which would be a fatal error. Such knowledge, with the connected knowledge of the days on which ancient superstition forbade or permitted legal proceedings to be taken, was in these early times strictly reserved by its possessors to their own class, as a sacred deposit of political as well as religious importance.

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Footnote 108:

Book i. chap. 26.

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In the following period, which may be said to extend till the end of the free Republic, these restrictions vanished. The progress of the plebeians in political power as well as in wealth made it impossible to exclude them from the possession of legal lore. Some plebeians became no less distinguished as sages of the law than patricians had been; indeed Tiberius Coruncanius, the first plebeian chief pontiff, is occasionally described as the founder of the later school of scientific lawyers. He is said to have been the first person who offered himself to the public as willing to advise on legal questions. The profession attracted many able and ambitious men, because it was one of the three recognized avenues to high office, the alternative to arms and to political oratory. One may fairly call it a profession in this sense, that those who adopted it made it the main business of their life, and by it won their way to fame and influence. But it was not such a profession as the bar is in modern countries, not a gainful profession whereby a fortune could be amassed, not a close profession into which entrance is granted only upon definite terms and subject to definite responsibilities. Any man who liked might declare himself ready to give legal advice or settle legal documents. He had no examination to pass, no fees to pay, no dinners to eat. He acquired no right of exclusive audience of the Courts; he became amenable to no jurisdiction of his compeers or of any constituted authority. The absence of these things did not, however, prevent the Roman lawyers from having a good deal of what might be called professional feeling, a high sense of the dignity of their calling, and a warm attachment to the old forms and maxims of the law. These Republican jurists composed treatises, only a few scattered extracts from which have come down to us, and gave oral teaching to the disciples who surrounded them while they advised their clients, as they sat in state in the halls of their mansions.

With the fall of the Republic there begins a third period which covers about three centuries. It had been the custom for a man who had a point of law to argue before a _iudex_[109] trying a case to endeavour to obtain from some eminent jurist an opinion in his favour, which he produced to the _iudex_ as evidence of the soundness of the view for which he was contending. Now Augustus, partly to enlarge and inspirit the action of the jurists, partly to attach them to the head of the State, permitted certain of the more eminent among them to give _responsa_, _i.e._ answers or opinions on points of law, under and with his authority, directing such opinions, when signed and sealed, to be received by a _iudex_ trying a case as settling a controverted point. His successor, Tiberius, issued formal commissions to the same effect[110]. Here we enter the third stage, for from this time forward not only did it become obligatory on the _iudex_ to defer to an opinion given by one of the ‘authorized’ jurists, but there was also created an inner privileged order within the whole body of jurists, this inner order consisting of those, usually no doubt the most conspicuous by learning and ability, who had obtained the imperial authorization. And out of this privileged class the Emperor was apparently accustomed to choose the great judicial officers of state, the praetorian prefect—in later times the quaestor also—the members of the Imperial Council, and possibly the chief judicial magistrates of the provinces, so that the career of a jurist continued to be, though in a somewhat different form, one of the main paths to distinction and power. Oratory, which had formerly swayed the people, was now practically confined to the Senate and the Law Courts, and thus became separated from politics: for even in the Senate few ventured to speak with freedom. As the profession of law was now the chief rival to the profession of arms it drew to itself a large part of the highest ability of the Empire. After the great decline in literature and art which marks the period of the Antonines, the standard of learning, acuteness, and philosophical grasp of mind among the jurists still continued to be high. Even their Latin style is more pure and nervous than we find among other writers of the third century. The period of their productive activity—that which we commonly call the classical period of Roman Law—may be said to close with Herennius Modestinus, who was praetorian prefect about the middle of the third century of our era. Thereafter we possess only a few names of notable jurists, scattered at long intervals, and apparently inferior to their predecessors.

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Footnote 109:

The _iudex_ (who is not to be thought of at this period as a judge in
our sense—he is more like a jury of one, or a referee) was not
necessarily a skilled lawyer, and therefore was presumably not
competent to decide a knotty technical point by the force of his own
knowledge.

Footnote 110:

The precise nature of the action taken by Augustus and Tiberius is the
subject of some controversy, as to which see Goudy’s edition of
Muirhead’s _History of Roman Law_, p. 292, Sohm, _Institutionen_, §
18, and Krüger, _Geschichte der Quellen des Römischen Rechts_, § 15.
_Responsa_ had been given in earlier days by the _Pontifices_, and
Augustus was _Pontifex Maximus_. As to a similar practice among
Muslims see Essay XIII, p. 239 _ante_.

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Although throughout these three periods the jurists may fitly be described as a Source of Law, their function was by no means the same from the beginning till the end. In the first period they were the depositaries of a mass of customs which changed very little; and they did not so much create law as give a definite shape and expression to it in the carefully phrased rules and unvarying formulas which each generation handed down to the next. The events and circumstances of the second period, which saw the knowledge of the old customs much more widely diffused, and saw also a considerable growth of statute law, threw upon them the duty of expounding both customs and statutes, and of covering the ground which neither customs nor statutes had occupied. This meant a good deal in a thriving and expanding community, so the _interpretatio iuris_ (as the Romans call it) which they describe as the chief service rendered by these legal sages, became large in quantity, though it was almost entirely confined to the filling up of interstices, and did not attempt to produce new principles or lay down broad rules. Its authority, moreover, was a purely moral authority, based upon nothing but the respect paid to the intellect and learning of the particular jurist from whom some doctrine or dictum emanated, regard being of course had to the length of time during which, or the approval of the profession with which, a doctrine or dictum had been accepted. With the introduction in the third period of a specific commission from the Emperor, the jurist, that is the authorized jurist, became recognized as competent to make law (_iuris conditor_). He acted only by interpreting, _i.e._ by delivering an opinion on a point previously doubtful, but his decision, once given, had an authority independent of his personal fame, the authority of the Emperor himself, by this time a source of law through the magisterial powers conferred upon him for life. Let us note further, that whereas in the earlier part of the second period it was largely through the modelling of the system of actions and pleading that the influence of the jurists was exerted, in the later part of that period and during the whole of the third, it was chiefly by means of their writings that they developed the law. Most of these writings were the work of men who enjoyed the _ius respondendi_; yet some of those who belong to a time before that right began to be granted carry no less weight. Antistius Labeo does not seem to have enjoyed it, but he is always quoted with the greatest respect, and it seems doubtful whether it was possessed by Gaius, who was, centuries after his death, placed among the five most authoritative writers.

It does not here concern me to enlarge upon the labours of the great legal luminaries of the earlier Empire, either as writers of treatises (it is in this capacity that we know them best, from the fragments of their works preserved in Justinian’s _Digest_ ) or as advisers of the Sovereign, assessors in his supreme Court of Appeal, and prompters of his legislative action. For the present purpose it is sufficient to suggest some reasons which may account for the more considerable part which the Roman jurists played as a source of law than that which can be attributed to legal writers in England. Though some few of our English treatises are practically law, constantly cited and received as authorities—Coke upon Littleton supplies an example from former times, and Lord St. Leonards on Vendors and Purchasers from our own—they are not to be compared in point of quantity or importance with the text-books out of which Justinian’s compilation was framed. In earlier days it was no doubt different. The writings of Glanvill and Bracton, with the book ascribed to Britton and the treatise called Fleta, were all to some extent recognized as law in the fourteenth century; that is to say, they would have powerfully, and in most doubtful cases decisively, influenced the mind of any judge to whose knowledge they came when he had to determine a point of law. In that age there was no such distinction drawn between what is and what is not legally binding as the wider experience and the more precise analysis of modern times has made obvious to our minds. Moreover, in an age when customs were still uncertain, because largely fluid and imperfectly recorded, the statement of what a writer held to be law had an incomparably greater force than in later days. And it may be added that the extracts from the Roman Law, of which Bracton’s treatise, for instance, is full, would, at least to the ecclesiastical lawyers, carry with them the authority of the Roman law itself. After the fifteenth century, comparatively few books hold a place of authority; and perhaps the best example of those which do is Littleton’s _Treatise on Tenures_ . By this time the abundance of reported cases began to make it less necessary to have recourse to treatises; nor was the writing of them a favourite occupation of the earlier common lawyers.