3. The Jurisconsults and the Praetors. The jurisconsults, a professional class of ju rists or legal writers dating from the century before Christ, were given by Augustus an au thority and standing which they had not there tofore possessed, and from his time much weight is to be attached to the opinions and writings of the more eminent of them. In 426 A.D. Valentinian enacted a law, commonly called the Law of Citation," providing that the writ ings of only five jurists, Papinian, Paul, Gaius, Ulpian and Modestinus, should be quoted as authorities. If a majority of these held one opinion, that was to bind the judge; if they were equally divided, the opinion of Papinian was to be adopted. The great bulk of Roman law as it has come down to us, and all that is most valuable in it, is due to the jurisconsults. The prztor stood in Roman law midway be tween the jurisconsults and the legislature. At first there was but a single prztor, but later a prwtor-urbanus and a praetor-peregrinus (when the empire extended beyond Italy, the number being increased to 18), dividing the jurisdiction among them generally either along the line sug gested by their names or territorially. The prwtor exercised a qualified or limited legisla tive power. His right to alter the law was conceded, but it was not unlimited. He was in some sort the chancellor, the keeper of the conscience of the Roman people, or the person who was to determine in what cases the strict law was to give way to natural justice (natu ralis crquitas).
4. Legislation. To give an adequate ac count of Roman legislation would be to write the constitutional history of Rome, something quite beside the purpose of this article. It is important, however, to state that during the republic the popular assembly was the founda tion of legislation. During the earlier part of the empire the function of the popular assembly was gradually usurped by the Senate, acting more and more as the mere mouthpiece of the emperor. Finally even this form was dropped, and all enactments were made directly by the emperor. During the republic three assemblies of the Roman people existed,the Comitia Curiata, a patrician body, the Comitia Centu riata, composed both of plebeians and patricians the franchise being on the basis of a property qualification and the Comitia Tributa, which was based on a local division of the people of the city the vote being given territorially, as if by arrondissements, cantons or wards. The sovereign power was exercised by the emperors in three ways,(1) by direct legislation (edicta, constitutiones); (2) by judgments in their capacity as.supreme judge (decreta) ; and (3) by epsstole or rescrlpta, giving instruction on questions of law in answer to applications from the judges.
5. Codification. The earliest collection of law in Rome was the Jus Papirianum of the regal period (temp. Tarquinius Superbus), and it was not until 304 a.c. that the full knowledge of the law was wrested from the patricians. The constitutions of the emperors were col lected at different times and constituted the first codes. The oldest collection in the form of a code is the Codex Gregorianus et Hermo genianus, which covers a period of 200 years from Hadrian to Constantine. Only fragments of it remain. Next we have the Codex Theo dosianus, made about the year 435 A.D. The Theodosian Code has small pretensions to scien tific classification, but it runs to 16 books and has come down to us almost complete. The
reign of Justinian (527-65 A.D.) marks the culminating period of Roman law. In collab oration with Tribonian, he prepared, or caused to be prepared, a complete codification of the whole body of the law, first appointing a com mission of 10 members to draw up a code along the general lines of the Theodosian Code. This is called the Codex Vetus, which was speedily superseded by a later edition and has been en tirely lost. Next, about the year 530 A.D., Jus tinian created a commission of 16 members to collaborate with Tribonian in a codification of the vast accumulation of law that had grown up under the hands of the jurisconsults and the prwtors. The commission had to deal with the works of 39 jurists, consisting of 2,000 books and 3,000,000 verses. This matter was finally sifted and reduced to 50 divisions or books, and constitutes what we know as the Digest and the Pandects. For the purpose of providing an ele mentary or preparatory textbook of the law, a commission was further constituted by Justinian which prepared the Institutes of Justinian, which are in some sort a little more than a re vision or a new edition of the Institutes of Gaius. After publishing the Pandects and the Institutes in 534 A.D., a commission was ap pointed to revise the old code and to incorporate the new constitutions and decisions. This re vision was completed in the same year, and promulgated on 16 Nov. 534 A.D. Laws of a permanent character, subsequent to Justinian's codification, were collected from time to time and called Novels.
6. The Justinian Law in the West. Upon the fall of the Western Empire and the sub sequent local disorder and social disintegration throughout western Europe, the civil law fell into disuse in the West, and during the Middle Ages was largely lost sight of ; but in the 12th century the study of the civil law was revived at Bologna and spread thence throughout Italy and into France. In 1453, about nine centuries after Justinian, Constantinople was taken by the Turks and the Eastern Empire was over thrown. During some five centuries; or more than half of the existence of the Eastern Em pire after Justinian, the law nominally remained as settled by Justinian's legislation, modified indeed by subsequent novels of the emperors; but about the end of the 11th century the Jus tinian Code fell into abeyance without special abrogation. The great causes of its decay were the change of language from Latin to Greek, the accumulation of fresh law and of commentaries, the authorized readjusting of the whole by several of the later emperors and the overpowering influence of the ecclesiastical or the canon law. The revival of the study of Roman law and the rise of the Bologna school were formerly erroneously attributed to the alleged discovery of a manuscript of the Pan dects at the sack of Amalfi by the Pisans in 1137; but it has recently transpired that the study of the Roman law had begun to be pur sued with ardor at Bologna and elsewhere in Italy long before that time. However, the man uscript in question, now called the Pandecter Florentine, taken to Florence on the conquest of Pisa in 1406, is well known; it is a very ancient and valuable copy of the entire Pan dects, being also the only one in existence that dates before the age of the Glossators. The fame of the school at Bologna spread through out Europe, attracting crowds of students from all quarters and reviving a vivid interest in the civil law.