560
THE GREEN BAG
ments, and, at first, were exclusively opin ions interpretative of the Twelve Tables. The authors of this denning and expanding jurisprudence always professed the most profound respect for the letter of the code, whose full meaning they were ever attempt ing to bring out by piecing texts together, by introducing principles of interpretation derived from other sources, by adjusting the law to states of fact which actually presented themselves, and by speculating on its possible application to others that might occur thereafter. Thus, of course, were educed a vast amount of canons never dreamed of by the compilers of the Twelve Tables, and which were, in truth, rarely or never to be found therein. Not until we approach the fall of the republic are causes found at work which clearly indicate that the responses are encountering obstacles fatal to their farther expression. Foremost among these must be noted the effort made to systematize and reduce them to compendia inaugurated by Q. Mucius Scaevola, an older contemporary of Cicero, who is said to have published a manual of the entire civil law, and who is the earliest writer cited in the Digest. Soon the num ber of jurisconsults who wrote treatises on law began to be large, and in the reign of Augustus two schools or sects appeared, the one headed by Capito, a warm supporter of the imperial despotism, the other by Labeo, whose independent spirit gave him a strong leaning towards the older republicanism. The final blow to the responses, whose growth was thus checked by the rise of scientific law writers, was dealt by Augus tus himself, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them. At an earlier period which cannot be precisely fixed, it became the custom for the praetor to issue an annual proclamation or edict, in which he embodied the system of prin ciples upon which justice would be admin istered during his official term. As a new system could not be put forth for every
year, each succeeding praetor published the edict of his predecessor with such additions as the necessities of the moment or his own views of the law compelled him to intro duce. Thus came into being the continu ous or unbroken edict which, as an engine of law reform, was simply a, new method of superseding the civil law as much as pos sible by an edictal jurisprudence fabricated by the praetor out of the principles of the jus gentium, finally assumed by the Roman lawyers to be the lost code of nature by which man was governed in a primitive state. So, no matter whether the civil law of Rome was expanded or superseded directly by the edict of the praetor, or whether by the responses of the juriscon sults, the practical result was the same — the deficiencies of an archaic and unelastic legal system were supplied by judicial ex position, by judge-made law. Not until Roman jurisprudence had thus become a broad and philosophic system did formal legislation, in the modern sense, be come important. As it is very unusual in the infancy of a nation for the legislature to be appealed to for the general reform of private law, statute law, which became vol uminous under the empire, was scanty dur ing the republic. Not until the establish ment of the empire did the true period of Roman statute law really begin. The en actments of the emperors extend in increas ing massiveness from the consolidation of the power of Augustus to the publication of the code of Justinian. During the crea tive period in which the jurisconsults were putting forth their wonderful treatises, it was that the power of legislation passed from the people to the senate and then through a gradual process of usurpation from the senate to the emperor. When Justinian came to the throne of the Eastern Empire, it was with the settled purpose of collecting, revising, and systematizing the entire aftergrowth of Roman law superim posed upon the primitive system during the ten centuries that had intervened be
