Body of Civil Law (Corpus Iuris Civilis) Vol. I (Digest)

HISTORIA JURIS CHRONOLOGICA Chronological History of Law.

nature allows to be common. To the same effect seems to be that rescript of Gratian in l. 1. C. ne fidejuss. dot. dentur. Regarding sureties for dowries if you amend it thus, as it truly must be amended, whether law proceeds from statute or from custom. For law proceeds as much from statute as from custom. l. 32. ff. de legib. and Cic. lib. 1. de orat. Cicero, Book 1, On the Orator distinguishes laws from law The Latin here plays on leges (statutes) vs jus (law in the general sense) with these words: "Neither is the knowledge of laws or civil law to be neglected," and elsewhere in many places, when jurisconsults enumerate individual parts of law, they designate them by their proper names: statutes, decrees of the Senate, plebiscites, edicts of the Praetors, constitutions of the princes; but responses or interpretations of the Learned The Prudentes, or jurisconsults they call by a common, not a peculiar name, civil law, d. l. 2. §. his legibus. versic. hæc disputatio. By the Jurisconsults, all the aforementioned parts have been cultivated and adorned by interpretations, and from these, as if from stones and cement, Jurisprudence is composed, which Justinian calls a Temple, l. 1. §. ne autem. C. de vet. jur. enucl. On the Old Law to be refined

§. 13. The age of the Jurisconsults, the method of responding, and their authority were not the same and equal; therefore, general and even special distinctions must be observed. The general one is to be taken from the remarkable change in the Republic, which happened when the power of the people was ceded to the Emperors; by which the principal form of enacting laws was changed, and in place of laws, which the people ratified, constitutions of the princes were substituted; and henceforth, Jurisconsults responded not by word, but by writing, not by their own authority, but by the principal authority.

§. 14. The first ones, while the Republic stood, handled law in various forms, and all were considered Jurisconsults; but I understand as Jurisconsults properly those who began to profess law and give responses, who, relying on the confidence of their studies, cultivated the discipline of law by their own judgment and authority, and having perceived the laws and customs of the Romans and weighed the reasons of adjudicated matters, gave responses acquired from the knowledge of law and forensic practice. Nor did they give signed responses, but for the most part they wrote to the judges themselves or testified to those who consulted them, d. l. 2. §. post hunc. versic. Massurius. And since they were made verbally and were applied to individual controversies and vanished once those were decided, they are not numbered among written law d. l. 2. §. his legibus, but are attributed to customs; which, if they agreed with the customs of the Roman people, were admitted; if they displeased the people, they were rejected: for as laws were brought forth from the suffrage of the people and its acclamations, so also silent custom was gradually confirmed from its will.

§. 15. Having proposed the general division of Jurisconsults, now the first ones must be specially distinguished, who were there from the cradles of both the Republic and jurisprudence, who can be divided into four parts. The first part is of those who did not interpret law so much as they either collected royal laws, or published actions, or promulgated them to the common people, such as those seven who are numbered by Pomponius, d. l. 2. §. juris scientiam. Sextus Papirius or P. Papirius, A. Claudius Crassinus the Decemvir, A. Claudius Cæcus, C. Flavius, P. Sempronius Sophus, C. Scipio Nasica, Q. Mutius: these seven are Nomographs law-writers rather than Jurisconsults, since they were consulted by no one concerning law, much less did they profess it publicly. Afterward follow those who began to profess the science of law publicly

Sextus Ælius Catus, P. Ælius Pætus, P. Atilius, M. Porcius Cato the Elder, M. Cato the Younger, P. Mutius Scævola, M. Junius Brutus, M. Manilius, P. Rutilius Rufus, Virginius Paulus, Q. Ælius Tubero the Stoic, S. Pompeius, L. Cælius Antipater, L. Licinius Crassus, Mucianus. Second, follow those whose words are referred to by other Jurisconsults, C. Aquilius Gallus, Lucilius Balbus, Sext. Papirius Juventius, Servius Sulpitius Rufus, C. Antius Ofilius, Titus Cæsius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Accius Pacuvius, Antistius Labeo the father, Cinna, Publius Gellius, Cornelius Maximus, C. Trebatius Testa, Q. Mucius Volusus, A. Casellius, Q. Ælius Tubero, Attejus Capito. In the third place are those whose writings are extant in the digests. First, Q. Mutius Scævola, whom the ancients called Q. Mucius P. F. Scævola Pontifex Maximus; Ælius Gallus, praised by Marcus Varro; Alfenus Varus, a disciple of Servius Sulpitius Rufus; Q. Antistius Labeo, a disciple of C. Trebatius Testa.

§. 16. The second class of Jurisconsults is of those who were under the Emperors, which begins from Massurius Sabinus down to the last ones who reached the times of the declining and aging empire. Moreover, the names or opinions of these are either simply referred to, or their own writings are extant in the digests: these responded concerning law not by their own authority, but with the assent of the prince, therefore Justinian counts their writings among written law. §. constat. I. de jure nat. Since this diversity of responses and the distinction of Jurisconsults arose from the mutation of the Republic, which happened under the dictatorship of Julius Caesar, I did not think it should be passed over, but before I approach the later Jurisconsults, there will be between them and those [others] as there is between the right and left shin during one act or another.

PERIOD III. ROMAN JURISPRUDENCE UNDER THE EMPERORS.

SECT. I. FROM AUGUSTUS UNTIL HADRIAN.

§. 17. The state of the free Republic was extinguished by the victory of the dictatorship of Julius Caesar won against Cn. Pompeius, from which he assumed the dictatorship, not for six months according to the custom of the ancestors, but continuously. No one remembers the day of the battle of Pharsalus (which is strange) as a historian. Therefore, we compute the beginning from the first day of the second Consulship, from which until the day of his slaughter, namely the Ides of March, he usurped supreme power and royal matters themselves, and cloaked it with the names of the free Republic, namely Dictator, Emperor, Consul, Tribune; and by that veil he retained it with the tacit consent of the Senate and the Roman people. The following Emperors preserved it through force and fear, as Dio writes in book 53, ὥστε τὰ τῶν βασιλέων πλὴν τὰ φορτικὰ τῆς προσηγορίας αὐτῶν ἔχειν so that they possess the things of kings except for the burdensome [nature] of their appellation, they usurp royal power, except that they avoid the envy of the name. Therefore Julius suffered, as the same witness in book 42, his statue to be placed near the Kings who formerly ruled Rome, and in the same author, Augustus desired to be called Romulus, but lest he fall into the suspicion of aspiring to a kingdom under that name, he was called Augustus, under which pretext the rest held the Republic until the times of Vespasian. Vespasian, with the royal law renewed, openly usurped royal power; the last part of this law is read in the church of Saint John Lateran, which Onufrius Onofrio Panvinio, an Augustinian historian reports in his Fasti. However, this bronze tablet was moved from the said temple to the Capitol or the Palazzo dei Conservatori by the order of Gregory XIII. Histories or inscriptions indicate the royal law in three times. First, when royal power was given to Romulus and the remaining kings, and its...