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

HISTORIA JURIS CHRONOLOGICA.

many chapters of that proposal and promulgation existed, of which one is mentioned in l. 2. ff. de mort. infer. Second, the same was renewed by L. Valerius Flaccus, by which it was provided that whatever the dictator Sulla had done, it was to be ratified, of which Cicero writes in book 1, On Laws. Third and finally, it was renewed under the times of Vespasian, by whose force he attributed to himself supreme power, otherwise than those who preceded him, who did not openly use it, but [exercised] power tacitly transferred from the people to them and not immediately accepted by all. For the comitia public assemblies, which were the chief insignia of the free Republic, were held under Julius, by whom and by other magistrates various laws were proposed according to old ritual, and certain ones were called Julian from his name, as various inscriptions in the Digests and Code testify. Suetonius in Julius c. 41 says, "He had shared the comitia with the people for creating magistrates," but the same author in Augustus c. 40 is the authority that "by his son Augustus the original right of the comitia was restored." Finally, that popular power which was wavering under those two first [emperors] and the usage of the comitia was uncertain, but under Tiberius they were completely extinguished. Cornelius Tacitus, Annales book 1: "Then for the first time the comitia were transferred from the Campus Martius to the Fathers [Senate] etc."

§. 18. With the comitia indeed removed, laws ceased to be made by the people, and in their place succeeded first the Senatusconsulta decrees of the Senate, then the constitutions of the princes, which henceforth the Jurisconsults undertook to interpret; these do not yield to ancient laws, whether you consider natural equity or the subtle reasons of law which shine forth in them, which were edited not from the mere whim of the princes, but from the counsel of the jurisconsults to whom they were applied for examination. Suetonius in Augustus c. 35 says that Augustus employed advisors to examine matters which were to be referred to the Senate. Severus, according to Lampridius: "He ordered that business and cases be first handled and ordered by the chiefs of the bureaus and the most learned legal experts and those faithful to him, of whom Ulpian was then the first, and thus referred to him; he enacted laws moderated and infinite concerning the right of the people and the fiscus, nor did he enact any constitution without twenty legal experts etc." Princes wrote back to the Jurisconsults holding magistracies for the sake of establishing law. Antoninus Caracalla wrote back to Clodius, Tripho[ninus] in l. 1. C. de Judæis; Severus and Antoninus to the same, l. 4. C. de neg. gest. The same Caracalla to Venuleius Saturninus, l. 1. C. de excusat. vet. Alexander in l. 1. C. quibus non objic. And others who consulted the Jurisconsults or the Jurisconsults who consulted the princes, who, mutually and amicably joining their efforts in establishing law, not only illustrated the old jurisprudence but also adorned it with various principles and rules.

§. 19. The Jurisconsults themselves, with emulation and sects established, and studies increasing daily, examined exactly all that they were to respond to according to the rules of law and weighed them, having considered the reason with precision. So that it is said that the ancients who flourished before Augustus founded the law, d. l. 2. §. post hos; but the more recent ones added safeguards of stability and ornaments of dignity to this discipline, and reduced Law into an art of the good and equitable. Thus Celsus defines it in l. 1. ff. de just. et jur. It could not yet be called an art in the time of Cicero. Gellius, book 1, c. 20, cites Cicero’s book On Reducing Civil Law to an Art. Meanwhile, the dissensions between the Jurisconsults, increasing daily, could not but disturb jurisprudence. The first of the different factions were ATTEJUS CAPITO and ANTISTIUS LABEO. Regarding them, Pomponius says: "Capito, he says, persevered in those things which had been handed down to him; Labeo, by the quality of his genius and confidence in his learning, because he had devoted effort to other works of wisdom, began to innovate many things." They were of very different character. Labeo was of a severe life, composed to Stoic austerity; Capito, sailing with the breeze of the Princes, sullied his fame and name with more than truthful adulation. Labeo, addicted to the Stoics, used immoderate freedom toward the princes. Hence his successors were lovers of Stoic Philosophy. Labeo rejected offered honors: Capito sought them. Tacitus compares their characters in Annales, book 3, c. 75. Each had followers, whom we present in the following diagram.

A successional chart of the two main schools of Roman jurists.
Top: ATTEJUS CAPITO (left) and ANTISTIUS LABEO (right).
Between them: "Under Tiberius."
Below Capito: MASSURIUS SABINUS, whence the SABINIANI.
Below Labeo: NERVA PATER.
Between them: "Under Claudius Nero."
Below the Sabinians: C. CASSIUS LONGINUS l. 19. ff. de recept. qui arbitr., from whom the CASSIANI.
Below the Proculeians: PROCULUS, from whom the PROCULEJANI and NERVA FIL.
Between them: "Under Vespasian."
Below the Cassians: CÆLIUS SABINUS.
Below the Proculeians: PEGASUS, from whom the PEGASIANI.
Centered below these: "Under Trajan, Hadrian, and Antoninus Pius."
Final lists representing members of both schools:
Left list (Sabiniani/Cassiani): PRISCUS JAVOLENUS, ALBURNIUS VALENS, TUSCIANUS, RECTIUS VOLUS, MÆCIANUS, SALVIUS JULIANUS, Q. CERVIDIUS SCÆVOLA, S. CÆCILIUS AFRICANUS, TERENTIUS CLEMENS, MINICIUS NATALIS, VINDIUS.
Right list (Proculejani/Pegasiani): CELSUS P., CELSUS F., PRISCUS NERATIUS, ATILICINUS, ARISTO, ULPIUS MARCELLUS, TITUS CAJUS, URSEJUS FEROX.

These sects seem to have lasted until the times of Antoninus Pius, and a new kind of Jurisconsults arose, which, having left behind the opinion of both dissenting families, proceeded on a middle path, whence they were called Erciscundi Those who divide/apportion; here used to signify a middle way between the two schools.

§. 20. Moreover, this change of the Republic made under the Emperors prescribed to the Jurisconsults another law of responding concerning law. For henceforth the authority of responding concerning law was obtained from the prince. The divine Augustus was the first who, so that there might be greater authority for law, established this. Masurius Sabinus was the first who, having obtained permission from Tiberius, responded publicly, d. l. 2. §. Masurius. However, I divide those who flourished from Augustus to Hadrian, and who are referred to in the last place by Pomponius, into two parts. First are referred those of whom the Jurisconsults make simple mention: 1) Masurius Sabinus, disciple of Attejus Capito; 2) C. Cassius Longinus, nephew of Tubero, great-grandson of Servius; 3) Cassius Longinus the elder; 4) Cælius Sabinus; 5) Tuscianus, disciple of Javolenus; 7) Coccejus, son of Nerva; 8) Pegasus, disciple of Proculus; 9) P. Juventius the father. But those whose reported writings are extant in the digests are: 1) Sempronius, 2) Proculus, 3) P. Juventius Celsus the son, 4) Neratius Priscus, 5) Javolenus Priscus, 6) Alburnus Valens, 7) Julius Aquila Gallus.

SECT. II. FROM HADRIAN UNTIL CONSTANTINE THE GREAT. THE PERPETUAL EDICT.

§. 21. From Julian, who lived under Hadrian in the year of Christ 120, a second period of Roman jurisprudence is to be established, under whom the civil law, which had been little exercised for an interval of time, began to flourish with greater study than before and to be celebrated and adorned by many Jurisconsults. Salvius Julianus, a Jurisconsult from Milan, intending to make the edicts of all praetors, which were annual, into a perpetual jurisdiction, collected them, and from him it was denominated the Perpetual Edict. Eutropius, book 8, on Salvius Julianus, which was approved by the command of Hadrian and the Senate, so that law might be spoken from it henceforth. Justinian himself proclaims him the organizer of the perpetual edict, l. pen. C. de condict. causa dat. Although the same epistle...