§ 6.: The ultimate sources of Jus—The Monarchy and the Early Republic.

The problem of the ultimate source and sanction of Jus was not one that troubled the Roman to any appreciable degree at any period of history. He was content to regard it as the product of Custom assisted by Interpretation. At a later period he supplemented it by acts of Legislation; but, even when he did so, he was much less concerned with the words of the enactment than with the manner in which these words were interpreted. Scarcely any people has had less of a gift, or natural inclination for, scientific legislation or the formation of a Code. The Roman’s dependence on authority and skilled interpretation was, therefore, great; and this authority and power of interpretation are believed to have been represented, in the Edition: current; Page: [xviii] earliest times, by the King and the College of Pontifices. Justice could only be obtained by a litigant who knew the formularies of action, precise verbal accuracy in which was necessary for the successful conduct of a suit. But this knowledge could be obtained only from the King and his Pontiffs. The King, too, must have given the ruling in law which determined what form of action should be employed. Even at this early period the private Judex or Arbiter may often have been used for the final settlement of a suit; but the King must have assisted in his appointment; and his judgment must have been conditioned by the preceding form of action which the King and the Pontiffs had thought appropriate to the suit.

The change from Monarchy to Republic could have made little difference in the manner in which the law was revealed to the Roman litigant, except in so far as this change may have increased the power of the College of Pontiffs. The annual tenure of the consulship, and the fact that each occupant of this office was hampered by a colleague, prevented the new magistracy, which was supposed to give the forms of Jus, from exercising over its skilled advisers the authority which had been once wielded by the King; and the patrician aristocracy, each member of which might be a consul or a pontiff, must now have attained a solidarity which it had never known before. The tendency of this aristocracy was to close up its ranks and to assert a monopoly, not only of office, but of knowledge of the forms of law.