§ 14.: Interpretation by the jurisconsults.

All these new influences on Roman law, although they found their most marked expression in the edicts of the magistrates, were also absorbed by that Professional Jurisprudence which gives us the other aspect of the science of Interpretation. It may have been the more important aspect; for the teaching of the schools, and the advice of jurisconsults, no doubt did much to stimulate and guide the activity of the magistrates. We are told that the influence of skilled lawyers was for a very long time represented by the College of Pontifices. Even after the publication of the Twelve Tables and the revelation of the forms of Action (448, 304 b. c.), and during the period when secular was becoming more and more divorced from religious law, the knowledge of jurisprudence was, in virtue chiefly of the familiar fact that professions once associated are not easily separated, exhibited mainly in the person of the Pontifex Maximus; Edition: current; Page: [xxxviii] and the men who held this office still furnished for centuries the leading names to Roman jurisprudence. At first the science was imparted with an air of mystery; the advice was occasional and elicited only by special request. But finally the profession of law on the part of the Pontiffs became more open and more systematic. The first of these who taught the science publicly is said to have been Tiberius Coruncanius (circa 280 b. c.), who was also the first plebeian Pontifex Maximus. Lastly, the stage of written commentaries was reached. These commentaries were stimulated by the increasing difficulty of interpreting the language and meaning of the Twelve Tables. The earliest commentator on this code who is known to us, was Sextus Aelius Paetus, consul in 198 and censor in 193 b. c. He busied himself with the interpretation of the legal difficulties connected with the Tables, and published a work called Tripertita, which gave in three divisions the text of the Tables, an explanation of each ordinance, and the form of action applicable to the cases which these ordinances raised. His later contemporary, Acilius, seems also to have been a legal commentator. An explanation of the obsolete language of the Tables was, so far as we know, first attempted by the great philologist Lucius Aelius Stilo Praeconinus, who was born about 154 b. c. One of the results of the work of these commentators was that the text of the Tables, as it appeared in their editions, became the recognized, and in fact the only, text for all subsequent ages; for it seems quite clear that the later commentators, as for instance Gaius, had no knowledge of any antique copy of the Tables, engraved on metal and posted up in some public place. But there was another reason why a knowledge of the Tables, in their original form, was becoming decadent even during the period of the later Republic. The Praetor’s Edict, as a living source of law, was superseding the ancient Code. Juristic investigation was grappling with present problems and did not care to concern itself with the antique The Tables had been explained; now they were to be expanded. But the expansion came with the edict, and with the creative jurisprudence which was a product of the new Greek culture and the extension of the Roman Empire. The founders of this scientific jurisprudence, whose labours were to be perpetuated by the lawyers of the Principate, were Marcus Junius Brutus, Marcus Manilius and Publius Mucius Scaevola, all of whom Edition: current; Page: [xxxix] flourished about the middle of the second century b. c. They were followed by a long line of distinguished successors to the close of the Republic. The study of law was becoming professional, but it was not confined to a body of men who made jurisprudence the sole business of their lives. The knowledge and exposition of law was an incident in the career of some of the greatest statesmen of the day. It may have been their ruling, but it was by no means their sole interest; and sometimes the fruitful experience of a lifetime spent in an active forensic and political career was given to admiring students during the repose which marked the closing years of the statesman’s life. The rewards of the profession were purely honorary; the only payment was repute, gratitude, or political support; and the practical utility of the jurists was as much valued as their theoretical knowledge. They pleaded or gave advice to pleaders; they gave a scientific precision to the formulae of legal business; and they returned replies (responsa) to the questions of litigants, magistrates, or judices on legal points which arose whether before or in the course of the hearing of a case. It was through these replies, which were given sometimes in private, sometimes in the Forum, that the jurisconsults became great oral and literary teachers. The replies were sometimes given in writing; but, even when verbal, were often collected into books; and the audience which received them was by no means confined to those who were primarily interested in the answers. The young were admitted to the consultations, and the consultation often closed with a disputation. This practice led eventually to systematic teaching; disciples attached themselves to a particular exponent of law, who gave some a preliminary training and directed others in a course of study that was more advanced. In no respect was this system of education regulated by the State. No teacher was more authentic than another. Edition: current; Page: [xl] Controversy grew and flourished. The only proof of the validity of an opinion was its acceptance by a court. But even this was but a slender proof; for different Praetors or Judices might be under the sway of different jurists. It required a single superior court and a single controlling authority (both of which were found in the Principate) to guide the stream of legal opinion into narrower and more certain channels.

Amidst this stream of interpretation we discern one attempt to give a fixity to at least a part of Roman law. Ofilius, a Roman knight of the period of Cicero and Caesar, was the first to reduce the Praetor’s Edict to some kind of system. It is probable that a still greater work of revision was at one time projected for this jurist; for we are told that Caesar, amidst his ambitious schemes for the regeneration of the Roman world, conceived the idea of making a digest of the Roman law. Had he lived to carry out this scheme, it is probable that Ofilius would have been entrusted with the work.