Almost all the knowledge which we possess is derived from the labours of writers who flourished long after constitutional liberty had expired.
The earliest systematic works on Roman law were the Enchiridion or Manual of Pomponius, and the Institutes of Gaius, who flourished in the times of Hadrian and the Antonines. Both these works were for a long time lost, although numerous fragments were preserved in the Pandects or Digest of Justinian. In 1816, however, Niebuhr discovered a palimpsest MS., in which the Epistles of St. Jerome were written over the erased Institutes of Gaius. But owing to the decisions and interpretations of the great practising jurists, to the want of any system of reporting and recording, and to the numerous misunderstandings of the Roman historians respecting the laws and constitutional history of their country, the whole subject long continued in a state of confusion: new contradictory theories had been gradually introduced, and old difficulties had not been explained and reconciled. Gian Baptista Vico, in his Scienza Nova, was the first who dispelled the clouds of error and reduced it to a system; and his example was afterwards so successfully followed by Niebuhr, that modern students can understand the subject more clearly, and have a more comprehensive antiquarian knowledge of it, than the writers of the Augustan age.
The earliest Roman laws were the Leges Regiæ, which were collected and codified by Sextus Papirius, and were hence called the Papirian Code. But these were rude and unconnected—simply a collection of isolated enactments. The laws of the Twelve Tables stand next in point of antiquity. They exhibited the first attempts at regular system, and imbodied not only legislative enactments but legal principles.[[424]] So popular were they, that when Cicero was a child every Roman boy committed them to memory as our children learn their catechism,[[425]] and the great orator laments that in the course of his lifetime this practice had become obsolete. The explanation of these laws was a privilege confined to the pontifical college. This body alone prescribed the form of pleading, and published the days on which the courts were held. Hence, not only the whole practice and exposition of the law was in the hands of the patricians, but they had also the power of obstructing at their pleasure all legal business. But in the censorship of Appius Claudius, his secretary, Cn. Flavius, set up, at the suggestion of Appius, a Calendar in the Forum, which made known to the public the days on which legal business could be transacted. In vain the patricians endeavoured to maintain their monopoly by the invention of new formulæ, called Notes, for Tiberius Coruncanius, the first plebeian Pontifex Maximus, who was consul A. U. C. 474, opened a public school of jurisprudence, and in the middle of the next century[[426]] the “Notes” were published by Sextus Ælius Catus.
The oral traditional expositions of these laws formed the groundwork of the Roman civil law. To these were added from time to time the decrees of the people (plebiscita,) the acts of the senate (senatus-consulta,) and the prætorian edicts, which announced the principles on which each successive prætor purposed to administer the statute law.
Such were the various elements out of which the whole body of Roman law was composed; and in such early times was the subject diligently studied and expounded that the latter half of the sixth century A. U. C. was rich in jurists whose powers are celebrated in history. Besides S. Ælius Catus, already mentioned, P. Licinius Crassus, surnamed “the rich,” who was consul A. U. C. 549, is mentioned by Livy[[427]] as learned in the pontifical law, the canon law of the ancient Romans. L. Acilius also wrote commentaries on the laws of the Twelve Tables; and to these may be added T. Manlius Torquatus, consul A. U. C. 589, S. Fabius Pictor, and another member of the same distinguished family, Q. Fabius Labeo, Cato the censor and his son Porcius Cato Licinianus, and lastly P. Cornelius Nasica, whose services as a jurist were recognised by the grant of a house at the public expense.
The most eminent jurists who adorned the next century were the Scævolæ. In their family the profession of the jurisconsult seems to have been hereditary; of so many bearing that distinguished name, it might have been said that their house was the oracle of the whole state; “Domus jurisconsulti totius oraculum civitatis.”[[428]] Quintus, the augur, was Cicero’s first instructor in the science of the law: his cousin Publius enjoyed also a high reputation; and Quintus, the son of Publius, who became Cicero’s tutor after the death of his elder kinsman, combined the genius of an orator with the erudition of a jurist, and was called by his distinguished pupil “the greatest orator among jurists, and the greatest jurist among orators.” The compiler of the digest also quotes as authorities M. Manilius and M. Junius Brutus.[[429]] Manilius is one of the characters introduced in Cicero’s dialogue de Republica: he was consul A. U. C. 604, and is said to have been the author of seven legal treatises; but of all these, except three, Cicero denies the authority. Brutus was the son of the ambassador of that name who was employed in the war with Perseus, and left a treatise in three books on the civil law.[[430]]
In the next century flourished one Ælius Gallus, who was somewhat senior to Cicero, and was the author of a treatise on the signification of law terms. Several of his definitions are given by Festus, and fragments are preserved by A. Gellius,[[431]] and in the Digest. By some he has been considered identical with Ælius Gallus, the prefect of Egypt in the reign of Augustus,[[432]] who was the friend of the geographer Strabo; but as there is little doubt that he is quoted by Varro,[[433]] such identity is impossible, since Varro died B. C. 28, and yet he speaks of Gallus as an aged man. Another distinguished jurist of this era was his namesake C. Aquilius Gallus. He was a pupil of Q. Mucius Scævola, and surpassed all his contemporaries in that black-letter knowledge of law, which in olden time was more highly valued than in the more brilliant days of Cicero. Learning then began to be ridiculed and lightly esteemed, and oratorical powers were more admired in proportion as the Roman mind became more alive to the refinements and beauties of language.
But Gallus was most eminent as a law reformer. The written law of Rome presented by its technicality the greatest impediments to actions on the unwritten principle of common right and equity. To obviate this he invented legal fictions, i. e. formulæ by which the effects of the statute could be annulled without the necessity of abrogating the statute itself. His practice must have been large, for Pliny mentions that he was the owner of a splendid palace on the Viminal Hill.[[434]] In B. C. 67, he served the office of prætor together with Cicero, and both before and after that he frequently sat as one of the judices. Cicero pleaded before him in the defence both of Cæcina and Cluentius.
Besides Aquilius Gallus, three of the most distinguished jurists, who were a few years senior to Cicero, owed their legal knowledge to the instructions of Mucius Scævola. These were—C. Juventius, Sextus Papirius, and L. Lucilius Balbus, the last of whom is mentioned by Cicero,[[435]] and his works are quoted by his eminent pupil Sulpicius Rufus.