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; 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 Ref. 110 (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 Ref. 111. His later contemporary, Acilius, seems also to have been a legal commentator Ref. 112. 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. Ref. 113 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 Ref. 114. 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 Ref. 115 Manilius and Publius Mucius Scaevola, all of whom 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 Ref. 116. 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 Ref. 117. 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 Ref. 118. 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 Ref. 119. It was through these replies, which were given sometimes in private, sometimes in the Forum Ref. 120, that the jurisconsults became great oral and literary teachers. The replies were sometimes given in writing Ref. 121; 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 Ref. 122, and the consultation often closed with a disputation Ref. 123. 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 Ref. 124. In no respect was this system of education regulated by the State. No teacher was more authentic than another. Controversy grew and flourished Ref. 125. 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 Ref. 126. 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 Ref. 127. Had he lived to carry out this scheme, it is probable that Ofilius would have been entrusted with the work.
§ 15.: Reforms in Procedure effected during the later period of the Republic.
The progress effected during this period in the theory of law was accompanied by a great reform in procedure. From about 150 b. c. the process both of the civil and criminal courts began to assume a form which was final for the period of the Republic, and which was supplemented, but not altered, during the greater part of the period of the Principate Ref. 128. In the domain of Civil Procedure, a Lex Aebutia gave some kind of formal sanction to the practice by which the Praetor tended to substitute the simpler Formula for the more complex Legis Actio Ref. 129. The Formula had perhaps first been employed in the statement of cases for Peregrini. Its utility commended its use for cases in which Roman citizens alone were involved. The Praetor Urbanus employed it for his honorary jurisdiction; it was then transferred (doubtless by the Lex Aebutia) to the civil law as an alternative, in most cases, to the Legis Actio. We cannot say in what form the alternative was presented. We know that the law must have exempted certain kinds of jurisdiction from the Formula—the jurisdiction, for instance, of the Centumviral and Decemviral courts. But it may have allowed the Praetor to substitute the one procedure for the other in most spheres of civil jurisdiction; and, where the Praetor still permitted the Legis Actio and the Formula to stand side by side in his Album, it may have given the litigants a choice between the two. The two methods of procedure still exist side by side in Cicero’s time; but the formulary procedure is demonstrably the more general of the two.
About the time when this reform was being effected, an attempt was made to create a method of criminal procedure, simpler and more effective than that of a trial before the People. The type on which the new criminal courts were constituted was furnished in the main by Civil Procedure. Cases of extortion (Repetundarum), in which compensation was demanded for a delict, were first tried before a Praetor and Recuperatores. This was a mere provisional arrangement initiated by the Senate for the benefit of the provincials Ref. 130. But the system, or one closely modelled on it, was perpetuated by the Lex Calpurnia Repetundarum of 149 b. c. Ref. 131, and gradually these recuperatorial boards grew into great panels of Judices, the qualifications for the jurors being specified by judiciary laws (Leges Judiciariae). Finally, almost the whole sphere of the criminal law was embraced by a series of enactments which created standing courts (Quaestiones Perpetuae, or Judicia Publica), each for the trial of a special offence or a group of related crimes. All of these courts