stages of social progress are invaluable expedients for overcoming the rigidity of law, by all odds the most important instrumentality through which the primitive Roman code was expanded beyond the wants of the citizens of a single city to those of the citizens of a vast league of cities was that known as equity, a name given to a body of principles built up by Roman magistrates and Roman lawyers alongside of the original civil law which it claimed the right to supersede by virtue of a superior sanctity inherent in such principles. In order to understand how that body of judge-made law called equity was evolved, it is necessary to know something of the manner in which justice at Rome was administered. In theory the supreme judicial power was vested in the praetor, who was either a jurisconsult himself, or a person entirely in the hands of those who were. When a suit was commenced the litigants appeared before the praetor who made a preliminary examination in order to ascertain the precise points in controversy. After hearing the statements and counterstatements of plaintiff and defendant, he constructed a brief technical outline of the disputed issues called a formula. That formula was then put into the hands of a judex (something very different from the modern conception of a presiding judge), who, after hearing the evidence of the witnesses and the arguments of the advocates, returned his decisive judgment to the praetor who had appointed him. The entire proceeding thus carried on by the praetor, judex, and advocates was under the intellectual guidance of the jurisconsults, the makers of the scientific law literature of Rome, who were regarded as law experts, and respected and resorted to as such by all concerned in the administration of justice. Primarily the praetor was a great statesman or politician whose final function was to enforce the law; the judex, or as we would now call him, the referee, might have no technical knowledge of law whatever. Under such conditions the unlearned judicial magistrates naturally looked for light and leading to the jurisconsults who instructed them through their responsa prudentium, the technical name given to their opinions as experts, which were promptly recorded on tablets by their students or disciples. As the jurisconsults thus became the reservoir from which was

drawn that body of principles heretofore described as equity, it is all-important to ascertain the source from which they, themselves, derived such principles. According to the institutional treatise published under the authority of Justinian "The law which a people enacts is called the civil law of that people, but that which natural reason appoints for all mankind is called the law of nations, because all nations use it." What was the origin and nature of this Roman jus gentium, this law used by all nations, a law utterly different, of course, from what is now called international law, the body of rules regulating the intercourse of states as corporate persons. It was the general rule of the ancient world that the law of one city had no application to the citizens of another. The jus civile of Rome, the exclusive property of her citizens, was the special law administered by the praetor urbanus between Roman and Roman; it could not be applied between a Roman and a foreigner. For that reason, as there was a large body of resident foreigners at Rome who would have been entirely without the benefits of law if they had been forced to rely upon the praetor urbanus, it was necessary to constitute a praetor peregrinus (247 B. C.), the praeter of foreigners, whose duty it was to administer justice between Roman citizens and foreigners, between foreigner and foreigner, and between citizens of different cities within the empire. As such praeter could not rely upon the law of any one city for the criteria of his judgments, he naturally turned his eyes to the codes of all the cities from which came the swarm of litigants before him. In the generalizations necessarily made upon such broad data we have the beginnings of comparative jurisprudence whose first fruit at Rome was the ascertainment of the fact, that there are certain uniform and universal conceptions of justice common to all civilized peoples. Before this new growth, watered by the learning of the jurisconsults, reached its maturity, the intellectual life of Rome passed under the dominion of her subjects in Attica and Peloponessus just after they had yielded to the ascendency of the Stoic philosophers who were ever striving to discover in the operations of nature, physical, moral and intellectual, some uniform and universal force pervading all things

that could be designated as the law of nature-the embodiment of universal reason, identical with Zeus, the supreme ruler of the universe. Through the mind of the Roman lawyer that splendid conception entered into the jus gentium as an expanding and enriching force that finally lifted it into a higher sphere. In that way a broad principle of Greek philosophy became so blended with a particular branch of Roman commercial law that the Antonine jurisconsults finally assumed the position that the jus gentium and the jus naturae were identical. Long before that time, however, Cicero had recognized the fact, and had declared in his gorgeous phrase that the fruit of the union was not one law for Rome, and another law for Athens, one law today and another law tomorrow, but one eternal and immortal law for all time and for all nations, as God the common master and ruler is one.

Such was the general nature of the process by which the primitive and unelastic Roman code was liberalized and adapted to the changed conditions of an expanding society through the growth of that system of judge-made law called equity, built up alongside of the primitive code by the jurisconsults during the period that preceded the overthrow of the republic and the advent of Augustus. While the "answers of the learned" varied a good deal at different periods, they always consisted of explanatory glosses on authoritative written documents, and, at first, were exclusively opinions interpretative of the Twelve Tables. The authors of this defining and expanding jurisprudence always professed the most profound respect for the letter of the code, whose full meaning they were ever attempting to bring out by piecing texts together, by introducing principles of interpretation derived from other sources, by adjusting the law to states of fact which actually presented themselves, and by speculating on its possible application to others that might occur thereafter. Thus, of course, were educed a vast amount of canons never dreamed of by the compilers of the Twelye Tables, and which were, in truth, rarely or never to be found therein. Not until we approach the fall of the republic are causes found at work which clearly indicate that the responses are encountering obstacles fatal to their farther ex

pression. Foremost among these must be noted the effort made to systematize and reduce them to compendia inaugurated by Q. Mucius Scaevola, an older contemporary of Cicero, who is said to have published a manual of the entire civil law, and who is the earliest writer cited in the Digest. Soon the number of jurisconsults who wrote treatises on law began to be large, and in the reign of Augustus two schools or sects appeared, the one headed by Capito, a warm supporter of the imperial despotism; the other Labeo, whose independent spirit gave him a strong leaning towards the older republicanism. The final blow to the responses, whose growth was thus checked by the rise of scientific law writers, was dealt by Augustus himself, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them. At an earlier period which can not be precisely fixed it became the custom for the praetor to issue an annual proclamation or edict in which he embodied the system of principles upon which justice would be administered during his official term. As a new system could not be put forth for every year, each succeeding praetor published the edict of his predecessor with such additions as the necessities of the moment or his own views of the law compelled him to introduce. Thus came into being the continuous or unbroken edict which, as an engine of law reform, was simply a new method of superseding the civil law as much as possible by an edictal jurisprudence fabricated by the praetor out of the principles of the jus gentium, finally assumed by the Roman lawyers to be the lost code of nature by which man was governed in a primitive state. So, no matter whether the civil law of Rome was expanded or suspended directly by the edict of the praetor or whether by the responses of the jurisconsults, the practical result was the same,—the deficiencies of an archaic and unelastic legal system were supplied by judicial exposition, by judge-made law. Not until Roman jurisprudence had thus become a broad and philosophic system did formal legislation, in the modern sense, become important. As it is very unusual in the infancy of a nation for the legislature to be appealed to for the general reform of private law, statute law, which became voluminous under the empire, was scanty during the republic. Not until the

establishment of the empire did the true period of Roman statute law really begin. The enactments of the emperors extend in increasing massiveness from the consolidation of the power of Augustus to the publication of the code of Justinian. During the creative period in which the jurisconsults were putting forth their wonderful treatises it was that the power of legislation passed from the people to the senate and then through a gradual process of usurpation from the senate to the emperor. When Justinian came to the throne of the Eastern Empire it was with the settled purpose of collecting, revising and systematizing the entire aftergrowth of Roman law superimposed upon the primitive system during the ten centuries that had intervened between his time (A, D. 527-565) and the adoption of the Twelve Tables (B. C. 450). The outcome was the famous code of Justinian, the Pandicts, and Institutes, which, with the later constitutions of Justinian, known as Novels, constitute the Corpus Juris Civilis Romani. And so while it may be said that the most famous and widely extended jurisprudence known to the world begins, as it ends, with a code, the fact must not for one moment be lost sight of that what gave importance to the first code and made the last possible was the creative works performed by the jurisconsults and magistrates who, during the ten centuries intervening between the two, built up a scientific system of judge-made law whose influence upon the history of mankind has been second only to that of Christianity itself. The Roman Empire is dead and gone, but Roman law has survived it; its rule is eternal.

JUDGE-MADE LAW IN ENGLAND,

When we pass from Rome to England we there find a repetition of the old story of a code of customary law, which had crystallized into a written form, being expanded and adapted to the ever increasing wants of a progressive society, through the results of at least six centuries of judge-made law. In the happy phrase of Taine, the Teutonic founders of the OldEnglish Commonwealth "created in Britain a Germany outside of Germany." The English kin transferred to Britain that