But after the institution of tribunes a change in the constitution gradually took place, so that it was neither aristocratic nor popular exclusively, but was composed of both elements, and was a system of balance of power between the various classes. The more complete the balance of power, the closer is the resemblance to a constitutional government. When one class acted as a check against another class, as gradually came to pass, until the subversion of liberties by successful generals, the senate, the magistrates, and the people in their assemblies shared between them the political power, but the senate had a preponderating influence. The judicial, the legislative, and the executive authority was as well defined in Roman legislation as it is in English or American. No person was above the authority of the laws; no one class could subvert the liberties and prerogatives of another class,–even the senate could not override the constitution. The consuls, elected by the centuries, presided over the senate and over the assemblies of the people. There was no absolute power exercised at Rome until the subversion of the constitution, except by dictators chosen by the senate in times of imminent danger. Nor could senators elect members of their own body; the censors alone had the right of electing from the ex-magistrates, and of excluding such as were unworthy. The consuls could remain in office but a year, and could be called to account when their terms of office had expired. The tribunes of the people ultimately could prevent a consul from convening the senate, could seize a consul and imprison him, and could veto an ordinance of the senate itself. The nobles had no exclusive privilege like the feudal aristocracy of mediaeval Europe, although it was their aim to secure the high magistracies to the members of their own body. The term nobilitas implied that some one of a man's ancestors had filled a curule magistracy. A patrician, long before the reforms of the Gracchi, had become a man of secondary importance, but the nobles were aristocrats to the close of the republic, and continued to secure the highest offices; they prevented their own extinction by admitting into their ranks those who distinguished themselves,–that is, exercising their influence in the popular elections to secure the magistracies from among themselves.

The Roman constitution then, as gradually developed by the necessities and crises that arose, which I have not space to mention, was a wonderful monument of human wisdom. The nobility were very powerful from their wealth and influence, but the people were not ground down. There were no oppressive laws to reduce them to practical slavery; what rights they gained they retained. They constantly extorted new privileges, until they were sufficiently powerful to be courted by demagogues. It was the demagogues, generally aristocratic ones, like Catiline and Caesar, who subverted the liberties of the people by buying votes. But for nearly five hundred years not a man arose whom the Roman people feared, and the proud symbol "SPQR," on the standards of the armies of the republic, bore the name of the Roman Senate and People to the ends of the earth.

When, however, the senate came to be made up of men whom the great generals selected; when the tribunes played into the hands of the very men they were created to oppose; when the high-priest of a people, originally religious, was chosen politically and without regard to moral or religious consideration; when aristocratic nobles left their own ranks to steal the few offices which the people controlled,–then the constitution, under which the Romans had advanced to the conquest of the world, became subverted, and the empire was a consolidated despotism.

Under the emperors there was no constitution, since they combined in their own persons all the great offices of state, and controlled the senate, the army, the tribunals of the law, the distant provinces, the city itself, and regulated taxes and imposed burdens as they pleased. The senate lost its independence, the courts their justice, the army its spirit, and the people their hopes. And yet the old forms remained; the senate met as in the days of the Gracchi, and there were consuls and praetors as before.

However much we may deplore the subversion of the Roman constitution and the absolute reign of the emperors, in which most historians see a political necessity, there was yet under these emperors, whether good or bad, the reign of law, the bequest of five hundred years' experience. The emperors reigned despotically, but under the forms of legislation. Nor did they attempt to subvert laws which did not interfere with their own political power. What is called jurisprudence they even improved, as that later imperial despot Napoleon gave a code to the nation he ruled. It is this science of jurisprudence, for which the Romans had a genius, that gives them their highest claim to be ranked among the benefactors of mankind. They created legal science. Its aim was justice,–equity in the relations between man and man. This was the pride of the Roman world, even under the rule of tyrants and madmen, and this has survived all the calamities of fifteen hundred years. The Roman laws–founded by the Republic, but symmetrically completed by the Empire–have more powerfully affected the interests of civilization than have the philosophy and arts of Greece. Roman jurisprudence was not perfectly developed until five hundred years after the Christian era, when Justinian consolidated it into the Code, the Pandects, and the Institutes. The classical jurists, like Gaius, Ulpian, and Paulus, may have laid the foundation, but the superstructure was raised under the auspices of the imperial despots.

The earliest code of Roman laws was called the Twelve Tables, framed from the report of the commissioners sent to Athens and other Greek States, to collect what was most useful in their legal systems. The laws of the Twelve Tables were the basis of all the Roman laws, civil and religious. But the edicts of the praetors, who were the great equity judges as well as the common-law magistrates, proclaimed certain changes which custom and the practice of the courts had introduced; and these, added to the leges populi, or laws proposed by the consul and passed by the centuries, the plebiscita, or laws proposed by the tribunes and passed by the tribes, and the senatus consulta, or decrees of the senate, gradually swelled the laws to a great number. Three thousand engraved plates of brass containing these various laws were deposited in the capitol.

Subtleties and fictions were in the course of litigations introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated as early as the time of Cicero. Even the opinions of eminent lawyers were adopted by the legal profession as authoritative, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Varus and Aelius Gallus, wrote learned treatises, from which extracts appear in the Digest made under the Emperor Justinian, 528 A.D. Julius Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws established by him was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners. In his time the relative value of money had changed, and was greatly diminished. The most important law of Augustus, deserving of all praise, was that which related to the manumission of slaves; but he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his Lex Julia, to counteract the custom which then prevailed, of abstaining from legal marriage and substituting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes and centuries that the next emperor abolished popular assemblies altogether, which Augustus had feared to do. The senate in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original constitution the people were the source of power, and the senate merely gave or refused its approbation to the laws proposed; but under the emperors the comitia, or popular assemblies, disappeared, and the senate passed decrees which had the force of laws, subject to the veto of the Emperor. It was not until the time of Septimus Severus and Caracalla (second century A.D.) that the legislative action of the senate ceased, and the edicts and rescripts of emperors took the place of all legislation.

The golden age of Roman jurisprudence was from the birth of Cicero to the reign of the Emperor Alexander Severus, 222 A.D.; before this period it was an occult science, confined to praetors, pontiffs, and patrician lawyers. But in the latter days of the republic law became the fashionable study of Roman youth, and eminent masters arose. The first great lawyer who left behind him important works was Q. Mucius Scaevola, who wrote a treatise in eighteen books on the civil law. "He was," says Cicero, "the most eloquent of jurists and the most learned of orators." This work, George Long thinks, had a great influence on contemporaries and on subsequent jurists, who followed it as a model. It is the oldest work from which there are any excerpts in the Digest.

Servius Sulpicius, the friend of Cicero and his fellow-student in oratory, surpassed his teachers Balbus and Gallus, and was the equal in reputation of the great Mucius Scaevola, the Pontifex Maximus, who said it was disgraceful for a patrician and a noble to be ignorant of the law with which he had to do. Cicero ascribes the great superiority of Servius as a lawyer to the study of philosophy, which disciplined and developed his mind, and enabled him to deduce his conclusions from his premises with logical precision. He left behind him one hundred and eighty treatises, and had numerous pupils, among whom A. Ofilius and Alfenus Varus, Cato, Julius Caesar, Antony, and Cicero were great lawyers. Labeo, in the time of Augustus, wrote four hundred books on jurisprudence, spending six months in the year in giving instruction to his pupils and in answering legal questions, and the other six months in the country in writing books. Like all the great Roman jurists, he was versed in literature and philosophy, and so devoted to his profession that he refused political office. His rival Capito was equally learned in all departments of the law, and left behind him as many treatises as Labeo. These two jurists were the founders of celebrated schools, like the ancient philosophers, and each had distinguished followers. Gaius, who flourished in the time of the Antonines, was a great legal authority; and the recent discovery of his Institutes has revealed the least mutilated fragment of Roman jurisprudence which exists, and one of the most valuable, which sheds great light on ancient Roman law; it was found in the library of Verona. No Roman jurist had a higher reputation than Papinian, who was praefectus praetorio under Septimius Severus (193 A.D.),–an office which made him second only to the Emperor, a sort of grand vizier, whose power extended over all departments of the State; he was beheaded by Caracalla. The great commentator Cujacius declares that he was the first of all lawyers who have been, or who are to be; that no one ever surpassed him in legal knowledge, and no one will ever equal him. Paulus was his contemporary, and held the same office as Papinian. He was the most fertile of Roman law-writers, and there is more taken from him in Justinian's Digest than from any other jurist, except Ulpian. There are two thousand and eighty-three excerpts from this writer,–one sixth of the whole Digest. No legal writer, ancient or modern, has handled so many subjects. In perspicuity he is said to be inferior to Ulpian, one of the most famous of jurists, who was his contemporary. Ulpian has also exercised a great influence on modern jurisprudence from the copious extracts of his writings in the Digest. He was the chief adviser of Alexander Severus, and like Paulus was praefectus praetorio. The number of excerpts in the Digest from him is said to be two thousand four hundred and sixty-two, and they form a third part of it. Some fragments of his writings remain. The last of the great civilians associated with Gaius, Papinian, Paulus, and Ulpian, as oracles of jurisprudence, was Modestinus, who was a pupil of Ulpian. He wrote both in Greek and Latin. There are three hundred and forty-five excerpts in the Digest from his writings, the titles of which show the extent and variety of his labors.

These eminent lawyers shed great glory on the Roman civilization. In the earliest times men sought distinction on the fields of battle, but in the latter days of the republic honor was conferred for forensic ability. The first pleaders of Rome were not jurisconsults, but aristocratic "patrons," who looked after their "clients,"–men of lower social grade, who in return for protection and assistance rendered service, sometimes political by voting, sometimes pecuniary, sometimes military. But when law became complicated, a class of men arose to interpret it. These men were held in great honor, and reached by their services the highest offices,–like Cicero and Hortensius. No remuneration was given originally for forensic pleading beyond the services which the client gave to a patron, but gradually the practice of the law became lucrative. Hortensius, as well as Cicero, gained an immense fortune; he had several villas, a gallery of paintings, a large stock of wines, parks, fish-ponds, and aviaries. Cicero had villas in all parts of Italy, a house on the Palatine with columns of Numidian marble, and a fortune of twenty millions of sesterces, equal to eight hundred thousand dollars. Most of the great statesmen of Rome in the time of Cicero were either lawyers or generals. Crassus, Pompey, P. Sextus, M. Marcellus, P. Clodius, Asinius Pollio, C. Cicero, M. Antonius, Julius Caesar, Caelius, Brutus, Catullus, were all celebrated for their forensic efforts. Candidates for the bar studied four years under a distinguished jurist, and were required to pass a rigorous examination. The judges were chosen from members of the bar, as well as in later times the senators. The great lawyers were not only learned in the law, but possessed great accomplishments. Varro was a lawyer, and was the most learned man that Rome ever produced. But under the emperors the lawyers were chiefly distinguished for their legal attainments, like Paulus and Ulpian.

During this golden age of Roman jurisprudence many commentaries were written on the Twelve Tables, the Perpetual Edict, the Laws of the People, and the Decrees of the senate, as well as a vast mass of treatises on every department of the law, most of which have perished. The Institutes of Gaius, already mentioned, are the most valuable that remain, and have thrown great light on some important branches previously involved in obscurity. Their use in explaining the Institutes of Justinian is spoken of very highly by Mackenzie, since the latter are mainly founded on the long-lost work of Gaius. The great lawyers who flourished from Trajan to Alexander Severus, like Gaius, Ulpian, Paulus, Papinian, and Modestinus, had no successors who can be compared with them, and their works became standard authorities in the courts of law.

After the death of Alexander Severus, 235 A.D., no great accession was made to Roman law until Theodosius II., 438 A.D., caused the constitutions, from Constantine to his own time, to be collected and arranged in sixteen books. This was called the Theodosian Code, which in the West was held in high esteem. It was very influential among the Germanic nations, serving as the chief basis of their early legislation; it also paved the way for the more complete codification that followed in the Justinian Code, which superseded it.

To Justinian belongs the immortal glory of reforming the jurisprudence of the Romans. "In the space of ten centuries," says Gibbon, "the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest. Books could not easily be found, and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion." The emperors had very early begun to issue ordinances, under the authority of the various offices gathered into their hands; and these, together with the answers to appeals from the lower courts made to the emperors directly, or to the sort of supreme court which they established, were called imperial constitutions and rescripts. Justinian determined to unite in one body all the rules of law, whatever may have been their origin; and in the year 528 appointed ten jurisconsults, among whom was the celebrated Tribonian, to select and arrange the imperial constitutions and rescripts, leaving out what was obsolete or useless or contradictory, and to make such alterations as the circumstances required. This was called the Code, divided into twelve books, and comprising the constitutions from Hadrian to Justinian. It was published in fourteen months after it was undertaken.

Justinian thereupon authorized Tribonian, then quaestor, vir magnificus magisteria dignitate inter agentes decoratus,--"for great titles were now given to the officers of the crown,"–to prepare, with the assistance of sixteen associates, a collection of extracts from the writings of the most eminent jurists, so as to form a body of law for the government of the empire, with power to select and omit and alter; and this immense work was done in three years, and published under the title of Digest, or Pandects. Says Lord Mackenzie:

"All the judicial learning of former times was laid under contribution by Tribonian and his colleagues. Selections from the works of thirty-nine of the ablest lawyers, scattered over two thousand separate treatises, were collected in one volume; and care was taken to inform posterity that three millions of lines were abridged and reduced in these extracts to the modest number of one hundred and fifty thousand. Among the selected jurists only three names belonged to the age of the republic,–the civilians who flourished under the first emperors are seldom appealed to; so that most of the writers whose works have contributed to the Pandects lived within a period of one hundred years. More than a third of the whole Pandects is from Ulpian, and next to him the principal writers are Paulus, Papinian, Salvius Julianus, Pomponius, Q. Cervidius Scaevola, and Gaius. Though the variety of subjects is immense, the Digest has no claims to scientific arrangement. It is a vast cyclopedia of heterogeneous law badly arranged; everything is there, but everything is not in its proper place."

Neither the Digest nor the Code was adapted to elementary instruction; it was therefore necessary to prepare a treatise on the principles of Roman law. This was intrusted to Tribonian and two professors, Theophilus and Dorotheus. It is probable that Tribonian merely superintended the work, which was founded chiefly on the Institutes of Gaius, divided into four books. It has been universally admired for its method and elegant precision. It was intended merely as an introduction to the Pandects and the Code, and was entitled the Institutes.

The Novels, or New Constitutions, of Justinian were subsequently published, being the new ordinances of the Emperor and the changes he thought proper to make, and were therefore of high authority. The Code, Pandects, Institutes, and Novels of Justinian comprise the Roman law as received in Europe, in the form given by the school of Bologna, and is called the "Corpus Juris Civilis." Savigny says:–

"It was in that form that the Roman law became the common law of Europe; and when, four centuries later, other sources came to be added to it, the Corpus Juris