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 followed the same model. In each a President (Quaesitor), who was generally a Praetor, sat with a bench of Judices who pronounced a penalty fixed by the law which had constituted the court. From the judgment of these Judices there was no appeal to the People.
§ 16.: The Creation of the Principate—Changes in the Sources of Law.
The change from the Republic to the Principate introduced no very sudden alterations in the sources of law or the methods of procedure. Both, as we shall see, were supplemented by new creations; but up to the time of Gaius it was possible to appeal to the Republican system as the one that underlay the legal life and the judicial organization of Rome Ref. 132. All that was added by the Principate was in the nature of an excrescence—one that was probably healthy in its effects, in spite of the fact that it does seem to have limited to a certain extent the creative activities of juristic thought. The birth of the Principate was not conditioned by strictly legal necessities. There seems to have been little sense that a single controlling force was needed for the guidance of the law of Rome, Italy, and the provinces. The justification for the Principate was found in the fact that a single controlling power was necessary for the command of the army and the routine administration of the provinces. But it was impossible to create such a power without bringing it into some contact with every department of the State. The guidance of legislation and judicature by an individual will was a necessary outcome of the new order of things; and it is possible that this guidance was needed. There is a stage in the history of law where liberty of interpretation may lead to perplexing uncertainty, and there is a stage in the history of any national judicial organization where certain radical methods are necessary to adapt it to new needs. The Principate gave a definiteness to law, but a definiteness that was in no sense illiberal. On the contrary, it prevented law from being narrowly Roman as effectually as it checked it from recklessly absorbing foreign elements. It adapted law to provincial needs by expanding, but not impairing, its national character. At the same time it widened the scope of jurisdiction by methods which we shall soon describe—methods which seem to have increased the efficiency at least of the civil courts at Rome, and which brought the provincial world into closer judicial relations with the capital. The changes effected both in legislation and in jurisdiction were gradual
and progressive; and, though they were from a formal point of view initiated by the will of individual monarchs, it is important to remember that, at Rome as elsewhere, monarchical power is the outcome of the concurrence of many individual wills. For the sake of convenience we are accustomed to treat the Princeps as the chief source of law and the chief influence on jurisdiction. Sometimes a purely personal power of this type may have been realized for a while, although when so realized it always had a flavour of tyranny Ref. 133. But as a rule, when we think of the Princeps as a source of law and justice, we should be thinking of his judicial advisers and assessors. The trained jurist still plays a leading part in legal progress. His control of the Princeps, and the Princeps’ control of him, must both be taken into account, although the actual extent of the respective influences—of the administrator over the jurist and of the jurist over the administrator—can never be determined for any given act or for any given moment of time.
A division of power of this type is perhaps common to all monarchies. But in the Roman Principate, which was not technically a monarchy, we find it expressed in yet another way—a way which is of more importance theoretically, although perhaps of less practical import. It is expressed in the form that the Princeps is merely the ‘extraordinary magistrate’ of a Republican Constitution. By an ‘extraordinary magistracy’ is meant a magistracy formed by an accumulation of functions, each of which is usually exercised by a particular magistrate. The chief powers with which the Princeps was invested were the Proconsulare Imperium conferred by the Senate, and the Tribunicia Potestas conferred on a recommendation of the Senate in a formal meeting of the People. The Proconsulare Imperium was technically valid only outside the limits of Italy; but, as it was absolutely necessary that the Princeps should possess Imperium within Rome, he was specially exempted from losing his Imperium by his presence within the city. The effect of this exemption probably was to create for the Princeps a kind of consular Imperium in Rome and Italy. But even this device was not sufficient to secure for him the authority which he required as a moderator of the whole State. The Proconsulare Imperium and the Tribunicia Potestas required to be supplemented by a number of separate powers conferred by special grants. These grants must originally have been made by special laws and decrees of the Senate that were passed at various times; but the practice seems soon to have been adopted of embodying them in a single enactment, which was submitted to the formal assent of the People at the time when the Proconsulare Imperium and the Tribunicia Potestas were conferred. A fragment
