326 HISTORY OF ROMAN LAW 



ings and the evidence and rendered the decisions (indicia extraor- 

 dinaria). The last step was to transform the surviving courts of the 

 older republican type the praetorian courts into purely govern- 

 mental courts. This change was accomplished by substituting for 

 independent citizen indices subaltern officers of the court itself, mere 

 referees. This last change brought the Roman courts into sub- 

 stantially the same form as the European continental courts of the 

 present day. To describe the change in English phraseology, not only 

 did the magistrates become judges, but jury trial was abolished. 



In proportion as law-finding was governmentalized, it was also 

 centralized. From the judgments of the independent indices appeals 

 had never been permitted. From the decision of the imperial judges 

 appeals ran to the Emperor or to such higher judges as he might 

 designate. In the imperial council, or rather in that branch of the 

 council which came to be known as the auditory, the Roman Empire 

 obtained a supreme court of appellate jurisdiction. 



In connection with these changes, all the more important offices of 

 a judicial character came to be filled by the patented jurists. During 

 the republican period and under the first emperors, the jurists might 

 occasionally act as indices and they frequently became magistrates; 

 but their control over law-finding, although practically complete, was 

 for the most part indirect. The great Roman jurists of the second and 

 third centuries of the Christian era were judges in the modern sense ; 

 and it was by their direct activity, that is, by their decisions on points 

 of law, and particularly by the decisions rendered in the imperial 

 auditory, that the law of the Empire was chiefly developed. Their 

 decisions were reported and digested in their own writings. To 

 describe the juristic literature of the early Empire as " legal theory " 

 is to misrepresent its character and its authority. It was " juris- 

 prudence " in the modern French sense, i. e. settled juridical practice. 

 If the eminent European scholars who have written the standard 

 histories of the Roman law had been familiar with the development 

 of Anglo-American law, they would readily have recognized the true 

 character of the legal literature of the Roman Empire. 



In the early Empire, as in the Republic, direct legislation played 

 only a subordinate part in the development of the law. After the 

 middle of the third century, when the production of juristic literature 

 ceased, it is commonly assumed that all legal change was made by 

 direct imperial legislation. As late as the beginning of the fourth cen- 

 tury, however, the law was still developing largely by decisions. The 

 imperial rescripts which date from the latter part of the third and the 

 early part of the fourth centuries, and which constitute so important 

 a part of Justinian's Codex, are case-law, that is, they are decisions 

 reached by the imperial supreme court; and for the most part these 

 rescripts are fully up to the level of the previous century. It was 



