used of the same persons by later authors, appear to indicate some generality of form and to postulate some subsisting authority. Such phrases cannot be considered as satisfied by the function of mere judges or referees on actual points at issue: but they are perfectly applicable to the framing of those general statements or rules of which the Digest so largely consists.

Later licensed prudentes. As to the number or personality of the licensed prudentes or the duration of the system to which they belonged, we have scarcely any direct information. The unanimity required by Hadrian, for binding effect, would naturally become more and more rare if the opinions in question had, as I conceive them to have had, a permanent authority or quasi-authority. Accordingly we find Constantine complaining of the never-ending contentions of prudentes, and, in the case of three authors long dead-Papinian, Paulus, and Ulpian-abrogating the notes of the two latter upon the former, but otherwise confirming all the writings of Paulus. The "law of citations," passed under Theodosius the second, confirms the authority in general of Papinian, Paulus, Ulpian and Modestinus, giving equal force to quotations from the whole of Gaius' writings, and also to the quotations made by the above-named authors from other writers, such as Scaevola, Sabinus, Julian and Marcellus, or rather to the works in general of such other writers as were quoted by all the five authorities first named. A repeated abrogation of the authority of the notes of Ulpian and Paulus on Papinian follows. In case of conflicting opinions a numerical majority is to prevail, Papinian being allowed a sort of casting vote in equality, and a general overriding authority being given to the sententiae of

66 Codex 1. 17. 1. 4.

67 Codex Theodosianus 1. 4. 1, 2. A.D. 321.

Paulus. I have not entered into the many difficulties which have been found in this law 9. The points to be remarked in it for my present purpose are briefly stated at the head of the following remarks on the Digest.

The prudentes in the Digest. Justinian's collection of extracts purports to be made from the works of prudentes who had enjoyed the imperial authorisation". The presence therefore of the older jurists, who wrote before the licensing system, in the Digest, is accounted for, under the law of citations, by their quotation in the writings of the five principal authorities. Sabinus, who was actually the first licensed prudens, comes in the same category; from which fact, as well as from the considerations urged above, I should conclude that the opinions of even the licensed prudentes had not a binding force, at least as precedents, until the rescript of Hadrian. Papinian, Paulus, Ulpian and Modestinus evidently were, and Gaius was not, of the licensed class.

On examining the works and the titles of the works, to which authority was given or recognised in the Digest, we see that they were by no means confined to reports of actual cases, or even opinions on hypothetical cases. In the Institutes of Gaius and the Sentences of Paulus we have works of a scientific or educational character, which deal exclusively in general rules. Of course there was, beside these, a large mass of text-books for practitioners, crammed, like ours at the present day, with minute points. For it must be remembered that, after the fixation of the edict by Hadrian, the generalisation, and incorporation into statute, of observed cases, in the old fashion, was at an end.

69 Ib. 3. A.D. 426. The text may be found in Ortolan, Hist. § 501, note 1: Rivier, Introd. Hist. § 175.

69 I am glad to find my views of it confirmed by Mr Moyle in the able Introduction to his edition of Justinian's Institutes, pp. 59, 60.

70 Codex 1, 17. 1 (Deo Auctore), 4.

The fragments, then, which have come down to us in the Digest, are often, as we should expect, particular decisions, or rather opinions, and remain in the category of cases. Many, however, are expressed in general terms and appear to be answers to general questions. These general propositions, which are quite intelligible if we consider the educational position of the prudens, are questioned or condemned by Austin. He assumes, gratuitously as it appears to me, that specific matter has been suppressed, by reference to which these general propositions ought to have been construed and qualified". He applies, in fact, the canons of a very rigid system of case-law to matter which was often widely removed from case-law in form, and which depended upon an entirely different principle for authority.

The ultimate conversion, by Justinian, of the extracts in the Digest into so many leges, as in the similar case of the Imperial constitutiones", does not affect the present enquiry.

71 Austin 37. p. 647. See also above, ch. 5, p. 248.

-72 Above p. 221.

CHAPTER X.

TEXT-BOOK LAW: EARLY ENGLISH PRUDENTES.

The Conquest our starting-point. In our present English law there is by no means the same continuity from a prehistoric period which we find in the Roman legal system. Although usages similar to those which obtained amongst the Normans were undoubtedly growing up in England before the battle of Hastings, and although the early Norman kings may have both affected and intended to administer the old law of the land, yet the Norman conquest must be taken as a new departure for the subject of our present enquiry. A new system of administration grew up, having the source of its strength in the royal power, and carried out by judges often specially promoted by and dependent on the king. National custom was gradually modified; on the one hand by the bringing up of important matters to the central authority, now regarded as the fountain of justice; on the other hand by the provincial visitation of royal judges and their intervention in the local bodies over which they presided. All this tended to produce a new uniform system based on the practice of the king's court. The change which may be effected in substantive law under the guise of mere court rules is one of the commonplaces of early legal history; nor should we be surprised to find the introduction of obviously new principles, in this particular epoch, when the theory of absolute legislative power in the

individual sovereign was for some time a reality. The basis of our present law is undoubtedly English rather than Norman, and even the change of which I am speaking is distinctly anti-feudal, but it is a change so complete and all-pervading that the law before Glanville need merely be referred to as illustrating and supplementing his information'.

4

Glanville. General rules of frequent usage in court form the subject of our first English text-book, generally attributed to Ranulph de Glanville, Justiciary of Henry the Second, and written, in Latin, not earlier than the 33rd year of that king's reign, 11853. It is a collection of rules of law and forms of practice then obtaining in the king's court, written without reference to cases or any other express authority whatever. As this book is the best instance of the early authorities for our present common law, I think it worth while to quote rather fully from the prologue, which is followed in great part by both Bracton and "Fleta." Beginning with a somewhat fulsome eulogy on Henry II., adapted from the Proem to Justinian's Institutes, which is afterwards adroitly applied by "Fleta" to his own sovereign Edward I., Glanville urges, as a proof of the king's justice, his adherence to the laws of the realm and the customs introduced for some reason and long maintained, as well as his deference to the counsel of those whom he has found to be the ablest in the

1 See, on the whole of this subject, the excellent chapters 11-13 of Stubbs' Constitutional History, from which much of these remarks is taken. 2 Glanville, Prol. Quaedam in curia generalia et frequentius usitata. The title "Tractatus de legibus et consuetudinibus Regni Angliae, &c. &c." may, as is very often the case, not be of equal date with the work.

3 Reeves' History of the English law, ch. 3, p. 223.

4 The actual cases referred to (e.g. in Lib. 8. capp. 2, 3, which give the above date) are merely instances of forms.

5 The Dialogus de Scaccario must of course be classed with this treatise, though it may have been written a little earlier. Stubbs, Hist. 1. 12, p. 491. 6 See, however, for the great position of this king, Stubbs, ib. 492.