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we use synonymously sometimes with right: as the rights of a conqueror, the rights of war and peace; the right of using, enjoying, suing, defending, &c. the rights of persons, the rights of things, all of which are called Jura. Under this meaning, may be included the rights belonging to particular situations in life, as the rights of magistrates and of citizens, master and servant, parent and child, husband and wife, &c.
Or, among the Romans, it might mean the administration of justice. De in jus vocando.
The other subordinate varieties of meaning of the word Jus, appear to me, all referable to those above enumerated.
The law of nature, and of nations, is collected from, 1st the practice of civilized nations, 2dly the opinions of the best writers on the subject. The writers usually cited in the British and American courts, are Albericus Gentilis, Puffendorf, Grotius with the annotations of Barbeyrac, Vattel, Burlamaqui, Heineccius, Bynkershoek and Rutherforth.
$2. Ab appellations et effectibus, page 7. Quirinus. From the Sabine word Quiris, a spear: or from Quiris, Mars, reputed father of Romulus: or from Cures, Quires a Sabine city, which furnished Rome with early settlers. Ovid Fasti II. 475.
$ 3. Divisio Juris. See Pandects or Digest 1. 6. 1. de Just. et Jure. Alterum enim expresse sancitur, et scripto promulgalur: alterum tacito populi consensu introducitur. See also ff de leg. as to written and common law. All this is conformable to the doctrine of the English and American writers. For even in this country, we adopt in every state, all our legal maxims and institutions not contained in constitutional or legislative acts, as the common law of the state. Nor can common law be entirely dispensed with even in the code of the United States, notwithstanding the very able opinions' of Mr. Madison and Judge Chase.
The Romans had six kinds of law; Lex, Plebiscitum, Senatus-con
SULTUM, CONSTITUTIONES Principis, Edicta Magistratuum, Responsa PruDENTUM.
The Lex, was a Populiscitum; or decree of the people, on the motion of a senator, in a meeting of the comitia curiata, or the comitia centuriata.
The Plebiscitum, was a decree of the Plebian order, as distinguished from the Patrician, on the motion of a tribune of the people, in the comitia tributa. Plebs was a part only of the people.
Senatus Consultum: this was originally either an order, vote or resolution, on business appertaining to the senatorial body: or some act of the senate confirming some act of the people; or latterly under the emperors, when the comitia were transferred e campo (mortis) ad Patres, these senatorial acts, were the only remains of legislation left to the senate.
Constitutiones Principes. Placita. Decreta. Imperial constitutions.
Augustus Caesar, having contrived to make not only all actual authority, but almost all offices centre in his own person, became at length the sole lawgiver. Sexto demum consulatu (a. u. c. 725.) pole?ilice securus, dedit jura, quels pace et principe uteremur III. Tacit. Ann. 28.
Sometimes the imperial constitutions were promulgated, mediante senatu; this was the general course taken by Augustus, at the advice of Maecenas; in which he was followed by Tiberius. The mode was, to suggest the law, in an oration to the senate. Hence, for some years, the senatus consulta, under the emperors, were, Jura, orationibus Principum conslituta. From the time of Augustus, the Leges, the Plebiscita, and the Senalus-Consulta, properly so called, as originating with the senate, were known no more. After Vitellius, the emperors were accustomed to appoint a Quaestor to make the suggestion in a speech to the senate. What the senate complaisantly decreed upon these suggestions, became a law. After a time, the emperor in lieu of calling upon the senate to decree, claimed the right of decreeing or enacting upon his own authority, the resolutions passed in the senate, on the suggestion contained in the imperial or quaestorial orations: and this was the last stage, the expiring embers of the senatus consulta; in whose place were substituted the edicts of the emperors.
The emperors, enacted laws either by EpistoUe or rescripts, by Decreta, by Edicta, or by Constitutions.
The Epistolce, were imperial opinions upon cases of difficulty submitted from the provinces or elsewhere.
The Decreta, were judgments given by the emperor in person, in court. Augustus and Claudius, used to sit frequently and long for this purpose.
Edicta, were laws voluntarily enacted by the emperors, sine Senatu, but they were generally such as had been sanctioned by usage, or decreed also by the senate.
Mandates, were directions to particular persons.
Interpretations of laws, were also arrogated as within their jurisdiction by the emperors. The two last are of the nature of edicts.
The Imperial Constitutions, derived their force at first from the powers conferred on Augustus in 735 A. U. C.: extended afterward to Vespasian and his successors ; and about the reign of the Antonines known as the Lex Regia; by which the will of the sovereign duly promulgated, was declared to have the force and effect_ of law. 1 Inst, tit . 2 $ 6. The distinction there taken of constitutions, is into personal and general. The personal constitutions, were properly privileges, Lex priva. These were forbidden by the twelve tables; Priv'degia ne irrogantor. The same maxim obtained during all the times of the republic. Vetant leges sacratce, vetant 12 tabuke, leges privatis hommibus irrogari. Cic. pro Dom. $ 17. These privileges or personal constitutions, were sometimes annexed to the person, and sometimes were real, as relating to some property or estate: so the right accorded to executors under the Roman law, of paying funeral expences in the first place, was considered as a real, not a personal right, being allowed ex intuitu causce, non persona.
Harris's note on the lex regia is as follows, (p. 9 of his translation.) "There has been much controversy concerning this law: vid. Cfrav. de Rom. imp. lib. sing. c. 24 and Hopp. in Inst. 1 h. t. but the following seems at least to be a probable conjecture. The senate and people conferred various honours on Augustus at different times. In the year 724 (A. U. C.) they made him tribune for life. In 727 they exempted him from the coercion of the laws. In 731 he was created perpetual consul: and in 735 a power was given to him either of amending or making whatever laws he thought proper. These and other decrees in favour of Augustus, were afterwards generally renewed at the commencement of the reign of every new emperor, as appears plainly from Tacitus, turn senalus, omnia principibus solita, Vespasiano decrevit Tacit. Hist. 11. 3. Thus in time, all the several decrees of the senate, by being frequently renewed together, became as it were, one law, and were called Lex Imperii or Regia: and they probably gained this title in imitation of the ancient lex regia, by which the Romans conferred the supreme power upon Romulus in the infancy of their state, Liv. lib. 34 c 6. Elementa Juris per Rob. Eden. p. 17."
Edicta magistratuum; seu Prcetorum; jus honorarium. Praetor was at first a word synonymous with chief or commander (Cor. Nepos in Miltiade.) The office of Praetor (partaking of the English offices of mayor and recorder) was first created A. U. C. 387. This was the Praetor urbanus, or city magistrate. In the year A. U. C. 511. A Praetor peregrinus, was appointed, after the model of the Athenian IJoUfiuqxos to decide causes, wherein aliens were concerned: though sometimes one man, held both offices either by original election, or subsequent delegation, or by substitution in case of death. (Taylor 211.) The branches of law, were afterwards so divided and subdivided certainly not without reason and foresight, that the Praetors amounted to eighteen in number. They had for the most part equitable jurisdiction. Jus prcetorium, adjuvandi vel supplendi, vel corrigendi juris civilis gratia, propter utilitatempublicam introductam, Dig. 1. 1. 7. 1.
It was also their duty, at the annual commencement of their office, to publish the forms of proceeding, and the rules of court, (if I may so say) which should operate during their Praetorship. For I do not understand this practice to extend to the legal maxims, by which their decision should be guided.
Hence, the actionis civiles, were not the same with the actionis pratorice. In the time of the emperor Hadrian, Ann. 884, a selection from Praetorian determinations was made, called the Perpetual edict, and enacted as part of the Roman law: not from its own authority as jus honorarium magistratuum, but under the sanction of the imperial constitution.
The Praetorian annual edicts or forms of proceeding, were published, on a Tabula gypso dealbata, or Album; a board plaistered with gypsum yvnao) alrihppevos (the gypsum of the Greeks and Romans was the same with our plaister of Paris, that is a sulphat of lime.)
These Leges annua}, according as their expedience was discovered were continued; and then became edicta translalitia. Occasionally also, the Curule jEdiles published edicts, which as their expedience seemed to merit, were also incorporated in the jus honorarium. See dig. de iEdilito edicto. 31. 1. 1. 38. 40. 41. 42.
Responsa prudenium. Many lawyers whose particular application and abilities, had rendered them eminent in the profession, undertook to give answers to such questions as were proposed to them. [ *409 ] But *these answers were of no weight in the time of the Republic, nor even under Augustus, who empowered the lawyers to give their opinions, by a general commission; which yet did not procure them any great authority, Dig. 1. 2. 2. 46. But their opinions grew into considerable credit in the reign of Tiberius, who prohibited any person from presuming to give an opinion in matters of law, without a special licence. Still the answers of the lawyers had not the force of the laws, for Tiberius in his licences, laid no injunction upon his judges, to regard these answers. It is therefore highly probable that the answers of the lawyers were first considered as law, under Valmtinian the third; because he confirmed the writings of Gaius, Ulpian, Paul, Popinion, and others, nominally; and forbad the judges to swerve from the opinions of these lawyers in points of law: and because many inconveniences arose from the various opinions which even these lawyers gave on the same question, the emperor ordained that the judges should be governed by a majority, and that in case of an inequality they should follow the opinion of those to whom Papinian adhered, ubi diversc e sententia proferuntur, potius numerus viucat auctorum: vel si numerus equalis sit, ejus partis precedal auctoritas in qua excellentis ingenii vir Papiniantls emineat. Cod. 1 Theod. t. 4. 1 un. de responsis prudentum. (Harris in loc.)
The Palroni were for a long time Patricians; gratis advocates, and agents. Their clients were bound to relieve them from captivity if taken, and to portion their daughters. Hence at first, the fee of a lawyer, as the fee of a counsel and a physician yet is, in England, was quiddam honorarium: afterwards, it became a profession, and fees were taken, which were regulated by the Lex Cincia.
From their vigilant watching over the cases of their clients, they were called cautores. Hence Dr. Taylor after Scaliger, fancifully derives Cavilling, Cavillari, Cavilalio, from Cavere.
Such are the various kinds of the Roman or civil law; of which the present book is a summary, containing the general principles mat pervade it. Great indeed have been the obligations that Justinian's posterity owed to that emperor, for the laborious, and invaluable digest of law compiled under his auspices. A work that no succeeding age has hitherto equalled. The Russian code drawn up under the directions of the empress Catharine, and the Tuscan code of Leopold, have merit indeed, but they are trifles compared to the great work now under consideration. Something approaching to it, has been attempted by the emperor Napoleon; and the code Napoleon as *well as the in- [ *410J ] troductory orations in defence of the leading articles contained in it, have great merit.
The authors or redacteurs of the Code civil Napoleon, where Por-tronchet, Bigot-Preameneu, and Maleville, as appears by the Discours Preliminaire to the "Projet de Code civil," presented by those gentlemen as a committee 'appointed by government on the 24th Thermidor, year 8, and published the year after. Cambaceres indeed reported a project of a code civil to the convention some years before, which, although Portalis and the others praise sufficiently, they adopt sparingly. Cambaceres was consul in the year 9.
The British, and of course the American code, is now becoming what the Roman code was, previous to the labours of Tribonian and his coadjutors: a»do( Koifitlhav nolht,», many cart loads. Cannot the same condensed view be taken of our law, as was taken by Justinian of the Roman, and by Napoleon of the French code? I suspect the generality of the profession are of opinion this cannot be done: I am not so. Half a dozen men of talents dividing the labour, under the superintending guidance of some one person to whom the pen should be ultimately committed, might finish the work in four years, according to my view of the subject: and a consummation it would indeed be, devoutly to be wished.
Til. 3. De jure personarum. Aut liberi sunt aut Send. It would require a volume to enter into the great question of slavery, which has been well discussed of late years. I would observe briefly,
That throughout the whole of the Jewish History, from the days of Nimrod downwards, there was no controversy, but that captives taken in war could be made slaves, and that their posterity were considered as