to decide on the ownership shall estimate the value of the temporary possession, and shall condemn the possessor not only to restore the property, but also, in case of mala fides, to pay twice the value of the temporary possession.

Theod. Cod. IV. 19. c. 1.-Quod a nobis exemplo aequabili ex iuris prisci est formulis introductum, ut, quia malae fidei possessores in fructus duplos conveniuntur, aeque malae fidei debitores simile damni periculum persequatur.

The rule of the ancient law that fraudulent possessors should pay twice the value was extended by Theodosius to fraudulent debtors.

Fr. 4. Ne res litigiosa in sacrum dedicetur.

Gaius libro VI. ad L. XII Tab. fr. 3. D. de litigiosis. (44.6.) Rem de qua controversia est prohibemur in sacrum dedicare; alioquin dupli poenam patimur.

A thing whose ownership is disputed shall not be dedicated to religious purposes, under penalty of paying double the value. Fr. 5. Quod postremum populus iussit id ius ratum esse.

Of two inconsistent laws the later in date shall be valid.

It must be remembered that the order in which these fragments have been arranged is more or less conjectural. But Cicero mentions the subject of some of the Tables; Dionysius of Halicarnassus that of others. Moreover, we know that Gaius wrote six books on the Twelve Tables, and in the Digest there are twenty fragments of his work with the particular book in which the fragment occurs specified. It is supposed, that each of the six books included two of the Twelve Tables, and this supposition has served as one of the means of ascertaining the proper order.

THE

INSTITUTES OF JUSTINIAN.

BOOK I.

TITLE I.-OF JUSTICE AND LAW.

THE object of the just man is to render unto every man his own. And, in order to attain this, two things are requisite.

Pr. (1.) Justice, or the fixed and continual will to render unto every man his own; and (2.) jurisprudence, or a knowledge of Law (1).

Pr. Law is the science of the just and the unjust; the body of rules which enable a man in everything, whether human or divine, to distinguish the lawful from the unlawful (2). We say "divine," because in Pagan Rome, the rules as to public worship,-the sacred or pontifical law,-was a branch of jurisprudence, and greatly affected the rights of citizens.

§ 3. The three fundamental maxims of Law are-1. To live morally (honeste). 2. To injure no one. 3. To render unto every man his own. The whole system of Law rests on these three moral bases, and it would be imperfect if any one of them were wanting. For there are some Laws prohibiting certain acts, apart from any injury they may occasion, simply because they violate public morality: thus, a man may not marry two wives, or within certain degrees, &c. These and such like are founded on the first maxim, honeste vivere.

But although Law rests upon this maxim, honeste vivere, the maxim is not co-extensive with morality. Vivere honeste involves many duties, as charity, temperance, &c., to which Law attaches no obligation. Such

(1) Jus, law; Justitia, the will to keep law; Jurisprudentia, knowledge of law.

(2) A special knowledge of law (scientia) implies a general knowledge of every subject (res humanæ et divina); for everything is justum or injustum. Ulpian says, law is ars aqui et boni, that a jurist is a sort of priest and true philosopher. The Romans, however, did not confound law

and morals-perfect and imperfect duties. Ulpian, therefore, must be understood to say only that law rests on morality, and that its precepts are binding more because of the moral than the legal obligation involved. Jus (jussum, order).-1. Law, or body of rules; 2. The right arising out of them, as jus itineris, right of way; 3. Judgment seat, as in jus vocare.

mere moral duties are styled imperfect, to distinguish them from perfect duties, which raise a legal obligation, and are enforced by Law. This distinction is thus expressed non omne quod licet honestum est. (D. 50. t. 17. § 144),

§ 4. Law is divided into two parts. For a man has duties to each of his fellow men, and to the State, of which he is a member. Hence, 1. Public Law, regulating the constitution of the State, and its relations with its members (1). 2. Private Law, regulating the interests of one individual in regard to those of another. The Institutes discuss only Private Law.

§ 4. Again, Law, viewed with relation to the sources from which it springs, is divided into Jus Naturale, Jus Gentium, Jus Civile.

TITLE II.-OF THE LAW OF NATURE, THE LAW OF NATIONS, AND CIVIL LAW.

Pr. The Law of Nature, or the law of living creatures, is the law taught by nature to all animals: for some laws are obeyed, not by human intelligence, but by natural instinct. In obedience to it the sexes unite, and the young are provided for. Though man and brute both obey it, man alone obeys with his reason, and under a sense of duty.

§ 1. The Law of Nations or the law of the human race, is the law established by natural reason amongst all men; and is so called because it is observed amongst all civilized nations. Its characteristic, however, consists, not in being recognised by, but in being applied to every person within a state, whether foreigner or citizen.

The commentators divide the Jus Gentium into primary and secondary. The primary Law of Nations contains those primordial principles which are admitted by all men, and which being derived from the very nature of man, were revealed to him from the very beginning, even prior to the existence of those larger communities of which he soon became a member. Thus, at no period of man's history could he have been ignorant of the right of self-defence, or of his duty to worship God and honour his parents. The secondary Law of Nations, on the contrary, contains those principles which were created by the wants of society, and were developed as their necessity and convenience became apparent. Amongst such we include the notion of property, and almost all contracts, such as sale, hiring, &c., though some, such as stipulatio, belong to the civil law (§ 2).

§ 2. The necessities of society gave birth to institutions inconsistent with the genius and provisions of the primary law and therefore

(1) Jus sacrum formed part.

:

the secondary law of nations is sometimes practically inconsistent with the primary law of nations. Thus the Roman jurists held slavery, the fruit of international war, to be part of the secondary law, although they admitted its inconsistency with the primary law of nature, i.e., the primitive state of man; for by nature all men are free.

§ 1. The Civil Law, or the law of citizens, is that which the people of a state set up for themselves (sibi constituit), and which applies to citizens alone. Amongst all civilized nations, jus privatum consists of two parts: rights are claimed under the one, both by citizens and strangers; under the other, by citizens only. This second part is the jus civile. Hence there is a civil law of the Athenians, of the Gauls, and of the Romans. When the term "Civil Law" occurs, it is to be understood as the Roman Civil Law (§ 2).

§ 3. The Roman civil law is divided into written and unwritten. The former was that promulgated or expressly declared to be law by the legislature. The latter was that introduced by custom and the tacit consent of the legislator (§ 9) (1).

§ 3. The unwritten formed a large branch of the Civil Law. On the one hand, the law of the Twelve Tables, so far from abolishing all prior customs, referred to them as its necessary complement; on the other hand, as civilization advanced, the Twelve Tables proved too narrow and technical: new customs were introduced, and doctrines and practices, originally invented by jurists, were sanctioned and admitted to possess an authority equal, if not superior, to written law. Such was the origin of the jus non scriptum: and the terms jus receptum, moribus introductum, sententiæ receptæ, so common in the books, prove the importance and influence of custom on the development of Roman law.

§ 3. The sources of written law are, 1. Leges; 2. Plebiscita; 3. Senatus-consulta; 4. Imperial Ordinances, Constitutiones; 5. The Edicts of magistrates; 6. Responsa Prudentum (2).

§ 4. Lex was, properly, a resolution adopted by the whole Roman populus (Patricians and Plebeians) in the Comitia, on the motion of a magistrate of senatorial rank, as a Consul, a Prætor, or a Dictator.

(1) 10 puts the distinction between written and unwritten law on the ground that Roman law was derived from Athens, where the law was written, and from Sparta, where it was committed to memory: a double error; for, even though the law of the Twelve Tables had been derived from unwritten law, it was written law at Rome, because its authority rested on its publication: moreover, the mere act of writing is nothing so that the laws of Sparta, pro

mulgated by Lycurgus, were written law, even although they were only committed to memory.

(2) These refer to the several modes of legislation. Except 3 and 4, the others are all spoken of in the past tense (constituebat, § 4, &c.). Senatus-consulta are spoken of in the present: for though the senate was not actually abolished, its power was merely nominal.

D