§ 4. Plebiscitum was a resolution adopted by the plebs alone, in the comitia tributa, on the motion of a plebeian magistrate, i.e., a tribune (1). These Plebiscita had the force of law; the Patricians indeed long insisted that the Plebiscita were not generally binding without their sanction, and it was not until the Lex Hortensia (B. C. 286) that they bound all the citizens (2).

§ 5. Senatus-consulta (3) are resolutions of the senate.

$ 6. The Lex Regia was the law which conferred upon the Emperors the right to make Imperial ordinances having the force of law; and indeed clothed him with all public authority. For long this law was expressly renewed on each accession, but afterwards, the authority it conferred was held to be transmitted to the new Emperor by the fact of election.

There were three kinds of Imperial Ordinances (constitutiones).

§ 6. 1. Rescripta, instructions or answers (per epistolam) given by the Emperor to questions put to him; 2. Decreta, decisions of the Emperor as supreme judge (cognoscens decrevit) in cases brought before him by summons or appeal; 3. Edicta, rules voluntarily made by the Emperor to meet cases which might arise-Rescripta, it will be observed, determined those which had arisen.

Again, Constitutions, or Imperial Ordinances, were, according to the Imperial will, sometimes general, i.e., binding upon every citizen; sometimes personal, i.e., applicable only to particular cases and persons. Edicta were always general, Decreta and Rescripta often personal e.g., the Emperor sometimes allowed an individual to be legitimized, or adopted, or he pardoned a convict. Personal Constitutions were called privileges (privata Lex).

The Edicts of Magistrates were a sort of statement published by the magistrates on assuming office, to define the principles on which they would act.

The only Magistrates who had the right to publish edicts were (4)—

(1) The text is veluti, but tribunes were the only pleb. mag.

(2) In A. U. C. 305, a law passed by the centuries on the motion of the consuls, L. Valerius and M. Horatius, ordained ut quod tributim plebs jussisset populum teneret; and in 416 another law, moved by the dictator Publilius, declared ut plebiscita omnes quirites tenerent (Livy B. 3, c. 5; B. 8, c. 12).

(3) The Senatus-consulta under the Republic were more connected with the execution of the law than with its creation and reform. Justinian alludes to those passed after the senate had replaced the popular assemblies (comitia).

(4) The prætor had to declare the law (jus dicere). This he did either generally

in his edict (edicere, edictum) or particularly, when in a private suit he settled the question upon the determination of which the decision of the judex, to whom the cause was remitted, was to turn. In connection with the term jus dicere, we may mention addicere, addictio (ad attributive), meaning to transfer the property, by declaring the law: whilst adjudicare, adjudicatio, mean the transfer of the property by the judex, who was sometimes authorised so to do by his judgment. So, we may observe, that esse in jure means to be before the prætor, in judicio, to be before the judex, who is charged to inquire into the evidence relative to the question submitted by the prætor, and to give judgment thereon.

§ 7. Magistratus populi Romani, who were so called to distinguish them from the Magistrates within cities and from the plebeian Magistrates: this right, however, was chiefly exercised at Rome by the Prætors and the Curule Ediles, and in the provinces by the Præsides or Governors, who there filled the office of Prætors.

§ 7. These Edicts, particularly those of the Prætors, exerted great influence on Roman law. For the Prætors, as judicial officers, introduced by means of them new rules and formula (1), which regulated and confirmed general customs, and modified the rigorous technicality of the Twelve Tables, and thus kept the law on a level with the progress of civilization; so that the Twelve Tables, having their defects thus supplied, continued, down to the Lower Empire, the basis of the Roman law. The changes thus introduced by successive Prætors, when sanctioned by public opinion, were transferred year by year from one Edict to another, and finally became a part of the Roman law under the name of prætorian law or honorarium jus, to distinguish it from the jus civile or strictum jus, the law of the Twelve Tables.

§ 7. It is to be observed that those magistrates who published Edicts were entitled gerere honores, i.e., to certain external marks of dignity. The name jus honorarium therefore was given to law created by magistrates qui honores gerunt, whether Prætors or Curule Ediles.

§8. Responsa Prudentum were the opinions and decisions of such jurists as the Emperor allowed to lay down the law (condere). During the Republic, these opinions being merely private, formed part of the unwritten law. Augustus first gave certain jurists authority to interpret the law. Adrian defined the extent of their authority by declaring, that if they were unanimous (omnium), their opinion should be law, but that, if not, the judex should himself determine.

§ 11. The Civil Law was altered according to the will of the nation which established it. Herein it differed from the jus naturale (in which we include jus gentium), which, being based on the nature of man, was fixed and immutable (2).

§ 11. According to the text the Civil Law was altered by a new law (alia postea lege data), or by tacit consent of the populus, ie., by disuse (3).

§ 12. The subjects of Civil Law are Persons, Things, and Actions. Persons; for a man's rights vary with the class to which he belongs,

viz., whether he is free, a slave, a citizen, or a stranger, a paterfamilias, or a filius-familias, &c. Things; for rights vary with the subject-matter to which they apply, viz., whether they be moveables or immoveables, corporeal or incorporeal, &c. Actions; for they are the legal modes of protecting and enforcing rights.

TITLE III.-OF PERSONS.

In law, Persona or Person is any being regarded as capable of having rights and owing duties. Hence Persona includes not only physical men, but also certain abstract or metaphysical beingscreatures of the law, deemed capable of rights and duties; e.g., the State, a City, a Corporation, &c. Conversely, all men are not persons; for slaves, according to the old law, and in respect to their masters, had no rights and owed no duties. They were res-things in which persons had rights (1).

As to the derivation of the term Persona, and its original meaning, Persona is a mask used by actors on the stage. In Roman law, rights and duties were not attached to the physical thing man, but to certain qualities with which he was invested; e.g., that of being free, a citizen, a pater-familias, &c. And it was the possession of these qualities which entitled a man to play a particular part in society, and constituted the Person (2).

The great distinction between one man and another is, that he is either free or not free-men are either Freemen or Slaves.

§ 1. Freedom is the right to exercise our natural powers in any way not forbidden by law. Hence, law (jure), and physical weakness (vi prohibitum), are the only restraints on our natural freedom; any other restraint, though it may hinder the exercise, cannot destroy the right of freedom. Thus, a man locked up in a room, though he cannot exercise his freedom, still is free by right.

The principle upon which the restraint of our liberty by law rests is the necessity felt by every member of a society to alienate a portion of his freedom, in order to avoid being himself oppressed by others exercising their uncontrolled freedom.

(1) Still slaves had a personality. Thus they might be hæredes instituti, and, sometimes, might bind their masters. Moreover, a slave might be punished for committing a wrong, and, in late times, his master could neither put him to death nor illuse him (T. 8, § 2).

(2) Hence, the same man is no longer

the same person when his status or condition is changed; when, e.g., being free he becomes a slave, or, being a citizen, he becomes a stranger, &c. So the same man may be several persons, e.g., he may have the person of a citizen, a father, a tutor, &c.

§ 2. Slavery is an institution of the Jus Gentium, by which, in violation of nature, one man is subjected to the power of another; stripped of that natural liberty, which permits a man to do whatever is not forbidden, the Slave may do only what he has permission to do.

§ 4. Men may be born slaves, or may become slaves.-First, A man is born a Slave when his mother is a Slave; for the child of a Slavewoman is the Slave of the mother's master, without regard to the father; and is called verna (born in the master's house). Secondly, A a man becomes a Slave according to the Law of Nations, Jure Gentium ; by being taken captive, which was the chief cause of Slavery; or according to the civil law, Jure Civili, in cases where the loss of Freedom was the punishment inflicted on those by law deemed unworthy of it.

§ 3. The Romans accounted for the origin of Slavery according to the Law of Nations, in this way: they held that a conqueror had the right of life and death over prisoners of war (manu capti), and that, by sparing their lives (servati), he did not abandon the right, but merely postponed its exercise; and this account, it is said, corresponds with the etymology of the words servi (servati) and mancipia (manu capti).

At the same time, every species of captivity did not render a man a Slave. Thus no captives became Slaves except those taken in a war waged by one nation against another: those taken by robbers or pirates, though deprived of Freedom in fact, were still free by right.

But according to the Civil Law, there were, according to the old law, some causes of Slavery unknown in later times, and which are not found in the Institutes. Thus,

1. By the Twelve Tables, the addictio made the insolvent debtor a slave. When a debtor had judgment against him for a sum of money, he was adjudicatus; if within thirty days thereafter he did not pay, or provide security, he was summoned before the magistrate (in jus), and, after the process of manus injectio (a sort of taking the body in execution), he was delivered (addictus) to the creditor, and so became his slave. The effect of addictio was modified within 200 years after the promulgation of the Decemviral Law. The addictus was no longer a complete slave, but a labourer compelled to work for his creditor until the debt was discharged (B. 3, t. 12) (1).

(1) It was probably the lex Petilia Papiria which modified the condition of the addictus, and assimilated him to the nexus. The nexus was one who transferred himself and his property to his creditor, in pledge. This personal engagement, contracted under the form of Sale, was at first, probably, an

actual Sale, making the nexus a Slave. But after the Twelve Tables its character was changed. For, though the debtor was so far subject to the creditor that he was bound to serve him till the debt was discharged, he retained his freedom, and his status was unaltered.

2. By the Twelve Tables a man guilty of furtum manifestum (B. 4, t. 1) became a Slave. But after the Prætors had provided the party robbed with another sort of indemnity, this ceased to be a cause of Slavery.

3. Another cause of Slavery, which continued longer, was when a man, in order to avoid public burdens, neglected to have his name. inscribed on the census lists, which were prepared once in five years, and in which every pater-familias was bound to have inscribed the members of his family and his goods of every sort. This cause, of course, ceased when the Censor's power was abolished, under the earlier Emperors.

In Justinian's time, the causes which might reduce a man to slavery were four:

1. The illegal commerce of a Free-woman with a Slave. The Sc. Claudianum reduced any woman to Slavery who had such commerce against the will of the Slave's master: but this was repealed by Justinian (B. 3. t. 12, § 1).

2. Condemnation to certain punishments. A man condemned to death immediately lost his Freedom. So that, until his execution (sometimes long delayed, as when he was intended for the beasts of the circus), he was deprived of all rights, both under the Civil Law and the law of nations. Again: condemnation to work in the mines, if for life at least, made the condemned man a Slave of punishment (servus pœnæ, t. 16, § 1); but Justinian, by Nov. 22, declared that the culprit should continue free notwithstanding the punishment.

3. The ingratitude of a freedman to his patron (C. vi. t. 7. 2).

4. § 4. The fraud of one who got himself sold as a Slave, in order to share his price ad pretium participandum.

The two last Justinian retained.

§ 4. With respect to the last it may be observed that Freedom was inalienable (1). Therefore, although a man could not sell himself, this principle might be made the means of committing fraud. Thus, two Freemen agreed together that the one should sell the other as a slave to a bona fide purchaser, the price to be divided between the two accomplices. After the sale, the supposed Slave claimed and recovered his freedom, for to such claim the sale was no bar: so that the purchaser lost both his money and his Slave. This abuse was remedied probably by the Sc. Claudianum, which enacted that the fraudulent party, if above

(1) Probably this was not so under the old law. Niebuhr thinks that nexum was originally an actual Sale, made by a man of himself. A father was always entitled to

sell his children; and, at first, such Sale gave the purchaser rights differing little, if at all, from those of a master over his Slave.