INTRODUCTION TO BOOK I. THE first two Titles of this book are merely introductory, and afford no clue to the principle on which it is intended to distribute the rules of the private code. Title 1 is derived in the main from the 'Institutions' of Ulpian; it contains definitions of Justice and Jurisprudence, determines the scope of the work as a treatise on private law, and draws the distinction between ius naturale, gentium, and civile, which has been adverted to in the general Introduction (pp. 28 sq., supr.). In the second Title ius naturale is defined after Ulpian, and then ius civile and ius gentium are distinguished in the words of Gaius, though, as has been pointed out elsewhere, the latter contrast is the true and important one, and in other parts of the work ius gentium and ius naturale are identified. The sources of the positive law of Rome are then specified and each briefly described. In the opening words of the third Title we meet with the significant statement of the principle upon which the arrangement of the Institutes is to proceed. That principle, and, accordingly, that arrangement, is taken literally from Gaius, and an exposition of its meaning will be as important for the work of the jurist as for that of the prince. 'The whole law by which we are governed relates either to persons, or to things, or to actions.' The division of the Institutes into these three departments is perfectly clear; the 'ius quod ad personas pertinet' occupies Bk. i, Title 3, to the end; the 'ius quod ad res' extends from the beginning of Bk. ii. to Bk. iv, Title 5; the remainder of Bk. iv. 'pertinet ad actiones.' In this particular point the Gaian distribution is more satisfactory, as it makes the break between res and actiones at the end of the third commentary, and devotes the whole of the fourth to the latter subject; in the Institutes the formal division of Books tends somewhat to obscure the material classification of the system. This, however, presents no obstacle to our comprehension of the system itself; but we are at once met by difficulties, and by great differences of opinion among the commentators, when we attempt to discover the meaning of the division into persons, things, and actions, and to ascertain its relation to other arrangements of private law, such as those of Savigny (General Introduction, pp. 74 sq., supr.) or of Austin and his school. Our only business here is to ascertain what Gaius and Justinian intended by 'ius quod ad personas pertinet.' It seems clear that the only method by which this can be done is the analytical. Austin, it is to be regretted, set in England the example of pursuing a 'high a priori road' in connection with this matter; the principal form of which is to adopt, as the leading division of law, that into the law of persons' and 'the law of things,' though in a sense differing considerably from that in which it was understood by the Roman lawyers, and then either to find fault with the latter for not having meant the same as the writer, or to imply that they really meant the same thing, though owing to the weakness of their legal philosophy they did not adhere with any consistency to their own principle, and thereby committed most egregious faults of classification. Even if this be true, it is probably a worse fault still to take a classical expression (such as 'law of persons,' which to its authors, we may surely believe, meant something perfectly precise), give it a new signification without frankly confessing that a liberty has been taken ; and then to irresistibly suggest that the two meanings are the same, if the authors of the expression really meant anything by it at all. To an English reader the greatest difficulty, in the effort to understand the arrangement of Gaius and Justinian, arises from Austin's perversion of the expressions 'law of persons' and 'law of things' for the purposes of his own system. If he had meant something totally different from them there would have been no confusion; but the very fact that his meaning was somewhat the same, but at the same time somewhat different, has surrounded the matter with difficulties, to remove which an attempt will be made by pursuing a strictly analytical method, and by attending strictly to the language of the Roman lawyers themselves, without giving any fancy meaning to classical expressions whose actual signification can be ascertained with tolerable certainty. What did the Romans mean by 'persona'? It is clear there is some relation between persona and homo; for the leading division of the 'ius quod ad personas pertinet' (i. 3. pr.) is that all men are either free or slaves. It is equally clear that they did not regard all men as persons; it is not said all persons, but all men, are either free or slaves. Slaves, in fact, though men intellectually and morally, are 'things' in the eye of the law: it is only because their intellectual and moral nature sets them above the beasts that the law treats the two in some respects in different ways. It is true that now and then, though very rarely, the word 'persona' is applied to slaves (e. g. Bk. i. 8 pr.); but the uniform language of legal authorities is the other way', and there can be no doubt that it is only per incuriam that occasionally a writer using this or other terms (such as caput, status) implying personality includes the slave as well as free persons within his view. An essen- | tial element in the conception of 'persona' is the capacity of acquiring or possessing legal rights, and, as will be seen, a slave could have no legal rights of any kind whatsoever. In other words, a persona is a man regarded as invested with legal rights, or as capable of acquiring them, so that our attention is drawn away from the man to the rights, or to the capacity of having them in virtue of which he is a persona. The aggregate of a man's rights was called his status; and accordingly the old civilians defined a persona as 'homo cum statu suo consideratus.' But what is it in virtue of which a man has legal rights? In modern times it is usually in virtue of his submission, absolute or partial, to the sovereign of the country in which he happens to reside; a man is usually capable of acquiring all the rights which are comprised under the private law of a state within whose limits he is domiciled. This view is essentially modern, and by realizing its strangeness to the Roman mind we shall have advanced some way towards understanding the ius personarum. To a man, as free, the Roman state conceded such rights only as were based on the ius gentium; but the civis possessed far more rights, even in the field of private law, than the free peregrinus; and many of these he enjoyed not through being a civis but because he was a member of a definite Roman family. The rights or status with which a man could be invested within the Roman state were thus always referable to either freedom, citizenship, or family connection; and this way of looking at the matter became so habitual to the Roman, that of status in general he has little to say; he always connects it with one of these three 'momenta,' and classifies a man's capacity of acquiring rights (or 'status') according as he 1 'Servi nec personam habentes,' Nov. Theod. xvii. 1. 2; oi oixéтα ȧпpóσwo OVTES, Theophilus iii. 17, pr.; 'servos, qui personam legibus non habebant.' Cassiodori Variar. vi. 8. 26 * Eigenthum, Forderungsrechte, Schulden haben können, das heisst für das Privatrecht, Person sein': Sohm, Institutionen, § 20: |