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8 edictum iuris honorarii portio est. Responsa prudentium sunt sententiae et opiniones eorum, quibus permissum erat iura condere. nam antiquitus institutum erat, ut essent qui iura publice interpretarentur, quibus a Caesare ius respondendi datum est, qui iuris consulti appellabantur. quorum omnium sententiae et opiniones eam auctoritatem tenent, ut iudici recedere a responso eorum non liceat, ut est con

9 stitutum. Ex non scripto ius venit, quod usus comprobavit.

(General Introduction, p. 22 supr.) The first Title of Dig. 21. is 'de aedilicio edicto,' and out of his jurisdiction in such matters arose certain actions of Roman law ('actio redhibitoria and actio aestimatoria seu quanti minoris,' note on Bk. iii. 23. 3 inf. ; cf. Bk. iv. 9. 1 inf.) imposing an obligation of warranty on vendors, at first in market overt, and then in all sales. Stipulationes aediliciae, analogous to the praetorian stipulations mentioned in Bk. iii. 18. 2 inf., are spoken of in Dig. 45. 1. 5. pr.

§ 8. For the responsa prudentium see General Introd. p. 50 supr., and for the difficulties of this particular passage, p. 51. Theophilus distinguishes between sententia and opiniones thus: sententia . . . avap<pl&o\os drroKpiffif, opinio fiCTa ivQota(rpov 7rpoa<ptpoptvrI an^Kpicis.

§ 9. To thc ius non scriptum belongs (besides the mores maiorum, the national customary law of Rome) the whole of the ius gentium originally, and subsequently such parts of it as did not become scriptum by being worked into the edict or other legislation.

Mos is to be distinguished from consuetudo (in so far as the latter term has a jural meaning), for it includes ' positive morality' no less than rules strictly legal: 'morem esse communem consensum omnium simul habitantium, qui inveteratus consuetudinem facit' Servius ad Verg. Aen. vii. 601, ' morem praecedere, sequi consuetudinem . . . perseverantium consuetudinis . . . cultus moris, quod est consuetudo' Macrob. Saturn. It has been stated in the General Introduction (p. 2 supr.) that originally the Roman law existed only in the form of custom. Legislation, direct and indirect, was of later introduction, but steadily tended to absorb customary law. The Twelve Tables were in the main a statutory re-enactment of the customs then recognised as binding: others were taken up into subsequent statutes, the Edict, and the writings of the iuris auctores, until in the time of Gaius, and still more of course in the period immediately preceding Justinian, there were but few general customs possessing legal validity as such, though many statutes and quasi-statutory rules could be traced in their origin to this source. This is the case with acquisition by conventio in manum (Gaius iii. 82) and by adrogation (ib. and Bk. iii. 10. pr. inf.), and with substitutio pupillaris (Bk. ii. 16 pr. inf.). The validity of customary law is stated emphatically not only here and in Bk. iv. 17. pr., but also in the Digest and Code: 'de quibus causis scriptis legibus non utimur, id custodiri oportet, quod moribus et consuetudine inductum est' Dig. 1. 4.32, 'inveterata consuetudo pro lege non immerito custoditur' ib., 'quae sunt moris et consuctudinis, in bonae nam diuturni mores consensu utentium comprobati legem

fidei iudiciis debent venire' Dig. 21. 1. 31. 20, 'consuetudinis ususque longaevi non vilis auctoritas est' Cod. 8. 53. 2; cf. the strong expressions of Aristotle in Pol. ii. 5 6 yap vopos lax&v ovbtplav i^ii npot To KtiBttrBai, ifkiIv napa To idos, ib. iii. 11 Kvpiartpoi Ts>v Kara ypdppara vopav oi xara To fdrI tloty.

Few subjects have been so much disputed, and we may perhaps say misunderstood, by modern jurists, as the nature of customary law, its validity, and the relation (if the two terms are to be distinguished) between customary law and custom. That custom ever has any force as positive law is vehemently denied by Austin ; until it receives the impress of the judge or legislator, it is only positive morality (Jurisprudence p. 37); when it has received that impress it ceases to be custom and becomes positive law, though the name 1 customary law' for it is convenient as perhaps suggesting the ground on which it has been invested with a legal sanction (ib. p. 204). The error of this view (which Austin himself admits runs counter to all the utterances of the Roman jurists) has been shown by Sir H. Maine (Early History of Institutions, lectures 12 and 13) to have originated in Austin's habit of basing his generalisations on observations only of Western communities, in which the engrossing power of direct legislation had been kept in men's memories by traditions of the Roman Empire. As to the way in which custom, as law (i.e. before it is embodied in legislation direct or indirect), is generated, and how it acquires its binding force, there have also been great differences of opinion. The question is really as to the relation between the usage, and the consciousness that that usage is a right one, and one which (legally) ought to be followed, or as to the relation between the usage and the binding rule, or, as it is sometimes shortly though unhappily expressed, between custom and law. The earlier view was that customary law is law generated by custom, diuturnus usus. In this or that relation of life, people follow a uniform practice, and this practice, in virtue of its uniformity, is called a custom; before long it gains so strong a hold upon the mind as to be followed as law, and in fact to become law, which the Courts (the protection of security, and attainment of fixity of relations, being part of their business) will enforce. Custom is thus said to be a source of law, and law proper, in the history of nearly every nation, to be preceded by custom.

Savigny was the author (Syst. i. p. 34 sq.) of the view, now generally accepted by German jurists, that custom is not one of the sources of law, but only its token or external manifestation ; the law itself is grounded on the common legal consciousness of the nation. If the people, as a people, is conscious of a rule, or thinks that such or such a principle ought to be followed as law, this principle so asserts itself as to be applied and developed; the usage is thus evoked and occasioned by the principle which the popular mind approves and accepts, instead of being itself the source of that principle. The consciousness of the rule must precede the usage or custom, for it is upon this that the uniformity of action is based:

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10 imitantur. Et non ineleganter in duas species ius civile distributum videtur. nam origo eius ab institutis duarum civitatium, Athenarum scilicet et Lacedaemonis, fluxisse videtur: in his enim civitatibus ita agi solitum erat, ut Lacedaemonii quidem magis ea, quae pro legibus observarent, memoriae mandarent, Athenienses vero ea, quae in legibus scripta reprehendissent, custodirent.

11 Sed naturalia quidem iura, quae apud omnes gentes peraeque servantur, divina quadam providentia constituta semper firma atque immutabilia permanent: ea vero, quae ipsa sibi quaeque civitas constituit, saepe mutari solent vel tacito consensu populi vel alia postea lege lata.

if the uniformity of action is merely accidental, and not due to common consciousness of a rule, it is unreasonable and unfit to be Iaw.

The principle thus precedes and generates the usage; but the older view contains a certain truth, viz. that the principle first acquires practical validity through the usage of which it is the parent, exactly as ius scriptum acquires binding force through publication; and to this extent one can say with truth, that as a statute comes into existence through publication, so customary law comes into existence through usage or custom. Savigny also grants that in some cases the rule is actually begotten of the usage; in particular, where the substance of the rule is more or less immaterial, so Iong as the rule is there (e. g. fixing of legal periods, forms, etc). On the whole subject see Holland's Jurisprudence chap. v.

§ 10. Aa«Saiu.oVioi piv . . . ZBtoiv /naldtvov, ov Xoyoif AdrIvaiot bi . . . & p.iv xp!) npdrrttv t) ur), npoovraaaov Sta rav vouav Josephus c. Apionem ii., ftia ratv pr)rpav, ur) xprjoBai vouou iyypdtpott Plutarch, LyCUrgUS 13. Never

theless, the Attic writers often eulogise unwritten law, e.g. SoXuya vouav

£vyypa(pta m\ fda>v Ts>v dpiorav tvptTrIv Lucianus, Anach. C 14.

§ 11. It is clearly said here that a statute may in effect be abrogated by a contrary custom: cf. 'legibus istis situ atque senio obliteratis' Gell. ii. 24, Plautus, Trinum. iv. 3. 30. 33, Livy 27. 8, and the strong expression of Julian in Dig. 1. 3. 32. 1 'Quare rectissime illud receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.' The very contrary seems to be maintained in a passage already cited in part (Cod. 8. 53. 2) 'Consuetudinis ususque non vilis auctoritas est, sed non usque adeo suo valitura momento ut rationem vincat aut legem.' Perhaps the simplest way out of the difficulty is to suppose that the latter passage refers to a statute in which it is expressly provided that in no case shall it be taken to be repealed by a contrary custom of later development. Now if approved custom ' legis vicem sustinet,' such a provision is absurd, and resembles the wellknown rule privilegia ne irroganto in assuming that a sovercign is capable of being legally bound. The question was submitted to the Emperor

Omne autem ius, quo utimur, vel ad personas pertinet vel 12 ad res vel ad actiones. ac prius de personis videamus. nam parum est ius nosse, si personae, quarum causa statutum est, ignorentur. I

Summa itaque divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi. Et libertas quidem 1 est, ex qua etiam liberi vocantur, naturalis facultas eius quod cuique facere libet, nisi si quid aut vi aut iure prohibetur. Servitus autem est constitutio iuris gentium, qua quis dominio 2

Constantine, and he decides it in the passage cited from the Code: a custom can certainly abrogate a statute, but (he says) there is an exception to this general rule, if the statute itself contains a provision that no custom is to be allowed to grow up in future contrary to its tenor; a provision addressed to the subject, and forbidding the custom itself, not to the sovereign, and forbidding the repeal of the statute.

For the permanence and immutability of natural law cf. Cicero de Republ. iii. 22, Dig. 7. 5. 2. 1; 50. 17. 8. By such passages it is not meant that it is always binding on the citizen, but that what is 'natural1 once is natural for ever; for, as Ulpian says,' ius civile [iuri naturali] non per omnia servit' Dig. 1. 1. 6. pr. Similarly Gaius, speaking of the quasi usufruct mentioned in Bk. ii. 4. 2 inf., remarks that though the authority of the senate cannot overcome naturalis ratio, its commands are binding; Dig. 7. 5. 2. 1.

Tit. III. For the division of private law made in pr. see the Introduction to this Book.

§ 1. Liberty does not require that one should be free to act against the laws, 'legum quum servi sumus, ut liberi esse possimus1 Cicero pro Cluentio 53. 146. Cf. Persius, Sat. v. 89 'Liceat, iussit quodcunque voluntas, Excepto si quid Masuri [i.e. Sabinus' work on law] rubrica vetavit,' Dio Chrysostom, or. 14 oaa p.r) antipryrai mro ra>v v6p.<ov, prIdi npooTtTaKTai, 6 ntp\ Tovrtov f\a>v Ti)v t^ovoiav Tov itpaTTfiv a>s ISoi/Afrai . . . eXfvdrpot,

§ 2. In respect of capacity of right, slavery is a condition of absolute 'rightlessness.' A slave could have no rights against either his master or any one else ; and, remembering what has been said of the legal meaning of'person' in the Introduction to this Book, it follows that a slave was not a 'person' at all: he had no caput, Tit. 16. 4 inf. The Roman lawyers looked upon him as a 'res,' and applied to him, as an object of property, the same rules which they laid down as to domestic animals; so far as there is any difference of treatment it is due to the slave's possession of reason, so that (a) he is able to increase his mastei^s means by his intellectual as well as by his physical powers, and (b) by manumission




3 alieno contra naturam subicitur. Servi autem ex eo appellati sunt, quod imperatores captivos vendere iubent ас per hoc servare nec occidere solent. qui etiam mancipia dicti sunt,

4 quod ab hostibus manu capiuntur. Servi autem aut nascuntur aut fiunt. nascuntur ex ancillis nostris: fiunt aut iure gentium, id est ex captivitate, aut iure civili, cum homo liber

he is capable of becoming a 'person,' which explains the treatment of his position in this book (Tit. 5).

In relation to his master, the slave's condition is one of absolute dependence: hence the application to him of the rules and ideas of ownership, such as the capacity of being jointly owned by co-proprietors. Originally, the rights of a dominus over his slave were as absolute as over any other object of property: limitations were first imposed on them by the Emperors. Claudius gave freedom to slaves whom their masters had turned out of doors on account pf ill-h{älth»or(disease, and punished those that killed slaves who frontsome such cause had become a burden to them. A lex Petronia (a copy of which was found in Pompeii, so that its enactment must have been before 79 A.D.) forbade slaves to be matched against wild beasts in the arena: 'post legem Petroniam et senatusconsulta ad eam legem pertinentia dominis potestas ablata est, ad bestias depugnandas suo arbitrio servos tradere. Oblato tamen iudici servo, si iusta sit domini querela, sic poenae tradetur ' Dig. 48. 8. 11.2. Hadrian animadverted in strong terms on the arbitrary killing of slaves without judicial sanction; and finally Antoninus Pius enunciated the general principle that they ought to be protected against unwarranted severity, Tit. 8. 2 inf.; cf. Gaius i. 53. By his enactment a man who killed his own slave without just cause became liable to the penalty of the lex Cornelia de sicariis, Bk. i v. 18. 5 inf. These laws, however, must not be supposed to have conferred rights upon the slave, and so made him a persona ; they merely limited the general rights of ownership on grounds of expediency, and their rationale is well expressed by Gaius in the passage last referred to: 'male enim nostro iure uti non debemus; qua ratione et prodigis interdicitur bonorum suorum administratio.' For the whole subject see Mr. Poste's notes, Gaius, loc. cit.

§ 3. For mancipium in its more technical sense see note on Tit. 8. pr.

§ 4. The general rule of the ius gentium was that children followed the condition of their mother, whatever might be that of the father: thus the children of a female slave (ancilla) were born slaves themselves. Two exceptions to this which have no relation to servile descent are noticed by Mr. Poste on Gaius i. 76 sq. In one or two cases, however, anomalous rules of positive law reversed the general principle, so that the children of an ancilla were born free, those of a free-woman slaves. By the SC. Claudianum (Gaius i. 84-86) it was enacted that (1) the children of a free man by an ancilla, whom he believed to be free, should be free if males, slaves if females; but this rule was repealed by Vespasian in

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