Page images

the effect which the Stoic philosophy had upon legal method. Scaevola, the first great lawyer of the School, was also the first Roman who wrote a systematic legal treatise; and it is to the habits of thought which the profession acquired with its tenets that we should ascribe not only the systematic classification, the mapping out of the field of private law, bequeathed to ue by Gaius, but also the wealth of Roman law in legal principles, and the admirable logic of their subordination and interconnection1.

It was in some such way as this that the Romans came to recognise in the ius naturale or ius gentium an universal law binding on themselves, and to say of it, as Cicero does (de Offic. iii. 17) 'quod civile non idem continuo gentium, quod autem gentium, idem civile (i.e. civium) esse debet.' Notwithstanding, however, the fact that the ius gentium was constantly being absorbed into the system through the edict of the praetor urbanus, the ius civile still retained its peculiarities; the streams of the two did not intermingle, so that the contrast between civil and praetorian law from this time onward becomes emphasised. The result was very similar to that which ensued upon the incorporation of the plebs in the Roman state, namely, a duplication of institutions. Whether it be in the domain of the family, of property, or of obligations, the legal institutions of Rome are henceforward found to a large degree in duplicate, institutions of the ius gentium existing side by side with institutions of the ius civile. The thoroughness of this is perhaps best attested by the prominence, in all departments of the code, of the opposition between 'the natural' and ' the civil.' Thus, the conditions of marriage depend upon either civilis or naturalis ratio (Inst. i. 10 pr.): there is a natural as distinct from a civil relationship, and the history of the law of intestate succession is merely the history of the substitution of the former title for the latter by equity, as represented first by the praetor, and later by the imperial legislation; there are both natural and civil modes of acquisition in the two fields of ownership and obligation; there is natural as well as civil possession, natural as well as civil obligation.

In many cases the rules of the edict differed in form only from those of the civil law; in substance they were the same. But the vast majority of them are distinct in kind as well as in form; they have none of

telligere licet, quia illud omnibus animalibus, illud solis hominibus inter se commune sit.' But in other passages of the Institutes, as has been observed, the two are identified.

1 See Zeller's Stoics, Epicureans, and Sceptics, ch. xiv.

the peculiarities of the civil law—formality, exclusiveness, rigidity; they are liberal, equitable, fitted to endure through all time; and these are based upon the ius gentium, or rather upon the natural sense of right, the naturalis aequitas, in which the Romans recognised that law's internal and generative principle. The ius gentium and the ius honorarium or praetorium (for practical purposes the expressions are nearly synonymous) thus require to be distinguished, and their relation to one another ascertained. The distinction of ius civile and ius honorarium is based on the difference of the organs to whose activity they respectively owed their existence; that of ius civile and ius gentium on differences of nature and of extension. The two would have corresponded exactly if the whole ius gentium had been taken up into the urban edict, and the latter had contained no other law whatsoever; but as a matter of fact, though there is a very intimate relation between them, rules could and did belong to the one without also belonging to the other. Still, the most important portion of the rules enunciated in the edict can be traced to the ius gentium, which indeed was the element in it which gave it such an honourable prominence among the sources of the positive law of Rome. Hence the common opposition, to which attention has been already drawn, between the ius praetorium and the ius civile. Yet not unfrequently the former is reckoned part of the latter, or rather the edicta magistratuum are enumerated among its sources (e. g. Cic. Top. 5), though it is far more usual to find them contrasted (as in Dig. 28. 1. 23 'testamentum utroque iure valebit, tam civili quam praetorio '). The contrast was in part a material one; the civil law was 'proprium civitatis nostrae,' whereas the greater part of the ius praetorium was derived from the ius gentium, and therefore its validity extended itself beyond the limits of the Roman state into all nations which were under the rule of law. But in part, as has been remarked above, it arose from the difference of the organs through which the civil and the praetorian law respectively came into existence. A rule of the ius praetorium had no validity other than that which could be given it by the praetor by whom it was issued; it did not bind his successors or even his official colleagues; its force was far less, both in duration and in universality, than that of a lex enacted by the sovereign populus. Rights conferred in the latter way were necessarily protected by the praetor at all times, but they existed apart from and independently of him; rights conferred by the edict depended purely and simply on his good faith; thus (Dig. 7. 4. 1) 'usus fructus iure constitutus' is opposed to 'usus fructus tuitione praetoris constitutus;' and it was through this formally ephemeral character of the ius praetorium that the ius civile always preserved its distinctness and its separate exislence.

The political changes which took place in the years immediately succeeding the death of Julius Caesar are not unfrequently misunderstood. It has been usual to speak of 'the establishment of the empire,' and thence to infer that the form of constitution was revolutionised, and an open despotism suddenly substituted for the free Republic with which the Romans had now for centuries been familiar. The real fact is that formally the constitution remained republican under and even long after Augustus; the only outward change has been not inappropriately described as the addition to the old magistracies of a new one, which was held for life, and whose holder was invested with an authority far larger, because more compact, than that of all the old magistrates together. On Augustus were conferred, sometimes for life, sometimes for shorter periods, but always to be renewed, the tribunicia potestas, the proconsulare imperium, the praefectura morum, the supreme pontificate, and in fact all the highest offices of state: but in each of these capacities he acted merely as a magistrate of the Republic, whose outward forms he was studious to observe. Hence, according to the theory of the constitution, the supreme power continued to reside in the populus Romanus, and was exercised, as before, in the two comitia for elective and legislative purposes. Augustus himself voted among the tribes like any other citizen, and the theoretical sovereignty of the people remained intact until the accession of Constantine.

The legislation of the early empire accordingly proceeded at first in the same manner as it had been accustomed. Leges are still enacted in the comitia, though usually introduced by the emperor in person, and if by some other magistrate, always with his sanction; for his tribunicia potestas enabled him to veto any project which did not meet with his approval. Gaius, who belongs to the middle of the second century, speaks of this form of enactment as still potentially subsisting: 'lex est, quod populus iubet atque conslituit ' (i. 3). But towards the end of the first century legislation by the populus was becoming rare, and the last lex of which we have information is an agrarian law of Nerva (a.d. 9698) mentioned in Dig. 47. 21. 3. 1. The legislative authority of the senate endured longer. This had originated partly in its old probouleutic functions, partly in its relation to the administration. In connection with the latter, it would seem that even under the Republic its rights had practically been admitted of regulating the government of the provinces, maintaining religion, suspending or repealing laws in cases of urgent public necessity, guarding the privileges of the aeTarium and the publicani, and superintending the treatment of the Italians and provincials; upon all of which matters it was in the habit of making consulta to which it required general obedience. Its legislation was thus at first confined to public matters; the earliest senatus consultum which we know is that de Bacchanalibus (ac. 186), discovered on bronze in Calabria in 1640. But the party of the optimates had regarded the senate as the fundamental element of the state, of co-ordinate authority with the populus, and had therefore maintained that its resolutions ought in all cases to have equal validity with leges; thus Cicero enumerates senatus consulta among the sources of ius civile, and says of the senate (de Leg. iii. 3. 12) 'eius decreta rata sunto.' The claim was constantly resisted by the populares, though supported by usage; nevertheless the senatorial legislation by degrees extended itself to matters of private law, though but little of it relating to this is found in the pre-imperial period. That senatus consulta under the early empire gradually superseded attributed by Justinian after Pomponius (Dig. 1. 2. 2) to the extension of the suffrage, and the consequent unwieldiness of the comitia: 'Nam cum auctus esset populus Romanus in eum modum ut difficile esset in unum eum convocari legis sanciendae causa, aequum visum est senatum vice populi consuli' (Inst. i. 2. 5). Under Augustus, and still more under his successors, it became so usual to ascribe the force of law to senatus consuka without sending them on to the comitia, that at length they actually acquired the title of leges (e.g. Gaius i. 83-86); similarly, the name comitia was commonly given to the sittings of the senate (Tacitus, Ann. i. 15, Capitol. Marc. 10). The transference of legislative authority from populus to senate is indicated by the practice of naming senatus consulta, like leges, after their proposers; but this was not invariable: for instance, the SC. Macedonianum seems from Dig. 14. 6. 1 to have received its title from an unscrupulous usurer called Macedo, though Theophilus says that Macedo was the borrower. Most of the senatus consulta relating to private law fall between Claudius (a.d. 41) and Septimius Severus (a. D. 193-211); none occur after the last-named emperor. Like leges in this period, they always owed their introduction to the imperial will, though usually proposed by a consul; in effect, they were laws made by the emperor, though under observance of republican forms.

The emperor, however, possessed the right of making laws directly, without reference to either senate or comitia. This right had not belonged to Augustus and his immediate successors; as magistrates of the Republic they could issue edicts, which had a greater validity than those of the old annual magistrates, because they held office for life: but in theory their force died with them. Thus, Dion Cassius (lvi. 28) mentions a lex of A.d. 12, by which it was provided that resolutions arrived at by Augustus with the advice of his council should have the force of a senatus consultum. The authority which Augustus possessed in virtue of his various offices was conferred on his successors by separate leges; later, the emperor was invested with his powers uno ictu, by a lex de imperio, after the analogy of the lex curiata of the early legal period, which also gave his enactments the force of statutes (Gaius i. 5) and released him from the control of the laws (Dion Cassius liii. 18. 28). This lex de imperio is in Inst. L 2. 6 and other passages of the corpus iuris called lex regia, but it was probably never so entitled before the third century, when to avoid the comparison between rex and imperator would have been mere affectation. An important fragment of the lex de imperio of Vespasian (a.d. 69) is extant; it empowers the emperor to conclude alliances, procure senatus consulta, nominate the magistrates, extend the pomoerium, and issue enactments with the force of law. And so absolute did the imperial authority become in the next 150 years, that Ulpian could, early in the third century, speak of a complete devolution of the power of the people to the emperor: 'Cum lege, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat' (Dig. 1. 4. 1 pr.). The general term used to denote law made either directly or indirectly by the emperor is constitutiones; their various kinds are described in a note to Bk. i. 2. 6. After Septimius Severus, in whose reign, as has been observed, the last of the senatus consulta was enacted, the whole legislative authority of the state concentrated itself in the hands of the emperor. Up to the time of Constantine, however, the emperors legislated with reference to specific cases of litigation, by decreta and rescripta, far more than by direct and merely prospective enactment; and such changes as were thus made in the law were far less comprehensive than those made by leges and senatus consulta. The period in which direct imperial legislation was most active had yet to come.

The distinction between the ius civile and the ius praetorium in no way ceased with the introduction of the empire, but rather became emphasised. Even had the office of praetor been suppressed, and the edictum perpetuum ceased to appear, the development of the praetorian law, in its peculiar character as a liberal and equitable system,

« PreviousContinue »