locis proponemus. Sed ius quidem civile ex unaquaque 2 civitate appellatur, veluti Atheniensium: nam si quis velit Solonis vel Draconis leges appellare ius civile Atheniensium, non erraverit. sic enim et ius, quo populus Romanus utitur, ius civile Romanorum appellamus: vel ius Quiritium, quo Quirites utuntur: Romani enim a Quirino Quirites appellantur. sed quotiens non addimus, cuius sit civitatis, nostrum ius significamus: sicuti cum poetam dicimus nec addimus. nomen, subauditur apud Graecos egregius Homerus, apud nos Vergilius. ius autem gentium omni humano generi commune est. nam usu exigente et humanis necessitatibus gentes humanae quaedam sibi constituerunt: bella etenim orta sunt et captivitates secutae et servitutes, quae sunt iuri naturali contrariae. iure enim naturali ab initio omnes homines liberi nascebantur. ex hoc iure gentium et omnes paene contractus introducti sunt, ut emptio venditio, locatio conductio, societas, depositum, mutuum et alii innumerabiles.

Constat autem ius nostrum aut ex scripto aut ex non 3 scripto, ut apud Graecos: τῶν νόμων οἱ μὲν ἔγγραφοι, οἱ δὲ ǎypapo. Scriptum ius est lex, plebiscita, senatus consulta, principum placita, magistratuum edicta, responsa prudentium.

the animal world is not the form (law itself), but the matter of law. But Savigny admits not only that the threefold division of law is unsuitable for purposes of law, but that the twofold division (ius gentium and naturale being identified) is far the more common, being adopted by Paulus, Marcian, Florentinus, and Licinius Rufus, as well as by Gaius, and traceable in every department of the system. Thus the conditions of marriage rest on either civilis or naturalis ratio, Bk. i. 10. pr. inf. : there are, even in Ulpian (Dig. 1. 7. 17. 1), two kinds of relationship, civilis and naturalis cognatio; rights both in rem and in personam could be acquired either civiliter or naturaliter; and Ulpian himself distinguishes possession (Dig. 10. 4. 3. 15) and obligation (Dig. 44. 7. 14) into civil and natural.

§ 2. Slavery is here said to be naturali iuri contraria, and so in Tit. 5. pr. inf. Justinian (following Ulpian, Inst. 1. 1) says that by natural law all men are born free, slavery having been introduced iure gentium. Similarly Florentinus says 'servitus est constitutio iuris gentium, qua quis dominio alieno contra naturam subiicitur' Dig. 1. 5. 4. pr., cf. Gaius i. 52; Tit. 8. 1. inf., and Aristotle, Pol. i. 2 ó yàp vóμos óμoλoyia tis ¿oriv, ἐν ᾧ τὰ κατὰ πόλεμον κρατούμενα τῶν κρατούντων εἶναί φασιν.

§ 3. The terms ius scriptum and non scriptum were, to the Roman mind, free from all modern ambiguities as to law written and unwritten

4 Lex est, quod populus Romanus senatore magistratu interrogante, veluti consule, constituebat. plebiscitum est, quod plebs plebeio magistratu interrogante, veluti tribuno, constituebat. plebs autem a populo eo differt, quo species a genere: nam appellatione populi universi cives significantur connumeratis etiam patriciis et senatoribus: plebis autem appellatione sine patriciis et senatoribus ceteri cives significantur. sed et plebiscita lege Hortensia lata non minus 5 valere quam leges coeperunt. Senatus consultum est, quod senatus iubet atque constituit. nam cum auctus est populus Romanus in eum modum, ut difficile sit in unum eum convocare legis sanciendae causa, aequum visum est senatum 6 vice populi consuli. Sed et quod principi placuit, legis habet vigorem, cum lege regia, quae de imperio eius lata est, populus

(Austin, lect. 29); they were taken quite literally, the former indicating law which in its very origin was embodied in writing; thus, as is said in this section, the praetor's edict was ius scriptum, even when based, as it not unfrequently was, on immemorial custom.

§ 4. Properly, lex is a statute made in the comitia centuriata, plebiscitum one made in the comitia tributa : for explanation of these terms see General Introd. pp. 7–11, 23-25, supr. After the lex Hortensia, however, plebiscita were frequently called leges, e. g. Dig. 9. 2. 1. 1 ('lex Aquilia plebiscitum est, quum eam Aquilius tribunus a plebe rogaverit'). Later still senatus-consulta were called leges (e. g. SC. Macedonianum in Dig. 14. 6. 9. 4), and finally the term was applied to imperial constitutions : 'quodcunque imperator statuit, legem esse constat.' The false view of the relations of populus and plebs which this section gives is noted by Mr. Poste on Gaius i. 3, cf. General Introd. pp. 7 sq., supr. The words 'et senatoribus' were apparently inserted in those of Gaius by Justinian, for the earlier writer must have remembered that plebeians elected to the senate remained plebeians still, while in the latter's time the plebs was probably conceived as a rabble, and the patriciate was a dignity higher even than that of senator, Cod. 12. 3. 3.

§ 5. For senatus-consulta see General Introd. p. 40 sq., supr.

§ 6. For the lex regia see General Introd. p. 42, supr.; cf. Cic. de Republ. ii. 13, 17, 18, and 20: Tacitus, Hist. i. 47, ii. 55, iv. 3, 6.

The general term employed to denote law made by the emperor in virtue of the lex regia is constitutiones; he is not said iubere, like the populus and plebs (Gaius i. 3), but decernere, censere, constituere, like other magistrates; and in Dig. 50. 16. 120 even prudentes are said 'iura constituere.' At first such ordinances seem to have been regarded as differing from the edicta of the old republican magistrates only in their frequency and in the binding force which they possessed for all other

ei et in eum omne suum imperium et potestatem concessit. quodcumque igitur imperator per epistulam constituit vel cognoscens decrevit vel edicto praecepit, legem esse constat : haec sunt, quae constitutiones appellantur. plane ex his

public officers; and it has been already observed that under the first Emperors the form of legislation by the comitia was retained that leges were gradually superseded by senatus-consulta; and that finally, about the end of the second century, the princeps cast off the form of expressing his orders as the orders of the senate, and boldly carried on the work of direct legislation in his own name only.

Under this general term 'constitutio' are comprised many varieties of enactments. (1) When the emperor laid before the senate a 'projet de loi,' it was usual for him to introduce it by an oratio (e. g. oratio Pertinacis, Bk. ii. 17. 7. inf.; cf. Dig. 2. 12. 1. 1 ; 2. 15. 8. pr.; 5. 3. 22); these orationes were regarded as law apart from the senatus-consulta themselves, and were cited as such, often in preference to the latter, by the jurists, and after Constantine an oratio was known as an imperial ordinance of which notice had been given to the senate. (2) Edicta, issued by the emperor in virtue of his authority as supreme magistrate. Gaius mentions an edict of Trajan in iii. 172, and one of Hadrian in i. 55. 93; one of Marcus Aurelius is referred to in Bk. ii. 6. 14 inf. When the emperor had become the sole legislative power, constitutions which, as containing a general rule of law, corresponded to the leges and plebiscita of the Republic, were called edicta or edictales constitutiones; they were addressed either to the subjects of the empire at large (ad populum, ad omnes populos), to the senate, or to an imperial officer, the praefectus urbi or praetorio, for promulgation. (3) Mandata, by which the emperor delegated his jurisdiction to other magistrates (legati, and the two praefects just mentioned), and which may be regarded as laws proper only so far as they contained general instructions as to the exercise of the delegated authority; that they are not enumerated among the kinds of constitutions by Ulpian (Dig. 1. 4. 1. pr.), from whom this passage of the Institutes is taken, or, in Gaius i. 5, is probably because the great majority of them related to matters not of private but of public law. (4) Decreta and rescripta, which up to the time of Constantine were by far the commonest kinds of constitutio, and which necessitate a brief notice of the judicial functions exercised by the princeps.

In the first place he frequently exercised the functions which had under the Republic been discharged by the praetor: Augustus 'assidue ius dixit' Sueton. Octav. 33; and these judicial functions were, according to the usual distinction, partly ordinary, partly extraordinary; he either appointed a iudex to hear and decide the case, or he retained the cognisance of it to himself, and decided it by a decretum. Secondly, through his tribunicia potestas he acquired and exercised an important appellate jurisdiction, in virtue of which he assumed to modify and even

quaedam sunt personales, quae nec ad exemplum trahuntur, quoniam non hoc princeps vult: nam quod alicui ob merita indulsit, vel si cui poenam irrogavit, vel si cui sine exemplo subvenit, personam non egreditur. aliae autem, cum gene

reverse the sentence of a judge, exactly as the republican tribuni plebis had been entitled to veto the act of other magistrates. Out of this grew the practice of referring legal points in the first instance to the emperor by petition, to be considered by him in private, and not, as had been usual with the praetor, in the public forum. These matters he sometimes decided once for all by a decretum ; but far oftener he replied by rescriptum, which was a provisional decision of the legal point at issue, leaving the facts alleged by the petitioner to be inquired into, and a final settlement made, by another magistrate or an ordinary iudex. It also became usual for magistrates, and especially the provincial praesides, to refer difficult cases of law, when in doubt, to the emperor for advice, and the replies to such consultations were also called rescripta. Rescripta were technically of two kinds : epistolae (e. g. Bk. iii. 20. 4 inf.), independent replies to questions referred to the imperial judgment, which was usually the form employed in answering a magistrate; and subscriptiones, brief opinions on cases submitted by petition, and written at the foot of the petition itself, this being the common form in answering private persons.

The precise authority of these decreta and rescripta has been much disputed. Savigny (Syst. i. pp. 125-141) contends that their sole binding. force was for the particular case for which they were issued: they might be cited as authorities for other similar cases, but the judge was under no strict obligation to apply them in the way in which he was bound to apply and follow leges proper. If this is true, then lex in Ulpian's words ('quodcunque ergo imperator vel per epistolam constituit, vel cognoscens decrevit, vel edicto praecepit legem esse constat') must have a very different sense from that which it usually bears, and the words in the text ('plane ex his [constitutionibus] quaedam sunt personales, nec ad exemplum trahuntur') are still more against Savigny; for upon his view all decreta and rescripta are personales constitutiones, and yet it is quite clear from the paragraph immediately succeeding ('nam quod alicui ob merita indulsit,' etc., in this section) that Ulpian did not conceive them as such. Even stronger arguments against him are to be found in our knowledge that the Emperor Macrinus (218 A. D.) meditated the repeal of all his predecessors' rescripta, on the ground that it was intolerable that the capricious judgments of such tyrants as Commodus and Caracalla should be regarded as law; and that Arcadius and Honorius, in A. D. 398, forbade, in future, the application of rescripta, and doubtless of decreta as well, to cases other than those which they were immediately designed to determine; the enactment was made even more stringent by Theodosius and Valentinian. This rule was reversed by Justinian, who bears strong evidence against Savigny: 'sciant hanc esse legem non

rales sunt, omnes procul dubio tenent. Praetorum quoque 7 edicta non modicam iuris optinent auctoritatem. haec etiam ius honorarium solemus appellare, quod qui honores gerunt, id est magistratus, auctoritatem huic iuri dederunt. proponebant et aediles curules edictum de quibusdam casibus, quod

...

solum illi causae, pro qua producta est, sed et omnibus similibus . . . cum et veteris iuris conditores constitutiones, quae ex imperiali decreto processerunt, legis vim obtinere aperte dilucideque definiant' Cod. 1. 14. 12.

It appears then more probable that decreta and rescripta possessed the force of general law in reference to later cases resembling those for whose decision they were originally issued, provided that the intention of their respective issuers had been that they should enounce a legal rule, and not merely determine a specific case. Despite the evidence of St. Augustine ('ut etiam idiotae intelligant, quid specialiter, quid generaliter in quocunque praecepto imperiali sit constitutum' de doctr. Christ. iii. 34), the question whether a particular rescript was intended by its author to be merely personale (e. g. Bk. ii. 19. 6 inf.), or to state a principle of law, became a frequent subject of juristic disputation. Such as were undoubtedly of the latter character were called generalia rescripta (e. g. Dig. 35. 2. 89. 1 'divi Severus et Antoninus generaliter rescripserunt Bononio Maximo,' Dig. 11. 4. I. 2 'est etiam generalis epistolą divorum Marci et Commodi'). But rescripts were also called 'generalia' when it was held that the rule which they contained might be extended to cases even remotely resembling the one originally decided; e. g. the rule ignorantia iuris non excusat is derived in its general form by Papinian from a rescript of Severus and Antoninus, Dig. 22. 6. 9. 5.

From the time of Constantine onward, and in the Eastern Empire, a particular kind of rescripts acquired the name of 'pragmatic sanctions.' These are rescripta in answer to petitions, drawn up in a peculiar and solemn form, and distinguished from other rescripts by being more highly taxed: Zeno restricted their use to petitions preferred by corporations.

In framing constitutions (to whichever of these species they belonged) the emperor was assisted by a council, called in the later period consistorium (Cod. 1. 14. 8), to which the praefecti urbi and praetorio and the most celebrated jurists belonged, and which gradually assumed the character of a general council of state; it was regularly consulted by the emperor in the exercise of his supreme appellate jurisdiction, and the chamber in which such consultations were held was as early as M. Aurelius called auditorium principis. It was mainly in this way that the jurists acquired their knowledge of the imperial constitutions, of which some of them (e.g. Papirius Justus and Paulus) even made systematic collections. § 7. For the praetor's edict, and its relation to the ius gentium, see General Introd. p. 30 sq. supr. The place of the edict of the curule aedile in private law is due to his official control of the markets, streets, etc.

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