largely helped to sustain the memory of Roman usages, mentions an ordinance of Theodoric's successor, Alaric, who died in A.D. 534, relative to the university, in which, among other professors, is mentioned the professor of Cass. Var. ix. law (nec non et juris expositor). Twenty years 21. afterwards, in A.D. 554, when Justinian had reconquered Italy, he made special provision for the mainten- Epit. Jul. Nov. ance of all the professors (of literature, medi- Tib. chap. xvii. Ortolan i. 574. cine, and law) on the same scale as had been fixed by Theodoric (quam et Theodoricus dare solitus est).

It may thus be presumed that the methods of teaching prescribed by Justinian were really put in practice, not only in the Eastern schools of Constantinople and Berytus, but also in that of Rome. The exact prescriptions may be briefly given as follows:

In the first year the students were to learn Justinian's Institutes, and in the latter part of the year the first four books of the Digest, that is, the πρτа.

In the second year they were to learn either the seven books of the Digest (from book v. to book xi.), styled in the arrangement already described as de judiciis, or else the eight books from book xii. to book xix., de rebus, according as the professor should find most convenient, but without intermixture. Besides these, four books on special subjects were to be chosen on the following principle of selection: one of the three treating of the dos (books xxiii., xxiv., and xxv.); one of the two treating of guardianship (books xxvi. and xxvii.); one of the two on wills (books xxviii. and xxix.); one of the seven on legacies and testamentary trusts (books xxx.-xxxvi).

In the third year the students were to take the books de judiciis or de rebus, according as one or the other was omitted in the previous year. Similarly certain special books were prescribed as before, and it was particularly enjoined that the students in this year should attend to discourses on the extracts from the works of Papinian as contained in the Digest. The students of this year were accordingly to retain the name on which they had been accustomed to pride themselves, of "Papinianists," and to

keep up the celebration of the festival customary on commencing the study of his works.

In the fourth year the students were to study the ten books omitted out of the fourteen special books mentioned for selection in the second year.

In the fifth year they were exhorted to study the code. Henceforward legal instruction was to be confined to the royal cities of Rome and Constantinople and to Berytus. Persons professing to teach law at Alexandria or Cæsarea, as heretofore, or anywhere else, would be fined twenty pounds in gold and be expelled from the city "in which they are not teaching the laws but offending against the laws" (in quâ non leges docent sed in leges committunt).

The carrying out of this educational scheme was confided to the care of the prefect of the city of Constantinople; to the President of Maritime Phoenicia in Berytus, as well as the bishop and professors of law in that city. "Begin, then," adds Justinian, "under the Divine guidance to pass on to these the knowledge of the law, and open out the way which we have discovered, that they may become good servants of public justice and of the State itself, and you may be honoured in all ages to come."

It remains but to record the fact that on the re-establishment of the Roman Empire in Italy by Justinian, the several legal compilations above described were publicly promulgated as law for the whole re-united empire.

PART II.

THE SUBSTANCE OF ROMAN LAW IN THE TIME OF JUSTINIAN.

CHAPTER I.

OF THE GENERAL SUBJECT-MATTERS AND MATERIAL ·

OF THE

LAWS (PERSONS, THINGS, ACTS, RIGHTS,

AND REMEDIES).

§ 1. Of Persons..

A person, for purposes of jurisprudence, is a human being. looked upon as capable of being invested with legal rights, or as liable to perform legal duties. Thus, a human being who is in a condition of absolute slavery, or who is, by way of punishment, permanently deprived of all freedom. of action and claim to legal redress, or who, as an alien or outlaw, is for the time without such freedom and such claim, would not be reckoned as a legal person. The amount, indeed, of a person's duties and claims may be,— as in the case of a slave, or (in some countries and periods) a woman, or a young child, or a lunatic, or a prisoner,extremely minute, and the ascertainment of this amount belongs to the part of the law which deals with the special relationship and situation of persons in society (see chap. iv.). But at the outset of a legal system it is necessary to determine the marks of true legal personality, in the sense above given, and what are the signs of the beginning and ending of that personality.

It may be noted here that, for some purposes, human beings are treated as things, the objects of rights, and not as persons; as where a man can bring an action for the illegal detention of, or injury done to, his servant, apprentice, ward, wife, or child. So also, as will appear below, a thing, or assemblage of things, sometimes has impressed upon it the character of legal personality and is ranked, in common with certain recognized assemblages of human beings, as an "artificial " or 'fictitious" person, in opposition to "natural" persons. This is really a device of legal logic, because, for example, it was (in Roman law) held more convenient to designate the imperial treasury (fiscus), and the innumerable things forming part of an inheritance, as a single person, and to impute to that person the rights and duties appropriate to personality, than to adopt some other hypothesis which might be still more far-fetched and circuitous and less manageable in practice.

The following were, in Justinian's time, the chief circumstances by reference to which the personality (either total or partial) of a human being was tested :

(1) Birth.

(2) Continuance in life. Age.

(3) Health.

(4) Sex.

(5) Reputation.

(6) Religion.

(7) Domicile.

To understand the relevancy of all these circumstances it must be supposed that all the rights and duties which, taken together, constitute legal personality, form an integral whole or type which is always in the jurist's eye, though, owing to accidental or temporary facts, this type may not be completely exhibited in any particular case. Certain facts intervene by which complete personality is mutilated or suspended. The terms status and caput were used (not very precisely) to express the rights and duties, the presence of which determined personality. Status was the more general term, and even included the rights and duties of a slave-such as they were in imperial times—and

D. (i. 5).

Austin's lect.

xli., xlii.

of a lunatic. Caput denoted certain of the rights and duties inherent in personality of the most ideal and complete kind, and which loss of citizenship L. 20, D. i.5), (minor vel medla capitis diminutio) or, still more, loss of freedom (maxima capitis diminutio) would impair. Even the fact of passing out of a family by "emancipation," or into a family by "arrogation," occasioned such a disruption of the previous legal situation as to bring about a minute loss of caput (minima J. (i. 16). capitis diminutio). Thus neither of the terms status and caput meant any determinate set of rights and duties, but merely loosely described classes of important rights and duties, of which the latter were more valuable, and therefore less widely diffused than the former.

(1) BIRTH.

L. 9, D. (xxxv.

2).

L. 231, D. (1.

In order to have legal personality, a child must come into the world alive, even though it die instantly, or have no capacity of surviving long. L. 3, C.(vi. 29). The child must have a true human form, though 16). this is consistent with its exhibiting in its L. 38, D. (1. structure freaks of nature, if they are not contrary to nature." For many purposes, where the child's own interest is concerned, the date of birth reckons from the time of its conception.

"

(2) CONTINUANCE IN LIFE. AGE.

16).

There was a general presumption that human life was a hundred years long, and this seems to have L. 56, D. (vii. been the basis of certain laws of prescription. 1). But the fact of death had always to be posi- L. 23, pr. C.(i. tively proved. When a parent and child died by 2).

a common accident, the parent was presumed to have died after or before the child, according as the child was at the time, under or over the age of puberty (fourteen L. 9, § 4, D. years of age). This sort of presumption was (xxxiv. 5). not extended to any similar case. In the L. 18, D. event of one dying when in the enemy's hands

(xxxiv. 5).