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lex regia conferred all power on the emperor, the word majestas was applied to the authority they delegated; as majestas Augusti, Tibcrii, &c. Imperatoria majestas, was introduced by Galienus, and from his time continued. (Taylor.)
§ 1. Debellis et legibus, &?c. Barbaricee gentes. A name given by fhe Romans to all other nations but themselves and the Greeks. The five provinces of Africa here alluded to, had been possessed by the Vandals ninety-five years. Cod. 1. 27. deoff. Pr?ef. Prat. Af.
§ 2. De Compositions Codkis et Pandectarum. In the second year of his reign, A. D. 528, Justinian began his reformation of the law. The Justinian code was finished by Tribonian 529. A new edition CCodex repetitce preelections J was published by Justinian in 534. In 530, the Digest was begun. On the 16th December 533 it was finished. The digest is also called the Pandects from «■«» and Ji£o««i to include all. Hence the usual reference to the digest (ff) :' being a careless writing of the greek letter x. On the 21st Nov. 533, the Institutes appeared in their present form.
§>uasi per medium profundum mutes. The books then published on the Roman law, amounted to upwards of two thousand *x0@- xoip.1)*** •xaxxw: many camel loads.
§ 3. De tempore, auctoritatibus,&c. magistro et exquastore sacri palatii nostri. Magister Palatii or Officiorum, was an officer, some what, like the lord Chamberlain, or perhaps Master of the Household of England. The officers of the lower ages of the empire were generally called magistri, as magistri libellorum, scriniorum, officiorum. Hence the master of the rolls, masters in chancery, master of the Crown office, &c. of the English system. The great officers of therepublic, and of the early times of the empire, are described in several titles of the first book of the digest: the officers of the lower empire, in the first and last book of the code.
Exqucestore, is an undeclinable ablative: the other cases, exquaestor, exquaestoris, exconsulis, &c. do not appear to be used. The qua?stor of the Palace, was somewhat like the lord Chancellor, os imperatoris, armarium legum, £sV. That is under the emperors: for the office ,of quaestor at first, was of the same kind with our secretary of the treasury. (Taylor 38. 228.J Constantine instituted the office of Qu.estor Palatii. The Quaesitores or Inquisitors, were magistrates long known, whose jurisdiction embraced only criminal cases. (Zozimus and Procopius de bello Persico.) Antecessor, a teacher and professor of law: the Jurisperiti, were practitioners.
Post ^itadricnnmm. Five years, seem formerly to have been the term usually (indeed universally) allowed for the study of the law. For the instructions, as to the division of time allotted for studying the various parts of the civil law, viz. the Dupondii, Edictales, Papinianistx, Lytac, and Prolytse, see the constitution (omnem republica nostra, t&c.J prefixed to the digests.
§ 6. Ex auibus libris Noster Cuius. Caius lived under the emperor .Marcus Aurelius, and his institutes were read in the schools. Beside the institutes of Caius, there were the institutes of Paulus, of Ulpian, of Callistratus, Florefitinus, and Marcian. There were also prior codes, and digests: as the digests of Alfenus, Julianus, Celsus, Marcellus, Ulpian, the Pandects >>l Modestinus, &c.
Constitutional authority. I have retained Harris's expression, although there may be some ambiguity attached to it m this country, where the term implies something founded on our written constitutions, or fundamental laws, paramount to legislative acts: a distinction, that <loes not seem likely to last very long, in states where the power of the legislature like the power of the British parliament, is omnipotent. But in this passage, the word must be understood secundum subjectam matericm, as alluding to a particular species of Roman law. Inst. L. 1 Tit. 2. § 6. page 9. of the present work.
L. 1. (page S.J Definitio Justitia:. Justice, is used, not only for the disposition to render every man his due, but sometimes also for the act by which this is done: as when we do a man justice.
§ 1. Definitio Jvrisprudentice. This definition is very convenient for the alliance between church and state: an alliance that I hope will never take place in these states. I know of no things that ought to be kept more distinct, because they are so, than the affairs of this world, and those of the world to come: nor do I know of any two things that despotism has so sedulously laboured to intertwine. I would not so consume the old advice, Deorum Injuria Diis cures, as to protect gross violations of public decorum on religious subjects, or to pass over, irritating and offensive outrages against the religious opinions, or ceremonies of any persuasion. The defendant in The people against Ruggles, 8 Johnson's New York reports, 290, deserved to be punished; but the doctrine laid down in that case by the court, may be carried to a length, that would authorize any species of ecclesiastical tyranny, and prohibit any kind of religious discussion. Nor is it strengthened by citing cases from the jurisprudence of a country where there is a religion by law established; or by quoting the present passage from the civil law. It will have litde weight with those who have perused the ecclesiastical history of the times of Justiniani •and the three or four centuries immediately preceding, and subsequent. Are we at this day, to regulate the rights of conscience, and modify our system of religious toleration, by the notions of a Roman emperor of the 6th century ? or adopt the church-and-state law of Great Britain?
Tit. 2. De jure naturali. Jus, here, is taken for the general system of natural, national and civil law, in contra-distinction, to the positive laws of each species. I consider all law, of whatever kind, as deduced, either from extensive and long-adopted usage, furnishing presumptive evidence of general expedience—or from reasonings founded on the nature and circumstances of human society, and pointing out the conclusions best adapted to general expedience.
Jus, Jussum, Jura, Jussa, mean a rule of action including an obli-' gation, or duty to conform to it: therein differing from advice.
Or, it may mean an attribute or quality of actions or persons; what we use synonimously sometimes with right: as the rights of a conqueror, the rights of war and peace; the right of using, enjoying, suing, defending, &c. the rights of persons, the rights of things, all of which are called Jura. Under this meaning, may be included the rights belonging to particular situations in life, as the rights of magistrates and of citizens, master and servant, parent and child, husband and wife, &c.
Or, among the Romans, it might mean the administration of justice. De in jus vocando.
The other subordinate varieties of meaning of the word Jus, appear to me, all referable to those above enumerated.
The law of nature, and of nations, is collected from, 1st the practice of civilized nations, Sly the opinions of the best writers on the subject. The writers usually cited in the British and American courts, are Albericus Gentilis, PufFendorf, Grotius with the annotations of Barbeyrac, Vattel, Burlamaqui, Heineccius, Bynkcrshoek and Rutherforth.
§ 2. Ah appcllatione et effectibus, page 7. ^tirinus. From the Sabine word S^tiris, a spear: or from Shtiris, Mars, reputed father of Romulus: or from Cures, Squires a Sabine city, which furnished Rome with early settlers. Ovid Fasti II. 475.
§ 3. Divisio Juris. See Pandects or Digest 1. 6. 1. de Just, et Jure. Alterum enim expressc sancitur, et scripto promulgatur: altcrum tacito populi consensu intrcducitur. See also ff de leg. as to written and common law. All this is conformable to the doctrine of the English and American writers. For even in this country, we adopt in every state, all our legal maxims and institutions not contained in constitutional or legislative acts, as the common law of the state. Nor fan common law be entirely dispensed with even in the code of the tJnited States, notwithstanding the very ahle opinions of Mr. Madison and Judge Chase.
The Romans had six kinds of law; Lex, Plf.biscitum, Senatus
CONSULTUM,CONSTITUTIONES Principis, Edicta MAGISTRATUU1C,
The Lex, was a Populiscitum; or decree of the people, on the motion of a senator, in a meeting of the comma curiam, or the comitia centuriata.
The Plebiscitum, was a decree of the Plebeian order, as distinguished from the Patrician, on the motion of a tribune of the people, in the comitia tributa. Plebs was a part only of the people.
Senatus Consultum: this was originally either an order, vote or resolution, on business appertaining to the senatorial body: or some act of the senate confirming some act of the people; or latterly under the emperors, when the comitia were transferretl e campo (martisj ad Patres, these senatorial acts, were the only remains of legislation left to the senate.
Constitutiones Principis. Placita. Decreta. Imperial constitutions.
Augustus Caesar, having contrived to make not only all actual authority, but almost all offices centre in his own person, became at length the sole lawgiver. Sexto demum consulatu (a. u. c. 725.) potential securtis, dedit jura, aueis pace ct principe titer emur HI. Tacit. Ann. 28.
Sometimes the imperial constitutions were promulgated, mediante scnatu; this was the general course taken by Augustus, at the advice of Maecenas; in which he was followed by Tiberius. The mode was, to suggest the law, in an oration to the senate. Hence, for some years, the senatus consulta, under the emperors, were Jura, orationibus Principum constituta. From the time of Augustus, the Leges, the Plebiscita, and the Senatus-Consulta, properly so called, as originating with the senate, were known no more. After Vitellius, the emperors were accustomed to appoint a Qasestor to make the suggestion in a speech to the senate. What the senate complaisantly decreed upon these suggestions, became a law. After a time, the emperor in lieu of calling upon the senate to decree, claimed the right of decreeing or enacting upon his own authority, the resolutions passed in the senate, on the suggestion contained in the imperial or quaestorial orations: and this was the last stage, the expiring embers of the senatus consulta; in whose place were substituted the edicts of the emperors.
The emperors, enacted laws cither by Epistolce or rescripts, by Decreta, by Edicta, or by Constitutions.
The Epistola, were imperial opinions upon cases of difficulty submitted from the provinces or elsewhere.
The Decreta, were judgments given by the emperor in person, in court. Augustus and Claudius, used to sit frequently and long for this purpose.
Edicta, were laws voluntarily enacted by the emperors, sine- Senatuy but they were generally such as had been sanctioned by usage, or decreed also by the senate.
Mandates, were directions to particular persons.
Interpretations of laws, were also arrogated as within their jurisdiction by the emperors. The two last are of the nature of edicts.
The Imperial Constitutions, derived their force at first from the powers conferred on Augustus in 735 A. U. C.: extended afterward to Vespasian and his successors; and about the reign of the Antonines known as the Lex Regia; by which the will of the sovereign duly promulgated, was declared to have the force and effect of law. 1 Inst. tit. 2 § 6. The distinction there taken of constitutions, is into personal and general. The personal constitutions, were properly privileges, Lexpriva. These were forbidden by the twelve tables ; Privilegia ne irrogantor. The same maxim obtained during all the times of the republic. Vetant leges sacrata, vetant 12 tabula, leges privatis hominibus irrogari. Cic. pro Dom. J 17. These privileges or personal constitutions, were sometimes annexed to the person; and sometimes were real, as relating to some property or estate: so the right accorded to executors under the Roman law, of paying funeral expences in the first place, was considered as a real, not a personal right, being allowed ex intuitu causa, non persona.
Harris's note on the lex regia is as follows, (p. 9 of his translation.) •* There has been much controversy concerning this law: vid. Grav. de Rom. imp. lib. sing. c. 24 and Hipp, in Inst. 1 h. t. but the following seems at least to be a probable conjecture. The senate and people conferred various honours on Augustus at different times. In the year 724 (A. U. C.) they made him tribune for life. In 727 they exempted him from the coercion of the laws. In 781 he was created perpetual consul; and in 735 a power was given to him either of amending or making whatever laws he thought proper. These and other decrees in favour of Augustus, were afterwards generally renewed at the commencement of the reign of every new emperor, as appears plainr ly from Tacitus, turn senatus, omnia principibus solita, Vespasiano decrevit Tacit. Hist. 11. 3. Thus in time, all the several decrees of the senate, by being frequently renewed together, became as it were, one