The very title prefixed to Ulpian's work bears out our view. "Principles" (institutiones) are for beginners, but "Rules" (regula) aid the memory of those who have passed through their course of study, and are now engaged in the active business of their profession.

We have adopted in the main Huschke's text according to his edition of 1861; but the words of the original manuscript are distinguished from that editor's suggestions by being printed in a different type, on the same principle which we have adopted in our text of Gaius. The chief editions of Ulpian prior to Huschke's were that of Tilius, already alluded to, bearing the date 1549: those of Hugo in 1788, 1811, 1814, 1822, 1834; of Böcking, 1831, 1836, 1845, 1855, and of Vahlen, 1856. All these have been consulted, but Huschke's has been preferred except where the authority against him seemed overpowering; in all doubtful cases the present editors have yielded to the authority of so undoubted a master of the Roman Law.

CAMBRIDGE, December, 1873.

THE COMMENTARIES OF

GAIUS.

ΒΟΟΚ Ι.

DE JURE GENTIUM ET CIVILI

1. Omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur: nam quod quisque populus ipse sibi ius constituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium ipsius civitatis; quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur. Populus itaque Romanus partim suo proprio, partim communi omnium homi

is

I. All associations of men which are governed by laws and customs employ a system of law that is partly peculiar to themselves, partly shared in common by all mankind: for what any such association hath established as law for its own guidance special to itself and is called its Jus Civile, the particular law, so to speak, of that state: but that which natural reason hath established amongst all men is guarded in equal degree amongst all associations and is called Jus Gentium, the law, so to speak, which all nations employ1. The Roman people, therefore, make use of a system of law which is partly their

1Austin's Jurisprudence, Lecture

31, 32. See also Lect. 5, pp. 117,

161 (pp. 179 and 214, third edition). Maine's Ancient Law, ch. 3.

num iure utitur. Quae singula qualia sint, suis locis proponemus.

2. Constant autem iura ex legibus, plebiscitis, senatusconsultis, constitutionibus Principum, edictis eorum qui ius edicendi habent, responsis prudentium.

3. Lex est quod populus iubet atque constituit. Plebiscitum est quod plebs iubet atque constituit. Plebs autem a populo eo distat, quod populi appellatione universi cives significantur, connumeratis etiam patriciis; plebis autem appellatione sine patriciis ceteri cives significantur. Unde olim patricii dicebant plebiscitis se non teneri, quia sine auctoritate eorum facta essent. sed postea lex Hortensia lata est, qua cautum est ut plebiscita universum populum tenerent. itaque eo modo legibus exaequata sunt.

own in particular, partly common to all mankind. What these portions of their system severally are, we shall explain in their proper places.

2. Their rules of law then are composed of leges, plebiscita, senatusconsulta, constitutions of the emperors, edicts of those who have the right of issuing edicts, and responses of the learned in the law.

3. A lex is what the populus directs and establishes. A plebiscitum is what the plebs directs and establishes: the plebs differing from the populus' herein, that by the appellation of populus the collective body of the citizens, including the patricians, is denoted, whilst by the appellation of plebs is denoted the rest of the citizens, excluding the patricians. Hence in olden times the patricians used to say that they were not bound by plebiscites, because they were passed without their authority: but at a later period the Lex Hortensia was carried, whereby it was provided that plebiscites should be binding on the whole populus, and therefore in this way they were put on a level with leges.

1 For Austin's notion of the distinction between populus and plebs, see Vol. II. p. 197 (p. 531, third edition). Also read Niebuhr's Lectures on Roman History, Bohn's edition, translated by Chepmell, Vol. 1. pp. 164-171.

2 The terms of the Lex Hortensia are thus given by Pliny (Nat. Hist. XVI. 15), "Q. Hortensius dictator, quum plebs secessisset in Janiculum, legem is Esculeto tulit, ut quod ea jussisset omnes Quirites teneret." Aulus Gellius (XV. 27) also says,

4. Senatusconsultum est quod senatus iubet atque constituit, idque legis vicem optinet, quamvis fuerit quaesitum.

5. Constitutio Principis est quod Imperator decreto vel edicto vel epistula constituit. nec umquam dubitatum est quin id legis vicem optineat, cum ipse Imperator per legem imperium accipiat.

4. A senatusconsultum is what the senate directs and establishes, and it has the force of a lex, although this point was at one time disputed'.

5. A constitution of the emperor is what the emperor establishes by his decree, edict, or rescript'; nor has there ever been a doubt as to this having the force of a lex, since it is by a lex that the emperor himself receives his authority.