II. DE IURE NATURALI ET GENTIUM ET CIVILI. nam Ius naturale est, quod natura omnia animalia docuit. ius istud non humani generis proprium est, sed omnium animalium, quae in caelo, quae in terra, quae in mari nascuntur. hinc descendit maris atque feminae coniugatio, quam nos matrimonium appellamus, hinc liberorum procreatio et educatio: videmus etenim cetera quoque animalia istius iuris 1 peritia censeri. Ius autem civile vel gentium ita dividitur: 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 civitatis 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. et populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sunt, suis but this seems to be just one of those cases in which strict scientific accuracy may be sacrificed to considerations of convenience. At the close of this paragraph naturalia praecepta are distinguished from praecepta gentium and praecepta civilia: so in the next Title ius naturale is distinguished from both ius gentium and ius civile. This, however, is (with two exceptions, Bk. i. 2. 2, ib. 5. pr.) the only passage in the Institutes in which ius gentium is opposed to ius naturale, and it leaves no mark on the system: in all other places the two expressions are used as synonymous, and in Bk. ii. 1. 11 they are expressly identified, ... iure naturali, quod, sicut diximus, appellatur ius gentium.' The explanation of the seeming anomaly is that in Tit. 1. 4, and Tit. 2. pr. Justinian is quoting verbatim from the Institutes of Ulpian, who is the only leading jurist who makes anything of the distinction, while Tit. 2. pr. is taken from Gaius. For the history and meaning of the terms see General Introd. p. 27 sq., supr. Tit. II. The idea of ius naturale as distinct from ius gentium is derived from notions of a prehistoric epoch in which men were, in point of social development, hardly distinguishable from other animals. Savigny (Syst. i. p. 415) attempts to justify Ulpian's attribution of a jural character to natural instincts by drawing a distinction between the matter and the form in every legal relation. The matter here is the sexual relation, or the relation between parent and offspring, the form is given to it, among men, by positive law; and what Ulpian ascribes to 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: Tŵv vóμwv oi pèv čyypapoɩ, oi dè ǎypadol. 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. I. 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 ẻơτív, 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 |