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 Senatu, 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 pri-. vileges, Lex priva. These were forbidden by the twelve tables; Privilegia ne irrogantor. The same maxim obtained during all the times of the republic. Vetant leges sacratæ, vetant 12 tabulæ, leges privatis hominibus irrogari. Cic. pro Dom. 17. These privileges or personal constitutions, were sometimes annexed to the person, and some times 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 causæ, 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 Hopp. 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 plainly from Tacitus, tum 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

law, and were called Lex Imperii or Regia: and they probably gained this title in imitation of the ancient lex regia, by which the Romans conferred the supreme power upon Romulus in the infancy of their state, Liv. lib. 34 c 6. Elementa Juris per Rob. Eden. p. 17."

Edicta magistratuum; seu Prætorum; jus honorarium. Prætor was at first a word synonimous with chief or commander (Cor. Nepos in Miltiade.) The office of Prætor (partaking of the English offices of mayor and recorder) was first created A. U. C. 387. This was the Prætor urbanus, or city magistrate. In the year A. U. C. 511. A Prætor peregrinus, was appointed, after the model of the Athenian Пorquay to decide causes, wherein aliens were concerned: though sometimes one man, held both offices either by original election, or subsequent delegation, or by substitution in case of death. (Taylor 211.) The branches of law, were afterwards so divided and subdivided certainly not without reason and foresight, that the Prætors amounted to eighteen in number. They had for the most part equitable jurisdiction. Jus prætorium, adjuvandi vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam introductam, Dig. 1. 1. 7. 1.

It was also their duty, at the annual commencement of their office, to publish the forms of proceeding, and the rules of court, (if I may so say) which should operate during their Prætorship. For I do not understand this practice to extend to the legal maxims, by which their decision should be guided.

Hence, the actiones civiles, were not the same with the actiones prætoria. In the time of the emperor Hadrian, Ann. 884, a selection. from Prætorian determinations was made, called the Perpetual edict, and enacted as part of the Roman law: not from its own authority as jus honorarium magistratuum, but under the sanction of the imperial constitution.

The Prætorian annual edicts or forms of proceeding, were published, on a Tabula gypso dealbata, or Album; a board plaistered with gypsum γύπτω αληλιμμένος (the gypsum of the Greeks and Romans was the same with our plaister of Paris, that is a sulphat of lime.)

These Leges annuæ, according as their expedience was discovered were continued; and then became edicta translatitia. Occasionally also, the Curule Ediles published edicts, which as their expedience seemed to merit, were also incorporated in the jus honorarium. See dig. de Edilitio edicto. 31. 1. 1. 38. 40. 41. 42.

Responsa prudentum. Many lawyers whose particular application and abilities, had rendered them eminent in the profession, undertook to give answers to such questions as were proposed to them. But

these answers were of no weight in the time of the Republic, nor even under Augustus, who empowered the lawyers to give their opinions, by a general commission; which yet did not procure them any great authority, Dig. 1. 2. 2. 46. But their opinions grew into considerable credit in the reign of Tiberius, who prohibited any person from presuming to give an opinion in matters of law, without a special licence. Still the answers of the lawyers had not the force of the laws, for Tiberius in his licences, laid no injunction upon his judges, to regard these answers. It is therefore highly probable that the answers of the lawyers were first considered as law, under Valentinian the third; because he confirmed the writings of Gaius, Ulpian, Paul, Papinian, and others, nominally; and forbad the judges to swerve from the opinions of these lawyers in points of law and because many inconveniences arose from the various opinions which even these lawyers gave on the same question, the emperor" ordained that the judges should be governed by a majority, and that in case of an equality they should follow the opinion of those to whom Papinian adhered, ubi diversæ sententiæ proferuntur, potius numerus vincat auctorum: vel si numerus equalis sit, ejus partis precedat auctoritas in qua excellentis ingenii vir PAPINIANUS emineat. Cod. 1 Theod. t. 4. I un. de responsis prudentum. (Harris in loc.)

The Patroni were for a long time Patricians; gratis advocates, and agents. Their clients were bound to relieve them from captivity if taken, and to portion their daughters. Hence at first, the fee of a lawyer, as the fee of a counsel and a physician yet is, in England, was quiddam honorarium: afterwards, it became a profession, and fees were taken, which were regulated by the Lex Cincia.

From their vigilant watching over the cases of their clients, they were called cautores. Hence Dr. Taylor after Scaliger, fancifully des rives Cavilling, Cavillari, Cavilatio, from Cavere.

Such are the various kinds of the Roman or civil law; of which the present book is a summary, containing the general principles that pervade it. Great indeed have been the obligations that Justinian's posterity owed to that emperor, for the laborious, and invaluable digest of law compiled under his auspices. A work that no sticceeding age has hitherto equalled. The Russian code drawn up under the directions of the empress Catharine, and the Tuscan code of Leopold, have merit indeed, but they are trifles compared to the great work now under consideration. Something approaching to it, has been attemptedTM by the emperor Napoleon; and the code Napoleon of Cambaceres, as

well as the introductory orations in defence of the leading articles contained in it, have great merit.

The British, and of course the American code, is now becoming what the Roman code was, previous to the labours of Tribonian and his coadjutors: xtxosnar oλλ, many cart loads.. Cannot the same condensed view be taken of our law, as was taken by Justinian of the Roman, and by Napoleon of the French code? I suspect the generality of the profession are of opinion this cannot be done: I am not so. Half a dozen men of talents dividing the labour, under the superintending guidance of some one person to whom the pen should be ultimately committed, might finish the work in four years, according to my view of the subject: and a consummation it would indeed be, devoutly to be wished.

Tit. 3. De jure personarum. Aut liberi sunt aut Serui. It would require a volume to enter into the great question of slavery, which has been well discussed of late years. I would observe briefly,

That throughout the whole of the Jewish History, from the days of Nimrod downwards, there was no controversy, but that captives taken in war could be made slaves, and that their posterity were considered as slaves also. All the patriarchs counted their slaves among their goods and chattels, among their oxen, their horses, their camels, &c. Slavery among the Jews took place

1. When a man sold himself through poverty, 25 Lev. 39.

2. When a father sold his children, 21 Ex. 7.

3. When creditors seized and sold their insolvent debtors, or their children, 2 Kings c. 4. v. 1.

4. A thief was sold when he could not pay his fine, 22 Ex. 3, 4. 5. Prisoners of war.

6. A Hebrew slave ransomed from a Gentile might be sold to another Hebrew by his master.

But the Hebrews were slaves to the Hebrews for six years only, or until the sabbatical jubilee. 21 Ex. 2. If the slave married however, he could not take away with him his wife and children, which belonged to the master. 21 Ex. 4. If from attachment to the family, the slave refused to be freed at the end of six years, or at the sabbatical year, then his master might bore his ears with an awl before, the magistrate, and the slave became bound for life. The Hebrew slaves were treated more as hired servants by the Jews: not so the bondmen procured from among the heathen. But even from the heathen, they were forbidden to acquire a slave by stealth. Levit,

See 21 and 25

8

The Phenicians, Carthaginians, Egyptians, Greeks, and Romans, all practised slavery without any doubt being entertained of its propriety. Vendere cum possis Captivum, occidere noli. Hor.

The situation of slaves was very bad in early times. Hector tells Andromache that she will be condemned on the fall of Troy to draw water as a slave: so Euripides introduces Hecuba as chained to the gate of Agamemnon. The Phenicians seem to have been first in the practice of kidnapping; see 14th Odyss. All nations, trading in slaves seem prone to mean and clandestine villanies; it is this spirit that has tempted the British slave traders to practise and encourage the same base method of procuring cargoes. Slaves were very ill treated among the Carthaginians. The abject state of the Helotes among the Lacedemonians has become proverbial.

Slaves were also in a bad state among the Romans. They were frequently chained to the gate of a great man's house as porters.

I copy the following summary of the circumstances of their condition from Dr. Taylor (Elem. civ. Law 429); the authorities are accurately cited.

"Slaves were held pro nullis: pro mortuis: how this is to be un"derstood consult A. Faber (and Gothofred ad Dig. 50. 17. 32. 209.)

pro Quadrupedibus: nay, were in a much worse state than any "cattle whatsoever, as the same author (Faber) has shewn. They "had no head in the state, no name, title, or register: they were not 66 capable of being injured: nor could they take by purchase or de"scent: they had no heirs, and therefore could make no will: exclu"sive of what was called their peculium, whatever they acquired was "their master's: they could not plead nor be pleaded for, but were "excluded from all civil concerns whatever: they could not claim the "indulgence of absence reipublice causa: they were not entitled to "the rights and considerations of matrimony, and therefore had no "relief in case of adultery: nor were they proper objects of cognation "or affinity, but of quasi-cognation only: they could be sold, trans"ferred or pawned, as goods or personal estate; for goods they were, "and as such they were esteemed: they might be tortured for evi"dence: punished at the discretion of their lord, or even put to death "by his authority: together with many other civil incapacities which "I have not room to enumerate."

The first law in their favour was the lex Cornelia de sicariis, by which the killing even of a slave became punishable. Dig. 48. 8. The jus vitæ et necis claimed by the master, was restrained by Claudius the successor of Caligula. See also Dig. 48. 8. 2.