code was ever so complete as to embrace all the law of a people, all that in the courts was recognized and enforced as binding. No legislature was ever so active as to make its statutes cover the entire field of admitted legal obligation. What is it that gives authority to all this unwritten (unstatutory, unlegislative) law? Many say, it is the tacit consent of the legislature, the implied or presumed consent of the legislature. But a legislature is chosen for positive action : its mere silence carries no binding authority. It is the agent of the people for the laws which it actually makes, not for the laws which it suffers to be made elsewhere. If in all nations a great deal of law has sprung up and found recognition in the practice of the courts, without the intervention of a legislature, this fact alone is enough to prove that a people has other means of law-making besides the action of a legislative body. It seems to me impossible to frame a theory of this subject which shall be in harmony with all the facts, unless by recognizing in the courts, in judicial practice, a means by which the law-making power of a people is to some extent exercised. It is clear that the English people exercised such a power through the judges in the instance just given; and that the Roman people exercised such a power through the prætor in cases like those before described.

It must be observed, however, that this agency of the courts never sets itself in direct opposition to a

written, statutory law. If it sets aside or does away with such a law, it accomplishes its end by indirect means, by fictions or evasions of different kinds. In this country it has a peculiar weapon so effective as almost to supersede the use of any other. Our States, as separate governments and as a united government, have written constitutions, which, while they subsist, are binding on legislatures as much as on courts of law or on private individuals. If a legislature passes a law which conflicts with the constitution, it transcends its powers, and so accomplishes nothing. The unconstitutional law is an unlawful law, that is, it is no law at all. Nobody has a right to make it, and nobody has a right to enforce it. A court therefore is, and from the nature of our government must be, authorized to ignore, refuse to recognize, and thus practically to set aside, any legislative act which is inconsistent with the constitution. Now, if a constitution is interpreted with some latitude, and particularly if the spirit of a constitution is regarded as binding not less than the letter, almost any thing unjust or bad may be represented as unconstitutional. And we find in fact that those who for any reason dislike a law, almost always represent it, and doubtless generally believe it, to be unconstitutional. We may presume, therefore, that in cases where the English judges or the Roman prætors, under the influence of a similar feeling, would have defeated a law by fiction or eva

sion, our American courts would set it aside as unconstitutional. Yet with us a popular feeling which is permanent and decided enough to operate through the courts would be pretty sure to find an easier organ in the legislature: the obnoxious law would be repealed by legislative act. The statute law would thus be brought into conformity with the settled will and convictions of the people; and there would be no necessity for a conflict, which is always undesirable, between the law as enacted by the legislature and the law as enforced by the courts.

In the next lecture we shall take up the system of the Roman law, beginning with the doctrine of status.

LECTURE V.

LAW OF STATUS AND FAMILY RELATIONS.

THREEFOLD division of STATUS (capacity for legal rights: 1. As to libertas: all men were liberi or servi; 2. As to civitas: all freemen were cives or peregrini; 3. As to familia: all citizens were sui juris (as patresfamilias, with or without wife and children) or alieni juris (as filiifamılias, subject to a life-long patria potestas). In each case the change to a lower position was called deminutio capitis (diminution of the law-person), which was minima when it was only loss or change of family relation; media, loss of citizenship; maxima, loss of personal liberty.

I. SLAVERY was referred by Roman jurists to the jus gentium, but not to the jus naturale.-Usually it began from captivity in war; but by its own nature was hereditary, being inherited from the mother (partus sequitur ventrem). The rule pater est quem nuptiæ demonstrant was inapplicable to slaves, who could have contubernium, but no legal matrimonium.-The slave might become free by the testament of his master, or by census when the master had him enrolled on the list of citizens. But the usual form of manumission was a fictitious suit between a vindex of the slave, claiming him as free man, and the master, who allowed judgment to go against himself: a form greatly simplified as time went on.

The slave had no rights recognized by the law, though certain laws (having the nature of police regulations) restrained excessive cruelty to slaves. The slave might, however, receive a legacy or an obligatory promise, acquiring them for his master. He might even enter into contracts binding on his master, as where the master had intrusted him with some business, or had given him a péculium to manage, or had derived any actual advantage from his contract.

The manumitted slave was called libertinus, and his status was in some respects inferior to that of the ingenui or freeborn.

II. ROMAN CITIZENS, besides the rights of the jus gentium, which belonged also to aliens, had those of the jus civile (in its narrower sense). These last were divided into-1. Those of connubium, pertaining to marriage and its incidents, and 2. Those of commercium, pertaining to business relations. The people of the Latin cities long enjoyed the commercium without the connubium; and this condition (jus Latii) was afterward extended to other communities, who then received the law-name of Latini. After Caracalla (211–217) gave citizenship to the free people of the provinces, the peregrini were either persons born outside the empire, or those who had forfeited citizenship by some offence; while the Latini were chiefly freedmen manumitted without due regard to legal requirements.

III. The PATRIA POTESTAS lasted through the life of the paterfamilias, and for a long time was almost unlimited. The father was entitled to the entire services and acquisitions of the child; he could inflict on him any punishment, could sell him into a kind of slavery called mancipium, and had over him even the jus vitae et necis. This, however, did not affect the public rights and duties of the son, who could hold any office, civil or military. The patria potestas (like the husband's power over his wife in English law) had its root in the sense of family unity, the family appearing as one in the father, its single representative and executive. Under the emperors it began to be limited, both as to personal inflictions and property rights. From Augustus on, the son could acquire a peculium castrense; later, a peculium quasi castrense. By Justinian's legislation, what the son acquired in public service was wholly the son's; what he acquired with the father's capital or instruments was wholly the father's; what he acquired in any other way was the son's, but subject to a life-long usufruct of the father.

A new patria potestas might be created by adoptio. This was also called arrogatio, when applied to a person sui juris: it then required the express assent of the people, later that of the emperor. The adoption of a person alieni juris was accomplished by a fictitious suit, in which the natural father forbore to defend his right against the claim of the adoptive father. The effect on the adopted person (at least during the earlier period) was to put him in the same relations to his old family and his new one as if he had been born in the latter.

The patria potestas might be terminated by a process, called emancipatio, because it involved a sale (which in the case of a son must be thrice repeated) into the quasi-slavery of the mancipium and a release