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filled in conjecturally where lacunae appeared in the manuscript. In the troublesome task of verifying these italics we have depended on the reprint of the Verona MS. itself, which Böcking published in 1866. In the preface to this work, written by Göschen, the date of the MS. is referred to a time anterior to the age of Justinian : a conclusion in which Niebuhr and Koppe coincide,
Huschke's valuable suggestions for emendation of the text have, as the reader will observe, been frequently adopted by the editors of the present translation. These are to be found in the various works of that learned civilian which appeared between 1830 and 1855.
In the translation we have adhered as literally to the text as possible, preferring to explain difficult passages in notes rather than to paraphrase them.
The notes are not intended to give a complete outline of Roman Law, but merely to elucidate the author's meaning; and if we have erred on the side of brevity, we have done so because we desired to present to the reader Gaius himself, rather than Gaius hidden or overburdened with commentary. With this view we have remitted to an Appendix several of our longer notes.
Our quotations have been as much as possible confined to Text-books easy of access, to Classical authors, and to the Sources. Wherever a well-recognized authority has clearly explained the matter in hand a mere reference has been given. In quoting the Sources we have adopted the numerical mode of reference, thus Inst. 1. 2. 3. signifies Justinian's Institutes, first book, second title, third paragraph, and D. 4. 3. 2. 1. means Digest, fourth book, third title, second law, first paragraph. Those to whom the verification of passages in the Digest and Institutes is a novelty should take notice that the opening paragraph of every law in the former, and the opening paragraph of every title in the latter, bear no number, but are marked by the symbol pr., an abbreviation for principium.
Gaius himself is quoted without name: thus II. 100 denotes the 100th paragraph of the second commentary of Gaius.
CAMBRIDGE, March 1870.
THE COMMENTARIES OF
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
1. All collections of human beings 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 set of people hath established as law for its own guidance is 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 sets of people and is called Jus Gentium, the law, so to speak, which all nations employ?. The Roman people, therefore, make use of a system of law
1 Austin's Jurisprudence, Lecture 31, 32. See also Lect. 5, pp. 117, 161 (pp. 179 and 214, third edition). Maine's Ancient Law, ch. 3.
Lex and Plebiscitum.
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.
which is partly their own in particular, partly common to all mankind. What each of these sets of rules is, we shall explain in their proper places.
2. Now rules of law consist 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 *.
i 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, Vol. I. pp. 164--171.
2 The senate up to the time of the Hortensian law had possessed a veto on the decrees of the tribes, this being then abolished, the result laid down in the text was the consequence. Lex Hortensia, B.C. 286.
Senatusconsultum, Imperial Constitution and Edict.
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.
6. Ius autem edicendi habent.magistratus populi Romani. sed amplissimum ius est in edictis duorum Praetorum, urbani et peregrini: quorum in provinciis iurisdictionem Praesides earum habent; item in edictis Aedilium curulium, quorum iurisdictionem in provinciis populi Romani Quaestores habent; nam in provincias Caesaris omnino Quaestores non mittuntur, et ob id hoc edictum in his provinciis non proponitur.
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.
6. The magistrates of the Roman people have the right of issuing edicts: but the most extensive authority attaches to the edicts of the two praetors, Urbanus and Peregrinus', the counterpart of whose jurisdiction the governors of the provinces have therein: also to the edicts of the Curule Aediles, the counterpart of whose jurisdiction the Quaestors have in the provinces of the Roman people: for Quaestors are not sent at all into the provinces of Caesar, and therefore this (Aedilitian) edict is not promulged therein.
i Theophilus says that the force of or private person; and if by the laws was given to Scta. by the former, preceding such magistrate's Lex Hortensia ; Theoph. lib. 1. Tit. judgment and furnishing him with 2. 5. But see Niebuhr's remarks on principles on which to base it. See this law, Lectures on Roman History, Austin, Lect. 28, p. 200 (p. 53+, third Vol. I. pp. 322, 323.
edition). 2 Decretum = a decision given by 3 Niebuhr's Lectures on Roman the emperor in his capacity of judge. History, Vol. I. p. 403.
Edictum = a general constitution. 4 In the imperial times the pro
Rescriptum = epistula = the empe. vinces were divided into two classes, ror's solution of a legal difficulty provinciae imperatoriae or Caesaris, propounded to him by a magistrate governed by legati appointed by the
7. Responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere. quorum omnium si in unum sententiae concurrant, id quod ita sentiunt legis vicem optinet; si vero dissentiunt, iudici licet quam velit sententiam sequi : idque rescripto divi Hadriani significatur.
DE JURIS DIVISIONE. 8. Omne autem ius quo utimur vel ad personas pertinet, vel ad res, vel ad actiones. sed prius videamus de personis.
DE CONDICIONE HOMINUM. 9. Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi.
10. Rursus liberorum hominum alii ingenui sunt, alii libertini.
7. The responses of the learned in the law are the expressed views and opinions of those to whom license' has been given to expound the laws: and if the opinions of all these are in accord, that which they so hold has the force of a lex: but if they are not in accord, the judex is at liberty to follow which opinion he pleases, as is stated in a rescript of the late emperor Hadrian?
8. The whole body of law which we use relates either to persons or to things or to actions. But first let us consider about persons.
9. The primary division then of the law of persons is this, that all men are either free or slaves.
10. Of freemen again some are ingenui, some libertini.
emperor, and provinciae senatoriae, governed by proconsuls nominated by the senate. This division was done away with about the middle of the 3rd century.
1 The jurisprudentes in the most ancient times took up the profession at their pleasure, and gave their advice gratuitously. Augustus commanded that none should practise without a license, and it is to this
licensing that the words “quibus permissum est ” refer. See D. I. 2. 2. 47.
? See Austin, Lect. 28, on the clas. sification of laws.
3 Austin discusses the signification of “person,” natural or legal, in Lecture 12.
The distinction between the law of persons and of things is treated of in Lecture 40.