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unum eum convocari legis sanciendæ causa, æquum visum est senatum vice populi consuli.

ble it together to pass laws, it seemed right that the senate should be consulted in the place of the people.

GAI. i. 4; D. i. 2. 2. 9.

Senatus-consulta had in some instances the force of a law even in the times of the republic, for we have a few preserved of a date antecedent to the Cæsars, which undoubtedly had the force of law; but they all relate to matters of social administration, such as forbidding burial within the city, or the importation of wild beasts. (See Introd. sec. 17.) But we cannot speak of senatusconsulta as a substantial part of the general legislation till the times of the emperors, when they superseded every other except the emperor's enactments. The appeal of the emperor to their authority dwindled down into a mere form. (Cod. i. 14. 12. 1, in præsenti leges condere soli imperatori concessum est.)

6. Sed et quod principi placuit, legis habet vigorem, cum lege regia, quæ de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem concessit. Quodcumque igitur imperator per epistulam constituit vel cognoscens decrevit vel edicto præcepit, legem esse constat hæ sunt, quæ constitutiones appellantur. Plane ex his quædam sunt personales, quæ 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. Aliæ autem, cum generales sunt, omnes procul dubio tenent.

6. That which seems good to the emperor has also the force of law; for the people, by the lex regia, which is passed to confer on him his power, make over to him their whole power and authority. Therefore whatever the emperor ordains by rescript, or decides in adjudging a cause, or lays down by edict, is unquestionably law; and it is these enactments of the emperor that are called constitutions. Of these, some are personal, and are not to be drawn into precedent, such not being the intention of the emperor. Supposing the emperor has granted a favour to any man on account of his merits, or inflicted some punishment, or granted some extraordinary relief, the application of these acts does not extend beyond the particular individual. But the other constitutions, being general, are undoubtedly binding on all.

GAI. i. 5; D. i. 4. 1.

The imperial constitutions, though known in the time of the previous emperors, first attained, under Hadrian, the position of being in reality the only source of law. They were of three kinds: first, epistola, letters or answers to letters addressed by the emperor to different individuals or public bodies, or mandata, orders given to particular officers, and rescripta, answers given by the emperor to magistrates who requested his assistance in the decision of doubtful points; secondly, judicial sentences, decreta, given by the emperors (Bk. ii. 15. 4); both these kinds having force only by serving as a precedent in similar cases; and thirdly, edicta, or laws binding generally on all the subjects of the emperor. (See Introd. sec. 16.)

It is here said, on the authority of Ulpian (D. i. 4. 1), that the emperor derives his authority from the lex regia. This refers to the law of the comitia curiata by which the imperium was conferred. Gaius says, 1. 5, nec unquam dubitatum est quin principis constitutio legis vicem obtineat, cum ipse imperator per legem imperium accipiat. This law was a relic of that by which the king had been invested with the royal authority, intrusted to him by the curia representing the populus; and it was considered that the emperor was in like manner invested with all the power of the Roman people transferred to him on his receiving the imperium. (See Introd. sec. 16.)

7. Prætorum quoque edicta non modicam juris optinent auctoritatem. Hæc etiam jus honorarium solemus appellare, quod qui honorem gerunt, id est magistratus, auctoritatem huic juri dederunt. Proponebant et ædiles curules edictum de quibusdam casibus, quod edictum juris honorarii portio est.

7. The edicts of the prætors are also of great authority. These edicts are called the jus honorarium, because those who bear honours in the state, that is, the magistrates, have given it their sanction. The curule ædiles also used to publish an edict relative to certain subjects, which edict also became part of the jus honorarium. GAI. i. 6; D. xxi. 1. 1.

Papinian says (D. i. 1. 7), that the jus prætorum was introduced by the prætors, adjuvandi vel supplendi vel corrigendi juris civilis gratia. New circumstances, new habits of thinking, and, in the case of the prætor peregrinus, a new scope for authority, compelled the prætor to use an equitable power, and frequently equitable fictions, to extend the narrow limits of the old civil law. (See Introd. sec. 12.) The decisions by which he did this were called edicta. At the beginning of his year of office, the prætor published a list of the rules by which he intended to be bound, and this was called the edictum perpetuum, as it ran on from year to year under successive prætors, each making such additions and changes as he thought necessary. Edictum repentinum was one made to meet a particular case. The lex Cornelia (B.C. 67) forbad a prætor to depart during his term of office from the edict he had promulgated at its commencement. In the time of Hadrian, a jurist named Salvius Julianus, who filled the office of prætor, systematised and condensed the edicts of preceding prætors into a final edictum perpetuum, which, if further annual edicts were issued at all, which is doubtful, served as their basis, and is specially known as the edictum perpetuum. (See Introd. sec. 19.)

8. Responsa prudentium sunt sententiæ et opiniones eorum, quibus permissum erat jura condere. Nam antiquitus institutum erat, ut essent qui jura publice interpretarentur, quibus a Cæsare jus respondendi datum est, qui jurisconsulti appellabantur. Quorum omnium

8. The answers of the jurisprudents are the decisions and opinions of persons who were authorised to determine the law. For anciently it was provided that there should be persons to interpret publicly the law, who were permitted by the emperor to give answers on questions of law. They

sententiæ et opiniones eam auctoritatem tenebant, ut judici recedere a responso eorum non liceret, ut est constitutum.

were called jurisconsulti; and the authority of their decisions and opinions, when they were all unanimous, was such, that the judge could not, according to the constitutions, refuse to be guided by their answers.

GAI. i. 7.

It is to the change in the position of the jurists effected by Augustus (Introd. sec. 20), that reference is made in the words. quibus a Cæsare jus respondendi datum est, and it is to the constitutions of Hadrian (sec. 20) and Theodosius (sec. 27), that the words judici recedere a responso eorum non liceret, ut est constitutum, refer.

9. Ex non scripto jus venit, quod usus comprobavit. Nam diuturni mores consensu utentium comprobati legem imitantur.

9. The unwritten law is that which

usage has established; for ancient cus toms, being sanctioned by the consent of those who adopt them, are like laws. D. i. 3. 32.

Quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? (D. i. 3. 32.) The Roman jurists did not trouble themselves to ascertain very accurately whence laws derive their binding force. The vague expression in the text mores legem imitantur, and the question asked in these words of the Digest, leave undecided the question of the relation of customs to laws. The Roman law held that customs could not only interpret law (optima legum interpres consuetudo, D. i. 3. 37), but also abrogate it. In the last section of this Title it is said that the enactment of a state may be changed tacito consensu populi, and in the Digest (i. 3. 32. 1) it is expressly stated that leges tacito consensu omnium per desuetudinem abrogantur. The Code, certainly, lays down (viii. 53) that the authority of a custom is not so great that it can conquer reason or law; but this is said of particular not general customs. A law fallen into desuetude might be abrogated by general custom, but a particular custom, of only local force, would not be suffered to prevail against the general law.

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10. Et non ineleganter in duas species jus civile distributum videtur. Nam origo ejus ab institutis duarum civitatium, Athenarum scilicet et Lacedæmonis, fluxisse videtur in his enim civitatibus ita agi solitum erat, ut Lacedæmonii quidem magis ea, quæ pro legibus observarent, memoriæ mandarent, Athenienses vero ea, quæ in legibus scripta reprehendissent, custodi

rent.

10. The civil law is not improperly divided into two kinds, for the division seems to have had its origin in the customs of the two states Athens and Lacedæmon. For in these states it used to be the case, that the Lacedæmonians rather committed to memory what they were to observe as law, while the Athenians rather kept safely what they had found written in their laws.

It is hardly necessary to say, that the distinction between written and unwritten law must always exist where laws are

written at all, and where no attempt has been made to express all law in positive terms; and that this Greek origin for the two branches of Roman law is quite imaginary.

11. Sed naturalia quidem jura, quæ apud omnes gentes peræque servantur, divina quadam providentia constituta, semper firma atque immutabilia permanent: ea vero, quæ ipsa sibi quæque civitas constituit, sæpe mutari solent vel tacito consensu populi vel alia postea lege lata.

11. The laws of nature, which all nations observe alike, being established by a divine providence, remain ever fixed and immutable. But the laws which every state has enacted, undergo frequent changes, either by the tacit consent of the people, or by a new law being subsequently passed.

GAI. i. 1; D. i. 3. 32. 1.

Justinian, abandoning the threefold division of Ulpian, which he had adopted in the earlier paragraphs of this chapter, now follows the twofold division of Gaius (i. 1), into jus naturale and jus civile.

12. Omne autem jus, quo utimur, vel ad personas pertinet vel ad res vel ad actiones. Ac prius de personis videamus. Nam parum est jus nosse, si personæ, quarum causa statutum est, ignorentur.

12. All our law relates either to persons, or to things, or to actions. Let us first speak of persons; as it is of little purpose to know the law, if we do not know the persons for whom the law was made.

In Gaius, and in the Institutes of Justinian, obligations are treated of under the head of things. The division of law which compels them to be so treated is obviously inaccurate, for actions themselves are just as much things as obligations; and if obligations were classed under the head of things because they are a mode of obtaining things, there is the objection to the classification, that the obtaining a thing is only an ultimate and accidental result, not a necessary part, of an obligation.

TIT. III. DE JURE PERSONARUM.

Summa itaque divisio de jure personarum hæc est, quod omnes homines aut liberi sunt aut servi.

The chief division in the rights of persons is this: men are all either free or slaves.

GAI. i. 8.

Every being capable of having and being subject to rights was called in Roman law a persona. (See Introd. sec. 37.) Thus not only was the individual, when looked at as having this capacity, a persona, but also corporations and public bodies. Slaves were person in the sense that they were not merely things, and they could go through some legal forms, and were entitled in later times to a certain amount of legal protection; but, although they are thus treated of under the law of persons, it is chiefly their want of legal capacities that attracts attention. The word persona has also another sense. It was used not only for the being who! had the capacity of enjoying rights and fulfilling duties, but also for the different characters or parts in which this capacity showed itself; or, to borrow the metaphor suggested by the

etymology of the word, for the different masks or faces which the actor wore in playing his part in the drama of civic and social life. Thus, for instance, the same man might have the persona patris, or tutoris, or mariti; that is, might be regarded in his character of father, tutor, or husband.

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Status is the position which a persona occupies in the eye of the law (D. i. 5.) In the possible position of a persona the Roman law recognised three main heads (capita), viz. : libertas, the capacity to have and be subject to the rights and obligations of a freeman; civitas, the capacity to have and be subject to the rights and obligations of a Roman citizen; and familia, the capacity to have and be subject to the rights and obligations of a person belonging to a Roman family. These three heads' were again, by an expression borrowed from that applied to citizens when appearing as heads' in the censor's list, summed up in the singular caput;' the 'head' of a persona thus meaning the sum of the person's legal capacities. The status of a free Roman citizen was that of having this caput. The status of a slave was that of having no caput. Since freeborn members of a Roman family acquired, as such members, the position of cives, modern jurists sometimes use status in the sense of family position.

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The extent and meaning of each of the capacities summed up in caput may be illustrated by contrasting it with its corresponding negative, that is, with the absence of the capacity spoken of. In order to determine the capacity of freemen, we may speak of the position of (freedmen and) slaves; in order to determine the capacity of a citizen, we may speak of the position of a Latinus and a peregrinus: in order to determine the capacity of persons having the amplest family position, i.e. being sui juris, we may speak of persons having a less ample position, and being either under the power of others (alieni juris) or under the authority or guidance of others, i.e. under tutors or curators. This is the method adopted in the Institutes, and the discussion of the points thus suggested occupies the remainder of the first book.

1. Et libertas quidem est, ex qua etiam liberi vocantur, naturalis facultas ejus, quod cuique facere libet, nisi si quid aut vi aut jure prohi

betur.

2. Servitus autem est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur.

1. Freedom, from which is derived the term free as applied to men, is the natural power of doing what we each please, unless prevented either by force or by law.

2. Slavery is an institution of the law of nations, by which one man is made the property of another, contrary to natural right.

D. i. 5. 4. 1.

The institution of slavery was the one thing in which the jus gentium seemed to be irreconcilable with the jus naturale; and it was this, probably, more than anything else, that made some of the jurists adopt the threefold division of law.

3. Servi autem ex eo appellati sunt, quod imperatores captivos ven

3. Slaves are denominated servi, because generals order their captives

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