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draw any sont
have a place in
quæ facienda sunt, prohibetque contraria). But nature is with the Stoics both an active and a passive principle, and there is no source of the law of nature beyond nature itself. By lex naturo, therefore, was meant primarily the determining force of the universe, a force inherent in the universe by its constitution (lex est nature vis). But man has reason, and as reason cannot be twofold, the ratio of the universe must be the same as the ratio of man, and the lex nature will be the law by which the actions of man are to be guided, as well as the law directing the universe. Virtue, or moral excellence, may be described as living in accordance with reason, or with the law of the universe. These notions worked themselves into Roman law, and the practical shape they took was that morality, so far as it could come within the scope of judges, was regarded as enjoined by law. The jurists did not draw any sharp line between law and morality. As the lex naturæ was a lex, it must have a place in the law of Rome. The prætor considered himself bound to arrange his decisions so that no strong moral claims should be disregarded. He had to give effect to the lex naturce, not only because it was morally right to do so, but also because the lex naturce was a lex. When a rigid adherence to the doctrines of the jus civile threatened to do a moral wrong, and produce a result that was not equitable, there the lex nature was supposed to operate, and the prætor, in accordance with its dictates, provided a remedy by means of the pliant forms of the prætorian actions. Gradually the cases, as well as the modes in which he would thus interfere, grew more and more certain and recognised, and thus a body of equitable principles was introduced into Roman law. The two great agents in modifying and extending the old, rigid, narrow system of the jus civile were thus the jus gentium and the lex naturæ; that is, generalisations from the legal systems of other nations, and morality looked on according to the philosophy of the Stoics as sanctioned by a law. But as, on the one hand, the generalisations from experience had in themselves no binding force, and as, on the other, the best index to ascertain what morality commanded was to examine the contents of other legal systems, the jus gentium and the lex naturce were each the complement of the other, and were often looked on by the jurists as making one whole, to which the term jus gentium was generally applied.*
See Austin, Province of Jurisprudence determined, Appendix, page xii.
15. The centuries met to decide questions of war and peace, Sources of and to choose the higher magistrates ; but the laws legislation. which, after the lex Hortensia, were passed to effect any real change in the body of Roman law, were almost all plebiscita. The comitia tributa were recognised as almost the exclusive centre of legislative power; but in the later times of
the republic a continually increasing importance was Plebiscita.
e attached to the ordinances of the senate. Gaius says that it had been questioned whether the senatusconsulta had the force of law.* Perhaps they had not exactly the force of law at any time under the republic, excepting when they related to matters which it was the peculiar province of the senate to regulate ; but they were probably of little less weight than
... enactments recognised as constitutionally binding. The Senate.
* The senate successfully maintained a claims to exercise a dispensing power, and to release individuals from obedience to particular laws. It was generally able to reject a law, either wholly or partly, by calling in the aid of religious scruples ; and if it added a clause to a law, the new portion of the law was as binding as the old. In the shape of directions to particular magistrates, it issued injunctions, of which the force was felt by all those who were subject to the magistrate's power; and it made, we have reason to think, independent enactments in matters belonging to religion, police, and civil administration, and perhaps even in matters of private law. The senate comprised the richest and most influential men in the State; the disruption of society attending the civil wars strengthened their influence; and the Romans of the days of Cicero were quite prepared for the place which the senate held, as a legislative body, under the early Cæsars.
The growth of law during the time that elapsed between the promulgation of the Twelve Tables and the commencement of the empire is marked not only by the abolition of the actions of law and the institution of prætorian actions, but by the development of the law of obligations, the old conveyance of nexum having expanded into, or been replaced by, verbal and literal contracts, and real contracts being recognised where no form but the delivery
* Cicero mentions them among the sources of law.-Topic. 5. + Ascon. Argum. in Cornel. (Orell. p. 57). | Ascon. Argum. in Cornel. (Orell. p. 67). § Pochta, Instit. i. 298.
of the thing was required; and four forms of purely consensual contracts being admitted as part of the civil law; to all which the prætor constantly added cases in which he announced that he would recognise and enforce an obligation. The prætor, too, protected and regulated possession as apart from ownership; and his attention was bestowed on the ties of blood, the father being to some extent restrained from disinheriting his children, and cognati taking the place of gentiles in intestate succession.
16. The first emperors were only the chief magistrates of the republic. Augustus and his immediate successors
The Emperor. united in their own persons all the highest offices of ““ the State. The imperium, or supreme command, was conferred on them by the lex regia passed as a matter of form at the beginning of their reign, and by which the later jurists supposed that the people devolved on the emperor all their own right to govern and to legislate.* The assumption of despotism was veiled under an adherence to republican forms; and, at any rate during the first century of our era, the emperor always affected to consider himself as nothing more than the princeps reipublicæ. Although we have instances, even in the time of Augustus, of edicts intended to be binding by the mere authority of the emperor, yet the people at first, and the senate afterwards, was recognised as the primary source of law. By degrees the emperor usurped the sole legislative authority, either dictating to the senate what it was to enact, or, in later times, enacting it himself. The will of the prince came to have the force of law.t Sometimes this will decided what the law should be by the publication of edicta pronounced by the emperor in his magisterial capacity, or mandata, orders directed to particular officers; sometimes by decreta, or judicial sentences given by the emperor, which served as precedents; at other times by rescripta, that is, answers given by the emperor to magistrates who requested his assistance in the decision of doubtful points.
17. The people did not cease to make laws for a considerable time after the commencement of the empire. These laws
Lans. Fere, of course, really the creations of the emperor's will. Augustus, for instance, procured the sanction of legislation to a series of measures which made a considerable innovation in
* D. i. 4. 1.
Gaius mentions a lex Claudia.—Gaius, i. 157.
private law. These measures were designed to repress and discourage the excesses and corruption of a demoralised society. The lex Julia et Papia Poppæa, and others of a similar character, attempted to restore virtue to private life by a system of rewards and penalties, attached to the fulfilment or neglect of family duties, and consisting chiefly in the taking away of testamentary benefits from the unmarried and childless, and giving them to those married with children, and, in default, to the treasury. They failed in their object; but the portion of law to which they belonged, and especially that of testaments and legacies, was considerably modified by their provisions. To the time of Augustus also belongs the introduction of fideicommissa and codicils. 18. After the middle of the first century of our era, all legis
lative enactments of which we know are senatusconThe Senate.
sulta. The election of magistrates was transferred to the senate from the comitia,* and the senate was intrusted with the cognisance of offences against the emperor and the State, and the decision of appeals from inferior tribunals.t The later jurists said that the senate was made to represent the whole people, because the number of the citizens became too great to permit of their acting as a political body. However historically false this may be, it yet is so far true that the senate was, in the earlier times of the empire, a body distinct from, and, in a certain very limited degree, opposed to, the emperor. We have some few memorable instances in Tacitus of senators who dared to speak what they thought, and who showed that the senate was, in more than name, a remnant of the republic. Gradually the very notion of independent action died away, and the senate met merely to adopt the will of its master. 19. The edictum perpetuum, the annual edict of the prætor, as
being the written exposition of the jus honorarium,
was the subject of many of the treatises of the edict.
Roman jurists. In the time of Hadrian, a jurist of great eminence, Salvius Julianus, was appointed by the emperor to draw up an edict, partly from existing edicts, partly according to his own opinion of what was necessary, which should serve as the guide and rule of all succeeding prætors. The edict which he
• Tacit. Annal. i. 15.
drew up, and to which the sanction of Hadrian gave the force of law, was itself termed the edictum perpetuum, the word perpetuum, instead of meaning, as before, that the edict ran on from year to year, being used to express that the edict was permanent and unchangeable. The different magistrates, who had to apply the edict, would thenceforward use their own discretion only when the edict drawn up by Julianus did not serve as an express authority.
20. The writings of the jurists, the authority attached to their decisions, and the admirable manner in which they developed and arranged the law, formed the
The jurists. most marked feature of the legal history of this period. Augustus found the position which the great sages of the law held in public opinion too important a one to be overlooked in his scheme of government. He formally gave to their decisions the weight which usage had in many instances given them already; and it was enacted that their answers should be solicited and announced in a formal manner, and given under the sanction of the emperor. Hadrian decided that they should have the force of law, provided the respondents all agreed in their answer ; but, if they differed, the judge was at liberty to adhere to whichever opinion he preferred.* Among the eminent jurists of the days of Augustus was Trebatius, whose opinion, as the Institutes tell us, was specially asked by Augustus as to the propriety of admitting codicils. Two others, of even higher authority, s. Antistius Labeo and Ateius Capito, represented in Labeo and the same period two opposite modes of regarding law, capito. and were the founders of schools which maintained and handed down their respective opinions. Labeo, in whom a wider culture bad instilled a love of general principles, did not hesitate to make such innovations as he conceived reason and philosophy to require: Capito was distinguished by the fidelity with which he adhered to the law as he had himself received it. A succession of jurists of greater or less renown divided themselves under the banners of these rival authorities. But the schools of which Labeo and Capito were the first authors did not derive their names from their founders. The one school was termed Proculians, after Proculus, a distinguished follower of
• Gaius, i. 7.
† Labeo ingenii qualitate et fiducia doctrinæ, qui et in cæteris sapientiæ partibus operam dederat, plurima innovare statuit. Ateius Capito, in his quæ ci tradita erant, perseverabat.—Dig. i. 2. 2. 47.