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work is the Institutes. It was formed on the basis of the Institutes of Gaius, alterations being made to bring it into harmony with the Digest and Code. Theophilus, shortly after the promulgation of the Institutes, published a Greek paraphrase of the work, which throws much light on many påssages in the Latin, and which became the sole form in which the Institutes were known to the Greeks of the East.
In the Eastern Empire the works compiled by order of Justinian were only known by Greek paraphrases and abridgments. From these there were made from time to time compilations in which the constitutions of successive emperors were inserted. Otherwise the knowledge of Roman law may be said to have died out of the East altogether. In the West its fate was different. Justinian in 554 ordered that his different works should be observed as the law of Italy. The inroads of the Lombards, however, soon confined the sphere in which the provisions of an emperor of the East could take effect to Rome, Ravenna, and some districts of the south and centre. Here the knowledge of the legislation of Justinian never died out, until in the twelfth century there was established at Bologna a school of commentators (glossatores), who brought much learning, ingenuity, and industry to the study of the old law, and whose labours formed the beginning of modern researches into the subject.*
32. There were still some points which had been debated by the old jurists, and to which the legislation of Justinian The Fifty Dedid not as yet furnish any answer. To determine these, cisions. Justinian published a book of Fifty Decisions; and as the Code of the year A.D. 529 was a very imperfect work, it was determined to revise that Code, and to incorporate the The second Fifty Decisions in the revised edition. Tribonian Code. was appointed to superintend the undertaking, and in November, A.D. 534, the new code, called the code repetitæ prælectionis, received the force of law. This is the code we now have; the former code, that of A.D. 529, was carefully suppressed, and no trace of it remains. The Code, which is divided into twelve books, is arranged nearly in the same mavner as the Digest.
• Of the Digest there is one manuscript of unknown antiquity, which was found at Pisa, and was brought thence to Florence, where it now is. Of the Institutes there is no manuscript of an earlier date than one of the 10th century, known as the codex Bambergensis.
33. But Justinian could not endure that his having systema
tised the law should exclude him from law-making. The Novels.
. He announced in the Code * that any legislative reforms he might at any future time see fit to make should be published in the form of Novello Constitutiones. Many such Novello were afterwards published; the first in January, A.D. 535, the last in November, A.D. 564. Altogether they amount to 165; but no collection of them seems to have been made in the lifetime of Justinian. Few of them bear a later date than A.D. 545, the year of Tribonian's death. 34. The Institutes of Justinian, after a few general observa
mnt tions on the nature, the divisions, and the sources of of the Insti- law, proceed to treat, first of persons, then of things, tutes.
then of successions to deceased persons, then of obligations, and lastly of actions. An arrangement as nearly similar as possible will be observed in the following outline of Roman private law.
ROMAN PRIVATE LAW. The reader of Mr. Austin's Treatise on the Province of Jurisprudence will remember that he proposes, in the outline given in the Appendix, to treat the subject of Law, by examining, first, the science of General Jurisprudence, that is, of the legal notions and principles which enter into every system of law; and secondly, the science of Particular Law, that is, as he explains it, “The science of any such system of Positive Law as now actually obtains, or once actually obtained in a specifically determined nation;' and he carefully distinguishes between the sciences of general and particular jurisprudence and the science or sciences which would tell us, not what law is, but what law ought to be.
The Roman jurists made no approach to a division of the subjeet so accurate and so exhaustive. It is their great merit, the real source of their value to modern Europe, that they apprehended and elucidated the great leading principles and notions of general jurisprudence; but they did not clearly distinguish between general jurisprudence and the municipal law of Rome, or between law and morality. As we have said before, they assumed, on the authority of Greek philosophy, that there was a lex naturæ binding on them because it was a lex, and they endeavoured to work up the dictates of this law and of the jus gentium together with the provisions of the old jus civile into a whole. The Institutes of Gaius open with a declaration that every system of law must contain the two elements of general and municipal law; but in the Institutes of Justinian there are prefixed two definitions taken from
* Const. de Emend. Cod. 4.
" Definitions of
Den the writings of Ulpian; and, while the definitions them- justice and selves illustrate the inexactness with which the jurists Jur determined the province of jurisprudence, the place assigned to them in this compilation shows the utter want of anything like philosophy in the age when the Institutes were written. The first definition defines the moral virtue of justice by reference to a legal term (jus), which it leaves unexplained: the second pronounces jurisprudence to be the science of things human and divine,' a phrase which, originally referring, perhaps, to the distinction between pontifical and secular law, has no general meaning, except as a summary of the philosophy which thought that law was the expression of a reason common to the universe and to man. We can only treat the Roman notions of law and jurisprudence historically, and ascertain what they were and whence they came: we cannot make them fit into the more accurate shapes assigned to these general terms by the modern philosophy of law.
35. The preceding historical sketch will have sufficed to show what were the sources of Roman law: (1) There was the old jus civile, which mainly depended on custom sources as its basis. (2) There were the judicial decisions of the prætors, and the opinions of the juris prudentes, supplementing the jus civile from the dictates of the lex naturce and the jus gentium; and (3) There were positive enactments, which may be divided into leges, plebiscita, senatusconsulta, and announcements of the will of the emperor.
36. The main legal term with which we have to start in approaching Roman law is jus. The word is used to signify both the sum of rights and their corresponding "us,j duties sanctioned by law, and also any single one of these rights. The law prescribes different relations in which the members of a State are to stand to things and to each other. The claim, protected by legal remedies, which each man has to have any of these relations observed in his own case is a right; and as the right must be conceived to belong to or reside in an a person, we speak of a right being the right of a person, e.g. my right to have that book, your right to have that house (jus meum, jus tuum). When we examine the different rights established by law in a State, we find some of a public character, affecting individuals as members of a body politic; others of a private character, affecting individuals directly. It is only of the private rights established by Roman law that we now propose to speak; and as rights are either rights which persons have over things, or Division of rights which persons have against some other person the subject. or persons, we shall treat, first, of the mode in which the Roman law regarded persons; then of the mode in which it regarded things; then of the rights it gave to persons against persons; and, lastly, of the method by which the State enforced private rights when disputed or disregarded, that is, the system of civil process.
37. The word persona had, in the usage of Roman law, a Meaning of
. different meaning from that which we ordinarily atthe word per. tach to the word person. Whoever or whatever was sona.
capable of having, and being subject to, rights was a persona. Slaves were personce 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. Many personce, however, had no physical existence. The law clothed certain abstract conceptions with an existence, and attached to them the capability of having, and being subject to, rights. The law, for instance, treated the State as a persona, capable, for example, of owning land or slaves (ager publicus, servi publici). So, a corporation, or an ecclesiastical institution, was a persona, quite apart from the individual persone who formed the one and administered the other. Even the fiscus, or imperial treasury, as being the symbol of the abstract conception of the emperor's claims, was spoken of as a persona. 38. The technical term for the position of an individual re
garded as a legal person was status, and the constitu
tive elements of his status were liberty, citizenship, and membership in a family. First, he must be free. A slave
had no rights. In the earlier days of Roman law, Freedom.
no one would have conceived this to be unnatural. But philosophy, and the study of morality, taught the later
jurists that the condition of a slave was a violation of natural law. It was not, however, necessary that the person should have been born free (ingenuus); for the process of manumission placed the slave in some degree on a level with the ingenuus by making him a freedman (libertinus, or, if spoken of with reference to his patron, libertus *). It depended on the mode and circumstance of his manumission whether he became at once a Roman citizen ; but in whatever way he was enfranchised he still owed certain duties to his patron, and in certain cases his patron was his heir.
39. The second element of the status was citizenship. The Roman notion of the State was that of a compact privileged body separated off from the rest of the citize world by the exclusive possession of certain public and private rights. In the early times of Rome the cives, or members of the State, were divided into two bodies of patres and plebeians, the former of whom had a public and sacred law peculiar to themselves, while they shared with the latter the system of private law. Beyond the State all were hostes and barbari. But as civilisation advanced, the number of foreigners who resorted to Rome for trade, or were otherwise brought into friendly relations with citizens, was so great that they were looked upon as a distinct class, that of peregrini. To be a citizen was thenceforward not to be a peregrinus, the force of the one idea being brought out by the prominence of its opposite. A peregrinus was subject to the jus gentium; citizens alone could claim the privileges of the jus Quiritium. But when her conquests placed Rome in new and varying relations with the nations of Italy, an intermediate position between the citizen and the peregrinus was accorded to the more privileged of the vanquished. Some of the rights of the citizen were given to them, and some were withheld. These peculiar rights of the citizen were summed up in the familiar term suffragium et honores, the right of voting and the capacity of holding magisterial offices, and in the terms connubium and commercium. Connubium is a term which explains itself. The foundation of the Roman family was a marriage according to the jus Quiritium, and not to have the connubium was to be incapable of entering into the Roman family system. In the word commercium were included the power of holding property and making contracts
• The Latin for a freedman was libertinus ; but libertus Titii is the Latin for the freedman of Titius.