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INTRODUCTION TO BOOK I.
The first two Titles of this book are merely introductory, and afford no clue to the principle on which it is intended to distribute the rules of the private code. Title i is derived in the main from the 'Institutions' of Ulpian; it contains definitions of Justice and Jurisprudence, determines the scope of the work as a treatise on private law, and draws the distinction between ius naturale, gentium, and civile, which has been adverted to in the general Introduction (p. 27 sq., supr.). In the second Title ius naturale is defined after Ulpian, and then ius civile and ius gentium are distinguished in the words of Gaius, though, as has been pointed out elsewhere, the latter contrast is the true and important one, and in other parts of the work ius gentium and ius naturale are identified. The sources of the positive law of Rome are then specified and each briefly described.
In the opening words of the third Title we meet with the significant statement of the principle upon which the arrangement of the Institutes is to proceed. That principle, and, accordingly, that arrangement, is taken literally from Gaius, and an exposition of its meaning will be as important for the work of the jurist as for that of the prince. 'The whole law by which we are governed relates either to persons, or to things, or to actions.' The division of the Institutes into these three departments is perfectly clear; the 'ius quod ad personas pertinet' occupies Bk. i. Title 3, to the end; the 'ius quod ad res' extends from the beginning of Bk. ii to Bk. iv. Title 5; the remainder of Bk. iv 'pertinet ad actiones.' In this particular point the Gaian distribution is more satisfactory, as it makes the break between res and actiones at the end of the third commentary, and devotes the .whole of the fourth to the latter subject; in the Institutes the formal division of Books tends somewhat to obscure the material classification of the system. This, however, though ' inelegans,' presents no obstacle to our comprehension of the system itself; but we are at once met by difficulties, and by great differences of opinion among the commentators, when we attempt to discover the meaning of the division into persons, things, and actions, and to ascertain its relation to other arrangements of private law, such as those of Savigny (General Introduction, p. 67 sq., supr.) or of Austin and his school.
Our only business here is to ascertain what Gaius and Justinian intended by 'ius quod ad personas pertinet.' It seems clear that the only method by which this can be done is the analytical. Austin, it is to be regretted, set in England the example of pursuing a 'high a priori road' in connection with this matter; the principal form of which is to adopt, as the leading division of law, that into 'the law of persons ' and 'the law of things,' though in a sense differing considerably from that in which it was understood by the Roman lawyers, and then either to find fault with the latter for not having meant the same as the writer, or to imply that they really meant the same thing, though owing to the weakness of their legal philosophy they did not adhere with any consistency to their own principle, and thereby committed most egregious faults of classification. Even if this be true, it is probably a worse fault still to take a classical expression (such as 'law of persons/ which to its authors, we may surely believe, meant something perfectly precise), give it a new signification without frankly confessing that a liberty has been taken; and then to irresistibly suggest that the two meanings are the same, if the authors of the expression really meant anything by it at all. To an English reader the greatest difficulty, in the effort to understand the arrangement of Gaius and Justinian, arises from Austin's perversion of the expressions 'law of persons' and 'law of things' for the purposes of his own system. If he had meant something totally different from them there would have been no confusion; but the very fact that his meaning was somewhat the same, but at the same time somewhat different, has surrounded the matter with difficulties, to remove which an attempt will be made by pursuing a strictly analytical method, and by attending strictly to the language of the Roman lawyers themselves, without giving any fancy meaning to classical expressions whose actual signification can be ascertained with tolerable certainty.
What did the Romans mean by ' persona '? It is clear there is some relation between persona and homo; for the leading division of the ' ius quod ad personas pertinet ' (i. 3. pr.) is that all men are either free or slaves. It is equally clear that they did not regard all men as persons; it is not said all persons, but all men, are either free or slaves. Slaves, in fact, except very occasionally by a slip of the pen (e.g. Inst. i. 8. pr.) are not regarded by the Romans as persons; an essential element in the idea of persona is the capacity of acquiring and possessing legal rights 1. In other words, persona is a man regarded as invested with legal rights, or as capable of acquiring them, so that our attention is drawn away from the man to the rights, or to the capacity of having them in virtue of which he is a persona. The aggregate of a man's rights was called his status; and accordingly the old civilians defined a persona as 'homo cum statu suo consideratus.' But what is it in virtue of which a man has legal rights? In modern times it is usually in virtue of his submission, absolute or partial, to the sovereign of the country in which he happens to reside; a man is usually capable of acquiring all the rights which are comprised under the private law of a state within whose limits he is domiciled. This view is essentially modern, and by realizing its strangeness to the Roman mind we shall have advanced some way towards understanding the ius personarum. To a man, as free, the Roman state conceded such rights only as were based on the ius gentium; but the civis possessed far more rights, even in the field of private law, than the free peregrinus; and many of these he enjoyed not through being a civis but because he was a member of a definite Roman family. The rights or status with which a man could be invested within the Roman state were thus always referable to either freedom, citizenship, or family connection; and this way of looking at the matter became so habitual to the Roman, that of status in general he has little to say; he always connects it with one of these three 'momenta,' and classifies a man's capacity of acquiring rights (or ' status ') according as he is merely free, is a citizen, or belongs to the agnatic circle of this or that Roman familia.
If then the ' law of persons' is the law relating to human beings considered as invested with or as capable of acquiring rights, it is clearly much the same thing as the law relating to these three 'status' of libertas, civitas, and familia: it is ' the treatment of men in respect of their position in and in relation to the Roman state, because, according to that position, their capacity of right, and their capacity of performing legal acts, will differ2.' But it is obvious that much that can be said, in respect at any rate of one of these three topics, has no relation to private law; the latter has to point out distinctions between persons only so far as they are of importance to itself, and the distinction between civis and peregrinus is mainly publici iuris. Nor again
1 'Servi nee personam habentes' Nov. Theod. xvii. 2, oí ol,tírai ànpooamoi ÍVтts, Theophilus iii. 17, pr., 'servos, qui personam legibus non habebant' Cassiodori Variar, vi. 8.
3 Booking, Institutionen § 28.
does the 'ius quod ad personas pertinet' follow these differences into all their consequences. It points them out; but the effect of them, in the law of property and obligation, is left to be treated elsewhere, or, as is most commonly the case, is not treated at alll.
As to the status of liberty the non-free are not 'persons,' and therefore it might seem that they should be passed over. But some mention is necessary (Title 3) of the modes in which men can become slaves; and, again, slaves are capable of becoming 'persons' by liberation, and therefore the ways in which this can take place are described (Title 5), and some account is given of the grounds on which manumission is prohibited by positive law (Titles 6 and 7) as also of restrictions imposed on the powers of masters over their slaves (Title 8). Moreover, the precise effect of manumission had depended on the form of the act, the age of the master and the slave, and the character of the latter; freedmen had thus not always been of the same kind, and means had been provided to enable them to rise from a lower grade in their class to a higher; but these distinctions, though referred to by Justinian, were abolished by him (Title 5), and the law was thereby much simplified, though the division of freemen into freeborn (ingenui) and freedmen (libertini) still remained, and had important consequences in the law of succession, which are detailed in Book iii. Title 7.
The status of civitas, being historically of importance mainly in relation to public law, is not treated independently under the ius personarum by either Gaius or Justinian. It would not be difficult to explain this in the latter, in whose time a peregrinus was a rara avis, and the ius civile had been so swallowed up in the ius gentium that the distinction between citizen and foreigner, in respect of private rights, was merely microscopic. But in the age of Gaius peregrini
1 This appears to be the point in which the writers who have been referred to have gone astray. They would have been correct in defining the ' law of Persons' as ' the law of Unequals ' or 'Abnormal law' if they had confined it to the mere description of differences between Persons, in virtue of which some were ' Unequal' or 'Abnormal;' but they have further made it follow up the consequences of such inequality in respect of property, contract, and dispositions generally. Thus, in the 'law of Persons,' Austin would not only describe infancy as a fact which modified a person's capacity of right and disposition, but he would proceed to enumerate the points of modification: e. g. an infant's incapacity to make a valid conveyance, give a valid receipt, or bind himself by contract. But, though Gaius and Justinian enumerate, among the differences between Persons, that of sui and alieni iuris, they speak of the filiusfamilias' proprietary capacity in Bk. ii, and of the effect of his contracts in Bks. iii. and iv, under the ius quod ad res, or ad actiones pertinet.
.were plentiful, and the distinctive features of the civil law were still sufficiently prominent to place them at some disadvantage in respect of conveyance, contract, and civil procedure; the 'ius commerci i' was still a privilege. We thus might have reasonably expected to find in Gaius the sentence 'rursus liberorum hominum alii cives sunt, alii peregrini;' but it is not there, and the omission, it must be allowed, is a grave flaw in the view which we have taken of the 'ius quod ad personas pertinet.' Still, it is equally to be accounted for on most other theories of the meaning of the phrase, and perhaps the best explanation which can be offered is that, as the difference between civis and peregrinus is merely that the former had, while the latter had not, the commercium and connubium, the distinction is a bare one, of which little can be said except in the ' ius quod ad res' or 'ad actiones pertinet,' under the heads of property, contract, and procedure. It is true that in the time of Gaius there were certain intermediate classes, dediticii and Latini Iuniani, which might have been mentioned or described in this connection; but Gaius had already spoken of these, though perhaps less logically, under the head of manumission; so that to omit the distinction of civis and peregrinus was excusable, because it would have led to a repetition and to difficulties of arrangement. And it may, lastly, be observed that the ius personarum was but little affected by the praetorian innovations; it was, in the main, pure ius civile; and if we may believe that Gaius' intention was under this head to describe the classes of persons who, iure civili, possessed a status, the peregrini did not form one of these classes, and therefore the bare distinction between them and cives did not require notice. 'Tuitione praetoris' they might possess rights; 'iure civili,' however, they were unimportant.
There remains the status familiae, and the discussion of this occupies the really greater portion of the first book of the Institutes. It is introduced in connection with the distinction of persons into independent (sui iuris) and dependent (alieni iuris) (Title 8). Excluding the form of dependency found in slavery, which has been already treated, the only mode in which such subjection still existed in Justinian's time was the patria potestas (Title 9); and the various ways in which this may originate are described. These are (1) marriage, in connection with which a tolerably full account is indirectly given of the grades of consanguinity, apropos to the degrees within which it is forbidden to marry. As bearing closely on the law of intestate succession, the same subject is more explicitly treated in Bk. iii. Title 6. (2) Adoption, in its two forms adrogation and adoption