LIBER PRIMUS.

TIT. I. DE JUSTITIA ET JURE.

JUSTITIA est constans et per- Justice is the constant and perpetual petua voluntas jus suum cuique wish to render every one his due. tribuens.

D. i. 1. 10.

The term jus, in its most extended sense, was taken by the Roman jurists to include all the commands laid upon men that they are bound to fulfil, both the commands of morality and of law.

The distinction between commands which are only enforced by the sanction of public or private opinion, and those enforced by positive legal sanctions, may seem clear to us; but the Roman jurists, in speaking of the elementary principles and divisions of jurisprudence, did not keep law and morality distinct. Celsus defines jus as ars boni et æqui. (D. i. 1. 1.) This extension of the term would sink positive law in morality; that only would be supposed to be commanded which ought to be commanded. The confusion arose principally from the view of the law of nature, borrowed from Greek philosophy by the jurists. (See Introd. sec. 14.)

Jus, used in its strictly legal sense, has two principal meanings. It either signifies law, that is, the whole mass of rights and duties protected and enforced by legal remedies, or it means any single right, that is, any faculty or privilege accorded by law to one man accompanied by a correlative duty imposed on another man. Jus itineris, for instance, is the right given to one man of going through the land of another who is placed under a duty to let him pass. Neither a right nor a duty, at any rate in the sphere of private law with which alone the Institutes deal, can exist without the other. (See Introd. sec. 36.)

1. Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.

1. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.

D. i. 1. 10. 2.

Jurisprudentia is the knowledge of what is jus, and jus, according to the theory of the law of nature, laid down what is commanded by right reason, this right reason being common to the divine scheme of things and to man. On this ground, and also because public law has to deal with religious worship, the knowledge of divine things was therefore necessary, as well as the knowledge of human things, to say what were the contents of jus. Both this and the preceding definition are taken at random out of the writings of Ulpian. (See Introd. sec. 34.)

2. His generaliter cognitis et incipientibus nobis exponere jura populi Romani ita maxime videntur posse tradi commodissime, si primo levi ac simplici, post deinde diligentissima. atque exactissima interpretatione singula tradantur. Alioquin si statim ab initio rudem adhuc et infirmum animum studiosi multitudine ac varietate rerum oneraverimus, duorum alterum aut desertorem studiorum efficiemus aut cum magno labore ejus, sæpe etiam cum diffidentia, quæ plerumque juvenes avertit, serius ad id perducemus, ad quod leniore via ductus sine magno labore et sine ulla diffidentia maturius perduci potuisset.

3. Juris præcepta sunt hæc : honeste vivere, alterum non lædere, suum cuique tribuere.

4. Hujus studii duæ sunt positiones, publicum et privatum. Publicum jus est, quod ad statum rei Romanæ spectat, privatum, quod ad singulorum utilitatem pertinet. Dicendum est igitur de jure privato, quod tripertitum est; collectum est enim ex naturalibus præceptis aut gentium aut civilibus.

2. Having explained these general terms, we think we shall commence our exposition of the law of the Roman people most advantageously, if our explanation is at first plain and easy, and is then carried on into details with the utmost care and exactness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen-we shall either cause him wholly to abandon his studies, or, after great toil, and often after great distrust of himself (the most frequent stumbling-block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by a smoother road, he might, without great labour, and without any distrust of his own powers, have been sooner conducted.

3. The maxims of law are these: to live honestly, to hurt no one, to give every one his due.

4. The study of law is divided into two branches; that of public and that of private law. Public law is that which regards the government of the Roman Empire; private law, that which concerns the interests of individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to natural law, to the law of nations, and to the civil law.

D. i. 1. 1. 2.

Both the jus publicum and the jus privatum fall under municipal law, that is, the law of a particular state. Publicum jus in sacris, in sacerdotibus, in magistratibus consistit. (D. i. 1. 2.) Public law regulates religious worship and civil administration; private law determines the rights and duties of individuals. The threefold division of private law given in the text is discussed in the next section.

TIT. II. DE JURE NATURALI, GENTIUM ET CIVILI.

Jus naturale est, quod natura omnia animalia docuit. Nam jus istud non humani generis proprium est, sed omnium animalium, quæ in cælo, quæ in terra, quæ in mari nascuntur. Hinc descendit maris atque feminæ conjugatio, quam nos matrimonium appellamus, hinc liberorum procreatio et educatio: videmus etenim cetera quoque animalia istius juris peritia censeri.

The law of nature is that law which an nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the sea. Hence comes that yoking together of male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides man are considered as having knowledge of this law.

D. i. 1. 1. 3.

In the Introduction (sec. 14) a sketch has been given of what the jurists meant by the lex naturæ. It was the expression of right reason inherent in nature and man, and having a binding force as a law. It was contrasted with the jus civile, the old strict law of Rome (Introd. sec. 10), and also with the jus gentium, the sum, that is, of the law found to obtain in other nations besides the Romans, as well as in Roman law. (Introd. sec. 12.) There thus arose the threefold division of law adopted in the last paragraph of the last title; but the jus gentium and the jus naturale were often placed in the same head of division, for the law common to all nations was but the embodiment and indication of what right reason was supposed to command to all men. Thus while the threefold division of law was adopted by some jurists, a twofold division was adopted by others, and is adopted in the next and the last paragraphs of this title, Justinian first borrowing from Ulpian, who adopted the threefold division, and then from Gaius, who adopted the twofold.

Unfortunately, in order to give a notion of jus naturale, Justinian has borrowed a passage from Ulpian, in which that jurist runs off into a subsidiary and divergent line of thought. It is easy to see that if we begin to make inherent reason the foundation of law, we may find it necessary to take into account the community of actions which, in some of the primary features of physical life, reason or instinct suggests to man and animals. If jus is that which nature commands, nature may be said to command the propagation of the species in animals as much as in man, and thus there would be a jus common to animals and to men. A jurist, to whom the theory of the lex natura was familiar, might easily pursue the subject to a point in which men and animals seemed to meet. But the main theory had nothing to do with animals, as it looked only to the reason inherent in the universe and in man, and in considering what the Roman jurists meant by jus naturale this fragment of Ulpian may be dismissed almost entirely from our notice.

1. Jus autem civile vel gentium ita dividitur: omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum jure utuntur: nam quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur vocaturque jus gentium, quasi quo jure omnes gentes utuntur. Et populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur. Quæ singula qualia sunt, suis locis proponemus.

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2. Sed jus quidem civile ex unaquaque civitate appellatur, veluti Atheniensium: nam si quis velit Solonis vel Draconis leges appellare jus civile Atheniensium, non erraverit. Sic enim et jus, quo populus Romanus utitur, jus civile Romanorum appellamus vel jus Quiritium, quo Quirites utuntur; Romani enim a Quirino Quirites appellantur. Sed quotiens non addimus, cujus sit civitatis, nostrum jus significamus sicuti cum poetam dicimus nec addimus nomen, subauditur apud Græcos egregius Homerus, apud nos Vergilius. Jus autem gentium omni humano generi commune est. Nam usu exigente et humanis necessitatibus gentes humanæ quædam sibi constituerunt: bella etenim orta sunt et captivitates secuta et servitutes, quæ sunt juri naturali contrariæ (jure enim naturali ab initio omnes homines liberi nascebantur); ex hoc jure gentium et omnes pæne contractus introducti sunt, ut emptio venditio, locatio conductio, societas, depositum, mutuum et alii innumerabiles.

1. Civil law is thus distinguished from the law of nations. Every community governed by laws and customs, uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state, and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, and is called the law of nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. What is the nature of these two component parts of our law we will set forth in the proper place.

2. Civil law takes its name from the state which it governs, as, for instance, from Athens; for it would be very proper to speak of the laws of Solon or Draco as the civil law of Athens. And thus the law which the Roman people make use of is called the civil law of the Romans, or that of the Quirites, as being used by the Quirites; for the Romans are called Quirites from Quirinus. But whenever we speak of civil law, without adding of what state we are speaking, we mean our own law: just as when the poet' is spoken of without any name being expressed, the Greeks mean the great Homer, and we Romans mean Virgil. The law of nations is common to all mankind, for nations have established certain laws, as occasion and the necessities of human life required. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by that law all men are originally born free. Further, from this law of nations almost all contracts were at first introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loans returnable in kind, and very many others. D. i. 4. 5.

The term jus civile, as used here, entirely depends for its meaning on the contrast between it and the jus gentium. When the jurists came to examine different systems of laws, they found much in each that was common to all. This common part they termed the jus gentium; and the residue, the part peculiar to each state, they called jus civile. The contracts of sale, hiring, and the others mentioned in the text, were, they found, carried on much in the same way in every country, and they therefore

assigned them to the head of jus gentium, and contrasted them with forms of contract which were peculiar to the old Roman law, and were therefore considered part of the jus civile. In the usual sense of jus civile, in which it means the old law of Rome prior to the jus honorarium (see Introd. sec. 10), these contracts were part of the jus civile, that is, they were part of, and were recognised by, the old law, but they were also part of the general law of nations, and no forms peculiar to Roman law were necessary their creation.

3. Constat autem jus nostrum aut ex scripto aut ex non scripto, ut apud Græcos: Twν vóμwv oi pèv ἔγγραφοι, οἱ δὲ ἄγραφοι. Scriptum jus est lex, plebiscita, senatusconsulta, principum placita, magistratuum edicta, responsa prudentium.

4. Lex est, quod populus Romanus senatorio magistratu interrogante, veluti consule, constituebat. Plebiscitum est, quod plebs plebeio magistratu interrogante, veluti tribuno, constituebat. Plebs autem a populo eo differt, quo species a genere nam appellatione populi universi cives significantur, connumeratis etiam patriciis et senatoribus plebis autem appellatione sine patriciis et senatoribus ceteri cives significantur. Sed et plebiscita, lege Hortensia lata, non minus valere quam leges cœperunt.

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3. Our law is written and unwritten, just as among the Greeks some of their laws were written and others not written. The written part consists of laws, plebiscita, senatusconsulta, enactments of emperors, edicts of magistrates, and answers of jurisprudents.

4. A law is that which was enacted by the Roman people on its being proposed by a senatorian magistrate, as a consul. A plebiscitum is that which was enacted by the plebs on its being proposed by a plebeian magistrate, as a tribune. The plebs differs from the people as a species from its genus; for all the citizens, including patricians and senators, are comprehended in the people; but the plebs only includes citizens, not being patricians or senators. But plebiscita, after the Hortensian law had been passed, began to have the same force as laws.

GAI. i. 3.

A lex or populi scitum, to use a word made by the commentators on the analogy of plebiscitum, was passed originally only in the comitia curiata; after the establishment of the comitia centuriata in both these comitia; but, excepting in the case of conferring the imperium, almost always in the centuriata. (See Introd. sec. 15.)

The lex Hortensia, 467 A.U.C., had been preceded by the lex] Valeria, 304. A.U.C., and the lex Publilia, 414 A.U.C., by both of which it was provided that plebiscita should bind the whole people. Either the effect of their provisions had been disputed, or exceptions had been made to them, or perhaps the extension of the authority of the plebiscitum which they gave was not so complete as their terms would seem to imply. (Nieb. 2. 366.) The term lex is very frequently applied to plebiscita as well as to populi scita. (See Introd. sec. 9.)

5. Senatusconsultum est, quod senatus jubet atque constituit. Nam cum auctus est populus Romanus in eum modum, ut difficile sit in

5. A senatus-consultum is that which the senate commands and appoints: for, when the Roman people was so increased that it was difficult to assem