rales sunt, omnes procul dubio tenent. Praetorum quoque 7 edicta non modicam iuris optinent auctoritatem. haec etiam ius honorarium solemus appellare, quod qui honores gerunt, id est magistratus, auctoritatem huic iuri dederunt. proponebant et aediles curules edictum de quibusdam casibus, quod

solum illi causae, pro qua producta est, sed et omnibus similibus . . . cum et veteris iuris conditores constitutiones, quae ex imperiali decreto processerunt, legis vim obtinere aperte dilucideque definiant' Cod. 1. 14. 12.

It appears then more probable that decreta and rescripta possessed the force of general law in reference to later cases resembling those for whose decision they were originally issued, provided that the intention of their respective issuers had been that they should enounce a legal rule, and not merely determine a specific case. Despite the evidence of St. Augustine (ut etiam idiotae intelligant, quid specialiter, quid generaliter in quocunque praecepto imperiali sit constitutum ' de doctr. Christ. iii. 34), the question whether a particular rescript was intended by its author to be merely personale (e. g. Bk. ii. 19. 6 inf.), or to state a principle of law, became a frequent subject of juristic disputation. Such as were undoubtedly of the latter character were called generalia rescripta (e. g. Dig. 35. 2. 89. 1 'divi Severus et Antoninus generaliter rescripserunt Bononio Maximo,' Dig. 11. 4. 1. 2 'est etiam generalis epistola divorum Marci et Commodi'). But rescripts were also called 'generalia' when it was held that the rule which they contained might be extended to cases even remotely resembling the one originally decided; e. g. the rule ignorantia iuris non excusat is derived in its general form by Papinian from a rescript of Severus and Antoninus, Dig. 22. 6. 9. 5.

From the time of Constantine onward, and in the Eastern Empire, a particular kind of rescripts acquired the name of 'pragmatic sanctions.' These are rescripta in answer to petitions, drawn up in a peculiar and solemn form, and distinguished from other rescripts by being more highly taxed: Zeno restricted their use to petitions preferred by corporations.

In framing constitutions (to whichever of these species they belonged) the emperor was assisted by a council, called in the later period consistorium (Cod. 1. 14. 8), to which the praefecti urbi and praetorio and the most celebrated jurists belonged, and which gradually assumed the character of a general council of state; it was regularly consulted by the emperor in the exercise of his supreme appellate jurisdiction, and the chamber in which such consultations were held was as early as M. Aurelius called auditorium principis. It was mainly in this way that the jurists acquired their knowledge of the imperial constitutions, of which some of them (e.g. Papirius Justus and Paulus) even made systematic collections. § 7. For the praetor's edict, and its relation to the ius gentium, see General Introd. p. 30 sq. supr. The place of the edict of the curule aedile in private law is due to his official control of the markets, streets, etc.

H

8 edictum iuris honorarii portio est. Responsa prudentium sunt sententiae et opiniones eorum, quibus permissum erat iura condere. nam antiquitus institutum erat, ut essent qui iura publice interpretarentur, quibus a Caesare ius respondendi datum est, qui iuris consulti appellabantur. quorum omnium sententiae et opiniones eam auctoritatem tenent, ut iudici recedere a responso eorum non liceat, ut est con9 stitutum. Ex non scripto ius venit, quod usus comprobavit. (General Introduction, p. 22 supr.) The first Title of Dig. 21. is 'de aedilicio edicto,' and out of his jurisdiction in such matters arose certain actions of Roman law ('actio redhibitoria and actio aestimatoria seu quanti minoris,' note on Bk. iii. 23. 3 inf. ; cf. Bk. iv. 9. 1 inf.) imposing an obligation of warranty on vendors, at first in market overt, and then in all sales. Stipulationes aediliciae, analogous to the praetorian stipulations mentioned in Bk. iii. 18. 2 inf., are spoken of in Dig. 45. 1. 5. pr.

§ 8. For the responsa prudentium see General Introd. p. 50 supr., and for the difficulties of this particular passage, p. 51. Theophilus distinguishes between sententia and opiniones thus: sententia. . . avaμpíβολος ἀπόκρισις, opinio μετὰ ἐνδοιασμοῦ προσφερομένη ἀπόκρισις.

§ 9. To the ius non scriptum belongs (besides the mores maiorum, the national customary law of Rome) the whole of the ius gentium originally, and subsequently such parts of it as did not become scriptum by being worked into the edict or other legislation.

Mos is to be distinguished from consuetudo (in so far as the latter term has a jural meaning), for it includes 'positive morality' no less than rules strictly legal: 'morem esse communem consensum omnium simul habitantium, qui inveteratus consuetudinem facit ' Servius ad Verg. Aen. vii. 601, 'morem praecedere, sequi consuetudinem . . . perseverantium consuetudinis . . . cultus moris, quod est consuetudo' Macrob. Saturn. It has been stated in the General Introduction (p. 2 supr.) that originally the Roman law existed only in the form of custom. Legislation, direct and indirect, was of later introduction, but steadily tended to absorb customary law. The Twelve Tables were in the main a statutory re-enactment of the customs then recognised as binding: others were taken up into subsequent statutes, the Edict, and the writings of the iuris auctores, until in the time of Gaius, and still more of course in the period immediately preceding Justinian, there were but few general customs possessing legal validity as such, though many statutes and quasi-statutory rules could be traced in their origin to this source. This is the case with acquisition by conventio in manum (Gaius iii. 82) and by adrogation (ib. and Bk. iii. 10. pr. inf.), and with substitutio pupillaris (Bk. ii. 16 pr. inf.). The validity of customary law is stated emphatically not only here and in Bk. iv. 17. pr., but also in the Digest and Code: 'de quibus causis scriptis legibus non utimur, id custodiri oportet, quod moribus et consuetudine inductum est' Dig. 1. 4. 32, 'inveterata consuetudo pro lege non immerito custoditur' ib., 'quae sunt moris et consuetudinis, in bonae

nam diuturni mores consensu utentium comprobati legem

fidei iudiciis debent venire' Dig. 21. 1. 31. 20, 'consuetudinis ususque longaevi non vilis auctoritas est' Cod. 8. 53. 2; cf. the strong expressions of Aristotle in Pol. ii. 5 ὁ γὰρ νόμος ἰσχὺν οὐδεμίαν ἔχει πρὸς τὸ πείθεσθαι, πλὴν παρὰ τὸ ἔθος, ib. iii. 11 κυριώτεροι τῶν κατὰ γράμματα νόμων οἱ κατὰ τὰ ἔθη εἰσίν.

Few subjects have been so much disputed, and we may perhaps say misunderstood, by modern jurists, as the nature of customary law, its validity, and the relation (if the two terms are to be distinguished) between customary law and custom. That custom ever has any force as positive law is vehemently denied by Austin; until it receives the impress of the judge or legislator, it is only positive morality (Jurisprudence p. 37); when it has received that impress it ceases to be custom and becomes positive law, though the name 'customary law' for it is convenient as perhaps suggesting the ground on which it has been invested with a legal sanction (ib. p. 204). The error of this view (which Austin himself admits runs counter to all the utterances of the Roman jurists) has been shown by Sir H. Maine (Early History of Institutions, lectures 12 and 13) to have originated in Austin's habit of basing his generalisations on observations only of Western communities, in which the engrossing power of direct legislation had been kept in men's memories by traditions of the Roman Empire. As to the way in which custom, as law (i.e. before it is embodied in legislation direct or indirect), is generated, and how it acquires its binding force, there have also been great differences of opinion. The question is really as to the relation between the usage, and the consciousness that that usage is a right one, and one which (legally) ought to be followed, or as to the relation between the usage and the binding rule, or, as it is sometimes shortly though unhappily expressed, between custom and law. The earlier view was that customary law is law generated by custom, diuturnus usus. In this or that relation of life, people follow a uniform practice, and this practice, in virtue of its uniformity, is called a custom; before long it gains so strong a hold upon the mind as to be followed as law, and in fact to become law, which the Courts (the protection of security, and attainment of fixity of relations, being part of their business) will enforce. Custom is thus said to be a source of law, and law proper, in the history of nearly every nation, to be preceded by

custom.

Savigny was the author (Syst. i. p. 34 sq.) of the view, now generally accepted by German jurists, that custom is not one of the sources of law, but only its token or external manifestation; the law itself is grounded on the common legal consciousness of the nation. If the people, as a people, is conscious of a rule, or thinks that such or such a principle ought to be followed as law, this principle so asserts itself as to be applied and developed; the usage is thus evoked and occasioned by the principle which the popular mind approves and accepts, instead of being itself the source of that principle. The consciousness of the rule must precede the usage or custom, for it is upon this that the uniformity of action is based:

10 imitantur. Et non ineleganter in duas species ius civile distributum videtur. nam origo eius ab institutis duarum civitatium, Athenarum scilicet et Lacedaemonis, fluxisse videtur: in his enim civitatibus ita agi solitum erat, ut Lacedaemonii quidem magis ea, quae pro legibus observarent, memoriae mandarent, Athenienses vero ea, quae in legibus scripta reprehendissent, custodirent.

11 Sed naturalia quidem iura, quae apud omnes gentes peraeque servantur, divina quadam providentia constituta semper firma atque immutabilia permanent: ea vero, quae ipsa sibi quaeque civitas constituit, saepe mutari solent vel tacito consensu populi vel alia postea lege lata.

if the uniformity of action is merely accidental, and not due to common consciousness of a rule, it is unreasonable and unfit to be law.

The principle thus precedes and generates the usage; but the older view contains a certain truth, viz. that the principle first acquires practical validity through the usage of which it is the parent, exactly as ius scriptum acquires binding force through publication; and to this extent one can say with truth, that as a statute comes into existence through publication, so customary law comes into existence through usage or custom. Savigny also grants that in some cases the rule is actually begotten of the usage; in particular, where the substance of the rule is more or less immaterial, so long as the rule is there (e. g. fixing of legal periods, forms, etc.). On the whole subject see Holland's Jurisprudence chap. v.

§ 10. Λακεδαιμόνιοι μὲν . . . ἔθεσιν ἐπαίδευον, οὐ λόγοις Αθηναῖοι δὲ . . . ἃ μὲν χρὴ πράττειν ἢ μή, προσέτασσον διὰ τῶν νόμων Josephus c. Apionem ii., μία τῶν ῥητρῶν, μὴ χρῆσθαι νόμοις ἐγγράφοις Plutarch, Lycurgus 13. Nevertheless, the Attic writers often eulogise unwritten law, e. g. Ɛóλwva vóμwv

...

. ξυγγραφέα καὶ ἐθῶν τῶν ἀρίστων εὑρετήν Lucianus, Anach. c. 14.

§ 11. It is clearly said here that a statute may in effect be abrogated by a contrary custom: cf. 'legibus istis situ atque senio obliteratis' Gell. ii. 24, Plautus, Trinum. iv. 3. 30. 33, Livy 27. 8, and the strong expression of Julian in Dig. 1. 3. 32. I 'Quare rectissime illud receptum est, ut leges non solum suffragio legislatoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.' The very contrary seems to be maintained in a passage already cited in part (Cod. 8. 53. 2) Consuetudinis ususque non vilis auctoritas est, sed non usque adeo suo valitura momento ut rationem vincat aut legem.' Perhaps the simplest way out of the difficulty is to suppose that the latter passage refers to a statute in which it is expressly provided that in no case shall it be taken to be repealed by a contrary custom of later development. Now if approved custom 'legis vicem sustinet,' such a provision is absurd, and resembles the wellknown rule privilegia ne irroganto in assuming that a sovereign is capable of being legally bound. The question was submitted to the Emperor

Omne autem ius, quo utimur, vel ad personas pertinet vel 12 ad res vel ad actiones. ac prius de personis videamus. nam parum est ius nosse, si personae, quarum causa statutum est, ignorentur.

III.

DE IURE PERSONARUM.

Summa itaque divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi. Et libertas quidem 1 est, ex qua etiam liberi vocantur, naturalis facultas eius quod cuique facere libet, nisi si quid aut vi aut iure prohibetur. Servitus autem est constitutio iuris gentium, qua quis dominio 2

Constantine, and he decides it in the passage cited from the Code: a custom can certainly abrogate a statute, but (he says) there is an exception to this general rule, if the statute itself contains a provision that no custom is to be allowed to grow up in future contrary to its tenor; a provision addressed to the subject, and forbidding the custom itself, not to the sovereign, and forbidding the repeal of the statute.

For the permanence and immutability of natural law cf. Cicero de Republ. iii. 22, Dig. 7. 5. 2. I ; 50. 17. 8. By such passages it is not meant that it is always binding on the citizen, but that what is 'natural' once is natural for ever; for, as Ulpian says, 'ius civile [iuri naturali] non per omnia servit' Dig. 1. 1. 6. pr. Similarly Gaius, speaking of the quasi usufruct mentioned in Bk. ii. 4. 2 inf., remarks that though the authority of the senate cannot overcome naturalis ratio, its commands are binding; Dig. 7. 5. 2. 1.

Tit. III. For the division of private law made in pr. see the Introduction to this Book.

§ 1. Liberty does not require that one should be free to act against the laws, 'legum quum servi sumus, ut liberi esse possimus' Cicero pro Cluentio 53. 146. Cf. Persius, Sat. v. 89 'Liceat, iussit quodcunque voluntas, Excepto si quid Masuri [i.e. Sabinus' work on law] rubrica vetavit,' Dio Chrysostom, or. 14 ὅσα μὴ ἀπείρηται ὑπὸ τῶν νόμων, μηδὲ προστέτακται, ὁ περὶ τούτων ἔχων τὴν ἐξουσίαν τοῦ πράττειν ὡς βούλεται . . . ἐλεύθερος.

...

§ 2. In respect of capacity of right, slavery is a condition of absolute 'rightlessness.' A slave could have no rights against either his master or any one else; and, remembering what has been said of the legal meaning of 'person' in the Introduction to this Book, it follows that a slave was not a 'person' at all: he had no caput, Tit. 16. 4 inf. The Roman lawyers looked upon him as a 'res,' and applied to him, as an object of property, the same rules which they laid down as to domestic animals; so far as there is any difference of treatment it is due to the slave's possession of reason, so that (a) he is able to increase his master's means by his intellectual as well as by his physical powers, and (6) by manumission