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BOOK Hadrian, A.D. 131, the Edicta of the Prætors were, I. by his command, collected and published by Sal
vius Julianus in one volume. This contained the continuous series of Edicta then extant, and was, Edictum therefore, called the Edictum perpetuum, or Jus perpetuum. Honorarium, being chiefly derived from the Album of the Prætor Honoratus, and from this time became part of the written law. Many of the most distinguished lawyers, and among them Pomponius, Gaius, Paulus and Ulpian, wrote Jus Hono- comments on the Edictum perpetuum. The Jus Honorarium thus became the viva vox juris civilis1; and it is described by Pomponius as "quod Prætores introduxerunt adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam"."
In the year U.c. 4883 a second Prætor, called the Prætor peregrinus, was created, whose duty it was to hear and determine all matters where a peregrinus was one of the suitors. At the latter end of the Republic, and in the reign of Augustus, there were sixteen Prætors to whom various departments were assigned, such as the Prætor tutelaris, the Prætor fiscalis, &c.
Responsa Prudentum are opinions of those to whom it was permitted to answer authoritatively on matters of law. These, collected together, were called emphatically Jus Civile'.
The Jurisconsulti had their origin in the early period of the Roman Commonwealth, when the Jus Patronatus was established. The plebs were the clientes of the patricians. Any plebeian might choose whom he pleased as his patron, who was obliged to advise, and to defend him in courts of justice; whilst, on the other hand, the client was expected to perform a variety of services for his patron. These on both sides were gratuitous". This state of things was only adapted to the in
1 D. I. I. 8.
2 D. I. I. 7.
5 Hein. I. 2. 30.
3 Haub. II. 34.
fancy of the Republic, for as the Jus Civile became CHAP. gradually developed, it is obvious that the ordinary patronus would, in many instances, be unfit to deal with his client's case: the more astute of the patroni were, therefore, sought out by the clients, and thus, from the simple Patronus, arose gradually the Jurisperitus. This accounts for all the early lawyers being patricians. The house of the Roman lawyer was the common resort of every one who was involved in any legal difficulty'. The jurisperitus was consulted as he walked about the Forum; and he had what we should call an office, or chambers, where he sat. The client on entering said, Licet consulere?. If he were disengaged he answered, Consule. The client then stated his case as concisely as possible, adding, Quæro an existumes? The lawyer replied, Secundum ea quæ præponuntur, existumo, puto, sentio, &c., and, gave his opinion very briefly, with no reason for his answer.
These responsa being collected, and arranged under the different heads of which they treated, when recognised by the usus Fori, became one of the most important parts of the Roman law, and were entitled the Responsa Prudentum, comprising, at the close of the Republic, one of the chief heads of the unwritten law.
When Augustus became emperor he gave au- Auctoritas thority to certain lawyers in particular (six in number) respondere de jure, and decreed that their responsa should be regarded as law, hence called Auctoritas Prudentum1. This decree does not appear to have interfered with the responsa of the jurisprudentes in general, who at that period must have been very numerous.
Placita Principum are constitutions of the Ro- Placita man emperors. These were, 1. General. 2. Special. pum. The general were Epistolæ, Decreta, Edicta. The special were called Privilegia.
These commence in the reign of Augustus, who by the lex regia, or the lex imperii, became solutus legibus, and so invested with arbitrary power. These constitutions cannot be better explained than in the words of Ulpian. "Quod Principi placuit legis habet vigorem: utpote cum lege regia, quæ de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem conferat. Quodcunque igitur Imperator per Epistolam et subscriptionem statuit, vel cognoscens decrevit, vel de plano interlocutus est, vel edicto præcepit, legem esse constat. Hæc sunt quas vulgo constitutiones appellamus'."
Epistolæ et Epistola, or rescripta, were answers of the rescripta. emperor to questions proposed to him for solution. If directed to public officers they were termed epistolæ, if to private individuals, annotations or subnotations. If to corporate bodies, sanctio pragmatica.
Sanctio pragmatica. Decretum.
A decretum was the decision of the emperor upon some legal point which had been referred to him. It was not a general law, unless declared to be so in the body of the decree, until the time of Justinian'.
Edicta were general in their application, as for instance the edict of Augustus declaring that the evidence of slaves should be taken in cases of Mandata. capital crimes. Mandata were orders and instructions sent to governors of provinces, e.g. forbidding a public officer to marry a native of the province in which he was stationed'.
The unwritten law is custom.
Custom is thus defined, Jus moribus constitutum. The difference between the written and the unwritten law is the authority which enacts them; and it must be observed that they are not different kinds of law; they are the same laws only differ
1 D. I. 4. I.
3 D. XLVIII. 18. 8.
2 C. I. 14. 12; Colq. 1. 318.
4 D. XXXIV. 9. 2. I.
ently expressed. The will of the legislative power CHAP. in each country determines the written law. The tacita civium conventio, joined with long and constant exercise, is the foundation of the unwritten law'. The written law of the Romans was comprised in the leges, plebiscita, senatusconsulta, and the placita principum; these, as soon as written and published, were in full force as laws; but the edicta magistratuum and the responsa prudentum constituted the lex non scripta, because these had no force of law until adopted and established by long and constant usage.
The written law can abrogate custom by an express enactment to the contrary, but in case of ambiguity the unwritten may prevail against the written law2.
Custom constitutes a portion of the Jus civile of every civilized community. The term "unwritten” remains to be explained. And taking the law of England as an example, the common law may be found everywhere discussed in books of reports and judicial decisions, and is so handed down to us, but it is still the unwritten law, because its original institution and authority is not set down in writing as in the case of an Act of Parliament, its binding power and force of law being derived from long and immemorial usage.
Of Persons in general, and of Freemen and
PERSONS are considered either in their natural or civil capacities. In their natural capacity they are considered with regard to, 1. Life. 3. Age.
As to life they are nascituri or nati.
An unborn infant, nasciturus, may be the object of rights and privileges, and thus was entitled, if posthumous, by the Roman law, to its share of the intestate father's estate; and if the father died testate before its birth without having left it its legitimate portion, the rights of the nasciturus rendered the will void1.
Nati. A child must be duly born, separated from the mother, alive. It must be homo, that is, endowed with a rational mind in a human body, otherwise it will be considered as a monster, and incapable of rights and privileges2.
Sex. Males and Females. The position of the two sexes was very unequal among the Romans. A woman had no parental power over her children, nor could she be guardian to her children or grandchildren, nor could she make a will during the Republic. After the establishment of the Empire their position became better3.
Age. The Romans thus divided the period from birth to majority.
Infancy. Males and females from birth to seven years of age.
1 D. I. 5. 26; and see post. book II. ch. 6.
3 D. I. 5. 9.
2 D. I. 5. 14.