BOOK I. Epistolæ et 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 appellamus1." 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. Edicta. 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 Justinian2. 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. The unwritten law is custom. Custom is thus defined, Jus moribus constitutum3. 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. J. 2 C. I. 14. 12; Colq. I. 318. II. 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. BOOK I. Nascituri. Nati. Sex. Age. CHAPTER III. Of Persons in general, and of Freemen and Slaves. 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. 2. Sex. 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. III. Puberty. Minus plena. Males fourteen, fe- CHAP. males twelve. Puberty. fourteen. Plena. Males eighteen, females Majority. Plena ætas. At twenty-five years. In their civil capacity their state is denominated from respect to 1. Liberty. 2. City. 3. Family. The first division of persons in a civil consideration is into freemen and slaves. slavery. Slavery in the Civil law had three origins. Origins of 1. Captivity in war. 2. Birth. 3. The sale of a None of these are justifiable man's self to another. causes of slavery. Slavery is thus defined. "Servitus est consti- Servitus. tutio juris gentium qua quis dominio alieno contra naturam subjicitur'.' The Roman slave was a mere human being without the smallest civil right, and he was, therefore, regarded as a chattel; res, a thing, which might be sold, or be bequeathed as a legacy to whomsoever his owner pleased. Being endowed with a rational mind in a human body he was homo; but he was not persona. "Persona est homo cum statu quodam conside- Persona. ratus. Status est qualitas cujus ratione homines diverso jure utuntur. Quicunque igitur nullo statu gaudet, jure Romano, non persona sed res est"." I. As to captivity in war. It is declared by the Roman law, that " quæ ex hostibus capiuntur, jure gentium statim capientium fiunt." They who were captured pugnantes in acie were reduced to slavery, and sold sub corona as a part of the plunder. 2. Slavery by birth. The children of slaves could be in no better position than their parents. These were the verna, born in the house of the 2 Hein. El. 75. 76. 1 D. I. 5. 4. I. 3 D. XLI. I. 5. 7. BOOK master of those slaves who were living in contu I. Slavery by Nations able. burnio. 3. Slavery by the sale of a man's self to another. Persons who allowed themselves to be sold by another for the sake of sharing the money of which the buyer was thus defrauded, were declared to be slaves; nor, if afterwards manumitted, could they ever recover their ingenuitas1. None of these were justifiable causes of slavery. the Law of With regard to the first, it was said the conqueror unjustifi had a right to the life of his captive, and having spared his life he had a right to sell him into slavery; but if he could subdue his enemy without taking his life in self-defence, he had no right to kill him. The selling of a prisoner of war into perpetual slavery is contrary to the law of nations, because by the Jus postliminii, on the re-establishment of peace, all things resume their former state, and the prisoner of war is entitled to return to his country. At the same time, it must be admitted, that though slavery is contrary to the law of nature, it is not, therefore, contrary to the positive law of any state where it is imposed as a punishment for crimes; it must also be remembered that lawful war is not a crime, and that an alien enemy taken in arms against the state of his captor, is no violator of the Civil law. Secondly, in the case of slavery by birth, if the parents be unjustly slaves, the children must be so likewise. Thirdly, self-sale is absurd, because since a slave could possess no property, for whatever he obtained belonged to his master, and he would become a slave as soon as the price was agreed upon, the master paid nothing, and the slave received nothing. But it is evident from the passage in the Digest, "ad pretium participandum venire passus ," that the buyer was deceived by a third party who offered the supposed slave, and received the est, |