Cod. 6, 23, 3, was called by later jurists lex regia, in memory of the lex curiata, whereby the kings were invested with regal power. The king was proposed by the senate and elected by the Comitia Curiata, and the election was ratified in a second assembly presided over by the king; e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus adscivit, qui ut huc venit, quanquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, Cic. De Republ. 2, 13. A fragment of a bronze tablet, on which was inscribed the lex investing Vespasian with sovereign powers, was discovered at Rome in the fourteenth century, and is still preserved in the capitol.

§ 6. All the higher magistrates of Rome were accustomed to issue edicts or proclamations. Thus the consuls convoked the comitia, the army, the senate, by edict: the censors proclaimed the approaching census by edict: the ediles issued regulations for the market by edict: and magistrates with jurisdiction published edicts announcing the rules they would observe in the administration of justice, the Edicts of the Praetor urbanus, Praetor peregrinus, Aedilis curulis being called Edicta urbana, while the Edicts of the governors of provinces were called Edicta provincialia. These edicts, besides being orally proclaimed, were written on white tablets (in albo) and suspended in the forum: apud forum palam ubi de plano legi possit, Probus, 'in the forum in an open space where persons standing on the ground may read.' Such an edict was always published on entering on office (est enim tibi jam, cum magistratum inieris et in concionem adscenderis, edicendum quae sis observaturus in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum perpetuum, as opposed to occasional proclamations, Edictum repentinum. A clause (pars, caput, clausula, edictum) retained from a former edict was called Edictum tralatitium, Gellius, 3, 18; and though doubtless the edicts gradually changed according to changing emergencies, each succeeding praetor with very slight modifications substantially reproduced the edict of his predecessor. In the reign of Hadrian the jurist Salvius Julianus, called by Justinian Praetoriani edicti ordinator, reduced the edict to its definitive form, and if the yearly publication was not discontinued (cf. Gaius, jus edicendi habent), at all events Julian's coordination of Praetorian law was embodied in all subsequent publications. Such was the origin of Jus honorarium (praetorium, aedilicium), as opposed to Jus civile: and from what has

A

preceded, it needs hardly be stated that the antithesis, Jus civile, Jus honorarium, is nearly coincident with the antithesis, Jus civile, Jus gentium.

It may be observed that Gaius does not attribute to edicts the force of a statute: and this theoretical inferiority of Jus honorarium, for after all it was only theoretical, had a vast influence in modelling the forms and proceedings of Roman jurisprudence. The remedy or redress administered to a plaintiff who based his claim on Jus civile differed from that administered on an appeal to Jus honorarium, as we shall see when we come to treat of Bonitary ownership, Bonorum possessio, Actio in factum, Exceptio. This difference of remedy preserved Jus civile pure and uncontaminated, or at least always distinguishable from Jus honorarium; but this perpetuation of the memory of the various origins of the law, like the analogous distinction of Equity and Common law in English jurisprudence, was purchased by sacrificing for an insufficient object simplicity of rule and uniformity of process.

The legislative power of the popular assembly and the absence of legislative power in the senate and praetor were marked by a difference of style in the lex and plebiscite, edict, and decree of the senate while the lex and plebiscite employed the imperative (damnas esto, jus potestasque esto, &c.), the resolutions of the senate scrupulously avoid the imperative and are clothed in the forms placere, censere, arbitrari, &c., as if they were rather recommendations than commands: and the edicts and interdicts of the praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a milder form of imperative. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person (actionem dabo, ratum habebo, vim fieri veto). Where he has authority to command he shows it by using the imperative, as in addressing the litigants (mittite ambo hominem, inite viam, redite, 4 § 13 com.) or the judge (judex esto, condemnato, absolvito). Ihering, § 47.

In the first period of the empire, that is, in the first three centuries of our era, it was the policy of the emperors to maintain a certain show of republican institutions, and the administration of the empire was nominally divided between the princeps or emperor and the people as represented by the senate. Thus, at Rome there were two sets of magistrates, the old republican magistrates with little real power, consuls, praetors, censors, tri

bunes, quaestors, in outward form elected by the people; and the imperial nominees with much greater real authority, under the name of praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, praefectus annonae, praefectus aerario; for though nominally the people and princeps had their separate treasuries under the name of aerarium and fiscus, yet the treasury of the people was not managed by quaestors as in the time of the republic, but by an official appointed by the emperor. Similarly the provinces were divided between the people and the prince, the people administering those which were peaceful and unwarlike, the prince those which required the presence of an army. The governor of a province, whether of the people or the emperor, was called Praeses Provinciae, though the title properly belonged to the governor of an imperial province. The Praeses of a popular province was a Proconsul, and the chief subordinate functionaries were Legati, to whom was delegated the civil jurisdiction, and quaestors, who exercised a jurisdiction corresponding to that of the ediles in Rome. The emperor himself was in theory the Proconsul of an imperial province; but the actual governor, coordinate with the Proconsul of a senatorial province, was the Legatus Caesaris, while the financial administration and fiscal jurisdiction were committed to a functionary called Procurator Caesaris, instead of the republican Quaestor. Sometimes the same person united the office of Procurator and Legatus, as, for instance, Pontius Pilate.

§ 7. The opinions of a jurist had originally only the weight that was due to his knowledge and genius; but on the transfer of sovereign power from the hands of the people to those of a monarch, the latter recognized the expediency of being able to direct and inspire the oracles of jurisprudence; and accordingly Augustus converted the profession of jurist into a sort of political function, giving the decisions of certain authorized jurists the force of law, intending, doubtless, that the blue ribbon of the profession should never be conferred on any lawyer who had antiquarian notions of constitutional law, or whose instincts did not make him a zealous propagandist of the doctrines of despotism. Ante tempora Augusti publice respondendi jus non a principibus dabatur, sed qui fiduciam studiorum suorum habebant, consulentibus respondebant. Neque responsa utique signata dabant, sed plerumque judicibus ipsi scribebant aut testabantur qui illos consulebant. Primus divus Augustus,

ut major juris auctoritas haberetur, constituit ut ex auctoritate ejus responderent, et ex illo tempore peti hoc pro beneficio coepit, Dig. 1, 2, 47. Until Augustus, the public decision of legal questions was not a right conferred by imperial grant, but any one who relied on his knowledge advised the clients who chose to consult him. Nor were juristic opinions always given in a letter closed and sealed, but were generally laid before the judge in the writing or by the attestation of one of the suitors. Augustus, in order to increase their weight, enacted that they should be clothed with his authority, and henceforth this office was sought for as an imperial favour.' Those jurists who had the Jus respondendi were called Juris auctores. Their auctoritas resided, in the first instance, in their responsa, or the written opinions they gave when consulted on a single case; but in the second instance, doubtless, in their writings, which in fact were mainly a compilation of their responsa, a fact which has left its traces in the disjointed and incoherent style which disagreeably characterizes Roman juristic literature. In the course of centuries the accumulation of juristic writings of coordinate authority was a serious embarrassment to the tribunals. To remedy this evil, A.D. 426, Theodosius and Valentinian enacted what is called the law of citations, Cod. Theodosianus, 3, limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of those juris auctores. In case of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. A.D. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which he gives legislative authority. Every sentence, accordingly, of these passages is called a lex, and the remainder of their writings is pronounced to be absolutely void of authority. To prevent the recurrence of the evil which his codification was intended to remove, and confident in the lucidity and adequacy of his Digest and Code, Justinian prohibits for the future the composition of any juristic treatise or commentary on the laws. If any one should disregard the prohibition, the books are to be destroyed and the author punished as guilty of forgery (falsitas), Cod. 1, 17, 2, 21.

Besides the sources of law enumerated by Gaius, the Institutes

of Justinian mention Custom or Usage, the source of consuetudinary or customary law (jus non scriptum, consensu receptum, moribus introductum). To this branch of law are referred, with other rules, the invalidity of donations between husband and wife, Dig. 24, 1, 1, the power of making a will for an infant successor who dies before the age of puberty (pupillaris substitutio), Dig. 28, 6, 2, and universal succession in Coemption and Adrogation, 382. We may suppose that Customary law, like Roman law in general, would fall into two divisions, Civil law and Gentile law, the former embracing what Roman writers sometimes speak of as mores majorum. Before the time of Gaius, however, most, if not all, of Customary law must have been taken up into the edict of the praetor or the writings of the jurists, Cic. De Invent. 2, 22; i.e. unwritten law must have changed its character and have been transformed into written law.

DE IURIS DIVISIONE.

§ 8. Omne autem ius quo utimur vel ad personas pertinet, vel ad res, vel ad actiones. sed prius videamus de personis.

ON THE BRANCHES OF THE LAW.

§ 8. The whole of the law by which we are governed relates either to persons, or to things, or to procedure; and let us first examine the law of persons.

§ 8. What are the leading divisions of law-what are the main masses into which legislation naturally breaks itself-what are the joints and articulations which separate the whole code into various subordinate codes, like the different limbs and members of an organic whole-what is the import of the Gaian division into jus personarum, jus rerum, jus actionum, or rather, to adhere to the classical phrases, jus ad personas pertinens, jus ad res pertinens, jus ad actiones pertinens?

By jus ad actiones pertinens, to begin with the easier part of the problem, there is no doubt that the inventor of the division intended to designate the law of PROCEDURE as opposed to the law of rights; the adjective code, to use Bentham's phraseology, as opposed to the substantive code. There is as little doubt that in the Institutions of Gaius this design is not executed with precision, and that, instead of the law of procedure, the last portion of his treatise rather contains the law of sanctioning rights, as opposed to the law of primary rights. Or perhaps we should say that the legislative