THE DIGEST OR PANDECTS. BOOK I

TITLE I. CONCERNING JUSTICE AND LAW.

1. Ulpianus, Book I, Institutes.

Those who apply themselves to the study of law should know, in the first place, from whence the science is derived. The law obtains its name from justice; for (as Celsus elegantly says), law is the art of knowing what is good and just.

(1) Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy.

(2) Of this subject there are two divisions, public and private law. Public law is that which has reference to the administration of the Roman government; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons. Public law has reference to sacred ceremonies, and to the duties of priests and magistrates. Private law is threefold in its nature, for it is derived either from natural precepts, from those of nations, or from those of the Civil Law.

(3) Natural law is that which nature teaches to all animals, for this law is not peculiar to the human race, but affects all creatures which deduce their origin from the sea or the land, and it is also common to birds. From it proceeds the union of male and female which we designate as marriage; hence also arises the procreation of children and the bringing up of the same; for we see that all animals, and even wild beasts, appear to be acquainted with this law.

(4) The Law of Nations is that used by the human race, and it is easy to understand that it differs from natural law, for the reason that the latter is common to all animals, while the former only concerns men in their relations to one another:

2. Pomponius, Enchiridion

For instance, reverence towards God, and the obedience we owe to parents and country:

3. Florentinus, Institutes, Book I

As we resist violence and injury.

For, indeed, it happens under this law what whatever anyone does for the protection of his body is considered to have been done legally; and as Nature has established a certain relationship among us, it follows that it is abominable for one man to lie in ambush for another.

4. Ulpianus, Institutes, Book I.

Manumissions also, are part of the Law of Nations, for manumission is dismissal by the hand, that is to say the bestowal of freedom; for as long as anyone is in servitude he is subject to the hand and to authority, but, once manumitted, he is liberated from that authority. This takes its origin from the Law of Nations; since, according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown; but after slavery was admitted by the Law of Nations, the benefit of manumission followed, and while men were designated by one natural name there arose three different kinds under the Law of Nations, that is to say freemen, and, in distinction to them, slaves, and as a third class, freedmen, or those who had ceased to be slaves.

5. Hermogenianus, Epitomes of Law, Book I.

By this Law of Nations wars were introduced; races were distinguished; kingdoms founded; rights of property ascertained; boundaries of land established; buildings constructed; commerce, purchases, sales, leases, rents, obligations created, such being excepted as were introduced by the Civil Law.

6. Ulpianus, Institutes, Book I.

The Civil Law is something which is not entirely different from natural law or that of Nations, nor is it in everything subservient to it; and therefore when we add or take anything from the Common Law we constitute a separate law, that is the Civil Law.

(1) This our law then is established either by writing, or without it, as among the Greeks "twn nomwn oi men eggrafoi oi de agrafoi", that is to say, some laws are in writing and others are not.

7. Papinianus, Definitions, Book II.

The Civil Law is that which is derived from statutory enactments, plebiscites, decrees of the Senate, edicts of the Emperors, and the authority of learned men.

(1) The prætorian law is that which the Prætors introduced for the purpose of aiding, supplementing, or amending, the Civil Law, for the public welfare; which is also designated honorary law, being so called after the "honor" of the Prætors.

8. Marcianus, Institutes, Book I.

For honorary law itself is the living voice of the Civil Law.

9. Gaius, Institutes, Book I.

All nations who are ruled by law and customs make use partly of their own law, and partly of that which is common to all men. For whatever law any people has established for itself is peculiar to that State, and is called the Civil Law, as being the particular law of that State. But whatever natural reason has established among all men is equally observed by all mankind, and is called the Law of Nations, because it is the law which all nations employ.

10. Ulpianus, Rules, Book I.

Justice is the constant and perpetual desire to give to every one that to which he is entitled.

(1) The precepts of the law are the following: to live honorably, to injure no one, to give to every one his due.

(2) The science of the law is the acquaintance with Divine and human affairs, the knowledge of what is just and what is unjust.

11. Paulus, On Sabinus, Book XIV.

The term "law" is used in several ways. First, whatever is just and good is called law, as is the case with natural law. Second, where anything is useful to all or to the majority in any state, as for instance the Civil Law. Nor is honorary law less justly so designated in Our State, and the Prætor also is said to administer the law even when he decides unjustly; for the term has reference not to what the Prætor actually does, but to that which it is suitable for him to do. Under another signification, the word indicates the place where justice is administered, the name being shifted from the act itself to the locality where it is performed, and this locality may be determined in the following manner; whenever the Prætor may designate a place for the dispensation of justice, that place is properly called the law, provided the dignity of his office and the customs of our ancestors are preserved.

12. Marcianus, Institutes, Book I.

Sometimes the term "law" is used to denote a connection, as for instance, "I am connected by the law of consanguinity or affinity with such-and-such a person".

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TITLE II. CONCERNING THE ORIGIN OF LAW AND OF ALL MAGISTRATES, TOGETHER WITH A SUCCESSION OF JURISTS.

1. Gaius, On the Law of the Twelve Tables, Book I.

Being about to give an interpretation of ancient laws, I have thought it necessary, in the first place, to go back to the origin of the City, not because I wish to make extensive commentaries, but for the reason that I notice that that is perfect in all things which is finished in all its parts; and indeed the most important part of anything is the beginning. Then, where causes are argued in the forum, if I should say that it is abominable to state the matter to the judge without making any previous remarks, it would be much more improper for those making an explanation to neglect the beginning and avoid reference to the origin of the case; proceeding with unwashed hands, so to speak, without delay to discuss the question which is to be decided. For, unless I am mistaken, these previous explanations render persons more inclined to examine the question at issue, and when we have approached it, make the comprehension of the subject more clear.

2. Pomponius, Enchiridion.

It, therefore, seems necessary to explain the origin of the law itself, as well as its subsequent development.

(1) In fact, at the beginning of our State the people undertook to act at first without any certain statutes or positive law, and all government was conducted by the authority of the Kings.

(2) Afterwards, the State being, to some extent enlarged, it is said that Romulus himself divided the people into thirty parts which he called curiæ; because he then exercised care over the Republic in accordance with the decisions of the said parts. Thus he proposed to the people certain laws relating to their assemblies, and subsequent kings also made similar proposals, all of which having been committed to writing, are to be found in the book of Sextus Papirius, who lived in the time of Superbus, the son of Demaratus of Corinth, and who was one of the principal men. This book, as We have stated, is called the Papirian Civil Law, not because Papirius added anything of his own to it, but because he compiled in a single treatise laws which had been passed without observing any order.

(3) The kings having afterwards been expelled by a Tribunitian enactment, all these laws became obsolete, and the Roman people again began to be governed by uncertain laws and customs, rather than by statutes regularly passed, and this state of affairs thus endured for almost twenty years.

(4) Afterwards, in order that this condition might not be continued, it was decided that ten men should be appointed by public authority, through whose agency laws should be applied for to the States of Greece, and that the Commonwealth should be founded upon statutory enactments. Those thus obtained were inscribed upon ivory tablets, and placed before the Rostra, so that the laws might be the more clearly understood; and supreme authority in the State was conferred upon said officials for that year, so that they might amend the laws, if it was necessary, and interpret them; and that there should be no appeal from their decisions, as there was from those of other magistrates. They, themselves, observed that something was lacking in these original laws, and therefore during the following year they added two other tablets to them, and for this reason they were called the Laws of the Twelve Tables; and some writers have asserted that a certain Hermodorus, an Ephesian exile in Italy, was responsible for the enactment of the said laws.¹

¹ It is clear that the Decemviri who were appointed as a commission about 450 B. C. by the patrician order for the purpose of revising the ancient statutes and customs, and incorporating them into a new Code for the government of the Roman people, did not depend upon Greece for the greater part of the rules which they afterwards adopted and published. The share of Grecian legislation in the formation of the Twelve Tables is small, indeed, when compared with the body of ancient law included therein, much of which dated back to the early days of the regal period, and constitutes, in fact, a summary of long existing and well recognized jurisprudence, with which all classes were already more or less familiar; and which, shorn of useless verbiage, ambiguities, and contradictory precepts, was now abridged and condensed into a practical and useful form. The fragmentary condition of the Twelve Tables, despite the frequent attempts at their reconstruction by various scholars, renders it impossible for us to arrive at a satisfactory conclusion as to the original source for which any particular portions of the compilation have been derived, and thus enable us to establish and formulate the primitive rules of Roman judicature; and reliance must principally be placed upon the citations from legal writers scattered through the Digest, whose works, for the most part, exist only in a badly mutilated condition, or are only known to us by name.

The high encomiums bestowed upon the Twelve Tables by the historians and jurists of the Republic and the Empire indicate the estimation in which they were held by the educated classes of the Roman world. Livy calls them "The source of all public and private law"; "Fons omnis publici privatique juris" (Livy XII, 34); and Cicero refers to them as "A compendium of the maxims of all philosophers"; "Bibliothecas mehercule omnium philosophorum unus mihi videtur XII tabularum, libellus, si quis legum fontes et capita viderit, et auctoritatis pondere et utilitatis ubertate superare (De Oratore I, XLIV). Every student of law was compelled to thoroughly memorize them before he could proceed to further prepare himself for his profession; and as the tablets on which they were inscribed — originally of ivory and afterwards of bronze — were posted in the Forum, all citizens were presumed to be, to a certain extent, acquainted with the cardinal principles of the legal system of their country, a rigid adherence to which was long required of magistrates in rendering their decisions, regardless of any hardship which such a strict interpretation of the laws entailed. By the public exposition of these time-honored statutes, the monopoly of legal information for ages enjoyed and jealously guarded by the patricians as a peculiar privilege of their rank was largely abrogated; the lower orders of the people were the better enabled to protect themselves from oppression and injury; and no one could allege want of knowledge in order to liberate himself from the consequences of an illegal act; giving rise to the maxim "Ignorantia juris neminem excusat". — ED.

(5) These statutes having been passed, it follows as a natural consequence that discussion in the forum became requisite; as a proper interpretation demands the authority of persons learned in the law. This discussion and this law composed by jurists and which was unwritten, was not designated by any particular name, as were the other parts of the law by their specific appellations, but they are called by the common designation the Civil Law.

(6) Afterwards, at about the same time, certain actions based upon these laws were established, by means of which men might argue their cases; and in order to prevent the people from bringing these actions in any way they might desire, the magistrate required that this should be done in a certain and solemn manner; and this part of the law is called that of statutory actions, that is to say, legal actions. And thus about the same time these three divisions of the law originated; that is, the Laws of the Twelve Tables, and from these arose the Civil Law, and from this source likewise were derived the legal actions. But the knowledge of interpreting all these, and the actions themselves, were assigned to the College of Pontiffs; and it was established which one of them should have jurisdiction over private actions during each year. The people made use of this custom for almost a century.

(7) Afterwards, Appius Claudius arranged these actions and reduced them to a certain form, and Gnæus Flavius, his secretary, the son of a freedman, gave the book to the people after it had been surreptitiously obtained; and so acceptable was that gift that he was made Tribune of the people, Senator, and Curule Ædile. This work which contains the method of bringing actions is called the Flavian Civil Law; just as the former one is called the Papirian Civil Law; for Gnæus Flavius did not add anything of his own to the book. As the commonwealth became enlarged, for the reason that certain methods of procedure were lacking, Sextus Ælius not long afterwards framed other forms of action, and gave the book to the people which is called the Ælian Law.

(8) Then, there being in use in the State the Law of the Twelve Tables, the Civil Law, and that of Statutory Actions, the result was that the plebs disagreed with the fathers, and seceded, and enacted laws for itself, which laws are called Plebiscites. Afterwards, when the plebs was recalled because much discord arose on account of these plebiscites, it was established by the Lex Hortensia that they should be observed as laws, and in consequence of this the distinction between the plebiscites and the other laws existed in the manner of their establishment, but their force and effect were the same.

(9) Then, because it was difficult for the plebs any longer to assemble, and much more so for the entire body of the people to be collected in such a crowd of persons; necessity caused the government of the commonwealth to be committed to the Senate. Thus the Senate began to take an active part in legislation, and whatever it decreed was observed, and this law was called a Senatus-Consultum.

(10) At the same time there was also magistrates who dispensed justice, and in order that the citizens might know what law was to be applied in any matter and defend themselves accordingly, they proposed edicts, which Edicts of the Prætors constituted the honorary law. It is styled honorary, because it originated from the office of the Prætor.

(11) Finally as it became necessary for the commonwealth that the public welfare should be attended to by one person, for the mode of enacting laws seemed to have progressed little by little as occasion demanded; and since the Senate could not properly direct the affairs of all the provinces, a supreme ruler was selected, and he was given authority, so that whatever he decided should be considered valid.

(12) Thus, in Our commonwealth everything depends either upon statute, that is upon legal enactment; or there exists a peculiar Civil Law which is founded without writing upon the sole interpretation of jurists; or there are the statutory actions which contain the method of procedure; or there is a plebiscite passed without the authority of the fathers; or there is the edict of the magistrate, whence is derived the honorary law; or there is the Senatus-Consultum, which is based upon the action of the Senate alone, without any statute; or there is the Imperial Constitution, that is, that whatever the Emperor himself formulates shall be observed as the law.

(13) After the origin of the law and the procedure have been ascertained, it follows that We should be informed concerning the titles of magistrates and their origin; because, as We have stated, it is through those who preside over the administration of justice that matters are rendered effective; for how much law could there be in a State unless there are persons who can administer it? Next in order after this, We shall speak of the succession of authorities; for law cannot exist unless there are individuals learned in the same, by means of whom it can daily be improved.

(14) As to what concerns magistrates, there is no question but that in the beginning of the commonwealth all power was vested in the kings.

(15) There existed at the same time a Tribunus Celerum who commanded the knights, and held the second rank after the king; to which body Junius Brutus, who was responsible for the expulsion of the kings, belonged.

(16) After the kings were expelled two consuls were appointed, and it was established by law that they should be clothed with supreme authority. They were so called from the fact that they specially "consulted" the interests of the republic; but to prevent them from claiming for themselves royal power in all things, it was provided by enactment that an appeal might be taken from their decisions; and that they should not be able, without the order of the people, to punish a Roman citizen with death, and the only thing left to them was the exertion of force and the power of public imprisonment.

(17) Subsequently, when the census occupied much time, and the consuls were not able to discharge this duty, censors were appointed.

(18) Then, the people having increased in numbers, and frequent wars against neighboring tribes having taken place, it sometimes became necessary for a magistrate of superior authority to be appointed, and hence dictators arose, from whose decisions no right of appeal existed; and who were invested with the power of capital punishment. As this magistrate had supreme authority, he was not allowed to retain it for a longer period than six months.

(19) To these dictators Masters of Cavalry were added, who occupied the same place as the Tribuni Celerum under the King, whose duties were almost the same as those discharged at present by the Prætorian Prefect; and they were also considered lawful magistrates.

(20) At the time when the plebs had seceded from the fathers, about seventeen years after the expulsion of the Kings, they created tribunes for themselves on the Sacred Mount, who were Tribunes of the People; and they were called "tribunes" for the reason that formerly the people were divided into three parts, and one tribune was taken from each one, or because they were created by the votes of the tribes.

(21) Again, that there might be officials who would have charge of the temples in which the people deposited all their statutes, two persons were selected from the plebs who were styled ædiles.

(22) Next, when the Public Treasury began to increase in importance, quæstors were appointed to have charge of the same, and to take care of the funds, and they were so called because they were created for the purpose of examining the accounts and preserving the money.

(23) And for the reason (as We have already stated), that the consuls were not permitted by law to inflict capital punishment, without the order of the Roman people; quæstors were also appointed by the people to preside in capital cases, and these were designated quæstores parricidii, of whom mention is made in the Laws of the Twelve Tables.

(24) And as it was also determined that laws should be enacted, it was proposed to the people that all magistrates should resign in order that Decemviri might be appointed for one year; but as the latter prolonged their term of office, and acted in an unjust manner, and were not willing afterwards to elect the magistrates who were to succeed them, so that they and their faction might retain the commonwealth constantly under their control; they conducted the public affairs in such an arbitrary and violent manner that the army withdrew from the commonwealth. It is said that the cause of the succession was one Virginius, who when he learned that Appius Claudius, in violation of the provision which he himself had transferred from the ancient law of the Twelve Tables, had refused to give him control of his own daughter, but gave it to a man who, instigated by him, claimed her as a slave, as he, influenced by love for the girl, had confounded right and wrong; and the said Virginius being indignant that the observance of a law of great antiquity had been violated with reference to the person of his daughter, (just as Brutus who, as the first Consul of Rome had granted temporary freedom to Vindex, a slave of the Vitelli, who had revealed by his testimony a treasonable conspiracy) and thinking the chastity of his daughter should be preferred to her life, having seized a knife from the shop of a butcher, killed her, in order that, by the death of the girl, he might protect her from the disgrace of violation; and immediately after the murder, when still wet with the blood of his daughter, he fled to his fellow soldiers, all of whom deserting their leaders at Algidiun (where the legions were at the time for the purpose of waging war) transferred their standards to the Aventine Hill; and soon all the people of the city at once betook themselves to the same place, and by popular consent some of the Decemviri were put to death in prison, and the commonwealth resumed its former condition.

(25) Then, some years after the Twelve Tables had been enacted, a controversy arose between the plebs and the fathers, the former wishing to create consuls from their own body and the fathers refusing to consent to this; it was resolved that military tribunes should be created with consular power, partly from the plebs, and partly from the fathers. The number of these was different at various times, sometimes there were twenty of them, sometimes more than that, and sometimes less.

(26) Subsequently it was decided that consuls could be taken from the plebs, and they began to be appointed from both bodies; but in order that the fathers might have more power, it was determined that two officials should be appointed from the number of the latter, and hence the Curule Ædiles originated.

(27) And as the consuls were called away by distant wars, and there was no one who could dispense justice in the State, it happened that a Prætor also was created, who was styled "Urbanus", because he dispensed justice in the city.

(28) Then, after some years, this Prætor, not being found sufficient because of the great crowd of foreigners who came into the city, another Prætor called "Peregrinus" was appointed, for the reason that he usually dispensed justice among foreigners.

(29) Then, as a magistrate was necessary to preside over public sales, Decemviri were appointed for deciding cases.

(30) At the same time Quatuorviri also were appointed who had supervision of the highways, and Triumviri, who had control of the mint, who melted bronze, silver, and gold, and capital Triumviri, who had charge of the prisons, so that when it was necessary to inflict punishment it might be done by their agency.

(31) And, for the reason that it was inconvenient for magistrates to appear in public during the evening, Quinqueviri were appointed on each side of the Tiber, who could discharge the duties of magistrates.

(32) After Sardinia had been taken, and then Sicily and Spain, and subsequently the Narbonnese province, as many Prætors were created as there were provinces which had come under the Roman rule; part of whom had jurisdiction over matters in cities, and part over provincial affairs. Next Cornelias Sylla established public investigations, as for instance, those concerning forgery, parricide, and assassins, and added four Prætors. Then Gaius Julius Cæsar appointed two Prætors and two Ædiles, who superintended the distribution of grain, and were called Cereales, from Ceres. In this way twelve Prætors and six Ædiles were created. Then the Divine Augustus appointed sixteen Prætors, and afterwards the Divine Claudius added two more who administered justice in matters of trust; one of whom the Divine Titius dispensed with; and the Divine Nerva added another who expounded the law in questions arising between the Treasury and private individuals. Thus eighteen Prætors administered justice in the Commonwealth.

(33) All these regulations are observed as long as the magistrates are at home, but whenever they travel abroad one is left who expounds the law, and he is styled the Prefect of the City. This Prefect was created in former times; he was afterwards appointed on account of the Latin festivals, and this is done every year; but the Prefect of Subsistence and that of the Night Watch are not magistrates, but are extraordinary officials appointed for the public welfare; and also those whom we have mentioned as being appointed for this side of the Tiber, were afterwards created Ædiles by a decree of the Senate.

(34) Therefore, from all these things we learn ten Tribunes of the People, two Consuls, eighteen Prætors, and six Ædiles dispensed justice in the city.

(35) Many distinguished men have been professors of the science of the Civil Law; and of these at present We will mention those who enjoyed the highest esteem among the Roman people; to the end that it may appear from whom these laws have been derived and handed down, and what was their reputation. And, indeed, among all who acquired this knowledge, it is said that no one publicly professed it before Tiberius Coruncanius; others, however, before him attempted to keep the Civil Law secret, and only to give advice to those who consulted them, rather than to instruct such as desired to learn.

(36) Publius Papirius, who compiled the royal laws in one treatise, was in the first rank of those versed in the Royal Statutes; then came Appius Claudius, one of the Decemviri who took the most prominent part in the compilation of the Twelve Tables. After him, another Appius Claudius was the possessor of great legal learning, and he was called "Hundred Handed", for he laid out the Appian Way, constructed the Claudian Aqueduct, and gave it as his opinion that Pyrrhus should not be received into the city; it is also said that he drew up forms of action in cases of wrongful occupation of property, which book no longer exists. The same Appius Claudius invented the letter R, from which it resulted that the Valesii became Valerii, and the Fusii became Furii.

(37) After these came Sempronius, a man of preeminent learning, whom the Roman people called sofoV, that is to say, "wise", nor was anyone either before or after him designated by this title. Next in order was Gaius Scipio Nasica, who was styled by the Senate "The Best", to whom a house on the Via Sacra was given by the State where he might the more easily be consulted. Then came Quintus Mucius, who was sent as envoy to the Carthaginians, where when two dice were placed before him, one for peace and the other for war, and it was left to his judgment to select whichever he chose and take it to Rome; he took both, and said that the Carthaginians must ask for whichever one they preferred to have.

(38) After these came Tiberius Coruncanius, who, as I have already stated, was the first of the professors of the law, but no work of his is extant; his opinions, however, were very numerous and remarkable. Next in order Sextus Ælius, his brother Publius Ælius, and Publius Atilius had the greatest success in imparting instruction; so that the two Ælii also became consuls and Atilius was the first person invested by the people with the appellation of "The Learned". Ennius praises also Sextus Ælius and a book of his entitled Tripertita which still exists and contains, as it were, the cradle of the laws. It is called Tripertita because it includes the Law of the Twelve Tables, to which it added the interpretation of the same, as well as the method of legal procedure. Three other books are also attributed to him of which, however, certain writers deny him the authorship. Cato, to a certain degree, followed these men. Subsequently came Marcus Cato, the head of the Porcian family whose books are extant; but a great many were written by his son, from which still others derive their origin.

(39) After these came Publius Mucius, Brutus, and Manilius, who founded the Civil Law. Among them Publius Mucius left ten works, Brutus seven, and Manilius three; and written volumes of Manilius are also extant. The first two were of consular rank, Brutus was Prætor, and Publius Mucius had been Pontifex Maximus.

(40) After these came Publius Rutilius Rufus, who was Consul at Rome, and Proconsul of Asia, Paulus Virginius, and Quintus Tubero, the Stoic, a pupil of Pansa, who was himself Consul. Sextus Pompeius, the paternal uncle of Gnæus Pompeius, lived at the same time, and Cælius Antipater, who wrote historical works, but paid more attention to eloquence than to the science of the law. There was also Lucius Crassus, the brother of Publius Mucius, who was called Mucianus, and whom Cicero declared to be the best debater of all the jurists.

(41) After these came Quintus Mucius, the son of Publius, the Pontifex Maximus, who first codified the Civil Law by drawing it up under different heads in eighteen books.

(42) The pupils of Mucius were very numerous, but those of most eminent authority were Aquilius Gallus, Balbus Lucilius, Sextus, Papirius, and Gaius Juventius; of whom Servius declared that Gallus had the greatest authority among the people. All of them, however, are mentioned by Servius Sulpicius, but none of their writings are of such a kind as to be generally sought after; and, in fact, their works are not usually found in men's hands at all, though Servius made use of them in his own books, and on this account it is that the memory of them still survives.

(43) Servius, while he held the first place in arguing cases, or, at all events, held it after Marcus Tullius, is said to have applied to Quintus Mucius for advice concerning a matter in which a friend of his was interested, and as he had a very imperfect comprehension of the answer given him concerning the law, questioned Quintus a second time, and when the latter replied and he still did not understand, he was rebuked by Quintus Mucius, who told him that it was a disgrace for him, a patrician, a noble, and an advocate, to be ignorant of the law which was his profession. Servius was so affected by this reproach that he devoted his attention to the Civil Law, and was especially instructed by those of whom We have spoken; having been taught by Balbus Lucilius, and also having received much information from Gallus Aquilius, who resided at Cercina; and for this reason many of his books which are still extant were written there. When Servius died while absent on an embassy, the Roman people erected a statue to him in front of the Rostra, and it stands there to-day before the Rostra of Augustus. Many volumes of his remain, for he left nearly one hundred and eighty treatises.

(44) After him came many others, among whom nearly all of the following wrote books, namely: Alfenus Varus, Gaius, Aulus Ofilius, Titus Cæsius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gaius Ateius, Pacuvius, Labeo, Antistius, the father of Labeo Antistius, Cinna, and Publicus Gellius. Of ten eight wrote treatises, all of which were digested by Aufidius Namusa in a hundred and forty books. Of these pupils Alfenus Varus and Aulus Ofilius possessed the greatest authority; Varus became Consul, but Ofilius remained in the Equestrian rank; the latter was very intimate with the Emperor, and left many works on the Civil Law, which laid the foundation for the greater part of the same, for he first wrote on the laws of the five per cent tax, and on jurisdiction. He was also the first one to carefully systematize the Edict of the Prætor, although before him Servius had left two extremely short books relating to the Edict, which were addressed to Brutus.

(45) Trebatius, a pupil of Cornelius Maximus, also lived at the same time; and Aulus Cascelius, a pupil of Quintus Mucius Volusius, as well, and, indeed, in honor of his teacher he left his property to Publius Mucius, the grandson of the latter. He was also of quæstorian rank but he declined promotion, although Augustus offered him the consulship. Among these, Trebatius is said to have been better informed than Cascellius, but Cascellius is claimed to have been more eloquent than Trebatius, but Ofilius was more learned than either. No works of Cascellius are extant, except one of "Good Sayings", there are, however, several of Trebatius, but they are very little used.

(46) After this came Tubero, who studied under Ofilius. He was a patrician and abandoned arguing cases for the study of the Civil Law, principally because he had prosecuted Quintus Ligarius before Gaius Cæsar, and failed. This is the same Quintus Ligarius that, while he was holding the shore of Africa, refused to allow Tubero, who was ill, to land and obtain water, for which reason he accused him, and Cicero defended him. The oration of the latter, a very elegant one, which is entitled "For Quintus Ligarius", is still extant. Tubero was considered to be most learned in both public and private law, and left a great many treatises on both subjects. He had the affectation of writing in ancient language and therefore his works are not popular.

(47) After him the following were of the highest authority, namely, Ateius Capito, who followed Ofilius, and Antistius Labeo, who studied under all of them, he was also taught by Trebatius. Of these Ateius was Consul, but Labeo declined to accept the office which would have made him temporary consul when it was offered to him by Augustus; but he gave great attention to legal studies, and divided up the entire year so that he could be at Rome for six months with his pupils, and might be absent for the remaining six months, and employ his time in writing books. By doing this he left four hundred volumes, of which a great many are still in use. These two founded, as it were, two different schools, for Ateius Capito retained the principles which had been taught him; but Labeo, from the nature of his genius and his reliance upon his own learning, and who had given attention to other branches of knowledge, made many innovations. Massurius Sabinus succeeded Ateius Capito, and Nerva, Labeo; and these still further increased the aforesaid distinction between the schools. Nerva was also very intimate with the Emperor. Massurius Sabinus was of Equestrian rank, and was the first who wrote with public authority, and after this privilege was conceded, it was also granted to him by Tiberius Cæsar. And We may remark, in passing, that prior to the reign of Augustus, the right of giving opinions publicly was not granted by the chiefs of the State, but anyone who had confidence in his own attainments gave answers to those who consulted him, but they did not impress their seals upon the latter, and very frequently wrote to the judges, or to those who had consulted them, to bear witness to their opinions. The Divine Augustus, in order to enable the authority of the law to have greater weight, first decreed that jurists might answer in his name; and from that time, this began to be claimed as a privilege. The result was that the distinguished Emperor Hadrian, when certain men of prætorian rank asked of him leave to deliver opinions, told them in a rescript, "that this permission was not to be asked, but was granted as a right; and therefore if anyone had confidence in his knowledge, he should be delighted, and he might prepare himself for giving opinions to the people".¹

¹ Here is succinctly explained the origin of the Responsa Prudentum, "The Answers of Persons Learned in the Law". These, as previously stated, were an important source of legal knowledge, which by the sanction of Imperial authority obtained the same effect as edicts, decrees of the Senate, and constitutions published by the Emperors. Before the reign of Augustus they possessed no other weight than that derived from the reputation for learning enjoyed by the jurists from whom they emanated. That sovereign, however, issued licenses for this purpose to such as from their eminence in their profession, he considered worthy of this distinction, his example being followed by his successors. Theoretically, such dicta were intended to be merely interpretative of obscure legal questions; but they were in fact acts of legislation, and were regarded with the highest reverence as proceeding indirectly from the throne of the Emperor. These distinguished lawyers rendered invaluable service in alleviating the rigorous and unyielding application of the precepts of the Civil Law, and established the basis of equity jurisdiction, by introducing the actio utilis, or "equitable action", by means of which the severity of the actio directa arising from the strict construction of those precepts, was essentially restrained. When the opinions of the jurisconsults did not agree, the magistrate was compelled to accept the voice of the majority; when they were equally divided, the determination of the point involved was left to his discretion.

The law in general, and equity jurisprudence in particular, are under manifold obligations to those eminent legal expounders of ancient times. The scattered and incomplete remains of their works which have descended to us, afford a glimpse of the enormous contribution to human knowledge which would have resulted had their writings been transmitted intact to posterity. In methodical arrangement, in brevity, in simplicity, in purity of diction, in lucidity of statement, in force of argument, in aptness of comparison, in array of precedents, they find no parallel in the modern law book. Their directness of expression and their discouragement of all subtle distinctions are among their most prominent merits. None of their characteristics are more noteworthy than the avoidance of technicalities, the condemnation of wrong, the inculcation of the eternal principles of honor and morality. The fathers of the Common Law, Glanvil, Bracton, Britton, Selden, Littleton, Coke, and Blackstone, despite their generally avowed hostility to the Roman system when favorably contrasted with that of England, have often, by the adoption of their maxims, tacitly and involuntarily acknowledged their indebtedness to the ancient authorities, to whose untiring labors and legal acumen is largely to be attributed the excellence of that vast compendium of law, known as the Corpus Juris Civilis. — ED.

Therefore, permission was given to Sabinus by Tiberius Cæsar to give opinions to the people. He was already advanced in age when he attained to the Equestrian rank, and indeed was fifty years old, nor was he a man of great pecuniary resources, but was, for the most part, supported by his pupils. He was succeeded by Gaius Cassius Longinus, the son of a daughter of Tubero, who was the granddaughter of Servius Sulpicius; and for this reason he alluded to Servius Sulpicius as his grandfather. He was Consul with Quartinus during the reign of Tiberius, and enjoyed great authority in the State until the Emperor banished him, and having been exiled to Sardinia by the latter, he was recalled by Vespasian to Rome, where he died.

Proculus succeeded Nerva, and there was, at the same time, another Nerva, a son; there was also another Longinus, belonging to the Equestrian order, who afterwards attained to the Prætorship. The authority of Proculus was, however, greater. The adherents of the two schools were designated respectively, Cassiani and Proculeiani, having derived their origin from Capito and Labeo. Cælius Sabinus, who had greater influence in the time of Vespasian, succeeded Cassius; Pegasus succeeded Proculus, who was prefect of the City during the reign of Vespasian; Priscus Javolenus succeeded Cælius Sabinus; Celsus succeeded Pegasus; the son Celsus and Priscus Neratius, both of whom were consuls, succeeded his father; (Celsus, indeed, was Consul a second time), Aburnus Valens succeeded Javolenus Priscus along with Tuscinaus, as well as Salvius Julianus.

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TITLE III. CONCERNING STATUTES, DECREES OF THE SENATE, AND LONG ESTABLISHED CUSTOMS.

1. Papinianus, Definitions, Book I.

A statute is a general precept; a resolution of men learned in the law; a restraint of crimes committed either voluntarily or through ignorance; or a general obligation of the State.

2. Marcianus, Institutes, Book I.

The orator Demosthenes thus defined it. "A law is something which it is proper for all men to obey for many reasons, and principally because every law was devised by, and is a gift of God; the decree of learned men; the restraint of those who either voluntarily or involuntarily are guilty of crime; it is also a common obligation of the State, by whose rules all those who reside therein should regulate their lives."

Chrysius, a Stoic philosopher of the greatest erudition, began a book which he wrote as follows: "Law is the queen of all things, Divine and human. It should also be the governor, the leader, the ruler, of both the good and the bad, and, in this way, be the standard of whatever is just and unjust, as well as of those things which are civil by Nature, prescribing what should be done, and prohibiting what should not be done."

3. Pomponius on Sabinus, Book XXV.

Laws, as Theophrastus has stated, ought to be established with respect to matters which often occur, and not with reference to such as occur unexpectedly.

4. Celsus, Digest, Book V.

Laws are not established concerning matters which can only happen in a single instance.

5. The Same, Digest, Book XVII.

For laws ought to be adapted to events which frequently and readily occur, rather than to such as rarely happen.

6. Paulus, On Plautius, Book XVII.

In fact, what only happens once or twice, as Theophrastus says, legislators omit.

7. Modestinus, Rules, Book I.

The office of the law is to command, to forbid, and to punish.

8. Ulpianus, On Sabinus, Book III.

Laws are not established for individuals, but for general purposes.

9. The Same, On the Edict, Book XVI.

There is no doubt that the Senate can make law.

10. Julianus, Digest, Book LIX.

Neither statutes nor decrees of the Senate can be written in such a way as to include all cases at any time which may arise; but it is sufficient if they include such as frequently occur.

11. The Same, Digest, Book XC.

And therefore in those laws which are enacted in the first place, a more certain interpretation or construction must be given by the most excellent Emperor.

12. The Same, Digest, Book XV.

All matters cannot be specifically included in the laws or decrees of the Senate; but where their sense is clear in any instance, he who has jurisdiction of the same can apply it to others that are similar, and in this way administer justice.

13. Ulpianus, On the Edict of the Curule Ædiles, Book I.

For, as Pedius says, whenever anything has been introduced by law there is a good opportunity for extending it by interpretation or certain construction to other matters, where the same principle is involved.

14. Publius, On the Edict, Book LIV.

Where anything contrary to the principles of the Law has been accepted, it must not be applied to its full extent.

15. Julianus, Digest, Book XXVII.

In those instances where anything has been established contrary to the principles of the law, we cannot follow this rule of law.

16. Paulus, Sole Book on Special Law.

Special law is that which has been introduced by the authority of those establishing it against the tenor of a legal principle, on account of some particular advantage.

17. Celsus, Digest, Book XXVI.

To know the laws is not to be familiar with their phraseology, but with their force and effect.

18. The Same, Digest, Book XXIX.

Laws should be interpreted liberally, in order that their intention may be preserved.

19. The Same, Digest, Book XXIII.

When the terms of the law are ambiguous, that meaning is to be accepted which is without incongruity; especially when the intention of the law can be ascertained therefrom.

20. Julianus, Digest, Book LV.

The principle of every law established by our ancestors cannot be stated.

21. Neratius, Parchments, Book VI.

Hence it is not necessary to seek for the reasons of those laws which have been established; otherwise many rules which are based upon the same and which are now accepted, will be overthrown.

22. Ulpianus, On the Edict, Book XXXV.

When the law pardons anything which is past it forbids it for the future.

23. Paulus, On Plautius, Book IV.

Matters which have always had a certain interpretation should, under no circumstances, be changed.

24. Celsus, Digest, Book IX.

It is not proper without taking into consideration an entire law either to decide, or give an opinion upon any particular portion of the same.

25. Modestinus, Opinions, Book VIII.

No principle of law or indulgent construction of equity permits matters which have been introduced for the welfare of mankind to be interpreted so rigorously as to be productive of hardship to them.

26. Paulus, Questions, Book IV.

There is nothing new in the interpretation of recent laws by former ones.

27. Tertullianus, Questions, Book I.

Therefore, for the reason that it is the custom to interpret recent laws by former ones, it ought always to be understood that the principles of the laws are applicable to such persons or things as may at any time be of a similar character.

28. Paulus, On the Lex Julia et Papia, Book V.

Recent laws are applicable to former ones unless they are opposed to them; and this may be established by many reasons.

29. The Same, On the Lex Cincia.

To do what the law prohibits violates the law, and anyone who evades the meaning of the law without disobeying its words, is guilty of fraud against it.

30. Ulpianus, On the Edict, Book IV.

Fraud is committed against the law when something is done which the law did not wish to be done, but did not absolutely prohibit; and the difference between fraud against the law and violation of the same is that between speech and opinion.

31. The Same, On the Lex Julia et Papia.

The Emperor is free from the operation of the law, and though the Empress is undoubtedly subject to it, still, the Emperors generally confer upon her the same privileges which they themselves enjoy.

32. Julianus, Digest, Book XCIV.

In cases where there are no written laws, that should be observed which has been established by usage and custom, and if anything is lacking therein, then whatever is nearest to, and resulting from it should be observed; and if even this does not exist, then the law which is used by the City of Rome must be followed.

(1) An ancient custom is not improperly observed as a law (and this is what is called law established by usage). For as the laws themselves restrain us for no other reason than because they are accepted by the judgment of the people — for it is but proper that what the people have approved without being written should bind all persons — for what difference does it make whether the people have manifested their will by vote, or by acts and deeds? Wherefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all.

33. Ulpianus, Concerning the Office of Proconsul, Book I.

It is usual for long established custom to be observed as law in those matters which have not come down in writing.¹

¹ "Consuetudo et communis assuetudo vincit legem non scriptam, si sit specialis; et interpretatur legem scriptam, si lex sit generalis." — ED.

34. The Same, Book IV.

When anyone seems to be confident concerning the custom of a city or province, I think it should first be determined whether that custom has been confirmed by a judicial decree after it had been disputed.

35. Hermogenianus, Epitomes of Law, Book I.

Those rules which have been approved by long established custom and have been observed for many years, by, as it were, a tacit agreement of citizens, are no less to be obeyed than laws which have been committed to writing.

36. Paulus, On Sabinus, Book VII.

And indeed, a law of this kind has greater authority, for the reason that it has been approved to such an extent that it is not necessary to commit it to writing.

37. Callistratus, Questions, Book I.

When inquiry is made as to the interpretation of a law, it must in the first place be ascertained what rule the State formerly made use of in cases of the same kind; for custom is the best interpreter of the laws.

38. The Same, Questions, Book I.

For our Emperor Severus stated in a Rescript that in questions of doubt arising from statutory enactments, custom, or the authority of decisions which have always been decided in the same manner, should obtain the force of law.

39. Celsus, Digest, Book XXIII.

That which has in the first place been introduced, not by any rule but through error, and has afterwards been confirmed by custom, shall not prevail in other similar cases.

40. Modestinus, Rules, Book I.

Thus all law has been either made by consent, or established by necessity, or confirmed by custom.

41. Ulpianus, Institutes, Book II.

Hence all law consists either in the acquisition, preservation, or diminution of right; for it has reference to the way in which anything becomes the property of a person, or how he can preserve it or his rights, or how he can alienate or lose them.

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TITLE IV. CONCERNING THE CONSTITUTIONS OF THE EMPERORS.

1. Ulpianus, Institutes, Book I.

Whatever the Emperor has decreed has the force of law; since by a Royal ordinance which was passed concerning his sovereignty, the people conferred upon him all their own authority and power.

(1) Therefore, everything which the Emperor decrees by a letter over his signature, whether he decided after examining it or did so without judicial consideration or ordered it by means of an edict, has the force of law; and these are what we generally designate constitutions.

(2) Among the latter there are some which are special, and are not to be employed as precedents; for whatever the Emperor has granted to anyone as a reward of merit, or where he inflicts a penalty, or relieves a person in an unusual way, this does not extend beyond the party in question.

2. Ulpianus, Trusts, Book IV.

In the enactment of new laws evidence of benefit should manifestly appear to justify departure from a law which has been considered just for a long period of time.

3. Javolenus, Epistles, Book XIII.

We should interpret as liberally as possible any favor of the Emperor which in fact proceeds from his Divine indulgence.

4. Modestinus, Excuses, Book II.

Recent constitutions have greater authority than those which have preceded them.¹

¹ "Leges posteriores priores contrarias abrogant." — ED.

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TITLE V. CONCERNING THE CONDITION OF MEN.

1. Gaius, Institutes, Book I.

All the law which We make use of relates either to persons, things, or actions.

2. Hermogenianus, Epitomes of Law, Book I.

Therefore, since all law has been established on account of mankind, we shall first speak of the condition of persons, and afterwards of other matters, following the order of the Perpetual Edict, and adding to them the titles as arranged and connected with them, as far as the matter permits.

3. Gaius, Institutes, Book I.

The principal division of the law of persons is as follows, namely, that all men are either free or slaves.

4. Florentinus, Institutes, Book IX.

Liberty is the natural power of doing whatever anyone wishes to do unless he is prevented in some way, by force or by law.

(1) Slavery is an institution of the Law of Nations by means of which anyone may subject one man to the control of another, contrary to nature.

(2) Slaves are so called for the reason that military commanders were accustomed to sell their captives, and in this manner to preserve them, instead of putting them to death.

(3) They are styled mancipia, because they are taken by the hands of their enemies.

5. Marcianus, Institutes, Book I.

One condition is common to all slaves; but of persons who are free some are born such, and others are manumitted.

(1) Slaves are brought under our ownership either by the Civil Law or by that of Nations. This is done by the Civil Law where anyone who is over twenty years of age permits himself to be sold for the sake of sharing in his own price. Slaves become our property by the Law of Nations when they are either taken from the enemy, or are born of our female slaves.

(2) Persons are born free who are born from a free mother, and it is sufficient for her to have been free at the time when her child was born, even though she may have been a slave when she conceived; and, on the other hand, if she was free when she conceived, and was a slave when she brought forth, it has been established that her child is born free, nor does it make any difference whether she conceived in a lawful marriage or through promiscuous intercourse; because the misfortune of the mother should not be a source of injury to her unborn child.

(3) Hence the following question arose, where a female slave who was pregnant, has been manumitted, and is afterwards again made a slave, or, after having been expelled from the city, should bring forth a child, whether that child should be free or a slave? It was very properly established that it was born free; and that it is sufficient for a child who is unborn that its mother should have been free during the intermediate time.

6. Gaius, Institutes, Book I.

Freedmen are those who are manumitted from lawful slavery.

7. Paulus, On the Shares Granted to the Children of Condemned Persons.

A child in its mother's womb is cared for just as if it were in existence, whenever its own advantage is concerned; although it cannot be of any benefit to anyone else before it is born.

8. Papinianus, Questions, Book HI.

The Emperor Titius Antoninus stated in a Rescript that the status of children could not be prejudiced on account of the tenor of an improperly drawn instrument.

9. The Same, Questions, Book XXXI.

In many parts of our law the condition of women is worse than that of men.

10. Ulpianus, on Sabinus, Book I.

The question has been raised to which sex shall we assign an hermaphrodite? And I am of the opinion that its sex should be determined from that which predominates in it.

11. Paulus, Opinions, Book XVIII.

Paulus was of the opinion that a child who was conceived during the life of its grandfather, while the latter was ignorant of the connexion of his daughter, even though it was born after the death of its grandfather, was not the lawful son of him by whom it was begotten.

12. The Same, Opinions, Book XIX.

It is now generally held upon the authority of that most learned man Hippocrates, that a child perfectly formed may be born in the seventh month; and therefore it is established that a child who is born in lawful marriage after seven months is legitimate.

13. Hermogenianus, Epitomes of Law, Book I.

A slave abandoned by his master to fortune in the trial of a capital case does not become free even if he should be acquitted.

14. Paulus, Sentences, Book IV.

Those beings are not children who are born formed in some way which is contrary to the likeness of the human race; as, for instance, where a woman brings forth something monstrous or unnatural. A child, however, which has more than the ordinary number of human limbs seems to be, to some extent, completely formed, and therefore may be included among children.

15. Tryphoninus, Controversies, Book X.

A slave named Arescusa was declared to be free by will if she brought forth three children; and at her first delivery she had one child, and at her second she had three. The question then arose as to which of the said children were free? The condition on which her freedom pended had to be fulfilled by the woman, and there was no doubt that the last child was born free; for nature does not permit two children to come forth from their mother's womb at the same time, by one movement, so that the order of birth being uncertain, it does not appear which one was born in slavery, and which was born free. Therefore, the condition having been fulfilled at the time the birth began, namely that the child should be born of a free woman, it is the one born last, just as if any other condition imposed on the freedom of the woman had been fulfilled at the moment of her delivery; for example, that she should be manumitted on condition that she gave ten thousand sesterces to the heir, or to Titius; and at the instant when she was delivered she fulfilled the condition through the agency of someone else; it would necessarily be held that she was already a free woman when she brought forth the child.

16. Ulpianus, Controversies, Book VI.

The same thing should take place if Arescusa had first brought forth two children, and afterwards brought forth twins; for it must be held that both the latter are not born free, but only the one who was born last. The question, however, is rather one of fact than of law.

17. The Same, On the Edict, Book XXII.

According to a Constitution of the Emperor Antoninus, all those who were living in the Roman world were made Roman citizens.

18. The Same, on Sabinus, Book XXVII.

The Emperor Hadrian set forth in a Rescript addressed to Publicius Marcellus, that if a free woman after having been condemned to death while pregnant brought forth a child it would be free; and that it was customary to hold her until she was delivered. Also, where a woman who has conceived in lawful marriage is interdicted from fire and water, the child she brings forth is a Roman citizen, and remains under the control of its father.

19. Celsus, Digest, Book XXIX.

When children are born in lawful marriage they follow the condition of the father, but one that is conceived in promiscuous intercourse follows the condition of the mother.

20. Ulpianus, on Sabinus, Book XXXVIII.

Anyone who becomes insane is considered to retain the position and rank he previously held, and also his magistracy and authority; just as he retains the ownership of his property.

21. Modestinus, Rules, Book VII.

Where a freeman sells himself and is afterwards manumitted, he does not recover his former condition of which he deprived himself, but belongs to the class of freedmen.

22. The Same, Opinions, Book XII.

Herennius Modestinus held that if a female slave brought forth a child at the time when, according to the terms of the donation which disposed of her, she should be manumitted; since she was free by the Imperial Constitution, the child born of her is freeborn.

23. The Same, Pandects, Book I.

The term "conceived in promiscuous intercourse" is applicable to those who cannot show who their father is, or if they can do so, he is not their lawful father, and these are called spurious, from spora.

24. Ulpianus, On Sabinus, Book XXVII.

The law of nature is that a child born out of lawful matrimony follows the mother, unless a special law provides otherwise.

25. The Same, On the Lex Julia et Papia, Book I.

We should consider him to be freeborn who has been legally declared such, even though he is in fact a freedman; for the reason that whatever is judicially determined is accepted as truth.

26. Julianus, Digest, Book LXIX.

Those who are unborn are, by almost every provision of the Civil Law, understood to be already in existence; for estates legally descend to them, and if a pregnant woman is taken by the enemy, her child has the right of postliminium, and it also follows the condition of the father, or mother. Moreover, if a pregnant female slave is stolen, even after she may have brought forth in the hands of a purchaser in good faith, her child being stolen property is not acquired by use. The result of this is that a manumitted slave, also, as long as a son can be born to his patron is considered to hold the same position under the law as those who have patrons living.

27. Ulpianus, Opinions, Book V.

Where a man admits that he is a freedman, his patron cannot make him freeborn even by adopting him.

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TITLE VI. CONCERNING THOSE WHO ARE THEIR OWN MASTERS, AND THOSE THAT ARE UNDER THE CONTROL OF OTHERS.

1. Gaius, Institutes, Book I.

Another division of persons follows according to law, some of whom are their own masters, and some are subject to the control of others. We shall now consider those who are subject to the control of others; for if we know who these persons are, we shall at once understand who those are that are their own masters. Let us then examine those who are under the control of others.

(1) Thus, slaves are under the power of their masters, and this power is derived from the Law of Nations, for we may perceive that among nearly all nations masters have the power of life and death over their slaves, and whatever is acquired by a slave is acquired by his master.

(2) But, at present, it is not permitted to any persons living under Roman dominion to be guilty of cruelty to their slaves which is atrocious, or without a cause recognized by the law. For, according to a Constitution of the Divine Antoninus, anyone who kills his slave without a cause shall be punished as severely as one who kills the slave of another; the inordinate severity of masters is also repressed by a Constitution of the same Emperor.

2. Ulpianus, Concerning the Office of Proconsul, Book VIII.

Where a master is cruel to his slaves and forces them to licentiousness or to disgraceful violation, the course to be taken by the presiding judge is disclosed by a Rescript of the Divine Pius addressed to Julius Marcianus, Proconsul of Bætica. These are the terms of the Rescript: "It is proper that the power of masters over their slaves should remain unimpaired, and that no man should be deprived of his right; but it is to the interest of the masters themselves that relief from cruelty, hunger, or intolerable injury, should not be denied to those who justly implore it. Therefore, take cognizance of the complaints of those slaves of Julius Sabinus who fled for refuge to the Imperial statue; and if you find that they have been treated with greater severity than was proper, or subjected to disgraceful outrage, order them to be sold, under such conditions that they may not be restored to the power of their master; and if he violates this My Constitutions, let him know that he will be more severely punished". The Divine Hadrian also, banished for five years a certain matron named Umbricia, because she had treated her female slaves with atrocious cruelty for very trivial reasons.

3. Gaius, Institutes, Book I.

Our children also who are born in lawful marriage are under our control; which is a law peculiar to Roman citizens.

4. Ulpianus, Institutes, Book I.

Certain Roman citizens are fathers of families, others are sons of families, some are mothers of families, others again are daughters of families. Those are fathers of families who are their own masters, whether they have arrived at puberty or not; in the same manner those who are under the control of others are either the mothers of families, or the sons or daughters of families. For any child who is born of me and my wife is under my control; also a child born of my son and his wife, that is to say my grandson and granddaughter, are also under my control, as well as my great-grandson and great-granddaughter, and so on with reference to other descendants.

5. The Same, On Sabinus, Book XXXVI.

Grandsons, after the death of their paternal grandfather, usually come under the control of his son, that is, of their own father. In like manner, great-grandchildren and other descendants also come under the control of a son, if he is living, and remains in the family; or under that of an ascendant who precedes them in authority. This is also the law not only concerning natural children but also with reference to those who have been adopted.

6. The Same, On Sabinus, Book IX.

We define a son to be a male child born of a man and his wife. But if we suppose the husband was absent, for example for the term of ten years, and on his return finds a child a year old in his house, our opinion coincides with that of Julianus, that this is not the son of the husband. Nevertheless, Julianus says, it ought not to be tolerated that a man, who has lived constantly with his wife, should refuse to acknowledge his son as not being his own. It appears to me, however, (and this Scævola also holds), that if it should appear that a husband had not cohabited with his wife for some time, because of disease, or for some other reason, or if he was in such a condition of ill health that he could not procreate, a child born in his house, although this was known to the neighbors, is not his son.

1. The Same, On Sabinus, Book XXV.

Where a father has been condemned to punishment by which he either loses his citizenship, or is subjected to penal servitude, there is no doubt that his grandson takes the place of his son.

8. The Same, On Sabinus, Book XXVI.

Where a father is insane, his child, nevertheless, remains under his control. The case is the same with all ascendants who have children subject to their authority, for the right of paternal control having been established by custom, no one can cease to have persons under it except where children are released from the same as they are under certain circumstances, and there is no question whatever that they still remain subject to his authority. For this reason a father not only, retains under his control those children whom he begat before he became insane, but also any who were conceived before his insanity developed, and were born while it existed. Moreover, if his wife conceives while he is insane, it must be considered whether the child is born under his control or not; for although an insane person cannot marry, he can still retain his matrimonial condition; and since this is the case he will have his son under his control.

In like manner, if his wife becomes insane, a child conceived by her previous to her insanity is born under his control; but if it is conceived while she was insane and her husband was not, it undoubtedly is born under his control, for the reason that the marriage still exists. But if both husband and wife are insane, and she then conceives, the child is born under the control of its father; for it is presumed that insane persons still have some will remaining; and, as the marriage relation continues while one or the other is insane, it also does so when both are in that condition.

(1) Moreover, an insane father retains his paternal authority to such an extent that everything acquired by his son belongs to him.

9. Pomponius, On Quintus Mucius, Book XVI.

In all matters relating to the public interest the son of a family takes the place of the father of a family; for instance, where he discharges the duty of a magistrate, or is appointed a guardian.

10. Ulpianus, On the Lex Julia et Papia, Book IV.

Where a judge decides that a child is to be brought up or supported, it should be held that it must be certainly ascertained whether it is his son or not; a ruling as to support cannot prejudice the truth.

11. Modestinus, Pandects, Book I.

Illegitimate or emancipated children cannot be brought under paternal authority against their consent.

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TITLE VII. CONCERNING ADOPTIONS AND EMANCIPATIONS, AND OTHER METHODS BY WHICH PATERNAL AUTHORITY IS DISSOLVED.

1. Modestinus, Rules, Book II.

Sons of families are not only created by nature but also by adoption.

(1) The term "adoption" is one of general signification, and includes two kinds; one of which is likewise styled adoption, the other arrogation. The sons of families are adopted; those who are their own masters are arrogated.

2. Gaius, Institutes, Book I.

Adoption, generally speaking, takes place in two ways, either by the authority of the Emperor, or by the order of a magistrate. We adopt those by the authority of the Emperor who are their own masters; and this kind of adoption is called arrogation, because he who adopts is asked, that is, interrogated, whether he is willing that the party whom he is about to adopt shall be his lawful son; and he who is adopted is asked whether he suffers this to be done, We adopt by the order of a magistrate those who are under paternal control, whether they are in the first degree of children, such as son and daughter, or in one that is more remote, as grandson and granddaughter, and great-grandson and great-granddaughter.

(1) There is one thing common to both kinds of adoption, namely, that those who are incapable of procreation, as for instance, eunuchs, can adopt.

(2) Adoption effected through the Emperor is peculiar in that if anyone who has children under his control gives himself in arrogation, he himself is not only subjected to the authority of his adoptive father, but also his children and grandchildren pass under the control of the former.

3. Paulus, On Sabinus, Book IV.

Where the son of a family becomes a consul, or governor, he can be emancipated, or given in adoption before himself.

4. Modestinus, Rules, Book II.

It is the opinion of Neratius that a magistrate before whom a legal action can be brought can emancipate his own children, or give them in adoption before himself.

5. Celsus, Digest, Book XXVIII.

In adoption, the will of only those parties who are their own masters shall be consulted; but where children are given in adoption by their fathers, the will of both must be taken into consideration, either consent being given, or no opposition being offered.

6. Paulus, On the Edict, Book XXXV.

When a person is adopted as grandson just as if he were born to a son, the consent of the son is required; and this opinion Julianus also rendered.

7. Celsus, Digest, Book XXXIX.

When an adoption is made, the consent of those who will be connected by agnation is not necessary for that purpose.

8. Modestinus, Rules, Book II.

It was formerly held that the authority of a curator could not be interposed in a case of arrogation; but this has been very properly changed by the Divine Claudius.

9. Ulpianus, On Sabinus, Book I.

Even a blind man can adopt, and be adopted.

10. Paulus, On Sabinus, Book II.

When anyone adopts a grandson as if he were born to his own son over whom he has control, with the consent of the latter, he does not become a proper heir of his grandfather; as, after the death of the grandfather he comes, as it were, under the control of his father.

11. The Same, On Sabinus, Book IV.

If anyone who has a son adopts a person as a grandson, just as if he was the son of his son, and the latter does not consent; if the grandfather should die, the adopted grandson does not come under the control of the son. •

12. Ulpianus, On Sabinus, Book XIV.

He who is released from paternal authority cannot afterwards be honorably subjected to it again, except by adoption.

13. Papinianus, Questions, Book XXXVI.

By almost every principle of law, when the power of an adoptive father has once been ended, no vestige of it afterwards remains; and even the paternal dignity obtained by adoption is lost when the relationship is terminated.

14. Pomponius, On Sabinus, Book V.

A grandson conceived and born under the control of his adoptive grandfather also loses all his rights by emancipation.

15. Ulpianus, On Sabinus, Book XXVI.

When the father of a family is adopted, all the property which belongs to him and all that can be acquired is, by silent operation of law, transferred to his adoptive father; and, moreover, his children who are under his control follow him, as well as those who may return from captivity under the law of postliminium, and those who were unborn when he was arrogated are in like manner brought under the control of the arrogator.

(1) Where a man has two sons, and a grandson by one of them, and desires to adopt the grandson as born of the other son, he can do so if he emancipates him and adopts him as if he were born to the other son, for he does this as if he were a stranger, and not his grandfather; and for whatever reason he can adopt anyone born of a stranger he can adopt him as it were born of another son.

(2) In arrogation it must be ascertained whether the arrogator is under sixty years of age, because if he is, he should rather devote himself to the procreation of children; unless, indeed, disease or weakness of any kind, or any other just cause for arrogation exists, as, for instance, if he desires to adopt some person related to himself.

(3) Again, no one should arrogate several children, unless for a good reason. Nor should he adopt the freedman of another, nor anyone older than himself.

16. Javolenus, On Cassius, Book VI.

For adoption can only take place with persons between whom the natural relation of father and son might exist.

17. Ulpianus, On Sabinus, Book XXVI.

Anyone who administers the office of guardian, or has the curator-ship of another, is not permitted to arrogate him, so long as the minor is less than twenty-five years of age, for fear that he may have arrogated him to avoid rendering an account. Inquiry must also be made as to whether the reason for the arrogation is not an infamous one.

(1) Arrogation of wards is only permitted to those who, induced by natural relationship or great affection adopt them; and it is prohibited to others lest it may be placed in the power of guardians to terminate their trust, and invalidate the substitution made by the parent.

(2) It is necessary, in the first place, to learn the amount of property belonging to the ward, as well as that of the party who desires to adopt him; so that, by comparing the two, an opinion may be formed as to whether an adoption would be advantageous to the ward. Then the mode of life of the party, who desires to bring the ward into his family should be investigated; and third, his age must be considered, so that it may be determined whether he had not better pay attention to the procreation of children, than to bring under his control some one belonging to another family.

(3) Moreover, it should be taken into consideration, whether he who already has one or more children ought to be permitted to adopt another, in order that the expectations of those begotten in lawful marriage may not be diminished, which expectations every child prepares for itself by respectful behavior; or whether the ward thus adopted would obtain less than he was worthy of.

(4) Sometimes the adoption of a child who is more wealthy by a person who is poor is permitted; if the latter is of a thoroughly temperate life, or his affection is honorable and publicly known.

(5) It is, however, customary to give security in cases of this kind.

18. Marcellus, Digest, Book XXVI.

For when a man desires to arrogate a ward, if he shows a good reason for doing so in other respects, he can only be heard if he gives a bond to a public slave binding himself, "that he will restore any of the property of his ward that may come into his possession to those persons who would have been entitled to said property, if the arrogated party had remained in his former condition".

19. Ulpianus, On Sabinus, Book XXVI.

By these words of the bond which must be furnished by the arrogating party, "to those entitled to said property", there is no doubt that it was intended to include any manumissions made by a second will; and especially where a slave was substituted as heir, and also to protect the interests of legatees.

(1) If this bond is not given, an equitable action will lie against the arrogator.

20. Marcellus, Digest, Book XXVI.

This bond becomes operative where the ward dies before reaching the age of puberty.

(1) Although the ward is mentioned as a male, the same proceeding must be taken with reference to a female ward.

21. Gaius, Rules.

For women may be arrogated by an Imperial Rescript.

22. Ulpianus, On Sabinus, Book XXVI.

Where an arrogator dies leaving an adopted son who is under age, and he dies afterwards before reaching puberty, will the heirs of the arrogator be liable? It must be held that the heirs also are bound to deliver up the property of the party arrogated, and the fourth part of the estate besides.

(1) The question arises whether the arrogator can substitute another heir to the adopted minor son? I think that the substitution cannot be admitted, unless merely with reference to the fourth part of the estate of his adoptive father to which he is entitled; and that it only extends to the time of puberty. But if he should leave his property in trust to be delivered at a certain time, a trust of this kind should not be admitted; for this share does not vest in him by the will of his father but by an Imperial provision.

(2) All these rules are applicable whether anyone has arrogated a boy under puberty as a son, or as a grandson.

23. Paulus, On the Edict, Book XXXV.

When anyone is given in adoption he becomes cognate to all those to whom he becomes agnate, and does not become cognate to those to whom he does not become agnate, for adoption does not impart the right of blood but the right of agnation; and therefore if I adopt a son my wife does not occupy the place of a mother to him, nor is she related to him by agnation, because she is not his cognate. Again, my mother does not occupy the place of grandmother to him, since he does not become connected by agnation with those who are outside of my own family; but he whom I have adopted becomes the brother of my daughter, since my daughter is a member of my family, and marriage between them is prohibited.

24. Ulpianus, Controversies, Book I.

Anyone who is absent, or who does not give his consent cannot be arrogated.

25. The Same, Opinions, Book V.

After the death of his daughter who had been living as her own mistress on the ground of having been lawfully emancipated, and who died after appointing heirs by her will, the father is forbidden to institute proceedings against his own act, claiming that the emancipation was not made legally, or in the presence of witnesses.

(1) A party who is absent can neither adopt, nor arrogate, nor carry out by the agency of another any of the formalities which are requisite in such cases.

26. Julianus, Digest, Book LXX.

Anyone whom my emancipated son adopts is not my grandson.

27. The Same, Digest, Book LXXXV.

The child of an adopted son is considered by the Civil Law to occupy the same place as if he himself were adopted.

28. Gaius, Institutes, Book I.

He who has a son and a grandson under his control is at perfect liberty to release his son from his authority, and to retain it over his grandson; or, on the other hand, to retain his son under his control and to manumit his grandson; or to make both of them their own masters. We hold that the same rule applies to a great-grandson.

29. Callistratus, Institutes, Book II.

Where the natural father does not possess the power of speech, but can indicate in some other way than verbally his desire to give his son in adoption, that adoption shall be confirmed; just as if it had taken place under the forms prescribed by law.

30. Paulus, Rules, Book I.

Those who have no wives can adopt children.

31. Marcianus, Rules, Book V.

A son, whether he is natural or adopted, who is under the control of his father, cannot in any way compel him to release him from it.

32. Papinianus, Questions, Book XXXI.

However, a boy who is under puberty and has been adopted, should sometimes be heard if, having arrived at puberty, he desires to be emancipated; and this must be determined by the judge after the case has been stated.

(1) The Emperor Titius Antoninus decided in a Rescript that it was permissible for a man to adopt his stepson of whom he was guardian.

33. Marcianus, Rules, Book V.

And where the adopted son, having arrived at puberty, proves that it is not advantageous to himself to be brought under the paternal control of the other, it is just that he should be emancipated by his adoptive father, and in this way be reinstated in his former condition.

34. Paulus, Questions, Book XL

The question arose where a son is given to you in adoption, for instance under this condition that, "after three years, you will give the same person to me in adoption"; whether any action will lie against you. Labeo thinks that there is no cause of action, for it is not in accordance with our customs for anyone to have a son temporarily.

35. The Same, Opinions, Book I.

The rank of a person is not diminished by adoption, but is in fact increased; therefore a senator, if adopted by a plebeian, remains a senator; and, in like manner, a son of the senator still remains such.

36. The Same; Opinions, Book XVIII.

It is settled that a son can be emancipated anywhere in order to be released from paternal authority.

(1) It has been decided that manumission and adoption can be performed before a proconsul, even in a province which has not been assigned to him.

37. The Same, Sentences, Book II.

Anyone can adopt another as his grandson, even though he has no son.

(1) No one can a second time adopt a person whom he has once adopted and emancipated.

38. Marcellus, Digest, Book XXVI.

An adoption not legally made may be confirmed by the Emperor.

39. Ulpianus, On the Office of Consul, Book HI.

The Divine Marcus stated in a Rescript to Eutychianus that, "The judges will determine whether you can obtain what you desire, after those who may object have been produced before them, that is to say, those who might be injured by the confirmation of the adoption".

40. Modestinus, Differences, Book I.

By the arrogation of the father of a family the children who are under his control become the grandchildren of the arrogator, and at the same time with their father are placed under his authority, which does not also take place in case of adoption; for then the grandchildren remain under the control of their natural grandfather.

(1) He who adopts, and also he who arrogates, must not only be older than the person whom he makes his son either through arrogation or adoption, but he must be so by the term of complete puberty, that is to say, he must be further advanced in age by eighteen years.

(2) A person who is impotent can obtain a proper heir for himself by arrogation, nor is his corporeal weakness an obstacle to his doing so.

41. The Same, Rules, Book II.

When a father emancipates his son by whom he has a grandson under his control and afterwards adopts his son and dies, the grandson does not again come under the authority of his father. Nor does the grandson come under the control of his father if his grandfather retained him in his power when he gave his son in adoption, and readopted him afterwards.

42. The Same, Pandects, Book I.

We can even give an infant in adoption.

43. Pomponius, On Quintus Mucius, Book XX.

Adoption of sons as well as grandsons can take place so that anyone may seem to be our grandson as through a son, although his birth may be uncertain.

44. Proculus, Epistles, Book VIII.

Where anyone who has a grandson by a son adopts another in the place of his grandson, I do not think that when the grandfather dies any bond of consanguinity will exist between the grandsons. But if he adopted him in such a way that he should be his grandson by legal right, for instance, as if he had been the son of Lucius his own son and the lawful wife of the latter, I am of the contrary opinion.

45. Paulus, On the Lex Julia et Papia, Book III.

The liabilities of him who was given in adoption are transferred to the adoptive father.

46. Ulpianus, On the Lex Julia et Papia, Book IV.

A son begotten by me while in slavery can be brought under my authority by the indulgence of the Emperor; still, there is no question that such a son remains in the class of freedmen.¹

¹ The laws of Hammurabi do not describe the method by which adoption was effected, or the formalities legally required for that purpose. If the adopted son proved rebellious, his adoptive father could send him back to his former parents. In case he did not enjoy all the rights and privileges of a child by blood, or was not taught a trade, he was at liberty to depart. An adoptive father was not allowed to cut him off without cause, and was compelled to give him one third of a son's share out of his personal estate. The adoption of female children is not mentioned. (Code of Hammurabi, 186, 191.)

Among the ancient Hindus a magistrate must be notified, a religious ceremony performed, and gold and rice be given to the father of a child by way of compensation, before it could be legally adopted. A woman could adopt, but not without her husband's order. A man who had no son, grandson, or great-grandson, was required to take a boy in adoption. A second child could not be adopted. (Gentoo Code, XXI, IX.)

Under the present Hindu law both men and widows can adopt, and no special form is necessary. The act can be performed by means of a written instrument, verbally, or by will. A widow authorized by her husband may adopt a son even though she be a minor; but the wishes of the deceased must, under all circumstances, be absolutely complied with. A husband cannot delegate authority to adopt to anyone but his widow, and no limit of time whatever is imposed on her after power has once been granted. While many new rules concerning adoption have been framed, the old ones are still in force. (Mayne, A Treatise of Hindu Law and Usage, Chap. V., pages 93, 94, 95.)

Testamentary adoption was not permitted by the Greeks, it was essential that the act be performed by a living person. Parties who had no lawful issue could adopt whom they pleased, with the exception of those who were not independent, such as women, infants, lunatics, minors, and slaves. In Lacedæmon, adoption had to be confirmed in the royal presence. At Athens, permission was required from a magistrate to enable a man to marry after he had adopted a son. Adopted children had no right to inherit from the family from which they had been taken, without first renouncing their adoption; and if they died without issue their estates were transmitted to their adoptive relations. Adopted children enjoyed all the privileges and were subject to all the restraints of those actually begotten. (Potter, Antiquities of Greece, I, 23, IV, 15.)

The restrictions imposed upon adoption by King Alfonso X in his great and comprehensive work, were of the most severe and exhaustive character. Any freeman of age, who was not under paternal control, and who (as under the Civil Law) was eighteen years older than the person to be adopted and was capable of procreation, enjoyed this right. No woman could adopt unless she had lost a son in the service of the King, and in this case the royal sanction must previously be obtained. Consent being indispensably necessary, an infant under the age of seven years was not eligible, nor was a child under fourteen, without the permission of the King. In instances of this kind a careful investigation of the pecuniary condition of both parties was made, as well as of the life, reputation, and motives of the applicant. If the petition was granted, security was demanded of the adoptive father by a bond duly executed before a notary public, providing that if the child in question should die before reaching puberty, he would surrender all the estate of the latter to those who would have been his heirs had he not been adopted. The adoptive father was, however, entitled to the usufruct of the property while it was in his possession.

In most respects the old Castilian law, which admitted the difference between arrogation and ordinary adoption, followed the precepts of Justinian. (Las Siete Partidas, IV, XVI.)

Under the Mohammedan legal system, while a child of either sex may be adopted, it has no right to inherit from its adoptive parents, and this relationship is not encouraged by law. It may, however, receive property by gift or testamentary disposition. (Hughes, Dict. of Islam, Title Adoption, Page 10.)

The influence of the Romans upon subsequent legislation is, in this as in numerous other cases, disclosed by the fact that while the ceremony of adoption was not known to the Common Law of England, it was nevertheless practically admitted by Bracton as being existent in his time. "Legittimantur etiam quandòquè quasi per adoptionem & de consensu & voluntate parentum." (De Leg. et Consuet. Anglise, Cap. 30, f63.) The rule is so strict that any parental renunciation of the control of a child is void.

Adoption in the United States is, of course, entirely dependent upon statutory regulation. Louisiana, which has incorporated so much of the Civil Law into its procedure, has abolished it. (Civil Code, Art. 232.) In other commonwealths of the Union an infinite variety of rules establishes the rights, liabilities, and duties of adoptive parents and children.

France requires an adoptive father to be over fifty years of age and at least fifteen years older than the child; and that he have no descendants in the direct line. The privilege can only be exercised towards one who, for six months during his minority, has supported or cared for the adoptive parent, or has saved his or her life. In no instance can adoption take place before the attainment of majority. (Code Civil de France, Arts. 343, 345, 346.)

An adoptive parent in Spain must be fifty-five years old, and not an ecclesiastic, or the guardian of the person adopted (unless he has previously rendered a satisfactory account of his trust). In other particulars the law generally coincides with that of France. (Código Civil de España, Arts. 173, 174.)

In Italy, an illegitimate child cannot be adopted by either of its parents. The party adopted must be at least eighteen years old, and his rights and obligations toward his own family remain unchanged by his reception into another. (Code Civile d'Italia, Arts. 205, 206, 212.)

The rule on the subject in Austria closely follows that of the Civil Law. The adopted child, however, loses none of the rights to which he was entitled as a member of his own family. (Allgemeines Bürgerliches Gesetzbuch, Arts. 182, 183, 184, 185.) — ED.

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TITLE VIII. CONCERNING THE DIVISION AND NATURE OF THINGS.

1. Gaius, Institutes, Book II.

The principal division of Things is under two heads: for some of them belong to Divine and some to human law. Those which come under Divine law are, for instance, sacred and religious things. Sacred things are, for example, walls and gates, which, to a certain extent, are under Divine law. For what is subject to Divine law is not the property of anyone, and that indeed which belongs to human law is, for the most part, the property of someone, nevertheless, it may belong to none, for things belonging to an estate until an heir appears, are not the property of anyone. Again, those things that are under human law are either public or private. Those which are public are held to be the property of no one, and are considered to belong to the entire community, and those which are private belong to individuals.

(1) Moreover, some things are corporeal, and some are incorporeal. Those are corporeal which are tangible, as for instance land, slaves, clothing, gold, silver, as well as innumerable other articles. Those are incorporeal which cannot be touched as an usufruct, and obligations, in whatever way contracted. It does not matter if corporeal things are included in an estate, for the crops taken from land are corporeal, and whatever is owing to us through the obligation of another, is for the most part corporeal, as land, slaves, money; still, the right of succession, the right of use and enjoyment, and the right based upon an obligation are all incorporeal. To the same class belong all the rights of urban and rustic estates, which are designated as servitudes.

2. Marcianus, Institutes, Book HI.

Certain things are common to all by natural law; some belong to the entire community, some to no one, and the greater number to individuals; these are acquired in various ways respectively.

(1) Again, all the following things are common by natural law, namely the air, running water, the sea, and hence the shores of the sea.

3. Florentinus, Institutes, Book VI.

Likewise, precious stones, gems, and other things which we find upon the seashore also at once become ours by natural law.

4. Marcianus, Institutes, Book III.

Consequently no one can be forbidden to approach the shore of the sea in order to fish; still, they must avoid interfering with houses, buildings, and monuments, because they are not subject to the Law of Nations, as the sea is; and this the Divine Pius stated in a Rescript addressed to the fisherman of Formiæ and Capena.

(1) Almost all rivers and harbors are also public.

5. Gaius, Legal Doctrines of Daily Application and Utility. Book II.

The public use of the banks of rivers is subject to the Law of Nations, just as the rivers themselves are. Therefore, everyone is free to conduct a boat to the bank; to attach ropes to trees growing there; to dry nets, and draw them up from the sea; and to deposit any cargo thereon; just as he can navigate the river itself. The ownership of the banks, however, is vested in those to whose lands they are contiguous; for which reason the trees growing upon them also belong to the latter.

(1) Those who fish in the sea have a right to erect a hut upon the shore in which to shelter themselves.

6. Marcianus, Institutes, Book III.

This right exists to such an extent that those who build there actually become the owners of the land, but only as long as the building stands; otherwise, if it falls down, the place reverts to its former condition by the law of postliminium, so to speak, and if another party builds a house in the same place, the soil becomes his.

(1) There are some things which, by natural law, belong to the entire community and not to individuals; as, for instance, theatres, racecourses, and other things of this kind, or anything else which is the common property of a city. Therefore, a slave belonging to a city is not understood to be the property of any individual in particular, but of the entire community; and for this reason the Divine Brothers stated in a Rescript that a slave belonging to a city could be put to torture either against a citizen or in his behalf. In consequence of this, also the freedman of a city is not compelled to ask permission under the Edict, if he brings any citizen into court.

(2) Things which are sacred, religious, and holy are not the property of anyone.

(3) Sacred things are those which are publicly and not privately consecrated; and hence if anyone should make anything sacred for himself privately, it is not sacred but profane; where, however, a temple has once been made sacred the place still remains so, even after the edifice has been demolished.

(4) Anyone by his will can render a place religious by burying a corpse on his own premises; and where a burial-place belongs to several persons, one of the owners can inter a body there, even though the others may be unwilling. An interment can also be made upon the land of another, if the owner consents; and even where he ratifies it afterwards the place where the corpse was buried becomes religious.

(5) Again, the better opinion is that an empty tomb is a religious place, as is stated in Virgil.

7. Ulpianus, On the Edict, Book XXV.

Nevertheless, the Divine Brothers published a Rescript to the contrary.

8. Marcianus, Rules, Book IV.

A holy place is one which is defended and protected from the injuries of men.

(1) The word "sacred" is said to have been derived from the word sagmina, certain plants which were usually carried by the ambassadors of the Roman people to prevent their persons from being violated; just as the Greek Ambassadors carried those which are called khrukia.

(2) Cassius states that Sabinus very properly gave the opinion that the walls of a city were holy, and that it was necessary for persons to be prohibited from placing anything against them.

9. Ulpianus, On the Edict, Book LXVIII.

Sacred places are those which are dedicated to the public, either in the city or in the country.

(1) It should be understood that a public place can only become sacred when the Emperor has dedicated it, or granted permission for this to be done.

(2) It must be remarked that a sacred place is one thing and a sacrarium is another; for a sacred place is one which has been consecrated, and a sacrarium is one in which sacred things are deposited, which also may exist in a private house; and when persons desire to divest such a place of its religious character they usually withdraw the sacred things therefrom.

(3) We properly call those things holy which are neither sacred nor profane, but which have been confirmed by some sanction, hence the laws are holy, for the reason that they are based upon a certain sanction; and anything that is supported by a certain sanction also is holy, even though it may not be consecrated to God; and it is even sometimes added in the sanction itself that anyone who is guilty of an offence in that place shall be punished with death.

(4) Moreover, it is not permitted to repair the walls of cities, or to add anything to them, or place anything upon them, without the authority of the Emperor or the governor.

(5) Anything that is sacred is not susceptible of appraisement.

10. Pomponius, On Plautius, Book VI.

Aristo declares that just as anything built into the sea becomes private property, so whatever the sea encroaches upon becomes public property.

11. Pomponius, From Various Passages, Book II.

Where anyone trespasses upon the walls, he is punished with death; just as where anyone climbs over them by means of ladders, or in any other manner; since Roman citizens are not permitted to leave a city except by the gates; as the former is an act of hostility and abominable. It is said that Remus, the brother of Romulus, was killed because he wished to scale the wall.

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TITLE IX. CONCERNING SENATORS.

1. Ulpianus, On the Edict, Book LXII.

No one doubts that a man of consular rank should always take precedence of a woman of consular rank, but it is a matter for consideration whether a man of præfectorian rank takes precedence of a woman of consular rank. I think that he does take precedence of her, because greater dignity attaches to the male sex.

(1) We call the wives of consuls women of consular rank, and Saturninus extends this quality to their mothers, but this is not stated anywhere else and it is nowhere admitted.

2. Marcellus, Digest, Book HI.

Cassius Longinus is of the opinion that when a man has been expelled from the Senate for infamous behaviour, and has not been reinstated, he should not be permitted to preside in court, or testify as a witness; for the reason that the Lex Julia forbids this to be done in cases of extortion.

3. Modestinus, Rules, Book VI.

A senator who has been expelled from the Senate does not lose his citizenship; and the Divine Severus and Antoninus even permitted him to live at Rome.

4. Pomponius, From Various Passages, Book XII.

Whoever is unworthy of a lower rank is still more unworthy of a higher one.

5. Ulpianus, On the Lex Julia et Papia, Book I.

We should understand by the terms "the son of a senator", not only a natural son but also an adopted one, and it does not matter by whom or in what way he has been adopted. Nor does it make any difference whether he was already invested with senatorial rank when he adopted him, or whether this was done subsequently.

6. Paulus, On the Lex Julia et Papia, Book II.

A son adopted by a senator continues to be such as long as he remains in his family; but when he is emancipated, then by the emancipation he loses the name of son.

(1) When a son is given in adoption by a senator to a person of inferior rank he is always considered the son of a senator; because the senatorial dignity is not lost by an adoption arising from an inferior station, any more than anyone would cease to be of consular dignity under similar circumstances.

7. Ulpianus, On the Lex Julia et Papia, Book I.

It is established that the son of a senator emancipated by his father is always considered a senator's son.

(1) Labeo also declares that a child born after the death of his father who was a senator, shall be considered the son of the senator. Proculus and Pegasus are of the opinion, however, that a child who was conceived and born after the expulsion of its father from the Senate, should not be considered a senator's son.

This opinion is correct, for he whose father has been expelled from the Senate before he was born, cannot properly be called the son of a senator; but where a child has been conceived before its father was expelled from the Senate, and born after his father had lost his rank, the better opinion is that he should be understood to be the son of a senator. It is held by many that the time of conception should only be considered under such circumstances.

(2) Anyone whose father and grandfather have been senators is understood to be both the son and the grandson of a senator; if, however, his father lost his rank before the conception of the former, the question might arise whether he should not be considered the grandson of a senator, even though he was no longer regarded as the son of one? It is the better opinion that he ought to be, so that the rank of his grandfather may be of advantage to him, rather than he should be injured by the condition of his father.

8. The Same, Trusts, Book VI.

Women who are married to persons of illustrious rank are included in the appellation of illustrious persons. The daughters of senators are not known by the name of illustrious women, unless they have obtained husbands of eminent dignity, for their husbands confer illustrious rank upon them; but parents, indeed, do so, so long as they are not connected with plebeian families. Therefore, a woman is of illustrious rank while she is married to a senator or a distinguished man; or, having been separated from him, she has not married a person of inferior station.

9. Papinianus, Opinions, Book IV.

When the daughter of a senator marries a freeman, the condition of her father does not make her a wife; since, on the other hand, where her father had been expelled from the Senate, his children should not be deprived of the rank which they have obtained.

10. Ulpianus, On the Edict, Book XXXIV.

We should consider the children of senators to be not only their sons, but also all those descended from them or from their children, whether they be the natural or adopted offspring of the senators from whom they are said to have descended; but in the case of a child, born to the daughter of a senator, we must examine the condition of the father.

11. Paulus, On the Edict, Book XLI.

Senators are always considered to have their residence at Rome; still, they are understood to have a residence in the place where they were born, for the reason that the rank of senator is considered rather to give an additional domicile than to change the old one.

12. Ulpianus, On Registers of the Censor, Book II.

Women married in the first place to men of consular dignity, and afterwards to men of inferior station, sometimes, though rarely, despite this obtain from the Emperor the privilege of retaining their consular rank; for I know that Antoninus Augustus favored his cousin Julia Mammæ in this respect.

(1) Those are to be considered persons of senatorial rank who are descended from patricians and consuls, or any illustrious men; because these alone have the right to give their opinions in the Senate.

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TITLE X. CONCERNING THE OFFICE OF CONSUL.

1. Ulpianus, On the Duties of Consul, Book II.

It is the duty of the Consul to appoint a council for those who desire to manumit slaves.

(1) Consuls can manumit together, or alone, but he who has left names with one Consul cannot manumit before another for then the manumissions are separate; and if, for any reason, either through sickness, or through being prevented by any other just cause, one of them cannot manumit, the Senate has decided that his colleague can proceed with the manumission.

(2) There is no doubt that Consuls can manumit their own slaves before themselves, but if it should happen that a Consul is under twenty years of age, he has not the power of manumission in his own tribunal, as he himself is the one who, according to a decree of the Senate, must determine the ground for the appointment of a council. He can, however, do this before his colleague where proper cause has been established.

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TITLE XI. CONCERNING THE OFFICE OF PRÆTORIAN PREFECT.

1. Aurelius Arcadius Charisius, Master of Requests, On the Duties of Prætorian Prefect.

It is necessary to state briefly whence the origin of the office of Prætorian Prefect was derived. It has been asserted by some writers that Prætorian Prefects were formerly created instead of Masters of Cavalry; for, as in the time of the ancients the supreme power was occasionally conferred upon dictators, they were accustomed to choose their Masters of Cavalry, who were associated with them in the discharge of their military duties, and held the next rank after them. The government of the republic having been permanently transferred to the Emperors, Prætorian Prefects were chosen by those princes, just as had been done in the case of the Masters of Cavalry, and upon them was conferred greater power for the purpose of promoting public discipline.

(1) The authority of the Prefects having originated in this manner, it was subsequently increased to such an extent that no appeal can be taken from the decision of a Prætorian Prefect; for when formerly a question arose as to whether an appeal could be taken from the decision of a Prætorian Prefect, which, in fact, was allowed by law, and examples of those who did so are extant; afterwards, by an Imperial Decree publicly promulgated, the right of appeal was forbidden. For the Emperor thought that those who were appointed to this high office on account of their eminent industry, after their discernment and integrity had been established, would render judgment not otherwise than he himself would do, the wisdom and enlightenment attaching to their rank being taken into consideration.

(2) Prætorian Prefects also enjoyed an additional privilege; for minors could not obtain restitution after condemnation, from any other magistrates than from the Prætorian Prefects themselves.

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TITLE XII. CONCERNING THE OFFICE OF PREFECT OF THE CITY.

1. Ulpianus, On the Duties of the Urban Prefect.

An Epistle of the Divine Severus to Fabius Cilo, Prefect of the City, states that he has jurisdiction of all offences of every description, not only those committed within the city, but also those which are committed outside of it, in Italy.

(1) He must hear the complaints of slaves against their masters who have fled for refuge to the Imperial statues, or have been purchased by their own money in order to be manumitted.

(2) He must also hear the complaints of needy patrons concerning their freedmen; especially if they assert that they are ill and wish to be supported by them.

(3) He has authority to relegate and deport persons to an island designated by the Emperor.

(4) In the beginning of the Epistle referred to the following appears: "Since We have confided Our City to your care"; hence whatever is done within the city appears to be under the jurisdiction of the Prefect, and this also applies to any offence committed within the hundredth milestone, but beyond that distance the Prefect of the City has no jurisdiction.

(5) Where anyone accuses a slave of having committed adultery with his wife, the case must be tried before the Prefect of the City.

(6) He can take cognizance of proceedings under the interdicts Quod vi aut clam, or Unde vi.

(7) It is customary to send guardians or curators before the Prefect of the City, who, having administered their trusts fraudulently, deserve a more severe punishment than the infamy arising from suspicion; for example, when it can be proved that they have bought their guardianships with money, or for a bribe have exerted themselves to prevent a suitable guardian from being appointed for anyone; or when they, having declared the amount of the property of their wards; purposely diminished it; or where they alienated the said property evidently with fraudulent design.

(8) When it is said that the prefect must hear the complaints of slaves against their masters, we should understand that this does not mean that they can accuse their masters (for a slave is never allowed to do this, unless for specific reasons), but that they may humbly apply to him where their masters treat them with cruelty, harshness, or starve them, or may state to the Prefect of the City that they have been forced to endure indecent attacks. It was also a duty imposed upon the Prefect of the City by the Divine Severus, that he should protect slaves from being prostituted by their masters.

(9) Again, the Prefect of the City should take care that money-brokers conduct everything connected with their business honestly, and refrain from illegal acts.

(10) Where a patron states that he has been treated disrespectfully or been insulted by his freedman; or that he and his children, or his wife, have been abused by him, or brings any similar accusation; it is customary for him to appear before the Prefect of the City, who will punish the freedman according to the complaint, either by warning him, or by having him scourged, or by inflicting a still more severe penalty, for freedmen very often deserve to be punished. And indeed if the patron can prove that he brought a criminal accusation against him, or that he has conspired against him with his enemy, he can be sentenced to labor in the mines.

(11) Supervision of every kind of meat and its sale at a reasonable price is one of the duties of the Prefect, and the hog market is also in his charge, as well as that of other animals, and herds of cattle and flocks of sheep destined for this purpose come under his jurisdiction.

(12) The preservation of public peace and order at exhibitions is held to be one of the duties of the Prefect of the City; and, indeed, he should station soldiers at different points for the purpose of maintaining the public peace, and to report to him whatever takes place in the city.

(13) The Urban Prefect can compel anyone to remain away from the city, as well as from any of the other districts, and forbid him to transact any business, or practice any profession, or act as advocate, either temporarily or for all time. He can also prohibit him from attending exhibitions, and if he exiles him from Italy, can remove him from his native province as well.

(14) The Divine Severus stated in a Rescript that those who are said to have held unlawful assemblies must be prosecuted before the Prefect of the City.

2. Paulus, On the Duties of the Prefect of the City.

According to an Epistle of the Divine Hadrian he can be applied to in cases brought by bankers or against them, and pecuniary cases can, for the most part, be tried before him.

3. Ulpianus, On the Edict, Book II.

The Prefect of the City has no jurisdiction beyond the limits of the city, but he can appoint judges outside of it.

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TITLE XIII. CONCERNING THE OFFICE OF QUÆSTOR.

1. Ulpianus, On the Duties of Quæstor.

The origin of quæstor is very ancient, more so than that of almost any other magistracy. Gracchanus Julius, in the Seventh Book "On Authorities", relates that Romulus himself, and Numa Pompilius had two quæstors not appointed by themselves, but by the votes of the people; but even if doubt exists whether there was any quæstor during the reigns of Romulus and Numa, it is certain that quæstors existed during that of Tullus Hostilius; and, indeed, it is the prevalent opinion of ancient writers that Tullus Hostilius was the first to introduce quæstors into the government of the commonwealth.

(1) Junius, Trebatius, and Fenestella deduced the origin of the word quæstor from quæro (to seek).

(2) Some of the quæstors were accustomed to draw lots for the provinces assigned by the decree of the Senate, which was also done under the consulate of Decimus Drusus and Porcina. All the quæstors, however, did not obtain their provinces by lot, the candidates of the Emperor being excepted, for these were only employed in reading the Imperial Epistles in the Senate.

(3) At present, quæstors are taken indiscriminately from patricians and plebeians; for the place is an entrance to, and, so to speak, the beginning of other offices, and confers the right to state one's opinion in the Senate.

(4) There are some of these, as We have just stated, who are styled the candidates of the Emperor, and who read his Epistles in the Senate.

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TITLE XIV. CONCERNING THE OFFICE OF THE PRÆTORS.

1. Ulpianus, On Sabinus, Book XXVI.

A father can manumit before a son who is under his control, if the son is a prætor.

2. Paulus, On Sabinus, Book IV.

It is also settled that he himself can be emancipated or give in adoption in his own tribunal.

3. Ulpianus, On Sabinus, Book XXXVIII.

Barbarus Philippus, a fugitive slave, sought the prætorship of Rome, and was appointed Prætor. Pomponius is of the opinion that his condition as a slave was no obstacle to his holding the office of Prætor. It is true that he performed the duties of that office, still, let us consider the case of a slave having kept his condition secret for a long time, while he discharged his duty as Prætor. Will all that he decided or decreed be of no force or effect? What shall We say? Or will it be valid on account of the welfare of those who instituted proceedings before him either under the law, or by virtue of some other legal right? Indeed, I think that none of these things should be rejected; for this is the more humane view to take, since the Roman people had the power to invest a slave with this authority, and if they had known that he was such they would have granted him his freedom. Much more must this right be considered well founded with respect to the Emperor.

4. The Same, On All Tribunals, Book I.

A Prætor cannot appoint himself a guardian, or a judge in any special proceeding.

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TITLE XV. CONCERNING THE OFFICE OF PREFECT OF THE NIGHT WATCH.

1. Paulus, On the Duties of the Prefect of the Night Watch.

Among the ancients three men were appointed for the purpose of providing against fire, who, because they kept watch at night, were styled Nocturni. The ædiles and the tribunes of the plebs also sometimes took part; and there were, in addition, a detachment of public slaves stationed around the gate and the walls, whence they could be summoned if necessary. There were also certain bodies of private slaves who extinguished fires, either for pay, or gratuitously. Finally, the Divine Augustus preferred to have this duty performed under his own supervision.

2. Ulpianus, On the Duties of the Prefect of the Night Watch.

Because several fires took place during one day.

3. Paulus, On the Duties of the Prefect of the Night Watch.

In fact, Augustus thought that the safety of the Republic could be protected by no one better than by him, and that no one was so equal to the task as the Emperor. Therefore he posted seven cohorts in proper places, in order that each cohort might protect two quarters of the city; these were commanded by tribunes, and above them was a superior officer who was designated the Prefect of the Night Watch.

(1) The Prefect of the Night Watch takes cognizance of incendiaries, burglars, thieves, robbers, and harborers of criminals, unless the culprit is so savage and notorious, that he is turned over to the Prefect of the City. And as, for the most part, fires are caused by the negligence of the inhabitants, he either has those whipped who have been careless in regard to fire, or he remits the whipping, and gives them a severe warning.

(2) Burglaries are generally committed in houses containing many apartments, or in warehouses where men have deposited the most valuable part of their goods; the burglar either breaks open a storeroom, a closet, or a chest, and those who are appointed to guard this property are the ones ordinarily punished. The Divine Antoninus stated this in a Rescript to Erycius Clarus, for he says: "That if his warehouses are broken open, he can put the slaves who were guarding them to torture, even though some of them may belong to the Emperor himself."

(3) It should be noted that the Prefect of the Night Watch must be on guard during the entire night, and should make his rounds properly shod, and provided with hooks and axes.

(4) He must be careful to notify all occupants of houses not to allow any fire to occur through their negligence, and such occupant must be directed to always have water on his upper floor.

(5) He also has supervision over those who, for a compensation, take charge of clothing in the baths; and if while performing this duty they are guilty of any illegal acts he must take cognizance of them.

4. Ulpianus, On the Duties of the Prefect of the City.

The Emperors Severus and Antoninus stated the following in a Rescript to Julius Rufmus, Prefect of the Night Watch: "If the occupants of blocks of houses, or others are negligent with regard to their fires, you can order them to be whipped with rods or scourged; and those who are accused of arson you may send to Our friend Fabius Cilo, Prefect of the City; fugitive slaves you must seek out and restore to their masters."

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TITLE XVI. CONCERNING THE OFFICE OF PROCONSUL, AND HIS DEPUTY.

1. Ulpianus, Controversies, Book I.

The proconsul bears everywhere the insignia of his rank after he leaves the city; but he does not exercise authority except in the province which has been assigned to him.

2. Marcianus, Institutes, Book I.

All proconsuls after having left the city have jurisdiction, provided it is not contentious, but voluntary; for example, the manumissions of children as well as of slaves, and adoptions can take place before them.

(1) No one can manumit, however, before the deputy, for the reason that he has not sufficient jurisdiction.

3. Ulpianus, On Sabinus, Book XXVI.

Nor can adoptions take place before him, as in fact no legal action can be brought in his court.

4. The Same, On the Duties of Proconsul, Book I.

It is necessary for the proconsul also, to be careful not to oppress his province in the entertainment of officials; as our Emperor, as well as his father stated in a Rescript to Aufidius Severianus.

(1) No proconsul can have his own grooms, but in their stead soldiers should perform their duties in the provinces.

(2) It would also be better for the proconsul to travel without his wife, still, he can bring his wife with him; but he must remember that the Senate, during the consulship of Cotta and Mesalla, decreed, "That in the future if the wives of those travelling to take charge of their offices should commit any offence, an accounting will be required of their husbands and punishment will be inflicted upon them".

(3) Before the proconsul passes the boundaries of the province assigned to him, he should publish an edict announcing his arrival, and containing a recommendation of himself, if he has any acquaintance or connection with the people of the province; and by all means request them not to come to meet him either publicly or privately, it being more suitable that each one should receive him in his own country.

(4) He will also act properly and according to the regular order of proceeding, if he sends a notice to his predecessor indicating the day when he will pass the boundaries of his jurisdiction; for frequently when these things are not certainly known or expected, the people of the province are disturbed, and business transactions are impeded.

(5) It is proper when he enters the province for him to do so in that portion where this is customary; and that whatever city he reaches first he should pay attention to what the Greeks call epidh miaV, that is "the place of sojourn", or kataploun "the port of arrival"; for the provincials attach great importance to the preservation and observance of this custom and of privileges of this description. There are some provinces to which the proconsul goes by sea, as, for instance, Asia; and to such an extent was this carried that our Emperor Antoninus Augustus stated in a Rescript, in reply to a request of the Asiatics, "That the proconsul was absolutely required to proceed to Asia by sea, and to land at Ephesus, before touching at any of the other principal cities".

(6) After having made his entry into the province, he should invest his deputy with his jurisdiction, but he should not do this before, as it would be absurd for him to confer authority on another which he does not yet himself possess; for he is not entitled to the same until he enters the province. If, however, he should do this before, and after having entered the province should not change his mind, it would probably be decided that the deputy has jurisdiction, not from the time when it had been conferred upon him, but from the day when the proconsul entered the province.

5. Papinianus, Questions, Book I.

There are cases in which a proconsul can delegate his jurisdiction, even though he has not yet entered the province; for example, if he had been subjected to some necessary delay during his journey, and his deputy was able to arrive at the province very soon.

6. Ulpianus, On the Duties of Proconsul, Book I.

It is customary for him to commit to his deputies cognizance of the offences of prisoners; so that, after having been interrogated, the deputies can send them back, in order that the proconsuls may discharge those who are innocent. This species of delegated power is, however, extraordinary; for no one can transfer to another the right to impose the penalty of death, or that of inflicting any other punishment, which has been conferred upon himself, or even that of discharging prisoners who cannot be prosecuted before him.

(1) As the proconsul has the right to delegate or not to delegate his judicial authority according to his will, he has also the right to recall it; but he should not do so without consulting the Emperor.

(2) It is not proper for the deputies to consult the Emperor, but they should apply to their own proconsul, and he is compelled to answer their inquiries.

(3) The proconsul should not absolutely refuse to receive presents, but he should act with moderation, so as not rudely to reject them altogether, nor avariciously transcend the bounds of reason in their acceptance; which matter the Divine Severus and the Emperor Antoninus have very properly regulated in an Epistle, the words of which are as follows: "With reference to presents, We are of the opinion stated in an ancient proverb, viz: 'Not all things should be received, nor at all times, nor from all persons'; for, indeed, it is impolite to accept gifts from no one; but, on the other hand it is most despicable, and most avaricious to accept without distinction everything that is given." And as to what is contained in the Imperial Mandates, namely: "That the proconsul himself, or any other person in office shall accept no gift or present, and shall not even purchase anything except for the purpose of daily subsistence"; this has no reference to small gratuities, but to those which exceed the requirements of ordinary support. Nor should such presents be extended to the point of making donations of great value.

7. The Same, On the Duties of the Proconsul, Book II.

When the proconsul enters any other city which is not a populous one or the capital of the province, he should permit it to be placed under his protection, and listen to the compliments bestowed upon him without evincing any discontent, since the people of the province do this in his honor; and he should also appoint festivals in accordance with the manners and customs which have previously been observed.

(1) He should visit the temples and public monuments, for the purpose of inspecting them, and ascertaining whether they are in good condition, and properly cared for, or whether they need any repairs, and provide for the completion of such as have been begun, as far as the resources of the government permit; and he should appoint with the proper formalities superintendents who are diligent in their work, and also detail soldiers for the purpose of assisting the superintendents, if this should be necessary.

(2) As the proconsul has complete jurisdiction, all the authority of those who dispense justice at Rome either in the capacity of magistrates or through the grant of extraordinary power, is vested in him.

8. The Same, On the Edict, Book XXXIX.

Therefore the Proconsul has in his own province greater authority than anyone else except the Emperor.

9. The Same, On the Duties of Proconsul, Book I.

Nor can any question arise in his province which he cannot himself dispose of. However, if any matter relating to the affairs of the Treasury arises and which belongs to the jurisdiction of the Imperial Steward, it will be better for him to pass it by.

(1) In cases where a decree is necessary, the Proconsul cannot dispose of the same by means of a notice by the plaintiff, for all things whatsoever which demand judicial investigation cannot be terminated in this way.

(2) The proconsul must hear the advocates with patience and also with discernment, lest he appear contemptible; nor ought he to dissimulate if he ascertains that parties have trumped up cases, or purchased the right to litigation; and he should only suffer those to institute proceedings who are permitted to do so by his Edict.

(3) The Proconsul has power to dispose of the following matters extrajudicially; he can order persons to show proper respect to their parents, and freedmen to their patrons and the children of the latter; he can also threaten and severely menace a son brought before him by his father and who is said not to be living as he should. He can, in like manner, correct an impudent freedman either by reproof or by castigation.

(4) Hence he should be careful to have a certain order prevail in legal procedure, namely, that the petitions of all persons shall be heard; lest it may happen that if the rank of some is favored, or attention is paid to others as are not worthy, those of moderate pretensions who have no one to appear for them, or having employed advocates of small experience or no standing, may not be able to properly present their claims.

(5) He must also appoint advocates for those who request it, and especially for female wards or persons otherwise incapacitated; as well as for those who are out of their minds, if anyone petitions him to do so for them; and if there is no one to request it, he can grant this at his own instance. He must also appoint an advocate for any person who alleges that he cannot himself find one on account of the influence of his adversary, as it is not just for anyone to be oppressed by the superior power of his adversary; for this, indeed, has a tendency to reflect upon the Governor of the province, where anyone acts with so little self-control that all are afraid to appear as advocates against him.

(6) These rules are applicable to all Governors, and should be observed by them.

10. The Same, on the Duties of Proconsul, Book X.

The proconsul must remember that he ought to perform all his duties until the arrival of his successor, for the reason that there is but one Proconsulate, and the welfare of the province requires that there should always be someone through whom the people may transact their business; he should therefore administer justice until the arrival of his successor.

(1) The Lex Julia Concerning Extortion and the Rescript of the Emperor Hadrian to Calpurnius Rufus, Proconsul of Achaia, forbids Proconsuls to dismiss their deputies previously to their own departure.

11. Venuleius Saturninus, On the Duties of Proconsul, Book II.

If there is anything that demands severe punishment, the deputy should send the case to the Proconsul; for he himself has not the right to execute, to imprison, or to scourge with great severity.

12. Paulus, On the Edict, Book II.

A deputy on whom jurisdiction has been conferred has the right to appoint judges.

13. Pomponius, On Quintus Mucius, Book X.

The deputy of a Proconsul has no jurisdiction of his own where none has been conferred upon him by the Proconsul.

14. Ulpianus, On the Lex Julia et Papia, Book XX.

Proconsuls are only entitled to six lictors.

15. Licinius Rufinus, Rules, Book III.

The deputies of Proconsuls can appoint guardians.

16. Ulpianus, On the Edict, Book II.

As soon as the Proconsul enters the gate of Rome, he loses his authority.

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TITLE XVII. CONCERNING THE OFFICE OF AUGUSTAL PREFECT.

1. Ulpianus, On the Edict, Book XV.

The Prefect of Egypt does not lay aside his prefectship and the authority granted to him by law under Augustus, as Proconsuls do, before his successor enters the City of Alexandria; even though he may have already reached the province; and it is so stated in his commission.

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TITLE XVIII. CONCERNING THE OFFICE OF GOVERNOR.

1. Macer, On the Duties of Governor, Book I.

The title of Governor is a general one, and hence it is applicable to Proconsuls and Deputies of the Emperor, as well as to all Governors of the provinces, and even to senators. The title of Proconsul is one of special signification.

2. Ulpianus, On Sabinus, Book XXVI.

A Governor can adopt before himself, just as he can emancipate a son, or manumit a slave.

3. Paulus, On Sabinus, Book XIII.

The Governor of a province has authority only over the inhabitants of his province; and this only as long as he remains therein, for if he departs from it, he becomes a private person. He sometimes has jurisdiction over foreigners, when one actually commits an offence; for it is stated in the Imperial Mandates that he who presides over a province must take care to purge it of bad characters, without any distinction as to where they come from.

4. Ulpianus, On the Edict, Book XXXIX.

The Governor of a province has greater authority therein than anyone else except the Emperor.

5. The Same, On All Tribunals, Book I.

The Governor of a province cannot appoint himself either a guardian, or a judge in a particular case.

6. The Same, Opinions, Book I.

The Governor of a province must suppress illegal exactions, including such as are committed with violence, as well as sales and obligations extorted by fear, and those where the money is not paid down. He must also provide against anyone unjustly obtaining profit, or suffering loss.

(1) The truth is not changed by error, and hence the Governor of a province must follow the course which is suitable by taking into consideration facts which have been proved.

(2) It is a matter affecting the honor of the Governor of a province to provide that the more humble shall not be injured by the more powerful, and do not persecute the defenders of the innocent by means of false accusations.

(3) He shall restrain unauthorized parties who, under the pretext of assisting officials, proceed to disturb the people; and take measures to punish them when detected. He must also prevent illegal exactions from being made under the pretence of collecting tribute.

(4) The Governor of a province must make it his especial care that no one shall be prevented from transacting any lawful business, and that nothing prohibited shall be done, and that no punishment shall be inflicted upon the innocent.

(5) The Governor of a province must see that persons of limited resources are not treated unjustly by having their only lamp or small supply of furniture taken from them for the use of others, under the pretext of the arrival of officers or soldiers.

(6) The Government of a province must provide that no partiality shall be shown to soldiers — that is which does not benefit all of them — by certain ones claiming undue advantage for themselves.

(7) The event of death should not be imputed to a physician, but it is also a fact that he is responsible for anything caused by his lack of skill; for a wrong committed by a person who gives bad advice in a dangerous emergency should not be imputed to human frailty and be considered blameless.

(8) Those who govern entire provinces have the right to inflict the death penalty, and authority is conferred upon them to condemn delinquents to the mines.

(9) The Governor of a province who, after having imposed a fine, ascertains that it cannot be collected from the property of the parties whom he has directed to pay it, must relieve them from the necessity of payment, and repress the unlawful avarice of those who demand it. Where, on account of poverty a fine has been remitted by the provincial authorities, it should not be exacted.

7. The Same, Opinions, Book III.

The Governor of a province where buildings have been inspected by him, can compel their owners to repair them when sufficient cause for this exists; and where a refusal is made, he should take proper measures for their reparation.

8. Julianus, Digest, Book I.

I have often heard our Emperor say that where it is set forth in a Rescript that: "You can apply to him who presides over the province", this does not place the Proconsul, or his deputy, or the Governor of the province under the obligation of hearing the case; but he should consider whether he ought to hear it himself, or appoint a judge for that purpose.

9. Callistratus, On Judicial Inquiries, Book I,

Generally speaking, whenever the Emperor issues a Rescript referring any matter to the Governor of a province, as for instance, when he says: "You can apply to him who presides over the province," or with this addition, "He will consider what his duty requires", no obligation is imposed upon the Proconsul or his deputy to take cognizance of the case; but even where the words "He will consider what his duty requires" are not added, he must make up his mind whether he will hear it himself or appoint a judge to do so.

10. Hermogenianus, Epitomes of Law, Book II.

It is the duty of the Governors of provinces to hear all cases which either the Prefect of the City, the Prætorian Prefect, or the Consuls, Prætors, or other magistrates hear at Rome.

11. Marcianus, Institutes, Book III.

All provincial applications which are made to various Judges at Rome come within the jurisdiction of Governors.

12. Proculus, Epistles, Book IV.

And although he who governs the province ought to be invested with authority to discharge the duties of all Roman magistrates, still, he should pay attention to what should be done in each case, rather than to what is done at Rome.

13. Ulpianus, On the Office of Proconsul, Book VII.

It is proper for every good and worthy Governor to take care that the province over which he presides is peaceable and quiet. This he will accomplish without difficulty if he exerts himself to expel bad men, and diligently seek for them, as he must apprehend all sacrilegious persons, robbers, kidnappers, and thieves, and punish each one in proportion to his crime; he should also restrain those who harbor them, as without their assistance a robber cannot long remain concealed.

(1) In the case of insane persons who cannot be controlled by their relatives, it is the duty of the Governor to apply a remedy, namely, that of confinement in prison, as the Divine Pius stated in a Rescript. The Divine Brothers were of the opinion that where a man had committed parricide, a personal investigation should be made to learn whether he had perpetrated the deed while simulating insanity, or whether, in fact, he was not in possession of his faculties, for if he was feigning he should be punished, and if he was actually insane, he should be confined in prison.

14. Macer, On Criminal Trials, Book II.

The Divine Marcus and Commodus addressed a Rescript to Scapulas Tertullus in the following terms: "If it is positively ascertained by you that Ælius Perseus is to such a degree insane that, through his constant alienation of mind, he is void of all understanding, and no suspicion exists that he was pretending insanity when he killed his mother, you can disregard the manner of his punishment, since he has already been sufficiently punished by his insanity; still, he should be placed under careful restraint, and, if you think proper, even be placed in chains; as this has reference not so much to his punishment as to his own protection and the safety of his neighbors. If, however, as often happens, he has intervals of sounder mind, you must diligently inquire whether he did not commit the crime during one of these periods, so that no indulgence should be given to his affliction; and, if you find that this is the case, notify Us, that We may determine whether he should be punished in proportion to the enormity of his offence, if he committed it at a time when he seemed to know what he was doing.

"But, when We are informed by your letter that his condition so far as place and treatment are concerned, is that he remains in charge of his friends, or under guard in his own house; it appears to Us that you will act properly if you summon those who had care of him at that time, and investigate the cause of such great neglect, and decide the case of each one of them, so far as you discover anything tending to excuse or increase his negligence; for keepers are appointed for insane persons, not only to prevent them from injuring themselves, but that they may not be a source of destruction to others; and where this takes place, those very properly should be held responsible who are guilty of negligence in the discharge of their duties."

15. Marcianus, On Criminal Trials, Book I.

One thing must be observed, he who governs the province must not pass its boundaries unless for the purpose of fulfilling a vow; and, even then he must not spend a night outside.

16. Macer, On the Office of Governor, Book I.

It is provided by a Decree of the Senate "That judicial proceeding must be very sparingly instituted with reference to obligations contracted by those who govern provinces, their attendants, or their freedmen, before they entered the province; for any actions which are not brought for this reason can be filed afterwards when any of the parties have left the province. But where anything occurs against the will of the party, as for instance if he suffers some injury, or is made the victim of theft, proceedings can be instituted to the extent of joining issue, and ordering the production and deposit of the stolen property; or a promise shall be given with security that the party will appear, or that the article in question will be produced."

17. Celsus, Digest, Book III.

Where the Governor of a province has manumitted anyone, or appointed a guardian before he was aware of the arrival of his successor, these acts shall be valid.

18. Modestinus, Rules, Book V.

It is provided by a plebiscite "That no Governor shall accept a present or a gift, except food or beverages which may be consumed within a few days".

19. Callistratus, On Judicial Inquiries, Book I.

He who administers justice must be careful to be easy of access, but not permit anyone to treat him disrespectfully, for which reason it is stated in their directions: "That the Governors of provinces must not admit provincials to great familiarity with them"; for contempt of rank arises from equality of intercourse.

(1) But, in the trial of cases, it is not proper for an official to become inflamed against those of whom he thinks ill, or be moved to tears by the supplications of the unfortunate; for it is not the part of a resolute and upright judge to let his countenance disclose the emotions of his mind. In a word, he should so administer justice as to increase the authority of his rank by the force of his mental qualities.

20. Papinianus, Opinions, Book I.

The Deputy of the Emperor, that is to say the Governor, or the highest official of a province, does not lose his authority by relinquishing his office.

21. Paulus, On the Office of Assessor.

When the Governor is trying the case of a slave who has been corrupted, or of a female slave who has been debauched, or of a male slave who has been indecently attacked; if the slave who is said to have been corrupted is the business agent of anyone, or occupies such a place that, without considering the injury to property alone, the destruction and the ruin of the master's entire household is involved, he ought to be punished with the greatest severity.

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TITLE XIX. CONCERNING THE OFFICE OF THE IMPERIAL STEWARD OR ACCOUNTANT.

1. Ulpianus, On the Edict, Book XVI.

All acts performed by the Imperial Steward are approved by the Emperor, just as if they had been performed by himself.

(1) If the Imperial Steward disposes of any property which belongs to the Emperor as his own, I do not think that the ownership of the same is transferred; for he only makes a legal transfer while he is conducting the business of the Emperor and delivers it with his consent; for if he performs any act for the purpose of effecting a sale, a gift, or an agreement, it is void; as he has no authority to alienate the Emperor's property, but only to diligently administer it.

(2) It is a special function of the Imperial Steward that, by his order, a slave of the Emperor may enter upon an estate, and if the Emperor is appointed heir, the Procurator, by interfering with a rich estate, makes the Emperor the heir.

2. Paulus, Sentences, Book V.

If, however, the estate to which the Emperor is appointed heir is not solvent, after this has been learned, the Emperor must be consulted; for the wishes of an heir who has been appointed must be ascertained as to whether he will accept or reject an estate of this kind.

3. Callistratus, On Judicial Inquiries, Book VI.

The Imperial Stewards cannot sentence to deportation, for the reason that they have not the right of imposing this penalty.

(1) If, however, they forbid anyone to enter upon the land of the Emperor because his riotous or violent conduct might injure the Imperial tenants, the person is obliged to withdraw; for this the Divine Pius stated in a Rescript to Julius.

(2) Stewards cannot give permission to anyone to return after deportation, and this our Emperors Severus and Antoninus stated in a Rescript in answer to a petition of Hermias.

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TITLE XX. CONCERNING THE OFFICE OF JURIDICUS.

1. Ulpianus, On Sabinus, Book XXVI.

Anyone can adopt in the tribunal of the Juridicus¹, because the right of legal action is granted him.

¹ The Chief Magistrate of the city of Alexandria was designated by this title. — ED.

2. The Same, On Sabinus, Book XXXIX.

The privilege of appointing guardians was, by a Constitution of the Divine Marcus conferred upon the Juridicus who presides at Alexandria.

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TITLE XXI. CONCERNING THE OFFICE OF HIM TO WHOM JURISDICTION IS DELEGATED.

1. Papinianus, Questions, Book I.

Whatever authority is specially conferred either by a law, a decree of the Senate, or an Imperial Constitution, is not transferred when delegated, but any powers acquired by the right of magistracy can be delegated. Therefore, those magistrates are in error who, having authority conferred upon them by law or by a decree of the Senate, (such for instance as the Lex Julia de Adulteriis, and others of the same kind) to preside in a criminal trial, delegate their jurisdiction. A very strong argument in favor of this is, that in the Lex Julia de Vi it is expressly provided: "That he to whom the jurisdiction belongs can delegate it if he departs." He can not delegate it unless he is absent, although any other jurisdiction can be delegated by one who is present. Where a master is said to have been killed by his slaves, the Prætor cannot delegate the right to try them, which was conferred upon him by a decree of the Senate.

(1) He to whom jurisdiction has been delegated possesses none peculiar to himself, but must only exercise that of the magistrate who conferred it upon him; for while it is true that by the custom of our ancestors jurisdiction can be transferred, the authority conferred by law cannot be transferred. For this reason no one says that the deputy of a Proconsul has the right of imposing penalties when jurisdiction has been delegated to him. Paulus states that the authority attaching to jurisdiction is also delegated with it.

2. Ulpianus, On All Tribunals, Book III.

Where jurisdiction has been delegated by a Governor, he to whom it is delegated cannot assemble a Council.

(1) Where guardians or curators desire to sell land, the Prætor or Governor can permit this to be done after hearing the case; but if he delegates his jurisdiction he can, under no circumstances, transfer with it the right to conduct the inquiry instituted for this purpose.

3. Julianus, Digest, Book V.

He who exercises the jurisdiction of another, even if he is a Prætor, still does not do so by his own authority, but every time he acts he administers justice in the place of him by whom he was appointed.

4. Macer, On the Office of Governor, Book I.

Cognizance of the acts of suspected guardians can be delegated, and it is settled that this may occur in the general delegation of jurisdiction, on account of the interest of wards, as follows: "The Emperors Severus and Antoninus to Braduas, Proconsul of Africa. Since you have delegated your jurisdiction to your deputies, it follows that they can take cognizance of the acts of suspected guardians."

(1) Thus power can be delegated to give possession of property, as for instance, when an order is issued to take possession where a bond is not furnished to provide against threatened injury; or for possession in the case of a woman in behalf of her unborn child; or to grant possession to a legatee for the preservation of his legacy.

5. Paulus, On Plautius, Book XVIII.

It is evident that anyone to whom jurisdiction has been delegated cannot delegate the same to another.¹

¹ "Delegata potestas non potest delegari." — ED.

(1) When jurisdiction is delegated to a private individual, it is held that all magisterial power except that of condemning to death is delegated with it; because there is no jurisdiction which does not include the right to inflict moderate punishment.

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TITLE XXII. CONCERNING THE OFFICE OF ASSESSORS.

1. Paulus, On the Duties of Assessor.

The entire office of assessor in which those learned in the law discharge their duties, embraces, for the most part, the following cases: Judicial inquiries, motions, statements of causes of action, edicts, decrees, and epistles.

2. Marcianus, On Criminal Trials, Book I.

Freedmen can act as assessors, and although persons who are infamous are not prohibited by law from doing so, still, I am of the opinion that they cannot perform the duties of an assessor; and, indeed, it is said that there is an Imperial Constitution extant upon this subject.

3. Macer, On the Office of Governor, Book I.

Where the same province has been divided between two Governors, as for instance, Germany and Mysia, a man born in either can act as assessor in the other and is not considered as acting in his own province.

4. Papinianus, Opinions, Book IV.

When an Imperial deputy dies, his attendants have a right to their salaries for the balance of the time for which they were appointed by the deputy; provided they do not act as the attendants of others during that time. The case is different where the deputy retired in favor of a successor before his term of office had expired.

5. Paulus, Sentences, Book I.

Assessors are, under no circumstances, permitted to transact business before a tribunal where they are councillors; but they are not forbidden to do so before another tribunal.

6. Papinianus, Opinions, Book I.

A citizen of the Republic is not prohibited from acting as assessor in the court of a public official of his own town, because he does not receive a public salary.¹

¹ Assessors, of whom there was usually but one attached to each tribunal, were associated with the magistrates. They were, for the most part, men learned in the law, who, upon occasion, could give valuable advice; students, however, were often appointed to the position, which afforded unparalleled opportunities for the acquisition of legal information and experience. The assessor also performed much clerical work, as, for instance, the drawing up of various instruments such as notices and decrees. While he was, to a certain extent, a public official, he was, nevertheless, invested with no judicial authority, as the signature of the magistrate to all documents, issued by his court was, in every case, required.

Before the time of the Empire every magistrate had the right to select his own assessors; after that, however, they were appointed by the highest authority of the State, and their term of office did not expire with that of the judge in whose tribunal they sat as advisors, which was the case for centuries after their original institution. The magistrate was not compelled to adopt their opinions, but in consideration of the usually high reputation they enjoyed as jurists, and their extensive knowledge, it may be presumed that their conclusions were rarely disregarded. — ED.

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