Page:EB1911 - Volume 23.djvu/592

Rh ''natura debet. . . cujus fidem secuti sumus''; (3) apportionment of advantage and disadvantage, gain and loss, according to the standard of equity; (4) supremacy of the voluntatis ratio over the words or form in which the will is manifested. It was regard for the first that, probably pretty early in the principate, led the praetors to place emancipated children on a footing of equality with unemancipated in the matter of succession, and to admit to succession collateral kindred through females as well as those related through males; and that, in the reigns of Hadrian and Marcus Aurelius respectively, induced the senate to give a mother a preferred right of succession to her children, and vice versa. It was respect for the second that led to the recognition of the validity of what was called a natural obligation,—one that, because of some defect of form or something peculiar in the position of the parties, was ignored by the jus civile and incapable of being made the ground of an action or its enforcement, yet might be given effect to indirectly by other equitable remedies. Regard for the third was nothing new in the jurisprudence of the period; the Republic had already admitted it as a principle that a man was not to be unjustifiably enriched at another's cost; the jurists of the empire, however, gave it a wider application than before, and used it as a key to the solution of many a difficult question in the domain of the law of contract. As for the fourth, it was one that had to be applied with delicacy; for the voluntas could not in equity be preferred to its manifestation to the prejudice of other parties who in good faith had acted upon the latter. We have many evidences of the skilful way in which the matter was handled, speculative opinion being held in check by considerations of individual interest and general utility.

A remark of Voigt's on the subject is well worthy of being kept in view, that the risk which arose from the setting up of the precepts of a speculative jus naturale, as derogating from the rules of the jus civile, was greatly diminished through the position held by the jurists of the early Empire. Their jus respondendi made them in a sense legislative organs of the state, so that, in introducing principles of the jus naturale, or of aequum et bonum, they at the same moment defined them and gave them the force of law. They were, he says, “ philosophers in the sphere of law, searchers after the ultimate truth; but, while they—usually in reference to a concrete case—sought out the truth and applied what they had found, they combined with the freedom from constraint of speculation, the life-freshness of practice, and the power of assuring the operativeness of their abstract propositions.”

Influence of Constitutional Changes.—The changes in the constitution aided not a little the current of the law. Men of foreign

descent reached the throne and recruited the senate, sometimes proud indeed of the history and traditions of Rome, yet in most cases free from prejudice in favour of institutions that had nothing to recommend them but their antiquity. Military life, for obvious reasons, had not the same attractions as during the Republic; there was no longer a tribunate to which men of ambition might aspire; the comitia soon ceased to afford an outlet for public eloquence; so that men of education and position had all the more inducement to devote themselves to the conscientious study and regular practice of the law. This was greatly encouraged by the action of Augustus in creating a class of, so to say, patented jurists privileged to give answers ex auctoritate principis to questions submitted to them by the magistrates and judges. It was still more so perhaps by Hadrian's reorganization of the imperial privy council, wherein a large proportion of the seats were assigned to jurists of distinction. Several of the emperors had lawyers amongst their most intimate and trusted friend. Again and again the office of praetorian prefect, the highest next the throne, was filled by them; Papinian, Ulpian and Paul all held it in their time. Jurisprudence, therefore, was not merely an honourable and lucrative profession under the new arrangements, but a passport to places of eminence in the state; and till the death of Alexander the ranks of the jurists never failed to be recruited by men of position and ability.

Extension of Citizenship to the Empire generally.—It was in the year 212 that Caracalla published his Constitution conferring

citizenship on all the free inhabitants of the Empire. Far-reaching as were its consequences, the primary purpose was purely fiscal. The lex Vicesimaria, passed under Augustus, had imposed a tax of 5% on testamentary inheritances and bequests, except where the whole succession was worth less than a certain sum or the heir or legatee was a heres domesticus of the deceased. It was continued by his successors and was very profitable, thanks to the propensity of the well-to-do classes for single blessedness, followed by testamentary distribution of their fortunes amongst their friends. But it affected only the successions of Roman citizens, so that the great mass of the provincials escaped it. Caracalla, being needy, not only increased it temporarily to 10%, but widened the area of its operation by elevating all his free subjects to the rank of citizens. The words of Ulpian regarding the constitution are very inclusive,—“in orbe Romano qui sunt. ..

cives Romani effecti sunt”; but there is considerable diversity of opinion as to their meaning, caused partly by the fact that peregrins are still mentioned by some of Caracalla's successors, and there can be little doubt that among others it did not apply to Junian Latins or peregrini dediticii. Limit the constitution, however, as we may, there can be no question of its immense importance. By conferring citizenship on the provincial peregrins it subjected them in their legal relations to the law of Rome, and qualified them for taking part in many transactions both inter vivos and mortis causa which previously had been incompetent for them. It did away with the necessity for regarding jus gentium as something distinct from jus civile. The principles and doctrines of jus gentium, it is true, survived and were expanded and elaborated as freely and successfully as ever; but they were so dealt with as part and parcel of the civil law of Rome, which had ceased to be Italian and become imperial.

Legislation of Comitia and Senate.—Augustus, clinging as much as possible to the form of republican institutions, thought it

expedient not to break with the old practice of submitting legislative proposals to the vote of the comitia of the tribes. Some of the leges of his reign were far from insignificant. Besides various measures for the amendment of the criminal law, &c., there were three sets of enactments of considerable importance which owed their authorship to him: the first to improve domestic morality and encourage fruitful marriage, the second to abate the evils that had arisen from the too lavish admission of liberated slaves to the privileges of citizenship, and the third to regulate procedure in public prosecutions and private litigations.

The first set included the lex Julia de adulteriis et de fundo dotali of 18 and the lex Julia et Papia Poppaea of  9—the

latter a voluminous matrimonial code, in which an earlier lex de maritandis ordinibus (18 ) seems to have been incorporated, and which for two or three centuries exercised such an influence as to be regarded as one of the sources of Roman law almost as much as the XII. Tables or Julian's consolidated Edict. It was often spoken of as the lex Caducaria, one of its most remarkable provisions being that unmarried persons (within certain ages and under certain qualifications) should forfeit entirely anything to which they were entitled under a testament, and that married but childless persons should similarly forfeit one-half, the lapsed provisions (caduca) going to the other persons named in the will who were qualified in terms of the statute, and failing them to the fisc. However well intended, the language of Juvenal and others raises doubts whether the law did not really do more harm than good. By the Christian emperors many of its provisions were repealed as inconsistent with the New Testament views of celibacy, &c., while others fell into disuse; and in the Justinian books hardly a trace is left of its distinctive features.

The second set included the Fufia-Caninian law of the year 2 , the Aelia-Sentian law of the year 4, and the Junia-Norban

law of the year 19—the last it is thought passed in the reign of, Tiberius, but probably planned by Augustus. The Aelia-Sentian law regulated the matter of manumission, with the result that a slave might on that event, and according to circumstances minutely described, become either (1) a citizen, or (2) a freedman with the possibility of attaining citizenship by a process indicated in the statute, or (3) a freedman who, because of his having undergone certain punishments for grave offences, was forbidden to reside within a hundred miles of Rome and denied the hope of ever becoming a citizen (libertus dediticius). The Junian law was passed in order to define more precisely the status in the meantime of those freedmen who had a potentiality of citizenship. It did so by assimilating them, to a large extent, to the colonial Latins, denying to them the rights of a citizen proper so far as concerned family and succession, but conceding to them all the patrimonial rights of a citizen and the fullest power of dealing with their belongings so long as not mortis causa and to the prejudice of their patrons. This was the Junian Latinity so prominent in the pages of Gaius, but of which our limits exclude any detailed description.

The third set of enactments referred to included the two leges Juliae judiciariae, of which we know but little. They were probably

enacted in the year 17 One lex Julia seems to have dealt with judicia publica and another with procedure in private litigations. Gaius, however, seems to refer to two leges Juliae judicorum privatorum, and it is the opinion of Wlassak, who had] studied the subject profoundly, that the second of these was enacted for municipalities outside Rome and was in similar terms to the first. It was these two last-mentioned judiciary statutes that, as Gaius tells us, completed the work of the Aebutian law in substituting the formular system for that