Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/728

Rh 704 ROMAN LAW [JUS NATURALE. Sxten- ion of itizen- hip to rhole mpire. Jnact- icnts of lugus- us; bout aar- iage; ibont nanu- nission. 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 ot Augustus in creating a class of licensed or patented jurists, privileged to give answers to questions submitted to them by the judges, and that ex auctoritate prindpis, and still more so, perhaps, by Hadrian's reorganization of the im- perial privy councu, wherein a large proportion of the seats were assigned to jurists of distinction. With several of the emperors lawyers were amongst their most intimate and trusted friends. 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 the reigns of Septimius Severus and Alexander. Juris- prudence, 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 accomplishment. Extension of Citizenship to the Empire generally. It must have been between the years 212 and 217 that Caracalla published his constitution conferring citizenship on all the free inhabitants of the empire. Far-reaching as were its consequences, the primary pur- pose was purely fiscal Augustus had imposed a tax of five per cent, on inheritances and bequests, except where the whole succes- sion was worth less than 100,000 sesterces or the heir or legatee was a near kinsman of the deceased. It was continued by his suc- cessors, 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 in- creased it temporarily to ten per cent., but widened the area of its operation by elevating all his free subjects to the rank of citizens. The words of Ulpian are very inclusive, "in urbe Romano qui sunt . . . cives Romani effecti sunt"; but there is considerable diversity of opinion as to their meaning, caused by the fact that peregrins are still mentioned by some of Caracalla's successors. Limit the constitution, however, as we may, there can be no ques- tion of its immense importance. By conferring citizenship on the provincial peregrins it subjected them in all their relations to the law of Rome, and qualified them for taking part in many trans- actions both inter vivos and mortis causa which previously had been incompetent for them. It did away with the necessity for the jus gentium as a separate positive system. Its principles and its doctrines, it is true, survived, and were expanded and elabo- rated 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 ex- Eedient not to break with the old practice of submitting his legis- itive proposals to the vote of the comitia of the tribes. Some of them were far from insignificant. Besides various measures for the amendment of the criminal law, three groups of enactments of considerable importance 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 ad- mission of liberated slaves to the privileges of citizenship, and the third to regulate procedure in public prosecutions and private litigations. The first group included the Lex Julia de adultcriis coercendis of 736 and the Lex Julia et Papia Poppaea, the latter a voluminous matrimonial code, which for two or three centuries exercised such an influence as to be regarded as one of the sources of Roman law almost quite 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 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 fiac. 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, while others fell into disuse; and in the Justinianian books hardly a trace is left of its distinctive features. The second group included the jElia-Sentian law of the year 4 A.D., the Fufia-Caninian law of the year 8, and the Junia-Norban law of the year 19, the last passed in the reign of Tiberius, but was probably planned by Augustus. The .ffilia-Sentian law regulated the matter of manumission, with the result that a manumittee might on that event, and according to circumstances minutely described, become (1) either 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 bad character, was forbidden to reside within a hundred miles of Rome and denied the hope of ever becoming a citizen (liberties 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 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 group of enactments referred to included the two Leges Ju< Juliae judiciariae, of which we know but little. That regulating ary lav procedure in private litigations is the same that is mentioned by Gaius as having completed the work of the ./Ebutian law in sub- stituting the formular system for that per legis actiones. It must have been a somewhat comprehensive statute, as a passage in the Vatican Fragments refers to a provision of its 27th section; and our ignorance of its contents therefore, beyond one or two trifling details, is the more to be regretted. From the time of Tiberius onwards it was the senate that did Legisls the work of legislation, for the simple reason that the comitia were tion of no longer fit for it. And very active it seems to have been. This senate, may have been due to some extent to the fact that so many pro- fessional jurists, aware from their practice of the points in which the law required amendment, possessed seats in the imperial council, where the drafts of the senatusconsults were prepared. It was the senatusconsults that were the principal statutory factors of what was called by both emperors and jurists the j-us novum, law that departed often very widely from the principles of the old jus civile, that was much more in accordance with those of the Edict, and that to a great extent might have been introduced through its means had not the authority of the praetors been overshadowed by that of the prince. In the end of the 2d and the beginning of the 3d century the supremacy of the latter in the senate became rather too pronounced, men quoting the oratio in which he had submitted to it a project of law instead of the resolution which gave it legislative eifect. No doubt it must have been carefully considered beforehand in the imperial council, and rarely stood in need of further discussion; but the ignoring of the formal act that followed it tended unduly to emphasize the share borne in it by the sovereign, and made it all the easier for the emperors after Alexander Severus to dispense altogether with the time-honoured practice. The Consolidated Edictum Perpetiium. The edicts of the pi-fetors, Julian which had attained very considerable proportions before the fall of Edictt the republic, certainly received some additions in the early empire. But those magistrates did not long enjoy the same independence as of old; there was a greater imperium than theirs in the state, before which they hesitated to lay hands on the law with the bold- ness of their predecessors. They continued as before to publish annually at entry on office the edicts that had been handed down to them through generations; but their own additions were soon limited to mere amendments rendered necessary by the provisions of some senatusconsult that affected the jus honorarium. They ceased to be that viva vox juris civilis which they had been in the time of Cicero; the emperor, if any one, was now entitled to the epithet; the annual edict had lost its raison d'etre. Hadrian was of opinion that the time had come for writing its "explicit," and giving it another and a more enduring and authoritative shape, for so fashioning and so sanctioning it that it might be received as law, and not merely as edict, throughout the length and breadth of the empire. He accordingly commissioned Salvius Julianus, urban praetor at the time, to revise it, with a view to its approval by the senate as part of the statute law. The revisal, unfortunately, like the XII. Tables, is no longer extant. It is only a veiy slight account we have of the revision, a line or two in Eutropius and Aurelius Victor, and a few Hues in two of Justinian's prefaces to the Digest. We may assume, from what is said there, that there were both abridgment and rearrange- ment of the edicts of the urban praetor; but the question remains how far Julian consolidated with them those of the peregrin praetor and other officials who had contributed to the jus honorarium. Those of the curule aediles, we are told, were included; Justinian says that they formed the last part of Julian's work, and may have been a sort of appendix. There is reason to believe that so much of the edicts of the provincial governors as differed from those of the praetors were also incorporated in it, and that the edicts of- the peregrin praetors, in so far as they contained available matter not embodied in those of their urban colleagues or the provincial governors, were dealt with in the same way. The consolidation got the name of Edictum Perpetuum in a sense somewhat different from that formerly imputed to edicta perpetua as distinguished from edicta repentina, and, after approval by Hadrian,' seems to have been formally sanctioned by senatusconsult. It was thus a closed chapter so far as the praetors were concerned; for, though it may have continued for a time to hold its place on their album with its formularies of actions, they had no longer any power to alter or make additions to it. It had ceased to be a mere efflux of their imperium and had become matter of statute; and its iuterpreta-