Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/727

JUS NATURALE.] ROMAN LAW 703 CHAPTER IV. THE JUS NATURALE AND MA- TURITY OF ROMAN JURISPRUDENCE. {The Empire until the time of Diocletian.} I. CHARACTERISTICS AND FORMATIVE AGENCIES OF THE LAW DURING THE PERIOD. Characteristics generally and Recognition of a Jus Naturale in particular. The first three centuries of the empire witnessed the perfection of Roman jurisprudence and the commencement of its decline. During that time the history of the law presents no such great landmarks as the enactment of the XII. Tables, the commencement of a praetor's edict, the recognition of simple consent as creative of a contractual bond, or the introduction of a new form of judicial procedure ; the establishment of a class of patented jurists speaking as the mouthpieces of the prince, and the admission of all the free subjects of the empire to the privileges of citizenship, are about the only isolated events to which one can point as productive of great and lasting results. There were, indeed, some radical changes in particular institutions, such as the caduciary legislation of Augustus, intended to raise the tone of domestic morality and increase fruitful marriages, and the legislation of the same emperor and his immediate suc- cessor for regulation of the status of enfranchised slaves ; but these, although of vast importance in themselves, and the first of them influencing the current of the law for centuries, yet left upon it no permanent impression. It was by much less imposing efforts that it attained the perfection to which it reached under the sovereigns of the Severan house, a steady advance on the lines already marked out in the latter years of the republic. The sphere of the jus Quiritium became more and more cir- cumscribed, and one after another of the formalities of the jus civile was abandoned. The manus of the husband practically disappeared ; the patria potestas of the father lost much of its significance by the recognition, notwith- standing it, of the possibility of a separate and independ- ent estate in the child ; slaves might be enfranchised by informal manumission ; res mancipi constantly passed by simple tradition, the right of the transferee being secured by the Publician action ; servitudes and other real rights informally constituted were maintained as effectual tuitione praetoris ; an heir's acceptance of a succession could be accomplished by any indication of his intention, without observance of the formal cretio of the earlier law; and many of the incidental bargains incident to consensual contract, but varying their natural import, that used to be embodied in words of stipulation, came to be enforcible on the strength of formless contemporaneous agreements, a of The preference accorded by jurists and judges to the 13 jus gentium over the jus civile is insufficient to account for a e ' these and many other changes in the same direction, as well as for the ever-increasing tendency evinced to sub- ordinate word and deed to the voluntas from which they arose. They are rather to be attributed to the striving on the part of many after a higher ideal, to which they gave the name oijus naturale. 1 It is sometimes said that the notion of a jus naturale as distinct from the jus gentium was peculiar to Ulpian, and that it found no acceptance with the Roman jurists generally. But this is inaccurate. Justinian, indeed, has excerpted in the Digest and put in the forefront of his Institutes a passage from an elementary work of Ulpian' s, in which he speaks of a jus naturale that is common to man and the lower animals, and which is substantially instinct. This is a law of nature of which it is quite true that we find no other jurist taking account. 1 See Voigt, Das Jus naturale . . . der Homer, particularly vol. i. ) 52-64, 89-96 ; Maine, Ancient Law, chap. iii. But many of them refer again and again to the jus naturale; and Gaius is the only one (Justinian following him) who occasionally makes it synonymous with jus gentium. There can be no question that the latter was much more largely imbued with precepts of natural law than was the jus civile, but it is impossible to say they were identical ; it is enough to cite but one illustration, pointed out again and again in the texts : while the one admitted the legality of slavery, the other denied it. While the jus civile studied the interests only of citizens, and the jus gentium those of freemen irrespective of nationality, the law of nature had theoretically a wider range and took all man- kind within its purview. We have no hint that the doc- trine of the jus gentium differed in this respect from the jus civile that a slave was nothing but a chattel ; yet we find the latter, when tinctured with the jus naturale, re- cognizing many rights as competent to a slave, and even conceding that he might be debtor or creditor in a con- tract, although his obligation or claim could be given effect to only indirectly, since he could neither sue nor be sued. Voigt thus summarizes the characteristics of this speculative Charac- Ronian jus naturale : (1) its potential universal applicability to teristics all men, (2) among all peoples, (3) at all times, and (4) its corre- of jus spondence with the innate conviction of right (innere Rechtsiiber- naturale. zeuguny). 2 Its propositions, as gathered from the pages of the jurists of the period, he formulates thus : (1) recognition of the claims of blood (sanguinis vel cognationis ratio) ; (2) duty of faithfulness to engagements, is natura debet . . . cujus fidem secuti sumus ; (3) apportionment of advantage and disadvantage, gain and loss, accord- ing to the standard of equity ; (4) supremacy of the voluntatis ratio over the words or form in which the will is manifested. 3 It was regard for the first that, probably pretty early in the principate, led the praetors to place emancipated children on a footing of perfect equality with unemancipated in the matter of succession, and to admit 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 pre- ferred 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 for 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 pre- ferred 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 pre- cepts of a speculative jus naturale, as derogating from the rules of ihejus civile, was greatly diminished through the position held by the jurists of the early empire. Their jus respondendi (infra, p. 705) made them legislative organs of the state, so that, in introducing principles of the jus naturale, or of aequum et bonum, they at the same moment positivized 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 and untrammelledness 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 con- Position stitution aided not a little the current of the law. Men of foreign and char- descent reached the throne and recruited the senate, proud indeed acter of of the history and traditions of Rome, yet in most cases free from jurists, prejudice in favour of institutions that had nothing to recommend them but their antiquity. Military life had not the same attrac- tions 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 2 Voigt, I.e., p. 304. 3 Voigt, pp. 321-23. 4 Voigt, p. 341.