The Ancient Library

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658 JUS.

last title of the fourth book is Be Ju'diciis Pub-licis. The Roman term Jus Publicum also com­prehended Criminal Law and Criminal Procedure, and Procedure in Civil Actions. It is said by Papi-nian (Dig. 28. tit. 1. s. 3) that the Testamenti-factio belonged to Publicum Jus. Now the Testa-inentifactio was included in Commercium, and only Roman citizens and Latini had Commer­cium. This is an instance of the application of the term Publicum Jus. All Jus is in a sense Publicum, and all Jus is in a sense Privatum ; but the Roman Publicum Jus directly concerned the constitution of the state and the functions of government and administration ; the Privatum Jus directly concerned the interests of individuals. The opposition between these two things is clear, and as well marked as the nature of such things will allow. If the terms be found fault with, the meaning of the terms admits of a defence.

The expression Populus Romanus Quirites has given rise to much discussion. Becker (ffandb. der Romischen Altertliumei\ vol. ii. p. 24) concludes that Romani and Quirites are so far opposed that Romani is the historical and political name viewed with respect to foreign states, and Quirites the political name as viewed with reference to Rome. Accordingly Quirites is equivalent to Gives. (Sueton. Caes. 70 ; Pint. Caes. 51 ; Liv. xlv. ?>7.) It does not seem easy to explain the dif­ference between Civitas Romana and the Jus Quiritium, yet so much seems clear that Civitas Romana was a term large enough to comprehend all who were Gives in any sense. But the Jus Quiritium in its later sense seems to be the pure Privatum Jus as opposed to the Publicum Jus, and thus it differs from Jus Civile viewed as the whole Roman law, or as opposed to the law of other people. He who claimed a thing exclusively as his own claimed it to be his ex Jure Quiritium. (Gaius, ii. 40. &c.) Accordingly we find the expressions Dominus and Dominium Ex Jure Quiritium, as contrasted with In bonis [dominium]. Such part of the Roman law, in its widest sense, as related to buying, selling, letting, hiring, and such obligations as were not founded on the Jus Civile, were considered to belong to the Jus Gentium (Dig. 1. tit. l.'s. 5), that is, the Jus Naturale. (Gaius, •ii. 65.) Accordingly when ownership could be acquired by tradition, occupation, or in any other way, not specially provided for by the Jus Civile, such ownership we.s acquired by the Jus Gentium. When the Jus Civilt prescribed certain forms by which ownership was to be transferred, and such forms were not observed, there was no ownership Jure Civili or Jure Quiritium, but there was that interest which was called In "bonis. It is not said by Gains (ii. 40, &c.) that tht In bonis arose by virtue of the Jus Gentium, and il may perhaps be concluded that he did not so view ii; for in another passage (ii. 65), he speaks of alienation or change of ownership being effected either by the Jus Naturale, as in the case of tradition, or by the Jus Civile, as in the case of mancipatio, in-jure cessio and usucapion. In this passage he is spealdno- of alienation, which is completely effected "by tra­dition, so that there is a legal change of ownership recognized by Roman law ; not by Roman law, specially as such, but by Roman law as Adopting or derived from the Jus Gentium. In the other ease (ii. 40) there is no ownership either as re­cognized by Roman law as such, or by Roman law


as adopting the Jus Gentium: the In bonis is merely recognized by the Praetorian Law, to which division it therefore belongs. So far as the equity of the praetor may be said to be based on the Jus Gentium, so far may the In bonis be said to be founded on it also. Properly speaking, the Jus Gentium was only received as Roman law, when it did not contradict the Jus Civile ; that is, it could only have its full effect as the Jus Gentium when it was not contradicted or limited by the Jus Civile. When it was so contradicted or limited, the praetor could only give it a partial effect, but in so doing, it is obvious that he was endeavouring to nullify the Jus Civile and so to make the Jus Gentium as extensive in its opera­tion, as it would have been but for the limitation of the Jus Civile. The bounds that were placed to this power of the praetor were not very definite. Still he generally fashioned his Jus Praetorium after the analogy of the Jus Civile, and though he made it of no effect as against his Jus Praetorium, he maintained its form and left it to its full ope­ration, except so far as he necessarily limited its operation by his own Jus Praetorium.

Jus used absolutely is defined to be " ars boni et aequi1' (Dig. 1. tit. 1. s. 1), which is an absurd definition. What it really is, may be collected from the above enumeration of its parts or divi­sions. Its general signification is Law, and in this sense it is opposed to Lex or a Law. Lex, how­ever, as already shown, is sometimes used generally for Law, as in the instance from Cicero where it is opposed to Natura. Lex therefore in this general sense comprehends leges and all the other parts of the Jus Civile. In its special sense of a Law, it is included in Jus. Jus is also used in the plural number (jura] apparently in the sense of the component parts of Jus, as in Gaius (i. 2), where he says " Constant autem jura ex legibus," &c.; and in another passage (i. 158), where he says with reference to the Agnationis Jus or Law of Agnatio, and the Cognationis Jus or Law of Cognatio, " civilis ratio civilia quidem jura corrumpere potest." In­deed in this passage Agnationis Jus and Cognationis Jus are two of the Jura or parts of Jus, which with other Jura make up the whole of Jus. Again (Gains, ii. 62), that provision of the Lex Julia de Adulteries', which forbade the alienation of the Fundus Dotalis, is referred to thus—" quod quidem jus," " which rule of law" or " which law"—it being a law comprehended in another law, which contained this and many other provisions. Thus though Lex in its strict sense of a Law is different from Jus in its large sense, and though Jus, in its narrower sense, is perhaps never used for a Lex, still Jus, in this its narrower sense, is used to ex­press a rule of law. Thus Gaius (i. 47) speaks of the jura or legal provisions comprised in the Lex AeliaSentia ; and ofjwraas based on the Responsa Prudentium (" responsa prudentium simt sententiae et opiniones eorum quibus permissum estjura con-dere," Gaius, i. 7 ; jurisconsulti).

Jus has also the meaning of a faculty or legal right. Thus Gains says, " it is an actio in rem, when we claim a corporeal thing as our own, or claim some jus as our own, such as a jus utencli, eundi, agendi." The parental power is called a '* Jus proprium civium Romanorum." The mean­ing of laiu generally, and of a legal right, are ap­plied to Jus by Cicero in the same sentence : " I, a man ignorant of law (imperitus juris\ seek to

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