[340] See Gaston Paris, “Chrétien Légouais et autres imitateurs d’Ovide,” Hist. litt. de la France, t. xxix., pp. 455-525.
[341] The words “nexum mancipiumque” are more formal and special than the English given above.
[342] The early law had as yet devised no execution against the debtor’s property.
[343] The jurisconsults whose opinions were authoritative flourished in the second and third centuries. The great five were Gaius, Julian, Papinian, Ulpian, Paulus. Inasmuch as these jurisconsults of the Empire were members of the Imperial (or, later, Praetorian) Auditory, they were judges in a court of last resort, and their “responsa” were decisions of actual cases. They subsequently “digested” them in their books. See Munroe Smith, “Problems of Roman Legal History,” Columbia Law Review, 1904, p. 538.
[344] Dig. i. 1 (“De Just. et jure”) 1. See Savigny, System des heutigen römischen Rechts, i. p. 109 sqq. Apparently some of the jurists (e.g. Gaius, Ins. i. 1) draw no substantial distinctions between the jus naturale and the jus gentium. Others seem to distinguish. With the latter, jus naturale might represent natural or instinctive principles of justice common to all men, and jus gentium, the laws and customs which experience had led men to adopt. For instance, libertas is jure naturali, while dominatio or servitus is introduced ex gentium jure (Dig. i. 5, 4; Dig. xii. 6, 64). Jus gentium represented common expediency, but its institutions (e.g. servitus) might or might not accord with natural justice. For manumissio as well as servitus was ex jure gentium (Dig. i. 1, 4), and so were common modes and principles of contract. Ulpian’s notion of the jus naturale as pertaining to all animals, and jus gentium as belonging to men alone, was but a catching classification, and did not represent any commonly followed distinction.
[345] Constitutio is the more general term, embracing whatever the emperor announces in writing as a law. The term rescript properly applies to the emperor’s written answers to questions addressed to him by magistrates, and to the decisions of his Auditory rendered in his name.
[346] For this whole matter, see vol. i. of Savigny’s System des heutigen römischen Rechts; Gaius, Institutes, the opening paragraphs; and the first two chapters of the first Book of Justinian’s Digest.
[347] Dig. i. 3, 32.
[348] Dig. i. 3, 10, and 12.
[349] Dig. i. 3, 14.