ROMAN LAW.i The term Roman law is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Jun5 Civilis, which is the name that has been given since the 16th century to Justinians legislative works as a whole, and distinguishes them from the Corpus Junis Canonici. In this acceptation it is equivalent to, and is often called, civil law as contrasted with canon law. In a third and loose sense Roman law embraces, in addition to the Corpus Junis, the interpretations of it after Justinian by medieval and modem courts, jurists and commentators adapting it to the customs and laws of their own countries and times. The German expression, for example, modernes (or heutiges) romisches Recht, indicates the Roman law as it was applied in Germany in modern times. Such medieval and modern interpretation, however, is also sometimes expressed, in English usage at least, by the term civil law as contrasted with native or common law; writers in, this field being usually styled civilians rather than Romanists. It is to the Roman law in the first of the above-mentioned three significations that the present article is devoted.
To give a proper sketch of Roman law it must be treated historically. Nearly all systems of positive law are the product more or less of an historic development, but the Roman r6e~tY has this great advantage over other systems, that it historic was at all times a homogeneous body complete in itself. treat- For the Romans were comparatively little indebted to ment. other peoples for their jurisprudence, and, when they did borrow legal ideas and institutions from others, they generally transformed or modified these in adapting them to their own native system, so that they became substantially Roman. Moreover, the various stages of progress of the law from its genesis to its maturity and ultimate consolidation can be traced in unbroken continuity. Beginning in 753 B.C., the traditionally accepted date of the foundation of Rome, it continued its course till the death of Justinian in A.D. 565. Allowing for the first three centuries being without historic evidence, we have at least an authenticated evolution of about 1000 years. Of no other system of law, ancient or modern, can anything like the same thing be said.
As to the proper method of historic treatment there have been different opinions. Without going into these, it is enough to say that the subject may be treated from two sides, viz. on the one side in relation to the external sources of the law, including therein the political and social conditions and the various constitutional changes at different periods affecting the development of the law, as well as the modes in which the law manifested itself and the legal literature from which our knowledge of it is derived; on the other side it may be treated in relation to the several departments or institutions of the law in view of their development or changes through time or circumstance, such as marriage, slavery, property, and so forth. This corresponds to what Leibnitz described as external and internal history respectively, terms which are now rather out of vogue. Of course it is possible to treat the historic sources of the law, constitutional and literary, independently of the doctrines, and this is now often done; but unless both are discussed the field of Roman law is not covered. Both the external and the internal history, however, may be treated together or in a measure interwoven, and it is in this way that the subject is treated in the following pages. But constitutional events affecting the law are only noticed very summarily, details about these being given in separate articles.
Modern writers on the history of the Roman law have as a rule, for the purpose of systematic treatment, divided the subject into definite historic periods. Gibbon, in the Division 44th chapter of his Decline and Fall of the Roman into Empire, seems to have been the first to suggest this historic mode of treatment, though the particular periods of epochs. division he selected (being based on an artificial symmetry of about three hundred years each) are not satisfactory.2 In the present article, the division made by Muirhead in his article in the 9th edition of this Encyclopaedia into five historic epochs has been left unaltered, These are: (1) the regal period; (2) thejus civile, representing the period from the establishment of the Republic until the subjugation of central and southern Italy; (3) the jus gentium andjus honorarium, representing the latter half of the Republic; (4) the jus naturale and maturity of Roman jurisprudence, representing the period of the Empire until the beginning of the reign of Diocletian; (5) the period of codification, i.e. from Diocletian to Justinian. Not that there is any sharp or fundamental division between these or, indeed, between any historic epochs. The law is a unity: it has its roots in the past and grows with the nation itself, and, like it, decays; there is no break in its continuity. The division is made merely for convenient treatment of the subject.
It must be kept in view that our knowledge of Roman customs and laws earlier than the XII. Tables and even for some time after them cannot be based on strict historical evidence; it is almost entirely traditional and conjectural, and different writers will take different views according to the relative value they place upon this or that piece of presumptive evidence.
It is only the private law that is dealt with in the present article. - -
I. THE REGAL PERIOD
i. The People and the Law.
The Beginnings of the St ate,T he early Romans were not different from other Indo-European communities in their essential characteristics. The tribe, the clan, the family, the individual: each of these appears in course of development prior to the XII. Tables. Putting aside much of the traditional accounts of Livy, Dionysius, and other ancient historians, regarding the foundation of Rome and its early political and social life, as mythical, modern critical historians are none the less agreed that in the earliest period of their existence as a settled community the Romans were subjected to the govern~ ment of a king (rex), with a council of elders (senatus) and an assembly of burghers (comitia cuniata).
It used to be a somewhat common opinion that the primitive Romans were a sort of amalgam of three different racesLatin, Sabine and Etruscan. This opinion is mainly based upon the tradition that the state was originally formed by a union of three tribes called Ramnes, Tities and Luceres; the Ramnes being of the Latin race, the Tities of the Sabine and the Luceres of the Etruscan. Attempts have even been made to find in the Roman laws and institutions traces of the influence of each of these races, and especially of the first twopatria potestas and manus, for example, being attributed to the Latin or dominant race; adoption and confarreation to the Sabine; fOrms and ceremonial (such as lictors, fasces, &c.) to the Etruscan.3 But this attractive theory of a union of three races, apart from the suspicion of a symbolic trichotomy (tres tnibus) due to later times, is based on no substantial evidence;4 many of the See Muirhead, Historical Introduction (2nd ed., 1899), pp. 35, and authorities there cited.
Some writers deny the existence of the tribes altogether, but this goes too far. See Bruns-Lenel in Holtzendorffs Encyklopo4ie d. Rechtswissenscha~ft, i. p. 86.
institutions attributed to the Sabines and Etruscans were, as Mommsen and others have shown, common to all peoples of Greek-Italian stock, and could not be strange to the Latins. We must hold that the Romans were essentially a Latin race, though influenced by a considerable admixture with Sabine and, to a lesser degree, Etruscan races (see RoME).
Patricians, Clients and Plebeians.But whatever their ethnographic descent, it is pretty certain that the Roman. civitas Divisions was in the earliest period an organization that was of the patriarchal in its essence, but in which there was to be people. distinguished, on the one hand, a dominant class enjoying all the rights of citizenship, and, on the other, a semi-servile or quasi-vassal class excluded from such rights. The former class were called patricii or Quirites; i the latter were called clientes and (later) plebeii.
PatriciansThere was part of the law of Rome that even in the Empire was known by the name ~f jus Quiritium, and this in the regal period was the only law. The patricians at ~ first were the Quirites, and prior at least to the time of Servius Tullius they alone enjoyed rights under this law.
From their number the council of elders was selected; they alone could take part in the curiate comitia; they alone could contract a lawful marriage and make a testament; in a word, all the peculiar institutions of early Rome were for their benefit alone.
But these rights and prerogatives they enjoyed as members of gentes or clans, the clans being aggregations of families bearing a common name and theoretically at least tracing g~~netes. their descent from a common ancestor. These clans, of which there were normally three hundred altogether according to a rather doubtful tradition, were organized constitutionally in curies. Of the curies, again, there were thirty in all, there being probably ten in each of the three tribes, organized primarily for military and secondarily for political and religious purposes. Though for the federation of the curiae and gentes Rome required a common ruler and common institutions, religious, military and political, yet it was long before such federation into a state displaced entirely the separate institutions of the several gentes. Every clan had its own cult peculiar to its own members. It had its common property and its common burial-place. It probably had some common council or assembly, for we read not only of special gentile customs, but of gentile statutes and decrees. Tradition records instances of wars waged by individual gentes, indicating that they had the right to require military service alike from their members and dependants. Widows and orphans of deceased clansmen were under the guardianship of the gens or of some particular member of it to whom the trust was specially confided. If a clansman left no descendants, his property passed to his fellowgentiles. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, and to be avenged when killed or injured.
Along with the gentiles there were in Rome from the earliest period other persons known by the name of clientes (clients).
Cli nt Their origin is wholly unknown. Some of them may e ~. have been the original inhabitants of Rome and their descendants, but more probably they were mostly immigrants from other communities or citizens of conquered towns whom the Romans were unable or unwilling to treat as slaves. Some may have been slaves to whom liberty de facto had been given. Following a custom familiar both to Latins and Sabines, such persons were placed under the protection of the heads of patrician families. The relationship was hereditary on both sides, and known as that of patron and client. The client2
i The derivation of the name is uncertain, and ancient writers differed about it. It probably comes either from qu-iris, a Sabine word for a spear, or from curia. The derivation from Cures is inadmissible. See Mommsen, Rm. Staatsrecht (1887, 1888), iii. I, p. 5 n.
-The derivation of cliens from cluere indicates the relationship one who is called on, who hearkens. The theory that clientage became a dependent member of his patrons clannot gentilis but gentilicius. His patron had to provide him with what was necessary for his sustenance and that of his family; and, as ownership or possession of lands increased in extent, it was probably not unusual for the patron or his gens to give him during pleasure a plot of land to cultivate for himself. The patron had, moreover, to assist him in. his transactions with third parties, and obtain redress for him when. injured. The client, on the other hand, had to maintain his patrons interests by every means in his power. But the advantage must have been chiefly on the side of the client, who, without becoming a citizen, obtained directly the protection of his patron and his clan, and indirectly that of the state. A large number of clients attached themselves to and received protection from the king as patron royal clients, as Cicero calls them.
The plebeians (plebs, from irAijOor, meaning crowd), as distinguished from the clients, must be regarded as a heterogeneous mass of non-gentile freemen. It used to be Piebelans.
the prevailing opinion among modern writers, following the Roman historians, that the plebeians existed as a body since the very beginning of the city. They v~ cre thought to be mainly composed of immigrants and refugees who, while being allowed personal liberty, declined to submit themselves to a patron. But recently a theory of Mommsen, based on solid philological and other grounds, has obtained wide adhesion and tends to become the dominant one. Mommsens view is that at first there were only two classes in the community, the patricians and clients, or, in other words, that the only plebeians were the clients who, as such, possessed only quasi-liberty (Halbfreiheit), and that it was not till after a century or two that the practice of voluntary cientage began to decay and the class of plebeian freemen arose. This was partly due to gentes dying out, so that the clients attached to them were left without patrons; partly to the numbers of foreigners at Rome (through transplantation. of the in.habitants of conquered cities and otherwise) having become so large that they felt themselves sufficiently powerful to do without protection; and partly to other causes.3
However this be, it is generally admitted that, during the latter part of the present ,epoch at least, plebeians existed as a body composed of individuals of mixed races not united by any gentile organizations of their own. nor attached to any Roman gentes. Tradition attributes to Numa the formation of gilds or societies of craftsmen, such as potters, carpenters, gold- and silver-smiths (collegia opificum) at Rome, eight or nine in number. This, though probably a myth as regards Numa, may be taken as slight evidence of the creation among the plebeians of associations for trade and other purposes, that to some extent compensated them for the want of gentile organization. These gilds seem to have had a common cult and a common council to arrange disputes and consolidate customs. Between the brethren (sodales) there was a bond of close alliance and interdependence, each owing duty to the other similar to what might be claimed from a guest or a kinsman.
The Regulatives of Public and Private Order.It would be absurd to expect any definite system of law in those early times. What passed for it was a composite of fas, jus and boni mores, whose several limits and characteristics it is extremely difficult to define. This may to some extent be accounted for by the fact that much of what was originally within the domain of fas, once it had come to be en.forced by secular tribunals, and thus had the sanction of human authority, was no longer distinguishable from jus; while it may be that others of its behests, once pontifical punishments for their contravention had gone into desuetude, sank to nothing higher than precepts of boni mores.
arose from the voluntary subjection of poorer citizens to the rich is an hypothesis supported by no satisfactory authority.
Mommsen, Staatsrecht, iii. 1, pp. 66 seq. and pp. 127 seq. Fora different view, Karlowa, Ram. Rechtsgeschichte, i. 62. Cf. Cuq, Instil. fund. des Romains (2nd ed., 19048), i. 1112.
By fasi was understood the will of the gods, the laws given by heaven for men on earth, much of it regulative of ceremonial, F but a by no means insignificant part embodying rules as. of conduct. It appears to have had a wider range than jus. It forbade that a war should he undertaken without the prescribed fetial ceremonial, and required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a godgiven life; the sale of a wife by her husband, for she had become his partner in all things human and divine; the lifting of a hand against a parent, for it was subversive of the first bond of society and religion,the reverence due by a child to those to whom he owed his existence; incestuous connections, for they,defiled the altar; the false oath and the broken vow, for they were an insult to the divinities invoked; the displacement of a boundary or a landmark, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighborhood, was under the guardianship of the gods. Some breaches of fas were expiable, usually by a peace-offering to the offended god; others were inexpiable. When an offence was inexpiable, the punishment was usually what is called sacratio capitis, excommunication and outlawry of the offender. The precepts of the fas therefore were not mere exhortations to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil.
The derivation of the word jus is disputed. The usual derivation is from the Sanskrit, ju, to join, bind or unite, from which some deduce as its signification that which Jus. binds. the bond of society, others that which is regular, orderly or fitting. Bral identifies it with the jos or jaus of the Vedas, and the jaes or jaos of the ZendAvestawords whose exact meaning is controverted, but which he interprets as divine will or power.f If Brals definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law proposed by him,Velitis, jubeatis, Quirites, &c., Is it your pleasure, Quirites, and do you hold it as the divine will, that, and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Brals seems not without support,vox populi vox del. If it be right, then the main difference between fas and jus was that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency. -
This jus might be the result either of traditional and inveterate custom (jus moribus constitutum) or of statute (lex).3 As to the customs, it can well be believed that at the outset they were far from uniform; that not only the customs of the three original tribes but those also of the different gentes varied, 2 Nouv. rev. hisl. (1883), p. 605. But see J. Schmidt in Mommsen, Staatsreckt, iii. 310 n.
1 For the distinction between jus and lex, see Mitteis, Romisches Privatrecht (1908), i. 30 seq. There is some controversy about the etymology of the word lex. See l3rbal, l.c. p. 6f 0; Schmidt in Mommsen, S.R. iii. 308 n. While lex is often used like ,jus to express law generally, it early acquired two distinct meanings, viz. (i) an obligation of any kind expressly incorporated in a private deed (lex privata), as in the phrases lex mancipif, lex contractus, &c.; (2) a comitial enactment, hence occasionally called lex publica (Gaius, i. 3 and ii. 104). But by the Jurists of the Republic this latter meaning was extended so as to cover all laws resulting from the will of the people, including, for example, plebiscites and even senatorial or proconsular ordinances (leges data.,).
and that they only gradually approximated, and in course of time consolidated into a general jus Quirilium. Of legislation there was, so far as is known, practically almost nothing What went by the name of boni mores (as distinct from jus moribus constitutum) must also be regarded as one of the regulatives of public and private order Part of what B fell within their sphere might also be expressly mes. regulated by jas or jus; but there was much that was only gradually brought within the domain of these last, and even down to the end of the Republic not a little that remained solely under the guardianship of the family tribunal or the censors regimen morum. The functions of those who took charge of boni mores were twofold: sometimes they restrained by publicly condemningthough they could not preventthe ruthless and unnecessary exercise of legal right, as, for example, that of the head of the house over his dependants, and sometimes they supplied deficiencies in the law by requiring observance of duties that could not be enforced by any legal process. Dutiful service, respect and obedience from inferiors to superiors, chastity, and fidelity to engagements, express or implied (Jides), were among the o,fficia that were thus inculcated, and whose neglect or contravention not only affected the reputation, but often entailed punishments and disabilities, social, political or religious. It was the duty of those in arthority to enforce their observance by such animadversio as they thought properthe paterfamilias in his family, the gens among its members, the king in relation to the citizens generally; and many a wrong was prevented not by fear of having to make reparation to the party injured but by the dread of the penalties that would follow conduct unbecoming an upright citizen.
That the bulk of the law during the regal period was customary is universally admitted, and that no laws were committed to writing prior to the XII. Tables is generally believed. Yet the jurist Pomponius, a contemporary of Hadrian, speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae and which, he says, were collected by one Sextus Papirius, a prominent citizen in the reign of Tarquinius Superbus, under the name of Jus Papirianum.4 We are also told by Paul that this work was commented on by a certain Granius Flaccus,5 who was, it is supposed, of the time of Julius Caesar or Augustus. No remains of this Jus Papirianum are extant, but we have a considerable number of so-called leges regiae cited by Livy, Dionysius and others, which contain rules of the private law relating..almost entirely to matters of fas and which appear to have been enacted under the kings We are also told by Servius, the commentator on Virgil, that there was a work known to Virgil called de Ritu Sacrorum, in which leges regiae were collected.6 The authenticity of these laws, however, is disputed, and the question is one of difficulty. Some modern writers of high authority (e.g. Mommsen hold that the Jus Papirianum is an apocryphal compilation made from pontifical records about the close of the Republic.1 It has even been attributed (the suggestion was first made apparently by Gibbon) to Granius Flaccus himself. Nevertheless, the internal evidence from the character and language of the laws themselves (apart from the weight that must be given to the testimony of Pomponius, Servius and other ancient writers) is favorable to their great antiquity, and it is best to accept the view that the leges regiae are authentic remains of laws of the regal period. This does not, however, involve the belief that they were collected by Papirius, nor that they were enactments of the comitia curiata, as Pomponius says. They seem rather to have been regulations made by the king at his own hand.
Dig. i. 2.2, 2 and 36. In the latter passage Papirius is given the praenomen Publius.
i Dig. 1. i6, 144.
6 Serv., in Aeneid, 12, 836, cited in Bruns, Fontes, p. 3.
1 It has been suggested that a work of the jurist Manilius mentioned by Pomponius (Dig. i. 2.2, 39) is its source (Zeitsehrift d.
Say. Stilt. Xxiv. 420~
or perhaps old-established customs formulated by the higher pontiffs and ascribed to the kings.i It is also stated by Dionysius that under Servius Tullius various laws, fifty in number, dealing with contracts and delicts, were enacted in the comitia of the curies.2 But we have no corroboration of this, and recent writers are now generally agreed in regarding the statement as a legend.
ii. Reforms of Servius Tullius.
It is generally agreed that towards the end of the regal period, and connected with the king traditionally called Servius Tullius, a great reform of the constitution took place, which exercised much influence on the subsequent development of the law. No doubt there is a good deal of myth attached to the name of Servius, who seems to have been regarded by later Romans as a popular monarch, like Alfred by the English, but the main features of the traditional account of the constitutional reforms of this period may be taken as based on fair presumptive evidence. That all of them indeed were evolved from one brain is hardly credible, and that some of them were in observance de facto before being made constitutionally binding is very likely.
The design attributed to Servius was that of altering the old constitution in order to promote an advance towards equality between patricians and plebeians. He is credited with having desired, on the one hand, to ameliorate the position of the plebs and, on the other, to make them bear a proportionate share of the burdens of the statein particular, to serve in the army and contribute to the war tax (tribulum). He effected this by giving them qualified rights of citizenship, not indeed by admitting them into the gentile organizations, but by creating a new political assembly of a distinctly military character in which they as well as the gentiles could take part. The so-called Servian reforms may be roughly summarized under the following four heads, viz. (1) a division of the Roman territory within the city walls into four local wards called tribus (to which a number of tribes outside the cit ytribus rusticaewere afterwards in course of time added); (2) the establishment of a register of the citizens (census) which was to contain, in addition to a record of the strength of their families, a statement of the value of their lands, with the slaves and cattle employed in their cultivation, and which was to be revised periodically; (3) a division of the people, as appearing in the census, into five classes for military purposes, determined by the value of their holdings in land and its appurtenances, with a subdivision of each class into so-called centuriae; (4) the creation of a new assembly with legislative power called comitia centuriala, in which the vote was to be takeii by centuriae. While it may be an open question how far these reforms, and particularly the institution of the centuriate comitia, were actually due to Servius, or only a result of his arrangements, the whole conception of the new constitution is obviously of early date and indicative of considerable statesmanship.
The plebeians were thereby made constitutionally part of the populus Romanus; they became citizens (Quirites).1 They got commercium and also connubium so far that their marriages jilter Se were recognized as legal marriages. Rights and duties See Clark, Hist. of Roof. Law (1906), i. 1619; Kipp, Geschichte d. Quellen (1903), pp. 2425. The most comprehensive treatise on these royal laws, which also contains references to the earlier literature, is that of Voigt, Uber die Leges Regiae (Leipzig, 1876). An exhaustive collection of them, including numerous references to royal institutions by Livy, Dionysius and others, is given in Bruns, Fontes Juris, 6th ed. i. I seq. Another collection is in Girard, Textes, 3rd ed. pp. 3 seq.
2 Dion. iv. 10, 13.
The view of some recent writers that the plebeians had at all times participated in the jus Quiritium and were admitted to the curiate comitia and even had gentile rights (see Lend in Holtzendorifs F.neykloi5die d. Rechtswissenschaft, 6th ed. i. 90 nfl. I, 2, and authorities there cited), must be decidedly negatived. Not only does it render the whole tradition about the Servian reforms untrustworthy, but the accounts of the struggles between patricians and plebs in the early Republic are left largely without meaning were so far to be measured by each citizens position as a holder of lands; the amount of land (including slaves and cattle appurtenant thereto)4 held by him on quiritarian title was to determine the nature of the military service he was to render, the tribute he was to pay, and his right to take part in the new political assembly. It is indeed probable that a good while before Servius the conception. of individual ownership of lands and things necessary for their cultivation had been reached, and that such ownership was recognized not only among the gentiles, but also de facto even more largely among the plebeians. The common lands of the gentes had become split up, to a considerable extent, among families and individuals. However this be, the creation of the census ensured, as far as possible, certainty of title, as it was declared that no transfers of property enrolled in it would be recognized unless made by public conveyance with observance of certain prescribed formalities.5 The form of conveyance thus legally sanctioned was called originally mancupium, afterwards mancipium, and at a still later period mancipatio, while the lands and other things that were to pass by it came to be known as res mancipii (or mancipi). Hence arose a distinction of great importance in the law of property (which lasted till Jdstinian formally abolished it), between res mancipi and res nec mancipi; the former being transferable only by mancipation or surrender in court, the latter by simple delivery (see infra, p. 541).
iii. Institutions of the Private Law.
Law of the Family.6The word familia in Roman law had at once a more extensive and a more limited meaning than it has in its English form. Husband, wife and The children did not necessarily constitute an independ- patrician eat family among the Romans, as with us, nor were familY.
they all necessarily of the same one. Those formed a family who were all subject to the poweroriginally manus,1 later potestas or jusof the same head (paterfamilias). The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules. He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law and grandchildren by his sons, and possibly remoter descendants related through males; so long as they remained subject to him they constituted but one family, that was split up only on his death or loss of citizenship. But if his wife had not passed in manum (a result apparently unknown among the patricians at this period), she did not become a member of hi~ family: she remained a member of the family in which she was born, or, if its head were deceased or she had been emancipated, she constituted a family in her own person. Both sons and Modern writers are not agreed as to whether movable ref mancipi were included with lands in the valuation of property for fixing the classes.
i Or else by cessio in jure, though this may not have been before the XII. Tables, and it was in any case of very limited operation.
6 On tribal family and matriarchate among the Romans in prehistoric times, consult Westermarck, History of Human Marriage (London, 1891); Post, Grundriss der ethnologischen Jurisprudenz. (1894) i. 15160. Familia and family are used in this section solely to designate the group of free persons subject by birth, marriage or adoption to the same paterf amities. Strictly the word familia meant the household and all belonging to it. It had also the following principal meanings: (1) a gens or branch of a gens (group of families in the stricter sense); (2) the whole body of agnatic kinsmen (famitia communi jure); (l) the family estate or patrimonium, as in the provisions of the XII. Tables about intestate succession, e.g. adgnatus proximus familiam ha beta (4) the family slaves collectively, as in the phrase familia rustica. See Mommsen, Staatsr. iii. 10 fl. 16 a. 22; Rivier, Prcis du droit defamille romain (Paris, 1891), I.
This word menus, though in progress of time used technically to express the power (hand) of a husband over his wife in familia, was originally the generic term for all the rights exercised, not only over the things belonging but also over the persons subject to the head of the houseas seen, for example, in the words manumission and emancipation. Cf. Inst. i. 5 pr. It should be observed that among uncivilized peoples there is always a very small vocabulary, and the same word often has to do duty in several sensese.g. familia, mancipium, nexum, cc put.
daughters on emancipation ceased to be of the family of the paterfamilias who had emancipated them. A daughters children could never as such be members of the family of their maternal grandfather; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and inatresfamilias.
With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty a man owed alike to his ancestors Marilage. and to himself. Believing that the happiness of the dead in another world depended on their proper burial and on the periodical renewal by their descendants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to perpetuate his race and his family cult. The Romans were always strictly monogamous. In taking to himself a wife, he was about to detach her from her fathers house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by auspicia. His choice was limited to a woman with whom he had connubium (~irt-yauLa) or right of intermarriage. This was a matter of state arrangement; and in the regal period Roman citizens could have it outside their own bounds only with members of states with which they were in alliance, and with which they were connected by the bond of common religious observances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. In either case it was essential that she should be outside his sobrinal circle, i.e. more remote in kinship than the sixth degree. The ceremony was a religious one, conducted by the chief pontiff~ and the flamen of Jupiter, in presence of ten witnesses, representatives probably of the ten curies of the bridegrooms tribe, and was known as farreum or confarreatio. Its effect was to dissociate the wife entirely from her fathers house, and to make her a member of her husbands; for confarreate marriage involved in manum conventio, the passage of the wife into her husbands hand or power, provided he was himself paterfamilias; if he was not, then, though nominally in his hand, she was really subject like him to his family head. Any property she had of her ownwhich was possible only if she had been independent before marriagepassed to him as a matter of course; if she had none, her paterfamilias usually provided her a dowry (dos), which shared the same fate. In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children; and on her husbands death she had a share with them in his inheritance as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas; for Romulus is said to have ordained that, if a man put away his wife except for adultery or one or two other grave offences, he forfeited his estate half to her and half to Ceres, while if he sold her he was to be given over to the infernal gods.i Patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potestate, over the issue of such justae snptiae. The Roman poStes~~as. jurists boasted that it was a right enjoyed by none but Roman citizens; and it certainly was peculiar to them in this sense, that nowhere else, except perhaps among the Latin race from which they had sprung, did the paternal power attain such an intensity. The omnipotence of the paterfamilias and the condition of utter subjection to him of his children in potestate became greatly modified in the course of centuries; but originally the children, though in public life on an equality with the house-father, in private life, and so long as the poteslas lasted, were subordinated to him to such an extent as, according to the letter of the law, to be in his hands little better than his slaves. They could have nothing of their own: all they earned was his; and, though it was quite common when they grew up for him to give them peculia, cattle of their own, to manage for their own benefit, these were only defacto theirs, but de jure his. For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done mischief. If his right to them was disputed, he used the same action for its vindication that he employed for asserting his ownership of his field or his house: if they were stolen, he proceeded against the thief by an ordinary action. of theft; if for any reason he had to transfer them to a third party, it was by the same form of conveyance that he used for the transfer of things inanimate. Nor was this all; for, according to the old formula recited in that sort of adoption. known as adrogation, he had over them the power of life and death, jus vitae necisque.
It might happen that a marriage was fruitless, or that a man saw all his sons go to the grave before him, and that the paterfamilias had thus to face the prospect of the Ad~gaextinction. of his family and of his own descent to tion and the tomb without posterity to make him blessed. To adoption. obviate so dire a misfortune, he resorted to the practice of adoption, so common in India and Greece. If it was a paterfamilias that he adopted, the process was called adrogation (adrogatio); if it was a filiusfamilias it was simply adoptio. The latter, unknown probably in the earlier regal period, was, as we first know it, a somewhat complicated conveyance of a son by his natural parent to his adopter, the purpose of course being expressed; its effect was simply to transfer the child from the one family to the other. But the former was much more serious, for it involved the extinction of one family that another might be perpetuated. It was therefore an affair of state. It had to be approved by the pontiffs, who probably had to satisfy themselves that there were relatives of the adrogatee to attend to the manes of the ancestors whose cult he was renouncing; and on their favorable report it had to be sanctioned by a vote of the curies, as it involved the deprivation of his gens of their possible right of succession to him and possible prejudice to creditors through capitis deminutio. If it was sanctioned, then the ad rogat us, from being himself the head of a house, sank to the position of a filiusfamilias in the house of his adopting parent; if he had had wife or children subject to him, they passed with him into his new family, and so did everything that belonged to him and that was capable of transmission from one person to another. The adopting parent acquired potestas over the adopted child exactly as if he were the issue of his body; while the latter enjoyed in his new family the same rights exactly that he would have had if he had been born in it.
The inanus and the patria potestas represent the masterful aspects of the patricians domestic establishment. Its conjugal. and parental ones, however, though not so prominent in the pages of the jurists, are not to be lost sight of. The patrician family in the early history of the law was governed as much by fas as by jus. The husband was priest in the family, but wife and children alike assisted in its prayers, and took part in the sacrifices to its lares and, penates. As the Greek called his wife the house-mistress, ~th7roLza, so did the Roman speak of his as materfamilias,1 the house-mother. She was treated as her husbands equal. As for their children, the potestas was so tempered by the natural sense of parental duty on the one side and filial affection on the other that in daily life it was rarely felt as a grievance; while the risk of an arbitrary exercise of the domestic jurisdiction, whether in the heat of passion or under the impulse of justifiable resentment, was guarded against by the rule which required in grave cases the paterfamilias to consult in the first place the near kinsmen of his cl~,ild, maternal as well as paternal. Even the incapacity of the children of the family to acquire property of their own cannot in those times have been regarded as any serious hardship; for, though the legal title to all their acquisitions was in the housefather during his life, yet in truth they were acquired for and belonged to the family as a whole, and he was little more than a trustee to hold and administer them for the common benefit.
The patria potestas, unless the paterfamilias voluntarily put an end to it, lasted as long as he lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potest ate. On the contrary, his wife passed on marriage into the power of her father-in-law, and their children as they were born fell under that of their paternal grandfather; and the latter was entitled to exercise over his daughters-in-law and grandchildren the same rights that he had over his sons and unmarried daughters. But there was this difference, that, when the pater-familias died, his sons and daughters who had remained in potestate and his grandchildren by a predeceased son instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potestas of their grandfather into that of their father.
The acquisition of domestic independence by the death of the family head frequently involved the substitution of the Ouard- guardianship of tutors (tatela) for the po~estas that !anship had come to an end. This was so invariably of tutors. in the case of females sui juris, no matter what their age: they remained under guardianship until they had passed by marriage in manum mariti. It was only during pupillarity, however, that males required tutors, and their office came to an end when puberty was attained. It is improbable that during the regal period a testamentary appointment of tutors by a husband or parent to wife or children was known in practice. In the absence of it the office devolved upon the gens to which the deceased paterfamilias belonged.
Family Organization among the Plebeians.If perfect identity of customs cannot be assumed to have existed amongst the patrician gentes in the regal period of Rome, far less can it be supposed to have existed amongst the heterogeneous population (Latins, Etruscans, Greeks, &c.)
of which the plebs was constituted. Nevertheless, contiguity of residence and community of interests tend inevitably to unify customs and cause dissimilarities to disappear, and the plebeians must have not only gradually brought their own customs into unison inter se, but adapted them at the same time in many respects to those of the patricians. Even to those of non-Latin race manus over their wives and potestas over their children would become a desideratum. Though the plebeians seem to have been always excluded from confarreation, and their matrimonial unions must have been at first informal and irregular from the point of view of the Quirites, two civil modes of acquiring marital manus were available to them after they obtained citizenship, viz. coemptio and usus. Some writers hold that neither of these modes was legally recognized prior to the XII. Tables.1 This may be so, but it is improbable. As the pleheians obtained by the Servian constitution full capacity for quiritarian ownership, it was at once open to them to adapt the modes sanctioned for acquiring property to the acquisition of marital manus. Coemptio was just a simple adaptation of mancipation above referred to (see also infra, p. 540). It was, as we may infer from what we know of it at a later time, a sale of the woman to the man per aes et libram for a nominal price. The price being fictitious, a piece of copper (raudusculum) was used to represent it, and this was handed over to the seller, who would ordinarily be the womans paterfamilias, or, if she were sui juris, her gentile tutor. The nuncupatory words used in the ceremony have unfortunately not been preserved; necessarily, of course, they varied from those of an ordinary mancipation of property.2 Though called by the jurists a mode of constituting marriage, coemptio, as we know it, was strictly a mode of creating manus; for, though usually contemporaneous with, it might, as Gaius informs us, follow the marriage at any distance of time, and was not dissolved by divorce, but required a separate act of remancipation. Students of comparative law have observed that in coemptio there are clear traces of earlier bride purchase, so common even nowadays among uncivilized tribes, where a real price in cattle or sheep, and not a mere nominal one, has to be paid for the b:ide. Usus, on the other hand, was a mode of acquiring marital manus by possession of the woman as wife for a certain period of timelong cohabitation.3 Whether this was recognized by the law prior to the XII. Tables depends probably upon whether usucaption, as. a mode of acquiring property, was settled by custom earlier than the Tables. Some writers, however, think it older than coemptio, and as a de facto relation prolonged cohabitation as man and wife must have existed from very early times. Comparative historians with good reason trace in usus the relics of primitive bride capture. Both coemption and usus, from the time they were first recognized by the jus Quiritium, undoubtedly created patria potestas and agnatic rights.
Law of Pro perty.4The history of the early Roman community, like many other primitive communities, is marked by the disintegration of the gentes and the growth of individual property. Yet the distribution of land in land. amongst the early Romans is one of the puzzling Patriproblems of their history. The Sexvian constitution ciai,s. apparently classified the citizens and determined their privileges, duties and burdens according to the extent of their lands; and yet we know nothing for certain of the way in which these were acquired. All is conjectural. We have indeed a traditional account of a partition by Romulus of the little territory of his original settlement into three parts, one of which was devoted to the maintenance of the state and its institutions, civil and religious, the second (ager publicus) to the use of the citizens and profit of the state, and the third (ager privatus) subdivided among his followers. Varro and Pliny relate that to each paterfarnilias among his followers he assigned a homestead (heredium) of two jugera, equal to about an acre and a quarter. These heredia were to be held by him and his heirs for ever (quae heredem sequerentur); Pliny adding that to none did the king give more. This can only be accepted as a partially correct account of what may have taken place at some early period during the kingly rgime. There can be little doubt that a portion of the Roman territory, gradually augmented through new conquests, was early reserved by the state as ager publicus; that is sufficiently attested by the complaints made for centuries by the plebeians of its monopolization by the patricians. It is also probable that heredia (i.e. plots of land within the city) may have been granted to the heads of the gentile families, many of whom would be living in pagi on their respective gentile lands outside the city. Such heredia became family property, administered, as such by the paterfamilias, but inalienable by him. In this respect the position would be very similar to what existed among the an.cient Germans and exists to-day in India among the Hindus. Even late in the Republic, when the idea of It would thus ctire defects in a coemption just as usucaption did defects in mancipation.
See Giraud, Recherches sur le droit de pro priit chez les Romains (Aix, 1838); Mace, Histoire de la propriite &c., chez les Romains (Paris, 1851); Hildebrand, De antiquissimae agri Romani distributionis fide (Jena, 1862); Cuq, Instit. jurid., 2nd ed., vol. i. pp. 72 seq.; Beaudouin, La Limitation desfondsde terre (1894), pp. 259 seq.
individual ownership was paramount, it was still considered a disgrace for a man to alienate his heredium. But though the existence of monogamous families seems to imply private ownership to some extent, yet, as formerly indicated, a large part of the Roman territory at, and for a good while after, the foundation of the city must have been gentile lands held by the separate clans for the use of their members. 1~he fact that the majority of the rural tribes bore the names of wellknown patrician gentes favors the conclusion that even in the later regal period a good many of the clans still held lands in their collective capacity. It was at some uncertain time before Servius that there began to be a break-up of these gentile lands and their appropriation by individual members. Under the influence of this movement lands were acquired and held by families and individuals to a large extent. A patricians holding must have been sometimes pretty large so as to enable him to make grants (so often alluded to by ancient writers) to his clients, but we have no means of estimating the normal size. The heredia were small; even during the Republic there is some evidence (e.g. the traditional story about Cincinnatus) that seven jugera were regarded as the normal extent of a patricians holding for his own and his familys use. On the other hand, twenty jugera are commonly supposed to have been the qualification for enrolment in the first of the Servian classes. Of course it must be kept in view that a patrician did not necessarily hold all his lands by gratuitous assignation or concession either from the state or from his gens; purchase from the former was by no means uncommon, and it may have been on his purchased lands that his clients were usually placed. Those dependants were also probably employed in large numbers upon those parts of the ager publicus which were occupied by the patricians and were in historic times known as possessiones. These, of course, were not the property of their occupants; it was the lands acquired by assignation or purchase that were alone, apart from the heredia, regarded as theirs exjure Quiritium.
The traditional accounts of the early distribution of lands among the plebeians are even, if possible, more vague than those property regarding the patricians. They had apparently become In land holders de facto of land in large numbers before the among Servian reforms. But they can have attained that plebelan& position only by gradual stages. While their earliest grants of land, probably from the kings, can only have been during pleasure, latterly, as they increased in number and importance, they were allowed to have permanent possession. That those who had means also acquired lands by purchase from the state may be taken for granted. The distinction between de facto possession and ownership was at best a very vague one at this period, and, like the holders of provincial lands in later times, the plebeians might have the benefits of ownership without ownership. The result of the Servian constitution was to convert this de facto property or permanent possession into quiritarian ownership.1
There are some writers who maintain that in the regal period, prior to the Servian reforms, though after the collective ownerProperty ship of the gentes had begun to disintegrate, there in mov- was no private property in movables. This proposiableL tion can at most be accepted only in a qualified sense. If it be meant that movables generally were not then recognized as objects of quiritarian dominium which could be vindicated by any real action, it may be admitted. But otherwise the distinction between meum and tuum must have been well recognized, de facto at least. Men must have been in the habit of transferring things from one to another by simple delivery in respect of barter, sale or otherwise, and any violent or theftuous appropriation of things in a mans occupation would be punished by magisterial authority or by ordinary sell-redress by the injured party. A sort of ownership in possession must at least have been recognized for movables generally.2
But apart from this, we must believe that certaiIi kinds of movables, viz, those which have been described as appurtenant to land and necessary for its cultivationwhich with land formed the real objects, as distinct from the personal subjects, of the familiawere treated from the time of Romulus downwards, as in manu of the patresfamilias. These were the res mancipi already referred to. Quiritarian ownership in them, as we have seen, was recognized both for patricians and plebs by the Servian constitution, periodical registration of them in the census and transference by the quasi-public act of mancipation being probably required. Earlier even than with lands, the conception of private ownership, it has been said, connected itself with them.3
A short explanation may now be given of the ceremony of mancipation and the nature of res mancipi.
Mancipation is described by Gaius, with particular reference to the conveyance of movable res mancipi, as a pretended sale in presence of not less than five citizens as witnesses and a libri pens holding a pair of copper scales. The transferee, Manalpawith one hand on the thing being transferred, and using ~
certain words of style, declared it his by purchase with a piece of copper (which he held in his other hand) and the scales (hoc aere aeneaque libra); and simultaneously he struck the scales with the as, which he then handed to the transferrer as figurative of the price. The principal variation when it was an immovable that was being transferred was that the mancipation did not require to be on the spot: the land was simply described by its known name in the valuation roll. Although in the time of Gaius only a fictitious salein fact the formal conveyance upon a relative contractyet it was not always so. Its history is very simple. The use of the scales fixes its introduction at a time when coined money was not yet current, but raw copper nevertheless had become a standard of value and in a manner a medium of exchange. That, however, was not in the first days of Rome. Then, and for a long time, values were estimated in cattle or sheep, fines were imposed in them, and the deposits in the legis actio sacramento (infra, p. 549) took the same form. The use of copper, as a substitute for them in private transactions was probably derived from Etruria. But, being only raw metal or foreign coins, it could be made available for loans or payments only when weighed in the scales: it passed by weight, not by tale. There is no reason for supposing that the weighing was a solemnity, that it had any significance beyond its obvious purpose of enabling parties to ascertain that a vendor or borrower was getting the amount of copper for which he had bargained.
It was this practice of everyday life in private transactions that Servius apparently adopted as the basis of his mancipatory conveyance, engrafting on it one or two new features intended to give it publicity and, as it were, state sanction, and thus render it more serviceable in the transfer of censuable property. Instead of the parties themselves using the scales, an impartial balance-holder, probably an official, was required to undertake the duty, and at least five citizens were required to attend as witnesses, who were to be the vouchers to the census officials of the regularity of the procedure. Whether they were intended as representatives of the five classes in which Servius had distributed the population, and thus virtually of the state, is disputed, though the fact that, when the parties appealed to them for their testimony, they were addressed not as testes but as Quirites lends some color to this view.4 Servius is also credited with the introduction of rectangular pieces of copper of different but carefully adjusted weights, stamped by his authority with various devices (aes signatum), which are i Mancipation seems to have been a very ancient mode of conveyance. The use of the balance in barter or sale was known to the ancient Egyptians at least as early as 2000 B.C., as may be seen on reliefs in the temple of Dehr-el-Bahri in Upper Egypt. The derivation of mancipium (mancipatio) from manu capere, to seize with the hand, is given by Gaius and is confirmed by the fact that at all times in its history the acquirer had to lay his hand on the thing being acquired, during the ceremony, if a movable. So where several things were being mancipated in a lot, this had to be done to each separately. With lands and other immovables it was different: they might be mancipated in absence, which goes some way to prove that mancipation must have been extended to them at a later period. The derivation of mancipatso given by Muirhead (Historical Introduction, 2nd ed., pp. 59 seq.) from manum capere, i.e. to acquire power (manus), is open to the objection that it places the abstract idea of power before the concrete symbol of it. Cf. Cuq, Institutions juridiques, 2nd ed., i. p. 80 n. See Gai. ii. 104.
usually supposed to have been. intended to take the place of the raw metal (ass rude) formerly in use, and so facilitate the process of weighing; but there is more reason for thinking they were cast and stamped as standards to be put into one scale, while the raw metal whose weight was to be ascertained was put into the other.
Instead, therefore, of being a fictitious sale, as Gaius describes It, and as it became after the introduction of coined money in the 4th century of the city, the mancipation, as regulated by Servius, was an actual completed sale in the strictest sense of the term. What were the precise words of style addressed by the transferee to the transferrer, or what exactly the form of the ceremonial, we know not. But, as attendance during all the time that some thousands of pounds, perhaps of copper, were being weighed would have been an intolerable burden upon the five citizens convoked to discharge a public duty, it may be surmised that it early became a common practice to have the price weighed beforehand, and then to reweigh, or pretend to reweigh, before the witnesses only a single little bit of metal (raudusculum), which the transferee then handed to the transferrer as the first pound and the last, and thus representative of the whole.i And where no real price was intended, as in constituting a dos or in coemption, a raudusculum would also be employed. Whatever may have been. its form, however, its effect was instant exchange of property against a price weighed in the scales. The resulting obligation on the vendor to maintain the title of the vendee, and the qualifications that might be superinduced on the conveyance by agreement of parties the so-called leges mancipiiwill be considered below in connection with the provisions of the XII. Tables on the subject (infra, p. 542).
The things included in the class of res mancipi were lands and houses held on Quiritarian title, together with rights of way and aqueduct, slaves, and the following domestic beasts of draught or burden, viz. oxen, horses, mules and donkeys; all others were res nec mancipi. Many theories have been propounded Rmeasnc,p, to account for the distinction between these two classes of things, and to explain the principle of selection that admitted oxen and horses into the one, but relegated such animals as sheep and swine to the other. But there is really little difficulty. Under the arrangement of Servius, what was to determine the nature and extent of a citizens political qualifications, military duties and financial burdens was apparently the value of his heredium (and other lands, if he had any), and what may be called its appurtenancesthe slaves that worked for the household, the slaves and beasts of draught and burden that worked the farm, all of which lived and worked in common with the free members of the familia. But the cattle a man depastured on the public meadows were no more res mancipi than his sheep, a fact which, though ultimately in., the later Empire lost sight of, was still understood in the time of Gaius,2 To say that the things classed as res mancipi were selected for that distinction by Servius because they were what were essential to a family engaged in agricultural pursuits would be to fall short of the truth. They constituted the familia in the sense of the family estate proper; whereas the herds and flocks, and everything else belonging to the paterfcfmilia-s, fell under the denomination of pecunia. So the words are to be understood perhaps in the well-known phraseology of the mancipatory testament, familia pecuniaque mea.3 The public solemnity of manci patio thus sanctioned as a mode of transferring a Quiritarian right of property, for which manus was probably as yet the only descriptive word in use, was not long in being adapted to and utilized for other transactions in which other kinds of manus were sought to be acquired. These new adaptations, if confined at first for the most part to plebeians, were also soon made use of by the patricians, perhaps before as well as after the XII. Tables, and became by custom part of the common law. Such were, for example, coemption (as explained above), emancipation and adoption of fihiifamilias, and mortis causa alienation of a familia and nexum.
Law of SuccessionThe legal order of succession during the regal period was extremely simple. It was this. on the death Sgjcces- of a paterfamiias his patrimony devolved upon those slon of his descendants in polestate who by that event amongst became sui juris, his widow (being loco fihiae) taking the patri an equal share with them, and no distinction being ~ made between movables and immovables. Such persons were styled self-heirs (sui heredes). Failing widow and children, The conjecture is suggested by the words of style in the solutio per aes et tibram, Gai. iii. ~ 173, 174. There were some debts from which a man could be effectually discharged only by payment (latterly fictitious) by copper and scales in the presence of a libripens and the usual five witnesses. In the words addressed to the creditor by the debtor making payment these occurredhanc tibi libram primam posiremamque expendo (I weigh out to you this the first and the last pound). The idea is manifestly archaic, and the words, taken strictly, are quite inappropriate to the transaction in the form it had assumed long before the time of Gaius.
~ Gai. ii. i5; Ulpian, Frag. xix. 1.
Gai. ii~ 104~ By the time of the XII. Tables the sharp distinction between these two terms is tending to disappear.
his patrimony went to his gens. The notion that between the descendants and the gens came an intermediate class under the name of agnates does not seem well founded as regards the regal period; the succession of agnates as such seems to have been first legally recognized by the XII. Tables, probably to meet the case of the plebeians, who, having no genies, were without legal heirs in default of children.4
The later jurists more than once refer to the perfect equality of the sexes in the matter of succession in the ancient law.i But it was rather nominal than real. A daughter who had passed into the hand of a husband during her fathers lifetime of course could have no share in the latters inheritance, for she had ceased to be a member of his family. One who was in potesiate at his death, and thereby became sui juris, did become his heir, unless he had prevented such a result by testamentary arrangements; but even then it was in the hands of the gens to prevent risk of prejudice to themselves. For she could not marry, and so carry her fortune into another family, without their consent as ,her guardians; neither could she without their consent alienate any of the more valuable items of it; nor, even with their consent, could she make a testament disposing of it in prospect of death. Her inheritance, therefore, was hers in name only; in reality it was in the hands of her guardians.
Of primogeniture or legal preference of one member of the family over the others there is not the faintest trace. And yet we are told of heredia remaining in a family for many generationsa state of matters that would have been impossible had every death of a paterfamilias necessarily involved a splitting up of the family estate. It is conceivable that this was sometimes prevented by arrangement amongst the heirs themselves; and the practice of every now and then drafting the younger members of families to colonies diminished the number of those who had a claim to participate. But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue-according to patrician notions his duty then was to perpetuate his family by adopting a sonas for partitioning the succession when he had more children than one.
There were two sorts of testaments made use of by the patricians of the regal periodthat made in the comitia of the curies (test. calatis comitils) and that made in the presence of the army (probably represented for this Tes purpose by a few comrades) on the eve of battle ~~ (test. in procinctu factum). The first at leastand the second was just a substitute for it on an emergencywas far from being an independent exercise of the testators voluntas. For, though in course of time, and under the sanction of the uti legassit ita jus eslo of the XII. Tables, the curies may have become merely the recipients of the oral declaration by the testator of his last will, in order that they might testify to it after his death, it is impossible not to see in the comitial testament what must originally have been a legislative act, whereby the testators peers, for reasons which they and the presiding pontiffs thought sufficient, sanctioned in the particular case a departure from the ordinary rules of succession. The pontiffs were there to protect the interests of religion, and the curies to protect those of the testators gens; and it is hardly conceivable that a testament could have been sanctioned by them which so far set at nought old traditions as to, deprive a fihiusfamilias of his birthright, at least in favor of a stranger.
It is quite true, however, that from the first the order of succession was agn.atic; for it was those only of a mans children who were agnate that had any claim to his inheritance; and the gens was, theoretically at least, just a body of agnates. The supposed mention of agnates in a law attributed to Numa is a conjecture of P. E. I-Iuschkes (in Analecia litteraria, Leipzig, 1826, p. 375). The law is preserved in narrative by Servius, In Virg. Eclog. iv. 43, which runs thus: In Numae legibus cautum est, ut si quis imprudens occidisset hominem, pro capite occisi et natis ejus in cautione (Scalig., concione) offerret arietem. Huschkes substitution of agnatis for et natis is all but universally adopted; but, even were it necessary, it need mean nothing more than his children in potesiale or his gens.
i The Voconian law of 169 B.C. avowedly introduced something new in prohibiting a man of fortune from instituting a woman, even his only daughter, as his testamentary heir; but even it did not touch the law of intestacy. See Girard, Manuel, 4th ed. p. 8f6.
It may safely be assumed that by custom at all events the children of a plebeian usually took his estate on his death inSucces- testate. But, as he was not a member of a gens, 81013 there was no provision for the devolution of his sucamongst cession on failure of children. The want of them he ~:be,ans could not supply by adrogation, as he had for long, it is thought, no access to the assembly of the curies; and it is doubtful if adoption of a Jiliusf amities was known before the XII. Tables. If therefore, as seems probable, the XII. Tables first introduced the succession of agnates, a plebeian unsurvived by children was necessarily heirless, that is to say, heirless in law. But custom seems to have looked without disfavour on the appropriation of his heredium by an outsider: a brother or other near kinsman would naturally have the earliest opportunity, and, if he maintained his possession of it in the character of heir for a reasonable period, fixed by the XII. Tables at a year, the law dealt with him as heir, and in course of time the pontiffs imposed upon him the duty of maintaining the family sacra. This was probably the origin, and a very innocent and laudable one, of the usucapio pro herede, which Gaius condemns as an infamous institution, and which undoubtedly lost some of its raison dtre once the right of succession of agnates had been introduced.
There is no trace of testamentary succession among the plebs prior to the Servian constitution, nor is it in the least M ,~tt degree likely that there was any such. Primitive causa5 communities are slow to realize the conception of convey- private testaments, and the plebeians could not at ance by this period make a public one either calatis comitiis mancipa- or in procinctu. But not long after their admission to citizenship there is reason to conjecture that mancipation was employed by them, not indeed to make a testament instituting an heir and taking effect only on the testators death, but to make a conveyance of a whole patrimony mortis cause. The transaction took the form of an absolute acquisition, in exchange for a price (usually nominal), of the transferrers familia,1 by a friend, technically called familiae emptor, on trust to distribute, on the transferrers death and according to his instructions, whatever the transferee was not authorized to retain for himself. The transferrer may also have had power to reserve in the mancipation a usufruct of the estate while he lived.1 Like so many other of the transactions of the early law, it was legally unprotected so far as the third parties were concerned whom the transferrer meant to benefit; they could only trust to the fides of the transferee. This mortis causa alienation, whatever the date of its introduction, was the forerunner of the so-called testament per aes et libram, to be afterwards described (infra, p. 543).
Contract and its BreachTo speak of a law of obligations in connection with the regal period, in the sense in which the Contract words were understood in the later jurisprudence, and fts would be a misapplication of language. It would breach, be going too far to say, however, as is sometimes done, that before the time of Servius Rome had no conception of contract; for men must have bought and sold, or at least bartered, from earliest timesmust have rented houses, hired labor, made loans, carried goods and been parties to a variety of other transactions inevitable amongst a people engaged to any extent in pastoral, agricultural or trading pursuits. It is true that a patrician family with a good establishment of clients and slaves had within itself ample machinery for supplying its ordinary wants, and was thus to a great extent independent of outside aid. But there were not many such families. There must therefore have been contracts and some customary rules to regulate them, though these were presumably very imperfect. In many cases, such as those alluded to, one of the parties at least must have trusted to the 2 For a different view cf. Maine, Ancient Law, ed. Pollock, pp.
good faith of the other. What was his guarantee, and what remedy had he for breach of engagement?
His reliance in the first place was on the probity of the party with whom he was dealingon the latters reverence for Fides, and the dread he had of the disapprobation of his fellows should he prove false, and of the penalties, social, religious or pecuniary, that might consequently be imposed on him by his gens in the case of a patrician, by his gild in the case of a craftsman, or by the king in the case of any other plebeian.3 If the party who had to rely on the others good faith was not satisfied with his promise and the grasp of the right hand that was its seal,4 he might require his solemn oath (jusjurandum); and it can hardly be doubted that, whatever may have been the case at a later period, in the time of the earlier kings he who forswore himself was amenable to pontifical discipline. If he preferred a more substantial guarantee, he took something in pledge or pawn from the other contractor; and, though he had no legal title to it, and so could not recover it by judicial process if he lost possession, yet so long as he retained it he had in his own hand a de facto means of enforcing performance. Upon performance he could be forced to return it or suffer a penaltynot by reason of obligation resulting from a contract of pledge, for the law as yet recognized none, but because, in retaining it after the purpose was served for which he had received it, he was committing theft and liable to its punishment. At this stage breach of contract, as such, does not seem to have founded any action for damages or reparation before the tribunals; but it is not improbable that, where actual loss had been sustained, the injured party was permitted to resort immediately to self-redress by seizure of the wrong-doer or his goods. Self-help was according to the spirit of the time not self-defence merely in presence of imminent danger, but active measures for redress of wrongs already completed.
There was one contract, however, notorious in after years under the name of nexum, that must have received legal sanction soon after the Servian reforms, though probably, like mancipa- Contract tion of property itself, known in practice earlier. In the per XII. Tables it is apparently referred to as an existing aes et institution. In its normal character it was a loan of money, flbram~~ or rather of the raw copper that as yet was all that stood for money. How far in its original use it was accompanied by any formalities beyond the weighing of it in a pair of scales (which was rather substance than form) we know not; and what right it conferred on the creditor over his debtor who failed to repay can be only matter of speculation. Apparently the result of the Servian reforms was the regulating and ensuring the publicity of the contract and making the creditors right of self-redress by apprehension (manus injectio) and imprisonment, &c., of his debtor conditional on the observance of the prescribed formalities of the nexum. The character and effects, however, of this the earliest independent contract of the jus civile, are much disputed and will be explained below on p. 545 seq.
Public and Private O,ffences and their Punishment.For anything like a clear line of demarcation between crimes and civil injuries we look in vain in regal Rome. Offences Offences against the state itself, such as trafficking and their with an enemy for its overthrow (proditio) or treason- punishable practices at home (perduellio) were matter of ment.
state prosecution and punishment from the first. But in the case of those that primarily affected an individual or his estate there was a halting between, and to some extent a confusion of, the three systems of private vengeance, sacral Such as debarment from gentile or gild privileges, exclusion from right of burial in the gentile or gild sepulchre, fines in the form of cattle and sheep, &c.
Some of the old writers (e.g. Liv. i. 21, 4, xxiii. 9, 3; Pun. H.N. xi. 45; Serv. in Aen. iii. 687) say that the seat of Fides was in the right hand, and that to give it (proniittere dextramis this the origin of the word promise ,?) in making an engagement was emphatically a pledge of faith. See a variety of texts illustrating the significance of the practice, and testifying to the regard paid to Fides before foreign influences and example had begun to corrupt mens probity and trustworthiness, in Lasaulx, Ueber d. Ezd bei d. Rmern (Wurzburg, 1844), p. 5 seq.; Danz, Der sacrale Schulz im rOm. Rechtsverkehr (Jena, i857), pp. 139, 140. Cf. Pernice, Labeo, vol. ii. (2nd ed., Halle), p. 459 seq.
atonement and public or private penalty.1 These may be said to have followed in sequence but overlapped each other. The same sequence is observable in the history of the laws of other nations, the later system gradually gaining ground upon the earlier and eventually superseding it.i The remarkable thing in Rome is that private vengeance should so long not only have left its traces but continued to be an active power. According to tradition it was an admitted right of the gens or kinsmen of a murdered man in the days of Numa; a law of his is said to have provided that, where a homicide was due to misadventure, the offering to them of a ram should stay their hands (supra, p. 533). And this seems to have been also prescribed in the XII. Tables (VIII., 24). To avenge the death of a kinsman was more than a right: it was a religious duty, for his manes had to be appeased; and so strongly was this idea entertained that, even long after the state had interfered and made murder a matter of public prosecution, a kinsman was so imperatively bound to set it in motion that if he failed he was not permitted to take anything of the inheritance of the deceased. The talion we read of in the XII. Tables is also redolent of the vindicta privata, although practically it had become no more than a means of enforcing reparation. And even the nexal creditors imprisonment of his defaulting debtor (infra, p. 551), which was not abolished until the 5th century of the city, may not unfittingly, in view of the cruelties that too often attended it, be said to have savoured more of private vengeance than either punishment or procedure in reparation.
Expiatio, supplicium, sacratio capilis, all suggest offences against the gods rather than against either an individual or the state. But it is difficult to draw the line between different classes of offences, and predicate of one that it was a sin, of another that it was a crime and of a third that it was but civil injury. They ran into each other in a way that is somewhat perplexing. Apparently the majority of those specially mentioned in the so-called leges regiae and other records of the regal period were regarded as violations of divine law, and the punishments appropriate to them determined upon that footing. Yet in many of them the prosecution was left to the state or to private individuals. It is not clear, indeed, that there was any machinery for public prosecution except in treason and murder the former because it was essentially a state offence, the latter because it was comparatively early deemed expedient to repress the blood-feud, which was apt to lead to deplorable results when clansmen and neighbors appeared to defend the alleged assassin.
Take some of those offences whose sanction was sacratio capitis. Breach of duty resulting from the fiduciary relation between patron and client, maltreatment of a parent by his child, exposure or killing of a child by its father contrary to the Romulian rules, the ploughing up or removal of a boundary stone, the slaughter of a plough-ox all these were capital offences; the offender, by the formula sacer eslo, was devoted to the infernal gods. Festus says that, although the rules of divine law did not allow that he should be offered as a sacrifice to the deity he had especially offended (nec fas est eum immolari), yet he was so utterly beyond the pale of the law and its protection that any one might kill him with impunity. But, as the sacraiio was usually coupled with forfeiture of the offenders estate or part of it to religious uses, it is probable that steps were taken to have the outlawry or excommunication judicially declared, though whether by the pontiffs, the king or the curies does not appear; such a declaration would, besides, relieve the private avenger of the incensed god of the chance of future question as to whether or not the citizen he had slain was sacer in the eye of the law.
That there must have been other wrongful acts that were regarded in early Rome as deserving of punishment or penalty of some sort, besides those visited with death, sacration or forfeiture of estate, total or partial, cannot be doubted; no community has ever been so happy as to know nothing of thefts, robberies and assaults. The XII. Tables contained numerous provisions in reference to them; but it is extremely probable that, down at least to the time of Servius Tullius, the manner of dealing with them rested on custom, and was in the main self-redress, restrained by the intervention of the king when it appeared to him that the injured party was going beyond the bounds of fair reprisal, and frequently bought See Rein, Das CriminalrechtderRomer (Leipzig, 1844), pp. 24 seq.; Clark, Early Roman Law: Regal Period (London, 1872), pp. 34 seq.; Mommsen, Strafrechi, pp. 6, 36, 900.
2 Probably every offence at first was an act attributable to the whole family or clan, and it was upon them or by them and not upon the individual wrong-doer or by the injured party that vengeance was taken.
off with a composition. When the offence was strictly within the family or the gens, it was for those who exercised jurisdiction over those bodies to judge of the wrong and prescribe and enforce the penalty.
Jurisdiction and Procedure.Of the course of justice, whether in criminal or civil matters, during the regal period we know little that can be relied on. Ancient writers speak of the king as having been generally supreme in both. But this can be cour~e oi accepted only with considerable, reservation. For the paterfamilias, aided by a council in cases of importance, was judge within the familyhis jurisdiction sometimes excluding that of the state, at other times concurring with it, and not to be stayed even by an acquittal pronounced by it. He alone was competent in any charge against a member of the family for a crime or offence against the domestic orderadultery or unchastity of wife or daughter, undutiful behaviour of children or clients, or the like. Death, slavery, banishment, expulsion from the family, onprisonment, chains, stripes, withdrawal of peculium, were all at his command as punishments; and it may readily be assumed that in imposing them he was freer to take account of moral guilt than an outside tribunal. The indications of criminal jurisdiction on ,the part of the gens are slight; but its organization was such that it is difficult not to believe that it must occasionally have been called on to exercise such functions. And it must not be lost sight of that, as murder seems to have been the only crime in regard to which private revenge was absolutely excluded, the judicial office of the kings must have been considerably lightened, public opinion approving and not condemning self-redress so long as it was kept within the limits set by usage and custom.
The boundary between civil and criminal jurisdiction, if it existed at all, was extremely shadowy. Theft and robbery, for example, if one may conclude from the position they held in the later Jurisprudence, were regarded not as public but as private wrongs; and yet when a thief was caught in the act of theft by night he might be slain, and when,by day might be scourged and thereafter sold as a slave. But in both cases it may also be assumed that a practice, afterwards formally sanctioned by the XI!. Tablesthat of the thief compounding for his life or freedomwas early admitted, and the right of self-redress thus made much more beneficial to the party wronged than when nothing was attained but vengeance on the wrongdoer. In assaults, non-manifest thefts, and other minor wrongs, self-interest would in like manner soon lead to the general adoption of the practice of compounding; what was originally a matter of option in time came to be regarded as a right; and with it there would be occasional difficulty in settling the amount of the composition, and consequent necessity of an appeal to a third party. Here seems to be the origin of the kings jurisdiction in matters of this sort. He was the natural person to whom T1,e king to refer such a dispute; for he alone, as supreme magis- as /u~e. trate, had the power to use coercion to prevent the party wronged insisting on his right of self-redress, in face of a tender by the wrongdoer of what had been declared to be sufficient reparation. But that self-redress was not stayed if the reparation found due was withheld; as the party wronged was still entitled at a much later period to wreak his vengeance upon the wrongdoer by apprehending and imprisoning him, it cannot reasonably be doubted that such also was the practice of the regal period.
How far the kings exercised jurisdiction in questions of quiritarian right, such as disputes about property or inheritance, is by no means obvious. Within the family, of course, such questions were impossible, though between clansmen they may have been settled by the gens or its chief. The words of style used in the sacramental real action (infra, p. 548) suggest that there must have been a time when the spear was the arbiter, and when the contending parties, backed possibly by their clansmen or friends, were actual combatants, and victory decided the right. Such a procedure could not long survive the institution of a state. In Rome there seems to have been very early substituted for it what from its general complexion one would infer was a submission of the question of right to the pontiff s as the repositories of legal lore. Their proper functions, however, being sacred, they had to bring what was a question of purely civil right within their jurisdiction, by engrafting on it a sacral element, viz, by requiring each of the parties to make oath to the verity of his contention; and the point that in form they decided was which of the two oaths was false and therefore to be made atonement for. In substance, however, it was a finding on the real question at issue; and the party in whose favor it was pronounced was free to make it effectual if necessary by self-redress in the ordinary way.
Of Servius, Dionysius saysusing, as he often does, language more appropriate to the republican than to the regal periodthat he drew a line of separation between public and private ~
judicial processes, and that, while he retained the former in his own hands, he referred the latter to private judges, i~C flflS. and regulated the procedure to be followed in causes brought before them.3 Something of the sort was absolutely necessary. He was enormously increasing the number of the citizens,that is to say, of those who were to enjoy in future the privileges of quiritarian right, and multiplying the sources of future disputes that would have to be determined by the tribunals. The nature of the jurisdiction created by him, if any, to meet the new aspect Of things is much controverted. He has been credited with the institution of the collegiate courts of the Centumviri and the Decemviri (stlilibus judicandis) ~s well as the private judge (unus judex), but the arguments in support of this view are not strong, and are, of course, based wholly on presumptions. However, it will be convenient to say a few words about each of these courts here.
The centumviral court i is often referred to by Cicero, and the range of its jurisdiction in his time seems to have included every ~ possible question of manus in the old sense of the word status of individuals, property and its easements, and inheritance whether testate or intestate. By the time COU of Gaius the only matters apparently that were in practice brought before it were questions of inheritance by the jus civile, though theoretically it was still competent in all real actions, and the lance, the emblem of quiritarian right generally, was still its ensign. During the later Republic the Centumv-iri formed a quasicorporate body of private judges selected originally from the tribes (afterwards from the ordinary list of judices) annually by the urban praetors.i Some writers identify the centumviral court wish the Romulian senate of 100; others attribute its institution to Servius Tullius and hold that it was a plebeian court at first; others make it contemporaneous with the XII. Tables; others bring it down to the 6th century of the city; while the weight of recent authority is in favor of the view that it is not earlier than the beginning of the 7th century. The arguments in support of these several views cannot be gone into here. It is enough to say that we have no positive proof of its existence earlier than the 7th century, though presumptions are in favor of its having, been somewhat earlier. In the exercise of their office the Centumviri acted more independently than private judices ventured to do, and even introduced some considerable reforms into the law.
There was a court at Rome during the Republic called the Decemriri shill bus judicandis.3 These decemvirs in historic times Decem constituted a quasi-corporate body of judicial magistrates, viral whose duty it was to try certain kinds of actions, especially those relating to personal liberty. During the Principate, while ceasing to act as a separate court, they presided over the divisions into which the centumviral court had been under Augustus divided. Their origin is quite unknown. Pornponius indeed says that they were originally created soon after the institution of the peregrin praetorship in 242 B.C. for this very purpose of presiding over centumviral cases,4 but this statement is generally discredited and, if true, their practice of so presiding must quickly have gone into disuse. Those writers who attempt to trace back the centumvirs to the regal period give, as a rule, a like antiquity to the Decemv-iri shlitibus judicandis. On the other hand, some authorities identify them with the decemoiri judices mentioned by Livy as having been declared by the lex ValeriaHoratia to be as sacrosanct as the tribunes of the plebs. But these latter judices seem to have been a purely plebeian court which early went into desuetude, and there is really no evidence of identity.
So far back as historic evidence goes we find that actions were tried and judgments pronounced by judices and arb-itri. There Judicca never was more than a single judge (unus or unicusjudex)
d appointed to try a case, but there might be more than one arb#rl arbiter, and frequently there were three. All kinds of actions, even a sacramental action in rem, could be brought before the unus judex, but especially appropriate to him were all personal claims of alleged indebtedness, whether arising out of a legal or illegal act, denied either in toto or only as to the amount. Matters of that sort involved as a rule no general principle of law but rather mere disputes as to facts, which could well be decided by a single individual. There is much more reason for crediting Servius with the institution of the single judge (the arbiters may have been a creation of the XII. Tables) than with either of the collegiate courts. If we believe that in the early regal period the king acting with the pontiffs kept all jurisdiction in his own hands, it is plain that this must have become a practical impossibility after the admission of the plebeians to citizenship. For the trial of disputed facts it would be necessary to delegate jurisdiction, and iLiter~ature: Huschke, Servius Tullius, pp. 585 seq.; KellerWach, Rose. civil Process (1883), 6; Bethmann-Hollweg, Geschichte d. C. P. i. 23; Wlassak, Process-Geseize, i. 125 seq. and ii. 201 seq.; Girard, Organisahion judiciaire des Romains, i. 23 n.; Martin, Le tribunal des cenluml~irs (Paris, 1904). In this last-named work a succinct account of the court and the various theories about it is given.
On the question of their election, see Greenidge, Legal Procedure in Ciceros Time, pp. 41 and 264.
Girard, Organisation judiciaire, i. 159; Pauly - Wissowa, Encyklopadie, .r.1. Decemviri.
Dig. i. 2, 29.
Livy, ix. 46, 5~ Karlowa. Rose. R.G. i f~.
the earliest judices may have been the kings commissioners for such cases. If this be right, it was the beginning of a system that bore wondrous fruit in after years, and that, as will be shown in the sequel, helped the praetors to build up, through the formulae, the whole body of equity. -
Under the kings it is not improbable that several of the legis achiones, more or less undeveloped, were already in use, Civil probut the nature of these actions will be more conveni- cedure.
ently considered later on (infra, p. 566).
II. THE Jus CIVILE
(From the establishment of the Republic until the subjugation of central and southern Italy.)
i. Constitutional Events affecting the Law.
Jus Civile contrasted with Jus Quiritium.The term jus civile, as used to designate this chapter, though almost synonymous with, may be taken as somewhat more corn- Nature prehensive than, jus Quiritium. It is a term of of Jug later origin than the latter. Jus Quiritium was Clviie.
based entirely on old custom and legislation, finding, one might say, its culmination in the XII. Tables; whereas in the jus civile, as here understood, there appears the element of doctrinal interpretation of both statute and customthe magistrates and jurists (particularly the pontiffs) adding much to the earlier law by introducing into it this element. We can say that the jus civile in this sense is jus Quiritium as developed by interpretation. It is as yet, however, little influenced, as was the more comprehensive jus civile of later periods, by the elements of jus gent-i urn and equity. Still nowhere, we must note, are the terms jus Quiritium and jus dy-he placed in contrast by the jurists; they were each jus pro prium civium Ron1anorum. In the classical law the term jus Quiritium seems to be used principally in formulae framed in accordance with old custom.
Though our information regarding the present period is less legendary than that of the kings, it is still far from being completely authentic, as no original documents belonging to it are extant. There is little dispute evi~dce. among critics that Rome was sacked and burned by the Gauls about 387 B.C. or a few years later, and it is probable that the original pontifical annals (annales maxirni) upon. which Livy and other Roman historians have presumably based their narratives of early history were destroyed at that time along with all other written records. What credence, then, we may give to the ancient historical narratives, for the period of the Republic antecedent to this event, depends largely upon how far the pontifices managed to have their lost records restored. In any case, however, there is sufficient presumptive evidence to warrant belief in such prominent events of the early Republic as the creation of two annually elected patrician consuls, with potestas similar to that of the kings, the creation of tribunes of the plebs, the enactment of the decemviral code, and periodic struggles between patricians and plebs, the one to keep and the other to gain political power. To know the exact dates of these events is relatively of little importance. -
Legislation in Favor of tile Plebs.In their uphill battle for social and political equality the plebeians conquered stage by stage. The more important of their successes may here just be mentioned, with all reserve as to credibility, in the order of their traditional dates. By the lex Valeria (de provocatione) of 509 B.C. it was provided that no Roman citizen should be deprived of life, liberty or citizenship (i.e. suffer poena capitis), or be scourged, by any magistrate within the city, without an appeal (provocatio) to the comitici centuriata. This statute was often referred to by later Romans as a sort of Magna Carta; Livy calls it unicuin praesidium libertatis. In 494 or 471 BC: the tribunes of the plebs were created with right of intercession, and about the same time plebeian aediles and judices decemviri (the latter to act as judges or arbiters in litigations); the persons of all these officials being declared inviolable during their tenure of office. About 471 B.C. the conciiurn plebis became legislatively recognized, the tribunes were elected in it, and its resolutions (plebiscita) became directly binding on. plebeians. The XII. Tables, twenty years later, were the fruit of the agitation of the plebeians for a revision and written embodiment of the law. In 449 plebiscita were subject presumably to auctoritas patrumdeclared by the lex Valeria-Horatia binding on the whole populus, while about the same time, or perhaps a little earlier, the patrician-plebeian comitia of the tribes was instituted.i By the lex Canuleia of 445 B.C. intermarriage between patricians and plebeians was sanctioned. Repeated protests by the plebeians against the monopolization of the public domain land by members of the higher order resulted in the definite admission of their right to participate in its occupation by one of the Licinian laws of 367 B.C. The long course of cruel oppression of mn.solvents (mainly plebeians) by their patrician creditors was put an end to by the Poetilian law about 326 B.C., depriving nexal contract of its privileges and generally prohibiting the use of chains and fetters on persons incarcerated for purely civil debt. By the Hortensian law of about 287 B.C. plebiscita were declared binding (presumably without auctoritas patrum) on the whole body of citizens. And from 421 B.C., when one of their number first reached the regular state magistracy as quaestor, down to 252 B.C., when one was elected pontifex maxisnus, the plebeians gradually vindicated their right as citizens to share in all the honors of the state. There is also evidence that plebeians were early in the Republic admitted to the senate and also to the comitia curiata.
The legislative bodies during the present period were thus three in number: the comitia of the centuries, the concilium Legisla- plebis and the com-itia tribula. As to the comitia of tive the curies, it seems to have hardly concerned itself bodies. with general legislation, but met merely to confer imperium on the higher magistrates and to sanction testaments and adrogations of the gentiles. The legislation of the centuries dealt for the most part (though the XII. Tables were enacted by it) with questions affecting public and constitutional rather than private interests. It could be convened only by a magistrate having military imperium, i.e. at first only the consuls, ior the reason that it was theoretically a military assembly met for civil purposes (exercitus civilis). It is called in the XII. Tables comitiatus maximus. Its procedure was cumbrous and ill-adapted for legislation. As to the relation of the concilium plebis to the comitia tributa there is much controversy. The old opinion. which identified them is now generally abandoned. According to Mommsenf they differed in the following points: (1) The comitia was an assembly of the whole people voting in tribes instead of centuries, while the concilium was an assembly of the plebs alone; (2) the comitia was always convoked and presided over by a patrician magistrate (often the praetor), while the concilium had to be convoked and presided over by a plebeian official (usually a tribune); (3) in the coinitia auspices had to be taken beforehand, but not in the concilium; (4) an enactment of the comitia was a lex binding on all the populus, while an enactment of the concilium was a plebiscitum binding only on the plebs. It is, however, not possible to take Mommsens view that plebiscita were not binding on the whole populus prior to the lex Hortens-ia, without disregarding distinct statements of Livy as to the lex ValeriaHoratia and the lex Publilia.3 But whatever the relation of these two legislative assemblies to each other may have been originally, it is certain that the Hortensian law equalized them so far as their effects were concerned, and, looking to the small number of patricians compared with the plebs, it would probably be a matter of indifference in which assembly the vote was taken. The greater part of the legislation dealing with the private law in the later Republic consisted of plebiscita.
There is diversity of opinion about this. Mommsen thinks the comitfa iributa was earlier than the XII. Tables, and that the lex ValeriaHoratia applied to it. See next note.
2 Mommsen, ROm. Forschungen, i. 177 seq.; Rm. Staalsrechl, iii.
Livy, iii. 55, 3; Viii. 12, 34.
ii. The XII. Tables.
Causes of their EnactmenLThe change from monarchy to republic brought of itself no benefit to the plebs, but rather the reverse. One of their chief complaints was against the administration of justice. They complained that they were kept in. ignorance of the laws, and that in particular the consuls used their magisterial punitive powers (coercitio) unfairly and with undue severity when a plebeian was the object of them. The state of matters gradually became so intolerable that in the year 462 B.C., according to the ancient tradition, a proposal for a statute was made by C. Terentilius Arsa, one of the tribunes, by which a commission should be appointed to draw up a code of laws in. writing. He carried a rogation in. the concil-ium plebis to this effect. The senate at first strenuously resisted, but after a few years was induced to give way, and its assent to the proposal was obtained.
Tradition records that the first practical step towards its realization was the despatch of a mission to Athens, to study the laws of Solon and collect any materials that might be of service in preparing the projected code. on of On the return of the commissioners in 452 B.C. all the XII. the magistracies were suspended, and a body of ten. Tables.
patricians, called decemviri leg-i bus scribundis, was appointed with consular powers, under the presidency of Appius Claudius, for the express purpose of putting the laws into shape. Before the end of the ensuing year (45,) the bulk of the code was ready and was at once passed into law by the comitia of the centuries and published on ten tables (whether of brass or wood is doubtful), which were set up in the Forum. Next year, owing to additions being found necessary, the decemvirate was renewed, with, however, a change of membership (some plebeians being chosen), and in the course of a few months it had completed the supplemental matter. On. the downfall of the decemvirate, these new laws, after being duly accepted by the comitia, were published on two other tables, thus bringing the number up to twelve. The code then received the official name of Lex XII. Tabularum.
The foregoing account of the enactment of the Tables is an attempt to summarize what is stated by Livy and other Roman writers on the subject. Though inconsistent and sometimes even contradictory about details, these writers are on the main facts in concordance. Until a few years ago, the fact of the publication of such a code about the date above given had been accepted by modern historians, even the most iconoclastic, without question; unlike the leges regiae, the XII. Tables had always been regarded as authentic. But in his History of Rome, published in 1898, Professor Pais of Turin4 emitted the view that the decemviral code was really a private compilation made about the year 304 B.C. by Cn. Flavius, the scribe of Appius Claudius the censor, and probably at the latters instigation; or, in other words, that it was just the so-called Jus Flavianum which all writers had hitherto regarded as a work dealing with the styles of legis actiones and the calendar of court days. In Paiss view the annalists, in. accordance with a habit of theirs, duplicated the same event by counterfeiting an earlier Appius Claudius, &c., in order to magnify the antiquity and authority of the laws collected by Flavius, while the whole account of the decemviral legislation was invented by them. More recently Professor Lambert of Lyons has attempted by similar arguments to prove that the XII. Tables were a private compilation of customs already in observance, and of sacerdotal and other rules already in circulation, made about 197 B.C. by the jurist Aelius Paetus, and were in fact identical with the Tripertila or Jus Aelianum, which had always heretofore been supposed to contain merely a recension of the Tables with an interpretation and commentary.f This is not the place to discuss these theories. Though of course incapable of positive disproof, the weight Pals, Storia di Roma (Turin,, i. 566 seq.
1 Nouvelle Revue historique (1902), xxvi. 149 seq.; Revue gn~rale du droit, nos. ~ et 6; Milanees, Appleton (iqo,-~), pp. 126 seq.
of presumptive evidence is against them; they have hitherto found little or no support from other Romanists, and they have, in our opinion, been sufficiently refuted on philological and other grounds by Girardi and others.2
There were provisions in the Tables that were almost literal renderings from the legislation of Solon; and others bore a remarkable correspondence to laws in observance in Greece, urces. but they may have been only indirectly borrowed.3 By far the greater proportion of them, however, were native and original,not that they amounted to a general formularization of the hitherto floating customary law, for, notwithstanding Livys eulogium of them as the fountain of the whole law, both private and public, it seems clear that many branches of it were dealt with in the Tables only incidentally, or with reference to some point of detail. The institutions of the family, the fundamental rules of succession, the solemnities of such formal acts as mancipation, nexum, and testaments, the main features of the order of judicial procedure, and so forthof all of these a general knowledge was presumed, and the decemvirs thought it unnecessary to define them. What they had to do was to make the law equal for all, to remove every chance of arbitrary dealing by distinct specification of penalties and precise declaration of the circumstances under which rights should be held to have arisen or been lost, and to make such amendments as were necessary to meet the complaints of the plebeians and prevent their oppression in the name of justice. Probably very little of the customary law, therefore, was introduced into the Tables, that was already universally recognized, and not complained of as either unequal, defective or oppressive. Only one or two of the laws ascribed to the kings (assuming their greater antiquity) reappeared in them; yet the omission of the rest did not mean their repeal or imply denial of their validity, for a few of them continued still in force during the Empire, and are founded on by Justinian in his Digest. Neither apparently were any of the statutes of the Republic anterior to the Tables embodied in them, although for long afterwards many a man had to submit to prosecution under these laws and to suffer the penalties they imposed.
The original Tables are said to have been destroyed when Rome was sacked and burned by the Gauls. But they were probably I? at once reproduced, and transcripts of them in more or em ns. less modernized language must have been abundant if, as Cicero says was still the case in his youth, the children were required to commit them to memory as an ordinary school task. This renders all the more extraordinary the fact that the remains of them are so fragmentary and their genuineness in many cases so debateable. They were embodied, as above mentioned, in the Triperlita of Sextus Aelius Paetus in the year 197 sc., who probably republished them in somewhat modernized language and from whose work, it is thought, all later writers took their contents. They must have formed the basis of all the writings on the jus civile down to the time of Servius Sulpicius Rufus, who first took the praetors edicts as a text; and they were the subjects of monographs even by authors later than Sulpicius, amongst them by M. Antistius Labeo in the early years of the Empire, and by Gaius, probably in the reign of Antoninus Pius. Yet a couple of score or so are all that can be collected of their provisions in what profess to be the ipsissima verba of the Tables, though in a form in most cases more modern than what we encounter in other remains of archaic Latin of the 4th century of the city. These are contained principaily in the writings of Cicero, the Noctes Atticae of Aulus Gellius, and the treatise De verborum significatione of Festus; the two latter dealing with them rather as matters of antiquarian curiosity than as rules of positive law. There are also many allusions to particular provisions in the pages of Cicero, Varro. Gellius and the elder Pliny, as well as in those of Gaius, Paul, Ulpian and other ante-Justinian jurists; but these are not to be implicitly relied on, as we have evidence that they frequently represent the (sometimes divergent) glosses of the interpreters rather than the actual provisions of the statute. Reconstruction has therefore been a work of difficulty, and the results far from satisfactory, that of the latest editor, Voigt, departing very considerably from the versions generally current during the last halfcentury.4
Textes, pp. 34; Nouv. Rev, his!. xxvi. 38! seq.
2 Erman, Z. d. Say. Stilt. (1903), xxiii. 450; Lenel, Z. d. Say.
Stift. (1905), xxvi. 498.
The decemvirs may have obtained them either from Magna Graecia cr from Etruria, as the story of a mission to Athens is improbable. -- -
Dirksens Ubersicht der bisherigen Versuche zur Krztik u. Herstellung d. Zwolf-Tafel-Fragmente (Leipzig, 3824), supplies the basis of almost all the later work on the Tables anterior to that of Voigt Schoell, in his Legis XII. Tab. reliquiae (Berlin, 1866), made a valuable contribution to the literature of the subject from a philological point of view His version has been adopted substantially by Bruns in his Fontes juris, i. 16 seq. (6th ed. by Mommsen and Gradenwitz), and Girard in his Textes (3rd ed., Paris, 1903). See In form the laws contained in the Tables were of remarkable brevity, terseness and pregnancy, with something of a rythmical cadence that must have greatly facilitated their retention e1
in the memory. Rarely, if ever, were the rules they ~~,ejI embodied permissive; they were nearly all in the im- teristics perative mood, sometimes entering into minute detail but generally running on broad lines, surmounting instead of removing difficulties. Their application might cause hardship in individual instances, as when a man was held to the letter of what he had declared in a nexum or mancipation, even though he had done so under error or influenced by fraudulent misrepresentations; the decemvirs admitted no exceptions, preferring a hard-and-fast rule to any qualifications that might cause uncertainty. The system as a whole is one of jus as distinguished from fas. In the royal laws execration (sacratio capitis, sacer esto) was a common sanction; but in the Tables it occurs only once pure and simple, and that with reference to an offence that could be committed only by a patrician, material loss caused by a patron to his client (paironus, si clienti fraudem faxsit, sacer esto). In all other cases the idea that a crime was fin offence against public order, for which the community was entitled in self-protection to inflict punishment on the criminal, is prominent. Hanging and beheading, flogging to death, burning at the stake, throwing from the Tarpeian rocksuch are secular penalties that are met with in the Tables; but often, though not invariably, the hanging and so forth is at the same time declared a tribute to some deity to whom the, goods of the criminal are forfeited (consecratio bonorum). The Tables also recognize the system of self-help.
The manus injectio of the third Tablethe execution done by a creditor against his debtorwas probably in essence the same .procedure as under the kings, but with the addition of some regulations intended to prevent its abuse. Against a thief taken in the act the same procedure seems to have been sanctioned; it was lawful to kill him on the spot if the theft was nocturnal, or even when it was committed during the day if he used arms in resisting his apprehension. Accordiiig to Cicero there was a provision in these words: Si telum manu fugit magis quam jecit, arietem subicito:
this is perhaps just a re-enactment in illustrative language of the law attributed to Numa, that for homicide by misadventure if the weapon have sped from the hand rather than been aimed a ram was to be tendered as a peace-offering to the kinsmen of him who had been slain. The original purpose must have been to stay the blood revenge, but in the Tables it can only have been intended to stay the prosecution which it was incumbent on the kinsmen of a murdered man to institute. So with talionic penalties: si membrum rupit ni cum eo pacit, talio esto such, according to Gellius, were the words of one of the laws of the Tables, and they undoubtedly recognize talion, an eye for an eye, a tooth for a tooth; while at the same time regulating it by enabling the injured man to bring an action and sanctioning a money recompense (Wehrgeld) in lieu of it.f The structure of the provisions of the Tables was not such as to enable the plain citizen to apply them to concrete cases, or to know how to claim the benefit of them in the tribunals, without some sort of professional advice. Pomponius states Interprethat no sooner was the decemviral legislation published tfI~ti:fl than the necessity was felt for its interpretation, and for the ab,:s preparation by skilled hands of styles of actions by which its provisions might be made effectual. Both of these duties fell to the pontiffs as the only persons who, in the state of civilization of the period, were well qualified to give the assistance required; and Pomponius adds that the college annually appointed one of its members to be the adviser of private parties and of the judices in those matters. The interpretatio, commenced by the pontiffs and continued by the jurists during the Republic, which, Pomponius says, was regarded as part of the jus civile, was not confined to explanation of the words of the statute, but was in some cases their expansion, in others their also Muirhead, Historical Introduction (2nd ed., 1899), and Wordsworth, Fragments and Specimens of Early Latin (Oxford, 1874), pp. 253 seq. The last-named writer in a subsequent part of his volume (pp. 50238) has added notes, historical, philological and exegetical, which constitute a valuable commentary on the Tables as a whole. Voigts two volumes, under the title of Geschzchte und System des Civil -und- Criminal -Rechtes wie Processes, der XII. Tafeln nebst d-eren Fragmenten (Leipzig, 1883), contain an expositon of the whole of the earlier jus civile, whether embodied in the Tables or not. The history of them occupies the first hundred pages or thereby of the first volume; his reconstruction of fragments and allusionsa good deal fuller than any earlier one and supported by an imposing array of authorities, which, however, often rest on arbitrary assumptionsis in the same volume, pp. 693737.
There is little doubt that talio was actually enforced under the decemviral code, just as it was under the Jewish and Mahomrnedan codes, and as we see it among semi-civilized communities (e.g. the Abyssinians) at the present day. See Code of Khammurabi, 196 seq.; Leviticus xxiv. 20; Lane, Modern Egyptians, p. 94. Many references are given by Lenel in Z. d. Say. Stif!. xxiv.
limitation, and in many the deduction of new doctrines from the actual jus scriplum, and their development and exposition. An event that did much to diminish the influence of the pontiff s in connection with it was the divulgement in the year 304 a.c., as already mentioned, by Cn. Flavius, of a formulary of actions and a calendar of lawful and unlawful days, which got the name of Jus Flavianum. The practice adopted in the beginning of the 6th century by Tiberius Coruncanius, the first plebeian chief pontiff, of giving advice in law in public had a still greater effect in popularizing it; and the Tripertita or Jus Aelianum, some fifty years latera collection that included the Tables, the inter pretatio and the current styles of actionsmade it as much the heritage of the laity as of the pontifical college.
Szebsec,uent Legislalion.Of legislation during the 4th and 5th centuries that affected the private law we have but scanty Subse- record. The best-known enactments are the Canuleian quent law of 445 B.C. above mentioned; the Genucian, legisla. Marcian and other laws about usury and the rate of tion. interest; the Poetilian law of 326 B.C. abolishing imprisonment of nexal debtors by their creditors; the Silian law, probably not long afterwards, which introduced a new furm of process for actions of debt; and the Aquilian law about 287 B.C., which amended the decemviral provisions for actions of damages for culpable injury to property, and continued to regulate the law on the subject even in the books of Justinian.
iii. Development of the Substantive Institutions of the Law.
The Citizen and his Caput.The early law of Rome was essentially personal, not territorial. A man enjoyed the benefit The of its institutions and of its protection, not because he citizen happened to be within Roman territory, but because and his he was a citizen,one of those by whom and for whom caput. its law was established. The theory of the early Romans was that a man sojourning within the bounds of a foreign state was at the mercy of the latter and its citizens, that he himself might be dealt with as a slave, and all that belonged to him appropriated by the first comer; for he was outside the pale of the law. Without some sort of alliance with Rome a stranger had no right to claim protection against maltreatment of his person or attempt to deprive him of his property; and even then, unless he belonged to a state entitled by treaty to the international judicial remedy of recuperatio, it was by an appeal to the good offices of the supreme magistrate, or through the intervention of a citizen to whom he was allied by the (frequently hereditary) bond of hospitium, and not by means of any action of the jus civile set in motion by himself. A non-citizen-originally hostis, and afterwards usually called peregrinusi~__in time came to be regarded as entitled to all the rights recognized by so-called jus gentium as belonging to a freeman, and to take part as freely as a Roman in any transaction of the jug gentium; but that was not until Rome, through contact with other nations and the growth of trade and commerce, had found it necessary to modify her jurisprudence by the adoption of many new institutions of a more liberal and less exclusive character than those of the jus civile.
A citizens civil personality was technically his caput. The extent of it depended on his family status. It was only among citizens that the supremacy of the palerfamilias and the subjection of those in inanu, potestate or mancipio were recognizedonly among them therefore that the position of an individual in the family was of moment. While in public life a mans supremacy or subjection in the family was immaterial, in private life it was the paterfamilias alone who enjoyed full jural capacity. Those subject to him had a more limited personality; and, so far as capacity to take part in transactions of the jus civile was concerned, it was not inherent in them but derived from their paterfainilias: they were the agents of his i Neither alien nor~ foreigner is an adequate rendering 01 peregrinus. For peregrini included not only citizens of other states, independent or dependent, but also lorXiI~c,men whc could not call themselves citizens (cives) at all, as, for example, th dediticii whom Rome had vanquished and whose civic organizatior she had destroyed, offenders sent into banishment, &c., and also until Caracallas general grant of the franchise, the greater portior of her provincial subjects.
will, representatives of his persona in every act whereby a right was acquired by them for the family to which they belonged.
Whenever a citizen either ceased altogether to be a member of a Roman family or passed, either permanently or temporarily, into subjection to some paterfamilias outside his own Capitis family,I there was technically capitis minutio or deminudeminutio. To harmonize with the gradually estab- tb.
lished conception of jural personality in non-citizens, and perhaps also from their partiality for tripartite divisions, the jurists about the end of the Republic divided capitis derninutio into three degrees, viz, maxima, media and minimaa division unknown to lawyers of an earlier period when civitas was theoretically identified with libertas. When a citizen forfeited his freedom, his capitis deminutio was said to be maxima; he lost all capacity, whether under the jus civile or the jus gentium. When, retaining freedom, he went into exile or joined a Latin colony, or otherwise became a peregrin, the loss (deminutio) of his capacity was only media or minor; it was his rights and privileges under the jus civile that alone were affected. When both freedom and citizenship remained, and there was produced merely the severance of connection with a particular family (famiiae mutatio), the loss was said to be minima. Illustrations of c. d. minima present themselves in the case of a paterfamilias becoming filiusfamilias by adrogation, or a materfamilias passing into the hand of a husband by confarreation or coemption; in both cases he or she who had been sui juris thereby became alieni juris. It was immaterial whether the change was from a higher family position to a lower, or from a lower to a higher,3 or to the same position in the new family that had been held in the oldas when a fihiusfamilias was transferred by his father into the potestas of an adopter, or when the fihiifamilias of a person giving himself in adrogation passed with him into the poteslas of the adrogator: in every case there was capitis minutio. It was not the change of family position that caused it, but the subjection to a new potestas. Thus the civil personality of Titius while a filiusfamilias in the potestas of Sempronius, e.g. the expectancy of succession, the agnatic relationships, the derivative capacity for being a party to a mancipation or a sponsio that resulted from the relationship, all came to an end through the subjection to a new paterfamilias, temporary or permanent. He might acquire another and independent capacity on becoming sui juris by emancipation, or another derivative capacity on passing into the potestas of Maevius by adoption; but while subject to a new paterfamiias his old personality quoad civilia was extinguished. This is what some of the jurists mean when they say that capitis deminutio was civil death.4
An important consequence of minima capitis deininutio was that it not only extinguished patria potestas where it existed, but severed the bond of agnation between the ca pile minutus and all those who had previously been related to him as agnates. There was no longer any right of succession between them on intestacy; their reciprocal prospective rights of tutory were defeated, and the minutio of either tutor or ward put an end to a subsisting guardianship, assuming always that it was a lutela. legitima or agnatic cura furiosi. Very remarkable, yet quite logical, was the doctrine that the minutio extinguished the claims of creditors of the minutus; their debtor, the person with whom they had contracted, was civilly dead, and dead without an heir, and therefore there was no one against whom an action of the jus civile could be directed in order to enforce payment. But equity eventually provided a remedy, by Children who became sui juris by their parents death, as they came under no new potestas, were not regarded as capite minutl.
Owing to the ill-defined views among the Roman jurists themselves regarding the nature of cap. dem. various theories more or less divergent have been maintained about it by modern writers, of none of which can it be said that it has been generally accepted. Mommsens theory, above adopted, seems to present fewest diffi. culties. See the subject discussed and authorities cited by Goudy in 2nd edition of Muirheads Historical Introduction, pp. 42227.
giving the creditors a praetorian action in which the minutio was held as rescinded, and which the new paterfamilias was bound to defend on pain of having to give up all the estate he had acquired through the adrogation or in manum conventio. In other respects also the strict effects of this capitis minuijo were attenuated or done away with by the jurists of the Empire, e.g. as regards personal servitudes.
The Law of the Family Relations.So far as appears no serious inroad was made by the XII. Tables on the law affecting husband Law of and wife, unless in the recognition of the legality of family so-called free marriages, i.e. entered into without relations, any solemnity, and not involving that subjection of the wife to the husband (manus) which was a necessary consequence of the patrician confarreation and plebeian coemption. These latter were left untouched, while on the other hand acquisition of marital manus through usus was fully recognized. As formerly mentioned, it had become a practice with some of the plebeians to tie the marriage bond rather loosely in the first instance, possibly in consequence of objection by the women (as became quite general even among patricians at a later period) to renounce their independence and right to retain their own property and earnings, but more probably because taking a woman to be merely the mother of children (matrimonium) had been practically forced upon them before coemption had been introduced as a means of making her a lawful wife, and so they had become in a manner habituated to it. But the idea that, as a man might acquire the ownership of a thing to which his legal title was defective by prolonged possession of it, so he might acquire manus over the woman with whom he had thus informally united himself by prolonged cohabitation with her as his wife had probably matured and become customary law. The Tables accepted it; all that was needed was to define the conditions under which manus should be held to have been superinduced, and the wife converted from a doubtful uxor into a lawful materfamilias. Hence the provision that, if a woman, married neither by confarreation nor coemption, desired to retain her independence, she must each year absent herself for three consecutive nights from her husbands house (trinoctialis usurpatio)twelve months uninterrupted cohabitation being required to give him that power over her which would have been created instantly had the marriage been accompanied by either of the recognized solemnities.
Amongst the fragments of the Tables so industriously collected there is none that refers to a wifes marriage portion (dos); but it is hardly conceivable that it was as yet unknown. Justinian says that in ancient times it was regarded as a donation to the husband with his wife, rather than as a separate estate that was to be used by him while the niarriage lasted but to revert to her or her representatives on its dissolution. And it is easy to see that, where there was menus, the wife becoming a member of her husbands family and everything of hers becoming his, such must originally have been its character.i But even then, when a man gave his daughter (Jlliafamilias)who could have nothing of her ownin marriage, and promised her husband a portion with her, there must have been some process of law for compelling him to pay it; and Voigts conjecture that an actio diclae dotis was employed for the purpose has something in its favor.1 As regards divorce, Cicero alludes vaguely to a provision in the Tables about a man depriving his wife of the house-keys and turning her out of doors, with some such words as take what is thine and get thee gone. This can only refer to free or non-manuf marriages, but even for hand marriages, while repudiations by husbands (but not by wives) were competent, the statement of the historians is that they were few and far between until the 6th century of the city, and that, until the same date, any man who turned his wife away, however serious the ground, without the cognition of the family council, was liable to penalties at the hands of the censors.3
Of the two or three provisions of the Tables known to us that affected details of the patria potestas, which itself was assumed to be so well established by customary law as to need no statutory sanction or definition, one was in the words Si pater (familias) ter filium venum duuit, a patre filius liber esto. This came to be construed by the pontifical lawyers as meaning that so powerful i See Cicero, Top. iv. 23.
i Voigt, XII. Tafein, ii. p. 486. It has not, however, received any support from more recent writers.
See Esmein, Mlanges, pp. 23 seq.
was the bond of the poteslas over a son that it could not be completely loosed until the father had three times gone through the process of fictitious sale by which emancipation was effected. But the conception of the law seems to indicate that its original purpose must have been rather to impose a penalty on the father and confer a benefit on a son in potestate, by declaring him ipso jure free from it on a certain event, than to place difficulties in the way of his emancipation. If a house-father have thrice sold his son, the latter shall be free from his father. It reads as if the intention were to rescue the son from what, by its frequent repetition, was suggestive of a total absence of parental affection rather than reluctant obedience to overwhelming necessity. May not its object have been to restrain the practice, which did not wholly disappear even in the late Empire, of men selling their sons or giving them to their creditors in security of loanssuch sales or pledges, at the time of the Tables, being effected only by an actual transfer of the child per aes et libram as a free bondman (in mancipii causa), accompanied by, in the case of a loan, a pact for reconveyance when the loan was repaid? Whatever its ratio, however, and whatever the earlier practice, it was upon this law that the interpreting pontiffs based the rules for adoptions and emancipations of fihiifamilias. The usual procedure in adoptions was as follows:
The natural father mancipated his son to a friend for a nominal prke and the latter then manumitted him, the son thereupon reverting into his fathers potestas. This was repeated a second time with the same result. After the third sale (pairia potestas being extinguished) the purchaser remancipated to the parent. In the latters hands the son was now -in causa mancipii, and so in a position in which he could be permanently transferred to the adopter. This was effected by an in jure crssio, in which the adopter averred that the child was his filiusfamilias, and in which judgment was at once given in his favor on the natural parents admission or tacit acquiescence. A similar method was followed in emancipation of a filius, except that of course there was no cessio in jure, but instead thereof the parent manumitted immediately after the reconveyance to him. Neither in adoption nor emancipation, however, was remancipation to the palerfamilias essential, though it was usual, and in the case of emancipation carried with it important rights of succession and tutory. For daughters and grandchildren the pontifical jurists by a casuistic interpretation of the said law held one mancipation to be in all cases enough to extinguish the patria potestas.
The nature of the relation between master and slave, like that of manus and patria potestas, seems also to have been too notorious to require exposition in the Tables. We find recorded only two references to it, one dealing with the case of a slave who had a conditional testamentary gift of freedom (stain liber), the other with noxal surrender (noses dediiio). The provision about noxal surrender was not limited to a slave; it was apparently to the effect that, if a member of a mans family (familiaris, i.e. a son or a daughter in potestate or a slave) committed a theft of, or did mischief to, property belonging to a third party, or a domestic animal belonging to one man did harm to another, the father of the delinquent child, or the owner of the slave or animal, should either surrender him or it to the person injured or make reparation in damages. In course of time the surrender came to be regarded as a means of avoiding the primary obligation of making reparation. But comparative jurisprudence recognizes in the enactment of the Tables a modified survival of the ancient right of an injured party to have the delinquent corpusman, beast or thinggiven up to him to wreak his revenge upon it privately, the modification consisting in the alternative of reparation offered to the owner. This noxal surrender, failing reparation, had gone out of use in the case of daughters in potestale before the time of Gaius, and in the case of sons before that of Justinian; but it was still sanctioned so far as slaves and domestic animals were concerned even in that emperors legislation.
Guardianship and the Introduction of the Order of A gnates.So long as Rome was patrician the gens apparently charged itself with the guardianship of a clansmans orphan pupil Gentile children and his widow and unmarried daughters guardianabove pupillarity after his decease (tutela), as well ship.
as with that of male members of his family who were sus juris, but above the age of pupillarity, when they chanced to be lunatic, imbecile, prodigal or helplessly infirm (cura, curatio). The gens in council, in all probability, appointed one of its members to act as tutor or curator as the case might be, itself prescribed his duties, and itself called him to account for any failure in his administration.
But, as this gentile tutory could not be extended to the plebeians, among whom some law of guardianship was as much required as among their fellow-citizens of the higher order, the decemvirs found it expedient to devise a new one of universal application. The Tables contained no express authority for testamentary nomination of tutors to the widow of the testator, or to his pupil children and grown-up unmarried daughters; but such appointment, if unknown previously, was soon held to be justified by a liberal interpretation of the very inclusive provision, uti legassit suae rei, ita jus esto. In the absence of testamentary appointment the nearest male agnates of lawful age were to be tutors. This tutory of agnates was an invention of the decemvirs, just as was the agnates right of succession on intestacy. The plebeians had no gentes, at least until a much later period; so, to make the law equal for all, it was necessary to introduce a new order of heirs and tutors. Tutores. .. ex lege XII. Tabularum introducuntur agnati is the very notable language of Ulpian. lanship And his words are very similar in speaking of their of right of succession; for, while he says of testamentary agnates. inheritances no more than that they were confirmed by the XJI. Tables, he explains that the legitimae hereditates of agnates and patrons were derived from them.i The phrases legitima cognalio, legitima keyed itas, legitimi heredes, tutela legilima, Lulores legitimi themselves proclaim the origin of agnation, agnatic inheritance and agnatic tutory; for, though the word legitimus might be applied to any institution based on statute, yet in the ordinary case it indicated one introduced by the XII. Tables, the law of laws.
A mans agnates, in the strict sense, were those of his collateral kinsmen who were subject to the same pairia potestas as himself, or would have been had the common ancestor been still alive. A mans sons and daughters in potestale, therefore, whether the relationship was by birth or adoption, and his wife in manu (being fihiae loco) were each others agnates. But a wife not in manu was not their agnate; nor were children who had been emancipated or otherwise capite minuli the agnates of either their brothers and sisters or their mother in inanu. A man was an agnate of his brothers children, assuming always that there had been no capitis deminutio on either side; but he was not an agnate of his sisters children, for they were not ejusdem famiae: they were agnates of their fathers family, not of their mothers. In like manner, and again assuming the absence of minutio capis, the children of brothers were each others agnates, but not the children of a brother and a sister or of two sisters. Brothers and sisters were agnates of the second degree; a man and his brothers children were of the third, the children of twc brothers (patrueles) of the fourth, and so on,it being a condition, however, that the kinship should always result either from lawful marriage or from adoption in one or other of its forms.
When, therefore, a man died leaving pupil male descendants or unmarried female descendants who by his death became sui jurzs, they got their brothers of lawful age as their tutors; if he was survived by his wife, and she had been in manu, her sons, or it might be stepsons, acted for her in the same capacity; in either case they took offiry as the nearest qualified male agnates. If the widow had no sons or stepsons of full age, and the children consequently no qualified brothers, the tutory devolved on the agnates next in order,i.e. the brothers german and consanguinean of the deceased husband and father; for they were agnates of the third degree. And so with agnates of the fourth and remoter degrees.2 Failing agnates who could demonstrate their propinquity, the tutory passed to the gens when the ward happened to belong to one. This is nowhere expressly stated; but Cicero gives what he represents to be an enactment of the Tables, making the fellow-gentiles of a lunatic his guardians on failure of agnates; and analogy seems to justify the extension of the same rule to the case of sane pupil and female wards.3
The curatory of minors above pupillarity was of much later date than the Tables. The only curatories they sanctioned were those of lunatics (Juriosi) and spendthrifts (prodigi). A
Ulp. Frag. xxvii. 5, legitimae hereditatis jus. .. ex lege Duodecim Tabularum descendit. This derivation of agnatic inheritance from the XII. Tables was specially noticed by Danz in his Gesch. d. Tom. Rechts (2nd ed., Leipzig, 187173), ii. 95, but is generally ignored.
2 To determine the degree of propinquity between two persons it was necessary to count the generations upwards from the first to the common ancestor and downwards from him to the second. Consequently brothers were related in the second degree, uncle and nephew in the third, first cousins in the fourth, and so on.
1 See Gai. i. 165.
lunatic was committed to the care of his agnates, and, failing them, of his fellow-gentiles; and a few words in Festus seem to suggest that arrangements had to be made by them for his safe custody.
Mancipation and the Law of Pro perty.In the early law, as we have seen, there was no technical word for ownership of things:
it was an element of the house-fathers inanus. In Ownertime, although it is impossible to say when, the word ship in dominium came into use, but, so far as can be dis- ~
covered, it did not occur in the XII. Tables, and must have been of later introduction. In those days, nec when a man asserted ownership of a thing, he was mancontent to say, It is mine, or It is mine according to dpi.
the law of the Quirites. It is said by some jurists of eminence that under the law of the Tables what afterwards came to be called dominium ex jure Quiritium was competent only in the case of res mancipiof a mans house and farm, and things appurtenant thereto, as slaves and animals with which he worked them. There is much to be said for this hypothesis, but it is so far contradicted by Ulpian and Paul, who tell us that tigna juncta (that is, building materials, vine stakes and the like, which undoubtedly were res nec Inancipi) were exceptionally excluded from vindication. On the other hand, these texts may be explained as mere deductions by interpretation at a later time of the words ne solvito of the XII. Tables.4 At any rate it is pretty certain that before the close of the present period res nec mancipi as well as res mancipi could be held in quiritarian ownership.
The modes in which these two classes of things might be acquired in property were various. But there was this important difference: that, while a natural mode of acquisition sufficed in the case of res nec mancipi, some civil one was necessary for the derivative acquisition, at all events, of res snancip-i. The most important were mancipation, surrender in court, usucapion and bequest as singular modes, and inheritance, in manum conventio, adrogation and purchase of a confiscated estate, as universal ones. All of these, with the exception of mancipation, applied equally to res mancipi and res nec mancipi. But there was, in addition, for res nec mancipi, what was the commonest of all the mcdes of transferring things of this class, simple tradition. If the transfer of these was by the owner, with the intention of passing the property, then the simple delivery of possession (traditio) was enough, unless indeed it was in virtue of a sale; in which latter case the ownership remained with the vendor, notwithstanding the change of possession, until the price was paid or security given for it.i Only mancipation, surrender in court and usucapion, however, need be noticed at present.
The origin of the distinction between mancipable and nonmancipable things, and of the form of conveyance by mancipation applicable to the first, has been explained (supra, p. 529).6 Manci Originally mancipation was not the imaginary sale that ~
Gaius speaks of, but as real a sale as could well be con- 0
ceivedthe weighing in scales, held by an official, of the raw metal that was to be the consideration for the transfer of a yes inancipi, and the handing of it by the transferee to the transferrer, with the, declaration that thereby and therewith the thing in question became his in quiritary right. On the introduction of coined money weighing became unnecessary. The price was counted out before the ceremony, or sometimes left to be done afterwards; and though, in that spirit of conservatism that was so marked in the adhesion Dig. xlvii. 3, I pr. and xlvi. 3, 98, 8. See Cuq, Inst. Jurid. and ed. i. 91 n.; and on tignum junctum in general, Girard, Manuel de droit romain, 4th ed. p. 330.
i Our only authority for attributing this fundamental rule to the XII. Tables is Justinians Institutes, ii. I, 41, where there is clear evidence of a Tribonianism. The rule undoubtedly must have been applied to res mancipatae in the Tables, and possibly its extension to tradition of yes nec mancipi may have been due to interpretation. See Girard, ut supra, p. 288; cf. Cuq, Institutions fund. i. p. 87.
Literature: Leist, Mancipation und Eigenthumstradition (Jena, 1865); Jhering, Geist. d. rOm. Rechts, vol. ii. 46; Bechmann, Der Kauf nach gemeinem Recht (Erlangen), i. pp. 47302; Voigt, XII. Tafein, vol. 1.22, vol. ii. ~ 8488; Kalowa, ROm. Rechtsgesch.
ii. pp. 36381.
to time-honored forms after their raison dllre was gone, the scalebearer and the scales were still retained as indispensable elements of the mancipation, yet the scales were simply touched by the purchaser with a raudusculum or a single coin, in order that he might be able to recite the old formula: I say that this slave is mine in quiritary right, and that by purchase (for such and such a price) with these scales and this bit of copper. And that one coin, says Gaius, was then handed by the transferee to the transferrer as if it were in fact the price of the purchase (quasi pretii loco). Thus transformed, the mancipation was undoubtedly an imaginary sale; for the real price might have been paid weeks or months before, or might not be paid until weeks or months afterwards. The mancipation had become nothing more than a conveyance, and in this form it continued down to the end of the 3rd century of the Empire to be the appropriate mode of transfer of a res mancipi, or at least of conferring on the transferee of such a thing a complete legal title (dominium ex jure quiritium). After that, however, it seems gradually to have gone into disuse, being inapplicable to lands out of Italy that did not enjoy what was called jus Italicum; and long before the time of Justinian it had practically disappeared.
The effects of a mancipation, provided the price had been paid or security given for it, were that the property passed instantly to the purchaser, and that the transferrer was held to warrant the transferee against eviction from the moment the price was received. In the absence of either payment or sureties for it, the title still remained with the vendor, so that it was in his power, by means of a real action, to get back what had been mancipated, even though it had passed into the possession of the vendee. The vendors liability to the vendee in the event of eviction is usually supposed to have arisen ipso jurethat is to say, without anything expressly said about it; the acceptance by the transferrer of the coin with which the scales had been struck was held to have imposed upon him an obligation to maintain the transferee in possession, under a penalty of double the amount of the price, recoverable by the latter by what is usually called an aclio auctoritatis. But this ipso juTe obligation did not arise when the mancipation was either really or fictitiously gratuitous (nummo uno),really, in the case of donations, &c., fictitiously, when, on purpose to exclude the warranty, the recital of the transferee was that the price was a single sesterce.
The right of a vendee to sue an actio auctoritatis arose only when eviction resulted from a decree in a regular judicial process at the instance of a third party disputing his title, and was conditional on his having done all that was necessary on his part to bring his vendor (auclor) into the field to defend his own interests. And the duration of the auctoritas was limited by the Tables to two years in the case of lands and houses, to one year in the case of other things. As possession for those periods was sufficient to cure any defect in the vendees title, it was but reasonable that with their expiry the vendors liability on his warranty should be at an end.
By a provision of the Tables in the very inclusive terms, cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, the importance of mancipation was immensely increased; for any sort of qualification germane to the transaction might be superinduced upon it, and the range of its application thus greatly extended. Such qualifications were spoken of as leges mancipii, self-imposed terms, conditions or qualifications of the conveyance and, as integral parts of the transaction per aes et libram, they partook of its binding character and were law between the parties. The matter of oral declaration might be the acreage of lands, their freedom from burdens or right ta easements, reservation of a usufruct, undertaking to reconvey on a certain event, or what not, so long as it did not express a term or condition; the result was just so many obligations created per aes et libram, whose contravention or denial (Cicero tells us) was punished with a twofold penalty.f Ordinarily the words spoken in the hearing of the witnesses fixed the beginning and the end of the liability; it was enough that they were literally complied with, however much the other party might be injured by something inconsistent with their spirit, or which he had not taken the precaution to require should be made matter of declaration. But there was an exception (although not introduced until long after the Tables) in the case of that particular mancipatory agreement which was known by the name of fi4ucia, i.e. where the mancipation was to a creditor in security or to a friend for safe custody, and the engagement was to return the thing mancipated, in the one case when the debt secured by it was paid and in the other on demand. In such cases the transferee took the conveyance more in the transferrers interest than his own; he became a sort of trustee, entitled to be treated with consideration, and neither mulcted in a twofold penalty when his inability to reconvey was due to no fault of his, nor forced to reconvey until relieved of charges incurred by him in reference to Cic. de Off. iii. 16, 65. Some writers, e.g. Girard, Manuel de droit roniasfl, p. 550, n. 5, take the view that, apart from the gcti auctoritatis, it was only where the extent of the land was misstated (oct10 de modo agri) that the penalty of a duplum was ipso juTe incurred. But this puts a gloss on Ciceros language.
the property. Accordingly it became the practice to import into the mancipation a reference to fides fidi fiduciae causa meum esse aio, with explanation of the purpose, conditions, &c., of the fiducia, and this explanation as a rule, not in the nuncupatory words, forming a relative lex mancipii, but in a separate agreement or pactum fiduciae. This pact then became enforceable not by ordinary legis actio, as part of the mancipation, but separately on grounds of good faith alone. It gave rise to an actio fiduciae which some writers think was just an application of the legis ache per judicis postulationem, but which more probably was originally an action in factum granted by the urban praetor by virtue 01 his imperium. In any case it was one of the earliest instances 01 an action inter dyes based on principles of good faith. The fiduciary clause had the effect of freeing alike the right of the vendor and the obligation of the vendee from the hard-and-fast lines of the jus strictum, and subordinating them to the principles of bona fides.f Of the civil modes of acquiring property on singular title applicable to both res mancipi and res nec mancipi surrender in court (injure cessio) was just a rei vindicatlo arrested in its initial Sur,~nstage. The parties, cedent and cessionary, having pre- derin viously arranged the terms of transfersale, donation or otherwiseappeared before the magistrate; the cessionary, taking the position of plaintiff, declared the thing his in quiritary right; the cedent, as defendant, was asked what he had to say in answer; and, on his admission or silence, the magistrate at once pronounced a decree (addictio) which completed the transfer, but which might be subject to a fiduciary reservation or deduction of a servitude. It was probably more resorted to for the constitution of servitudes, both real and personal, and transfer of such rights as patria poteslas, tutory-at-law of a woman, or an agnatic inheritance that had already opened, than for conveyance of property. For it was not only inconvenient, inasmuch as it required the parties to appear before the supreme magistrate in Rome, and could not be carried through by any one under power (as mancipation might),but it had also the serious disadvantage that it did not ipso juTe imply any warranty of title by the cedent in the event of eviction or give rise to an action de modo agri. Nor did it, like mancipation and tradition, make payment of the price a condition precedent of the transfer of property. The reason was that in form the right of the cessionary flowed from the magisterial decree:
Since you say the thing is yours, and the cedent does not say it is his, I declare it yours, and not from any act or word of the cedents, who was passive in the matter.
Usucapion,3 regulated by the XII. Tables, but not improbably recognized previously in a vague and uncertain way, converted uninterrupted possession (usus) into quiritary property e~
by efflux of time. The provision in the Tables~ as given by Cicero, was to this effect: usus auctoritas fundi biennium est, ceterarum rerum omnium annuus est. The relation in which the words usus and auctoritas stand to each other has been a subject of much discussion: the prevailing opinion amongst modern civilians is that the two words should be taken disjunctively, the first alone referring to usucapion, and the second to the warranty of title incumbent on the vendor in a mancipation, and that both were limited to two years in the case of lands (and, by extensive interpretation, houses), and to one year in the case of anything else. In the later jurisprudence the possession required to be based on a sufficient title and the possessor to be in good faith. But the decemviral code, as is now generally admitted, contained no such requirements; any citizen occupying immovables or holding movables as his own, provided they were usucaptible and he had not taken them theftuously, acquired a quiritary. right in two years or one, as the case might be, simply on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired so long as not by theft, into legal ownership when prolonged for the statutory period,too often the maintenance of might at the cost of right. But in time it came to be regarded rather as a remedy for some defect of title, arising either from irregularity of conveyance or incapacity of the party from whom a transfer had been taken; and with the progress of Literature: Stintzing, Das Wesen von bona fides und titulus in d. Tom. Usucap-ionslehre (Heidelberg, 1852); Schirmer, Die Grundidee d. Usucapion im rOm. Recht (Berlin, I855~ Pernice, Labeo, 2nd ed. ii. 328 seq.; Voigt, XII. Ta,feln, ii. 91, Karlowa.
RSm. R.G. ii. 387 seq.; Esmein, Sur lhistoire de lusucapion, Mlanges (1886), pp. 171 seq.
jurisprudence it developed into the carefully regulated positive prescription which has to a greater or less extent found a place in every modern system.
The conception of the abstract notion of a real right in (or over) the property of another person (jus in re aliena)
is not to be looked for at so early a period in the ~~I~UI. history of the law as that now under consideration.
The rural servitudes of way and water were no doubt very early recognized, for they ranked as res mancipi, and the XII. Tables contained various regulations in reference to the former. Usufruct, too, was probably not unknown; but the urban praedial servitudes bear the impress of a somewhat later jurisprudence. Pignorate and hypothecary rights were certainly unknown as rights protected by action.i Between private parties the only thing legally recognized of the nature of a real security was the fiducia that is described above. Approaching more nearly to the modern idea of a mortgage was the security praedibus p-raediisque required by the state from those indebted to it in assurance of their obligations. Here there was the double guarantee of sureties (praedes) and mortgages of lands of theirs (praedia subsignata); but how they were dealt with when the debtor made default is by no means clear.
C/ian ges in the Law of Succession.The two forms of testament of the regal period, viz., that made in the comitia of Forms of the curies and that by soldiers on the eve of battle, testa- still remained in use in the early Republic; though meilr. before the end of the Republic they were displaced by the general adoption of that executed with the copper and scales (testamentum per aes et libram). It seems to be the general opinion that it was to the first two alone that the words applied which stood in the forefront of the provisions of the XII. Tables about inheritance: uti legassit suae rei, ita jus esto. \Vhether resort was to the comitia or to the army, the testators own will in the matter was henceforth to be supreme. There was to be no more reference to the pontiffs as to the expediency of the testament in view of the interests of the family sacra and of creditors of the testators; from legislators, sanctioning a departure from the ordinary rules of succession, the assembled Quirites became merely witnessesrecipients of the oral declaration of the testators will in regard to his inheritance.2
The testament with the copper and the scales is depicted by Gaius as a written instrument. But he presents it in what Tesfa. might be described as the third stage of its history. ment Its probable origin has been explained (supra, p. 534). per aes et It was originally not a testament but only a makelibram. .
shift for one. A plebeian was not qualified in the regal period to make a testament in the comitia; so, instead, he transferred his estate to a friend on whom he could rely, with instructions how to distribute it on his death. The transferee was called familiae emptor, because the conveyance was in form a mancipation for a nominal price.
It is not at all unlikely that the same device may occasionally have been resorted to by a patrician who had neglected to make a regular testament, and was seized with mortal illness before he had an opportunity of apl)ealing to the curies.3 But such a disposition was not a testament, and may not have been so called. A testament was the nomination of a person as the testators heir. It made the person instituted as fully the representative of the testator after his death as his heir-at-law would have been had he died Hypothecary rights were unknown until near the end of the Republic. But Festus (s.c. Nancitor; see Bruns, Fonles, 6th ed., iii. m6) speaks of a provision in the Cassian league between Rome and the Latin states of the year 262 uc. Si quid pignoris nasciscitur, sibi habeto which may suggest that the Romans at this period were not altogether unacquainted with pledge or pawn of movables as a transaction of some value defaclo if not dejure.
2 See Girard, Manuel de droil rornain, 4th ed. p. 8oo. On the uti legassit law of the Tables see ibid. p. 782, and cf. Cuq, Institutions Juridiques, 2nd ed. pp. I24I25.
The coinitia, Gaius tells us (ii. 102), met only twice a year to sanction testaments. In Mommsens view, Rm. Chronologie (1859), pp. 241 seq., these days were the 24th of March and the 24th of May.
intestate. The original mortis causa mancipation that opened the way for the testament per aes et libram conferred upon the farniliae emptor no such character. Gaius says that he stood in place of an heir (heredis loco), inasmuch as he had such of an heirs rights and duties as the familiae venditor had it in his power to confer and impose; but the transaction was but a conveyance of estate, with a limitation of the right of the grantee. It has been argued that, as the law did not recognize conditional mancipation, the conveyance must have operated as a complete and immediate divestiture of the grantee. But this does not follow. For it was quite competent for a man, in transferring property by maricipation, to reserve to himself a life interest; and apparently it was equally competent for him to postpone delivery of possession, without infringing the rule that the mancipation itself could not be ex certo tern pore. So far as one can see, therefore, there was nothing to prevent the grantor of the conveyance (or quasi-testator) bargaining that he was to retain the possession till his death; and, as the familia was an aggregate of estate (universitas rerum) which retained its identity notwithstanding any change in its component elements, he must in such case have been as free to operate on it while he survived, as if he had never conveyed it by mancipation.
Cicero incidentally remarks 4what indeed the nature of the transaction of itself very distinctly suggeststhat the true testament with the copper and the scales had its statutory warrant, not in the uti legassit suae rei of the XII. Tables, but in the provision contained in the words: cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto. Reflection on the import and comprehensiveness of these words led the pontifical interpreters to the conclusion that there was nothing in them to prevent the direct institution of an heir in the course of the verbamuncupata engrafted on a mancipation. From the moment this view was adopted and put in practice the familiae mancipatio ceased to be a transfer of the tstators estate to the familiae emptor; the latters purchase was now for forms sake only, though still an indispensable form, since it was it alone that, according to the letter of the statute, imparted efficacy to the nuncu patio. But it was the nuncu patiothe oral declaration addressed to the witnesses that really contained the testamentary disposition, i.e. the institution of an heir, with such other provisions as the testator thought fit to embody in it. This was the second stage in the history of the testament per aes et libram. The third was marked by the introduction of tablets in which the testamentary provisions were set out in writing, and which the testator displayed to the witnesses, folded and tied up in the usual manner, declaring that they contained the record of his last will.
Gaius narrates the words spoken by the familiae emptor and addressed to the testator as follows: Your estate and belongings (familia pecuniaque tua), be they mine by purchase with this bit of copper and these copper scales, subject tO your instructions, but in my keeping, that so you may lawfully make your testament according to the statute (quo tu jure testamentum facere possis secundum legem publicam). The meaning of the words in my keeping (endo custodelam meam) is, not quite obvious; they are probably remnants of an older style, but may be due to a clerical error of the writer of the Verona MS. Certain it is that they no more imported a real custody than a real property in the farniliae emptor; for the testator remained so entirely master of his estate that the very next day if he pleased he might mancipate it anew to a different purchaser, and nuncupate fresh testamentary writings. The nuncupation by the testator was in these terms: As is written in these tablets so do I give, so do I legate, so do I declare my will; therefore, Quirites, grant me your testimony; and, adds Gaius, whatever the testator had set down in detail in his testamentary tablets he was regarded as declaring and confirming by this general statement. To the appeal of the testator the witnesses responded by giving their testimony in words which unfortunately are not preserved; and then the testament was sealed by testator, officials and witnesses, the seals being outside according to the early fashion.6
Although this testament with the copper and the scales was justified in the first instance by the provision of the XII. Tables as to the effect of nuncupative words annexed to a mancipation, yet in course of time it came to be subordinated to that other one which dealt directly with testamentary dispositions: uti lega~ssit suae rei, ita jus esto. Upon the words uti legassit the widest possible meaning was put by the interpreters: not only was a testator held entitled on the strength of them to appoint tutors to wife and children, to enfranchise slaves and make bequests to legatees, but he might Cic. De Oral. i. 57, 245.
On the above passage of Gaius, see Sohm, InsL 99.
even disinherit a child in his potestas (suns heres) in favor of a stranger, so long as he did so in express terms. Institution of a stranger, without specific mention of the suus heres, however, was fatal, if the latter was a son; for without express disherison (exheredatio) his father could not deprive him of the interest he had in the family property as in a manner one of its joint owners, It can hardly be supposed that disherison was contemplated by the compilers of the Tables; it was foreign to the traditional conception of the family and the family estate. But it was a right whose concession could not be resisted when claimed as embraced in the uti legassit, although generally discountenanced, and as far as possible restrained by the strictness of the rules imposed on its exercise.
In the absence of a testament, or on its failure from any cause, the succession opened to the heirs ab intestalo. So Intes gate notoriously were the sui heredes entitled to the first placeand that not so much in the character of heirs sion. as of persons now entering upon the active exercise of rights hitherto existing, though in a manner dormant that the compilers of the XII. Tables thought it superfluous expressly to declare it. If a man die intestate, leaving no suus heres, his nearest agnate shall have his estate. If the agnate also fail, his gentiles shall have it. It has been pointed out, in dealing with the tutory of agnates, that the notion of agnation, as a bond distinct from that which connected the gentile members of a clan, was due to the decemvirs. They had to devise a law of intestate tutory and succession suitable alike to the patricians who had gentes and to the plebeians who had none. To put the latter in exactly the same position as the former was beyond their power; for the fact had to be faced that the plebeians had no gentile institutions, and to create them was impossible. The difficulty was overcome by accepting the principle of agnation upon which the patrician gens was constructed, and establishing an agnatic circle of kinsmen (perhaps at first limited to the sixth degree) to which the gens as a collective body should be postponed in the case of the patricians, and which should come in place of it in the case of the plebeians. It was not perfect equalization, but the nearest approach to it that the circumstances permitted. The difference was that, when the agnates of a plebeian intestate failed, his inheritance was vacant; whereas, on failure of those of a patrician, there was devolution to his gens in its collective capacity. Two interpretations put upon the statute had an important bearing in this connection, viz. (I) that, if the nearest agnates in existence declined the succession, those next in degree were not allowed to take it; and (2) that no female agnate could take it more remote than a sister of the deceased intestate. The division among two or more agnates was always per capita, not per stir pes.
The order of intestate succession thus established by the XII. Tables, which prevailed until amended by the praetors probably in the 8th century of the city, was first to the sui heredes of the deceased, next to his nearest agnate or agnates, and finally, if the deceased was a patrician, to his gens.i His sui heredes, speaking broadly, were those of his descendants in his potestas when he died who by that event (or even after it, but before his intestacy became manifest) became sui juris, together with his wife in manu (who, as regarded his succession, was reckoned as a daughter); but they did not include children whom he had emancipated or daughters who had passed in manum of a husband. Emancipated children did not even come in as agnates on failure of sui; for emancipation severed the tie of agnation as well as that of potestas. For the same reason no kinsman who had been emancipated, and so cut off from the family tree, could claim as an agnate; for those only were agnates who were subject to the same patria potestas, or would have been had the common family head been still alive.
The opening of a succession (technically delatio hereditatis) in favor of sui heredes, whether in virtue of a testamentary institu ~ tion or by operation of law on intestacy, at once invested ~1 them with the character, rights and responsibilities of 0 0 IS. heirs. No acceptance was necessary, nor, accordfng to the rules of the jus civile, was any declinature competent. They had been all along in a manner joint owners with their parent of the family estate, which by his death had become, nominally at least, an inheritance; and, as he had not thought fit to terminate their interest in it by emancipating or disinheriting them, they were not now allowed to disown it. Hence they were spoken of as necessary heirs (heredes sui et necessarii). A slave, too whom his owner had instituted in his testament with gift of liberty was a necessary heir: he could not decline, and was invested with the character of heir the moment the testator died. Not so with stranger institutes or agnates taking on intestacy: they were free to take or reject the inheritance as they saw fit; consequently, an act of acceptance (aditio) was necessary on their part to make them heirs.
This was a formal declaration before witnesses, which got the name ,of cretzo.2 It was not unusual for a testator, in instituting an heir, to require that he should make a formal declaration of acceptance within a limited time, failing which his right should pass to a substitute, who in turn was required to enter within a certain time; and so on with any number of substitutes, the series ending with one of his slaves, who became heir without entry, and thus saved the testator from the disgrace of post mortem bankruptcy in the event of the inheritance proving insclvent. The uti tegassit of the Tables, as interpreted by the pontiffs, conferred upon a testator very great latitude of testamentary disposition, even to the extent of disherison of sui heredes. This was a course, however, that was probably rarely resorted to unless when a child had been guilty of gross ingratitude, or when the parent had reason to believe his estate was insolvent and desired to protect his children from the responsibilities of inheritance. Usually his sui, if he had any, would be his institutes, and the purpose of the testament either to apportion the estate amongst them as bethought expedient, or to give him an opportunity of appointing tutors, bequeathing legacies, or enfranchising slaves. On intestacy the sui took equally but per stirpes; that is to say, grandchildren by a son who had predeceased or been emancipated, but who themselves had been retained in their grandfathers potestas, took amongst them the share to which their father would otherwise have been entitled, instead of taking equal shares with their surviving uncles. It was by no means unusual, when the whole inheritance descended to sons, for them to hold it in common for many years as quasi partners (consortes); but any one of them was entitled at any moment to claim a partition which was effected judicially, by an arbitral procedure introduced by the XII. Tables, termed a judicium (or arbitrium) familiae erciscundae. Where two or more strangers were instituted testamentarily, whether to equal or unequal shares, if one of them failed either by predecease or declinature his share accrued ipso juTe to the others; for it was a rule that early became proverbial that a man could not die partly testate and partly intestate. There was the same accrual among agnates on intestacy; and both they and stranger testamentary institutes had the same action for division of the inheritance that was made use of by sui heredes.
According to Gaius it was as a stimulus to heirs to enter as soon as possible to an inheritance that had opened to them, and thus make early provision alike for satisfying the claims of creditors of the deceased and attending to his family Usucaplo sacra, that the law came to recognize the somewhat remarkable institution of usucapion or prescriptive acqui- herede, sition of the inheritance in the character of heir (usucapio pro herede). Such usucapion was impossible-there was no room for it-if the deceased had left sui heredes; for the inheritance vested in them the moment he died. But, if there were no sui heredes, then any person taking possession of the property that had belonged to the deceased, and holding it for twelve months without interruption, thereby acquired it as if he were heir: in fact, according to the views then held, he acquired the inheritance itself. Gaius characterizes it as a dishonest acquisition, inasmucl~ as the trsucapient knew that what he had taken possession of was not his. But, as already explained, the usucapion of the XII. Tables did not require bona fides on the part of the uscapient; he might acquire ownership by prolonged possession of what he knew did not belong to him so long as he did not appropriate it theftuously, i.e. knowing that it belonged to another. But an inheritance unappropriated by an heir who had nothing more than a right to claim it belonged in strictness to no one; and there was no theft, therefore, when a person took possession of it with a view to usucapion in the character of heir, There can be little doubt that on the completion of his possession he was regarded as heir just as fully as if he had taken under a testament or as heir-at-law on intestacythat is to say, that he was held responsible to creditors of the deceased and required to charge himself with the family sacra. Gaius does not say as much; but both the Coruncanian and the Mucian edict imposed the latter burden upon him who had usucapted by possession the greater part of a deceased persons estate; and it is but reasonable to suppose that the burden of debts must in like manner have fallen on the usucapient or usucapients in proportion to the shares they had taken of the deceaseds property.
i Gai. ii. 164173. Cic. de leg. ii. 48, 49.
The Law of Obligations.In his Liber Aureorum Gaius says bligations arise from either contract or delict, or miscellaneous Law of causes (variae causarum figurae). But those arising obliga. from contract fill a place in the later jurisprudence lions, vastly greater than those arising from delict. In the XII. Tables it was different. In them delicts were much more prominent than contractswrongs entitling the sufferer to demand the imposition of penalties upon the wrong-doer that in most cases covered both reparation and punishment. The disproportion in the formulated provisions in reference to the two sources of obligation, however, is not surprising. For, first of all, the purpose of the decemviral code was to remove uncertainties and leave as little as possible to the arbitrariness of the magistrates. In nothing was there more scope for this than in the imposition of penalties; and, as different offences required to be differently treated, the provisions in reference to them were necessarily multiplied. In the next place, the intercourse that evokes contract was as yet very limited. Agriculture was the occupation of the great majority; of trade and commerce there was little; coined money had hardly begun to be used as a circulating medium. Lastly, the safeguards of engagement then lay to a great extent in the sworn oath or the plighted faith, of which the law (jus) hardly yet took cognisance, but which found a protection quite as potent in the religious and moral sentiments that had so firm a hold on the people.
It may be askedIf a man purchased sheep or store cattle, a plough, a toga, a jar of wine or oil, had he no action to compel delivery, the vendor no action for payment of the price? Contract Did the hire of a horse or the loan of a bullock create no ~ obligation? Was partnership unknown, and deposit, gener and pledge, and suretyship in any other form than that of vadimonium? One can have no hesitation in answering that, as transactions of daily life, they must all have been more or less familiar. It does not follow, however, that they were already regulated by law and protected by the ordinary tribunals. Modern historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commodatum), deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet barely recognized by law. The law recognized conveyance but hardly contract. Sale was the offspring of barterof instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side. The substitution of coined money for the raw metal can hardly have effected any radical change:
the ordinary practice of those early times must still have been ready-money transactionan instant exchange of ware for price; and it can enly have been when, for some reason or other, the arrangement was exceptionally for delivery or payment at a future date, say next market day, that obligation was held to have been created. Was that obligation enforceable by the civil tribunals?
Some jurists hold that it wasthat at no time were the jus genhium Contracts outside the protection of judicial remedies, although by a simpler procedure than that resorted to for enforcement of the contracts of the jus civ-ile. But two provisions in the XII. Tables seem to prove that it was not so euforceable when they were drawn up. The first is that already referred to as recorded by Justinian that, where a thing was sold and delivered, the property, nevertheless, was not to pass until the price had been paid or sureties (vades) for it accepted by the vendor. Far from being a recognition of the obligatory nature of the transaction, this provision is really a recognition of the inability of the law to enforce payment of the price by the vendee; it is a declaration that, on the latters failure to pay, the vendor, unprotected by any personal action, should be entitled to get back the thing sold as still his own, no matter in whose hands he found it. The second related to the case of a person who had bought a victrm for sacrifice, but had failed to pay for it. A real action for its revindication by the seller after it had been consumed on the altar was out of the question; so he was authorrzed by the Tables, by the process of pignoris capio, at his own hand to appropriate in satisfaction a sufficient equivalent out of the belongings of the purchaser, against whom he had no personal action.
It was a principle of the law of Rome through the whole of its history, though in course of time subject to an increasing Requis- number of exceptions, that mere agreement between lies of two persons did not give him in whose favor it was binding conceived a right to demand its enforcement. To contract, entitle a man to claim the intervention of the civil tribunals to compel implement of an engagement undertaken by another, it was necessary (subject to those exceptions)
either that it should be clothed in some form prescribed or recognized by the law, or that it should be accompanied or followed by some relative act which rendered it something more than a mere interchange of consent. Under the jurisprudence of the XII. Tables the formalities required to elnvate an agreement to the rank of contract and make it civilly obligatory sometimes combined ceremonial act and words of style, sometimes did not go beyond words of style, but in all cases took place before witnesses. Dotis dictio, the undertaking of a parent to provide a dowry with his daughter whom he was giving in marriage, and vadimonium, the guarantee of a surety for the due fulfilment of the undertaking either of a party to a contract or a party to a litigation (some think only the latter), probably required nothing more than words of style before persons who could if necessary bear witness to them; whereas an engagement incident to a mancipation, or an undertaking to repay borrowed money, required in addition a ceremony with the copper and the scales. This undertaking to repay arose from the contract of nexum, which was, it is thought, older than the Tables; both it and the verbal contract by sponsio or stipulation, which was younger, require here further consideration.
The Nexal Contract.1The tumults and seditions so frequent in Rome during the first two centuries of the Republic are as frequently attributed by ancient writers to the Causes of abuses of the law of debt as to any other cause, social plebeian or political. The circumstances of the poorer ple- borrowbeians were such as to make it almost impossible to avoid borrowing. Their scanty means were dependent on the regular cultivation of their little acres, and on each operation of the agricultural year being performed in proper rotation and at the proper season. But this was every, now and again interfered with by wars which detained them from home at seed-time or harvest, practically rendering their farms unproductive, and leaving them and their families in straits for the commonest necessaries of life.
The practice of lending per lib-ram was doubtless of great antiquityindeed, the intervention of the scales was a necessity when money or what passed for it had to be weighed N, instead of counted; and not improbably old custom conceded to a lender who had thus made an advance in the presence of witnesses some very summary and stringent remedy against a borrower who failed in repayment. How, after the Servian reforms, it was subjected to much the same formalities as were required for mancipation has been shown already. With the introduction of a coinage the transaction, instead of being per libram simply, became one per aes et libram; the scales were touched with a single piece, representing the money which had already been or was about to be paid, a formula recited whereby the obligation of repayment was imposed on the borrower, and an appeal fnade to the witnesses for their testimony. Unfortunately this formula is nowhere preserved. Huschke assuming that the lender was the only speaker, formulates it thus quod ego tibi mille libras hoc acre aeneaque libra nexas dedi, eas tu mihi post annum jure nexi dare damnas esto whereas with this coin and these copper scales I have given thee a thousand asses, be thou therefore bound jure nexi to repay them to me a year hence. The phrase damnas esto, like the rest of the formula, is unsupported by any conclusive authority; (1905), pp. 49 seq. -.
but, as it is in harmony with the formula which is given by Gaius for dissolving an obligation of this kind, and with that most frequently employed in the Republic for imposing by a public act liability to pay a fixed and definite sum, it may not be wide of the mark.
What was the effect of this procedure? The question is one not easily answered. Brinz expressed the opinion that the creditor was entitled in virtue of the nexum to take his debtor into custody at any time when he considered such a course necessary for his own protection, even before the conventional term of repayment that the debtor was in bonds, virtually a pledge, from the very first, and the tightness or looseness of them a matter in the discretion of his creditor.i Voigt holds that the nexum did not give the creditor any peculiar hold over his debtor, and that on the latters failure to repay an ordinary action was necessary, to be followed by the usual proceedings in execution if judgment was in favor of the former. These views may be said to be the two extremes; and between them lie a good many others, more or less divergent. The difficulty of arriving at a conclusion is caused to some extent by the ambiguity of the words nexus and nexum. The transaction itself was called nexum and occasionally also nexus; the money advanced was nexum aes (hence nexi, i.e. aeris, da/io); the bond was nexus (of the fourth declension); and the debtor on whom the bond was laid was also nexus (of the second). All this is simple enough. But we find the same word nexus employed by the historians as almost synonymous with vinctusto denote the condition of a debtor put in fetters by his creditor. That might be the condition either of a nexal borrower or of an ordinary judgment-debtor. The former in such a case was doubly nexus; he was at once in the bonds of legal obligation and in those of physical constraint. In many passages in which Livy and others speak of the nexi it is extremely difficult, sometimes impossible, to be sure in which sense they use the word. It is therefore not surprising that there should be considerable diversity of opinion on the subject.f Since Huschke, the great majority of writersVoigt,i Lend and Mitteis are distinguished exceptionsconcur in opinion that the nexal contract entitled the creditor, after expiry of thirty days from the conventional date of repayment of the loan, to proceed against his debtor by manus injectio without any antecedent action or judgment, and failing settlement to detain him, and put him to servile labor, and subject him to servile treatment, until the loan was repaid. The parallel of such a course is to be met with amongst many ancient nationsJews, Greeks, Scandinavians, Germans, &c.4 And it was not altogether unreasonable. If a borrower had already exhausted all available means of raising money, had sold or mortgaged everything he possessed of any value, what other course was open to him in his necessity except to impledge himself? lhat the creditor should have been entitled to realize the right he had thus acquired without the judgment on it of a court of law is equally intelligible. It was just a case of regulated self-help. The nexal contract was a public act, carried Out in the presence of the five citizen witnesses and libripens, who were witnesses alike of the acknowledgment of indebtedness and of the tacit engagement of the debtor. The only valid objection apparently that could be stated against the creditors apprehension of his debtor in execution was that the indebtedness no longer existedthat the loan had been repaid. But a nexal debt 2 As to the use of the terms nexum and nexus by the classical jurists, see Roby, Roman Private Law (1902), vol. ii. pp. 296 seq.
1 He holds that the obligation created nexo did not impose any immediate liability on the borrower which the lender could enforce without judicial intervention, but that the latter required to proceed against the former in ordinary course, by what he calls an ac/jo pecuniae nuncu pa/ar. Mitteis, ut supra, supports, to a considerable extent, Voigts views as to the necessity of further proceedings after the nexal contract, and rejects the notion of non-judicial Inanus injectio, but regards the actio pecuniae nuncu pa/ar as nonexistent. Cf. Mitteis, Rm. Priva/recht (1908), pp. 137 seq. According to Lenel, Z. d. Sat. Stift. 84 seq., there never existed any nexal contract of loan, and the whole doctrine on the subject has therefore no solid foundation.
See authorities in Brinzs paper in Grunhuts Zeitsclir. i. 25. The Greek phrase was ~-Z o-c~uarL IavstItv. There is a curious style in Marculfus (Form. ii. 27), in which a borrower engages that, until he shall have repaid his loan, his creditor shall have right to his services so many days a week, and shall have power to inflict corporal punishment if there be dilatoriness in rendering them.
could be legally discharged only by nexi liberalio, which also was a solemn procedure per aes el libram in the presence of five citizen witnesses. What need for a judicial inquiry in the presence of facts so notorious? A creditor would rarely be daring enough to proceed to manus injectio if his loan had been repaid; if he did, the testimony of the witnesses to the discharge wotild at once procure the release of his alleged debtor. lt was probably to give opportunity for such proof, if there was room for it, that the XII. Tables required that a creditor who had apprehended a nexal debtor should bring him into court before carrying him off into detention.
Whether there was room for a vindex and for a magisterial addiction of the debtor after sixty days, with power to kill or sell into slavery after addiction, are disputed questions, but there seems no good reason for distinguishing a nexal from a judicatus debtor in these respects. Untenable is the notion at any rate that the nexus by the mere contract was placed in loco servi, or that by arrest he was in a worse position than one condemned for a judgment debt, of whom Quintilian states distinctly that he still retained his position in the census and in his tribe. Many a time when the exigencies of the state required it, were the nexi temporarily released in order to obey a call to armsto fulfil the duty incumbent on them as citizens. The nexal debtors position after arrest in regard to his family rights is obscure. If originally they shared his nexal condition, this did not long continue to be the law. If he was a house-father he seemingly still retained his manus over his wife and poles/as over his children. Their earnings legally belonged to him, and did not fall to his creditor. It was the body of his debtor that the creditor was entitled to, and too often he wreaked his vengeance on it by way of punishment; there was as yet no machinery for attaching the debtors goods in substantial reparation for the loss caused by his breach of contract.
The abuses to which this system of personal execution gave rise were great. Livy tells us that in the year 428 tx.c. (326 nc.) a more than ordinarily flagrant outrage committed by a ~iefflJan creditor upon one of his young nexi, who had given himself up as responsible for a loan contracted by his deceased aw. father, roused the populace to such a pitch of indignation as to necessitate instant remedial legislation. The result was the Poetilian law (Lex Poetilia Papiria). So far as can be gathered from the meagre accounts of it we possess, it contained at least these three provisions(I) that fetters and neck, arm or foot blocks should in future be applied only to persons undergoing imprisonment for crime or delict; (2) that no one should ever again be the nexus of his creditor in respect of borrow.ed money; and (3) that all existing nexi should be released. The first was intended to prevent unnecessary restraint upon judgment-debtors formally given over to their creditors. The second did not necessarily abolish the contract of loan per aes et libram, but only what had hitherto been an ipso jure consequence of itthe creditors right to incarcerate- his debtor without either the judgment of a court or the warrant of a magistrate. For the future, execution was to be done against a borrower only as a judgment-debtor formally made over to his creditor by magisterial decree, and under the restrictions and limitations imposed by the Poetilian law itself. This very soon led to the disuse of nexal obligation; once it was deprived of its distinctive processual advantages it rapidly gave place to the simpler engagement by stipulation usually enforceable per condictionem. As for the release of the then existing nexi, Cicero, Livy and Dionysius say nothing of any condition annexed to the boon the statute conferred upon them; but Varro limits it to those gui bonam copiam jurarunt those apparently who were able to declare on oath that they had done their best and could do no more to meet their creditors claims.5 Such a limitation can hardly be called unreasonable, even were we to assumeas probably we ought to dothat the release spoken of was only from the bonds of physical restraint, not from those of legal obligation..
Introduction of 1/fe Stipulation.6Few events in the history of the private law were followed by more far-reaching consequences than the introduction of the stipulation. It exercised an enormous influence on the law of contract; j,uu1~ for by means of it there was created a unilateral Ofl~
obligation that in time became adaptable to almost every conceivable undertaking by one man in favor of another. By the use of certain words of style in the form of question and answer any lawful agreement could thereby be made not only The meaning of these words, however, is disputed. See Greenidge, Infamia, 206, and authorities there cited.
6 Literature: Gneist, Die formellen Vertrage d. rm. Rech/s (Berlin, 1845), pp. 113 seq.; Heimbach, Die Lehre yam Creditum (Leipzig, 1849); Danz, Der sacrale Schutz im rm. Rechtsverkehr (Jena, 1857), pp. 102142, 236 seq.; Schlesinger, Zur Lehre von den Formalcon/racten (Leipzig, 1858), 2; Voigt, Jus. nat., &c., d. Rm. vol. ii. 33, vol. iv. Beilage xix,; Bekker, Aktionen, i. 382401; Karsten, Die Stipulation (Rostock, 1878); Voigt, Rm. Rechtsgeschichte, 7; Girard, Manuel. 483 seq.; Karlowa, Rom-. Rechtsgeschichte, ii. 699 seq.
morally but legally binding, so that much which previously had no other guarantee than a mans sense of honor now passed directly under the protection of the tribunals. Stipulations became the complement of engagements which without them rested simply on good faith, as when a vendor gave his stipulatory promise to his vendee to guarantee peaceable possession of the thing sold or its freedom from faults, and the vendee in turn gave his promise for payment of the price. The question and answer in the form prescribed by law made the engagement fast and sure. Hence the generic name of the contract; for Pauls derivation of it from stipulum, firm (which itself comes from stipes, a staff), is to be preferred to that of Varro and Festus from stips (money), or to a later and rather fanciful one from stipula (a straw). It was round the stipulation that the jurists grouped most of their disquisitions upon the general doctrines of the law of contractcapacity of parties, requisites of consent, consequences of fraud, error and intimidation, effects of conditions and specifications of time, and so forth. It may well be said, therefore, that its introduction marked an epoch in the history of the law.
There is, however, no certainty either as to the time or as to the manner of its introduction. So far as appears, it was unknown at the time of the compilation of the XII. Tables, at least in private life; one of the first unmistakable allusions to it is in the Aquilian law of about 287 s.c. The mention of it in that enactment, however, is with regard to a phase of it which cannot have been reached for many years after it had come into use; and the probability is that it originated before the middle of the 5th century of the city, its first statutory recognition being in the Silian law introducing the tegis actio per condictionem (infra, p. 550). In its earliest days it bore the name not of stipulatio but of sponsio, for the reason that the interrogatory of the party becoming creditor was invariably formulated with the word spondese.g. centum dare spondes?while the answer was simply spondeo.
There has been much speculation as to the origin of the contract. Modern criticism has three theories: (I) that it was the verbal remnant of the nexum, after the business with the copper S and the scales had gone into disuse; (2) that it was evolved origin, out of the oath(jusiurandum orsponsio)at the great altar of Hercules and the appeal to Fides (supra, p. 534); (~) that it was imported from Latium, which it had reached from some of the Greek settlements farther south. The last view is the most probable, though there is much to be said also in favor of the second theory.f Verrius Flaccus, as quoted by Festus, connects it with the Greek oir~vIf iv and rirovI,i; and Gaius incidentally observes that it was said to be of Greek origin. A libation (o-iropIi~) is frequently referred to by Homer and Herodotus as an accompaniment of treaties and other solemn covenantsa common offering by the parties to the gods which imparted.~ sanctity to the transaction. Leisti is of opinion that the practice passed into Sicily and Lower Italy, but that gradually the libation and other religious features were dropped, although the word eirov~ was retained in the sense of an engagenient that bound parties just as if the old ritual had been observed, and that it travelled northward into Latium and thence to Rome under the name of sponsio, being, used in the first instance in public life for the conclusion of treaties, and afterwards in private life for the conclusion of contracts. The meaning of spondes as a question by a creditor to his debtor (although latterly, we may well believe, unknown to them) thtis came to be: Do you engage as solemnly as if the old ceremonial were gone through between us? There are many examples of such simplification of terms, none more familiar than when a man says, I give you my oath upon it, without either himself or the individual addressed thinking it necessary that the form should be gone through.
It is not a little remarkable that the use of the words spondes and spon-deo in contracting were, down at least to the time of Gaius, confined in Rome to Roman citizens. The ~ture sponsio as a form of contract was essentially juris civilis. So at first were the later and less solemn forms of stipulationpromittisne? promitto, fideipromittisne? fideipromi Ito. Gaius speaks of these latter, along with such simple forms as dabisne? dabo faciesne? faciam, as juris genhium, i.e. binding even between Romans and peregrins. Such they became eventually, but peregrins probably could not make use of the stipulation until a good while after the lex Silia. Yet although juris civilis, both the sponsio and the later forms were See the arguments in favor of this theory in Girard, Manuel, 4th ed. pp. 484 sqq.
2 Graeco-Italische Rechtsgeschichte (Jena, 1884), pp. 46570. Upon the ponsionis vinculum internationally, see Livy, ix. 9.
from the first free from many of the impediments of the earlier achus legitimi. No witnesses were required to assist at them; and they were always susceptible of qualification by conditions and terms. It was long, however, before parties had much latitude in their choice of language; spondeo was so peculiarly solemn that no equivalent could be admitted; and even the later styles may be said to have remained stereotyped until well on in the Empire. And it was the use of the words of style that made the contract. It was formal, not material; that is to say, action lay upon the promise the words embodied, apart from any consideration whether or not value had been given for it. In time this serious disadvantage was abated by praetorian exceptions and otherwise, as will be noted below. Originally the stipulation was employed only in regard to engagements whose terms were in every respect definite and certain, and was enforced by the legis achio per condictionem, or sometimes possibly by actio sacramento in personam. But in time it came to be employed in engagements that were from the first indefinite. This seems to have been due to the intervention of the praetors, and to have received special impetus after the system of the legis actiones had begun to give place to that per formulas. The remedy in such a case was not spoken of as a condiction but as an actio ex stipulatu.
iv. The Actions of the Law.
The Legis Actiones generally.3We owe to Gaius the only connected (though, owing to the state of the Verona MS., rather fragmentary) account we possess of the legis actiones, as the system of judicial procedure was called which prevailed in Rome down to the substitution of that per formulas by the Aebutian and Julian lawsthe first either in the 6th or early in the 7th century of the city, and the second in the age of Augustus. He tells us that as genera agendi or generic forms of process they were five in number, each taking its name from its characteristic feature, viz. (I) sacramento, (2) per judicis postulationem, (3) per condichionem, (4) per manus injectionem, and (5) per pignoris capionem. The third was unknown in the decemviral period, and was introduced by the Silian law formerly mentioned. The other four were all more or less regulated by the XII. Tables, but must in some form have been anterior to them. It is utterly impossible, however, to say of any one of them, apart from the condictes, at what time it was introduced, or what was the statute (lex) by which it was sanctioned; it may well be that they were not of statutory introduction at all, but were called legis actiones simply because recognized and indirectly confirmed by the Tables. In character and purpose each of the five had its peculiarities. The first three were directly employed for determining a question of right or liability, which, if persistently disputed, inevitably resulted in a judicial inquiry. The fourth and fifth might possibly result in judicial intervention; but primarily they were proceedings in execution, in which the- party moving in them worked out his own remedy. As regards their comparative antiquity, there is much to be said for the opinion of Jhering and Bekker that manus injechio, as essentially nothing more than regulated self-help, must have been the earliest of the five, and that the legis actio sacramento and the judicis postulatio must have been introduced in aid of it, and to prevent too hasty resort to it where there was rOom for doubt upon questions either of fact or law.
1 The literature on the subject is very voluminous, great part of it in periodicals. Amongst the leading works are those of Keller, Der ram. Civilprozess u. die Achionen (6th ed. by Wach, Leipzig. 1883), ~ 1221; Bethmann-Hollweg, Der rm. Civilprocess (3 vols., Bonn, 1864-1866), the first volume of which is devoted to the legis actiones; Buonamici, Delle Legis Actiones nell antico diritto romano (Pisa, 1868); Bekker, Die Akhionen d. rm. Privatrechts (2 vols.. Berlin, I87ff873), particularly vol. i. pp. 1874; Karlowa, Der rm. Civilprozess zur Zeit d. Legisactionen (Berlin, 1872); Padeletti, Le Legis Actiones, in the Archivio G-iuridico (1875), XVII, 321 sqq.; Schultze, Privatrecht u. Prozess in ihrer Wechselbeziehung (Freiburg, 1883), i. 439-532, in which some novel and not unimportant views are presented; Jobb-Duval, Etudes sur lhistoire de 1ff procedure civile chez les Romains (1896), vol. i.; Girard, Organisationjudiciaire, i. 1520, 56104, 167252.
In the three judicial legis actiones the first step was the in jus vocatio or procedure for bringing the respondent into court, minutely regulated by the provisions of the first of the XII. Tables. This was not done by any officers of the law; there was no writ of summons of any sort; the party moving in the contemplated litigation had himself to do what was needed. If the defendant did not appear, there could be no decree by default. Once before the magistrate (consul or praetor), the plaintiff stated his contention. If admitted or not disputed by the defendant, the magistrate at once pronounced his decree, leaving the plaintiff to work out his remedy as the law prescribed. But, if the case presented was met either with a denial or counterclaim, the magistrate remitted it for trial either to a collegiate tribunal or to one or more private citizens as judges or arbiters: The act of remit was technically litis con/es/a/jo or ordinatzo judiczi, the first so named because originally the parties called upon those present to be witnesses to the issue that was being sent for trial. This was the ordinary practice under both the system of the legis ac/jones and that of the formulae, and continued to exist until the time of Diocletian. In the first stage the proceedings were said to be in jure, and the duties of the magistrate-in reference to them were part of his jurisdictio; in the second they were said to be in judicio, those presiding in it being styled judices. All that the judge or judges had to do was to pass judgment on the question remitted to them. They were right-declarers only, not right-enforcers. If their judgment was for the plaintiff, and he failed to obtain an amicable settlement, he had himself to make it operative by subsequent proceedings by manus injectio, and that under the eye of the magistrate, not of the judge.
From an enumeration in Cicero of a variety of causes proper to the centumviral court the conclusion seems warranted that it was its peculiar province to decide questions of quiritary right in the strictest acceptation of the word. They were all apparently in his time real actions (vindicationes)claims of property in land or of servitudes over it, of right as heir under a testament or in opposition to it, of rights of tutory and succession ab intestato as agnate or gentile, and so forth. It was a numerous court of Quirites, determining by its vote the question of quiritary right submitted to it. Many such questions in course of time, and possibly at first of express consent of parties, came to be referred to a single judge; but some, and notably claims of inheritance under or in opposition to a testament, were still frequently remitted to the centumviral court even in the classical period. Personal actions, however, do not appear ever to have fallen within its cognizance: they were usually sent to a single judgea private citizenselected by the parties, but appointed by the magistrate, and to whom the latter administered an oath of office. But, in a few cases in which an action involved not so much a disputed question of right as the exercise of skill and discretion in determining the nature and extent of a right that in the abstract was not denied, the remit was to a plurality of private judges or arbiters, usually three.
The Legis Actio Sacramento.1The characteristic feature of this legis ac/jo, as described by Gaius, was that the parties, after a somewhat dramatic performance before the Sacramento. magistrate, each challenged the other to stake a certain sum, the amount of which was fixed by the Tables, and which was to abide the issue of the inquiry by the court or judge to whom the cause was eventually remitted. This stake Gaius refers to indifferently as sacramentum, summa sacramenti, and poena sacramenti. The formal question the court had to determine waswhose stake had been justified, whose not (cujus sacramentum justuni, cujus injustum); the first was returned to the staker, the second forfeited originally to sacred and afterwards to public uses. But the decision on this formal question necessarily involved a judgment on the matter actually in dispute, and, if it was for the plaintiff, entitled him, failing an amicable arrangement, to take ulterior steps for making it effectual. The procedure was still employed in the i To the literature in the last note may be added Asverus, Die legis ac/jo sacramenti (Leipzig, 1837); Huschke (rev. Asverus), in Richters Krit. Jahrbuch, vol. iii. (1839), pp.665 sqq.; Stintzing, Verhaltniss d. 1. a. sacramento sum Verfahren durch sponsio praejudicialis (Heidelberg, 1853); Danz, Der sacrale Schutz, pp. 151221; Danz, Die 1. a. Sacram. u. d. Lex Papiria, in the Zeitschr. f. Rechtsgeschichte, vol. vi. (1867), pp. 339 sqq.; Huschke, Die Multa u. d. Sacramentum (Leipzig, 1874); Lotniar, Zur 1. a. sacramento in rem (Munich, 1876) Brinz (crit. Lotmar), Zur Contravindication in d. 1. a. sacr., in the Festgabe In Spengels Doctor-Jubilum (Munich, 1877), pp. 95146; Munderloh, Ueber Schein u. Wirklichkeit an d. I. a. sacramenti, in the Z. f. Rech/sgesch. vol. xiii. (1878), pp. 445 sqq.; E. Roth, in the Z. d. Savi guy Stiftung, vol. iii. (1882), Rom. Abtheil. Pp. 121 sqq.; Fioretti, Leg. oct. sacramento (Naples, 1883); Jhering, Reich u. Arm im aitrm. Civilprozess, in his Scherz u. Erns~ in der Jurisprudenz (Leipzig, 1885), pp. 175 sqq.; Schulin, Lehrbuch, pp. 525 sqq.; Pfluger, Die legis ac/jo sacramento (Leipzig, 1898).
time of Gaius in the few cases that continued to be referred to the centumviral court, but otherwise it had been long in disuse.
Gaius explains that it was resorted to both in real and personal actions. Unfortunately the MS. of his Institutes is defective in the passage in which he described its application to the latter. We possess the greater part of his account of the ac/ia in rem as employed to raise and determine a question of ownership; but his illustration is of vindication of a slave, and not so interesting or instructive as the proceedings for vindication of land. These, however, can be reconstructed with tolerable certainty with the aid derived from other sources, especially from Cicero, Varro and Gellius.
The parties appeared before the magistrate, each carrying a rod (festuca) representing his spear (quir or has/a), the symbol, as Gaius says, of quiritarian ownership. The first word was spoken by the raiser of the action, and addressed to his opponent: I say that the land in question tion] is mine in quiritary right (meum esse exjure quirits urn); wherefore I require you to go there and join issue with me in presence of the magistrate (in jure manum conserere). Thereupon, according to the earliest practice, the magistrate and the parties, accompanied by their friends and backers, proceeded to the ground for the purpose: the court was transferred from the forum to the land itself. As distances increased, however, and the engagements of the consuls multiplied, this became inconvenient. Instead of it, the parties went to the spot without the magistrate, but on his command, and there joined issue in the presence of their seconds, who had been ordered to accompany them, and who probably made a report of the due observance of formalities on their return. Still later the procedure was further simplified by having a turf or sod brought from the place beforehand, and deposited a few yards from the magistrates chair; and, when he ordered the parties to go to the ground and join issue. they merely brought forward the turf and set it before him, and proceeded to make their formal vindications upon it, as representing the whole land in dispute.
The ritual was as follows: The raiser of the action, addressin his adversary, again confirmed his ownership, but this time wit the significant addition: As I have asserted my right by word i of mouth, look you, so do I now with my vindicta; and therewith he touched the turf with his rod, which was called vindic-ta when employed for this purpose. The magistrate then asked the other party whether he meant to counter-vindicate. If he replied in the negative or made no response, there was instant decree (addictio) in favor of the first party, and the proceedings were at an end. If, however, he counter-vindicated, it was by repeating the same words and going through the same form as his adversary: I say that the land is mine in quiritary right, and I too lay my vindicta upon it. The verbal and symbolical vindica. tion and counter-vindication completed what was technically the manus consertio. The parties were now in this position: each had asserted his ownership, and had figuratively had recourse to arms in maintenance of his contention. But the matter was to be settled judicially, so the magistrate once more intervened and ordered both to withdraw from the land. The dialogue was then resumed, the vindicant demanding to know from his opponent upon what pretence (causa) he had counter-vindicated. In the illustration in Gaius he avoided the question and pleaded the general issue:
I have done as is my right in laying my vindicta on the land. But there can be little doubt that in certain circumstances the counter-vindicant would deem it expedient to disclose his title. This was very necessary where he attributed his right to a conveyance upon which two years possession had not yet followed; in such a case he had to name his author (auctorem laudare) ii he desired to preserve recourse against the latter on the warranty implied in the mancipation. That probably entailed a suspension of the proceedings to allow of the authors citation for his interest; and on their resumption, if he appeared and admitted his auctoritas he was formally made a party to the action.
The proceedings had now reached the stage at which the sacrament came into play. The first challenge came from the vindicant Since you have vindicated unrightfully, I challenge you with a sacrament of 500 asses, to which the counter-vindicant responded, And I you. This was technically the sacramento provoca/io. The magistrate thereupon remitted the matter for trial to the centumviral court, or to a single judge, having declared what exactly was the question put in issue which the court or judge was to decide. The parties then called upon the bystanders to be witnesses of the magistrates remit, this appeal to witnesses being, as is generally held, the li/is con/es/a/jo.2 At the same time, according to Gaiuss account of the procedure, the magistrate required sureties from the parties for the eventual payment by him who was unsuccessful of the sacrament he had offered to But see Colassak, Die Litis con/estation (1889), pp. 69 sqq., for a different view.
stake, and which became a forfeit to the exchequer. (The original practice probably was for the stake to be deposited by both parties in the hands of the pontiffs before they were heard by the judge or judges after judgment that of the gainer was restored to him, while that of the loser was retained for religious uses.) The magistrate also made arrangements for the interim possession of the land by one or other of the litigants (but preferably, it is thought, by the possessor), taking security from him that, if he was eventually unsuccessful, it should be returned to his opponent, along with all the fruits and profits drawn in the interval. At the trial, as both parties were vindicants, there must have been a certain burden of proof upon both sides. The vindicant, one may believe, must have been required to establish in the first instance that the thing he claimed had at some time been his; and then, but probably not till then, the counter-vindicant would have to prove a later title in his person sufficient to exclude that of his opponent. The judgment, as already observed, necessarily involved a finding on the main question; but in form it was a declaration as to the sacrament:
that of the party who prevailed was declared to be just, and that of his unsuccessful opponent unjust.
Looking at this ritual as a whole, the conviction is irresistible that it could not have been so devised by one brain. It reveals and combines three distinct stages in the history of procedure appeal to arms and self-help, appeal to the gods and the spiritual power, appeal to the civil magistrate and his judicial office. As Gellius says, the real and substantial fight for might, that in olden days had been maintained at the point of the spear, had given place to a civil and festucarian combat in which words were the weapons, and which was to be settled by the interposition of the praetor. But this does not explain the sacramentum. Various theories have been proposed to account for it. According to Gaius, it was nothing more than the sum of money staked by each of the parties, which was forfeited originally to sacred and afterwards to public uses by him who was unsuccessful, as a penalty for his rashly running into litigation; and substantially the same explanation is given by Festus in one of his definitions of the word. But this is far from satisfactory, for it involves the apparent absurdity of declaring that a penalty imposed by law, could be just in the case of the party who was in the right, and unjust in the case of him who was in the wrong. There is another definition in Festus a thing is said to be done sacramento when the sanction of an oath is interposed that lends support to the opinion that there was a time when parties to a question of right were required to take an oath to the verity of their respective assertions; that they were also required concurrently to deposit five bullocks or five sheep, according to the nature or value of the thing in dispute, to abide the issue of the inquiry;i that the question for determination was whose oath was just and whose unjust; and that he who was found to have sworn unjustly forfeited his cattle-or sheep as a piamentunla peace-offering to the outraged deitywhile the other party reclaimed his from the repository in which they had been detained in the interval.2 It was made an opportunity doubtless by the priests to get some profit for their temples.
i It was the Lex Aternia Tarpe-ia of the year 454 BC. that commuted the five bullocks and five sheep into 500 and 50 lb of copper respectively (Cic. De Rep. ii. 35, 60, where the words usually printed de multae sacramento should read de multa et sacramento). See Festus, s.v. Peculatus (in Bruns, Fontes). As to the relative value of oxen and sheep, it is interesting to note that, by the customs of the modern Ossetians, ten sheep are also held to be equivalent to one ox. See Kovalewsky, Coutume contemporaine, p. ii. For the pounds weight of raw metal the XII. Tables substituted the same number of asses, declaring that 500 should be the summa sacramenhi when the cause of action was worth i000 asses or more, 50 when worth less or the. question one of freedom or slavery (Gai. iv. 14).
2 Varro, De L. L. v. i8o, says that, even after the summa sacramenti had been converted into money, it was deposited ad pontem some bridge, he does not say which, where there was a sacred: pound, (Curiously enough, the Irish spelling of pound is Pont; Skeats Etym. Dict., sv. Pound,) A most ingenious and plausible explanation was suggested by Danz in 1867, in the Ze~tschr. f. Rechtsgesch. vi. 359. Recalling the facts that there had been discovered in the Tiber Island sacella of Jupiter J uranus and Dius Fidius, the two deities to whom solemn oaths were ustially addressed, and that the island was spoken of as inter duos pontes, because connected with both banks of the river by bridges bearing no particular names, he suggested that the island may have been the place to which disputants resorted to make their sacramenta, and that the cattle, sheep or money were deposited in a place for the purpose before the bridge was crossed. Much the same explanation was offered by Huschke two years later in his book Das alte rmische Jalfr (Breslau, 1869), p. 360, apparently without being aware of Danzs speculation. He adds, on the authority of the Iguvine Tables, that, while bullocks were offered to Jupiter, only sheep were offered to Dius Fidius. The island, he thinks, must have been selected as neutral ground to which all parties might have access, and which obviated intrusion into The writers who adopt this view are far from being unanimous as to details. But there seems to be enough to render it more than probable that, at an intermediate stage between the vera solida vis of ancient times and the vis civilis et festucar-la which Gellius and Gaius depict, there was a procedure by appeal to the gods through means of oaths of verity sworn by the parties, in the manner and with the consequences that have been indicated. That in time it should have dropped out of the ritual is quite in the order of things. Its tendency was to become a mere form, imposing no real restraint on reckless litigation. The restraint was rather in the dread of forfeiture of the sacramental cattle, sheep or money that would follow a verdict that an oath had been unjust. And it must have been felt besides that it was unfair to brand a man asa falseswearer, needing to expiate his offence by an offering to the gods,~ whose oath had been perfectly honest. That he should suffer a penalty for his imprudence in not having taken more care to ascertain his position, and for thus causing needless annoyance to others, was reasonable, but did not justify his being dealt with as one who had knowingly outraged the deity to whom he had appealed. So the oaththe original sacramentumdisappeared, the name passing by a natural enough process to the money which had been wont to be deposited before the oath was sworn, but which now ceased to be an offering in expiation by a false-swearer, and became a mere penalty (forfeited to the state) of rash litigation (poena temere lihigantis). So when praedes later took the place of actual deposits, they became bound as state debtors for the sacramentum.
It may well be assumed that in most cases the finding of the court as to the jtistness or unjustness of the respective sacraments of the parties was the end of the casethat it was at once accepted and loyally given effect to. If in favor of the party to whom interim possession had been given by the magistrate there could be no difficulty; he retained the object in dispute with the fruits and profits he had drawn in the interval between litis contestatio and judgment. If, however, the finding was for the other party, and amicable arrangement was not come to, it is not clear what course was followed. Gaius says that in awarding interim possession (vindicias dicere) the praetor required the grantee to give security by sureties (praedes) to his adversary for restitution to the latter in the event of his success; while Festus preserves a law of the XII. Tables which, according to Mornmsens rendering, declared that, when it turned out that interim possession had been awarded to the wrong party, it was to be in such partys power to demand the appointment of three arbiters who should ascertain the value of the object of vindication and its fruits, and assess the damages due for non-rest,tution at double the amount. This provision seems to have been intended to afford the wrongful interim possessor, who was not in a position to make specific restitution to his successful opponent, a means of avoiding the apprehension and imprisonment which were the statutory consequences of failure to implement a judgment. It is probable that in time this duplicated money payment came to be regarded as the satisfaction to which the successful party in a vindication was entitled in every case in which, no matter for what reason, he was unable to ebtain the thin,g itself and its fruits from their interim possessor; that consequently an arbitrium liti aest-imandae, or reference to arbiters to assess their value, resulted in every such case; and that it was to assure its payment that the praetor required the party to whom the interim possession was awarded to give to his opponent the sureties (praedes litis et vindiciarum) to whom Gaius alludes.i This procedure in the sacramental action for vindication of land was applicable to every kind of manus which a man could claim to have over persons or things, though necessarily with variations more or less important in the ritual. But the sacramental action was also quite common for claims in personam. As regards personal actions, the ordinarily received opinion, which rests, however, on slender foundations, is that from the first the parties met on equal terms; that, if it was a case of money debt, the creditor commenced the proceedings with the averment that the defendant owed him the, sum in question, I say that you ought to pay me (dare oportere)
1000 asses; that this was met with a denial; and that a sacramental challenge followed on either side. All are agreed that the remit was to a single judex after an interval of thirty days from the proceedings -in jure; that where the claim was for a definite sum the plaintiff had to establish his case to the letter; and that his sacrament was necessarily declared unjust if he failed to prove his claim by a single penny. But there is considerable diversity of opinion as to whether by this form of process a claim of uncertain amount the temples of the two gods on the Capitol and Quirinal respectively. And it is to its use as the scene of the sacramental procedure that he attributes its name of holy island, rather than to the fact of its having beeti the seat of the temple of Aesculapius. Huschke recurs to and enforces this view in his Multa uncl Sacrainentum (1874), p. 410, where he does refer to Danzs paper.
f Another theory is that, while the interim possessor could not be proceeded against, the praedes, who were really bound in his place and not merely as accessories, were directly subject to execution as debtors of the state. On this and other theories, see Cunot in Nouv. Rev, hist. pp. 345 sqq.; Girard, Manuel, pp. 32829.
could be insisted onas, for example, for damages for breach of a warranty of acreage of lands sold, or of their freedom from burdens. If it could, then probably the question raised and dealt with sacramento was the abstract one of liabilityWas the, warranty given, and has it failed?the sum due in respect of the breach being left to be dealt with in a subsequent arbitral process (arbitrlum liti aeslimandae).
The Legis Actio per Judicis Postulationem.1The defects of the Verona MS. have deprived us of Gaiuss account of this Per legis actio. There is little elsewhere that can with any Judicis certainty be said to bear upon it. The most important postula- is a note in Valerius ProbusT.PR-I.A. V.P. V.D.,
tjonem. which is generally interpretedte, praetor, judiccln arbitrumve postulo uli des. This petition to the magistrate to appoint a judge, arbiter or arbiters (as the case might be) in all probability was part of the procedure in the action, and that from which it derived its distinctive name. Beyond this all is c,onjecture, alike as to the nature and form of the action and the cases to which it was applicable. Gains says of the legis echo sacramento that it was general, and that it was the procedure that was to be resorted to where no other was prescribed by statute. There are, however, nowhere indications of an express instruction that proceedings in any particular case were to be per judicis postulationem.
While it is impossible with certainty to trace the history of this procedure to its first beginnings, yet the impression is general that it must have originated in the regal period. It is commonly held to have been applicable to the divisory actions, and some others. triable by arbiters as directed by the XII. Tables. Some eminent writers hold that it was employed in certain actions in which equitable considerations were allowed to be taken into accotint by the judge (e.g. the echo fiduciae), and generally in so-called jurgia as contrasted with lites. But this theory has many difficulties to contend with. It has no support from any ancient writer, and it leads to the result that the courts by legis actiones had power to take into consideration questions of bona fides, which is not onl in contradiction with what Gaius says (iv. II), but inconsistent wit their character.
The Legis Actio per Condictionem.1This, the youngest action of the law, was introduced, Gaius says, by the Silian Per law as a means of recovering a liquid money debt coadk- (certa pecunia), and afterwards made available by the tione,n. Calpurnian law for enforcing personal claims (as distinguished from real rights) for anything else definite and certain (omnis res ceria), and in both its forms, therefore, essentially an action of debt. The date of both enactments is matter of controversy, although there is, no question that the Silian was the earlier. Gaius says of it that its purpose was far from obvious, as there was no difficulty in recovering money either by a sacramental action or one per judicis postulationem. But it is probable, as above stated, that money due under a nexal contract was recoverable by neither of these processes, but by the much more summary one of manes injectio, a procedure which would be practically put an end to by the Poetilian law of 326 B.C. We are disposed to regard the lex Silia and the new procedure it authorized as a result of the change made by this last-mentioned statute. To have put off a creditor for money lent either with a sacramental action or one per judicis postulationem, would have been to deprive him of the advantages of menus injectio to a greater extent than was called for. At any rate, it seems to have been provided by the Si]ian law that, *hen a man disputed his liability for what was called pecunia certa credita, and forced his creditor to litigation, the plaintiff was entitled, if he pleased, to require from him an engagement to pay one-third more by f To the literature on p. 548, note I, add Baron, Zur leg. act. per judicis arbitrive postulationem, in the Festgabe fr Aug. W. ,Fleffter (Berlin, 1873), pp. 29 sqq.; Huschke, Multa, &c., pp. 394 sqq.; Adolf Schmidt, Ueber die I. a. per jud. post., in the Zeitschr. d. Say. Shift. (1881), vol. ii., Ram. Abtheil. pp. 145 sqq.; Voigt, XII. Tafeln, vol. i. 61.
2 See on this Mitteis, Romisches Privatrecht (1908), p. 31 and p.
44 n. II.
To the literature on p. 548, note I, add Bekker, Aktioifen, vol. i. cap. 47; Voigt, Jus nahurale, &c., d. Romer (Leipzig, 185675), vol. iii. ~ 98, 99; Baron, Die Cond-ichionem (Berlin, i8aI), ~ 15, 16; Jobb-Duval, Procedure Civile (1896), i. 61 sqq.
way of penalty in the event of judgment being against him, while the soi-disant creditor had similarly to undertake to pay as penalty the same amount in case of judgment in favor of the alleged debtor. Those engagements (sponsio et reshipulahio tertiae partis) were not allowed in every case in which a definite sum of money was claimed per condictionem, but only when it was technically pecunia credita. In Ciceros time credihum might arise either from loan, stipulation or literal contract (expensilatio); but the last dated probably at soonest from the beginning of the 6th century, and stipulation apparently was a result of the Silian law itself, so that the pecunia crediha of this enactment can have referred only to borrowed money. The same phrase, according to Livy, was employed in the Poetilian law; it was thereby enacted, he says, that for pecunia credita the goods, not the body of the debtor, ought to be taken in execution. A connection, therefore, between the Poetilian law and the disuse of the nexum on the one hand, and the Silian law and the introduction of the legis actio per condictionem on the other, can hardly be ignored, and raises a probability that the latter statute was a consequence of the former, and was passed immediately or soon after the year 326 B.C. In the action on the Calpurnian law, it is probable that there was no penalty of a third part on either side. A peculiarity of the legis actio per condichionem is that the plaintiff could when before the magistrate refer the case to the defendants oath (juramentum necessarium). Taking the oath involved absolution. tefusal involved condemnation.
Little is known of the procedure in this legis actio, for, in consequence of the loss of a leaf in the Verona MS., we are without part of Gaiuss account of it. It got its distinctive name, he says, from the condic~io or requisition made by the plaintiff on the defendant, whom he had brought into court in the usual way, to attend again on the expiry of thirty days to have a judge appointed. The procedure on the reappearance of the parties on the thirtieth day (provided a settlement had not been arrived at in the interval) varied according as the action was (1) for a definite sum of money falling under the category of pecunia credita, or (2) for any other definite sum of money or a definite thing or quantity of things. In the action for pecunia crediha the sponsio et reshipulatio tertiae partis were exchanged; and it is probable that, if either party refused on the praetors command so to oblige himself towards the other, judgment was at once pronounced in favor of the latter without any remit to a judex. How the issue was adjusted when the sponsion and restipulation were duly given we are not informed, but, judging by analogy from the procedure in an action for breach of interdict under the formular system, and on the broader ground that there must have been machinery for a condemnation of the plaintiff on his restipulation in the event of his being found in the wrong, it may reasonably be concluded that there were in fact three concurrent issues sent to the same judexthe first on the main question, the second on the defendants sponsion and the third on the plaintiffs restipulation. When a sum of money other than pecunia credita or a thing or quantity of things other than money was sued for, those subsidiary issues were unnecessary if the view above expressed be correct.
As Baron has demonstrated, it was not the usual practice to introduce any words explanatory of the ground of indebtedness when the action was either for money (other than pecunia credita) or for a thing or quantity of things. It might be loan, or bequest, or sale, or purchase, or delict, or unjustifiable enrichment, or any of a hundred causae; it would have to be stated of course before the judge; but in the initial stage before the praetor and in the issue all that was necessary was the averment that the defendant was owing such a sum of money or such a thing. It was for the judge to determine whether or not the averment was established and, in certain cases, that non-delivery was due to the fault of the defendant; the plaintiff, however, was bound to make his averment good to the letter of his claim. In the event of the plaintiff being successful in an action for certa pecunia, but delay was made by the defendant in satisfying the judgment, execution followed in ordinary form. How the matter was arranged in an action on the Calpurnian law for a eerie res is not so obvious. What the plaintiff wanted was specific delivery or damages, and by some the opinion is entertained that he formulated his claim alternatively. Of this there is no evidence; and Gaiuss statement that under the system of the legis achiones condemnation was always in the ipsa res, i.e. the specific thing sued for, leads to the assumption that a judgment for the plaintiff, on which specific implement failed, must have been followed by an arbitrium lit-i aestimandae for assessment of the damages in money, and that execution proceeded thereon as if the judgment had been for a sum of money in the first instance. The general opinion, however, is that the judge to whom the issue was remitted assessed the damages himself and as a matter of coursethat the instruction to him was quanhi res erit, hanham pecuniam condemnabo.
The Legis Acbio per Manus Injectionem.-~This action of the law was ordinarily employed as a means of execution Per against the body of a judgment-debtor or one who had man us confessed liability in the first stage of a process. But, InJec~ in certain cases, it is conjectured, it was thought tionem. proper that a creditor should have a more summary remedy than was afforded by a sacramental action or one per judicis post ulabionem, and he was allowed to apprehend his debtor without any antecedent judgment or confession; in which cases, if the debtor disputed liability, the question could be tried only in proceedings at his instance, or sometimes at that of a third party on his behalf, for a stay of execution. It will simplify matters, however, to confine our attention to it in the meantime as a means of execution against the body of a judgment-debtor.
Gaiuss description of it is very general; for details we are indebted principally to the Noctes Atticae of Aulus Gellius, in an account which he gives (put into the mouth of Caecilius Africanus, a well-known jurist of about the same time as Gaius, and a contemporary of his own) of the provisions of the XII. Tables in reference to it. Africanus is made to say that according to his belief (opinor) the words of the statute were these:
For admitted money debts and in causes that have been regularly determined by judgment (aeris confess-i rebus que jure judicalis) there shall be thirty days grace. After that there may be manus injecbio. The apprehending creditor shall then bring his debtor before the nlagistrate. If he still fail to satisfy the judgment, and no v-index come forward to relieve him, his creditor may carry him home and put him in chains. He may live at his own cost; if not, his creditor must give him daily a pound of spelt, or more if he please. Africaous continues narrative: There was still room for the parties to come to terms; but, if they did not, the debtor was kept in chains for sixty days. Towards the end of that time he was brought before the praetor in the comitium on three consecutive market-days, and the amount of the judgment-debt proclaimed on each occasion. After the third proclamation capite poenas dabat what these words mean will be considered in the sequel or else he was sent across the Tiber to be sold to a foreigner. And this capital penalty, sanctioned in the hope of deterring men from unfaithfulness to their engagements, was one to be dreaded because of its atrocity and of the new terrors with which the decemvirs thought proper to invest it. For, if it was to more creditors than one that the debtor had been adjudged, they might, if they pleased, cut up and divide his body. Here are the words of the statute Tertiis nundinis partis secanlo. Si plus minusve secuerunt, se fraude esto.
Such is Gelliuss account of the provisions of the XII. Tables in reference to this legis achio, and he is to a considerable extent corroborated by Quintilian, Tertullian and Dio Cassius. But it is to be borne in mind that he does not vouch for its accuracy; the Tables were already in his time matter of antiquity, ,and even the jurists knew little about them beyond what was still in observance. That he has reproduced them only partially seems almost beyond question; for in another chapter he himself quotes a couple of sentences that are to all appearance from the same context. We have to face, therefore, ~he extreme probability that the record is incomplete and the possibility besides that it is not literally accurate. There is room for error, consequently, in two directions; but the nature and effect of the procedure in its main features may be gathered from the texts as they stand with reasonable certainty.
It was competent only after thirty days from the date of judgment or confession.f It was apprehension of the debtor by the iTo the literature on p. 548, note 1, maybe added Huschke, Nexurn (1846), pp. 79 seq.; Savigny, Das altrm. Schuldrecht, in his Ver,n. Schriften (1850), ii. 396 seq.; Hoffmann, Die Forcten u. Sanaten, nebsb An/fang ibber d. altrm. Schuldrecht (Vienna, 1866), pp. 54 seq.; Vainberg, Le nexum et la conbrainte par corps en droib Rom. (Pans, 1874), pp. 36 seq.; Voigt, XII. Tafein, vol. i. f 6365; Jhering (as on p. 548), pp. 196 seq., 232 seq.; Cuq, Institutions juridiques, 2nd ed. i. 141 seq.; Schlossmann, Altrmisches .9chuldrechb (1904); Kleineidam, Personalexekution der XII. Tafeln 1i9o4).
2 In his Historical Introduction, 2nd ed. pp. 192193, Muirhead maintains that the aeris confessi of the Tables refers to nexal creditor himself,in its first stage, at least, an act of pure self-help. The debtor had at once to be brought before the magistrate, in order that his creditor might solemnly go throtigh the required formalities before he could carry him away and provisionally confine him in the domestic lock-up. It was this appearance before the magistrate that made it a leg-is actio. Such a course, however, was avoided either (i) by instant payment or other implement of the judgment or arrangement with the creditor, or (2) by the intervention of a v-index or champion. The position taken by the latter was not that either of a surety or of an attorney for the judicatus demanding a rehearing of the case: he appeared rather as a controverter in his own name of the right of the creditor to proceed further with his execution, on the ground that the judgment was invalid. This might necessitate an action between the vindex and the creditor, in which the former was plaintiff, but to which the debtor was not a party. If it failed, then the vindex was liable for double the amount of the original debt, as a penalty on him for having improperly interfered with the course of justice; his interference was treated as a delict, but on payment he had presumably relief against the original debtor who had been liberated through his intervention. Failing a vindex and failing payment, the creditor took his debtor home and incarcerated him, dealing with him for sixty days in the manner above described. On their expiry, without any arrangement, there was a magisterial decree (addictio) awarding the debtor to his creditor.
What right did this addict-jo confer upon the creditor? The debtor, says Gellius, capite poenas dabat, which he interprets as meaning that his creditor might put him to death, the alternative being his sale as a slave beyond the Tiber. There is, however, a diversity of opinion among the modern writers as to the true meaning of these words. While some hold, and rightly it is thought, that the Gellian interpretation is correct, others object to it as extravagant. It is objected to by Muirhead on the ground, inter alia, of its incredible severity in the case of petty debtors. He holds that capite poenas dabat meant simply that the debtor paid the penalty with his person, in contradistinction to his means. Capub is thus merely used in opposition to bone. Even more numerous are the writers who object to Gelliuss statement that the body of the addictus when killed might be cut in pieces where there were several creditors. They hold that the words part-is secanto of the Tables referred not to the body but to the belongings of the debtor,that when there were concurrent creditors they shared his familia amongst them.f But these views are, it is thought, somewhat fanciful refinements. Poena capits always implies either death, slavery or deprivation of citizenship; there is nothing more astonishing in a creditors right to kill his debtor than in a fathers right to kill his child; and comparative law gives many instances, of a parallel kind, of the harshness of primitive law to defaulting debtors. The part-is secanto was probably a relic of earlier times, and Gellius admits that he never heard or read of a dissection having taken place.
The cruelties and indignities to which creditors subjected both their judgment and nexal debtors led, as above noticed, to many a commotion in the first two centuries of the Republic. The latter were probably much more numerous than the judicabi, and, being in great part the victims of innocent misfortune, it was the sufferings they endured at the hands of relentless creditors that so often roused the sympathies and indignation of the populace. But the judgment-debtors had suffered along with them; and some of the provisions of the Poetilian law of 326 B.C., already mentioned, were meant to protect the former against the needless and unjustifiable severity that had characterized their treatment by their creditors. The menus injectio itself was not abolished, nor the possible intervention of a vi~ndex; neither were the domum ductio that followed, and. the provisional imprisonment with the light chains, authorized by the Tables while it lasted; nor apparently was the formal addict-jo of the debtor to his creditor when the sixty days had expired without arrangement. But after addiction, if it was for nothing more than civil debt, there were to be no more dungeons and stripes, fetters and foot-blocks; the creditor was to treat his debtor and his industry as a source of profit that would in time diminish and possibly extinguish his indebtedness, rather than as an object upon which he might perpetrate any cruelty by way of punishment. Although the edict of P. Rutilius of 107 B.C. provided a creditor with machinery for debtors, but this view has, it is thought, insurmountable objections to overcome.
For a fuller explanation, see Muirhead, Hist. Introduction, 2nd ed. pp. 198 seq., and authorities there cited. See also Kleineidam, Personalexekut -ion, pp. 235 seq. Lenel must be added to those writers who think that penis secanto, &c., refers to the goods of the debtor (Zeibschr. d. Sac. Shift. xxvi. pp. 507509).
attaching the estate of his debtor, he had still the alternative of incarceration. This might be avoided under the Julian law of cessio bonorum by the debtors making a complete surrender of his goods to his creditor; but, failing such surrender, incarceration continued to be resorted to even under the legislation of Justinian. During the Empire, of course, it was not by man-us injectio that the incarceration was affected; for it went out of use with the definitive establishment of the formular system of procedure.
It was as directed against judgment and nexal debtors that manus injectw was of most importance and chiefly made its mark in history. But there were other cases in which it was resorted to under special statutory authority, where a remedy seemed advisable more sharp and summary than that by ordinary action. In some of these it was spoken of as manus injectio pro judicato (i.e. as if upon a judgment), in others as simple manus snjectio (manus injectio pura). In the first the arrestee was not allowed to dispute his alleged indebtedness in person; he could do so only through a vindex; and if no one intervened for him in that character he was carried off and dealt with by his arresting creditor as if a judgment had been obtained against him. In the second he was not required to find a vindex, but might himself dispute the verity of the charge made against him, under penalty, however, as is generally supposed (though it is disputed), of a duplication of his liability if he failed in his contention. By a lex Vallia, probably in the latter half of the 6th century of the city, this manuf injectio pura was substituted for that pro judicato in all cases in which the ground of arrest was neither judgment nor so-called depensum, i.e. payment by a surety or other party on account of the true debtor, ~vho failed to relieve the former within six months of such payment.1
The Legis Ado per Pignoris Capionem.2In the ritual of the actio sacramenti the vis civilis et festucaria was a reminiscence Per of the vera solida vis with which men settled their pignoris disputes about property in the earliest infancy of the -NP commonwealth. Manus injectio was a survival from, onem. times when the wronged was held entitled to lay hands upon the wrongdoer, and himself subject him to punishment; custom and legislation intervened merely to regulate the conditions and mode of exercise of what essentially was still self-help. In pignoris capio self-help was likewise the dominant idea. It may be fairly enough described by the English legal term distressthe taking by one man of property belonging to another in satisfaction of or in security for a debt due by the latter which he had failed to pay. The seizure, however, did not proceed upon any judgment, nor did it require the warrant of a magistrate; it might be resorted to even in the absence of the debtor, and on a dies nefastus; but it required to be accompanied by certain words of style, spoken probably in the presence of witnesses. It was only in a few exceptional cases that it was competent, in some by force of custom, in others by statute, nearly all of which seem to be given by Gaius,3 and all of them being of a military, religious or fiscal character. What was the procedure, and what its effects, are far from certain. Jhering, founding on some expressions of Ciceros, conjectures that, whether the debt was disputed or not, the distrainer could neither destroy nor sell nor definitely appropriate his pignus without magisterial authority,that in every case he was bound to institute proceedings in justification of his caption, and to take in them the position of plaintiff. The idea is ingenious, and puts the pignoris capio in a new and interesting light. It makes it a summary means of raising a question of right for whose judicial arbitrament no other process of law was open,with the additional advantage that it secured instant satisfaction to the raiser of it in the event of the question being determined in his favor. If against him, the inevitable result, in substance at least, must have been a judgment that he had no right to retain his pledge, with probably a finding On menus injectio pro judicato and pura, see Gaius, iv. 2225.
2To the literature on p. 548, note I, add Degenkolb, Die Len Hieronica (Berlin, i 861), pp. 95 seq.; Jhering, Geist d. rm. Rechts, vol. i. IIc; Voigt, XII. Tafeln, i. 502 seq.; Girard, Manuel, pp. 977 seq.; Wlassak, Processgesetze, i. 252 seq. For a comparative view, see Maine, Early Institutions, pp. 275 seq.; Jenks, Law and Politics in the Middle Ages, pp. 263 seq.
1 For a case not mentioned by Gaius, see Girard, TenSes, 3rd ed. p. 122; Br~ns. Fontes. 6th ed. p. i&.
that he was further liable to its owner in the value of it, as a punishment for his precipitancy.4
Judicial or Quasi-Judicial Procedure outside the Legis Actiones.~
Whatever may have been the extent of the field covered by the actions of the law, they did not altogether exclude other ,~ d judicial or quasi-judicial agencies. The supreme magis- ~ ure trate was frequently called upon to intervene in matters brought under his cognizance by petition or complaint, ationes in which his aid was sought not so much to protect a vested right of property or claim as to maintain public order, 01 to prevent the occurrence or continuance of a state of matters that might prove prejudicial to family or individual interests. The process was not an action, with its stages in jure and in judicio, but an inquiry (cognitio) conducted from first to last by the magistrate himself; and his finding, unless it was a dismissal of the complaint or petition, was embodied in an order (decretum, interdictum) which it was for him to enforce by such means as he thought fitmenu miUtari, or by fine or imprisonment. Some jurists are disposed to give a very wide range to this magisterial intervention. One of its most important manifestations was in coIlnexion with disputes about the occupancy of the public domain lands. These did not belong in property to the occupants, so that an action founded on ownership was out of the question. But, as the occupancy was not only recognized but sanctioned by the state, it was right, indeed necessary in the interest of public order, that it should be protected against disturbance. In the measures resorted to for its protection Niebuhr recognized the origin of the famous possessory interdict uti possidetis; and, although opinions differ as to whether protection of the better right or prevention of a breach of the peace was what primarily influenced the magistrates intervention, there is, apart from ~some distinguished exceptions, a pretty general accord in accepting this view. Another illustration of this magisterial intervention is to be found in the interdiction of a spendthrift,a decree depriving of his power of administration a man who was squandering his family estate and reducing his children to penury; a third presents itself in the removal of a tutor from office on the ground of negligence or maladministration, on complaint made to the magistrate by any third party in what was called postulatio suspecti tutoris; and a fourlh in the putting of a creditor in possession of the goods of an insolvent debtor, which must have been common enough even before the general bankrutcy regulations of the Rutilian edict. These are to be taken merely as examples of this magisterial intervention, which manifested itself in very various directions; and it is easy to see how largely such procedure might be utilized for remedying the grievances of persons who, from defect of complete legal title, want of statutory authority, or otherwise, were not in a position to avail themselves of the actions of the law.
In one of the Valerio-Horatian laws consequent on the second secession of the plebeians there was mention of ten judges (judices decemviri), whose persons were declared as inviolable as those of the tribunes of the people and the plebeian aediles. These were, it is generally supposed, a body of judges elected to officiate on remit from a tribune or aedile in questions arising between members of the plebeian body. We are without details as to the institution of this plebeian judicatory, the questions that fell under its cognizance, the forms of process employed, the law administered by it and the effect of its judgments. It is not much referred to by the historians; and its decadence has been attributed to the fact that the Lex Hortensia of 287 B.C. made the nundinae lawful court-days (dies fasti), and so made it possible for the country folk coming to the city to market to carry on their processes before the praetor. It has also been identified by some writers5 with the decemviri stlitibus judiccindis, whose jurisdiction has been already noticed (supra, p. 536).
As all in a manner exercising judicial or quasi-judicial functions must also be mentioned the pontiffs, the consuls, and afterwards the censors as magistri morum, the chiefs of the gentes within th< gentile corporations, and heads of families within their households, While it may be the fact that with the enactment of the XII, Tables the jurisdiction of the pontiffsi was materially narrowed,
f See Voigt, Ro-m. Rechtsgeschichte, i. Beilage i.; contra, Wlassak, Processgesetze, i. 144 seq.
See Cauvet, Le droit pontifical chez les anciens Romains (Caen, 1869); Bouchb-Leclerq, Les pontijes de lancienne Rome (Paris, 187I); Marquardt, Rom. Staatsverwalt. iii. 290 seif.
it certainly did not disappear,witness the famous case in which Cicero mad- before them the oration of which he was so proud, Pro domo sua. The action of the consuls and afterwards of the censors as guardians of public morals, and the social and political disqualifications and pecuniary penalties with which they visited persons who had been guilty of perjury or gross perfidy, did not a little to foster fidelity to engagements. Through the same agency the exercise of a variety of rights whose abuse could not be made matter of actionthe husbands power over his wife, the fathers over his childrenwas controlled and kept within bounds. It was not on light grounds, indeed, that the majesty of the palerfamilias within the household could be called in question; it was only when he forgot that in the exercise of serious discipline within his family he was bound to act judicially. For he also was a judge judex dornest-icus, as he is often called, though in all cases of gravity he was required to invoke the advice of his kinsfolk in a family council. On him lay the duty of controlling his family; if he failed to do so he was himself in danger of censorial animadversion~
Between citizens and foreigners with whom Rome was in alliance by a treaty (temporary or permanent) conferring reciprocal rights R~J- of action, the proceedings took the form known as reci era tb peratio or recuperatio.2 The action was probably always P raised in the forum contractus. According to the common opinion the magistrate ordinarily presiding there heard what parties had to say in plaint and defence, and then put into a simple formula the points of fact arising on them, authorizing the recuperators to whom the matter was remitted to find for plaintiff or defendant according to circumstances. The recuperators were generally three, sometimes five, sometimes perhaps still more numerous, but always in odd number; but whether the nationality of both parties required to be represented we are not told. Expedition being in most cases a matter of importance, recuperators were required to give judgment within ten days, and the number of witnesses was usually limited to ten. How execution proceeded upon it, if it were for the plaintiff, does not clearly appear; Voigt, founding on a few words in Festus, concludes it must have been by something like pignoris capio. This recuperatory procedure in time came to be resorted to in processes de liberlate and even in some litigations where both parties were citizens. There are numerous instances of the latter in Cicero; and it is remarkable that in the praetorian actions ex deliclo the remit was usually not to a judex but to recuperators. The explanation may be in the comparative summariness of the remedy.
III. THE Jus GENTIUM AND Jus HONORARIUM
(Latter half of the Republic.)
i. Influences that operated on the Law.
Growth of Commerce and Influx of Foreigners. While it may be admitted that commerce was beginning to take root in influx Rome in the 5th century, yet it was not until the of for- 6th that it really became of importance. The camcigners. paigns in which Rome was engaged until the end of the First Punic War absorbed all its energies. But after that time the influx of strangers, and their settlement in the city for purposes of trade, became very rapidnot only of Latins and other allies, but Greeks, Carthaginians and Asiatics. To them and the regulation of their affairs the jus civilethe law peculiar to Rome and its citizenswas applicable only if they were members of allied states to which cornmerciuni and recuperatio were guaranteed by treaty. But many were not in this favored position; and even those who were soon found the range of Roman modes of acquiring property and contracting obligations too narrow for their requirements. Hence a jus gentium was gradually developed3 which very early in its history drove treaty covenants for recuperatio out of use; its application may for a time have been limited to transactions between non-citizens or between citizens and non-citizens, but it was eventually accepted in the dealings of citizens inter .ce and became part and parcel of the jus 2 See Sell, Die recuperalio der Rmer (Brunswick, 1837); Huschke (rev. Sell), in Richters Krit. Jahrbucher, i. (1837), 8689I1; Voigt, Jus naturale, &c., ii. I 28-32; Karlowa, Ram. Civilprocess, pp.
2 18-230; Girard, Organisation judicinire des romains (f9oI), i. 97 seq. On the Roman jus genhium, see Voigt, Das jus naturale. aequum ~l bonum, und jus pentium. d. Romer (4 vols., Leipzig, 1856 i875)~ Nettleship, in the Journal of Philology, (1885), xiii. 169
seq.; Kruger, Gesch. d. Quellen. ~ 16, 17; Mommsen, Staatsrecht, iii. 604
Romanorum. Gaius and Justinian speak of it as the common law of mankind, the law in use among all nations; but the language must not be taken too literally. The Roman jus gentium was not built up by the adoption of one doctrine or institution after another that was found to be generally curIent elsewhere. In the earliest stages of its recognition it was an independent international private law, which, as such, regulated intercourse between peregrins or between peregrins and citizens on the basis of their common libertas; ~ during the Republic it was purely empirical and free from the influence of scientific theory, but its extensions in the early Empire were a creation of the juristsa combination of comparative jurisprudence and rational speculation. To say that it was de facto in observance everywhere is inaccurate; on the contrary, it was Roman law, built up by Roman jurists, though called into existence through the necessities of intercourse with and among non-Romans.
It may be a little difficult for a modern jurist to say with perfect precision what were the doctrines and institutions of the .7us gentium as distinguished from the jus civile. But the distinction was quite familiar to the Romans, as witness, for example, the statement of Marcian, in reference to the irXt&s, that they enjoyed all the rights competent to a man under the former, but none of those competent to him un.der the latter.
Institution of the Pere grin Praetorship.The praetorship,f as already mentioned, was an outcome of the Licinian laws of the year 367 B.C. (see PRAETOR). Down to the end of the The 5th century of the city the praetor so appointed super- peregrin intended single-handed the administration of justice, praetor. alike between citizens and foreigners. But with the altered condition of things in the beginning of the 6th century, and the influx of strangers which has already been alluded to, the work seems to have been found too onerous for a single magistrate, and a second praetor was created. The date is generally assumed to have been about the year 242 B.C.; Pomponius says distinctly that the creation of the new office was rendered necessary by the increase of the peregrin population of Rome, and that the new magistrate got the name of praetor peregrihus because his principal duty was to dispense justice to this foreign element. After the submission of Sicily and Sardinia the number of the praetors was increased to four and after the conquest of Spain to six; Sulla raised the number to eight, and Caesar eventually to sixteen. But all the later creations were for special purposes; the ordinary administration of justice within the city was left with the representatives for the time of the two earliest, who came to be usually distinguished as praetor qui inter cives jus dicit (or urbanus) and praetor qui inter cives et peregrinos jus dicit (or peregrinus). It would be going too far to speak of the latter as the principal author of the jus gentiurn; for a large proportion of the actions for enforcing jus gentium rights were civil, not honorarya fact which proves that the rights they were meant to protect and enforce had their origin in the jus civile, although moulded to meet new requirements by tacit consuetude and the agency of the jurists. But even in this view the peregrin praetor. must have had a powerful influence in giving shape and consistency to the rising jursiprudence, by means of the formulae he adjusted for giving it practical effect.
Simplification of Procedure and Introduction of New Remedies under the Aebutian Law.The lex Aebuhia is only twice mentioned by ancient writers (once by Aulus Gellius and once by Gaius), Reforms and we know neither its precise date nor its specific pro- of Aebuvisions. And yet, to judge by its effects, it must have Uanlaw been one of the most important pieces of legislationin the latter half of the Republic, for Gellius speaks of it as having given the death-blow to many of the institutions of the XII. Tables, and Gaius couples it with two Julian laws of the time of Augustus as ~ Voigt, Jus nat. ii. 66i. He distinguishes the ins civile, jui gentium and jus 1iaturale as the systems which applied respectively to the citizen, the freeman and the man.
i See Labatut, Histoire de la Prfbure (Paris, 1868); Mornmsen, Staatsrecht, ii. 176 seq.; Karlowa, ROm. Rechtsgeschichte, i. 217 seq.; Girard, Organisation ~hcdiciaire, i. 160 seq., and on the peregrin praetorship in particular, pp. 206 seq.
the statutory instrument whereby the formular system of procedure was substituted for that per legis actiones. Its date was probably about the end of the 6th or beginning of the 7th century of the city. Girard, who has examined the question with great care, places it in the first third of the 7th century, and, though his reasoning is not quite conclusive, it largely refutes the arguments of older writers, who in many cases put the date a century and more earlier. It is the opinion of Wlassakf that it was a piece of tentative legislation, and that as regards citizens it in no wise abolished the actions of the law but merely made the formulary procedure alternative to them, according as the praetor, on the representation of the parties, might determine in each case; formulae, in his view, being first made compulsory, subject to a few exceptions, by the Julian laws. This is a probable theory and is now adopted by many recent writers. The main purpose of the statute seems to have been to empower the urban praetors to adapt existing remedies to altered circumstances, and inter alia to fashion new actions on the jus civile for the use of the peregrins, to whom the legis actiones were rarely, if at all, available. But, whatever may have been its actual provisions, the result was the adoption of a procedure which gradually supplanted that by the actions of the law, which was much more pliant than the latter, and whose characteristic was thisthat, instead of the issue being declared by word of mouth by the parties, and requiring as a rule to embody with perfect accuracy the statutory provision on which it was based, it was formulated in writing under the direction of the praetor, in the shape of an instruction to the judge to inquire into the merits of the dispute, with power to condemn or acquit according to his finding. A statute was necessary for accomplishing such an innovation, not only because the existing procedure was directly prescribed by statute, but also among other reasons because the legis actiones were favorites of the pontifical colleges (being often profitable to them), and any attempt by the magistrates to dispense with them would have been opposed by these powerful bodies. It is now the dominant opinion among modern writers, and it seems based on reasoning which cannot be gainsaid, that even prior to the lexAebutia written formulae were employed in practice, particularly if not exclusively in the peregrin praetors court, and that one of the objects of the statute was to legalize similar procedure in civil actions.i All such formulae granted by the peregrin praetor must of course have been in factum conceptae. Unless we hold this view it is difficult to see by what means the rights and obligations of peregrins in their transactions inter se or with citizens could have been enforced, as civil actions, save perhaps in exceptional cases where by treaty they enjoyed jus commercii, were not open to them. Written instructions to the recuperators or other judges for trying suits in which a peregrin was a party would be a practical necessity, for these judges would have to decide according to jus gentium, whose rules would probably be strange to them, and their instructions would therefore have to be precise and definite. Verbal instructions would have led to miscarriages of justice. From this point of view we can see how the peregrin praetor became the primary organ in developing jus gentium. But there is some reason for holding that the urban praetor had also, before the Aebutian law, occasionally exercised his imperium by granting actions in factum, and in this way perhaps enforced ft number of contracts and other obligations in which elements of equity and good faith were present and which the jus civile left remediless. Actions of this kind among cives would be in the nature of arbitria accepted voluntarily by the parties. The latter view certainly explains several apparent anomalies in the later law, for which no other good explanation can be found, as, for instance, the fact that in deposit and commodate actions in factum as well as in jus might be brought. Also the actio in factum for enforcing a contract of fiducia can in this way be explained. It also serves to throw light upon the development of some of the boner fidei contracts.i Provincial Con quests.The growth of commerce and the enormous increase of wealth, which made great capitalists and enabled them through the agency of freedmen and slaves to carry on trade Effects Of on a scale hitherto unknown, and which thus helped to foster provincial the jus gentium, were no doubt due to a large extent to pro ad,niais- vincial conquests. But these operated also in other direc (ration. tions.Theofficialswho proceededto theconqueredprovinces as governors found themselves facetofacewithiawsandinstitutions in many respects differing from those of Rome. Political considerations dictated how far these were to be respected, how far subverted. In 2 Wlassak, Rm. Processgesetze (1888), i. pp. 6273, pp. 85 seq.
and pp. 103139.
See Sohm, Institutionen, Ledlies translation (2nd ed.), pp. 69, 80; \Vlassak, Processgesetze, ii. 304 seq.; Cuq, Institutions jurid. (2nd ed.) i. 285286.
These points are well stated by Mitteis, Rm. Privatrecht (1908), pp. 39 seq.; see authorities cited by him in note 2, p. 39. Contra, Girard, Z. d. Say. Stift. xxix. 154158.
some provinces, more especially the Eastern ones, it was thought unnecessary to do more than supplement the existing system by the importation of doctrines of the jus genhium and the procedure of the praetors edicts; while in others, in which it was deemed expedient to destroy as rapidly as possible all national feeling and every national rallying point, a Romanizing of all their institutions was resorted to, even to the extent of introducing some of the formal transactions which previously had been confined to citizens. But in either case there was a reflex action. The native institution had to be studied, its advantages and disadvantages balanced, the means considered of adapting it to the praetorian procedure, and the new ideas so presented as to make them harmonize as far as possible with the old. All this was a training of no small value for those who, on their return to Rome, were to exercise an influence on legislation and the administration of the law. They brought back with them not merely an experience they could not have obtained at home, but sometimes a familiarity with foreign institutions that they were very willing to acclimatize in Italy. Rome thus enriched its law from the provinces, deriving from them its emphyteutic tenure of land, its hypothec, its Rhodian law of general average and a variety of other features that were altogether novel. They were sanctioned by tacit recognition, by edicts of the praetors and in other ways; but, in whatever way received, they were indirectly fruits of provincial conquest.
Spread of Literature and Philosophy.The effect on Roman civilization of the addiction of educated men in the later Republic to literature and philosophy is a matter for consideration in connection with Romes general history. It is not Influence proposed to consider here the question how far specific ~
doctrines of Roman law bear the impress of the influence hi! of the schools, especially that of the Stoics; it is a subject ~a~J1~~ much too large to be disposed of in a few lines.5 The matter is mentioned simply for the sake of noting that the spirit of critical inquiry aroused and fostered by literary and philosophical study, seriously and conscientiously undertaken, contributed greatly to promote a new departure in jurisprudence that became very marked in the time of Cicero-the desire to subordinate form to substance, the word spoken to the will it was meant to manifest, the abstract rule to the individual case to which it was proposed to apply it. This was the first effort of what then was called equity to temper and keep within the bounds the rigour of the jus strictum. The praetors, the judges and the jurisconsults all had their share in it. Although modern jurists are prone to speak of praetorian equity as if it were a thing apart, yet the same spirit was leavening the law in all directions and in the hands of all who had to deal with it, the difference being that the form and publicity of the edict gave to its applications by the praetors a more prominent and enduring record than was found in the decisions of private judices or the opinions of counselling jurisconsults.
Decline of Religion and Morals.It would be equally out of place to enlarge here on the causes and manifestations of that decline in religious sentiment and public and Decline of private virtue which was fraught with such disastrous religion results in the later days of the Republic. The private and law was influenced by it to a considerable extent, mor S~
alike in those branches which regulated the domestic relations and those which dealt with property and contract.
The ever-increasing disregard of the sanctity of the mafriage tie is one of those features in the history of the period which strikes even the most unobservant. While from the first the law had denounced causeless separation and visited it with penalties, in principle it maintained the perfect freedom of repudiation on the part of the husband. With the simple and frugal habits of the first five centuries of Rome, and the, surveillance of the consilium domesticum, the recognition of this principle produced no evil results; family misunderstandings were easily smoothed over, hnd divorces were of rare occurrence. But during the 6th and 7th centuries of the Republic a change to looser morals took place, and the family council lost much of its control. This was doubtless largely due to the decay of hand marriages, wives consequently remaining outside their husbands familia and often holding property of their own. With increasing luxury and licentiousness divorce became common.1
This looseness of the marriage bond, as was naturally to be expected, had its effect on the other family relations. The right of children to take their fathers inheritance began to be lightly esteemed. The lawor rather the interpretation put upon the uti legassit of the XII. Tableshad empowered him testamentarily to disinherit them, or in instituting them to limit their right to a mere fraction of the inheritance; but it was assumed that this power would be exercised with discretion and only when justified by circumstances. But in the later days of the Republic, amid the slackened ties of domestic life, paternal as well as conjugal duty seems to have often been lost sight of, and children were disinherited or cut off with a nominal share of the inheritance in order that a stranger might be enriched. This led to the recognition by the centumviral court, without apparently any legislative enactment or praetors edict to warrant it, of what was called the querela inofficiosi testamentichallenge of a testament by a child whose natural claims had been capriciously and causelessly disregarded. While the practice may for a time have been hesitating and uncertain, yet early in the empire, through means of this querela, the rule came to be established that every child was entitled, notwithstanding the terms of his fathers testament, to at least a fourth (portio legitisna, quarta legitima) I of what would have come to him had his parent died intestate, unless it appeared that the latter had had adequate grounds for excluding him or limiting him to a smaller share. A parent might in like manner challenge an undutiful testament made by his child to his prejudice; and ultimately in certain cases so might brothers and sisters inter Se.
The decline of morals had an equally marked effect on the transactions of daily life, calling for precautions and remedies that had not been found requisite in the hey-day of the irkrts rflv Pofuatwv. Men no longer relied on each others good faith unless backed by stipulations, securities (cautiones) and guarantees. The Rutilian bankruptcy arrangements and the actio Pauliana for setting aside alienations in fraud of creditors indicate a laxity in mercantile dealings that was perhaps an inevitable consequence of the growth of trade and commerce. But, that such remedies as, for example, the exceptio rei venditae et traditae or the exceptio non numeratae pecuniae should have been found necessarythe one an answer to a vendor (with the price in his pocket) who attempted to dispossess his vendee because ~ome of the formalities of conveyance had been neglected, the other an answer to an action on a bond for repayment of money that by some accident had never been advancedproves that the law had now to encounter fraud in all directions, and that Graeca ffdes had tc a great extent displaced the old Roman probity.
ii. Factors of the Law.
LegislationIt cannot be said that during the period of nearly two centuries and a half embraced within the present epoch the private law owed much to legislation. The vast majority Legisia- of the enactments of the tune referred to by the his lion. torians dealt with constitutional questions, municipal and colonial government, agrarian arrangements, fiscal policy, suniptuary prohibitions, criminal and police regulations, and other matters that affected the public law rather than the private. Those of the latter class mentioned by Gaius and Ulpian in their institutional works barely exceed a score in number; and of these not above half a dozen can be said to have exercised a permanent influence on the principles (as distinguished from the details) of the law. Most of them were enactments of the concilium plebis or of the conutia of the tribes, to which ordinary legislation had passed as 2 From this the legitim of children recognized by most continental countries nowadays is derived.
more readily convened and more easily worked than the comitia of the centuries.
Edicts of the Magistrates.3The practice of propounding edicts was very ancient, and had been followed by kings and consuls long before the institution of the praetorship. It was one of the most obvious ways of exercising the imperium with Magiswhich the supreme magistrate was investedto lay an irates injunction upon a citizen and enforce his obedience, or to ediCts. confer upon him some advantage and maintain him in its enjoyment. It was one of the ways in which public order was protected where there had been no invasion of what the law regarded as a right, and where, consequently, there was no remedy by action. That the earlier edicts of the praetors were of this characterissued, that is to say, with reference to particular cases, and what afterwards came to be called edicta repentina or prout res incidit positathere is little reason to doubt. In time a new class of edicts appeared which got the name of edicta perpetua (or perpetuae jurisdictionis causa proposita)announcements by the praetor, published on his album (as the white boards displayed for the purpose in the forum were called), of the remedy he would be prepared to grant on the application of any one alleging that the state of facts contemplated had arisen. The next years praetor was free to adopt the edicts of his predecessor or not; but it was usual for him to do so if they had been found beneficial in practice, he adding to them new provisions suggested by demands made upon past praetors for edicta repentina, but which they had not generalized, or even proposing for acceptance some remedy entirely of his own devising. As each new praetor entered upon office he announced his jurisdictional programmehis lex annua, as it was called from this particular point of view, by far the greater part of it tralaticium, i.e. transmitted from his predecessors, and only a few paragraphs, diminishing in number as time progressed, representing his own contribution. And so it went on in the first years of the Empire, until the praetorian function was eclipsed by the imperial; and at last, after having, by instruction of Hadrian, been subjected to revision, and consolidated along with the Aedilian Edicts, by Salvius Julianus, it was, as will be noticed below, sanctioned as binding on the whole Empire. The term Edict is applied both to the single edicts and also to the whole body of them together.
There is some reason for supposing that the edict attained considerable proportions in the time of Cicero; for he mentions that, whereas in his youth the XII. Tables had been taught to the boys in school, in his later years these were neglected, and young men directed instead to the praetors edicts for their first lessons in law. Of a few of them the date and authorship are known with tolerable precision; but of the history of the majority, including some of the most important, such as those introducing restitutio in integrum on the ground of lesion through error, absence, minority and the like, and those revolutionizing the law of succession, we are to a great extent in the dark. It was one of the great advantages the edicts had over legislative enactments that they might be dropped, resumed or amended by a new praetor according to his judgment of public requirements. For the edict was viva vox juris civilis intended to aid, supplement and correct it in accordance with the ever-changing estimate of public necessities; and this would have been impossible had its provisions from the first been as stereotyped as they became by the consolidation in the time of Hadrian.
The edict seems to have contained two partsthe first what may be called the edicts proper, and the second styles of actions, &c., whether derived from the jus civile or from the jus praetorium. The styles or formulae for civil actions were published without any corresponding edict; for praetorian actions styles were published appropriate to their corresponding edicts. There were also independent formulae for interdicts, processual stipulations, &c. The contents of the edicts proper were in detail very various, but all devoted to an exposition of the ways in which the praetor meant to exercise his jurisdiction during his year of office. They were not didactic or dogmatic formulations of law, but rather announcements of what remedy he would grant in such and such circumstances, or direct orders to do or prohibitions against doing certain things. A party claiming an action or whatever else it might be under any of them did so not of right, as he would have done had his claim had a statutory or customary foundation, but of graceon the strength of the praetors promise to grant him what he claimed and make the grant effectual. That was why originally such an action had to be raised and concluded within the particular praetors year of officea rule which in time, by abuse, was converted into the somewhat different one that a purely praetorian action (i.e. not originally of the jus civile) had to be raised within a year of the occurrence to which it referred.
As already observed, the praetors edicts proceeded upon lines of equity; that is to say, they were directed against the strictness and formalism of the jurispiudence of the XII. Tables. Such may be said to have been the general tendency of the edicts as a whole.
See Lenel, Beitrage zur Kunde des praetorischen Edicts (Stuttgart, 1878), and the introductory chapters in his Edictum Perpetuum (Leipzig, 2nd ed., 1907); Karlowa, Rm. Rechtsgesch. vol. i. 60;
Voigt, .Rm. Rechtsgesch. ~ 19, 20
But it was the tendency of the whole jurisprudence of the time, and by no means peculiar to the praetorian creation. Nowhere in the texts are the praetors spoken of as the mouthpieces of equity as distinguished from law. Such a distinction recurs frequently in Cicero; he identifies aequitas with the spirit of a law or agreement, and jan with its letter, but it is in order to sing the praises not of the praetors but of the pleaders who maintained the former as against the latter, and of the judges who were persuaded by their arguments. Much of what was contained in the edict might quite as well have been embodied in statute, and we know that in time statute caine to its aid; witness a very remarkable provision of it I will give bonorum possesszo as may be enjoined by statute, whether comitial enactment or senatusconsult.
Of the edicts of the peregrin praetor and their relation to that of his urban colleague little is known. That they differed in some respects there can be no doubt, for in the lex Rubria (49 B.C.) for settling the government of Cisalpine Gaul the magistrates are directed, with reference to a certain action, to formulate it in the way prescribed in the edict of the peregrin praetor. The latter, therefore, must to some extent have been in advance of that of the urban praetor, probably in this respect, that, being prepared primarily for the regulation of questions affecting non-citizens, it more thoroughly than the other avoided formalities that were competent only to citizens, and thus to a greater extent simplified procedure. The edicts of the provincial governors must have varied according to circumstances, being in all cases composites of provisions, more or less numerous, borrowed from the edicts of the praetors and additions suggested by the peculiar wants of the different provinces for which they were framed (provinciale genus edicendi). As for those of the curule aediles, who amongst other duties were charged with the supervision of markets, their range was very limited; their most important provisions having reference to open sales of slaves, horses and cattle, and containing regulations about the duties of vendors exposing them, and their responsibility for latent faults and vices. They also had cognisance of certain delicts committed in the streets and markets. As the aediles had no imperium their restricted jus edicendi may have been conferred on them by custom or statute. -
Consuetude, Professional Jurisprudence and Res Judzcatae.Great as may be the difficulty experienced by philosophical jurists in - defining the ground of the authority of consuetudinary onsue law, there is no room to dispute the importance of its tudinary contributions to every system of jurisprudence ancient law, and modern. The men who first drew, accepted and endorsed a bill of exchange did as much for the law as any lawgiver has ever accomplished. They may or may not have acted on the advice of jurists; but, whether or not, they began a practice which grew into custom, and as such was recognized by the tribunals as a law-creating oneone conferring rights and imposing obligations. There is much of thisfar more probably than is commonly imagined in the history of every system of law.
In Rome the process was sometimes wonderfully expeditious; witness what Justinian narrates of the introduction and recognition of testamentary trusts and of codicils to last wills, both in the time of Augustus. It can hardly be doubted that the literal contract per expensilalionem originated in the same way, probably in the end of the 5th or the beginning of the 6th century of the city. The keeping of domestic account-books may have been enjoined and enforced by the censors; but it was custom, and neither statute nor praetors edict, that made an entry in them to another persons debit creative of a claim against the latter for certa pecunia credsta, that might be made effectual by an action under the Silian law. It must have been in exactly the same way that mutuum, formless loan of money, came to be regarded as the third variety of certa credita pecunia, and to be held recoverable under the same action. True, this could not have been attained without the co-operation of the jud ices. But then each case was as a rule tried by a single private citizen, whose office ended with his judgment, and who was untrammelled by the authority of any series rerum judicatarum.i He had simply to decide whether in his view expensilation or formless loan created such an obligation as was covered by the words pecuniani dan oportere. There may for a time have been a divergent practice, contradictory findings, as Cicero says there were in his day upon the question whether aequitas or jus strictum was to be applied to the determination of certain matters; but the eventual unanimity of judicial opinion in one direction was but the expression of the general sentiment of the citizens, of whom the judices were the representatives.
These are but examples of the way in which consuetudmamy law was constructed. It required the combined action of the laity and the judices, both at times acting under professional advice; in some cases even that of the praetors was necessary. It would have It was not until the Empire that a series rerum perpetuo smmiliter judicatarum, a uniform series of precedents, was held to be law. During the Republic a judge was much freer, and not only entitled but bound to decide according to his own notion of what was right, taking the risk of consequences if his judgment was knowingly contrary to law.
been impossible, for instance, to have introduced the consensual Contracts into the Roman system and determined what were the obligations they imposed on either side, without magisterial cooperation in framing the formulae that were to be submitted to the judges. Taking the action on sale as an illustration, the formula substantially was this: It being averred that the defendant sold such or such a thing to the plaintiff, whatever, judge, it shall appear that the defendant ought in good faith to give to or do for the plaintiff in respect thereof, in the money equivalent thereof condemn the defendant; otherwise, acquit him. It is very manifest that the free hand here given to the judge must immensely have facilitated the reception of customary doctrine into the law. The judge was to a great extent the spokesman of the forum; his judgment was formed in accordance with current public opinion, which he had ample opportunity of gauging; it was the reflection of that general sentiment of right, which, phrase it how we may, is the real basis of all customary law. And so in an action for establishing a right of property in a res nec mancipi. The formula was very simple:
If it appear that such or such a thing belongs to the plaintiff in quiritary right, then, judge, whatever be its value for the plaintiff, in that condemn the defendant; should it appear otherwise, acquit him. The primary duty of a judge on such a remit was to determine whether the title on which the plaintiff founded his pretensions gave him a right that came up to property; and it can hardly be disputed that it was by the decisions of a series of judges, in a series of such actions, that the long list of natural modes of acquiring property given by Justinian under technical names was gradually brought into view. Those decisions, whether upon the obligations of a vendor, direct or indirect, or upon the sufficiency of a title founded on by a party averring a right of property by natural acquisition, doubtless were in many cases arrived at under professional advice, and were in all cases embodied in judgments. But that does not in the least deprive the doctrine deduced from them of its character of customary law. It was not until the Empire that the opinions of the jurists submitted to a judge (responsa prudentium) were invested with binding authority. During the Republic, if a judge deferred to them, it was simply because he regarded them as in consonance with well-qualified public opinion; and what a series of consistent judgments of this sort built up was in the strictest sense a law based on consuetude.
As regards the professional jurists in particular it has already been observed that, according to the testimony of the Roman historians, the law was a monopoly of the patricians down at least to the middle of the 5th century of the city. Livygoessofar ~. sionaj as to speak of it as in penetrctlibus pontificuni repositum, es among the secrets of the pontifical college. It was so ~j S
doubtless during the regal period. But after the publi- ~ cation of the XII. Tables this could be the case only in a qualified sense, the po~itiffs becoming the official interpreters of that which in the letter was patent to the world. The fits Flavianum, with its formulary of actions, about the year 304 B.C., the practice of giving advice in law in public adopted by Tib. Coruncanius in the beginning of the 6th century, and the Tripertita (also called Jus Aelianuni), embodying the current interpretallo, some fifty years later, put an end not only to pontifical but to patrician monopoly.f From this time onwards there was a series of jurists (jurisconsulti, jurispeniti, jurisprudentes or prudentes, as they were styled), gradually increasing in number and eminence, of whom a list is given by Pomponius, and many of whom are signalized by Cicero, particularly in his Orator and Brutus. They occupied themselves in giving advice to clients (see PATRON AND CLIENT), teaching, pleading at the bar, framing styles of contracts, testaments, and various other deeds of a legal character, or writing commentaries or shorter treatises on different branches of the law.f iii. Substantive Changes in the Law during the Period.
The Publician Edict .T here were necessarily many changes during the period in the law of property and of minor real nights,~ several of them of no mean importance. But the greatest of all was that effected by the Publician Edict,4 indirectly ~ recognizing the validity (I) of what Theophilus calls edict.
bonitary ownership as an actual though inferior ownership of res mancipi, and (2) of what got the name of bonae fidei possesslo i There is some doubt whether the fits Aelianum mentioned by Pomponius (Dig. i. 2, 2, 7) was not an independent collection of actions by Sextus Aelius different from his Tripertita mentioned (Dig. i. 2, 2, 38). See Bremer, Jurispr, Ante-Ha4riana (1896), i. p. 15.
i Sank,, Zur Geschichte der rm. Rechtswissenschaft (Konigsberg, 1858); Grellet-Dumazeau, Etudes sur le barreau remain (2nd ed., Paris, 1858); Karlawo, Rm. Rechtsgesch. i. 61; Ruby, Introd. to Digest, chaps. vii. and viii.; Jors, Rm. Rechtswissenschaft (1888), vol. i.; Bremer, Junispr. Antehadriana, vol. i.
~ See Ribbreau, Thorie de 1 in bonis habere ou de la pro pniet pretorienne (Paris, 1867); Huschke, Das Recht der Publicianischen Klage (Stuttgart, 1871/2); Schulin (rev. Huschke), in the Knit.
Vierteljahrschrift, xviii. (1876), 526 seq.; Lenel, Beitrdge zur Kunde d. praetorischen Edicts: I. Das Public. Ed. (Stuttgart, 1878); Appleton, Histoire de la proprit prtorienne (Paris, 1889);
as a fictitious ownership of either res mancipi or res nec mancfpi, valid against all the world except the true dominus. The accounts we possess of this edict are somewhat inconsistent and even contradictory; the explanation may be that it went through a process of amendment and expansion at the hands of successive praetors, and that eventually it may have had more than one section, without our always being able to say to which of them the criticism of a particular commentator is directed. But there is no doubt of its general tendencyof the defects it was meant to correct and of the way in which the correction was accomplished.
One of the defects was this: if a man had taken a transfer of a res mancipi from its rightful owner, but simply by tradition instead of by mancipation or cession in court, he did not Domin- acquire dominium ex jure Quiritium, and the transferrer turn remained undivested. The result was that the latter bozil- was in law entitled to raise a rei vindicatio and oust the larium. transferee whose money he might have in his pocket,while if a third party had obtained possession of the thing, but in such a wa~y as not to be amenable to an interdict, the transferee could have no effectual vindication against him, as he was not in a position to prove dominium exjure Quiritium. The first difficulty was overcome by the excepiio rei venditae et traditae, also a praetorian remedy, and probably older than the Publician; to the transferrers vindication on the strength of his unextinguished quiritary right the transferee pleaded sale and delivery as an effectual praetorian defence. But, when a third party was in possession, and the transferee by simple delivery had to take the initiative, the position was more complicated. Such third party might be in perfect good faith; he might even have acquired from the original transferrer and fortified his acquisition with a formal conveyance. But that was no sufficient reason in equity why he should be allowed to defeat the prior right of the original transferee, who, if he had possessed for the requisite period of usucapion before the third party came upon the scene would have cured the defect of the informal delivery and acquired an unassailable quiritary right. So the praetor announced in his edict that, if a man came to him and represented that he had bought a res mancipi from its owner, and had had it delivered to him, but had lost possession within the period of usucapion, he (the praetor) would allow him a vindication embodying a fiction of completed usucapion (infra), with which he might proceed either against the transferrer or any third party withholding the thing in question.
The publication of such an edict and the formula of the action based upon it (which, though of praetorian origin, was in many respects dealt with as just a variety of the rei vindicatio) had almost the same effect as if the legislature had directly enacted that in future delivery of a res mancipi in pursuance of a sale or other good cause would confer a right of ownership in it even before usucapion had been completed. Till completed, however, the transferee was not quiritary owner: the thing in question was only in bonis, of his belongings, and the legal title, though an empty one nudum jus Quiritiitmremained in the transferrer; it was only with the completion of the usucapion that it became the transferees pleno jure. The inevitable result of the recognition of this tenure in bonis was that mancipation came to be regarded in many cases as an unnecessary formality; and the marvel is that it continued to hold its ground at all. The explanation may be that it afforded a substratum for and gave force of law to the verba nuncupata that accompanied the negotium per aes et libram; and, although many of these might quite well be thrown into the form of stipulations, yet there were others that it may have been thought safer to leave to take effect under the provisions of the earlier law.
The second case that was met by the Publician Edictwhether as originally published or by an amendment of it cannot be deter minedwas that of the bona fide transferee of a thing by Bonac purchase or other sufficient title who, having lost possession fidel of it before usucapion, found to his cost that the transferrer possessio. had not been its owner, that no ownership therefore had been transmitted to him (the transferee), and that consequently he was not in a position to raise a vindication with its averment of dominium ex jure Quiritium.i As against the true owner, whose property had been disposed of by a stranger behind his back, there would be no Lenel, Palingenesia, ii. pp. 511 seq.; Girard, Manuel, 4th ed. pp. 348
seq.; Lenel Edict. Perpet. 2nd ed. 164, and references in n. 10
This case is the only one alluded to by Justinian (Inst. iv. 6, 4). He had abolished the distinction between quiritarian and bonitarian property, which had, he says, become in practice a mockery (Cod. vii. 25), and so it was unnecessary for him to mention the other. Leiiel, in the second edition of his Edictum Perpetuum, i. p. 164, gives strong reasons for holding that there was from the beginning only one edict and one formula which was applied alike to bonitary ownership and bona fide possession. Cf. Appleton, l.c. i. p. 49. For the different theories, see Girard, Textes, 3rd ed. pp. 13738. What was the nature of the so-called actio Publiciana recissoria in which completed usucapion was feigned not to have taken place, seems doubtful. Inst. iv. 6, ~ 3, 5. See Cuq. Inst. fund. vol. ii. 2nd ed. p. 722 n.; Lenel, Edict. Perpet. pp. 11719.
equity in such an action, and the owner was given an effectual exceptio justi dominii; but as against all the world except the true owner (and perhaps a person who also was in cause usucapiendi), his better right was recognized by the praetor, who accorded to him a vindication proceeding on a fiction of completed usucapion, for usucapion would cure the defect of his title, just as it did that of the bonitarian owner. In this way the praetors introduced that bonae fidei possessio which was worked out with much skill by the jurists of the early Empire, and which assumed very large proportions in the Justinianian law when the term of prescription had been greatly extended, and the difficulty of proving property (as distinguished from bona fide possession) consequently very much increased. The Publician action was also in time made applicable in modified form to servitudes and other real rightf as much as to property.
Development of the Law of Contract.2It is impossible within the limits of an article such as this to indicate a tithe of the amendments that were effected on the law of obligations during the period whose distinguishing features were the rise of a Changes jus gentium and the construction of the praetors edict, In law of In every branch of it there was an advance not by steps contract. but by stridesin that of obligations arising from contract, of those arising from delict, and of those arising from facts and circumstances, such as unjustifiable enrichment at another persons cost.3 The law of suretyship, in its three forms of sponsio, fidepromissio, and fidejussio, received considerable attention, and formed the subject of a series of legislative enactments for limiting a suretys liability; while that of agency, which was sparingly admitted in Rome, had a valuable contribution from the praetorian edict in the recognition of a mans liability, more or less qualified, for the contractual debts of his fihsifamilias and slaves, as also, and without qualification, for the debts properly contracted of persons, whether domestically subject to him or not, who were managing a business on his account, or whom he had placed in charge of a ship belonging to him. The development of the law in the matter of obligations generally was greatly facilitated by the praetorian simplification of procedure and the introduction of new forms of actionsthe instruction to a judge, Whatever in respect thereof the defendant ought to give to or do for the plaintiff, in that condemn him, preceded by a statement of the cause of action, giving wide scope for the recognition of new sources of liability.
The origin of the verbal contract of stipulation and its actionability under the Silian and Calpurnian laws have already been explained. It was theoretically a formal contract, i.e.
creative of obligation on the strength of the formal ques~ Stipu. tion and answer interchanged by the parties, even though ~ no substantial ground of debt might underlie it; but in time it became the practice to introduce wordsthe single word recte was enoughexcluding liability in case of malpractice (clausula dohi); and finally even that became unnecessary when the praetors had introduced the general exceptio deli, pleadable as an equitable defence to any personal action. And it was essentially productive only of unilateral obligation, i.e. the respondent in the interrogatory alone incurred liability; if mutual obligations were intended it was necessary that each should promise for his own part, with the result that two contracts were executed which were perfectly independent. Originally the only words that could be employed were spondes? on the one side, spondeo on the other; and in this form the contract was junis civihis and competent only to citizens (and noncitizens enjoying commercium ?). In time the words promittis? promitto, came to be used alternatively. They were, eventually at least, competent to peregrins as well as to citizens, although that may not have been until the stipulation had become of daily use amongst the former in the still simpler phraseology dabis? dabo, facies? faciam. Originally competent only for the creation of an obligation to pay a definite sum of money, and afterwards one for delivery of a specific thing other than money, the contract came in time, by the simplification of the words of interrogatory and response and especially by the substitution of the conditions of the formular system for the legis actiones of the Silian and Calpurnian laws, and the introduction of the actio cx stipulatu to meet cases of indefinite promiseto be adaptable to any sort of unilateral engagement, whether initiated by it or only confirmed. It was of immense service too outside the ordinary range of contract inwhat were called necessary (in contradistinction to voluntary) stipulations, of which a variety of illustrations are given infra, p. 569. In all directions advantage was taken of it to binda man by formal contract either to do or to refrain from doing what in many cases he might already be bound ipso jure to do or to abstain from doing, and that because of the simplicity of the remedyan action on 1Sce Bekker, Akilonen, i. c. 58, and App. D, E, F and vol. ii. c. 15, 16; Voigt, Jus naturale, &c., vol. iii. ~ 10624, and vol. iv. App. xix., xxi.
Such obligationsusually imposing the duty of restitution of tinjustifiable gainsfilled a considerable space in the practice and doctrine of the period, and early gave rise to a variety of brocards, e.g. Nemo cum alterius damno lucrari debet, Nemo damnum sentire debet per lucrum alterius, &c.
his stipulationthat would lie against him in the event of his failure.
A second form of contract that came into use to a considerable extent in the latter half of the Republic is what is commonly called Literal the literal contract, or, as Gaius phrases it with greater contract, accuracy, the no-men transscriplicium. Notwithstanding the prolific literature of which it has been the subject, it must be admitted that in many points our knowledge of it is incomplete and uncertain. The prevalent opinion, formed before the discovery of the Verona MS. had made known Gaiuss description of it, and almost universally adhered to ever since, is that such contracts were created by entries in the account-books which the censors insisted that all citizens of any means should keep with scrupulous regularity. They are often alluded to by the lay writers; but the text principally relied on is what remains of Ciceros speech for the player Roscius. From the tenor of the argument in that case, and incidental remarks elsewhere, the conclusion has been formed that a citizen who made an entry in his codexwhether of the nature of a cash-book or a ledger is much disputedto the debit of another, thereby made the latter his debtor for a sum recoverable by an act io certae creditae pecuniae. Gaius in his description of the contract does not mention the codices; but his account is not inconsistent with the notion that the entries (nomina) of which he speaks were made in them. He says that those entries were of two Sorts, nomina arcane and nomina transscripticia. The former were entries of cash advances; and of them he observes that they did not create obligation, but only served as evidence of one already created by payment to and receipt of the money by the borrower. These entries were posted periodically (usually each month) from a day-book (adversaria), and there were distinct pages in the codex for what was thus paid out of the area (expensum) and what was paid in. Of the nomina transscnipticia Gaius says that there were two varieties, the entry transcribed from thing to person and that transcribed from one person to another, and that both of them were not probative merely but creative of obligation. The first was effected by a creditor (A) entering to the credit of his debtor (B) the liquidated amount of what the latter was already owing as the price of something purchased, the rent of a house leased, the value of work done, or the like, and then on the opposite page of the codex debiting him with same sum as expensum. The second was effected by A transcribing Bs debt in a similar way to the debit of a third party (C), hitherto a debtor of Bs, and who consented to the transactionA at the same time crediting B with the sum thus booked against C, and B in his books both crediting C with it (acceptilatio) and marking it as paid to A (expensilalio). These nomina lransscripticia were purely fictitious entries so far as any passing of money was concerned, though they had to be made by the direction (jussus) of the person made chargeable as debtor. Corresponding entries in the debtors own codex, though usual, do not seem to have been necessary.
All this at first sight seems just a series of book-keeping operations. But it was much more than that for the Roman citizens who first had recourse to it. There was a time, as formerly stated, when sale, and lease and the like, so long as they stood on their own merits, created no obligation enforceable at law, however much it might be binding as a duty to Fides or (as moderns would say) in the forum of conscience; to found an action at law it required to be clothed in some form approved by the jus civ-ile. The nexum may possibly have been one of those forms, the vendee or tenant being fictitiously dealt with as borrower of the price or rent due under his purchase or lease; the stipulation was another, the obligation to pay the price or rent being made legally binding by its embodiment in formal question and answer. But stipulation was competent only between persons who were face to face, whereas expensilation was competent also as between persons at a distance from each other. This of itself gave expensilation which, originally at least, was as much a negotium juris civilis as the sponsioone advantage over stipulation. But it had also a further advantage, which was not affected by the subsequent recognition of the real and consensual contracts as productive of legal obligation on their own merits: it enabled subsequent transcription of debts from one person to another to be effected. This last must have been of infinite convenience in commerce, not only by enabling traders to dispense with a reserve of coin, but by obviating the risks attending the transit of money over long d. Wissenschaften (1887), x. 515 seq., and adverse review of this work by Niemeyer in Z. d. Say. Stilt. (1890), xi. 312 seq.; Karlowa, Rom. R. G. ii. 74657; Mitteis, Z. d. Say. Stift. xix. 230 Seq.
distances. It was this that led, as Theophilus says was the case, to the conversion even of stipulatory obligations into book-debts; it was not that thereby the creditor obtained a tighter hold over his debtor, but that an obligation was obtained from him which in a sense was negotiable and therefore more valuable. But in other respects it was much more restricted than stipulation. Thus it only applied to money debts; it did not admit of conditions (though it did admit of a term); and it was never available to peregrir,s, though the Sabinians proposed that transcription a re in personam should be binding on them.
The evolution of the four purely consensual contractssale, location, partnership and mandatesupplies matter for one of the most interesting chapters in the whole history of the law. ConBut, as it is jlnpossible in such an article as this to attempt sensual to mark the successive stages inthe progress of all of them, contracts. we shall confine ourselves to sale. The others did not and could not follow identically the same course: location ran most nearly parallel with sale; but partnership and mandate, from their nature, not only started at a different point from the other two, but reached the same goal with themthat of becoming productive of obligation simply on the strength of consent interchanged by the partiesby paths that were sometimes far apart. Nevertheless, a sketch of the history of the origin of the contract of sale may be sufficient to indicate generally some of the milestones that were successively passed by all four.1
Going back as far as history carries us, we meet with it under the names of emptio and venditio, hut meaning no more than barter; for emere originally signified simply to take or acquire Contracts (accipere). Sheep and cattle (pecus, hence pecunia) may of sale.
for a time have been a very usual article of exchange on one side, and then came raw metal weighed in the scales. But it was still exchange, instant delivery of goods on one side against simultaneous delivery of so many pounds weight of copper on the other. With the reforms of Servius Tullius, as we have seen, came the distinction between res mancip-i and res nec mancipi, and with it a regulated mancipation of the former. It was still barter; but along with it arose an obligation on the part of the transferrer of the res mancipi to warrant the transferee against evictiona warranty that was implied in the mancipation. Whether this rule obtained from the first or was the growth of custom it is impossible to say; but it is probable that it was the XII. Tables which fixed that the measure of the transferrers liability to the transferee in the event of eviction should be double the amount of the price. Equally impossible is it to say when the practice arose of embodying declarations, assurances and so forth in the mancipatiori (leges mancipii), which were held binding on the strength of the negolium juris civilis in which they were clothed. They received statutory sanction in the Tables, in the words already referred to more than once cum nexum faciet mancipiumque, uti lingua nuncupassit, ita jus esto, which means in effect whatever shall by word of mouth be declared by the parties in the course of a transaction per aes et libram in definition of its terms shall be law as between them.
The substitution, by or soon after the decemvirs, of coined money, that was to be counted, for rough metal that had been weighed, converted the object of transfer on one side into price (pretium), as distinguished from article of purchase (merx) on the other; and sale thus became distinct from barter. In contemplation of the separation of the mancipation and the price-paying, and the transition of the former into a merely imaginary sale, the decemvirs enacted that, mancipation notwithstanding, the property of what was sold should not pass to the purchaser until the price had bee:m paid or security by sureties (vades) given for it to the vendor; and it was probably by the interpretation of the pontiffs that to this was added the rulethat until the price was paid no liability for eviction should attach to the transferrer (or auctor). The reason perhaps of the provision on this point in the XII. Tables was that a vendor who had mancipated or delivered a thing sold by him before receiving the price had no action to enforce payment of the latter; and in such circumstances it was thought but right to give him the opportunity of getting back the thing itself by a real action. It might be, however, that the price had been paid, and yet the vendor refused to mancipate. It was long, apparently, before the purchaser could in such a case compel him to do so. After the introduction of the legis actio per condictionem he (the purchaser) had undoubtedly the power to recover the money on the ground of the vendors unjustifiable enrichmentthat the latter had got it for a consideration which had failed (causa data, causa non secuta); and it is possible that before that he had a similar remedy per judicis postulalionem or by an action in factum.
Down to this point, therefore, say the beginning of the 6th century, there were several obligations consequent on sale of a res mancipi; but not one of them arose directly out of the sale itself, or could be enforced simply on the ground that it had taken place. I The vendor was bound to support the purchaser in any action by a third party disputing his right, and to repay him the price twofold in the event of that third partys success; and he was bound, moreover, to make good to him any loss he had sustained through a deficiency of acreage he had guaranteed, non-existence of servitudes he had declared the lands enjoyed, existence of others from which he had stated they were free,i incapability of a slave for labor for which he was vouched fit, and so on. But breaches of these oblig~tions were probably all regarded as of a delictual character; the obligations were binding, not in virtue of the sale per Se, but of the transaction per aes et libram superinduced upon it; and, if the vendor had at any time to return the price on failure to mancipate what he had sold, it was not because he had committed a breach of contract, but because he had unjustly enriched himself at the purchasers expense.
In sales of res nec mancipi, just as in those of res mancipi, a vendor who had been incautious enough to deliver his wares before he had been paid, or had got stipulatory security for the price, or had converted it into a book-debt, might recover them by a real action if payment was unduly delayed; while the purchaser who had paid in advance but failed to get delivery might also get back his money from the vendor on the plea of unwarrantable enrichment. But, as mancipation was, as is generally supposed, incompetent for carrying the property, some other machinery had to be resorted to than that of the copper and the scales for imposing upon the vendor an obligation of warranty against eviction, defects and so forth. What it was is a question much controverted among modern writers. It may be that, until trade began to assume considerable proportions, and when a transaction was between citizens, a purchaser was content to rely partly on the honesty of his vendor, partly on the latters knowledge that he ran the risk of an action for theft if what he sold belonged to another,2 and partly on the maxim common in all ages and climes, caveat emptor. When it was one between a citizen and a peregrin, a different set of rules of course came into operation; for between them disputes were settled by actions in fec/urn before recuperators, whose decisions were arrived at very much on considerations of natural equity. On the whole, while admitting it to be quite maintainable that the urban praetors, under the influence of jus gentium, granted arbi/ria for enforcing obligations of parties in sales inter cives even a good while prior to the lex Aebulia, the balance of evidence, we think, is in favor of the view that it was the popularization of the stipulation that facilitated the development of sale into a bonaefidei contract.
We read of a satisdatio secundum mancipium, a stipulatio habere licere and a s/ipulatio duplae. The nature of the first is obscure; it seems to have been connected with mancipatory sales, con- and probably to have been the guarantee of a sponsor for firmaioi7 the liabilities imposed upon the vendor by the transaction 7;~ per aes et libram and the verba nuncu pa/a that were covered by it.~ The stipulation habere licere occurs in Varro, in a collection of styles of sales of sheep, cattle, &c., some of which he says were abridgments of those of M. Manilius, who was consul in the year 149 B.C. It was the guarantee of the vendor of a res nec mancipi, or even occasionally of a res mancipi sold without mancipation, that the purchaser should be maintained in possession of what he had bought; it entitled him to reparation on eviction, measured not by any fixed standard but according to the loss he had sustained. It cannot have been introduced, therefore, until after the Lex Aebutia and the formulation by the praetor of the ac/b ex stipulatu. The stipulatio duplae was one binding the vendor for double the price in case of eviction, and was entered into not only where no mancipation of a res mancip-i took place or one which might be challcngeable for invalidity, but also where valuable res nec mancipi were sold.
The idea of the stipulatio duplae may have been borrowed from the duplum incurred by a vendor on the eviction of a purchaser acquiring a thing by mancipation; for one of its earliest manifestations was in the edict of the curule aediles, who insisted on it from persons selling slaves, probably because the dealers were for the most part foreigners, and therefore unable to complete their sales per aes et lihrapn. Judging from Varro, it was a form of stipulation against eviction that in his time was used only in sales of slaves, although he adds that by agreement of parties it might be limited to a sim plum.
There were also stipulations against vices in the object sold. We learn from Varrowhat is also indicated in various passages of Plautusthat the vendor at the same time and in the body of the same stiputatio duplae guaranteed that the sheep or cattle he was selling were healthy and of a healthy stock and free from faults, Cicero says (De Off. iii. 16, 65) that, though by the XII. Tables it was enough if a vendor per aes et libram made good his positive assurances (u/i lingua nuncupassit, i/a jus esto), the jurists held him responsible for reticence about burdens or defects he ought to have revealed, and liable for a poena dupli exactly as if he had guaranteed their non-existence.
2 in rebus mobilibus. -. qui alienam rem vendidit et tradidit furtum committit (Gai. ii. 50).
See Lenel, Edict. Perpet. 2nd ed. p. 52!.
and that the latter had not done any mischief br which their owner could be held liable in a noxal action; and similarly that a slave sold was healthy aiid not chargeable for any theft or other offence for which the purchaser might have to answer. If any of these guarantees turned out fallacious, the purchaser had an actio ex stipulatu against the vendor: Whereas the plaintiff got from the defendant a stipulation that certain sheep he bought from him were healthy, &c., and that he, the plaintiff, should be free to hold them (habere licere), whatever it shall appear that the defendant ought in respect thereof to give to or do for the plaintiff, in the value thereof, judge, condemn him; otherwise, acquit him. It is an observation of Bekkers4 that the actio em p/i in its original shape was just a simplifica- o t~ of tion of the actio ex stipulatu on a vendors guarantees; ~to the stipulations to which we have been alluding had become em ti such unfailing accompaniments of a sale as to be matters of legal presumption, the result being that the words whereas this plaintiff bought from the defendant the sheep about which the action has arisen were substituted in the demons/ratio (as the introductory clause of the formula was called) for the detailed recital of what had been stipulated. Bekker justifies this by reference to the language of Varro, who seems to include under the words emp/io, venditso not merely the agreement to buy and sell but also the stipulations that usually went with it.
The introduction of an actio empti in this shape, however, was far from the recognition of sale as a purely consensual contract. If the price was not paid at once, the purchaser gave his stipulatory promise for it, or got some one on whom the vendor placed more reliance to do so for him, or else the vendor made a book-debt of it; and, if it had to be sued for, it was in all these cases by a condictio certae pecuniae and not by an action on the sale. If the price was paid but the thing purchased not delivered, the only remedy open to the purchaser was to get back his money by the same condiction, unless, indeed, the guarantee habere licere was held to cover delivery, in which case the purchaser might obtain damages in an actio ex stipulatu under the name of actio em p/i. But this ac/jo em p/i, whether raised on the ground of non-delivery, eviction 9r breach of some other warranty, was really an action on the verbal contracts that had accompanied the salea strictum jus action in which the judge could not travel beyond the letter of the engagements of the purchaser. In the latter years of the Republic, and probably a little before the time of Q. Mucius Scaevola, it was a bonae fidel action. How had the change come about? A single case of hardship may have been sufficient to induce it, such as the defeat of a claim for damages for eviction on the ground that the stipulatory guarantee had been accidentally overlooked. Ulpian says: As the stipulatio duplae is a thing of universal observance, action or~ the ground of eviction will lie ex empto if perchance the vendor of a slave have failed to give his stipulatory guarantee, for everything that is of general custom and practice ought to be in view of the judge in a bonae fidel judicium.
Very little was required to convert the s/nc/i juris ac/ia empti, really nothing more than an ac/so cx stipulatu, into a bonae fidel onesimply the addition by the praetor of the words on considerations of good faith (ex fide bona) to the whatever the defendant ought to give to or do for the plaintiff. The effect, however, was immeasurablenot that it did away with the practice of stipulatory guarantees, for Varro wrote after the time of Q. Mucius (who speaks of the action on sale as a bonaefidei one), and references to them are abundant in the pages of the classical jurists; but it rendered them in law unnecessary. It made sale a purely consensual contract in which, in virtue of the simple agreement to buy and sell, all the obligations on either side that usually attended it were held embodied without express formulation or (still less) stipulatory or literal engagement. And, in instructing the judges to decide in every case between buyer and seller suing ex empto or cx vendito on principles of good faith, it really empowered them to go far beyond general custom and practice, and to take cognisance of everything that in fairness and equity and common sense ought to influence their judgment, so as to enable them freely to do justice between the parties in any and every question that might directly or indirectly arise out of their relation as seller and buyer.6
The history of the four nominate real contractsmu/uum (i.e. loan of money or other things returnable generically), commodate (i.e. loan of things that had to be returned specifically), R, deposit and pledgeis even more obscure than that of the ea consensual ones.7 Down to the time of the Poetilian law COfl S.
loan of money, corn, &c, was usually contracted per aes et libram; and it is probable that on the subsequent disuse of the nexum the Bekker, Ak/ionen (1871), i. 156 seq. and 314 seq. -
i Ulp., Lib. I. ad ed. aedil., in Dig. xxi. I, fr. 31, 20.
6 The above view is supported in the main by Girard, Manuel, 524 seq. For other views see Pernice, Labeo, i. 456 seq.; Cuq, Inst. fund. 2nd ed. vol. i. pp. 226 sqq.
Demelius, in the Zeitschr. f. Rechtsgesch. (1863), ii. 217 seq.; Bekker, Aktionen, i. 306 seq.; Ubbelohde, Zur Gesch. d. benannten Real-contracte (Marburg, 1870); Huschke, Lehre vom Danlehn (Leipzig, 1882); Girard, Manuel, 4th ed. pp. 505 sqq.
obligation on a borrower to repay the money or corn advanced to him was made actionable, under the Silian and Calpurnian laws respectively, by a stipulation contemporaneous with the loan. With the rise of jus gentium loan became actionable on its own meritsthat is to say, the advance and receipt of money as a loan of itself laid the borrower under a stricti juris obligation to repay it, even though no stipulatory engagement had intervened; the resin this case the giving and receiving mutul causacompleted the contract. The obligation that arose from it was purely unilateral, and enforceable, where the loan was of money, by the same action certae pecuniae creditaeas stipulation and literal contract; and so strictly was it construed that interest on the loan was not claimable ~long with it, the res given and received being the full measure of the bligation of repayment. The other threecommodate, deposit and pledgebecame independent real contracts much later than mutuum, possibly not all at the same time, and none of them apparently until very late in the Republic. All of them, of course, had been long known as transactions of daily life; the difficulty is to say when they first became actionable in the urban praetors court (for in transactions with peregrins actions in factum would doubtless be granted), and under what guise.
It is impossible within the space at our command to criticize the various theories entertained of their vicissitudes, for they necessarily vary to some extent in regard to each. We must content ourselves, therefore, with the simple statement that eventually, and within the period with which we are now dealing, they came to be recognized as independent real contracts, the res by which they were completed being the delivery of a thing by one person to another for a particular purpose, on the understanding that it was to be returned when that purpose was served. And it is to be noted that, while mutuum transferred the property of the money lent, the borrower being bound to return not the identical coins but only an equal amount, in pledge it was only the possession that passes, while in commodate and deposit the lender or depositor retained both property and (legal) possession, the borrower or depositary having nothing more than the natural detention. In all but mutuum, therefore, there was trust; the holder was bound, to an extent varying according to circumstances, to care for what he held as if it were his own, and entitled to be reimbursed for outlay on its maintenancebound to return it, yet excused if his failure to do so was due to a cause for which in fairness he could not be held responsible. Consequently the actions on these three contracts, differing from that on mutuum, were all bonae fid.ei, the judge being vested with full discretion to determine what was fair and equitable in each individual case.
Praetorian Amendments on the Law of Succession.The most important change in the law of succession during the latter half of the Republic was due to the praetors. They introduced, under lrae- the technical name of bonorum possessio, what was really b beneficial enjoyment of the estate of a deceased person without the legal title of inheritance. There is much to p sess lead to the conclusion that the series of provisions in regard to it which we find in the Juhian consolidation of the Edict were the work of a succession of praetors, some of them probably not under the Republic but under the Empire; but it will be convenient to give here a general view of the subject as a whole, disregarding the consideration that some of its features may not have been given to it within the period now under notice.
J ustinian, speaking of the origin of bonorum possessio, observes that in promising it to a petitioner the praetors were not always actuated by the same motives; in some cases their object Testa- was to facilitate the application of the rules of thejus civile, men ~ in some to amend their application according to what they believed to be the spirit of the XII. Tables, in others, again, to set them aside as inequitable.2 It is not unreasonable to assume that it was with the purpose of aiding the jus civile that the first step was taken in what gradually became a momentous reform; and it is probable that this first step was the announcement by some praetor that, where there was dispute as to an inheritance, and a testament was presented to him bearing not fewer seals than were required by law, he would give possession of the goods of the defunct to the heir named in it.i In this as it stands there is nothing but a regulation of possession of the bona of the inheritance pending the 2 Inst. iii. 9 pr. and I.
Cic., In Verr. II. i. 45, 117. He says (writing in 70 n.c.) that an edict to that effect was already tralaticium, i.e. had been adopted year after year by a series of praetors. Gaius (ii. 119) speaks of seven at least as the requisite number of seals; i.e. probably those of the tibri pens and the five citizen witnesses, and that of the antestatus, whose functions are not well understood, but whose official designation appended to his seal recurs so regularly in inscriptions as to leave no doubt that his was originally the seventh.
question of legal right. Just as between two parties contending about the ownership of a specific thing in a rei uindicatio tne praetor first settled the question of interim possession, so did he promise to do here when a question was about to be tried nbout the right to an inheritance (si de hereditate ambigitur). It was a provisional arrangement merely, and very necessary in view of the state of the law which permitted a third party, apart from any pretence of title, to step in and complete a usucapio pro herede by a years possession of the effects of the inheritance. Even at the time when the Edict was closed it was not necessarily more than a provisional grant; for, if heirs-at-law of the deceased appeared and proved that, although the testament bore on the outside the requisite number of seals, yet in fact some solemnity of execution, such as the familiae venditio or testamenti nuncupatio, had been omitted, the grantee had to yield them up the possession that had been given him pending inquiry. It was only by a rescript of Antoninus Pius that it was declared that a plea by the heir-at-law of invalidity of a testament on the ground of defect of formalities of execution might be defeated by an exceptio doli, on the principle that it was contrary to good faith to set aside the wishes of a testator on a technical objection that was purely formal. Thus was the bonorum possessio secundum tabulas, i.e. in accordance with a testament, from being originally one in aid of the jus civile, in course of time converted into one in contradiction of it. That the motives and purposes of the series of praetors who built up the law of bonorum possessio must have varied in progress of years is obvious; and, once the machinery had been invented, nothing was easier than to apply it to new ideas. The praetor could not make a man heirthat he always disclaimed; but he could give a man, whether heir or not, the substantial advantages of inheritance, and protect him in their enjoyment by praetorian remedies. He gave him possession of the goods of the deceased, with summary remedies for ingathering them, which, once in his hands, would become his in quiritarian right on the expiry of the period of usucaption; and subsequently, by interpolation into the formula of a fiction of heirship, he gave him effectual personal actions against debtors of the deceased, rendering him liable in the same way to the deceaseds creditors.
Another variety of the bonorum possessio was that contra tabulas in opposition to the terms of a testament. If a testator had neither instituted nor expressly disinherited a son who was one of his sui heredes, then his testament was a nullity, and the child Confr~. passed over had no need of a praetorian reiitedy. Where tsbuMr. sui heredes other than sons were passed over the jus civile upheld the will but allowed them to participate with the instituted heirs by a sort of accrual. But the Edict went further; for, if the institute was a stranger, i.e. was not a person in the potestas of the testator with the child passed over, then, on the petition of the latter, the praetor gave him and any other sui concurring with him possession of the whole estate of the deceased as on intestacy, the institute being left with nothing more than the empty name of heir. Another application of the bonorum possessio contra tabulas was to the case of emancipated children of the testator. By the jus civile he was not required to institute or disinherit them; for by their emancipation they had ceased to be sui heredes, and had lost that interest in the family estate which was the reason why they had to be mentioned in the testament of their paterfamiias. The praetors although probably not until the empire, and when the doctrines of the jus naturale were being more freely recognizedput them on the same footing as unemancipated children, requiring that they also should be either instituted or disinherited, and giving them bonorum possessio if they were not. It was contra tabula~ in the sense that it displaced the instituted heirs either wholly or partially wholly when the institutes were not children of the deceased, partially when they were. In the latter case, at least when sui were affected by it, the grant of bonorum possessio was under the equitable condition that the grantees should collate or bring into partition all their own acquisitions since their emancipation.
The third variety of bonorum Z5ossessio was that granted ab intestato. The rules of the jus civile in reference to succession on intestacy were, as we have seen, extremely strict and artificial. They admitted neither emancipated children nor agnates who had undergone capitis deminutio; they es O~ admitted no female agnate more remote than a sister; if the nearest agnate or agnates declined, the right did not pass to those of the next degree; mere cognates, kinsmen of the deceased who were not agnates, e.g. grandchildren or others related to him through females and agnates capite minuti, were not admitted at all; while a wife had no share unless she had been in menu of the deceased and therefore fihiae loco. All these rules the praetors amended, and so far paved the way for the revolution in the law of intestate succession which was accomplished by Justinian.
They established four orders or classes of heirs. (I) Displacing the sui heredes of the jus ~ivile, they gave the first place to descendants (liberi), including in the term all those whom the deceased would have been bound either by the jus civile or the Edict to institute or disinherit had he made a will, i.e. his wife in menu, sons and daughters of his body whether in potest ate at his death or emancipated, the representatives of sons who had predeceased him, and adopted children in his potestas when he died. (2) On failure of hberi the right to petition for bonorum posses~io opened to the nearest collateral agnates of the intestate, tinder thrir oki name of legitimi heredes, (~) Under the jus civfle, on failure of Prae. agnates (and of the gens where there was one), the suctes~ ii~ sion was vacant and fell to the fisc, unless perchance it was ~,te~tte usucapted by a stranger possessing pro herede; The fre ~ quency of such vacancies was much diminished by the recognition by the praetor~ of the right of cognates to claim bonorum possessio in the third place. Who they had pri manly in view under the name of cognates it is impossible to say:
The epithet is most frequently applied by modern writers to kinsmen related through females; but in its widest sense it included all kinsmen without exception, and in a more limited sense all kinsmen not entitled to claim as agnates. There were included amongst them thereforealthough it is very probable that the list was, not made up at once, but from time to time by the action of ~a series of praetorsnot merely kinsmen related through females (who were not agnates), but also agnates of a remoter degree ~who were excluded as such because the nearest agnates in existence had declined, persoiss who had been agnates but by reason of Ca pills minutio had lost that character, female agnates more distantly related than sisters, and children of the intestate who at the time of his death were in an adoptive family. All these took according to proximity, but not beyond the sixth degree and the children of a second cousin in the seventh. (4) Finally, the claim passed to the survivor of husband and wile, assuming always that their marriage had not involved manus. This list constituted the praetorian order of succession on intestacy anlotig freeborn citizens. The praetorian order of succession to freedmen and etnancipati was necessarily different, the patron or quasi-patron taking the place of agnates; but it is too detailed and complex to be gone into here.
All these bonorum possessiones had to be forthally petitioned for. In that ab inlesta~o descendants were allowed a year for doing so, while other persons were limitedto 100 days, the period for those entitled in the second place beginning when that of those entitled in the first had expired, and so on. The grant was always made at the risk of the petitioner; nothing was assured him by it; it might turn out real and substantial (cum re) ot merely nominal (sine re), according as the grantee could or could not maintain it against the heir of the jus civile. For the latter Was entitled to stand on his statutory or testamentary right, without applying to bonorum possessio, althugh in fact he often did so for the sake of the summary procedure it supplied him for ingathening the, effects of the deceased.
The Law of Procedure.The use of the form~lar system of, pro-. cedure as alternative to that by the actions of the law com Law of menced long before the end of the period now under ~ consideration; and we have had occasion more than cedure. once to observe how greatly it facilitated the deyelopment of the institutions of property and contractual obligation. But as the change was only completed in the early Empire it will be more convenient to defer explanation of the nature of the new procedure in the meantime.
IV. THE Jus NATURALE AND MATURITY 01 ROMAN
(The Empire until the time of Diocletian.)
1. Charaderi stirs and Formative Agencies of the Law during I/fe Period.
Charactejistics generally and Recogltition of a Jus Naturale in parlicular.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 praetors edict, the recognition of simple consent as creative of a contractual bond, or the introduction of a new system of judicial p~qcedure; the est~bli~hment of ~ dass of patented jurists speaking as in a s usC 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 fthitful marriages, and the legislation of the same emperor and his immediate successor for regulation of the status of enfranchised slaves; but these, although of~ Vast importance in themselves, and the first of them infliencing the current of the law for centuries, yet left upOn it no permanent impression. It was .y much less imposing efforts-that it attained the perfectior~
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 j-us Quiritium became more and more circumscribed, and one after another of the formalities of the strict jus civile was abandoned. The manus of the husband practically disappeared; the patria polestar of the father lost much of Its significance by the recognition, notwithstanding it, of the possibility of a separa(e and independent estate in the child (peculium cast Tense) slaves might be enfranchised to a certain extent by informal manumission; res niancipi constantly passed by simple tradition, the right of the transferee being secured by the Publician action; servitudes and other rear rights informally cbnstituted were maintained, as effectual tuitiane pra,etoris; an heirs acceptance of a succession could be accomplished by any indication of his intention, without observance of the formal cretio of the eatlier 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 enforceable on the strength of formless contelnporneous agreements.
The preference accorded by the magistrates and jurists, and judges to the jus gentium over the jus civile is insufficient to account for these and many other changes in the Idea Of same direction, as well as for the ever-increasing a/us tendency evinced to subordinate word and deed nagurale.. to the volunta.s from which they arose. They are rather to be attributed to the striving on the part of many after a higher ideal, to which has been given the name of jus naturale~ It is sometimes skid that the notion of a isis nalurale as distinct from the jus genhium 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 ofhis Institutes a passage. from an elementary work of TJlpians, 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, and it may be attributed to a: habit, spdalTy noticeable in Ulpians writings, of making tripartite classifications., But though the classical jurists are undoubtedly indistinct in their conceptions about, the matter~ many ~of them refer again and again to jus naburale in ~the sense of law based on natural reason; and Gaius is the only one (Justinian following him) who definitely, though not consistently, makes it synonymous with jus gentium. There can be p0 question that the latter was much more largely imbued with precepts of natural law than was the jus civile, but it seems incorteat to say that natural law and jus genhium were identical; it is nou~h to cite but o1ie illustration., pointed out again and again in the te~tts: while the one admitted thefl legality of slavery,, the other denied it. While the juf civile studied the ihterest~ only of citizens, and the jus ~enhium those of freemen irrespective of nationality, the law 91 na~ture had theoretically a wider range and took all mankind within its purview. Thq doctrine of the jus gentisim agreed in this respect with that of the jsis civilethat a slave was nothing but a cba~el; yet we ,f~n.d the latter, when tinctOred with thc jus nats~rale~ recognizing many rights as competent to a, slwve, and even conceding that he might be debtor or creditor in a contract, although his obligation or claim could be givii effect to only indirectly, since he could neither sue n.~r b~ sued.2
Voigt thus summarizes the characteristics of this speculative Roman jus naturale:(I) its potent3al. universal applicability to all men, (2) among all peoples, (3) at alt times, end (4) its correspondence with the innate conviction of nigh,t (innere je,j,st~ Rechtlberzeugung).3 Its propositions, as gathered from of/us the pages of the juriSts of the period, he formulates thus flat urale (1) recognition of the tlalins of blood (sanguin-is tel cognalsonzs ratio); (2) duty of faithfulness to engagementsIs 1 Ulp. in Dig. xliv. 7 fr. ~. 1 Voctt. l.c. p. 3o4.
nature 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.i 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 unemancipateci 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 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 anothers 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 Voigts 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 theyusually in reference to a concrete casesought 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. 2
Influence of Constitutiona-l Ckanges.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, some times proud indeed of the history and traditions of Rome, Lracter yet in most cases free from prejudice in favor of instituof jurists tions 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 comit-ia 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 cx auctoritate principis to questions submitted to them by the magistrates and judges. It was still more so perhaps by Hadrians 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 friends. Again and again the office of praetoria1l ~refect, 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 honorable 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 A.D. 212 that Caracalla published his Constitution conferring ~ citizenship on all the free inhabitants of the Empire. x ens on Far-reaching as were its consequences, the primary purhi ~ pose was purely fiscal. The lex Vicesimaria, passed under Augustus, had imposed a tax of 5% on testaB~mphe mentazy inheritances and bequests, except where the whok 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 ths propensity of the well-to-do classes for single blessedness, followed by testamentary distribution of their fortunes amongsl their friends. But it affected only the successions of Rornar citizens, so that the great mass of the provincials escaped it. Caracalla, being needy, not only increased it temporarily to 10%, bul widened the area of its, operation by elevating all his free subjecn to the rank of citizens. The words of Ulpian regarding the con stitution 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 Caracallas successors, and there can be little doubt that among others it did not apply ~o Junian Latjns or peregrini d-editicii.. 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 vwos and mortis cause which previously had been incompetent for them. It did away with the necessity for regarding jus gentium as something distinct from jus cive. 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 menta insignificant. Besides various measures for the amendment of the criminal law, &c., there were three sets of en- ~ actmen~s 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 dc adulteriis ci de fundo dotali of IS n.c. and the lex Julia ci Papia Poppaea of A.D. 9the latter a voluminous matrimonial code, in which an earlier b ~
lex dc marita~idis ordinibus (i 8 B.C.) seems to have been incorporated, and which for two or three centuries exer,cised such an influence as to be regarded as one of the sources of Roman law almost as much as the XII. Tables or Julians consolidated Edict. It was often spoken of as the 2ex 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 J uvenal 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 Fufla-Caninian law of the year 2 B.C.~ the, Aelia-Sentian law of the year A.D. 4, and the Junia-Norban law of the year AdS. 19the last it is thought passed in the reign of Tiberius, but probably planned by Augustus.4 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 (I) 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 J unian 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 cause and to the prejudice of their patrons. This was the Junian Latinity so prominent in the p,ages of Gaius, but of which our limits exclude any detailed description.
The third set of enactments referred to included the two leges Juliaejudiciariae, of which we know but little. They were probably enacted in the year 17 B.C. One lex Julia seems to have ~
dealt with judicia publica and another with procdure in ~ ~ private litigations. Gaius, however, seems to refer to two leges Juliae judiciorum 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 Ulp. in Dig. i. 5 fr. 17. As to the effects of this constitutie Antonina, see Mitteis, Reichsrecht und Volksr., c. vi.
There is a long-standing controversy as to the date of this~ lea Junie, some writers placing it earlier than the lex Aelia-Sentie. See Girard, Manuel, 4th ed., p. Iz4, and authorities cited in Muirhead, Hist. Iniroduction, 286 n. 7-and 317 n. 6.
of legis actiones. The one regulating procedure in private suits at Rome must have been a somewhat comprehensive statute, as a passage in the Vatican Fragmentf 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. The opinion of Wiassak, already referred to, is that the judiciary laws made procedure by formulae compulsory, while the Aebutian law had ref t it optional. In all cases remitted to a unus judex or other private judges a formula was to be henceforth cotnpulsory; a legis echo could no longer be tried before private judges but only exceptionally by the centumviral court.i From the time of Tiberius onwards it was the senate that did the work of legislation, for the simple reason that the comitia Legisla- were no longer fit for it. And very active it seems to have tion of been. This may have been due to some extent to the fact senate, that so many professional 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 werethe principal statutory factOrs of what was called by both emperors and jurists the jus novumlaw that departed often very widely from the principles of the old jus civsle, 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 2nd and the beginning of the 3rd century the supremacy of the latter in the senate became rather too pronounced, men quoting the orahio in which he had submitted to it a project of law instead of the resolution which gave it legislative effect. No doubt such project 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 Severus Alexander to dispense altogether with the time-honored practice.
The Consolidated Edlctum Perpetuum.The edicts of the praetors, which had attained very considerable proportions before the fall Juhian of the Republic, certainly received some additions in the ~ early Empire. But those magistrates did not long enjoy the same independence as cf old; there was a greater imperium than theirs in the state, before which they hesitated to lay hands on the law with the boldness 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 almost 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 dtre. Hadrian apparently was of opinion that the time had come for writing its explicit, and giving it another and more enduring and authoritative shape, binding on all future magistrates. He accordingly, it is said, commissioned Salvius J uhanus to revise itor Julian, when urban praetor, may have done so at his own hand with the emperors approvaland the senate gave it binding force. It did not, however, become statute law; the distinction between jus civite and jus praetorium still continued.
The revised Edict unfortunately, like the XII. Tables, is no longer extant. It is only a very slight account we have of the revisiona line or two in Eutropius and Aurelius Victor, and a few lines in two of Justinians prefaces to the Digest. We may assume from what is said there that both abridgment and rearrangement of the edicts of the Urban praetor tOok place, 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 Julians work; they formed, in fact, a sort of addendum to it. 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 peregrinpractors, 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.i The consolidation got the name of Edictum Per petuum in a sense somewhat different from that formerly imputed to edicta per pelua as distinguished from edicta repentina; it became perpetual in the English sense of the word. Sanctioned by senatusconsult and by the emperor, it became a closed chapter so far as the praetors were concerned; for, though it continued for a time to hold its place on their album with itS formularies of actions, they had no longer any power to alter i Wlassak, Processgesetze, i. 191 sqq., and ii. 221 sqq.
2 It may be, however, that the edicts of the peregrin praetors and provincial governors were independently codified. See Girard, Manuel lmenta~re, 4th ed. 534. An attempt~ recently made by von Velsen, Z. d. Say. St. xxi. (1900), 73 sqq., to identify the edictum provinciale with that of the peregnn praetor from the time of Augustus is far from convincing and has received no support from other writers. See Kipp. Gesch. d. Quelten, p. 123 n~
or even perhaps make additions to it. Having ceased to be a mere efilux of their imperium and become a type prescribed by statute, its interpretation and amendment were no longer in their hands but in the hands of the emperor.
The Julian Edict was not divided into parts or books like Justinians Digest but only into titles, which were perhaps numbered and certainly were rubricated. Since the publication of Lenels great work, noted below, modern Romanists are agreed that the formularies of actions it contained were distributed in their appropriate places throtighout the work and not collected together in one place as used to be supposed. Thus a formula, based on the civil law (e.g. the rei vindicatio) appeared by itself (i.e. without any edict) as a separate head or subdivision of the title appropriate to it; while formulae based on the praetors imperium (e.g. that of the praetorian action de dolo) were placed under their respective edicts. The general arrangement of the subject-matter is not difficult to discover, as we have documentary evidence to a certain extent in writings which have come down to us. These are principally (1) the Digest of Justinian, in the prefaces to which we are told, expressly that it followed the order of the Edict except in certain places specially noticed; (2) the Code of Justinian; (3) the extracts from divers commentaries on the Edict by the classical jurists principally preserved in the Digest. As the inscriptions of these extracts contain the name of the author, the work and the particular book from which they are taken, they have proved of great help towards understanding the arrangementespecially the commentaries of Ulpian and Paul on the urban edict and the corn- mentary of Gaius on the provincial edict. Lend has shown that J ulians plan of arrangement was neither logical nor symmetrical, but adhered in great measure to the old order (tralatitious) of the urban praetors. The following fourfold division of the subjecthratter is, according to Lend (partially following Rudorff), clearly ascertainable: first, a series of titles dealing with the preliminary:
steps in all actions such as jurisdiction, summons, intervention of procurators and the like; second, titles dealing mainly with matters of ordinary procedure or rather with actions granted principally in accordance with statute (judicia legitima) as pe1~it-io heredibatis, tel vi-ndicahio, &c.; third, titles dealing with actions reiting principally on the magistrates imperium (judicia imperiO continentia); foui-th, execution of judgments, including bankruptcy, &c. These, four parts were followed by a kind of appendix containing in three titles the separate styles of interdicts, exceptions and praetorian stipulations. Finally, the edicts of the curule aediles, with their formulae also consolidated, were added at the end of the work. Fromthe fragments of the jurists preserved by Justinian (principally from the three above-mentioned commentaries, but also, to an important extent from Julian himself in his Digesta) repeated attempts have been made in modern times to reproduce the Edict in its entirety. Most of these are mere transcripts with attempted reconstructions of passages in Justinians Digest and of little value. The only really scientific and worthy critical efforts are those of Rudorif in I869 and, above all, of Lend in I883.~
The Responses of Patented Counsel.The right of responding under imperial authority (jus respondendi cx auctoritate principis), first granted by Augustus and continued by his successors down to about the time of Severus Alexander, did not Responsea imply any curtailment of the right of unlicensed jurists ~ d to give advice to any one who chose to consult them. eme What it did was to give an authoritative character to a response, so that the judge who had asked for it and to e~0 uhf) whom it was presentedfor the judges were but private citizens, most of them unlearned in the lawwas practically bound to adopt~ it as if it had emanated from the emperor himself. It may be that Augustus was actuated by a political motive-~----that he was desirous by this concession to attach lawyers of eminence to the new rgime, and prevent the recurrence of the evils experienced during the Republic from the too great influence of patrons. But, whatever may have prompted his action in the matter, its beneficial consequences for the law can hardly be over- rated. For the powers with which they were invested enabled the patented counsel to influence current doctrine not speculatively merely but positively (jura condere), and so to leaven their interpretations of the jus civile and jus honorarium with the principles of natural law as to give a new complexion to the system.
Instead of giving his opinion like the unlicensed jurist by word of mouth, either at the request of the judge or at the instance of one of the parties, the patented counsel, who did not require to ~ Rudorff, Dc jurisdictione edictum: edicti j5er~etui quae reliqua sunt (Leipzig, 1869), and rev, by Brinz in the Krit. Vierteljahr. schrift (1870), xi. 471 sqq.; Lenel, Das Edictum Perpeluum: em Versuch zu dessen Wiederherstellung (Leipzig, 1883), 2nd ed., 1907 (French ed. translation by Peltier, 2 vols., 19013). The last gained the Savigny Foundation Prize offered by the Munich Academy in 1882 for the best restitution of the formulae of Julians Edict, but goes far beyond the limited subject prescribed; see Brinzs report upon it to the Academy in the Zeitschr. d. Say. Shift. (1883), vol. Iv. ROm. Abtheil, 164 sqq. See Karlowa, Rm. Rechtsgesch, i. 62841; Kruger, Gesch. d. Quellen, 84 sqq.
give his reasons, reduced it to writing and sent it to, the court under seal. Augustus does not seem to have contemplated the possibility of conflicting responses being tendered from two or more Jurists equally privileged. It was an awkward predicament for ,a judge to be placed in. Hadrian solved the difficulty by declaring that in such a case the judge should be entitled to use his own discretion.i That on receiving a response with which he was dissatisfied he could go on calling for others until he got one to his mind, and then pronounce judgment in accordance with it on the g~round that there was difference of opinion, is extremely unlikely, The more probable explanation of Hadrians rescript is,, that the number of patented responding counsel was very limited; that a judge, if he desired their assistance, was required by this rescript to consult them all (quorum omnium Ii, &c.); that, if they were unanimous, but only then, their opioion had force of statute (legis vicem optinet); and that when they differed the judge must decide for himself.
Constitutions of the Emperors.2Gaius and Ulpian concur in holding that every imperial constitution, whether in the shape of rescript, decree or edict, had the force of statute. It n~ay S 0 be that by the time of Ulpian that was the prevailin ~Cf0I~S. opinion; but modern criticism is disposed to regar the dictum of Gaius, written in the time of Antoninus Pius, as colored by his Asiatic notions, and not quite accurate so far at least as the edicts were concerned. Apart from executive laws (leges datae), the early imperial edicts were theoretically rather part of the jus honorarium. As supreme magistrate the emperor had the same jus edicendi that consuls and praetors had had before him, and used it as they did to indicate some course of aotion~he meant to adopt. and follow or some relief he proposed to grant. His edicts were as a rule drawn up in writing in the imperial council and publicly notified in all parts of the Empire. His range, ,of course in respectof his imperium, was much greater than that of the praetors had been; for his authority endured for life, and extended over the whole Empire and every department of government. But in principle, it is thought, his successor on the throne was no more bound to adopt any of his edicts than a praetor was tO adopt those of his predecessors. That it was not unusual for an edict to be renewed, and that it occasionally happened that the renewal was not by the immediate successor of its original author, are manifest from various passages in the texts. Sometimes, when its utility had stood the test of years, it was transmuted into a senatusconsult; this fact proves of itself that an edict per se had not the effect of statute. But their adoption by a succession of two or three sovereigns, whose reigns were of average duration, may have been held sufficient to give them the character of consuetudinary law; and, by a not unnatural process, unreflecting public opinion may have come to impute force of statute to the edict itself rather than to the longa consuetudo that followed on it, thus paving the way for the assertion by the sovereigns of the later Empire of an absolute right of legislation, and for the recognition of the lex edictalis as the only form of statute.
The imperial rescripts and decrees (rescripta, decreta) apparefitly acquired force of law (legis vicem oblinent) pretty early in the Empire, and their operation was not theoretically R.scripts limited to the lifetime of the prince from whom they more than authoritatively interpret existing law, although the boundary between interpretation and new law, sometimes difficult to define, was not always closely adhered to. Thus the decretum Marci, penalizing procedure by self-help, and the epistula Hadridni, introducing the beneficium division is among co-sureties, are notable instances of authoritative interpretation. The rescript was strictly a written answer by the emperor to a petition, either by an official or a private party, for an instruction as to how the law was to be applied in any particular case to the facts set forth: when the aflswer was in a separate writing it was usually spoken of as an epistula; when noted at the foot of the application its technical name was subscriptio. But sometimes also general orders of the emperors addressed to some official and intended for a province or particular community were classed under the head of rescripts. The decree was the emperors ruling, orally announced, ima case submitted to him judicially; it might be when it had been brought before him in the first instance extra ordinem, or when it had been remo- ed by supplicatio from an inferior court in its earliest stage, or when it came before him by appeal. Such decrees were duly Gaius, i. 7; Justinian, Inst. 1.2, 8. The, passages from Pomponius in Dig. i 2, 2, ~ 48, 49 are of doubtful meaning, and different interpretations of them have been given. Cf. Sohm. Institutionen (translation by Ledlie, 2nd ed.), p. 97; Girard, Manuel, p. 70; Kipp, Geschichte d. Quellen, p. 99.
2 Gai. 1.5; Ulp., in Dig., i. 4, fr. I, 1; Mommsen, Rm.
Staatsrecht, ii. 843 seq.; Wlassak, Krit. Stud-ien zur Theorie der Rechtsquellen im Zeitalier d. kiass. Juristen (Gratz, 1884); A. Pernice (crit. Wlassak), in Zeitschr. d. Say. Stift. (1885), vi. Rosn.
Abtheil. 293 seq.~ Karlowa, Rom. Rechtsgesch. i. 85; Kipp, Quellen. 59 seq.
recorded and kept ap~ed aria. It was theoretically as a judge that the emperor pronounced hii decree, though in practice he some~ times went beyond the case in hand, evolving new doctrines. Proceeding as it did from the fountain of authoritative, interpretation, the, decree had a value far beyond that of the sentence of an inferior court (which was law only as between the parties). and. formed a frecedent which governed all future cases involving the same question. Those rescripts and decrees constituted one of th~ most important sources of the law during the first three centuries of the Empire, and were elaborated with the assista~ice of the most eminent jurists of the day, the rescripts being the special charge of the ,magister libellorum,. From the time of the Gordians to that of the abdication of Diocletian they were almost the only channel of the jus scri plum that remained.
A fourth class of imperial constitutions were the so-called mandata. These, however, were mainly of the nature of instructions M d by theemperors to individual imperial, officials, similar to an aM. edicts, and dealt with public law for the most part.
Professional Jurisprudence.The present period of legal history is by modern writers sometimes called the classical age of jurisprudence, though that term is more usually and correcty restricted to the years between Hadrian and the close of The Severus Alexanders reign. It has,been called classical,, on the analogy of the Augustan,age of literature, from the celebrity of the jurists who flourished during it and the scientific pre-eminence of their works. For accounts of the great jurists, see articles GAlus, &c., and also H. J. Robys Introduction to the Study of Justinians Digest3 and Professor Karlowas Rechtsgeschichte~4 For an account of the extant remains of their writings, such as the Institutes of Gaius, the Rules of Ulpian, the Sentences of P91 and a variety of other works, reference may be made to Muirheads Historical Introduction to the Private Law of Rome, where a brief account of the jurists is also given.6
ii. Substantive Changes in the Law.
Concession of Peculiar Privileges to So~diers While the period with which we are dealing saw the substantial disappearance of the distinction between citizen and peregrin, it witnessed the e~pansion of anotherthat between soldiers and civilians (mutes, pagans) The most remarkable effluxes of the jus militare (as it is sometimes ca.lled) were the military testament and the cas&ense peculium. The first was practically Mmtai, exempted from all the rules of the jus civile and the TeaMpraetors ediCt alike as to the form and substance of meats. last wills.. It might be in writing, by word of mouth, by the unspoken signs perhaps of a dying man; all that was. required was the voluntas so manifested as not to be mistaken. More extraordinary stillit was sustained even though its provisions ran counter to the most cherished rules of the common law. Contrary to the maxim that no man could dispense with the institution of an heir or die partly testate and partly intestate, a soldier might dispose of part of his estate by testament with or without nomination of an heir, and, leave the rest to descend to his heirs ab intestato. Contrary alio to the maxini semel heres sem per heres, he might give his estate to A for life or for a term of years, or until the occurrence of some event, with remainder to B. Contrary to the general rule, a Latin or peregrin, or an unmarried or married but childless person; might take an inheritance or a bequest from a soldier as freely as could a citizen with children His testament in so far as it disposed only of bona castrensia, was not affected by capitis deminuiio minima. It was not invalidated by praeterition of sui heredes, nor could they challenge it because they had less under it than their legitim; nor could the instituted heir claim a Falcidian fourth,. even though nine-tenths of the succession had been assigned to legatees. Finally, a later testament did not nullify an earlier one, if it appeared to be the intention of the soldier testator that they should be read together., .
Cambridge, 1884, chaps. ix.xv.
Leipzig, 1885, i. ~ 87~2. See also Kruger, Gesch.ichte d, Quellen, ~ 1827, and, for the period from Augustus to Hadrian, Bremer, Jurisprudenticf Antehadriana, ii.
6 Edited by Goudy, 1889, ~ 6165. See also Kruger, Ge.- schichie d. Quellen, ~ 1827; Lenel, Palingenesia Jut-is Civilis (2 vols., Leipzig, 188889), a work which.contains all the texts of the ante-justinian jurists, as contained in. the Digest and other sources, arranged systematically, with valuable critical and explanatory notes, but excluding the Institutes of Gaius, Pauls Sentences and Ulpians Rules.
All this is remarkable, manifesting a spirit very different from that which animated the common law of testaments. True, it was a principle with the jurists of the classical period that the volunt ails raiw was to be given effect to in the interpretation of testamentary writings; but that was on the condition that the requirements of law as to form and substance had been scrupulously observed. But in the military testament positive rules were made to yield to the voluntas in all respects: the will was almost absolutely unfettered. Roman law in this matter gave place to natural law. One would have expected the influence of so great a change to have manifested itself by degrees in the ordinary law of testaments; yet it is barely visible. In a few points the legislation of Constantine, Theodosius II. and Justinian relaxed the strictness of the old rules; but there was never any approach to the recognition of the complete supremacy of the vol unias. In the Corpus Juris the contrast between the testamenium paganum and the testamentum militare was almost as marked as in the days of Trajan. The latter was still a privileged deed, whose use was confined to a soldier actually on service, and if he received an honorable discharge, for twelve months after his retirement.
The peculium eastrense had a wider influence; for it was the first of a series of amendments that vastly diminished the importance ~ of the ~atria potestas on its patrimonial side. It had urn its origin in a constitution of Augustus granting to Castreose. fihilfamihas on service the right to dispose by testament of what they had acquired in the active exercise of their profession (quod in castris adquisierant).i But it soon went much further. Confined at first to fihiifamilias on actual service, the privilege was extended by Hadrian to those who had obtained honoueable discharge. The same emperor allowed them not merely to test on their peculium castrense, but to manumit inter vivos slaves that formed part of it; and by a little step further the classical jurists recognized their right to dispose of it onerously or gratuitously inter vivos. In the 3rd century the range of it was extended so as to include not only the soldiers pay and prize, but all that had come to him, directly or indirectly, in connection with his professionhis outfit, gifts made to him during his service, legacies from comrades and so on. All this was in a high degree subversive of the doctrines of the common law. It may almost be called revolutionary; for it involved in the first place the recognition of the right of a person a,lieni juris to make a testament as if he were sui jur-is, and in the second place the recognition of a separate estate in a fdiusfarnilies which he might deal with independently of his paterfamilias, which could not be touched by the latters creditors, and which he was not even bound to collate (or bring into hotch-pot) on claiming a share of his fathers succession. The radical right of the parent, however, was rather suspended than extinguished; for, if the soldier son died intestate, the right of the palerfanjilias revived:
he took his sons belongings, not as his heir appropriating an inheritance, but as his paterfamilias reclaiming a peculium.2
The Fainily.The legislative efforts of Augustus to encourage marriage, to which persons of position showed a remarkable distaste, Faint have already been mentioned. The relation of husband and wife still in law required no more for its creation S. than deliberate interchange of nuptial consent, although in certain cases some act indicative of change of life, such as the brides home-coming to her husbands house, was regarded as the criterion of completed marriage.2 But it was rarely accompanied with menus. So repugnant was such subjection to patrician ladies that they~ declined to submit to confarreate nuptials; and so great consequently became the difficulty of finding persons qualified by confarreate birth to fill the higher priesthoods that early in the Empire it had to be decreed that confarreation should in future be productive of menus only quoo4 sacra, and should not make the wife a member of her husbands family. Manus by a years uninterrupted cohabitation was long out of date in the time of Gaius; and, although that by coemption was still in use in his time, it was almost unknown by the end of the period. Husband and wife therefore had their separate estates, the common establishment being maintained by the husband, with the assistance of the revenue of the wifes dowry (dos)an institution which received much attention at the hands of the jurists, and was to some extent regulated by statute. Divorce (either of common consent or by repudium by either spouse) was unfortunately very common; it was lawful even without any assignable cause; when blame attached to either spouse, he or she suffered deprivation to some extent of the nuptial provisions, but there were no other penal consequences.
Not only in the case of a ,fihiusfamilias who had adopted a military career, but in all directions, there was manifested a strong tendency to place restrictions on the exercise of the patria potestas. This was due in a great degree to the hold that the principles of natural law were gaining within the Roman system, perhaps due I This was altered by Justinians 118th Novel, under which a paserfamiias taking any part of a deceased sons estate did so as his heir; see infra, p. 573.
Some writers take the view that such act was always essential. See Cirard, Manuel, 4th ed. p. 151.
to the fact that the emperors, having succeeded to the censorial regimen morum, allowed these principles freely to influence their edicts and rescripts. Exposure of an infant was still apparently allowed; but a parent was no longer permitted, even in the character of household judge, to put his son to death or cruelly ill-treat him; in fact his prerogative was limited to moderate chastisement, the law requiring, in the case of a grave offence that merited severer punishment, that he should bring his child before the competent magistrate. His right of sale, in like manner, was permitted only when he was in great poverty and unable to maintain them, while their impignoration by him was prohibited under pain of banishment.
Except in the solitary case of a son who was a soldier, a peterfamilies was still recognized as in law the owner of all the earnings and other acquisitions of his children in potestate; but the old rule still remained that for their civil debts he was not liable beyond the amount of the fund he had advanced them to deal with as de faclo their own (peculium profecticium), except when he had derived advantage from their contract or had expressly or by implication authorized them to enter into it as his agents. To the party with whom he had contracted a filiusfamilias was himself liable as fully as if he had been a paterfamilias, with one exception, namely, when his debt was for borrowed money; in that case, with some very reasonable qualifications, it was declared by the well-known Mace-. donian senatusconsult (of the time of Vespasian) that the lender should not be entitled to recover payment, even after his borrower had become sui juris by his fathers death. Between a father and his emancipated son there was, and always had been, perfect freedom of contract; but so was there now between a father and his soldier son in any matter relating to the peculium casirense, even though the son was in potestate. What is still more remarkable is that the new sentiment which was operating on the jus civile admitted the possibility of natural obligation between paterfamilias and fihiusfamilias even in reference to the peculium profecticium, which, though incapable of direct enforcement by action, was yet to some extent recognized and given effect to indirectly.
In the matter of guardianship, while the tutory of pupils was carefully maintained and the law in regard to it materially amended during the period under review (particularly by a senatusconsult generally referred to as the Oratio divi Seven, prohibiting alienation of the wards property without judicial authority), that of women above the age of pupillarity gradually disappeared.4 The guardianship or curatory (cura) of minors above pupillarity owed its establishment as a general doctrine to Marcus Aurelius. The Plaetorian law6 of the middle of the ~th century of the city had indeed imposed penalties on those taking undue advantage of the inexperience of minors, i.e. persons sui junis under the age of twentyfive; and from that time the praetors were in the habit of granting restitutio in integrum in cases of lesion and appointing curators to act with such persons for the protection of their interests in particular affairs. But it was Marcus Aurelius that first made curatory a general permanent office, to endure in the ordinary case until the ward attained majority. The powers, duties and responsibilities of such curators became a matter for careful and elaborate definition and regulation by the jurists, whose exposition indeed of the law of guardianship generally, whether by tutors or curators, has found wide acceptance in modern systems of jurisprudence.
The Law of Succession and particularly Testamentary Trusts. There were far more positive changes in the law of succession than in either that of property or that of obligation. The rise, and progress of the military testament has already been ~ 0 explained. The testament of the common law Was still ostensibly that per aes et libram; but the practice of granting bonorum possessio secundum tabulas to the persons named as heirs in any testamentary instrument that bore outside the requisite number of seals led, from the time of Antoninus Pius, to the frequent neglect of the time-honored formalities of the fanmiliae mancipatio and nuncupatio testamenti. It was his rescript, formerly mentroned, declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non-compliance with the purely formal requirements of the law, that practically established what justinian calls the praetorian testament.
One of the commonest provisions in the testaments of the period was the fideicommissum,a request by the testator to his heir to enter on the inheritance and thereafter denude wholly or partially in favor of a third party. It was introduced in the time of Augustus by (it is said by Theophilus) a testator who had married a peregrin wife, and desired thus indirectly to give to his peregrin children the succession which, as not being citizens, they could neither take ab inteslato nor as his direct testamentary heirs.6 He probably soon found imitators, and their number must have rapidly multiplied once the emperor, shocked at the perfidy of a trustee Dig. xxvii. 9 fr. I, 2.
& Also sometimes called lex Laetoria. See, e.g. reference to a recently discovered papyrus in Z. d. Say. Stfft. xxii. 170.
Fid~icommissa, as informal requests to heirs or legatees to hand over what they received to third parties, were known earlier than Augustus, but had no legal force.
who had failed to comply with the request of his testator, indicated his approval of the new institution by remitting the matter to the consuls of the day, with instructions to do in the circumstances what they thought just. So quickly did it establish itself in public favor, and so numerous did the questions become as to the construction and fulfilment of testamentary trusts, that under Claudius it was found necessary to institute a court specially charged with their adjudicationthat of the praetor fideicommissar-ius.
The employment of a trust as a means of benefiting those who were under disqualifications as heirs or legatees, as, for example, persons who had no testamenti factio, women incapacitated by the Voconian law, unmarried and married, but childless persons incapacitated by the Julian and Papia-Poppaean law, and so on, was in time prohibited by statute; but that did not affect its general popularity. For, whether what was contemplated was a transfer of the universal hereditas or an aliquot partof it to the beneficiary (fldeiconimissum hereditatis), or only of some particular thing (fideicommissum rei singularis), a testamentary trust had various advantages over either a direct institution or a direct bequest (legatum). Still the imposition upon the heir of a trust in favor of a beneficiary, whether it required him to denude of the whole or only a part of the inheritance, did not in theory deprive him of his character of heir or relieve him of the responsibilities of the position; and at common law therefore he was entitled to decline the succession, often to the great prejudice of the beneficiary. In order to avoid such a mischance, and at the same time to regulate their relations inter se and towards debtors and creditors of the testator, it became the practice for the parties to enter into stipulatory arrangements about the matter; but these were to some extent rendered superfluous by two senatusconsults, the Trebellian in the time of Nero and the Pegasian in that of Vespasian, which not only secured the beneficiary against the trustees (i.e. the heirs) repudia~ tion of the inheritance, but also protected the latter from all risk of loss where he was trustee and nothing more, and enabled the former to treat directly with debtors and creditors of the testator and himself ingather the corporeal items of the inheritance.
It was one of the advantages of a trust-bequest, whether universal or singular, that it might be conferred in a codicil, even though unconfirmed by any relative testament. The codicil (codicilli), also ~n invention of the time of Augustus, was a deed of a very simple nature. Though in the later Empire it required to be formall attested by at least five witnesses, it was at first quite informa It was inappropriate either for disherison of sui or institution of an heir; but if confirmed by testament, either prior or posterior to its date, it might contain direct bequests, manumissions, nominations of tutors, and the like, and whether confirmed or unconfirmed might, as stated, be utilized as a vehicle for trust-gifts. Latterly it was held operative, even in the absence of a testament, the trusts contained in it being regarded as burdens on the heir-at-law.
The most important changes in the law of intestate succession during the period were those accomplished by the Tertullian and Orphitian senatusconsults, fruits of that respect for the precepts of natural law which in so many directions was modifying the doctrines of the jus civile. The first was passed in the reign of Hadrian, the second in the year 178, under Marcus Aurelius. Down to the time of the Tertullian senatusconsult a mother and her child by a marriage that was unaccompanied with manus stood related to each other only as cognates, being in law members of different families; consequently their chance of succession to each other was remote, being postponed to that of their respective agnates. The purpose of the senatusconsult was to prefer a mother to all agnates of her deceased child except father and brother and sister; father and brother excluded her; but with a sister of the deceased, and in the absence of father or brother, she shared equally. While there can be little doubt that it was considerations of natural law that dictated this amendment, yet its authors were too timid to justify it on the abstract principle of common humanity, and so they confined its application to women who had the jus liberorum, i.e. to women of free birth who were mothers of three children and freedwomen who were mothers of four, thus making it ostensibly a reward of fertility. The Orphitian senatusconsult was the counterpart of the Tertullian. It gave children, whether legitimate or illegitimate, a right of succession to their mother in preference to all her agnates; and subsequent constitutions extended the principle, admitting lawful children to the inheritance not only of their maternal grandparents but also to that of their paternal grandmother.
iii. Judicial Procedure.
The Formular System.i_The ordinary procedure during the greater part of the first three centuries of the Empire was still two-staged; it commenced before the praetor (in jure) Formulas and was concluded before a judge or judges (in judicio). System. But the legis actiones had with a f~w exceptions given place to praetorian formulae. Under the sacramental system parties, i See Keller (as on p. 547, n.), ~ P2343; Bethmann-Hollweg (as in same note), vol. ii. ~ 8187; Bekker (as in same note), vol. i. chaps. 47, vol. ii. chaps. 15, 19, 2o~ Baron, Gesch. d. rOm. Rechis (Berlin, 5884), vol. i. ~ 202215.
and particularly the plaintiff, had themselves to formulate in statutory or traditional words of style the matter in controversy between them; and as they formulated, so did it go for trial to centumviral court or judex, with the not infrequent result that it was then all too late discovered that the real point in the case had been missed. Under the formular system parties were free, to represent their plaint and defence to the praetor in any words they pleased, the plaintiff asking for a formula and usually indicating the style on the album that he thought would suit his purpose, and the ,defendant demanding when necessary an exception, i.e. a plea in defence, either praetorian or statutory, that, without traversing the facts or law of the plaintiffs case, avoided his demand on grounds of equity or public policy or the like. It was for the praetor to consider and determine whether the action or exception should or should not be granted, and, if granted, whether it should be according to the style exhibited on the album or according to a modification of it. The result he embodied in a written and signed appointment of a judge, whom he instructed what he had to try, and empowered to pronounce a finding either condemning or acquitting the defendant. This writing was the formula.
Although it was not until the early Empire that this system of civil procedure attained its full development, yet it had begun between one and two centuries before the fall of the Republic. Gaius ascribes its introduction and definitive establishment to the lex Aebutia and two judiciary laws of the time of Augustus, formerly mentioned (supra, pp. 98, 124). The Aebutian law, of which unfortunately we know very little, is generally supposed to have empowered the praetors (1) to devise a simpler form of procedure for causes already cognizable per legis action~m, (2) to devise forms of action t0 meet cases not cognizable underthe older system, and (3) themselves to formulate the issue asid reduce it to writing. It was by no means ~so radical a change as is sometimes supposed. There were formulae employed by the peregrin praetor before it and also perhaps something analogous thereto by the urban praetor. There were also formulae of a kind employed both in the procedure per judicis postulationem and in that per condictionem. The difference between the latter and the formulae of the Aebutian system was that they were in part mere echoes of the statutory words of style uttered by the plaintiff, and that they were not written but spoken in the hearing of witnesses.
A large proportion of the personal actions of the formular system were evolved out of the legis actio per condictioneni. The sequence of operations may have been something like this. Taking the simplest form of it, the action for certa pecun~a under the Silian law, the first step was to drop the formal con- ~ fl to, dictio from which it derived its character of legis actio, thus A
avoiding a delay of thirty days; the plaintiff stated his de-, OIlS. mand in informal words, and, if the defendant denied indebtedness, the praetor straightway formulated a written appointment of and instruction to a judge, embodying in it the issue in terms substantially the same as those he would have employed under the earlier procedure: Titius be judge. Should it, appear that N. N. ought to pay (dare oportere) 50,000 sesterces to A. A., in that sum condemn N.N. to A.A.;1 should it so not appear, acquithim,. This was no longer the legis actio per condictionem, because what had made it legis actio was gone, but the condictio ceriae pecuniae of the formular system. The condictio triticaria of the sadie system ran on the same lines: Titius be judge. Should it appear that N. N. ought to give A. A. the slave Stichus, then,, whatever be the value of the slave, in that condemn N. N. to A. A., and soon. In each of these examples the formula included only two of the four principal clauses that might find place in it3an intention and a condemnation. The matter of claim in both cases was certain,so much money in one, a slave in the other; but, while in the first the contlemnationalso was certain, in the secondit was uncertain. What if the claim also was uncertain,say a share of the profits of a joint adventure assured by stipulation? it was perhaps competent for the plaintiff to specify a definite sum, and claim that as due to him; but it was very hazardous, for unless he was able to prove the debt to the last sesterce he lost his case. To obviate the risk of such failtire the praetors devised the actio ex stipulatu, whose formula commenced with a demonstration or indication of the cause of action, and whose intention referred to it and was conceived indefinitely: Titius be judge. Whereas A. A. stipulated with N. N. for a share of the profits of a joint odventure, whatever in respect thereof N. N. ought to give to or do for (dare facere oportet) A. A., in the money amount i Gaius enumerates them as demonstratio, intentio, adjudicatlo and condemnatio, and describes their several functions in iv. ~ 3943. The intentio and condemnatio were much the most important, the others being employed only in certain kinds of actions. Besides these a formula might be preceded by a praescripiio (Gai. iv. ~ 130137), and have incorporated in it fictions (f~ 3238), exceptions (~ 115125), and replications, duplications.
&c. (~ 126129).
thereof condemn N. N., and so on.i Once this point was attained further progress was comparatively easy, the way being open for the construction of formulae upon illiquid claims arising from transactions in which the practice of stipulation gradually dropped out of use, till at last the bonae fidel judicia were reached, marked by the presence in the intention of the words er fide bone whatever in respect thereof N. N. ought in good faith to give to or do for A. A.
In the case of real actions the transition from the legis actiones to the formulae followed a different course. The Aebutian law, while sanctioning the competency of formulae, did not Us appli- interfere with the procedure per .iacramen~um when cation reference was to be to the centumviral court on a questo rca tion of quiritarian right. In the time of Cicero that court actions, was apparently still in full activity (supra), hut by that of Gaius, owing, it is supposed, to the Julian laws having niade formulae in most cases compulsory, it was rarely resorted to except for trial of questions of inheritance. In his time questions of property were raised either per sponsionem or per formulam petitoriam. The procedure by sponsion may be regarded as a sort of bridge between the sacramental process and the petitory vindicello. In it the question of real right was determined only indirectly. The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty-five sesterces in the event of the thing in dispute being found to belong to the former; and at the same time the defendant gave sureties for its transfer to the plaintiff, with all fruits and profits, in the same event. The formula that was adjusted and remitted to a judge raised ex facie only the simple question whether the twenty-five sesterces were due or not: the action was in for-m a personal, not a real one, and was therefore appropriately remitted to a single judex instead of to the centumviral tribunal. But judgment on it could be reached only through means of a finding (sentenlia) on the question of real right; if it was for the plaintiff, he did not claim the amount of the sponsion, but the thing which had been found to be his; and, if the defendant delayed to deliver it, with its fruits and profits, the plaintiff had recourse against the latters sureties. The petitory formula was undoubtedly of later introduction and much more straightforward. Like the condicilo cerlae pecuniae, it contained only intention and condemnation. It ran thus:
Titius be judge. Should it appear that the slave Stichus, about whom this action has been raised, belongs to A. A. in quiritary right, then, unless the slave be- restored, whatever be his value, in that you will condemn N. N. to A. A.; should it not so appear, you will acquit him.
The formulae given above, whether applicable to real or personal actions, are so many illustrations of the class known as formulae F 1 a juris civilis or in JUS coflceptae. The characteristic of orma d such a formula was that it contained in the intention such phrases as the followingejus esse cx jure Quiritium, coflceptae praeslare oportere,2 dare oportere, dare facere oportere, or damnum decidere o~ortere.i Such words were, employed where the right to be vindicated or the obligation to be enforced had its sanction directly in the jus civile whether in the shape of statute, consuetude or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetors edict, special formulae had to be framed. The actions employed in such cases were actiones juris honorarsi, and these either act jones utiles or actiones in facluni. The first were adaptations of actions of the jus civile to cases that did not properly fall within them; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile.4
i This acijo ex stipulatu used to be regarded as nothing more than a variety of the condzclzo incerli. It is doubtful, however, whether in the condictiones incerli (e.g. the condictio furtiva) there was any demonstrallo. See Girard, Manuel, p. 614n. 2 and 3 and authorities there cited.
Employed in the divisory actions, i.e. for dividing common property, partitioning an inheritance, or settling boundaries; the demand was that the judge should adjudicate (or assign) to each of the parties such a share as he though just. See Lend, Edict. Perpet. 2nd ed. pp. 202, 205.
Employed in certain actions upon delict,whefe the old penalties of death, slavery or talion had in practice, or by the praetors authority, been transmuted into money payments, and the defendant consequently called upon to pay penal damages. According to Lenel, Ed. Per p. 2nd ed. p. 287, the form dare facere praeslare oportere was probably used in actions pro socio.
~ latter have an analogy to the English action on the case. In a few instances there was both civil and praetorian remedy for the same wrong; for Gaius observes (iv. 47) that in commodate and deposit failure of the borrower or depositary to return the thing lent to or deposited with him gave rise to actions that might be formulated either in jus or in factum. In the same section he gives the styles of acliones depositi in jus and in factum conce~lae; their comparison is instructivei The formula in factum must almost certainly have been the earlier and shows, itis thought, Ulilis echo may be translated as analogous or adapted action, i.e. analogous to a direct action. Where a direct action was inapplicable to particular cases or persons, according to the terms of a lex, edict, &c., the praetor frequently 111:9~~s adapted the statute, &c., to such cases and persons by ~ granting an actio utilis. He did so where he thought them to be within the spirit though not the letter of the law. He effected his object commonly by a modification of the regular formula either objectively, as by adding, or omitting, or altering words, or subjectively by transposing names of parties. But sometimes also the adaptation was made by the introduction of a legal fiction into the regular formula, and in this case the action was called utilis fictitia or simply fichitia. The actiones utiles might, therefore, be of two kinds, ordinary and fictitious. Those of common occurrence early became stereotyped in the Edict and even got special names.
As illustrations of an ordinary actio utilis, in which the formula was objectively modified, reference may be made to the numerous actions for wrongful damage to property under the lex Ordinary A quilia. Thus this statute in its first chapter used the term occidere, which means killing by a physical act of violence (corpore corpori), but to meet cases of killing without violence (eg. by poison) the praetors simply substituted the words mon-Is causem praestare for occidere in the formula. As illustrations of an ordinary actio utilis with subjective transposition of names, we may mention the actio Rutiliana applicable to a purchaser of the bankrupt estate of a living debtor, the action by an assignee of a debt against the debtor, and the action of a procurator suing for his principal. In these the names of the bankrupt, cedent and principal respectively appeared in the intentio, while the plaintiffs name was inserted in the condemnahjo.
Resort to a fiction is sometimes said to be a confession of weakness, and adversely criticized accordingly. But every amendment on the law is an admission of defect in what is being amended; Actiones and it was in sympathy with the spirit of Roman juris- ~
prudence, when it found an action too narrow in its definition, to include some new case that ought to fall within it, rather by feigning that the new case was the same as the old, to bring it within the scope of the existing and familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy. A bonorum possessor held a position unknown to the jus c-bile; he was not an heir, and therefore not entitled offhand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors. The praetor could have had no difficulty in devising new actions to meet his case; but he preferred the simpler expedient of adapting to it an heirs actions, by introducing into the formula a fiction of civil heirship; so he did with the bonorum emptor or purchaser of a deceased bankrupts estate at the sale of it in mass by his creditors. A peregrin could not sue or be sued for the penalties imposed for theft or culpable damage to property, for the XII. Tables and the Aquilian law applied only to citizens; but he could both sue and be sued under cover of a fiction of citizenship. A man who had acquired a res mancipi on a good title, but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rd vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it. But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usucapionthe Publician action referred to on p. 556. These are examples of achiones flctitiaeactions of the jus civile adapted by this very simple expedient to cases to which otherwise they would have been inapplicable, and forming one of the most important varieties of the actiones utiles.
Quite different was the course of procedure in the actiones in factum, whose number and varieties were practically unlimited, although for the most part granted in pursuance of the praetors promise in the edict that under such and such circumstances he would make .a remit to a judex (judic-ium dabo) ,~ and formulated in accordance with the relative skeleton styles also published on the album. A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotioruni gestorum, actio hypothecaria, actio dc pecunia constituta, actio vi bonorum raptorum, actio dc superfine, &c.the generic name actio in factum being usually confined to the innominate ones. Their formulae, unlike those in jus conceptae, submitted no question of legal right for the that deposit and commodate were enforced (perhaps first by the pere~rin praetor) by means of edicts before being admitted into the jus civile.
i Examples: Si quis negotia alterius ... gesserit, judiciurn co nomine dabo (Dig. iii. 5, 3, pr); Quae dolo malo facta esse dicentur, si de his rebus alia actio non enit et justa catisa esse videbitur, judicium dabo (Dig. iv. 3, I, I); Nautae caupones stabularii quod cujusque salvum fore recepenint, nisi restituent. in eos judicium dabo (Dig. iv. 9, I, pr.); Quod quis commodasse dicetur, de eo judicium dabo (Dig. xiii. 6. I, pr).
consideration of the judge, but only a question of fact, proof of which was to be followed by a condemnation. That of the act-jo de dolo, for example, ran thus: Titius be judge. Should it appear that, through the fraud of N. N., A. A. was induced to convey and cede possession to him of his farm (describing it), then, unless on your order N. N. restores it, you will condemn him in damages to A. A.; if it shall not so appear, you will acquit him. Actions in factum might be uteles as well as direct; e.g. act-jo quasi-Serviana or hypothecaria was utilis, being based on analogy to the actio Serviana.
Our limits do not admit of any explanation of the purpose, form, or effect of the prescriptions, exceptions, replications, &c., that were engrafted on a formula when required; or of the ways in which the condemnation was occasionally taxed by the praetor, so as to prevent the award of extravagant damages; or of the consequences of defects in the formula; or of the procedure in jure before it was adjusted, or in judicio afterwards; or of appeal for review of the judgment by a higher tribunal; or of execution (which was against the estate of the judgment-debtor, and took the form of incarceration only when his goods could not be attached). Our main object has been to show how elastic was this procedure, and how the praetorian formulae, in conjunction with the relative announcements in the edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine. The ~ystem was fully developed before Julians consolidation of the Edict; and the statutory recognition which the latter then obtained, though it stopped the praetors power of amending the law, did nothing to impair the efficiency of the existing procedure.
Procedure extra Ordinem.i_.The two-staged procedure, first in jure and then in judicio, constituted the ordo judiciorum privatorum. Early in the Empire, however, it became the ~ practice in certain cases to abstain from adjusting a exta formula and making a remit to a judex, and to leave the ordinem cause in the hands of the magistrate from beginning to end.
In these cases, speaking generally, the magistrate acted as an administrative official. Such cases did not necessarily come before the ordinary judicial praetors; on the contrary, they were committed as a rule to special officials (e.g. consuls) who were appointed to decide them by the emperors. This kind of procedure was adopted sometimes because the claim that was being made rested rather on moral than on legal right, and sometimes in order to avoid unnecessary disclosure of family misunderstandings. Thus, the earliest questions that were raised about testamentary trusts were, sent for consideration and disposal to the consuls, apparently because, in the existing state of jurisprudence, it was thought incompetent for a beneficiary to maintain in reference to the heir (who had only been requested to comply with the testators wishes) that he was bound in law to pay him (dare oportere) his bequest. Had the difficulty arisen at an earlier period, and in the heyday of the constructive energy of the praetors, they would probably have solved it with an actio in factum. As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio, the jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it,the praetorfidei commissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tutelaris; while fiscal questions in which a private party was interested went to a praetorfisci, whose creation was due to Nerva. Claims for aliment between parent and child or patron and freedman rested on natural duty rather than on legal right; they could not therefore well be made the subjectmatter of a judicium, and consequently went for disposal to the consuls or the city prefect, and in the provinces to the governor. Questions of status, especially of freedom or slavery, at least from the time of Marcus Aurelius, were also disposed of extra ordinem; and so were claims by physicians, advocates and public teachers for their honoraria, and by officials for their salaries, the ROmans refusing to admit that these could be recovered by an ordinary action of location. In all those extraordinary cognitions the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party complained against; it was for the magistrate to require the attendance of the latter (evocatio) if he thought the complaint relevant. The decision was a judicatum or decretum according to circumstances.
Jural Remedies flowing directly from the Magistrates Imperium.
Great as were the results for the law of the multiplication DfrCCt and simplification of judicia through the formular system, magis- it may be questioned whether it did not benefit quite as much from the direct intervention of the praetors and other ~ magistrates in certain cases in virtue of the imperium with which they were invested. This manifested itself princrpally in the form of (I) interdicts; (2) praetorian stipulations; See Keller-Wach, Civilprocess, 81; Bethmann-Hollweg~ ROm. Civilprocess, vol. ii. i22; Bekker, Aktionen, vol. ii. chap. 23; Baron, Gesch. d. rm. Rechts, vol. i. 220.
2 Keller-Wach, ROm. Civilprocess, ~ 7480; Bethmann-Hollweg, ROm. Civilprocess, vol. ii. ~ 98, I19I21; Bekker, Akt. vol. ii.
(3) missio in possessionem; and (4) in integrum restitutlo. All these had been in common use during the Republic.
I. The interdicts have already been referred to as in use under the rgime of the jus civile; but their number and scope were vastly increased under that of the jus praetorium. The characteristic of the developed procedure by interdict was thisthat in it the praetor reversed the ordinary course dlcts. of thi,ngs, and, instead of waiting for an inquiry into the factt alleged by a complainer, provisionally assumed them to be true and pronounced an order upon the respondent, which he was bound either to obey or show to be unjustified. The order pronounced might be either restitutory, exhibitory (in both cases usually spoken of in the texts asa decretum), or prohibitory:restitutory, when, for example, the respondent was ordained to restore something he was alleged to have taken possession of by violent means, to remove impediments he had placed in the channel of a river, and the like; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g. the body of a freeman he was holding as his slave, or a will in which the complainer alleged that ,he had an interest; prohibitory, as, for example, that he should not disturb the status quo of possession as between the complainer and himself, that he should not interfere with a highway, - a watercourse, the access to a sepulchre, and so forth. If the respondent obeyed the order pronounced in a restitutory or exhibitory decree, there was an end of the matter. But frequently, and perhaps more often than not, the interdict was only the commencement of a litigation; facilitated by sponsions and restipulations, in which the questions had to be tried (1) whether the interdict or injunctioh was justified, (2) whether there had been breach of it, and, (3) if so, what damages were due in consequence. The procedure therefore was Often anything but summary. -
In thepossessory interdicts uts possidetis and utrubi in particular it was extremely involved, due to some extent to the fact that they were double intefdicts. (interdicta duplicia), i.e. addressed indifferently to both parties. Gaius says, but, as most modetn writers think, erroneously; that they had been devised as ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as pOssessor, was to have the advantage of standing on the defensive in the rei vindicatio.4 That they were so used in his time, as in that of Justinian, cahnot be doubted. But it isamazing that they should have been, for they were much more cumbrous than the v-indicatio to which they led up Take the interdict uti pssidetis, which applied to ilnmovables, as utrubi did to movables. Both parties being present, the praetot addtessed them to this effect: I forbid that one of you two who does not possess the house in questiOn to use force in order to prevent the other who is in possession, provided he is so neither by clandestine Or violent exclusion of the ftrst, nor in virtue of a grant from him during pleasure, ffom continuing ,to possess as at present. It is manifest that this decided nothing; it was no more than a prohibition of disturbance of the status quo; it left the question entirel open which of the parties it was that was in possession and whic that was forbidden to interfere. The manner of its explication was somewhat sidgular. Each of the parties was bound at once to commit what inthe case of one of,them must have been a bteach of the interdict, by a pretence of violence offered to the other (vis ex conventu);i each of them was thus in a position to say ni the other:
We have both used force; but it was you alone thaf~ did it in defiance of the interdict, for it is I that am in possession., The interim enjoyment of the house was then awarded to the Imghest bidder who gave his stipulatory promise to pay rent to his adversary in the eveOt of the latter being successful in the long-run; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict; and on these, four in number, formulae were adjusted and sent~ to a jtsdex for trial. If the procedure could not ,thus be explicated, because either of the parties declined to take part in the vis ex conventu, or the bidding, or the sponsions and restipulations, he was assumed to be in the wrong, and, by what was called a secondary-ipterdict, required to yield up his possession or detention and to abstain ftom ,disturbing the other in all time coming.~~ Whatever. ~e may think of the action system of the, Romans in the period of the classical jurisprudence, one cannot help wondering at a chaps. 1618; aaron, vol. i. ~ 216219. Procedure In these cases is also sometimes includedunder the term cognitio extraordinaria.
In addition to the authorities in last note, see K. A. Schmidt, Das Interdiktenverfahren d. Rm. in geschmchtl. Etwickelung (Leipzig, I853); MachOlard, Thiorie des snterdits en drciit romain (Paris, 1864); Karlowa, ROm. R. G. ii. pp. 313 seq.; Ubbelohde, Die Interdicte d. rm Rechts, 188996 (in Glucks Pandecten Serie d. Bj,tcher, 43 and 44); Jobb-Duval, La Procedure civile chez les Romaihe (1896), 1. pp. 207 seq. .
If that had been. their original purpose, they must have been unknown as long as a rei vindicatio proceeded per sacramentum; fOr in the sacramental real action both parties vindicated, and both consequently were at once plaintiffs and defendants.
So Gaius calls it; it was probably the same thing as the tds mon bus facta referred to by Ckero, Pro Caec. I, 2, 8, 22.
procedure so cumbrous and complex as that of their possessory interdicts.
2. A praetorlan stipulation i was a stipulatory engagement imposed upon a man by a magistrate or judge, in order to secure a third party from the chance of loss or prejudice through Prae- some act or omission either of him from whom the engage forian ment was exacted or of some other person for whom he was stips,- responsible. Although called praetorian, because the cases a OflS. in which such stipulations were exigible were set forth in the Edict, there can be no question that they originated in the jus civ le; in fact, they were just a means of assuring to a man in. advance the benefit of an action of the jus, civile whereby he might obtain reparation for any injury suffered by him through th~ occurrence of the act or omission coatemplated as possible. They were enforced nearly always by granting or refusing an action or by~ missio in possessionem. Ulpian classifies them (rather illogically) as cautionary (cautionales), judicial and common. The first were purely precautionary, and quite independent of any action already in dependence between the party moving ,the magistrate to exact the stipulation and him on whom it was desired to impose it. There were many varieties of them, connected with all branches of the law~ for example. the cautio damni infecli, security against damage to a mans property in. consequence, say, of the ruinous condition of his neighbors house, the eautio usufructuaria that property ,usufructed should revert unimpaired to the owner on the expiry of the usafructuarys life interest, the aedilian stipulation against faults in a thing ~ld, and so forth. In all these cases the stipulation or cautio was a guarantee against future loss or injury, usually corroborated by sureties, and made effectual by an action on the stipu. lation irs the event of loss or injury resulting. Judicial stipulations, according to Ulpians classification, were th0se imposed, by a judge in the course of and with reference to an action in dependence before him, as, for example, the cautio judicalum solvi (that the defendant would satisfy the judgment), 4he cauho de dolo (that a thing claimed in the action would not be fraudulently impaired in the meantime) and many others. Common were such as might either be imposed by a magistrate apart from any depending action or by a judge io the course of.one, such as that taken from a tutor or curator for the faithful administration of his office, or from a procurator that his principal would ratify what he did.
3. Mis-rio in possessionem was the putting of a person in possession provisionally in the first instance, either of the whole estate of another (missio in bona) or of some particular thing belong MIssie In ing to him (missio in rem). The former was by far the more possessl- important. It was resorted to as a means of execution oaem. not only against a judgment-debtor, but also againsta man who fraudulently kept out of the way and thus avoided summons in anaction, or who, having been duly summoned, would not do what was expected on the part of a defendant; against the estate of a person deceased to which no heir would enter, thus leaving creditors without a debtor from whom they could enforce payment of their claims; and also against the estate that had belonged to a person who had undergone capitis deminulio, if the family head to whom he had subjected himself refused to be responsible for his debts. Missio in rem was granted where, for example, a man refused to give cautio d,a,nni infecti; the applicant was then put in possession of the ruinous property for his own protection.
4. In iniegrum rests tutio,1 reinstatement of an individual, On grounds of equity, in the position he had occupied before some occurrence which had resulted to his prejudice and for which no In 1~ other legal remedy existed was one of the most remarkable ~ manifestations, of the exercise of magisterial imperium. It was not that the individual in question, either directly by ~v1io. action or indirectly by exception, obtained a judgment that either rendered what had happened comparatively harmless or gave him compensation in damages for the loss he had sustained from it, but that the magistrateand it could only be the praetor, the urban or praetorian prefect, a provincial governor or the emperor himself at his own hand pronounced a decree that as far as possible restored the status quo ante. It was not enough, however, to entitle a man to this extraordinary relief, that he was able to show that he had been taken advantage of to his hurt, and that no other adequate means of redress was open to him; he required in addition to be able to found on some subjective around of restitution, such as minolity, or, if he was of full age, intimidation which could not be resisted, mistake of fact, fraud, absence or the like. It required also to be applied for within a limited periodoriginally an annus utilis, but under Justinian a quadrsenniumcounting from the time the party was in a position to make the application. What should be held to amount to a,su,fllci,ent ground of restitution, either objective or subjective, was at first left very much to the discretion of the magistrate; but even here practice and jurisprudence in time 2Savigny, System d. porn. Rechts. vol. vii. ~ 315343; Karlowa Rorn. R. G. ii. pp. 1064-1104; Keller-Wach, o~. cit. 79; Bekker Aktionen, ii. chap. 18.
fixed the lines within which he ought to confine himself, and made the principles of sn integrum restitutio as well settled almost as those of the actio quod metus causa or the actio de dolo.
V. THE PERIOD OF CoDIFIcATIoN (Diocletian to Justinian.)
i. Historical Events that Influenced the Law.
Supremacy of the Emperors as Sole Legislators.From the time of Diocletian onwards the making of the law was exclusively in the hands of the emperors. The senate still existed, Em,,ei~o~s but shorn of all its old functions alike of government sole legisand legislation.3 The responses of patented jurists ~~
were a thing of the past. It was to the imperial consistory alone that men looked for interpretation of old law or promulgation of new.
In the reign of Diocletian rescripts were still abundant; but the constitutions in the Theodosian and Justinianian Codes from the time of Constantine downwards are mostly of a wider scope, and of the class known as general or edictal laws (leges generates edictales). It would be wrong, however, to infer that rescripts had ceased; for J ustinians Code contains various regulations as to their form, and the matter is dealt with again in on.e of his Novels. The reason why so few are preserved is that they were no longer authoritative except for the parties to whom they were addressed. This was expressly declared by the emperors Arcadius and Honorius in 398 in reference to those they issued in answer to applications for advice froM officials; and it is not unreasonable to assume that a limitation of the same sort had been put at an earlier date on the authority of those addressed to private parties. Puchta is of opinion that the enactment of Honorius and Arcadius applied equally to decreta, for the reason that during this period matters of litigation did not come under the cognisance of the emperors except on appeal, and that under the new arrangements of Constantine the judgment of affirmance or reversal was embodied in a rescript addressed to the magistrate from whom the appeal had been taken. The rule of Arcadius an.d Honorius was renewed in 425 by Theodosius and Valentinian, who qualified it, however, to this extentthat, if it contained any distinct indication that the doctrine it laid down was meant to be of general application, then it was to be received as.an edict or lex ,generalis. To this Justinian adhered in so far as rescripts in the old sense of the word were concerned; but he declared that his judgments (decrela) should be received everywhere as laws of general application, and so should any interpretation given by him of a lex generatis, even though elicited by the petition of a private party. The imperial edicts, adjusted in the consistory, were usually addressed to the people, the senate or some official, civil, military or ecclesiastical, according to the nature of their subject-matter.
In,tluence of Christ ianity.4A disposition has sometimes been manifested to credit nascent Christianity with the humaner spirit which began to operate on some of the institutions of the law in the fIrst century of the Empire, but which in a sprevious section we have ascribed to the infiltration into ~
the jus civile of doctrines of the jus nat-urale, the product ~,, of the philosophy of the Stoa. The teaching of Seneca did CflCC quite as muchnay, far moreto influence it then than the lessons that were taught in the little assemblies of the early converts. It would be a bold thing to say that, had Christianity never gained its predominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years progressed, most of those amendments in the law of the family and the law of succession that were amongst the most valuable contributions of the imperial constitutions to the private law. It may well be that that spirit was intensified and rendered more active with the growth of Christian belief; but not until the latter had been publicly sanctioned by Constantine, and more especially after Theodosius declared it to be the religion of the state, do we meet with incontestable records of its influence.. We find them in enactments in favor of the church and its property, and of its privileges as a legatee; in those conferring or imposing on the bishops a supervision of charities and charitable institutions, and a power, of interfering in matters of guardianship; in the legltimation;per subsequens matrimonium of children born of concubines; in the introduction of a mode of manumitting slaves in facse ecclesiae There was a senate both at Constantinople and at Rome during the later Empire. In his History, Zosimus, iii. II, says:
Ilw,cs ~thv i-i5 irXs wvcr-rasrivovir&~i] yepouulizv ~xsu f~onrsp ij Pd~ufl.
Both senates were addressed by the emperors on matters of legislation. See Cod. Theod. vi. 2.
See Troplong, De linfluence du christianisme sur le droit civil del Romains (Paris, 1843, and subsequently); Merivale, The Conversion of the Roman Empire (Boyle Lectures for 1864) (London, 3864)
particularly lect. iv.; Allard, Le Chrislianisme et lernpire romass (2nd ed., Paris, 1897).
in the recognition of the efficacy of certain acts done in presence of two or three of the clergy and thereafter recorded in the church registers; in the disabilities as to marriage and succession with which heretics and apostates were visited, and in a variety of minor matters. Of greater importance were three features for which it was directly responsiblethe repeal of the caduciary provisions of the Papia-Poppaean law, the penalties imposed upon divorce, and the institution of the episcopalis audientia.
The purpose of the caduciary law was to discourage celibacy and encourage fruitful marriages; but legislation in such a spirit could not possibly be maintained when celibacy had come to be inculcated as a virtue, and as the peculiar characteristic of a holy life. The penalties alike of orbitas and coelibatus were abolished by Constantine in the year 320. The legislation about divorce, from the first of Constantines enactments on the subject down to those of Justinian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the illadvised work of his predecessors and substituting legislation of his own quite as complicated and futile, thought of interfering with the old principle that divorce ought to be as free as marriage and independent of the sanction or decree of a judicial tribunal. Justinian was the first who, by one of h~s Novels, imposed a condition on parties to a divorce of common accord (communi consensu), namely, that they should both enter a convent, otherwise it should be null; but, so distasteful was this to popular feeling, and so little conducive to improvement of the tone of morals within the conventual precincts, that it was repealed by his successor. The legislation of Justinians predecessors and the bulk of his own were levelled at one-sided repudiations, imposing penalties, personal and patrimonial (1) upon the author of a repudiation on some ground the law did not recognize as sufficientand the lawful grounds varied almost from reign to reignand (2) upon the party whose misconduct gave rise to a repudiation that was justifiable. The bishops court (episcopale judicium, episcopalis audientia) had its origin in the practice of the primitive Christians, in accordance with the apostolic precept, of submitting their differences to one or two of their brethren in the faith, usually a presbyter or bishop, who acted as arbiter. On the state recognition of Christianity the practice obtained legislative sanction, Constantine giving the bishops court concurtent jurisdiction with the ordinary civil courts where both parties preferred the former, and by a later enactment (whose authenticity, however, is open to some doubt) going so far as to empower one of the parties to a suit to remove it to the ecclesiastical tribunal against the will of the other. He also declared that the judgments were to be enforced by the civil courts.i For various reasons, advantage was taken of this power of resorting to the bishop to an extent which seriously interfered with the proper discharge of his spiritual functions, so that in 398 Arcadius in the Eastern Empire judged it expedient to revert to Constantines original rule, and, at least as regarded laymen, to limit the right of resort to the episcopal judicatory to cases in which both parties consented. The same thing was done by Valentinian in the Western Empire in 452. It is impossible to say with any approach to exactitude what effect this intervention of the clergy as judges in ordinary civil causes for they had no proper criminal jurisdictionhad on the development of the law. But it can hardly have been without some influence in still further promoting the tendency to subordinate act and word to will and intention, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and considerations of natural right.
Abandonment of the ,Formular System of Procedure.2The formular system, with its remit from the praetor to a sworn judex who was N to try the cause, was of infinite advantage to the law; for Ui d the judgment was as a rule that of a free and independent ~ 0 citizen, untrammelled by officialism, fresh from some centre o j~ro of business, chosen by, and in full sympathy with, the cc 1110. parties between whom he had to decide. Such a system was incompatible with the autocratic government of Diocletian and Constantine; and it is with no surprise that we find the former of these sovereigns instructing the provincial governors that in future, unless when prevented by pressure of business (or, according to a later constitution of Julians, when the matter was of trifling importance), they were not to remit them but were themselves to hear the causes brought before them from first to last, as had previously been the practice in the extraordinariae cognitiones. The remit in the excepted cases was not, as formerly, to a private citizen, but to what was called a judex pedaneus, who acted as an inferior, substitute of the magistrate and was probably a matriculated member of the local bar; and for a time his delegated authority was embodied p. 868 n.
2 Wieding, Der Justinianeisclle Libellprocess (Vienna, 1865);
Bethmann-Hollweg (Gesch. d. C. P.), vol. iii. (1866); Mother (rev.
Wieding), in the Krit. Vicrleljahrschrift. vol. ix. (1867), pp. 161 seq.,
329 seq.; Wieding, in same journal, vol. xii. (1870), pp. 228 seq.;
Bekker, Aktionen, vol. ii. chaps. 23, 24; Cuq, Inst. lurid. 2nd ed.
II. pp. 875 seq.
in a formula alter the old fashion. But even this exceptional use of it did not long survive, for an enactment by the two sans of Constantine, conceived in terms the most comprehensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntary. The result was, not only the formal disappearance of the distinction between the proceedings in jure and in judicio (judicium receiving a more extensive meaning) but the practical (though not fornial) disappearance also of the distinctions between actions in jus and in factum, and between actiones directae and actiones utiles, the conversion of the interdict into an actio ex inlerdicto, admission of the power of amendment of the pleadings, condemnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent, and execution accordingly by the aid of officers of the law.
- Under the new system a process was full from first to last of intervention by officials. The in jus vocalic of the XII. Tables the procedure by which a plaintiff himself brought his adversary into courtbecame a thing of the past. So also did the vadunonium. In the earlier part of the period the proceedings commeeced with the litis denuntiatio introduced in the time of Marcus Aurelius and remodelled by Constantine; but under Justiniari (though probably begun before his reign) the initial step was what was called the libellus conventio,tis. This ~was a short and precise written state~ ment addressed by the plaintiff to the court, explaining (tart without detail) the nature of the action he proposed to raise and the claim he was making, which was accompanied by a formal under~ taking ,to proceed with the cause and follow it out to judgment; under penalty of having to pay double costs to, the defendant. If the judge was satisfied of the relevancy of the libel~ he pronounced an interlocutor (Interlocutio) ordaining its service on the respondent; this was done by an officer of the court, who cited him to appear on a day named, usually at a distance of one or two months. The defendant, through the officer, had to put in an answer (libetlus con fro4ictioflis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment If defendant did not appear after three summonses the case was heard and decree given iii his absence. On the day ap. pointed the parties or their procurators were first heard on any dilatory pleas, such as defect of jurisdiction; if none were offered, or those stated repelled, they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentum calumniae),and their counsel doing the same.
From this point, which marked the this contestatho of joinder of issue, the procedure was much the same as that in juelieho undei the formular system. Evidence was taken and judgment given. But in all cases in which the demand was that a particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution might be specific and effected through officers of the law (menu militari). Where, on the other hand, the condemnation was pecuniary, the usual course, where performance was not made, was for the judge, through his officers, to take possession of such things belonging to the defendant as were thought sufficient to satisfy the judgment (jignus in cduso judicati captum), and they were eventually sold judicially if the defendant still refused to pay; the missbo in bona of the classical period was not resorted to except ill the case of insolvency.
The Valentinian Law ~of Cit ations.3T his famous enactment, the production of Theodosius (II.), tutor of the youthful Valentinian III., was issued from Ravenna in the year 426, and was addressed to the Roman senate. It ran thus: ~
We accord our approval of all the writings of Pa- Ia~:,~ pinian, Paul, Gaius, Ulpian and Modestine, conceding to CIMUOII
Gaius the same authoritythat is enjoyed by Paul, Ulpian, & and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scientia) of those earlier writers whoie treatises and statements of the law the aforesaid five have un.
ported into their own works,Scaevola, for example, and Sabinus, and Juliaii, and Marcellus,and of all others whom they have been in the habit of quoting as authorities (omniumque guos liii celebrarzint), provided always, as their antiquity makes them uncertain, that the texts of those earlier jurists are verified by collation of manuscripts.4 If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side; if the number on each side be the same, that one shall prevail which has the support of Papinian; but, whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two.
This constitution has always been regarded as a signal proof of the lamentable condition into which jurisprudence had sunk in the beginning of the 5th century. Constantine, a hundred years earlier, had condemned the notes of Ulpian and Paul upon Papinian. There were no longer any living jurists to lay down the law (jura condere); and, if it was to be gathered from the writings of those who were dead, it was perhaps as well that the use of them should be regulated. The Valentinian law proceeded so far in the same direction. It made a selection of the jurisconsults of the past whose works alone were to be allowed to be cited,Papinian, Paul, Ulpian and Moclestine, the four latest patented counsel of any distinction; Gaius, of authority previously only in the schools, but whose writings were now approved universally, notwithstanding that he had never possessed the jus re~pondendi; and all the earlier jurists whose dicta these five had accepted. But it went yet a step further, for it declared all of them, with the sole exception of Papinian, to be of the same authority, and degraded the function of the judgO in most casesso far at least as a question of law was concernedto the purely arithmetical task of counting up the names which the industry of the advocates on either side had succeeded in adducing in support of these respective contentions. It is probable that, from the days of Hadrian down to Severus Aiexander, when. the emperor in his council had to frame a rescript or a decree, its tenor would be decided by the vote of the majority; but that was after argument and counter-argument, which must in many cases have modified first impressions. Taking the Votes of dead men, who had not heard each others reasons for their opinions, was a very different process. It may have been necessary; but it can have been so only because a living jurisprudence had no existence,because the constructive talent of the earlier Empire had entirely disappeared.
ii. Ante-Juslinian Collections of Statutes and Jurisprudence.
Of cardinal importance for this period were the collections of imperial constitutions made prior to Justinian. There Cellec- were three of these, viz, the Gregorian, the Hermogenian oi,s of and the Theodosian Codes; the first two being the work of ~ private hands, though they afterwards received statutory sanction from Theodosius II., the third being due to that emperor himself.
Codex Gregorianus.T his was a collection of imperial constitutions from Hadrian to Diocletian, made by a certainGregorius about the ~ end of the 3rd century(a. 295?),Who,in Mommsensopinioni an was at that time a professor at the law school of Beirut.
e~ Only fragments of it have come down to us, obtained chiefly from Alarit~s Breviary, the Lex Romana Burgundionum, the Consuttatlo, the Colt atio and the Vatican Fragments mentioned below; but it was a work of considerable size, divicied into books and titles.
Codex Hermogenianus.3This, like the Gregorian, was compiled in the Eastern Empire, apparently at the end of the 3rd century, H ~ but at any rate not later than the year 324. As, however, nian it contains a constitution of the year 365 there must have Code been subsequent additions toit. Only fragmentary remains of it are extant, obtained from the same sources as the Gregorian. Its author was a certain Hermogenianus (perhaps the jurist of that name cited in the Digest), and the work seems to have beenintended asa sort of supplement to the Gregorian Code. It was a smaller work than the latter, being divided only into titles, and, unlike it, contains no pre-Diocletian constitutions. It has, however, a great number of contemporary ones, issued by Diocletian especially during the years 293 and 294. It was from this work and that of Gregorius that Justinian obtained the constitutions contained in his Code for the period prior to Constantine, and from the language he uses about the two Codes it would seem that they had been regarded in the courts before his time as the only authoritative record of constitutions during the period covered by them.
Codex Theodosianus.In the year 429 the emperor Theodosius nominated a commission of nine persons to collect the constitutions Tb - issued by the emperors from Constantine to his own reign.
d 7 From the termsofthe edictappointingthem heseemstohave intended to initiate the preparationof a body of law which, if his scheme had been carried into execution, would have rendered that of Justinian unnecessary. In a constitution about ten years later he explains the motives that had actuated him: that he saw with concern the poverty-stricken state of jurisprudence and how few men there werewho, notwithstanding the prizes that awaited them, were able to make themselves familiar with the whole range of law; and that he attributed it very much to the multitude of books and 2 Z. d. Say. Stift. xxii. pp. 139 seq.
Mommsen, Z. d. Say. S11f1. (1889), x. pp. 347 seq.; Kipp, Gesch. d. Quellen, pp. 7879. The fragments of both this and the Gregorian Code, edited by Kruger, are given in the Collect-b Juris Antej. by K. M. and S., vol. iii. pp. 236245.
the large mass of statutes through which the law was dispersed, and which it was next to impossible for any ordinary mortal to master. His scheme-was eventually to compile one single code from materials derived alike from the writings of the jurists, the Gregorian and Hermogenian collections of rescripts, and the constitutions from the time of Constantine downwards. His language leaves little doubt that it was his intention to have this general code carefully prepared, so as to make it a complete exponent of the existing law, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collection of constitutions which he directed his commissioners meantime to prepare, and which was to contain even those that were merely of historical interest (provided only it was made clear how later enactments had affected them), was to be the first step in the execution of his project. For some reason or other nothing followed upon this enactment, and in 435 a new commission of sixteen persons was nominated to collect the constitutions, but nothing was said in their instructions about anything ulterior. They were directed, however, to deal with ,their material in a systematic way, as by arranging the constitutions chronologically under definite titles, separating, where necessary, any constitutions dealing with more than one matter into parts, so as to bring each matter under its proper title, and with power otherwise to make such omissions, additions and alterations as seemed good to them for the same object. The work was completed in less than three years and published at Constantinople early in the yeai 438, with the declaration that it should take effect from the 1st of January following, and a copy wassent to Valentinian, who notified it to the senate at Rome and ordained that it should come into force in the West from :he 12th of January 439. The arrangement is in sixteen books, subdivided into titles with rubrics in which the constitutions are as a rule (though not consistently) placed in chronological order. They cover the whole field of law, private and public, civil and criminal, fiscal and administrative, military and ecclesiastical. The private law is contained in the first five books. This code was usually called in later documents Theodosianus, without codex adjected. All constitutions since Constantine not contained in it were abrogated. The manuscripts in which it has come down to us are very defective, but many lacunae have been filled up from other sources, especially from Alarics Breviary. Unfortunately the Iacunae are principally in the books relating to the private law.4
Novellae Post- Theodosian-ae.The imperial constitutions subsequent to the publication of the Theodosianus got the name of Novels (novellae leges). There were three collections of these, all ~
made in the Western Empire, and they are generally known ~05 as post-Theodosian Novels. The first collection containing edicts of Theodosius himself, sent by him to 817 Valentinian III. in 447 was published by the latter emperor 0~e ~. in the following year. The second collection contained in addition to edicts of Theodosius some edicts of Marcian and other emperors of the East, and also some of Valentinian, Majorian and other emperors of the West. The third collection was published in abridged form in Alarics Breviary. These collections are not extant, but from Alarics Breviary, with additions from manuscript sources, modern editions of the Novels have been prepared.f There was also a collection of constitutions, issued between the years 331 and 425, nearly all relating to church matters, first published by T. Sirmondus in 1631, and now known as the Sirmondian Constitutions.6
Besides the collections of statutes just mentioned there were a number of juristic works of this period, containing both ~
statute law (leges) and common law (jus) in combination, dendl made by private individuals. Of these the following, e~t~cwhich have come down to us in a more or less imperfect tloi,.~
condition, are the most important: .
The Collatio Legum Mosaicarum et Romanarum 7or, as its title bears, Lex Dei quam praecipit Dominus ad Moysenis a parallel of divine and human law, especially in the matter of delicts Cell and punishments, the former drawn from the Pentateuch, a o. and the latter from the works of Gaius, Papinian, Paul, Ulpian, and 4 There have been several editions of the Theodosian Code. That of J. Gothofredus, published after his death in 1652 (ed. with additions by Ritter in 7 vols., Leipzig, 173641), is a work of monumental learning and still indispensable on account of its commentary. But the latest and best edition is that of Momi sen, being the last work from the pen of that great master. It has been published at Berlin in 1905 under the title, Theodosi an-b libri xvi. cum constitution-ibus Sirmondianis et leges novellae ad Theodosianum pertinentes edjderunt Th. Mommsen et Paulus M. Meyer: I. Theodosiani libri XVI. curn constitutionibus Sirmondianis edidit, adsumpto apparatu P. Krugers, Th. Mommsen (1905).
These Novels, so far as preserved, have been published as a second part of Mommsens edition of the Theodosian Code. II. Leges ad Theodosianum pertinentes edidit adjutore Th. Mommseno Paulus M. Meyer (1905).
6 These are contained in the Mommsen-Meyer edition of the Theodosianus.
1 Collectio Juris Antejustiniani, by Kruger and Mommsen, in. pp. 107 seq.; Girard, 2extes, pp. 543 seq.; Kruger, Quellen, pp.302 seq.
Modestine, rescripts from the Gregorian and Hermogenian Codes. I
and one later general enactment. Its date is probably soon after the year 390, but its authorship is unknown.i -
Fragmenta Vaticana.2These fragments, discovered by Cardinal Angelo Mai in a palimpsest in the Vatican in 1821, seem to have formed part of a book of practice, compiled in the Western Vatican Empire and of considerable dimensions. The extant frag frag- ments of the Titles into which it was divided deal with ments, sale, usufruct, dowries, donations, tutories and processional agency, and have been extracted from the writings of Papinian, Paul the Ulpian, an unknown work on interdicts, and the imperial constitutions prior to Theodosius, the latest of which is of the year 372. Its antiquity is therefore probably about the same as that of the Collatio.f -
The Consultatio.4The so-called Veteris cujusdam Jurisconsultt Consultatlo was first published in 1577 by Cujas, from whom it got its name. It is a collection of answers by an advocate, Consul- supported by citations of texts (consultationes) upon tatlo. questions of law submitted for his opinion by a solicitor, and is of value for the extracts it contains from Pauls Sentences and the three above-mentioned codes. It is thought to have been written in Gaul in the end of the 5th or beginning of the 6th century.
Syro-Roman Law-Book.5This was a sort of manual of Roman law drawn up in the East, apparently in the Greek language, at an uncertain date, but some time between Theodosius and Syro- Justinian. Translations of it into Syriac, Arabic and Roms~a Armenian have come down to us, and it would seem that the Law- work in these translations was greatly made use of in legal Book, practice in the East (especially in the ecclesiastical Courts)
for several centuries, having in some places more authority attached to it than had the Digest and Code of Justinian. As a repertory of Roman law it is of little value, as it misunderstands or varies from that law in many respects, but it is of importance as showing how firmly Helienic law and customs maintained themselves in the East during the decay of the Empire.6
Light has also been thrown upon the ante-Justinian law by the numerous papyri documents, mostly in Greek, that have been in recent years recovered in Egypt (especially by Grenfeil and Hunt) and elsewhere.7 Mitteis, Gradenwitz and others have done much to elucidate these, by numerous publications. But to give anything like a consecutive account of them would occupy much space and cannot be attempted here.8
Romano-Barbarian Cod-es (Leges Romanae) .Besides the collections of statutes and juristic law mentioned in this section, there were several official collections made prior to Justinian Ro,nano- in Western Europe, after it had fallen under the dominion Barbarian of Gothic and other kings. There are three of these Codes, which require special noticeeach of them compiled from documentary sources of ante-Justinian law. Though of considerable use in explicating difficulties and filling up lacunae in the earlier law sources, they must be used with caution for that purpose, as they contain not a few corruptions of the original texts. They are :
1. Edictum Theoderici.This was compiled at the instance of Theoderic, king of the Ostrogoths, not long after the year 500 (not later than 515). Theoderic after he had conquered Italy Edict o desired to be representative of the emperor and always Theo- acknowledged his suzerainty. He did not aim at being dcric. an independent legislator, and his Edict is therefore of limited scope and in no proper sense a code. Its materials were i For opinions as to its author, see Girard, l.c. p. 543. He must have been an ecclesiastic.
2 Colleclio Jur. Ante). iii. pp. I seq. (ed. Mommsen); Karlowa, Rom. R.G. i. pp. 969 seq.; Kruger, Quellen, pp. 298~o2.
Mommsen,.however (Collectio, iii. p. II), thinks it was compiled about the time of Constantine.
Collect. Jur. Ante). iii. pp. 20320; Girard, Textes, pp. 590 seq. See Kruger, Quellen, pp. 3057.
Ed. by Bruns and Sachau under the name Syrisch-Romisches Rechtsbuch aus demfunften Jahrhundert (Leipzig, 1880). See Esmein, Melanges, pp. 403 seq.; Ferrini, Z. d. Sac. Stift. (1902), xxiii. pp. 101 seq.; Kruger, Quellen, pp. 320 seq.
The first volume of a complete collection of the versions of the Syrian Law-Book, with a translation into German by Sachau, was published at Berlin in 1907.
E.g. the Amherst Papyri, by Grenfell and Hunt. See Archiv fr Papyrusforschung (since 1900).
8 For an account of the papyri found at Sinai, containing parts of a commentary on Ulpian, ad Sabinum, supposed to have been written after A.D. 438, see Muirhead, Hist. Introd. p. 374, and Girard, Textes, p. 578. For other papyri, see Girard, op. cit. pp.
See Kruger, Gesch. d. Quellen, 41; Brunner, Deutsche Rechtsgesch. (1887), i. ~ 49, 50.
ii Ed. Bluhme in Pertzs Monumenta Germaniae, Leges, v. pp. 145 seq. (Hanover, 1875); see Savigny, Gesch. d. r. R. ii. pp. 172 seq.; Gaudenzi in Z d. Say. Stift. (Germ. Abtheil.), 1886, vii. pp. 29 seq.
mainly drawn, without however indication given, from the writings~ of Paul, the Gregorian, Hermogenian and Theodosian Codes, and the post-Theodosian Novels. Divided into 155 chapters, with no systematic arrangement, it touches upon all branches of the law~ public and private, but especially criminal law and procedure.. Though it contains a certain infusion of Gothic law and was professedly intended to apply to all Theoderics subjects, both Goths and Romans, it seems nevertheless generally admitted that this idea cannot have been fully realized, and that in some matters with which it deals, e.g. the law of the family, Gothic customs must still have continued to prevail for Gothic subjects.
2 The Lex Romana Wisigothorum or Breviarium Alarici or Alaricianum a (both of these titles are modern) was a much more ambitious and important collection than the one last ~, mentioned. It was compiled by a commission of lawyers es appointed by Alaric II.. king of the Western Goths, with approval of the bishops and nobles, and published at ~ Aire in Gascony in the year 506. The compilers selected their material partly from the leges (imperial constitutions after Diocletiati) and partly from the vetus jus (juristic law), taking what they considered appropriate, without materially altering the text of their authorities except in the way of excision of passages that were obsolete or superseded. For the leges they utilized some 400 of the 3400 enactments (according to Haenels estimate) of the Theodosiau Code and about 30 of the Post-Theodosian Novels; for the jar they made use of Pauls Sentences, Gaiuss Institutes (in a corrupt and greatly abridged form in two books dating probably from, and adapted to the law of, the 5th century), the first boek of ?apinians Responses (a single responsum), and the Gregorian and Hermogenian Collections (which were treated as jus). All of these, except Gaius (for the reason mentioned), were accompanied by interpretati ones (i.e. for the most part explanatory adaptations of the passages to the existing practice) which were largely borrowed from books, in current use for purposes of instruction, and which resemble the interpretation of the XII. Tables in that they are oftennot so ninth explanatory of the text as qualificative or corrective. The Breviary exercised great influence in western Europe; and there is no question that, until the rise of the Bologna school in the end of the iith century, it was from it more than from the booksof Justinian that western Europe, otherthan Italy, acquired its scanty knowledge of Roman law.
3. The Lex Romana Burgundionum ~ which erroneously, about the 9th century, owing to a mistake of a MS. transcriber, the name Pap-ianus (a contraction of Papiniathis) was Tb B given. It is a collection which King Gundobad, when. eu~ publishing his code of native law (Lex Gundobada) for his ~ native subjects, had promised should be prepared for the use of his Roman. subjects. It was published probably before his death in 516. It deals with private law, criminal law and prqcedur, distributed through forty-seven titles, and is arranged lunch in the same order as the Gundoba.da, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary; its juristic sources are Pauls Sentences and a work of Gains of which we cannot say with certainty that it is his Institutes. It also contains some inter pretationes of the same character as those in the Breviary, but whether taken directly from the latter or not is disputed. After the conquest of the Burgundian kingdom by the Franks this code ceased to have any direct authority, but was used in the courts as a sort of supplement to the Breviary, being often bound in the same volume with the latter.
iii. Justinians Legislation.
Jusi-inians Collections and his own Legislation.The history of Justinian outside his legislative achievements, and his collections in detail, are dealt with in the article Jus~ JUSTINIAN I. Ambitious to carry out a reform more tinlanra complete even than that which Theodosius had planned cod!! Icbut failed to execute, he took the first step towards it lion, little more than six months after the death of his uncle Justin, in the appointment of a commission to prepare a collection of statute law (leges), among which he included the rescripts of the Gregorian and Hermogenian Codes, whith w~e commonly at this period described as jus. It was published in April 529; and in rapid succession there followed his Fifty Decisions U Ed. Haenel (Leipzig, 1849); Conrat (Cohn), Brev. Alaricianum (1903). This work of Cohn is a systematic arrangement of the Breviary, with the Latin text as given by Haenel, and a translation into German of the inter pretatlo (or, where there is none, of, the text itself), and some explanatory notes. See Karlowa, Rom. R.G. i. pp. 976 seq.; Kruger, Quellen, 40.
if Ed. Bluhme in Pertzs Monumenta German. H-ist. Leges, in.
pp. 505 seq. (Hanover, 1863); de Sails Monum. Germ. Leg.
sec. I. and ii. p. I (Hanover, 1892). See Karlowa, Rm~ R.G. 1.
(529531), his Institutesi (November 21, 533), hisDigest of excerpts from the writings of the jurists (December 16, ~ ,2 and the revised- edition of his Code, in which he incorporated his own legislation down to date (November 16, 534).3 From that time down to his death in 565 there followed a series of Novels (novellae constitutiones), mostly in Greek, which were never officially collected, and of which probably some have been lost.4
Taking his enactments in the Code and his Novels together, we have of Justinians own legislation not far short of 600 ills ~wa constitutions. Diodetians contributions to the Code enact- are more than twice as numerous; but most of them motifs, professed to be nothing more than short declaratory statements of pre-existing law, whereas Justinians, apart from his Fifty Decisions, were mostly reformatory enactments, many of those inthe Novels as long as an average act of parliament, and often dealing with diverse matters under the same rubric. They cover the whole, field of law, public and private, civil and criminal, secular and ecclesiastical. It cannot be said that they afford pleasant readling~, they are so disfigured by redundancy of language, involved periods and nauseous self-glorification. But it cannot be denied that many of those which deal with the private law embody reforms of great moment and of most salutary tendency. The emperor sometimes loved to pose as the champion of the simplicity and even-handedness of the early law, at others to denounce it for its subtleties; sometimes he allowed himself to be influenced by his own extreme asceticism, and now and again we detect traces of subservience to the imperious will of his consort; but in the main his legislation was dictated by what he was pleased to call humanitcfs so far as the, law of persons was concerned, and by naturalis ratio and public utility so far as concerned that of things. The result was the eradication of almost every trace of the old fur Quiritium, and the substitution for it, under the name of jus Romanum, of that cosmopolitan body of law which has contributed so largely to almost every modern system.
Changes in the Law of the Family.With the Christian emperors, from Constantine downwards, almost the last traces disappeared of the old conceptionof the familia as an aggregate of persons Law of and estate subject absolutely to the power and lorpinion family of its head Menus the power in a husband over his t~OI~ US. wife and her belongings, was a thing of the past; both stood now on a footing of equality before the law; perhaps it might be more aCcurate to say, at least with reference to the Justinianian legislatioo, that the wife was the more privileged of the twO in respect both of the protection and the indulgence the law accorded her. With manus the old cOnfarreation and coemptipn had ceased, marriage needing nothing more than simple interchange of cons~nt, except as between persons of rank (illustres) or when the intention was to legitimate previous issue; in the latter case a written marriage settlement (inslrumetUum dtitdle) was required, and in the fotmer both such a settlement and a marriage in church before the bishOp and at least three clerical witnesses, who granted and signed a certificate of the completed union. The legislation. of the Christian emperors on the Subject of divolce, largely contributed to by justinian in his Novels, has already been referred to. In regard to the dos, n~n~ new provisions were inttoduced, principally for curtailing the husbands power of dealing with it while the marriage lasted, enlarging the right of the wife and her heirs in respect of it, and simplifying the means of recovering it from i~he husband or hi, ThO best ediiibn is tl~at of Kruger, which is prefixed to the stereotype edition of th Cor pus furls, by Mommsen, ~(ruger and Schoell vol i and also published separately The best edition iS that of Mom,msen, Digesta fustiniani (2 vols., Berlin, 186670), and also yoi. i~ of the stereotype edition of the Corpus furls mentioned~ in preceding note A new and handy edition, however, based on that of ,Mommsen, by Bonfante and several other Italian professors, is now in course of publication. Books I XXVIII. were publi~hed up tO 1908 (Milan). A collotype, facsimile of the Florentine Ms. of the Digest is also in co~rse of publiCation in Italy. Fascicoli 1.VI. have already (1908) appeared (Rome, 19027).
The best edition is that of !~rger, forming vol. ii. of the Corpus furls last mentioned. -
The best edition is that of Schoell, completed by Kroll in 1895, and forming vol. iii. of the Corpus furis last mentioned. It contains the Greek texts, Latin Vulgate and a Latin translation more correct than the Vulgate.
heirs-when the marriage was dissolved. Between the time of Constantine and that of Theodosius and \Ialentinian a new form of matrimonial settlement became established. It became apparently a legally sanctioned practice for a man to make (apart from ordinary marriage presents) a settlement on his intended wife either by actual transfer or by promise of a provision which was to remain his property (though without the power of alienation) during the marriage, but to pass to her on his predecease or on divorce by his fault. This got the name of donatio ante nuptias, or sometimes, as being a sort of counterpart for the dos, aniipherna. There was some important legislation. about it by the two last-mentioned emperors; Leo and Justin followed suit; and Justinian, in his Code and Novels, published five or six enactments for its regulation. The general result was that, wherever a dos was given or promisedon the part of the wife, there a donatio of equal amount was to be constituted on the part of the husband; that, if one was increased during the marriage, a corresponding increase was to be made to the other; that it might be ,constituted or increased after the marriage without infringing the rule prohibiting donations between husband and wife, which caused Justinian to change its name to donatio, pro pter nuptias; that the wife might dema1rd its transfer to her (to the same extent as she could that of the dos) on her husbands insolvency, but under obligation to apply ics income to the main-~ tenance of the family; and that on the dissolution of the marriage by her husbandsdeath or by adivorce for which he was in fault, she had an hypothec and other ample remedies for reducing it into possession.6
The change in the complexion of the relations between husband and wife under the Christian emperors, however, was insignifica,nt when compared with thatwhich had overtaken the relation between parent and child. Justinian in his Institutes reproduces ihe boast of Gaius that nowhere else had a father such power over his children as was exercised by a Roman paterfamiltns. True it is that the patria potestas in name still held a prominent plate in the Justinianian cOllections; but it had been shorn of mOstof the prerogatives that had characterized it in earlier periods. To expose a newborn child was forbidden under penalties. To take the life of a grownup oneunless it was a daughter slain with her paramour in the act of adulterywas murder; for the domestic tribunal, with the judicial power of life and death in the paterfamilias as its head, had long disappeared.
Further, a parent could no longer sell his child save only wheir the child was an infant and he in such extreme poverty as to be unable to support it. Even the right to make a noxal surrender of his son toa party who had suffered from the latters delict had silently become obsolete; so greatly had altered sentiment, in sympathy with legislation, curtailed the power of the paterfamilias over those in his potestas. This noxae deditio was formally abolished by Justinia1t. All that remained of the patria potestas, inshort; in the J ustinianian law was little more than would be sanctioned In most modern systems as natural emanations of the paternal relationship; Thus he had, right of moderate chastisement for offenees (for the infliction of graver punishments he had to apply to the iSiagistrate), of testamentary nomination of guardiatis, of pupillary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, but subject in. this last case to magisterial intervention if used unreasonably.
How the right Of the paterfamilias over the earningsand acquisitions of his children was modified by the recognition of the pecu4~unf castrense has~been shown in a previous page. But the modificat~oa was carried to such an extent by the Christian emperors as finally to negative the fathers ownership altogether, except as regarded acquisitions that were the outcome of funds advanced by him to his child for his separate use (peculiuni profecticium). Of some of the childs acquisitions (boise- adIfenticia) his father had, down. to the tIme of Justinian, the life interest and right of adniinistration; but by his legislation even these might be excluded at the pleasure of the parties from whom the acquisitions had been derived or by, maladministration of the father.
By the classical law the fathers radical right in his sons peculium castrense revived on the latters death; for if he died intestate the former appropriated it not as his sons heir, but as an owner whose powers as such had been merely temporarily suspended. But by one of the chapters in the famous 118th Novel oiythe law of intestate succession even this prerogative of thn pate~fa1niUas was abolished, and all a childs belongings except hiS pe~ulium pnifecti ci urn were recognized as his own in death as welt as in life, so, that if any of them should pass to his parent on his inteetacy it should only be by title of inheritance and in the~absence of descendants.
In every other branch of the law of the family the same reforming spirit was manifested. Adoption of ,fihiifarnilias was no longer followed in all cases by a change of family for the adoptee, but only when either the adopter was in fact one of his ancestors in whose potestas he had never been, such as a paternal or maternal ~randfather, when there was a natural potestas to underlie and justify the civil oneor when an ancestor gave in adoption a grandchild who was in his poleskis but would not become sui juris by his death, The mode of strict adoption also was simplified, the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, was abolished. The modes of legitimation of children born of a concubine, especially that by subsequent marriage of the parents, first introduced by Constantine, were regulated, and the extent of the rights of the legitimated issue carefully defined. Emancipation was simplified in a similar way to that of strict adoption. Tutory at law was opened to the pupils nearest kinsman, whether on the fathers side or the mothers; and the mother herself, or the childs grandmother, might be allowed, under certain conditions, to act as its guardian. Slavery was often converted into the milder condition of colonate; but, even where this did not happen, the rights of owners were not allowed to be abused; for slaves were permitted to claim the protection of the magistrate, and cruelty by a master might result in his being deprived of his human property. Kinship that had arisen between two persons when one or both were slaves (servilis cognatio) was recognized as creative not only of disabilities but of rights. The modes of manumission were multiplied, and the restriction of the legislation of the early empire abolished; and a freedman invariably became a citizen, Junian Latinity and dediticiancy being no longer recognized.
Amendments on the Law of Property and Obligation.In the law of property the principal changes of the Christian Empire were the ,,, simplification of the forms of conveyance, the extension Law ~ of the colonate, the introduction and regulation of emprope phyteusis and the remodelling of the law of prescription.
Simplification of the forms of conveyance was necessary only in the case of res mancipi, for res nec mancipi had always passed by delivery. From the Theodosian Code it is apparent that movable res mancipi usually passed in the same way from very early in the period, and that for the mancipation of lands and housesfor in jure cessio had disappeared with the formular systema solemnis traditio, i.e. a written instrument and delivery following thereon, and both before witnesses, had been gradually substituted. Of this there is no trace in the Justinianian Code. For Justinian abolished all remains of the distinction between res mcsncipi and res nec mancipi, between full ownership, bonitarian ownership and nuduni jus Quiritium, placing. movables and immovables on a footing of perfect equality so far as their direct conveyance was concerned. But, as regarded the possession required of an acquirer to cure any defect in the conveyance, he made a marked difference between immovables and movables. For, amalgamating the old positive usucaption of the isis civile with the negative prolonged possession (longi temporis possessio) that had been first introduced for immovables in the provinces (probably by the provincial edict), and afterwards by rescripts of Caracalla for movables,i he declared that possession on a sufficient title and in good faith should in future make the possessor legal owner of the thing possessed by him, provided that the possession of himself and his author had endured uninterruptedly for three years in the case of a movable, and in the case of an immovable for ten years if the party against whom he possessed was resident in the same province, or for twenty if he resided in another one.
The same causes that led to the colonate induced the introduction of emphyteusis,2an institution which had already existed in some ~ h - of the Eastern provinces when independent, and which mp ~ came to be utilized first by the emperors, then by the CUSS, church, and afterwards by municipalities and private landowners, for bringing into cultivation the large tracts of provincial land belonging to them which were unproductive and unprofitable through want of supervision on the spot. Its nature and conditions (which bore a certain similarity to the earlier jus in agro vectigali of the Western Empire, with which it was ultimately fused, and to hereditary leases sometimes granted in the early Empire) were carefully defined by Zeno and amended by Justinran. The emphyteuta, as the grantee of the right was ultimately called, did not become owner; the granter still remained dominus, all that the grantee enjoyed being a jus in re aliena, but so extensive as hardly to be distinguishable from ownership. It conferred upon him and his heirs a perpetual right in the lands included in the grant, in consideration of a fixed annual payment to the lord (canon) and due observance of conventional and statutory conditions; but he was not entitled to abandon it, nor able to free himself of the obligations he had undertaken, without the lords consent. The latter was entitled to hold, the grant forfeited if the canon fell into arrear for three years (in church lands for two), or if the land-tax was irs arrear for the same period, or if the emphyteuta allowed the lands to deteriorate, or if he attempted to alienate them (alienare melioraDig. xliv. 3, 9.
2 See Elia Lattes, Studi storici sopra ii Contratto dEnfiteusi nelle sue relazioni cot Colonato (Turin, 1868), chaps. 1 and 3; and Francois, De tErn phylose (Paris, 1883); Beaudouin in Nouv. rev. hist. (1898), pp. 545 seq.; Karlowa, Rm. R. G. ii. pp. 1268 seq. The name comes from the obligation imposed upon the grantees to make plantations (~.~uTd~L~).
Liones as the text says) without observance of statutory requirements. These were that he should intimate an intended alienation and the name of the intended alienee to the lord, so that the latter, before giving his assent, might satisfy himself that he wouldnOt be a loser by the transaction; and, if the alienation was to be by sale, he had to state the price fixed, so as to give the lord the opportunity of exercising his statutory right of pre-emption at the same figure. If those requirements were complied with, and the lord (himself declining to purchase) stated no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of 2% of the sale price or of the value of the land1 in consideration of his enforced consent. -
The chatiges in the law of obligation were more superficial than those in the law of property, and consisted principally Oh!! a in the simplification of formalities and in some cases ~ g in their entire abolition, To describe them, however, OflS would carry us into details which would here be out of place.
Ch~fnges in the Law of Succcssion.The changes made in the law of succession by Justinians Christian predecessors, especially Theodosius II. and Anastasius, were far from insignificant; ~ but his own were in some directionspositively revolutionary. CS 3 The testament per aes el libram of the jus civile probably mentary never obtainedany firm footing in the East; for it was only ~ by Caracallas constitution conferring citizenship on all his free subjects that provincials generally acquired testamentifacilo; and by that time a testament bearing externally the requisite number of seals had been recognized as sufficient for a grant of bonorum possessio unchallengeable by the heirs-at-law, even though they were able to prove that: neither familiae mancipalio nor testamenti ~nuncu patio had intervened. Hence the universal adoption of what Justinian calls the praetoriap testament, which, however, underwent considerable reform at the hands of the emperors, notably Theodosius II. and Valentinian III., in the, requirement (in the ordinary case) of signature by the testator and subscription by the Witnesses, thereby becoming what Justinian calls the tripartite testament. There was much hesitating legislation on the subject before the law was finally established as it stands in the Justinianian books; and even at the last we find it encumbered with many exceptions and reservations in favor of testaments that were merely deeds of division by a parent among his children, testaments made in time of plague, testaments made before a magistrate and recorded in books of court, testaments entrusted to the safe keeping of the emperor, and so forth. Codicils had become deeds of sch importance as, in the absence of a testament, to be dealt with as imposing a trust on the heir-at-law; it was therefore thought expedient to deny effect to them unless attested by at least five witnesses. And a most important step in advance was taken by Justinian in, the recognition of the validity of an oral mortis causa trust; for he declared that, if it should be represented to a compete~t,judge that a person on his death-bed had by. word of mouth directed- his heir to give something to the complainant, the heir should be required either on his oath to deny the averment or to give or pay what was claimed.2
In the matter of intestacy there had been long a halting between two opinionsa desire still further to amend the law in the direction taken by the praetors and by the legislature in the Ter- The tullian and Orphitian senatusconsults, and yet a hesitancy 118th about breaking altogether from the time-hallowed principle ~ of agnation. Justinian in his Code went far beyond his, VC. predecessors, making a mothers right of succession independent altogether of the jus liberorum; extending that of a daughter or sister to her descendants, ,without any deduction in favor of agnates thus excluded; admitting emancipated collaterals and their descendants as freely as if there had been no cap-itis derninutio minima; applying to agnates the same successio graduum that the praetors had allowed to cognates, and so forth. But it was by his Novels, especially the 118th and 127th, that he revolutionized the system, by eradicating agnation altogether (except as regardg adopted children) and settling the canons of descentwhich were the same for real and personal estatesolely on the basis of blood kinship, whether through males or females, and whether crossed or not by a capitis deminutio. First came descendants of the intestate, male and female alike, taking per capita if at! were of the same degree, per stirpes if of different degrees. Failing descendants, the succession passed to t,he nearest ascendants, and, concurrently with them to brothers and sisters of full blood (germani) and (by Nov. 127) the children of any that had predeceased. Where there were ascendants alone, one-half of the succession went to the paternal line and one-half to the maternal,; where there were ascendants and brothers a,nd sisters, or only brothers and sisters; the division was made equally per capita; when children of a deceased brother or sister participated it was per stirpes. In the thfrd class came brothers and sisters of half blood and their children, and grandchildren of brothers and sisters german; the division here was on the same principle as in the second class. The fourth class included all other collaterals according to propinquity, apparently to, the remotest degree, and without distinction between full and half blood; Inst. ii. 23, 12.
but among those the nearest in degree excluded the more remote, and when all were of the same degree they took per cap-ito.
A reform effected by Justinian by his I 15th Novel ought not to pass unnoticed; for it rendered superfluous -all the old rules about disherison and praeterition of a testators children, practi The cally abolished bonorum possessio contra tabulas as regards freeborn persons and established the principle that a child had, as a general rule, an inherent and indefeasible right to be one of his fathers heirs in a certain share at all events of his succession, and that a parent hadthe sameright in the succession of his child if the latter had died without issue. The enactment enumerated certain grounds upon which alone it should be lawful for a parent to disinherit his child or a child his parent, declaring that in every case of disherison the reason of it should be stated in the testament, but giving leave to the person disinherited to dispute and disprove the facts when the testament was opened. If a child who had not been disinheritedand one improperly disinherited was eventually in the same positionwas not instituted to some share, however small, of his parents hereditas, he was entitled to have the testament declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting accessory provisions, such as bequests, nominations of tutors, &c.; and if ,the share to which he was instituted was less than his legitim (legit-ima or debita poriio) he was entitled to an action in supplement. The legitim, which under the practice of the centumviral court had been one-fourth of the share to which the child would have been entitled ab intestato, had been raised by Justinian (by Novel 18) to one-third at least, and one-half where there were five or more entitled to participate. He did not allow challenge of the will to be excluded, as in the earlier querela inofficiosi testomenti, because the testator had made advances to his child during his life or left him a legacy which quantitatively equalled the legitim; his idea was that a childwas entitled to recognition by his parent as one of his heirs, and that to deny him that position without statutory grounds was to put upon him an indignity which the law would not permit.
Amongst the other beneficial changes effected by Justinian may be mentioned the assimilation so far as possible of hereditas and 0th bonorum possessio, so that the latter might be taken like char, ~ the former ~vithout formal petition for a grant of it; the equiparation of legacies and singular trust-gifts, and the application of some of their rules to mortis causa donations; the extension of the principle of transmission to every heir without exception, so that, if he died within the time allowed him for considering whether or not he would accept (tempus deliberandi), his power of acceptance or declinature passed to his heirs, to be exercised by them within what remained of the period; the introduction of entry under inventory (cum beneficio invetarii), which limited the heirs responsibilities and rendered unnecessary the nine or twelve months, of deliberation; and the application of the principle of collation to descendants generally, so that they were bound to throw into the mass of the succession before its partition every advance they had received from their parent in anticipation of their shares.
iv. The Justinianian Law-Books.
Their Use in the Courts and in the Schools.Although the Institutes were primarily intended to serve as a text-book in the schools, it was expressly declared that it and the Digest and the Just/n- Code should be regarded as just so many parts of one great lanian piece of legislation and all of equal authority; and that, Law- although Digest and Code were but collections of common booka, law and legislation that had proceeded originally from many different hands, yet they were to be treated with the same respect as if they had been the work of Justinian himself. But, while everything within them was to be held as law, nothing outside them was to be looked at, not even the yolumes from which they had been collected; and so far did this go that, after the publication in ~ of the revised Code, neither the first edition of it nor the Fift Decisions were allowed to be referred to. If a case arose for whic no precedent was to be found, the emperor was to be resorted to for his decision, as being outside his collections the only fountain of the law. To preserve the purity of the texts Justinian forbade the use of conventional abbreviations (sigla) in making transcripts, visiting an offender with the penalties of falsification (crimen falsi). Literal translations into Greek were authorized, and indepd were necessary for many of his subjects; so were indexes and irap&ri,-Xa, i.e. summaries of parallel passages, texts or individual titles. Commentaries and general summaries were forbidden under heavy penalties, as an interference with the imperial prerogative of interpretation.i But these prohibitions do not seem to have been enforced, as we have accounts and remains not only of translations but of commentaries, notes, abridgments, excerpts and general summaries even in Justinians lifetime. These, it is true, were mostly by professors (antecesso,rss), and their productions may have been intended primarily for educational purposes; but they soon passed into the hands of the practitioners and were used without scruple in the courts. A Greek Paraphrase of the Institutes, usually iConst.DeOAUctore 12; Tania, 21.
attributed to Theophilus, a professor in Constantinople and one of J ustinians commissioners, has been supposed to have been used by him in his prelections. It embodies much - more, historical matter than is to be found in the Institutes; but it contains a good many inaccuracies and its value has been very differently rated by different critics. Itslatest editor, Ferrini, who puts a high estimate on it, is of opinion that the original of it was a reproduction in Greek of Gaius, drawn u9 at Beirut, which was remodelled after the plan of Justinians Institutes, and had the new matter of this latter work subsequently incorporated in order to adapt it to the altered conditions; but he denies that there is any sufficient authority for ascribing it to Theophilus. If he be right in assuming that it was really based on a redaction of Gaius, its historical explanations will be received with all the more confidence.i Fate of the Justinianian Books in the East.The literary work indicated in the preceding section was continued throughout the 6th century. But the next three were comparatively barren, Th ts the only thing worth noting being the EKXO-i/,) r~i vbuwv ~ cat: ~ ovvrbucii ,sPofL~P11 of Leo the Isaurian in 740, professedly ~ an abstract of the whole Justinianian law amended and rearranged; but it was repealed by Basil the Macedonian on account of its imperfections and its audacious departure from the law it pretended to summarize. The last-named emperor, followed by his son Leo the Philosopher, set themselves in the end of the 9th and beginning of the 10th centuries to the production of an authontative Greek version of the whole of the Justinianian collections and legislation, omitting what had since become obsolete, excising redundancies, and introducing such of the post-Justinianian legislation as they thought merited preservation. The result was the Basilica (Ta BcwiXuc, sc. ~6uu a), which was completed and published in the reign of Leo, though begun in the reign of Basil, who also published a sort of institutional work, entitled flp~eipov, which was revised and republished by Leo under the name ofE,ravaywy~ rd3 visov. The Basilica3 consists of sixty books, subdivided into titles, following generally the plan of the Justinianian Code, but with the whole law on any particular subject arranged consecutively, whether from Institutes, Digest, Code or Novels (see article BAsILIcA). Leos son, Constantinus Porphyrogenitus, made an addition. to it in the shape of an official commentary collected from the writings of the 6thcentury jurists, the so-called llapaypa4ai ri~v ,ra?~ad~v, which is now spoken of as the schol-ja to the Basilica, and has done good exegetical service for modern civilians. Later annotations by jurists of the 10th to the I2th century are also called scholia but are of less value. The Basilica retained its statutory authority until the fall of the Byzantine Empire in 1453. But long before that it had ,fallen into neglect in practice; and though nearly the whole of it and a great part of its scholia have come to us, yet not a single complete copy of it exists. Its place was taken by epitomes and compendia, the last being the ~Efit~Xo1 of Constantinus Harmenopoulos about 1345, a miserable epitome of the epitomes of epitomes, as Bruns calls it, which survived the vicissitudes of the centuries, and finally received statutory authority in the modern kingdom of Greece in the year 1835, in place of the Basilica, which had been sanctioned thirteen years before, in I822.~
Their Fate in the West.Before the rise of the Bologna school it was to a much greater extent from the Romano-Barbarian codes than from the books of J ustinian that centraland westernEurope, Th, apart from Italy, derived their acquaintance with Roman ~.
law. TheOderics Edict can have had little influence after ~7, en Justinians recovery of Italy, and the Romano-Burgundian e C law was no doubt gradually displaced by Alarics Breviary after Burgundy had fallen into the hands of the Franks; but the Breviary itself found its way in all directions in France and Germany, penetrating even into England, mainly through the agency of the church. There must, however, have been other repertories of Roman law in circulation (and among others probably either Gaiuss Commentaries or Ulpians Rules), as witness a testament made in Paris in the end of the 7th century, mentioned by Savigny as preserved by Mabillon, in which the testator uses the old formula of the jus civile, ito do, ito lego, ito testor, ito vos Quirites testimonium mihi perhi bet ote,, words that are not to be found either in the Visigothic or the Justinianian collections. We know that in his pragmatic sanction of the year 554, Justinian anew accorded his imperial sanction to the jura and l-eges, i.e. the Digest and Code, which he says he had long before transmitted to Italy, at the same time declaring that his Novels were to be of the same authority there as in the East. ~Two years after this came Julians Latin epitome of the Novels (a private work by a Constantinopolitan professor), not improbably prepared by command of the emperor himself. That Justinians works soon came i Ed. Heirnbach, 6 iOls. with Latin translation (and in 1846 a supplement by Zachariae a Lingenthal), Leipzig, 183370. A nCw supplement forming vol. 7, by Ferrini and Mercati, was published in 1897.
4For the history of Byzantine law subsequent to Justinian, see Zachariae, Geschichte des Griechisch.-Rom. Rechts (3rd ed., I892), and Historia juris Graeco-Romani (1839); Mortreuil, Histoire du droit byzantin (~ vols., 184346).
to some extent into use in Italy is beyond question;-for there is preserved in Marinis collection the testament of one Mannanes, executed at Ravenna in the reign of Justinians immediate successor Just~n II., in which the requirements of both Code and Novels are scrupulously observed. Of other monuments of the same period that prove their currency in Italy several are referred toby Savigny jn the second volume of his History of the Roman Laui in the Middle Ages, among which may be mentioned the Turin gloss of the Institutes, which Fitting ascribes to about the year 545,i and two little pieces known as f he Dictatum de consiluirsis and the Coil-echo de tzaori bus.2 The invasion of the Lombards, the disturbance they caused in Italy for two centuries, and the barrier they formed between it and the rest 0f Europe militated against the spread of the Justinianian law northwards; but it was taught (from the 6th to the 11th century) without much interruption at law schools in Rome, and also at Ravenna, the seat of the exarchs, to which (but this is doubtful) the school (studiuni) of Rome, revived by Justinian, is said to have been transferred in the 11th century. By the Lombards, as their savagery toned down, tht Roman law was so far recognized that they allowed it to be applied to the Romans living within their territory, and it is said even to have been taught in Pavia, which they had established as their capital. Their overthrow, by Charlemagne opened an outlet for it beyond Italy; and there is evidence that, in the 9th century Justinians works, or some of them, were already circulating in the hands of the clergy in various parts of Europe. Yet there are few remains of any literature of this period indicating much acquaintance with them. The only writings worth mentioning are the so-called Summa Perusina, an abridgment of the first eight books of the Code, ascribed to the 7th century; the Lombardic Quaesliones ac Monila containing observations on the Germanic and Roman lawa with texts drawn from the Institutes, the Digest, the Code and Julians Epitome, and supposed to have been written early in the 11th century; the so-called Brachylogus, in large part a sort of abbreviated revision of Justinians Institutes, but with references also to his other books, which Fitting and others hold to have been written in France (perhaps Orleans), possibly by a pupil of Irnerius, about the very beginning of the 12th century; and the Petri Exceptiones legum Romanorunz, a similar systematic exposition of the law in four books, probably written in the 11th century earlier than Irneriuss Summa. - Both the Brachylogus and the Peirus were mainly compiled from pure J ustinianian sources.
Apart from these remains a word may here be said about the work of the glossarists.4 It was at the very end of the 11th century that at the law school of Bologna, then under the guidance The of the celebrated Irnerius, the study of Roman law began gloss4r- somewhat suddenly to attract students from all parts of ists. Europe. Partly through ignorance and partly through the action of the clergy, the parts of the Justinianian legislation that had hitherto-been in ordinary use were the Institutes, the Code and the Novels. The first, from its elementary character, had naturally commended itself; the Code and the Novels, with their abundant legislation on matters ecclesiastical, were in many respects charters of the churchs privileges, and were prized accordingly; but the Digest, as being the work of pagan jurists, had been looked on askance and practically little used. The Code and the Novels, however, with their modicum of wheat concealed in a great quantity of chaff, offered little attraction to laymen of intelligence; and, when under the guidance of Irnerius their attention was first concentrated on the Digest, it must have come to them as a sort of revelation. Dogmatic and exegetic teaching of the Corpus Juris in all its parts was actively begun, and a new school arose called the glossarists (glossatores), of whom Irnerius has always been rightly regarded as the founder. This great man, who is said to have been trained both in logic and rhetoric and to have afterwards studied and taught law at Rome before coming to Bologna, was mOre than a glossator. He was also the first of the medievalists to treat the law in a scientific way. In his Summa Codicis (a work attributed to him by Fitting on evidence which seems almost conclusive) he produced for his contemporaries -and successors an independently planned and so far systematic manual of the subject-matter of the Code, omitting the last three books. The subject was treated in full relation tothe other parts of the Corpus Juris, but follows in general the titles of the Code. The glossators got their name from the glossue, i.e. marginal and interlinear annotations (both grammatical and doctrinal) with which they furnished the texts of the Fitting, Uber die sogenannie Turiner Ins fitutionen-glosse (Halle, 1870): cf. Conrat, Gesch. d. Quell-en u. Liii. d. rOm. R. im friiherEn MiUelal-ier, vol. i. pp. i8o seq., Leipzig, 1891.
2 Conrat hi suP. pp. 137140.
Brachylogus tolius juris civil-is is a fuller title given to it. It has also been called Corpus legum. It first got the name Brachylogus in the 16th century.
~ Savigny, Geschichte d. r. R. vols. 35.
See Summa Codicis of Irnerius by Fitting (Berlin1 1894). Two other works attributed to rrnerius, called respectively Quaestiones de SuFtilikjtibus JUIIS and a treatise De Aequitate, have been edited by the same author. See also Fitting, Z. d. Say. Shift. xvi. pp. i seq.
Corpus Juris which were in theit hands. They also-wrote summae, casus, brocarda, ,&c., for use both in. the courts and the schools, and occasionally- special treatises.. They confined their work entirely to the Corpus .Turis, being almost wholly ignorant of the history of the law. Beginning with Irnerius, the school lasted for about a century and a half, and ended with ,Franciscus Accurtius, who died in 1260 after having made a systematic but summarized collection of the glosses of his predecessors, which was afterwards known as the Glossa Ordinaria or The Great Gloss. Among the more famous representatives of the school (other than Irnerius) were, in the 12th century, Bulgarus, Martinus, Jacobus and Hugo, known as the quattuor docto~es, and Accursius himself., To these may be added Placentinus and Vacarius of the 12th and Azo and Odofredus of the 13th century. The Digest, as used by the gloss~xists, was divided into three parts, known as Digestuin Veins (books 124,124, tit. 2,),Infortiatum (books 24, tit. 338), and Digestum Novum (books 39 to the end). The manuscripts of these, as used by the glossarists, are called the Vulgate (lectio Vulgate), to distinguish them from the Florentine Manuscript (lectio Pisana), on which, indeed (or on the same original source as it), they were probably all primarily based, but from which, as far at least as book 33, they saried in numerous readings. The historical explanation of the cause of this just-mentioned threefold division is given by Mommsen in the preface to his larger edition of the Digest, to which it will be sufficient to refer.6 The whole Corpui- Juris was by the glossarists distributed into five volumes, viz, the three just named; a fourth, containing the first nine books of the Code; and the fifth, called coinmen parvum legum, containing the Institutes; 134 of the Novels in Latin (known as the Authenticum7); and the last three books of the Code.
The success of the Accursian gloss was rather detrimental to scientific development of the law. It became a sort of code in itself which both in the schools and the courts tended to supersede the texts of Justinian. The intelligent study of the Sources was neglected while lawyers devoted themselves to subtle distinctions and useless divisions of subject-matter. It led to the application during the 14th and 15th centuries of the methods of scholasticism to the Roman law. The authors of this scholastic jurisprudence, which prevailed during the greater part of these centuries,, have been called post-glossatois and scribentes or commentators. Their most, noted representative was Bartolu~ (1314-1357), after whom I they were often called Bartolists. This school, however (mainly -Italian), did much towards developing a definite, system of common law in Italy based on the Roman, and thereby facilitated the reception of Roman law in Germany and other countries.
In the 16th century a new start or, so to say, second renaissance was given to the Roman law. The study of classical antiquities, sO active on the side of literature, extended to jurisprudence also. The juridical writings which had been handed down from the Romans ceased to be regarded purely as positive law, binding acCording to the letter, but as a part of ancient tradition whose spirit as well as form must be examined by-the light of the past. Among the pioneers in this new method, to whom the name of Humanists has been given, mtist be specially mentioned Alciatus (1492-1540), Cujacius (1522-1590) and Donellus (1527-1591). Medievalism has passed away, and with these jurists began what has been called the modern Roman law, to describe which, however, is entirely beyond the province of this article. (H. Go.)
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