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Library

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Goruell Gaw
OUTLINES

OF

ROMAN LAW

COMPRISING

ITS HISTORICAL GROWTH AND GENERAL
PRINCIPLES

BY

WILLIAM C. MOREY, Pu. D.
——
PROFESSOR OF HISTORY AND POLITICAL SCIENCE—FORMERLY PROFESSOR OF
LATIN—IN THE UNIVERSITY OF ROCHESTER

SEVENTH EDITION

G. P. PUTNAM’S SONS

NEW YORK LONDON
27 WEST TWENTY-THIRD STREET 24 BEDFORD STREET, STRAND

The Knickerbocker Press
1894
EY)

COPYRIGHT BY
G. P. PUTNAM’S SONS
1884

The tknickerbocker Press
Electrotyped and Printed by
G, P. Putnam’s Sons
 

PREFACE.

 

THE primary object of this book is to serve as a man-
ual for the use of students and of others who desire an
elementary knowledge of the history and principles of
the Roman Law. Since the founding of the “historical
school” in Germany, and the new direction given to
legal studies by Sir Henry S. Maine, the importance of
the Roman law as a part of liberal education has been
strongly emphasized in England, and has received some
recognition in this country. It seems now to be a well-
established fact that the history of modern systems of law
and the principles of comparative jurisprudence cannot
be properly understood without some knowledge of this
most important branch of learning. Twelve years experi-
ence in teaching this subject has convinced me of the val-
uable results which it affords to the student in widening
his historical horizon and in deepening his sense of the
importance of law as a liberal science.

The general scope of this outline is somewhat similar

‘to that expressed in the ordinary German title, Geschichte
und Institutionen des Rémischen Rechts. But its arrange-
ment, both in the historical and the expository part, dif-
fers considerably from that usually followed by the Ger-
man text-book writers. The departure from a plan ap-
proved by writers of such eminence may require a word
or two of explanation—in addition to the general neces-
sity of adapting a work, as far as possible, to the special
needs of those for whom it is written.

iii
iv PREFACE.

Since the time of Leibnitz it has been customary in
Germany to separate the external from the internal history
of the Roman law. This method has, it is true, made clear
the distinction between the formal sources of the law, on
the one hand, and the development of the various branch-
es of the law, on the cther. If the method fails at all, it
fails to give a proper synthetic view of the general histori-
cal influences which have contributed to the growth of
the law as a whole. I have adhered to the division into
periods adopted by Puchta ; but have added a fifth peri-
od in order to emphasize the continuity which binds
together the history of the Roman law from the earliest
times to the present. I have also attempted to point out
in each period the organic agencies at work in Roman so-
ciety, whether social or political, philosophical or religious;
the mode in which these agencies acted upon the prevail-
ing legal forms and ideas ; and the effects which they pro-
duced upon the substance of the law, as a whole, and in
its more important branches. And this general line of
development is traced, so far as is consistent with the
iimits of the work, by the aid of specific illustrations. In
controverted questions regarding the origin of law, I have
usually followed the safe judgment of Sir Henry S.
imaine,

In describing the general principles of the Roman law,
one of three modes of classification may be adopted. In
the first place, we may accept the ordinary arrangement
adopted by the German writers in describing the modern
civil law. Again, we may re-arrange the principles of the
law according to an ideal order, which we think the Ro-
mans ought to have adopted. Finally, we may adhere to
the general classification with which the Romans them-
sélves were familiar in the works of their own text-book
writers, Were it not for the fact that this last method is
PREFACE. v

rarely followed, it would seem hardly necessary to claim
that the spirit of the Roman law can be best understood
in the form in which it is expressed in their own syste-
matic treatises. Without assuming that this is the most
scientific arrangement, I have yet followed as closely as
possible, the order of the “Institutes ” of Gaius and Justin-
ian, as that which most faithfully represents the legal
system of the Roman jurists. The special portions of
the law are explained, however, in the light of the “ Digest”
and the works of modern commentators.

That this book may also serve as a guide to the further
study of the Roman law, each chapter is followed by a short
list co! reterences, which is intended not to be a biblio-
graphy of the subject discussed, but to call attention to
certain works in English, French, and German, and to
some original authorities, in which the study of the subject
may be continued. The most important of these referen-
ces will also be found collected in a single list at the close
of the volume.

The great extent of the subject embraced in this out-
line must be pleaded as an excuse for the brief and often
inadequate discussion of particular topics. The purpose
of the outline will, however, be accomplished if it presents
to the student and to the general reader a clear and com-
prehensive idea of the historical and scientific significance
of the Roman law, and thereby awakens an interest in its
further study.

RocuHEsTER, N. Y.,
October 1, 1884.
CONTENTS.

PART FIRST.
THE HISTORICAL GROWTH OF THE ROMAN LAW.

PERIOD I.

FROM THE EARLIEST TIMES TO THE CODIFICATION OF THE
TWELVE TABLES.

PAGE

CHAPTER I.— The Organization of Early Roman Society . 3
1. The early Roman family F 3 5

2. The Roman gens 2 e . 7

3. The Roman populus . ee ae 8

4. The Plebeian element . é 9

5. The Consular or Republican deverdmnient Il
CHAPTER II.— The Beginnings of the Ancient Fus Civile . a4
1. Character of the earliest sanctions % ‘ . 4

2. The rise of civil jurisdiction . . : . » 15

3. The earliest civil procedure . . . . . a oy

4. The growth of legal conveyance . 7 . . » 19

5. The nature of early Quiritarian rights . 7 : - ai
CHAPTER III.— Zhe Character of the Twelve Tables , . 25
1. The law of procedure . . ‘| : . «» 26

2. The law regarding family selathotes ‘i . ‘ - 29

3. The law relating to succession. . ‘ ‘ vw 33

4. The law relating to property . : a ‘i - 37

5. The law respecting injuries . . : 3 $ - 40

6. General character of the XII Tables . ‘ : - 43

vii
viii CONTENTS.

PERIOD II,

FROM THE CODIFICATION OF THE TWELVE TABLES TO
'TTHE ESTABLISHMENT OF THE EMPIRE,

CHAPTER I.— The Enlargement of the State and the Extension

a the Franchise . ‘i . ‘ c $ » 47
. The equalization of the. andere jae civitatis 3 > 4

2. The pacification of Latium—yus Latiz . . . » 49
3. The reduction of Italy—jus Lialicum . . . » 50
4. The conquest of the provinces—jus provinciarum - 52
5. The civil wars and Roman citizenship . 7 : » 55

CHAPTER I].— The Roman Prator and the Earlier Fus Gen-

tum. 5 . , c . 7 * a * 59
1. The jurisdiction of the pretor ‘ ‘ . . » 59
2. The character of the preetorian edicts . . . » 61
3. The functions of the pretor peregrinus . : : - 63
4. The growth of the earlier jus gentium . - : - 65
5. Relation of the jus gentium to the jus civile. s . 69

CHAPTER III.— The Improvement of the Roman Law during

the Republican Period . : ‘ ‘ Z ‘ : 72
1. Extension of the civil capacity of persons. 3 - 72
2. The preetorian law of possession . , A é ae “9a
3. Acquisition of property ex jure gentium & : » 76
4. Changes in the law of succession . ‘ : é « 98
5. Growth of the law regarding contracts . : é . 80
6. Reforms in the law of procedure . ‘ : ‘ . 84

PERIOD III.

FROM THE ESTABLISHMENT OF THE EMPIRE TO THE
ACCESSION OF DIOCLETIAN,

CHAPTER I.— The Establishment of the Imperial System . + gt
1. The position of the Emperor r . , 5 - gt
2. The relation of the Senate tothe Emperor . Fi + 93
3. The position of the Comitia. 3 3 - 7 - 94
4. The new imperial offices . . . . ri - 95
5. The judicial system of the empire : y . - 96

CuapTeR II].— The Sources of Legislation under the Early
Empire ‘i . . . : . . . . - 98
CONTENTS, ix

1. The enactments of the people. . ‘ ° - 98
2. The decrees of the senate . : . + 100
3. The edict of the preetor : 4 . 7 . - 100
4. The responses of the jurists . : : . . 102
5. The constitutions of the emperor . ‘. i . . 104
CHAPTER III.— The Stoic Philosophy and the Later Fus Gen-
lium . . ‘ . - 107
I. The Stoic pitigeoshy at Rud a < 5 ‘ - 108
2. The Stoic theory of ‘‘naturallaw” ‘ , » 10g
3. Acceptance of this theory by the jurists , : . IIo
4. New meaning attached to jus gentium . s » oc. II2
5. The later jus gentium viewed as equity : . - 113
CHAPTER IV.— The Influence of the Furisconsults upon the
Roman Law : ‘ : é . : ‘ - 116
1. The method of the ele . ‘i 5 - ‘ . 116
2. Definitions and maxims of the law r z . . 118
3. The reason of the law—vatto legis i ‘ : - 120
4. Restrictive and extensive interpretation : j . 122
5. The jurists and indirect legislation i i . . 24
6. The jurists and direct legislation . 3 e - 127
PERIOD IV.

FROM THE ACCESSION OF DIOCLETIAN TO THE FINAL
CODIFICATION OF THE LAW BY JUSTINIAN,

CHAPTER I.— The Re-organization of the Imperial System . 135

1. Failure of the Augustan constitution . . : + 135

2. The orientalization of the empire . ‘ a 7 e 137

3. Reorganization of the provinces . ‘ x ; . 138

4. The forms of legislation . . ‘ é 7 - 139

5. The character of the judicature  . : . 3 .» 40
Cwapter I].— Zhe Relation of Christianity to the Empire and

to Legislation n ‘ ° a ‘ » 143

I. The triumph of Christianity 3 : , . - 143

2. Relation of the church to the state i : ‘ « 144
3. Immunities and privileges of the clergy i - 145
4. The judicial authority of the clergy . A 7 - 146
5. Christianity and legislation . $ ° ° ° - 148
x CONTENTS.

CHAPTER III.— The Final Codification of the Roman Law . 154
1. The pre-Justinian codes of the East . . ‘ . 154
2. The Roman codes inthe West . . . ‘ - 156
3. The final codification by Justinian 3 . . . 158
4. General character of the Corpus Furis . . - 162

PERIOD V.

FROM THE CODIFICATION OF THE LAW BY JUSTINIAN TO
THE PRESENT TIME.

CHAPTER I,— The Roman Law during the Middle Ages . . 167

1. Its continuance in the Eastern Empire. é : - 168
2. Its preservation in the barbarian kingdoms . » 69
3. The Roman law and the feudal system 3 é . 71
4. The Roman law and the medieval Empire . . » 174

5. The Roman law and the medieval Church . 3 . 176
CHAPTER I].— The Revival of the Study of the Roman Law

from the Twelfth Century . i . . . F « 8I
1. The school of Bologna in Italy . ‘ : i - 182
2. The study of the Roman law in France . . . 183
3. Itsstudy in Holland . ‘ ‘ ‘ ‘ 7 ~ 185
4. Its study in Germany . 7 . 3 : ‘ . 187
5. Its study in England . : a : 3 . . 189

CnrapTER III.— Zhe Roman Element in Modern Furisprudence 192
1. The modern civil law on the Continent . . + 193
2. The Roman element in the English law . . + 198
3. The Roman law and the modern canon law . - 203
4. The Roman law and modern international law. - 207
5. The spread of Roman law by colonization . ‘ . 210

PART SECOND.
THE GENERAL PRINCIPLES OF THE ROMAN LAW.

InTRopucTION.—Fundamental Concepts and Divisions of the

Law . . . . : . . : . : + 219
1. Justice andlaw , . . . . . ‘ . 219
2, Natural law and positive law . . ‘ . + 221

3. Written law and unwritten law . ° ° ° . 222
CONTENTS.

4. Public law and private law . . .
5. Law relating to persons, to things, aaa) to actions ,

BOOK I

THE LAW OF PERSONS—JUS PERSONARUM.

CHAPTER I.—Persons with reference to Liberty
1. The legal idea of person and status

2. Freedom as a condition of personality . .
3. Legal status of slaves—servi . ‘ : .
4. Legal status of freedmen—/ibertint , ‘
5. Status of free-born persons—ingenui . ‘ .

CHAPTER II.— Persons with reference to Family Relations

1, The power of the father over the child. . :
2. The nature of Roman marriage . .
3. The conditions of legal marriage . .

4. The legal effects of marriage 5 i 7 .
5. The dos and donatio propter nuplias . ° .

6. Divorce and its legal effects . é 5 .
CHAPTER III.—Persons with reference to Guardianship .
1. Different kinds of tutors. : ‘ 3 °
2. Powers and duties of tutors . ‘ ‘ : °
3. The law relating to curators é : % °
4. Protection against tutors and curators . é .

CHAPTER IV.—Artificial Persons—Corporations .

1. Nature and kinds of artificial persons . ;

2. Legal status of corporations . : 7 . .

3. Creation and dissolution of corporations 7
BOOK II.

THE LAW OF THINGS——JUS RERUM.

TiTLe J.—THE LAw oF OWNERSHIP.

CHAPTER I.— Things as the Objects of Ownership
1. The legal idea of res or thing

2. Things as to their legal capacity . . 7 .
3. Things as to their general qualities é
4. Things as to their mode of designation .
s. Things as to their mutual relations . °

+1

223
224

229
229
232
233
236
237
239
240
243
246
247
248
249
252
253
255
257
260
262
262
264
265

269
270
271
273
275
276
xii CONTENTS.

CHAPTER II.—General Right of Ownership~—Dominium ,
I. Growth of property asalegal right . . .
2. Elements involved in ownership, or dominium
3. Different forms of ownership — . . . . .
4. Possession and its relation to ownership .

CHAPTER III.— Subordinate Rights of Ownership~p— Fura in Re

1. General features of jura in ve . . . .

2. Preedial servitudes—rural and urban . .

3. Personal servitudes—usufruct, use ‘ . . ;
4. Emphyteusis and superficies . . . . . .
5. Pignus and hypotheca . 2 . . . . .

CHAPTER IV.—Acquisition of Ownership in Single Things .
1. Occupation—its principles and application
2. Accession—its character and different forms
3. Tradition—its requisites and various modes . .
4. Prescription—its origin and principles . . . .

CHAPTER V.—Acquisition of Ownership by Inheritance .

1. The nature of ‘nheritance . ‘ . é ri z
2. The position and functions of the heir . . . .
3. The character and forms of the testament . ‘ .
4. Necessary contents of the testament . . . .
5. Modes of invalidating the testament . 7 . .
6. Inheritance ad intestato . . . ao age
7. Legacies, fidei-commissa, and weds . . - .

TITLE II.—THE Law oF OBLIGATIONS,

CHAPTER I.—General Character of Obligations $ 7 .
1. Nature of obligation as a personal right 7 . .
2. The subject-matter of obligations . . . .
3. Accessory liability in obligations . . . . .
4. Classification of obligations . Cs . ‘ : .

-MAPTER II.—Obligaiions arising ex Contractu . .
1. Essential features of a contract . . . . .
2. Real contracts, or those made 7¢ . : é i .
3. Verbal contracts, or those made verbis . : . .
4. Literal contracts, or those made Jiteris . z .
5. Consensual contracts, or those made consensu i s
6. Obligations arising guast ex contractu .

279
280
282
283
285

288
288
289
292
294
207

302
303,
304
307
399

313
313
315
318
322
326
329
334

341
342
344
348
350

352
352
355
358
390
361
371
CONTENTS. Xili

7. Dissolution of contract-obligations a : «+ 372
CuapPTerR III.—Odkigations arising ex delicto . $ : » 374
I. Delict as a ground of obligation . . . F + 374
2, General features of a delict . i 2 iz ‘ - 376

3. Different kinds of delicts . 3 s 7 « 377
4. Obligations arising guasi ex delicto ‘ . . - 383

BOOK III.

THE LAW OF ACTIONS—JUS ACTIONUM.

CHAPTER I.— The Character of Civil Remedies é z - 387
I. The Roman judicature : : - : ‘ . 388
2. Various classes of actions . . . «.  . - 391
3. Exceptions and replications . . . . : - 396
4. Interdicts and their different forms Nk 2 é » 398
5. Restitution and its various grounds. ; .7 «400
6. The private protection of rights . ‘ A . 402
CHAPTER II.— The Elements of Civil Procedure. ‘ . 404
1. Beginning of a civil action . a 7 : 5 « 406
2. Joining of issue—pleadings . 5 5 - i + 408
3. Trial and the principles of evidence. ; » To
4. Judgment and appeal . : ‘ . . . - 412
5. Execution of judgment F 5 ‘i . $ - 413
APPENDIX 5 : . : : . . . ° - 417

INDEX . ; ‘ # « a . e * . « 425
PART FIRST.

THE HISTORICAL GROWTH OF THE
ROMAN LAW.

PERIOD I.

¥ROM THE EARLIEST TIMES TO THE CODIFICATION
OF THE TWELVE TABLES.
OUTLINES OF ROMAN LAW.

CHAPTER I.
THE ORGANIZATION OF EARLY ROMAN SOCIETY.

In explaining the origin of law, a wide difference of
opinion has hitherto separated the purely analytical from
the historical school of jurists. The former class of
writers have attempted to explain its origin upon princi-
ples derived from the study of an advanced and highly
complex state of society. Reasoning from facts observed
in such a social condition, it is held by these writers tnat
all law derives its origin from the definite sanction of a
well-organized state authority. The historical jurists, on
the other hand, observe that the state itself is the resuit
of a slow and gradual process of growth. In the actual
evolution of human society they discover no sharply
defined limit, separating the early community-life—which
can hardly be said to have any political character at all—
from the fully developed state, furnished with all the
means of compulsory power. They also see that early
customs, which have scarcely any other authority than
that derived from public opinion, pass into well-defined,
positive laws only by slight and almost imperceptible
gradations.

As a matter of fact, the law and the state grow up side
by side; and in the early stages of society the character
of the one is no more definitely fixed than that of the
other. A certain sense of duty, embodied in common

3
4 OUTLINES OF ROMAN LAW. .

usages and enforced by general opinion, acts as a rule of
civil conduct even before the community has acquired a
distinct political consciousness. It is these customs
which furnish the content of the early law, which deter-
mine the form of early legal processes, and which, in
fact, afford a justification for the sanctions which are
afterward imposed by a constituted state authority. The
germs of law must, therefore, be found in the early life of
a people, especially in its common customs and institu-
tions, which tend to give a uniform direction to thought
and conduct.

From the intimate relation which exists between legal
facts and social progress, it is evident that any thing like
unity in the law must depend upon the extent to which
society itself has become unified and organized. Hence,
the historical sources of the Roman law must be sought
not only in the beliefs and customs of the early Roman
people, but also in those institutions which tended to
give an organic unity to the early Roman state.

The essential features of the early society at Rome
were common to all the ancient communities of Italy ;
and were, no doubt, derived from the primitive customs
of the Aryan race. With the growth of Aryan institu-
tions in Italy, as elsewhere, the early form of social life,
founded upon a patriarchal and religious basis, acquired
more and more a civil and political character. The
patriarchal family, the ges, the curia, the tribe, the city,
the state, marked the successive steps in the enlargement
and organization-of society. As a result of this federa-
tive process of growth, in which each new association
was rendered sacred and permanent by the worship of
common deities, we find the early community at Rome
made up of a collection of social groups organized upon
principles which were essentially religious in their char-
ORGANIZATION OF ROMAN SOCIETY. 5

acter. The performance of certain common rites, called
sacra, formed the bond of union in these several groups,
and upon their maintenance depended the preservation of
the whole social body. Religion and the priestly power
which necessarily attended it were the constituent prin-
ciples of the early Roman state. Bearing these facts in
mind, we may be able to understand the organic features
that characterized Roman society during the early period
which we are now considering.

1. The Early Roman Family.—The elementary
unit of Roman society was the family. But this associa-
tion was far different from the modern family. The
special features by which it was marked and the regula-
tions adopted for its continuance grew out of the condi-
tions incident to the observance and perpetuation of a
domestic worship. This may be illustrated by the char-
acter of the paternal power, the nature of the member-
ship, and the principle of succession within the family.

(1) The power of the household father was derived
not simply from his lineal superiority, but from the im-
portance which attached to his priestly character. He
was the oldest living male ascendant, and had derived
from his predecessor the supervision of the ancestral wor-
ship. His authority was clothed with all the sacredness
of religion, and he was amenable to no one but the gods
for the character of his domestic government. This ir-
responsible power of the father extended over all the per-
sons and property within the sphere of the patriarchal
family.

(z) The membership of the early Roman family was
determined, fundamentally, not so much by blood-relation-
ship as by participation in common religious rites. Some
who were related by blood—as a married daughter—were
excluded from the family. Some who were extraneous
6 OUTLINES OF ROMAN LAW.

by birth—as the wife of the father, and of the son—were
admitted within its sacred circle. By marriage, a woman
was, in fact, completely transferred from the religion of
her father to that of her husband, so that both she and
her children became identified with the family of her
husband. The father’s priestly power could not therefore
extend over the offspring of his daughters, who had
passed into another worship. It could extend only over
the offspring of his sons, who remained within his own
domestic religion. On this account, those descendants
only who were related through a male line—that is, ag-
natti—were members of a given household. Moreover, to
prevent the extinction of the domestic worship, a stran-
ger might be initiated into the rites of family, and being
thus “ adopted ” he was as truly a member of the family
as though he were of the same blood. The family, in
short, comprised those persons, and only those, who were
admitted to the same domestic altar, and who were con-
sequently subject to the same paternal power.

(3) The principle of succession also was dependent
upon the essential nature of the family considered as a
kind of religious corporation. The extinction of the do-
mestic worship was regarded as the greatest of evils , and
hence its preservation was not made to depend upon the
life of the father. At his death the sons immediately
under power were obliged to succeed him in the super-
vision of the sacra ; and with the priestly office was trans-
mitted all the responsibility and authority which it
involved—that is, the care of the dependent members of
the household, and the administration of the patrimonium.
Succession was not so much a legal right as a religious
duty. The paternal power and the administration of the
family estate thus followed the same principle of descent
as that which governed the perpetuation of the sacra.
ORGANIZATION OF ROMAN SOCIETY. 7

2. The Roman Gens.—The union of families thus
constituted formed the next higher group—the gezs. But
this union was not an artificial association. It was rathera
natural outgrowth of principles already existing in the
family. While the death of the father would tend to
separate the domestic group into new families, each sub-
ject to its own paternal head, the preservation of a com-
mon worship and of a common name would furnish a
ground of perpetual union. The family relationship
would thus widen with successive generations into the
gentile relationship. The special features of the gems
may be indicated as follows :

(1) The participation of the genééles in common sacred
rites (sacra gentilitia)—which were required to be cele-
brated at a given time and place.

(2) The preservation of a common name—which seems
to have been transmitted with nearly the same care as
the worship.

(3) The theory of a common descent—which was,
however, in great part, a fiction, since the membership of
the gens, like that of the family, was restricted to descent
through a male line, and was similarly affected by mar-
riage and adoption.

(4) The obligation of the members to render mutual
assistance—which extended to repelling a common enemy,
to ransoming a captive in war, to aiding indigent mem-
bers, and to paying the fines of persons condemned.

(5) The possession of common proprietary rights—
which related not only to the altar and burying-place,
but also to certain lands, and to the estate of a deceased
member in default of more immediate heirs,

(6) A kind of civil organization—which consisted of a
chief, who, like the father of the household, assumed re-
ligious and judicial functions, and represented the group
8 OUTLINES OF ROMAN LAW.

in its external relations ; and a council made up of the
chief men of the gevs; and, perhaps, a more general
assembly composed of all the members capable of bearing
arms. ‘

3. The Roman Populus.—As we pass to consider
the character of the early body politic, we must keep in
mind the fact that the ancient Populus Romanus was em-
phatically a collection of gentes. The state did not, of
course, spring into being by a direct union of these
groups. It was rather the result of a slow federative
process, which passed through several stages of develop-
ment. For example, a number of genes united to forma
curia ; a number of curig coalesced to form a tribe ; and
three tribes composed the early Roman community.
Each one of these intermediate groups had, doubtless, at
some time, formed an independent corporate body, united
by a common worship and a common civil organization,
with its own chief, its own council, and its own general
assembly. It was from this gradual coalescence of gentes
that the early Roman fopulus derived its unity ; and it
was from the institutions which were evolved during the
federative steps of this union that the early Roman state
derived the peculiar features of its religion, government,
and law. Besides the state religion, with its common gods,
its common priesthood, and its common ceremonial, the
organic unity of the people was expressed in three impor-
tant institutions, derived, it is true, from earlier customs,
but now acquiring a more fixed and definite form. These
were the Mex, the Sexatus, and the Comitia Curiata.

(1) The Roman kingship, like the other features of the
early constitution, was derived from the more primitive
societies which had united to form the fopulus. Each
tribe, curta, and gens, had been presided over by its own
head-man, whose authority was modelled after that of
ORGANIZATION OF ROMAN SOCIETY. 9

the household father. The Roman rex, therefore, repre-
senting remotely the father of the family, exercised a sort
of patriarchal power over the nation at large. He was at
once the high-priest of the national religion, the supreme
judge in all private and criminal matters, the commander-
in-chief in time of war, and the source of all magisterial
power, the inferior officers being subject to his appoint-
ment and removal,

(2) Associated with the king was the senate, which
evidently grew out of the council of elders existing in
the earlier tribes. The number of its members corre-
sponded theoretically with the number of genes. In its
functions it was at first merely an advisory body, assisting
the king in his administrative duties, and perhaps draw-
ing up proposals to be submitted to the people.

(3) With the growth of the early Roman state, not
only did the tribal chieftain grow into the rex, and the
tribal council into the sezatus ; but, still further, the tribal
assemblies coalesced to form the Comitia Curiata. Like
its prototype, this assembly was composed of all the
people capable of bearing arms. In a certain sense it
was the source of sovereign power, since it confirmed the
appointment of the king by a formal act (dex curiata de
tmperio) ; and it was called upon to ratify all measures of
unusual importance, The highest authority of the early
Roman state thus rested with the gezées, organized into
curt@ and incorporated into the Comitia Curiata.

4. The Plebeian Element.—The earliest organiza-
tion of the state included, as is evident, only those per-
sons who were members of the subordinate groups of
which the original popudus was composed. Only the
members of the ancient patrician genzes could claim the
privileges of the citizen. But from various causes, such
as conquest and immigration, there grew up by the side
10 OUTLINES OF ROMAN LAW.

of the original community an alien population, which
was excluded from the worship and the protection of the
state, With the growth of this non-citizen class the pa-
tricians came to assume more and more the character of
an aristocratic body. The antagonism thus established be-
tween the two orders was the occasion of a series of efforts
to incorporate the plebeians into the patrician state. With
every fresh encroachment of the plebeian body the spirit
of the ancient society became somewhat modified, and
supplementary institutions were established which gave a
new form to the political society. The most important of
these new institutions were the genfes minores, the cen-
turies, and the local tribes.

(1) The plebeians at first gained a partial admission
into the state, not by the formation of new tribes pat-
terned after the patrician tribes—the original plan as-
cribed by tradition to Tarquinius Priscus—but by the in-
sertion of new gentes into the tribes already existing.
Each tribe thus contained a patrician and a plebeian ele-
ment. The plebeian gentes, which probably included
only the more important families, were called gentes mi-
nores to distinguish them from the patrician gentes, which
were now called the genées majores.

(2) A more radical revolution was that which is
attributed to Servius Tullius. The whole population,
including both orders, was reorganized upon a military
basis and divided into five classes, or “centuries,” which
were arranged according to the equipments worn in
military service. Since the capacity of a citizen to fur-
nish himself with heavy or light armor depended upon
the possession of a greater or less amount of wealth, the
newly organized state acquired somewhat the character
of a “timocracy.” The bestowment of the suffrage upon
the body of the people thus constituted created a new
assembly, called the Comitia Centuriata.
ORGANIZATION OF ROMAN SOCIETY. Il

(3) The incorporation of the plebeians was still further
aided by the development of an internal organization
peculiar to themselves. The principle of this new organi-
zation was founded upon territory. There were formed
thirty districts, corresponding to the number of the patri-
cian curie. The “local tribes,” as these districts are
called, possessed to a certain extent the right of local
government. They held their own meetings, levied their
own taxes, and appointed their own officers. In the
process of time—probably not until after the establish-
ment of the Republic—they all met together in one
assembly called the Comitia Tributa, where they passed
general laws under the name of /lebiscita.

5. The Consular or Republican Government. —
The paternal power of the king, which was necessarily
extended by the previous reforming legislation, acquired
a despotic character in the hands of the second Tarquin,
leading to a revolution which resulted in the fall of the

_kingdom and the establishment of the Republic. The
chief features of this revolution grew out of the efforts to
restrain the royal power by distributing its various func-
tions among several officers, whose term was limited to a
fixed period of time. By this means were established the
Consulate, the Dictatorship, and the Plebeian Tribunate.

(1) By the Valerian laws (B.C. 508) the royal power
was put into commission—that is, entrusted to two offi-
cers called Consuls (at first “ pretors ”), whose term was
restricted to a single year. In connection with the Con-
suls there was also appointed the vex sacrorum, who
exercised the priestly functions hitherto belonging to the
king. The royal power was still further specialized by
the creation of two Questors to be appointed by the
people for the purpose of administering the finances.

(2) The power of the royal zmperium, thus restricted
12 OUTLINES OF ROMAN LAW.

by the creation of two “annual kings,” was temporarily
restored to something like its ancient vigor by the ap-
pointment, in certain grave emergencies, of a Dictator,
who held supreme power for a period of six months. In
this way the magisterial power could be centralized and
rendered more efficient to meet an impending danger.

(3) The Consulate was practically a patrician office,
and was used, generally speaking, for advancing the in-
terests of the patrician body. The continued and ag-
gressive demands of the plebeians for a greater degree of
protection finally led to the creation of the Plebeian Tri-
bunate. The person of the Tribune was rendered invio-
lable, and his chief duty was, by his veto, to protect the
interests of the oppressed class.

Such were the main features which marked the pro-
gressive organization of Roman society previous to the
codification of the Twelve Tables. From the early gen-
tile communities, which had been brought into Italy with
the Aryan migration, there had grown up a compara-~
tively well-defined political society, in which the func-
tions of government were distributed between three pop-
ular assemblies and a body of religious and civil magis-
trates. The authority of the early state was exercised
primarily in repelling common dangers and in determin-
ing the relation of the subordinate groups to each other
and to the entire community. The father, it is true, was
still the head of the household. The ges also preserved
a certain degree of autonomy. And the other groups—
the cuvia and the tribe—dic. not lose entirely their iden-
tity. But all these communities were yet brought into a
closer union by the recognition of a common authority
and the growth of common political institutions,

References.—A general review of the social and political organ-
ization of early Roman society may be found in: Arnold, ‘* Histo ry
ORGANIZATION OF ROMAN SOCIETY. 13

of Rome,” chs. 1-13; Mommsen, ‘‘ Roman History,” vol. 1; Orto-
lan, ‘‘ Hist. of the Roman Law,” Eng. trans., sects. I-24 ; Walter,
‘*Geschichte des Rémischen Rechts,” I., §§ 1-48; Deurer, ‘‘ Ges-
chichte und Institutionen des Rém. Rechts,” §§ 28-53. ‘The rela-
tion of early Roman society to the family and gens is discussed in:
Maine, ‘‘ Ancient Law,” ch. 5 ; Coulanges, ‘‘ The Ancient City,”
Eng. trans. by Small; Freeman (E. A.), ‘‘ Comparative Politics,”
lecture 3; Hearn, ‘‘ The Aryan Household”; Morgan, ‘‘ Ancient
Society,” Part II., chs, 11-13; Lange, ‘‘ Rémische Alterthiimer,”
L, §§ 29-54. The progress of criticism as applied to early Roman
History is marked chiefly by the following works: Perizonius, ‘‘ An-
imadversiones Historice,” Amsterdam, 1685 ; Beaufort, ‘‘ Disserta-
‘tion on the Uncertainty of the First Five Periods of Roman History,”
in “‘ Transactions of the Académie des Belles-Lettres,”” Utrecht, 1738 ;
also ‘‘La République Romaine,” Hague, 1766 ; Niebuhr, ‘‘ Rémische
Geschichte,” first volume, 1811, completed Berlin 1826-32; Newman
(F. A.), ‘‘ Regal Rome,” Lond., 1852 ; Schwegler, ‘‘ Rémische Ge-
schichte,” Tiibingen, 1853-58 ; Lewis (Sir George Cornewall), ‘‘ On
the Credibility of Early Roman History,” Lond., 1855 ; Mommsen,
‘‘Roémische Geschichte,” Berlin, 1861; Dyer, ‘‘ History of the
Kings of Rome,” Lond., 1868; Ibne, ‘‘ Rémische Geschichte,”
Leipzig, 1868—76.
CHAPTER II.
THE BEGINNINGS OF THE ANCIENT JUS CIVILE.

Ture is nothing more clearly established by historical
investigation than the fact that the growth of the state
and the growth of law sustain to each other the closest
relation. As long as there exists no common political
authority, the conduct of individuals is restrained simply
by private force or by a code of conventional morality.
Private redress is the only remedy in case of injury; and
the only standard by which social relations are fixed is
customary law or, more properly, conventional usage.
But as the social groups, hitherto distinct, come to be
united under some common organization, the customary
relations of society come to be more uniform, and also
more definitely protected by penal sanctions. The law
thus assumes a fositive character when the rules of custom
become embodied in the organic will of the community,
and rendered compulsory by the growth of some recog-
nized authority. At first this authority is very limited ;
but it gradually increases in extent and efficiency as the
organic unity of the state becomes more fully developed.
The following considerations may indicate, generally, th®
character and extent of the authority which the early state
exercised to control the conduct and adjust the relations
of its citizens, and thus to bring into existence a body of
legal rules.

1. Character of the Earliest Sanctions.—From
the mode in which the Roman state had its origin, it is
evident that its authority was founded primarily upon

14
BEGINNINGS OF THE ANCIENT JUS CIVILE. 15

religion. Every step which had led to the wider organi-
zation of society was accompanied by the enlargement of
religious ideas; and the civil power which had arisen
with the growth of society was believed to be exercised
under the approbation of the gods. -A crime against the
state was regarded as an offence against its guardian
deities. The culprit was exposed to an anathema (sacer
esto), by which he became an outlaw, and no longer enti-
tled to the protection of the national gods. He could be
slain by any one with impunity. Outlawry thus seems to
have been one of the earliest forms of punishment. But
as the state became more conscious of its own power, it
assumed itself the execution of the criminal, who was
either hanged from the arbor infelix or thrown from the
Tarpeian rock. This kind of jurisdiction, which was
founded upon religion, and was directed toward what we
call criminal offences, was chiefly exercised to preserve the
sanctity of the national worship, to protect the authority
of the magistrates, and to shield the lives of the citizens.

2. The Rise of Civil Jurisdiction.—The idea of
administering justice in civil matters did not enter dis-
tinctly into the early conception of state power. That
the public magistrate might forcibly interfere to decide
private disputes was an idea of prerogative that grew up
only as the members of the various social groups came
more and more to be regarded as integral and responsible
members of a single political body. We will point out
the probable steps which led to state interference in civil
matters, and afterward verify the view presented by refer-
ence to certain customs which survived in the early form
of legal procedure at Rome.

(1) The first step in the direction of controlling private
disputes and of restraining private revenge grew out of
the custom of appealing to an arbitrator, to whom was
16 OUTLINES OF ROMAN LAW.

left the question whether an injury existed, and whether,
as a consequence, the customary mode of redress was
permissible. In the earliest times this arbitration was
entirely a private and voluntary act; and the decision
might or might not be respected. The person, however,
in whose favor the decision was made, would feel justi-
fied in pursuing the method of private redress that custom
had hitherto approved ; and the unsuccessful party would
generally feel bound by honor or public opinion to sub-
mit to the customary remedy.

(2) An advance upon purely private arbitration is made
when the contesting parties appeal to a priest, or public
magistrate. This is also at first an entirely voluntary act.
The public authority does not compel the process, but
simply takes charge of it. With the consent of the parties,
the magistrate may either decide the dispute himself, or
appoint a private person as arbitrator, whose decision thus
receives a kind of public approval.

(3) The state assumes a part that has more properly
the character of jurisdiction when it gives the plaintiff
the power of compelling the defendant to appear before
the magistrate. The summons is still to a great extent a
private act, performed by the plaintiff himself, though
sanctioned by the public authority. The magistrate
simply hears the altercation between the parties, fixes
upon the points at issue, and appoints a private person as
arbitrator, to decide who is in the right. Arbitration is
thus made compulsory. But still the execution remains
in the hands of the successful plaintiff, who is allowed to
pursue the private redress according to custom.

(4) The further interference of the state is shown by
the efforts made to regulate private remedies. The in-
jured party was entitled to satisfaction. The state could
at first do no more than restrain somewhat the feeling of
BEGINNINGS OF THE ANCIENT JUS CIVILE. 17

vengeance, and compel the defendant to give an accepta-
ble compensation for the wrong committed. The in-
stinct of resentment had for a long time to be respected
by the law, as is seen in the principle of “ retaliation,”
whereby the injured person could legally demand “an
eye for an eye, and a tooth for a tooth.” The limited
character of early civil jurisdiction is evident from the
fact that the execution of judgment was a private process.
While the magistrate might fix the character and extent
of the remedy, the injured party was allowed to obtain
by force the compensation adjudged, and in extreme
cases to incarcerate the delinquent debtor, or even to put
him to death.

3. The Earliest Civil Procedure.—The statement
that civil jurisdiction had its origin in arbitration is veri-
fied by the earliest form of civil procedure with which
we are acquainted. The most ancient mode of proceed-
ing among the Romans was the actio sacramentt, which, as
Maine says, was “ the undoubted parent of all the Roman
actions, and consequently of most of the civil remedies
now in use inthe world” (“ Early Hist. of Inst.,” p. 252).
A detailed account of this early procedure is preserved in
the “Institutes ” of Gaius (iv., 10-17). In the symbolic
form there described is presented to us a survival of the
mode in which the early state interfered for the settle-
ment of private disputes. The action represents a mock
combat followed by a reference of the case to arbitration.
The steps of this process may be indicated as follows :

(1) The proceeding opened with a mimic combat over
the property in dispute. This feigned quarrel Gaius thus
describes : “ The claimant held a wand and, grasping the
slave or thing over which he claimed dominion, said :
‘This man I claim as owner, by the law of the Quirites,
according to the reason that I have stated; thus upon
18 OUTLINES OF ROMAN LAW.

him I lay my lance,’ at the same time he touched the
slave with the wand. ‘The adversary then said the same
words and performed the same, act.” The wand, ac-
cording to Gaius, “represented a lance, the symbol of
dominion, for the best title to property was held to be con-
quest.” This judicial combat was called manuum conser-
tio, or the “ hand-grapple,” and symbolized a conflict be-
tween the parties for the possession of disputed property.

(2) The feigned quarrel was followed by the inter-
ference of the magistrate, who called out to both dis-
putants to let go their hold (stt#te ambo). The state
was thus represented as interposing its authority for the
peaceful settlement of the point at issue...

(3) An altercation then ensued between the parties as
to their respective titles, and each challenged the other to
stake a sum of money upon the truth of his assertion.
This stake was called sacramentum, from which the action
took its name. This has often been explained as a judi-
cial wager, and Maine regards it as an evidence that “the
tendency to bet upon results lies extremely deep in human
nature.” But whether or not it had its origin in a bet,
the sum forfeited did not go to the successful party, but
to the public worship (ad sacra publica). The sacra-
mentum seems to have been a certain sum solemnly con-
secrated to sacred purposes, both as an assurance of good
faith and as a compensation for the public service per-
formed. The entire proceeding before the magistrate
was called zn jure.

(4) The final step in the process was the reference of
the disputed question to a private person, called the judex,
or arbiter. The property in dispute was assigned to the
temporary possession of one party, who gave surety to
the other for its restoration in the event of his losing the
suit. The judex simply decided as to which of the liti-
BEGINNINGS OF THE ANCIENT JUS CIVILE. 19

gants was right in his claim. The part performed before
the judex was called proceeding i judiczo.

The execution of the judgment formed no part of the
actio sacramenti, Neither the magistrate nor the judex
enforced the claims of the plaintiff. The unsuccessful
defendant, if he failed to satisfy the claims of the plaintiff,
was liable to private arrest by his adversary and to be
cast into chains. The state authorized the arrest, on the
one hand, by refusing to treat such an exercise of force
as an assault, and, on the other hand, by treating resist-
ance to it as a crime. The original form of civil pro-
cedure was thus a method adopted by the early state to
encourage arbitration between contestants, and to author-
ize an injured party to enforce the claims adjudged to be
his due. The symbolic and sacred form of the acto
sacramenti not only formed the basis of all other actions ;
it also furnished the ground of nearly all other legal pro-
cesses.

4. The Growth of Legal Conveyance.—Next
in historical importance to the civil action, by which
disputed rights are settled, is the form of legal convey-
ance, by which rights are transferred. The peculiar
features which in early times marked the latter process
lead us to suppose that conveyance as a legal form was
based upon procedure. At least this seems to have been
the case at Rome. Before the forms of the “action”
were attached to the transference of a thing, such trans-
ference, however much it might be respected as an affair
of honor, possessed no legal validity. If the ownership
in a thing thus informally transferred was disputed, the
question could be settled only by going through the
forms of the judicial contest before the magistrate. On
the other hand, the property which had already been
made the subject of litigation would possess a certain
20 OUTLINES OF ROMAN LAW.

legal title not attached to that which had merely passed in
an informal way from one person to another. The suc-
cessful party in such an action would have his right sanc-
tioned by a public authority. A legal significance might
therefore be given to conveyance, if there could be at-
tached to it, in some way or other, the sacred forms of
the action. In this way the transference of property
could. be made under the sanction of the state.

(1) The first, and when considered with reference to
its origin the simiplest, method of clothing the fact of
conveyance with the forms of law was by means of a
fictitious suit. Instead of deferring the judicial process
until a dispute had actually arisen, the forms of the legal
action were gone through at the time the property was
transferred. The purchaser came before the public magis-
trate, and placing his wand upon the property, as in the
actio sacramenti, claimed it as his own according to the
law of the Quirites. The seller making no counter claim,
the thing was adjudged to the claimant. This process,
which corresponded to the proceeding zz jure of the
action, was called zz jure cessio. It gave a legal sanction
to the transference of property, and confirmed upon the
purchaser the same formal right as though the property
had been adjudged to him in an actual litigation.

(2) A modification of this procedure was effected by
performing the “hand-grapple” in the presence of wit-
nesses, instead of before the magistrate. This process is
said to have been introduced to relieve the parties from
the inconvenience of going before the public officer. Its
general character and its relation to the forms of civil pro-
cedure are evident from the necessary conditions which
attended it. Its most significant feature was the sym-
bolical “‘ hand-seizure,” including the formal claim of the
purchaser that the property was his according to the law
BEGINNINGS Of THE ANCIENT JUS CIVILE. 2i

of the Quirites—which form was evidently derived from
the older procedure. It was from this feature, as Gaius
says, that the process was called mancipatio (I., § 121).
The state was now represented, not by the magistrate,
but by five male Roman citizens. The number, corre-
sponding to the five Servian centuries, would seem to show
that this change in the form of conveyance was made in
connection with, or after, the Servian revolution. Again,
instead of the judex who in the ancient procedure weighed
the claims of the two parties, a neutral person (/ébripens)
was present at the “ mancipation,” holding in his hand the
symbolical balance. The conveyance was completed
when the buyer struck the balance with a piece of bronze,
which he transferred to the seller as a sign of the pur-
chase-money. On accounr of the use of the bronze and
the balance, this form of alienation was also called per es
et Libram.

The mancipatio, or conveyance per es et Libram, which
was based indirectly upon the forms of procedure, came
to be the most important means for the transference of
legal rights, and for fixing the legal relations between
different persons, We shall hereafter see that it was not
only the form by which property was conveyed, but the
form by which nearly all transactions were legalized,
by which a marriage was effected, a son adopted or eman-
cipated, a mortgage, a contract, and a testament made.

5. The Nature of Early Quiritarian Rights.—The
idea of a legal right—that is, a certain degree of liberty
sanctioned by law—grew up with the legal processes just
described. The exercise of exclusive dominion over any
person or thing would come to have a legal character
only when such a privilege was made defensible in a legal
action, or was treated as a proper subject for legal con-
veyance. Certain privileges might, indeed, be recog-
22 OUTLINES OF ROMAN LAW.

nized through customary observance; but they would
obtain a new significance when they had once become
sanctioned through the forms of law. As the state—di-
rectly through a legal action and indirectly by legaliz-
ing conveyance—gradually interfered to adjust and pro-
tect the private relations of its citizens, the kind of
protection which it thus afforded indicates the extent of
legal rights possessed by the different members of society.

An analysis of the legal rights which were capable of
being protected by a legal action and of being transferred
by legal conveyance, shows that they were at first
exceedingly simple in their nature. An action could be
brought and a conveyance could be made only by an
independent Roman citizen—that is, the father of a
household. The rights which were sanctioned by a legal
process were hence attached to the person of the paéer-
familias. From his domestic status he obtained a legal
dominion over all that belonged to his household—wife,
children, slaves, cattle, land. This general authority, or
right of dominion, whatever might be its object, went
under the general name of manus—or hand-power—
which term entered largely into the legal phraseology of
the time. It was this generic right that formed the basis
of the more specific civil rights peculiar to early Roman
citizenship.

The mode in which the specific rights emerged from
the general right of dominion cannot be traced with any
degree of exactness. But the tendency to specialization
is very evident from the subdivisions of the father’s
power, and from the common features which attached to
the several rights after they were differentiated from each
other. They all partook of the character of dominion
or ownership; and we also find “ legal conveyance forming
a large part of those acts in law by which that peculiar
BEGINNINGS OF THE ANCIENT JUS CIVILE. 23

relation was transferred, modified, or extinguished.”
(Clark, “ Early Roman Law,” p. 125.)

(1) In the first place, the father exercised a proprietary

control over the wife. To this power the term manus
“game to be restricted. Although the earliest form of
marriage was a symbolic capture followed by a sacred
tite (confarreatio), after the introduction of “ mancipa-
tion,” marriage was effected also by a purchase (coemptio),
the woman being conveyed from her father to her hus-
band according to the form ger @s et Libram.

(2) Another branch of the father’s general right of
dominion was his legal power over his children ( patria
potestas). The children of the household legally belonged
to the father. He could treat them as he saw fit. His
authority over them was unlimited. The process of man-
cipation could, moreover, be used to transfer the child
from the power of his own father to that of another
Roman citizen.

(3) The power of the master over the slave (dominica
potestas) was also but a special form of the father’s
dominion. This power, too, was absolute, simply because
no one had a legal right to interfere with it. The slave
—like the wife and the child—was to all intents a chattel ;
and ownership in him was also transferred by mancipa-
tion.

(4) A Roman citizen, otherwise free, might be held in
temporary bondage or apprenticeship, to a pater familias.
This form of subjection was called mancipium from the
fact that the power over the bondsman was acquired by
mancipation. Although of a more temporary nature than
the powers previously mentioned, it was, while it con-
tinued, but a special form of the father’s dominion.

(5) The right of ownership, in a more restricted sense,
applied to the exclusive control over those things which
34 OUTLINES OF ROMAN LAW.

we are accustomed to designate as property, such as
houses, land, and cattle. This was called by the Romans
dominium. At differed, at first, in no essential respect
from the other forms of dominion. It was protected in
the same way by a legal action, and was in the same way
transferred by a conveyance fer @s et Libram.

This brief analysis goes to show that the special rights
recognized by the jus Quiritium were an outgrowth of
the general idea of dominion involved in the hand-power
(manus) ; just as the legal processes of ‘“‘action” and
“conveyance” were a development from the original
symbolical form of the hand-contest (*anuum consertio).

References.—There are as yet few works that treat in a satisfac-
tory way of the beginnings of the Roman law, showing the nexus
between the ancient Aryan customs in Italy and the laws of the XII.
Tables. It is only by inferences drawn from the latter law and by
the use of the comparative method that this connection can be es-
tablished. A clearer light will doubtless be thrown upon this sub-
ject by further investigations in comparative jurisprudence. A few
works are here mentioned which may give the student some aid in
this direction: Hearn, ‘‘The Aryan Household,” chs. 17-19;
Maine, ‘‘Early Hist, of Institutions,” chs. 9 and 10, and frequent
discussions in the ‘‘Ancient Law”; Coulanges, ‘‘ The Ancient City,”
Bk. II.; Mommsen, ‘“‘ Hist. of Rome,” Bk. I., ch. 11; Clark (E.
C.), “Early Roman Law—Regal Period”; Phillimore, ‘‘Intr. to
the Study and History of Roman Law,” pp. 17-32; Hunter’s
““Roman Law,” §§ 811-818 ; Zimmern, “ Gesch. des Rom. Privat-
rechts,’” $$ 26-28, and ‘‘Der Rom. Civilprocess,” §§ 38-48;
Puntschart, ‘‘Die Entwickelung des grundgesetzlichen Civilrechts der
Rémer,” Erlangen, 1872. Suggestive comparisons are drawn be-
(ween the early Roman Law and the Anglo-Saxon law in the valuable
work entitled ‘‘ Essays in Anglo-Saxon Law,” Boston, 1876. In the
early chapters of Lightwood’s ‘‘ Nature of Positive Law,” the
English ce will become acquainted with the opinions held by
Jhering in his ‘‘ Geist des Rémischen Rechts.”
CHAPTER III.
THE CHARACTER OF THE TWELVE TABLES,

THE ancient jus civile received a definite form in the
XII. Tables, which the Romans were accustomed to re-
gard as the foundation of their entire system of juris-
prudence. Our knowledge of the law previous to the
formation of this code is, in great part, a matter of specu-
lation, based upon comparative investigation and infer-
ences drawn from certain legal forms which are evidently
“survivals” from an early period. It is true that frag-
ments of a collection, called the jus Papirianum, and as-
cribed to the period of the kings, have reached us, But these
fragments, though clearly showing the religious spirit of the
early law, are yet meagre and unsatisfactory. The more
important fragments which we possess of the XII. Tables
afford us a means of definite knowledge regarding the
general character of the early Roman law. A review of
this code—so far as it can be restored from the fragments
preserved and the references made to it by classical
authors—will indicate the degree of development which
the law had attained in the fifth century B.C. It will
also tend to verify the opinions which we have expressed
with reference to the origin of the law itself.

The XII. Tables must be regarded as a compilation of
the customary law of Rome, hitherto preserved and ad-
ministered by the aristocratic or patrician class. The
story that the Decemvirate imported these laws from
Greece must be rejected, not only as being opposed to
the natural principles of legal growth, but also on ac-

25
26 OUTLINES OF ROMAN LAW.

count of the absence of any positive internal evidence
of their Greek origin. The direct occasion of this com-
pilation was the struggle between the patricians and ple-
beians. The existing law, being unwritten, afforded no
invariable standard to which both classes could appeal ;
and, being administered by the patrician class, it could
be used as a means of oppression. The plebeians, there-
fore, demanded the publication of the law and the
“equalizing of liberty.” The laws were, consequently,
reduced to a codified form by the decemvirs, approved
by the Senate, and afterward ratified by the Comitia
Centuriata,

In reviewing this code, we can notice briefly only its
more prominent features, especially those which illustrate
most clearly its general character, and which suggest
its relation to the earlier customs from which its rules
were evidently derived.

I. The Law of Procedure.—Cicero tells us that
the first table contained the zz jus vocatio, or the summons
before the magistrate ; and the critical restorations of the
text invariably place the main rules of procedure in the
first three tables. The prominent place thus assigned to
procedure shows the importance which litigation holds in
the early stages of legal growth. Rights become legalized
not so much through the direct process of legislation as
through the indirect process of adjudication. In consider-
ing the procedure of the XII. Tables, we perceive the
unmistakable signs of its origin. It evidently grew out
of the effort on the part of the early state to compel
patties in dispute to submit to arbitration, and also to
regulate the method used by an injured party to obtain
redress. This is seen alike in the summons, the interme-
diate process or trial, and the mode of execution.

(1) The first table begins with the words: “If you
CHARACTER OF THE TWELVE TABLES. 27

summon a man to court, he must go; if he refuse, call a
witness and arrest him ; if he attempt evasion or flight,
lay hands upon him.” The law thus authorized the
plaintiff to use sufficient force to drag the defendant be-
fore the magistrate. This process shows the limited ex-
tent to which the state interfered in the preliminary steps
of the suit. The summons was a private act, though
sanctioned by law. Being exercised under the approval
of the state, it was, however, a step in advance of the
earlier and more barbarous practice of private redress ;
since the exercise of private force was now authorized
only to the extent necessary to compel the defendant to
appear before the magistrate.

(2) That part of the process in which the claims of
the litigants were heard and settled was divided into jus
and judicium—the former being conducted before the
magistrate, and the latter before a private citizen acting
as arbiter. The proceeding zz jure was exceedingly for-
mal and rigid. The actio sacramenti, already described,
shows the character of this process. It preserved, in a
technical and symbolical form, facts which had once
possessed a real significance, when the exercise of private
force was beginning to be regulated by a public authority.
It shows how the customs of a barbarous age had become
stereotyped into a regular judicial process., The lance,
which was a weapon of conquest, had become transformed
into a symbol of ownership. The heated wrangle had
cooled down into a formal method of joining an issue.
The challenge to a bet had become translated into a
mode of testing the good faith of the parties, and of se-
curing a compensation for the public service. Anger and
force had thus become tempered into the forms of law.
It is true that adherence to a technical ritual often seemed
to be of more consequence than the administration of
28 OUTLINES OF ROMAN LAW.

justice. But if we look through its symbolical husk, we
shall see that the sacramental action was in fact nothing
but a rough method of ascertaining the points at issue,
and of compelling the parties to refrain from force, until
a cool decision could be made as to who was in the right.
Furthermore, the proceeding én judicio was simply a pri-
vate investigation, conducted by the person appointed as
judex with a view to ascertain whether the claims of the
plaintiff were well founded.

(3) The process of execution, as it existed at the time
of the XII. Tables, was a method adopted to restrain
the exercise of private vengeance by regulating the mode
in which redress should be obtained. After the defend-
ant had been condemned by the judex in a certain
amount, he was allowed thirty days in which to satisfy
the judgment. If he failed at the expiration of that time
he was liable to the manus injectio. That is, he was
seized by the plaintiff and brought before the magistrate.
If he could find no surety (zéndex) his person was ad-
judged (addictus) to the plaintiff. He was thrown into
‘chains and confined in the plaintiff’s house for sixty
days, during which time the amount of his debt was pro-
claimed on three successive market days. On the third
occasion, if he obtained no surety, he might be sold into
slavery, or slain, and his body divided among his credi-
tors. In the words of the XII. Tables: ‘On the
third market day let him be cut into pieces; if any one
cut too much or too little it will not be a crime.” The
significant features of this execution are: that it is for
the most part a private process; that itis a crude method
to restrain private redress; and that it is an execution
against the person of the debtor.

The actio sacrament? and the manus injectio were both
called “actions of the law ” (degis actiones), although one
CHARACTER OF THE TWELVE TABLES. 39

was properly a form of trial, and the other a mode of ex-
ecution. Beside these there were two other “actions” ex
isting at the time of the XII. Tables, viz. + the fudiaie ponte. .
Jatio, which was a direct appeal to the magistrate, dispens-
ing probably with the sacred deposit of the sacramentum ;
and the fignoris capio—that is, a kind of “ distress,” by
which the creditor was allowed, in certain specified cases,
to seize upon the property of the debtor to satisfy a claim
without applying to the magistrate for a judgment. The
whole procedure of the XII. Tables, whether we con-
sider its general spirit or its technical forms, is seen to be
a development from a more primitive body of customs in
which private redress formed an essential feature.

2. The Law Regarding Family Relations.—
The fixing of definite modes of procedure to protect the
customs of society gave birth to certain legal, or sanc-
tioned, rights. As the elementary unit of Roman society
was the family, the most primitive civil rights were those
which arose for the security of the domestic group.
From its peculiar structure the Roman family was, as we
have seen, a kind of close corporation bound together by
a common worship andacommon ofestas. In its internal
relations it was entirely subject to the household father;
and only through him did it come into external relations
to the rest of the community. The most important civil
protection that the state afforded was thus to secure the
rights of the independent Roman citizen over all the per-
sons and things that belonged to the familia From these
efforts to uphold the customary power of the father there
sprang up various laws—some of which are preserved in
the IV. and V. Tables—with respect to the family or-
ganization and the relation of its members to the pater-
familias.

(x) The relation of husband and wife grew out of the
30 OUTLINES OF ROMAN LAW.

nature of legal marriage—which obtained its significance
from the fact that by it a woman was completely trans-
ferred from the power of her father to that of her husband.
There were three forms of legal marriage recognized by
the ancient jus civile, viz. : confarreatio, coemplio, and usus.
The first was a sacrament and derived its form from the
ancient domestic worship. It consisted of a formal in-
troduction of the wife to the religion of her husband, when
she partook with him of the cake of wheaten flour (panis
farreus) in the presence of his ancestral gods. The second
form of marriage possessed more strictly the character of
a legal conveyance. By it the wife was transferred from
the father to the husband through the forms of mancipa-
tion. The introduction of this more strictly civil form of
marriage may be considered asa part of the general move-
ment toward the secularization of the law. The third
form of marriage was founded upon the principle of
prescription as applied to movable goods. In this case
the possession of the wife for one year (uninterrupted by
an absence of three consecutive nights) gave to the hus-
band legal authority over the wife. Without these legal
forms no woman could properly be regarded as a married
wife. She might, itis true, without these forms live with
a man as a wife (fro uxore); but in that case she belonged
to the family of her father and not to that of her husband.
It was-only by fulfilling the technical conditions of civil
marriage (juste nuptie) that the new relation possessed
any legal character. Civil marriage was thus a kind of
legal title by which the husband obtained an absolute
power (manus) over the wife ; and, conversely, by which
the wife acquired a claim to the patrimonium of her hus-
band.

(2) The relation of father and child was founded in the
very nature of the Roman family. As the family was
CHARACTER OF THE TWELVE TABLES. 31

organized upon a patriarchal basis, the children included,
of course, persons who would not be comprised in the
modern family. From the various modes in which they
became attached to the household, they may be referred
to three classes : first, the children by birth, which includ-
edall agnatic descendants—that is, all persons descend-
ed from the household father through a male line;
secondly, children by marriage, or the wives of the male
descendants—that is,all females(besides the mater familias)
who had been introduced into the family by lawful wed-
lock ; thirdly, children by adoption, which included all

extraneous persons who had been received into the family
with the consent of the comztia curiata, or by mancipa-

tion. These persons were the sons and daughters of the
family( ftfamilias, filiefamilias), and were legally subject
to the patria potestas, which involved the absolute control
of the person and property of the child. According to
Dionysius, the XII. Tables gave to the father “absolute
power over his children, the right existing during their
whole life to imprison, to scourge, to keep to rustic labor
in chains, to sell them, even though they might be in the
enjoyment of high state offices” (‘‘Antiqq. Rom.,” IL,
26, 27). Cicero also says that the XII. Tables authorized
the immediate destruction of monstrous or deformed off-
spring (“ De. Legg.,” IIL, 8). It is probable that this
power was originally dissolved only by the death of the
father. But the XII. Tables provided that a son under
power might be relieved from the father’s power by three
successive sales per aes et Libram. This process was called
“‘emancipation,” and was evidently the first interference
on the part of the state to limit the life-long authority of
the Roman father.

(3) The relation of master and slave was indicated by
the terms dominus and servus, and the master’s right by
32 OUTLINES OF ROMAN LAW.

the term dominica potestas. The power of the master was
absolute, extending to the. right of life and death (jus
vite necisque). Slavery did not, however, possess the
same importance in the early Roman law that it after-
ward acquired. It was only with the great influx of
slaves resulting from the later conquests, that it became
important to determine, in an explicit manner, the status
of slaves in their relation to freemen. Hence very few
legal principles regarding slavery can be traced to the
ancient jus civile. But slavery, to a limited extent, doubt-
less existed at Rome from the earliest times. The sur-
vival of the ancient mode of manumission by the vindicta
—which was a fictitious process performed before the
magistrate according to the forms of the 7 jure cessio—
is an indication that the old Quiritarian law sanctioned
the freeing of slaves from the master’s power. Moreover
the XII. Tables expressly provide for a remedy against
the master whose slave has committed an injury (s¢ servus
Jurtum faxit noxiamve nocuit).

(4) The relation of master and bondman was some
what similar to that of master and slave. By virtue of
his fotestas, a father could transfer his son by mancipa-
tion into the power of another person. A new relation
would thus arise. Persons over whom power was thus
acquired by mancipation, were said to be held 2x mancipio.
They were not exactly in the position of children; nor
were they yet in the condition of slaves. They occupied
a kind of intermediate status between free and slave. So
far as their domestic superior was concerned, they were
practically in a servile state; but with reference to the
rest of the world, they were free. When the relation be-
tween the bondman and his superior ceased, the former
resumed the status of a free Roman citizen. His bond-
age did not reduce him to slavery. How then did he
CHARACTER OF THE TWELVE TABLES. 33

differ from the son x fotestate? Practically, in no respect,
for they were both subject to the absolute power of the
father. But legally they sustained quite different rela-
tions to the patrimonium. The son possessed in futuro
the right of succession to the father ; but the bondman,
no more than the slave, could succeed to the master’s es-
tate. The condition of domestic bondage, or mancipium,
was a peculiar institution of the ancient jus civile ; it
gradually passed away with the growth of the Roman law.
For a time after the XII. Tables, it had special refer-
ence to the intermediate status of the son between the
three sales that led to his emancipation.

3. The Law Relating to Succession.—The rules
of inheritance, as set forth in the XII. Tables, are im-
mediately connected with the laws relating to the paternal
power and the family organization. All legal rights be-
longing to the family were, as we have seen, held and ex-
ercised by the household father. The administration of
the sacra, the rights over the persons and property at-
tached to the family group, all centred in him. The
aggregate of these rights constituted the patrimontum. As
the family was thus bound together by the legal power of
the father, when the latter died the family would be
broken up and the patrimonium lost unless taken up by
the surviving members. Inheritance was thus the
mode whereby the Zofestas, with its incidental rights, was
assumed by those who succeeded to the personality of the
father. It must not be supposed that inheritance in early
times was simply a method adopted for the disposition of
the father’s property after his death. It had a deeper
significance. Founded upon the necessity of perpetuat-
ing the family worship—which lay at the basis of the
whole social organism—it came to be the succession to
the entire personality of the decedent—that is, to the patr7-
34 OUTLINES OF ROMAN LAW.

monium, with all its incidental rights and duties. More-
over, as the father’s power, or the potesfas, conditioned
the extent of the family organization, so it was the degree
of relationship, reckoned by means of the potestas, which
determined upon what persons the patrimonium should
descend. According to this principle, the three orders
of succession were sud heredes, agnati, and gentiles.

(1) The inheritance first devolved upon the sud heredes
—that is, those who were under the power of the decedent
atthe time of his death, and who became independent
(sud jurds) by virtue of his death. This class included
all children whether natural or adopted, male or female,
who had not by any means passed out from the power
of the father. In case a son had died, his share of the
patrimonium went to his children (ger stirpes).

(2) In default of sud heredes the succession devolved
upon the agnat. In the words of the XII. Tables: “If a
man die intestate and have no suus heres let the nearest
agnate have his familia.” This relationship depended
upon an antecedent fotes/as, since all persons sustained to
each other the relation of agnates who were descended
from a common ancestor through a male line. The
agnates were, in fact, those and only those who, if the
common ancestor had been alive, would be living
together under his fotestas. Male descendants who had
been emancipated and female descendants who had mar-
ried into other families—together with the children of
such persons born since the domestic separation occurred
—would consequently be excluded from the agnatic
relationship. The idea of relationship based upon the
potestas thus determined the second, as well as the first
order of succession.

(3) If there were no agnates, then the members of the
same gens succeeded to the inheritance. There is here
CHARACTER OF THE TWELVE TABLES. 35

no radical deviation from the general principle which
determined the right to the succession, As the sui
heredes bear a common relationship to their deceased
father ; as the agnati are those who bear a common
relationship to some more remote, but known, ancestor—
so the geniéles, however remote from each other, claim a
common relationship to some professed progenitor, either
real or mythical, whose name they continue to bear.
Whether introduced into the circle of the ges by birth,
by adoption, or by marriage, all the members hold a
common relation to the same eponymous ancestor, to
whose worship they are all devoted, and to whose otestas,
if he were living, they would all be subject.

(4) In case all the heirs pointed out by the customary
law were likely to fail, other means were used to prevent
the extinction of the worship and to provide for the
inheritance. This leads us to consider the origin of the
Roman will and its character at the time of the XII.
Tables. It is evident from the very nature of succession
in early times, that the formal appointment of an heir
was an encroachment upon the primitive laws of descent.
It is well established that among all early peoples, as
among the Romans, intestate succession was for a long
time the only form of inheritance. It was only when the
line of descent threatened to be cut off by the failure of
the customary heirs that measures were gradually intro-
duced to supplement the traditional law and prevent a
possible calamity. At first, the father before his death
might, with the consent of the Comifia or by mancipation,
“adopt” a person who by becoming a member of his
family would become his legal heir. Adoption was thus
a legal method to prevent the loss of the familia, or
family estate, and was in fact the earliest process in which
the will of the father formed an element in determining
his successor.
36 OUTLINES OF ROMAN LAW.

As a modification of the practice of adoption, the father
was allowed in the presence of the Comitia to designate a
person who, with the approval of the people, should act
as his heir, and upon whom his legal status should descend
at his death. This was the first form of the Roman will
in the proper sense, and was called ¢estamentum calatis
comitiis. From the mode in which it originated, it was
evidently a kind of special law, and was an innovation
upon the more ancient custom of intestate succession. It
was an act of the state to meet an exceptional emergency;
and there is every reason to believe that it was employed at
first only where the customary law failed to point out a suc-
cessor, or a proper reason could be given why the custom-
ary heir ought not to receive the familia. In case the
Comitia could not be convoked, as on the eve of battle,
the name of the heir might be submitted by the testator
to his comrades in arms. This kind of will, which was
privileged to soldiers, was called testamentum in procinctu.

When the idea became developed that the disposition
of the familia might depend upon the will of the father,
the form of the sale per @s et Libram came to be employed
in the appointment of an heir—the familia being trans-
ferred to a fictitious purchaser ( famzlie emptor) who was
compelled to dispose of the estate according to the direc-
tions which accompanied the sale. Gaius describes this
form of the testament as follows: ‘A man who had not
made his will either in the Comitia Calata or on the eve
of battle (7# procinctu) used to convey his estate ( familia)
to a friend who was requested to distribute it to certain
persons in a certain manner after his death. This was
called the will by the bronze and the balance (/estementum
per @s et ibram) because it involved the process of man-
cipation ” (II., 102). The will thus described indicates
the growing capacity of the testator to dispose freely of
CHARACTER OF THE TWELVE TABLES. 37

his property at death. The XII. Tables provide that
“ the directions of the testator regarding his property and
the guardianship of his children shall be law.” The
testamentum per @s et libram came to be more generally
employed than the two previous forms; and, with the
modifications afterward introduced by the pretor, in
which writing was substituted for the oral instructions of
the testator, it became the basis of the modern will.

(5) As an incidental feature of succession we may
notice the law of guardianship as it existed at the time of
the XII. Tables. By the death of the paterfamilias, the
proper heirs, whether male or female, old or young,
acquired each a share of the rights involved in the pazri-
montium, But the civil right of inheritance might be
accompanied by a natural disability on the part of certain
heirs. The wife, the unmarried daughter, the infant son,
and others regarded as incompetent, though not disquali-
fied from sharing in the inheritance, were yet compelled
to exercise their rights under the protection of a guardian.
In the appointment of the guardian, the father pos-
sessed, after the growth of the testament, the same right
as he had in the appointment of the heir. But when no
will was made, the customary law which determined the
heir, also pointed out the guardian. We learn from Gaius
that the XII. Tables provided that in case no tutor was
appointed in the will, the nearest agnate should act as
such (Gaius, I, 155). And we also learn from Cicero
and Festus that, according to the Tables, the custody of
an incompetent person, as an idiot, and his property, in
case there is no curator appointed by will, belongs to the
agnates ; and in default of agnates to the gentiles (Cicero,
“De Invent.,” II., 50; Festus, on the word JVec).

4. The Law Relating to Property.—The XII.
Tables contain, moreover, certain rules which refer to
38 OUTLINES OF ROMAN LAW.

proprietary relations, and indicate the extent to which
the idea of individual ownership had become developed
at the time the code was framed. As we go back in the
history of society we approach a state of things in which
property is held not separately by the individual, but in
common by the group. From such a state of communism
were developed the early ideas of intestate succession
which we have noticed. Property, like the sacra, was a
kind of adjunct to the family organization, to be admin-
istered by the one possessing the fotestas, and to be
assumed by those upon whom the Jofestas descended.
The patrimonium, though legally held and managed by
the father, was, in fact, communal property; and the
child, though subject to the paternal power, was in reality
a co-proprietor in the family estate. This community of
interests in the family estate and the closeness of the
patriarchal organization greatly limited the freedom of
alienation on the part of all the members—that of the
father as well as the son. The freedom which the father
came to acquire in the disposition of his property at
death shows a tendency in the direction of individual
ownership. Still further, the law regarding the acqui-
sition and alienation of property during the lifetime
of the father also illustrates a tendency in the same
direction. But the laws with reference to property in the
XII. Tables are very far from having the distinct char-
acter which they afterward acquired. Some of the more
important features of these laws may be briefly noticed.
(1) The first feature to be considered is the division
of all things capable of ownership into ves mancipi and res
nec mancipi, according as they did or did not require the
symbolic process of mancipation in their legal transfer-
ence. The former class included land, slaves, and beasts
of burden—that is, the things which would be most valu-
CHARACTER OF THE TWELVE TABLES. 39

able in an early agricultural community, and which would
therefore naturally come first under the protection of the
law. The less valuable things, requiring at first no special
protection, would be transferred in the customary way
from hand to hand, the validity of the transaction depend-
ing merely upon honor before it was sanctioned by law
The recognition of res nec mancifi as objects of legal
ownership and the sanction given to the non-technical
mode of conveyance by “tradition,” show that even at
the time of the XII. Tables, the strictness of the ancient
jus civile was already beginning to give way. This growth
of a non-technical element in the law of conveyance,
opposed as it was to the sacred symbolism of the jus
Quiritium, was no doubt due to the encroachment of the
plebeians, who were admitted to commercial relations with
the Romans before they were allowed to participate in
the sacred forms of the Quiritarian law. Besides the
methods of conveyance already referred to—the strict
mode of mancipation, the judicial mode of in jure cessio,
and the non-technical mode of tradition—the XII. Tables
also recognized wsus, or prescription, as a mode of acqui-
sition. Undisputed possession for a period of two years
in the case of immovables, and one year in case of
movables, vested the right of property.

(2) In connection with this subject of property and
conveyance should also be noticed certain legal transac-
tions which afterward took the form of contracts, but
which at this time were closely related to the subject of
conveyance. The process of conveyance fer @s et Libram
was used as a means to give security for debt. The
debtor transferred to the creditor a piece of property in
accordance with the forms of mancipation. The creditor
by this means obtained absolute and unqualified right to
the property thus transferred. The only security for its
40 OUTLINES OF ROMAN LAW.

return after the debt was paid rested entirely upon the
honor of the creditor. This transaction was called jiducza,
or conveyance upon trust. It will hereafter be seen that
this ‘‘ fiduciary conveyance” was the basis of the law re-
lating to pawn and mortgage.

(3) Upon the process of conveyance was also based a
peculiar relation between debtor and creditor, which ap-
proached more nearly the form of a legal contract. This
was the mexum of the ancient law. A word of explana-
tion will show its origin and character. The term nexum
originally referred to the relation between the parties to
a conveyance ger @s et Libram, the parties themselves being
called ext. The conveyance by mancipation, or fer
@s et libram, involved an interchange of property and
price , and being strictly a legal transaction, the obligation
of the parties could be enforced by the magistrate. By
suspending, however, the process after the transference
of the price, a kind of loan came to be effected ; and the
parties continued to hold the relation of nex? to each
other until the process should be completed. The debtor
who received the price, or loan, was thus under obligation
to complete his part of the transaction, or to return the
money received ; and this obligation, if ignored by the
debtor, could be enforced by an executory judgment
(manus injectio). In this way the term exum came to be
applied to the relation arising from an incomplete con-
veyance, by which a compulsory obligation was estab-
lished between a debtor and a creditor. It will hereafter
be shown how, from this simple obligation, based upon
the forms of a conveyance, sprang the various contracts
of the later law.

5. The Law Respecting Injuries.—The Tables
show very clearly that the Romans had made very little
advance upon the regulations in respect to injuries that
CHARACTER OF THE TWELVE TABLES, 4!

prevail in all rude and barbarous peoples. They drew no
clear line between public and private wrongs. Nearly all
offences, as is common in primitive society, were treated
as private wrongs. Only to a limited extent had the idea
of a crime as an offence against the public, dawned upon
the Roman mind. The principle of retaliation, which is
closely related to private revenge, was still respected ;
although compensation for certain injuries was allowed,
in a manner somewhat similar to that which we find
among the ancient German tribes. As there was no at-
tempt at a classification of offences, the spirit of the law
on this subject will perhaps best be seen from the charac-
ter of the penalties employed. These were chiefly satis-
faction, retaliation, and punishments of a public nature.
(x) Satisfaction took the form either of reparation in
kind, or of compensation by a money payment. Repara-
tion was required for any ordinary damage caused by in-
tent or accident. If the injury was caused by any animal,
either the damage must be repaired, or the animal for-
feited. Money compensation seems to have been required
when the damage was such as not to be readily repaired,
as, for instance, “if one pastures his flock upon a neigh-
bor’s land, if he cuts down his neighbor’s timber, or if he
inflicts an injury upon aneighbor’s person.” The penalty
was graded in a rough way, according to the status of
the person or to the extent of the injury. The penalty
for the fracture of the bone of a free man was twice as
much as forthat of a slave. The slightest personal in-
jury required a compensation equal to one sixth of that
resulting from the fracture of a bone. Again, if a thief
was taken in the act of stealing (furtum manifestum), he
might be scourged, and his person “adjudged” to the one
from whom the property was stolen, but if he was not taken
in the act (/furtum nec manifestum), he was required to
42 OUTLINES OF ROMAN LAW.

make a twofold restitution. This distinction was evi-
dently intended to satisfy the stronger feeling of resent-
ment which would be natural in the former case.

(2) The ancient and barbarous custom of retaliation
was still sanctioned, when satisfaction—either by repara-
tion or by compensation—was not made. According to
Aulus Gellius, the Tables provided: “If any one has
broken the limb of another, unless satisfaction is made, re-
taliation shall be had.” The principle of retaliation was im-
mediately related to the older custom of personal revenge,
by which one took the law into his own hands ; and which
was still allowed in certain cases at the time of the XII.
Tables. For example, any one committing a robbery by
night could be lawfully killed. The same liberty was
given during the daytime, if the robber attempted to de-
fend himself with arms.

(3) Notwithstanding the fact that penalties were more
frequently of a private than of a public character, the
idea of a crime as a public offence, and subject to a pub-
lic penalty, existed to a certain extent even in the early
Roman law. The idea of punishment, however, was still
founded upon the principle of revenge. The victim was
tortured by fire, sacrificed to some deity, or thrown from
the Tarpeian rock or intothe Tiber. There was, moreover,
very little effort made to adjust the penalty to the offence.
Murderers, rioters, libellers, false witnesses, corrupt
fudices, patrons who defrauded their clients, those who
stealthily destroyed their neighbors’ crops—were all alike
condemned to capital punishment. There was yet an
attempt, in some cases, to graduate the penalty according
to the intention. For instance, the law declares that,
if any one of sound mind intentionally burns a house, he
shall be scourged and put to death by fire ; but if he does
it through negligence, he shall be moderately chastised.
CHARACTER OF THE TWELVE TABLES. 43

6. General Character of the XII. Tables.—This
brief review of the ancient civil law, as embodied in the
XII. Tables, shows that it continued to bear traces of the
primitive customs from which it had descended ; and
that, while it contains evidences of an improvement upon
those early customs, it was yet extremely technical, illib-
eral, and conservative.

On account of its religious origin, it acquired the tech-
nical features of a ceremonial law. All the more impor-
tant legal transactions were invalid, unless accompanied
by symbolic acts and rigid formularies. These technical
forms, being associated with the sacred rites of the popu-
lar worship, were looked upon with religious veneration,
and not the slightest deviation from them was permitted.

The spirit of exclusiveness was, moreover, a character-
istic feature of the early law. The government being
framed by and for the interests of the patrician class, the
law was, for the most part, interpreted for the special
benefit of this class. The broadest distinction was made
in the legal capacity of different persons, according as
they were free or slave, patrician or plebeian, citizens or
foreigners. This exclusive spirit was attacked, but not
destroyed, by the gradual encroachment of the plebeians.

The final embodiment of the law in a codified form,
the ultimate authority of which was unquestioned, tended
to prevent its further progress. Its fixed character hin-
dered the improvement necessary for the enlarged ad-
ministration of justice ; and rendered it incapable of
further development except through means which were in
many respects revolutionary, and not contemplated in the

law itself.
References.—The works and discussions upon the XII. Tables

are quite numerous. Some of the more important of these are here
named, in the order in which they are, perhaps, most available for
44 OUTLINES OF ROMAN LAW.

the student: Ortolan, ‘‘ Hist. of Roman Legislation,” Eng. Trans.,
Pp. 96-146; Demangeat, ‘‘ Droit Romain,” I, pp. 43-47; Rivier,
‘Introduction Historique au Droit Romain,” pp. 163-181 ; Walter,
““Gesch. des Rom. Rechts,” I., §§ 49-53; Zimmern., ‘‘ Gesch. des
Rom, Privatrechts,” $§ 29-32 ; Hugo, ‘‘ Histoire du Droit Romain,”
trad. par Jourdan, I., pp. 58-65, 69-206; Gravina, ‘‘Origines du
Droit Civil,” trad. par Requier, Paris, 1822, pp. 38-126 ;. Bruns,
‘Fontes juris Romani Antiqui,” 1871, pp. 12-27; Schoell, ‘‘ Legis
XII. Tabularum reliquiz,” Lipsize, 1866 ; Dirksen, ‘‘ Uebersicht der
bisherigen Versuche zur Kritik und Herstellung des Textes der.
Zwélf Tafel Fragmente,” Lipsiz, 1824 ; Haubold, ‘‘ Institutionum
juris Romani privati Lineamenta,” Lipsiz, 1826; Zell, ‘‘ Legum
XII. Tabularum Fragmenta,” Freiburg, 1825; Bouchard, “*Com-
mentaire sur la Loi des Douze Tables,” Paris, 1789; Godefroy,
‘*Fragmenta XII. Tabularum,” etc., Heidelberg, 1616.
PERIOD UI.

FROM THE CODIFICATION OF THE TWELVE TABLES
TO THE ESTABLISHMENT OF THE EMPIRE.
CHAPTER I.

THE ENLARGEMENT OF THE ROMAN STATE AND THE

EXTENSION OF THE FRANCHISE.

TE expansion of the Roman law after the codification
of the XII. Tables was due primarily to the enlargement
of the state by the introduction of foreign elements into
the body-politic. The direct result of the Roman con-
quests, however, was not so much to modify the character
of the jus civile itself, as to extend its peculiar rights to
the subject communities, and thus to break down its ex-
clusive spirit. This movement, commencing with the full
enfranchisement of the plebeian order, continued with the
advance of the Roman dominion, until the gift of citizen-
ship had before the close of the Republic been granted,
either in whole or in part, to conquered communities in
nearly every part of the Roman world.

1. The Equalization of the Orders—Jus Civi-
tatis.—The enlargement of the state was due, in the
first place, to the admission of the plebeians on terms of
civil and political equality with the patricians. This
was, in fact, the completion of a movement which had
begun in the time of the kings, and which had formed
the most important political feature of the early Republic.
The demands of the plebeians had, however, been satis-
fied only in part by the creation of the Tribunate and by
the reduction of the law to a codified form. The last
two Tables, by excluding the plebeians from the right of
intermarriage, led, in connection with other causes, to the

47
48 OUTLINES OF ROMAN LAW.

overthrow of the second Decemvirate and the restoration
of the consular government. The struggle between the
orders did not cease until the plebeians obtained the full
franchise of citizenship. The chief measures which led
to this result were the following :

(1) The passage of the Valerio-Horatian laws (B. C.
449), which, besides granting the right of appeal to the
people, gave to the plebiscita, or laws of the Comitia
Tributa, an authority over the whole body of the people.
This provision was afterward confirmed by the Publilian
law (B.C. 339), and still later by the Hortensian law
(B. C. 286).

(2) The passage of the Canuleian law (B.C. 445),
which gave to the plebeians the connudium, or the right
of intermarriage with Roman citizens, which involved the
peculiar privileges of the jus cévile in respect to domestic
relations.

(3) The admission of the plebeians to the public
offices. The Licinian legislation not only looked to the
relief of debtors and to the more equitable distribution of
the public land, but also provided that the consulship
should be open to the plebeians. Other concessions
speedily followed, so that the plebeians were admitted to
the censorship (B. C. 351) and to the pretorship (B. C.
337)—offices which had been created since the codifica-
tion of the XII. Tables. To complete the equalization
of the orders, the plebeians were finally admitted to the
sacred colleges by the Ogulnian law (B. C. 300).

From the union of the patricians and plebeians in one
political society there originated, according to Savigny,
the notion of cévifas, or the sum of rights belonging to
Roman citizens as opposed to those possessed by for-
eigners. The full franchise of citizenship (jus civitatis)
comprised, on the one hand, public rights, including the
ENLARGEMENT OF THE ROMAN STATE. 49

right of holding offices (Aomores) and the right of voting
(suffragium); and, on the other hand, private rights, in-
cluding the right to hold and dispose of property accord-
ing to the forms of the civil law (commercium) and the
right of intermarriage and of domestic relations (con-
nubium).

2. The Pacification of LatiiaaJ: us ‘Vatii—The
next important atep, in: the ‘extension’ ‘of the’ Roman fran-
chise was due to the Teductign, af, the, towns of Latium.
The relation between, Rome, and lig Latin towns had, in
early times, been o1 a federative ‘character, with Rome at
the head of the league. By the conditions of this he-
gemony there were recognized the rights of self-govern-
ment in each city, and of “reciprocity” in respect to pri-
vate rights as between the different communities. This
relation continued, with some interruptions, until the great
Latin war (B.C. 340-338), which resulted in the dissolu-
tion of the Latin confederacy. With the pacification of
Latium began a definite policy on the part of Rome with
reference to the status of her conquered subjects. This
involved both political and civil features.

(1) The political features of this policy were founded
upon one definite and uniform principle, viz.: that all
conquered cities should be entirely isolated from each
other and brought into immediate relationship with Rome.
The latter relation might involve more or less freedom on
the part of the conquered city, but in any case it must
recognize the supremacy and the pre-eminent interests of
the capital city. The variety of privileges which were
granted to the different Latin towns did not obscure the
fact that they were all directly dependent upon Rome, and
could in no way derive support from each other.

(2) In connection with the political settlement of
Latium there was bestowed upon the several communities
50 OUTLINES OF ROMAN LAW.

a kind of qualified citizenship (civitas sine suffragio), such
as Rome had, in early times, granted to the inhabitants of
Cere. It seems quite certain that this peculiar franchise
was derived from, or at least cloSely related to, the prin-
ciple of reciprocity of private rights which had been com-
mon in the early Italian leagues. This principle as re-
gards civil: tights. ‘Rome. still respected in, her relation to
her Latin ‘subjects,’ éven * after « -desttoying: fhe: ‘ political
relations upon which the. confederacy, had been founded.
The rights of intéfinartidge'and of edramiércial intercourse
(connubium et commercium) were thus ‘préserved between
Rome and the inhabitants of the Latin towns. The pos-
session of these rights formed the essential feature of the
early jus Latit, or Latinitas. In later times, however, the
right which went under this name and which was bestowed
upon the Latin colonies outside of Latium, included the
commercium only.

3. The Reduction of Italy—Jus Italicum.—The
extension of the Roman power to the natural boundaries of
the Italian peninsula followed closely upon the pacification
of Latium. By the victory over the Samnites, the suc-
cessful war against Pyrrhus, and the subjugation of Umbria
and the independent cities of Etruria, the authority of
Rome at the close of the year 265 B.C. extended from
the Rubicon to the Sicilian Straits. The general policy
which was adopted with reference to the newly conquered
people was, in many respects, similar to that which had
already grown up in Latium. Isolation, a certain degree
of local self-government, and the direct dependence of the
different communities upon Rome as the central city,
were the main features of this policy. Rome was thus a
city governing cities. The various communities in Italy,
which were brought into relation to Rome, may be ar-
ranged in the following classes according to the privileges
which they enjoyed.
ENLARGEMENT OF THE ROMAN STATE. 51

(1) Municipia. These were free towns which retained
their original right of self-government, but whose inhabi-
tants also acquired certain rights of Roman citizens, These
as a rule, included the private rights only (civitas sine suf-
fragio). Butas a special favor certain privileged towns
(municipia optimo jure) were granted the full rights of
citizenship including those of a public character.

(2) Colonie, The colonial towns formed an important
instrument of Roman supremacy in Italy. They were of
the nature of garrisons planted in conquered cities. The
colonists themselves occupied a portion of the confiscated
land, and were organized after the manner of an inde-
pendent municipality ; while the conquered inhabitants
were reduced to a state of subjection akin to that of the
early plebeians at Rome. In some cases, the colonists re-
tained all the public and private rights of Roman citizens.
In other cases, they were left with the Latin franchise,
which was frequently restricted to the commercium. While
the colonial system did not, as in the case of the munici-
pal system, extend the right of citizenship to those who
did not hitherto possess it ; it yet enlarged the territorial
jurisdiction of the civil law by transplanting to every part
of Italy those who possessed the Roman franchise.

(3) Prefecture. Certain towns were deprived, for
the most part, of their local government and ruled by a
prefectus sent from Rome. They were subjected to all
the political burdens, without receiving any of the politi-
cal rights of citizens. Civil justice was administered in
these towns by the Roman prefect according to the
forms of the Roman law.

(4) Civitates Faderate. Besides the cities already
mentioned, there were others which were left compara-
tively independent and were related to Rome by special
treaties. They generally retained their own laws,
52 OUTLINES OF ROMAN LAW.

appointed their own governors, and managed their own
affairs ; but they were subject to Rome in their foreign
relations, and were bound to furnish levies of men and
money to the Roman government.

As a result of the relationship established between
Rome and the Italian communities, there grew up a
peculiar franchise known as the jus Jfalicum. As the
early jus Latii was derived from certain common privi-
leges granted to the inhabitants of Latium; so the jus
Stalicum must be regarded as indicating certain common
rights conceded to most of the Italian towns. Nearly all
the cities of Italy retained, in some form or other, the
right of local self-government. Notwithstanding the
opinion of Sigonius and of many subsequent writers that
the jus Jtalicum was a personal right of less extent than
the Latinitas, the more consistent view seems to be that
of Savigny, viz.: that this right was a grant to a com-
-munity as a whole and not to the individuals composing
it. The right of municipal liberty was doubtless the
essential feature of this privilege. This involved the
right of possessing an independent municipal organiza-
tion, the right of exclusive dominion over the municipal
territory and, as a consequence, the exemption of the land
fxom Roman taxation.

4. The Conquest of the Provinces—Jus Provin-
ciarum.—The cities of Italy were scarcely reduced to
submission when Rome came into contact with Carthage—
which event ushered in the period of her greatest con-
quests. The extension of the Roman power beyond the
Italian peninsula was attended by the erection of prov-
inces, in which the cities of a particular territory were
grouped together under a common government made up of
Roman officials. From this organization of extra-Italian
cities were derived the distinguishing features of the
ENLARGEMENT OF THE ROMAN STATE. 53

Roman provincial system. What these features in gen-
eral were, will be seen by considering briefly the political
status of the conquered cities, the nature of the provin-
cial government, and the character of the provincial laws.

(1) The condition in which the conquered cities were
left after the erection of the province, may be illustrated
by the towns in Sicily. In some of these towns the in-
habitants were deprived of their municipal government,
and were dispossessed of their territory, which became a
part of the ager publicus. A few were left independent of
all burdens except that of military service—thus occupy-
ing the position of allied towns. But the majority of
towns held a position hitherto anomalous in the Roman
state. They were practically independent with respect to
their rights of self government and civil administration ;
but their territory—though not formally confiscated as
ager publicus—was held as tributary land of the Romans,
and made subject to a tithe of the produce. According
to Mommsen, the Romans derived this idea from Carthage
and the Kingdom of Hiero. In early times the Romans
knew nothing of tributary subjects, properly so called.
The ager publicus might, indeed, be rented to citizens ;
but the municipal land in Italy had been left free from tax-
ation. By this policy there came to be a wide distinction
between Italian and provincial land; the former could be
held by an absolute title, while a qualified ownership only
was possible in the latter.

(2) To adjust the relations between the conquered
communities, and also to administer the new land-tax, a
common provincial government was necessary. Each
province was ruled by a governor, under the general name
of preses. At first, preetors were appointed to fill the
office. Afterward a custom arose whereby a prtor was
assigned to a province only after the expiration of a term
54 OUTLINES OF ROMAN LAW.

already served at Rome—when he received the title of
pro-pretor. The same honor was also bestowed upon
pro-consuls. The governor was assisted by a questor,
who was responsible for the financial administration. The
duties of the governor were both military and civil. He
commanded the army and was responsible for the peace
and security of the province. He also administered
justice between the citizens of different communities. The
importance of the governor’s duties, as regards our pur-
pose, grew out of his relation to the law and the civil
administration.

(3) The laws of the province, so far as they were strictly
provincial in character, depended for the most part upon
the governor, as regards both their origin and execution.
Certain general laws were, indeed, issued by the Roman
senate, which set forth the main principles to be followed
in the government of the province. But the preses issued
his own edicts, containing the specific rules to which the
provincials were subject. While these rules were not in-
tended to displace the local municipal laws, they yet re-
strained the conduct of the citizens in many particulars.
Especially was this the case when, as was common,
they dealt with the inter-municipal relations. The jus
civile itself was not formally introduced into the province,
since the large part of it which applied to persons and
property was inapplicable to provincial persons and pro-
vincial property. The provincial law was also adminis-
tered by the governor. He might sometimes delegate
this function to others, but he was yet the responsible
judge in all provincial affairs.

From these facts is indicated the limited nature of the
franchise conferred upon the provincials, as compared
with that granted to the peoples of Italy. While there
might be Romans sojourning in the province who retained
ENLARGEMENT OF THE ROMAN STATE. 55

all the rights of citizenship ; while the Zatinéfas might
be conferred upon the inhabitants of certain towns, and
the jus Jtalicum upon some entire communities—the
largest part of the provincials were allowed the privilege
simply of retaining their own municipal government and
municipal land subject to the territorial supremacy of
Rome. The jus provinciarum might be described as a
franchise equivalent to the jus /ta/icum minus the freedom
from land taxation which the latter right involved. In
short, the provincials possessed no status as Roman
citizens; and even their capacity of ownership in their
own land was qualified by their tributary obligations to
Rome. The civil incapacity of the provincials had refer-
ence, however, merely to their exclusion from the strictly
legal rights sanctioned by the jus civic. The equitable
rights which they acquired under the jus gentium will be
referred to hereafter.

5. The Civil Wars and Roman Citizenship.—
The civil dissensions which attended the decline of the
Republic resulted in enlarging still further the franchise
already possessed by the inhabitants of Italy, and also in
improving somewhat the civil status of the provincials.
The primary purpose of the civil reforms introduced by
the Gracchi was to benefit the proletariat of Rome.
But circumstances soon brought the interests of the
Latins and the Italian allies within the sphere of Roman
politics. The oppression of these peoples, and the un-
satisfactory policy of the Roman leaders with reference
to their relief, led to an armed secession of the allies,
which has been called the “social war.” The allies were
defeated in the field, but the legislation which accom-
panied and followed the war was beneficial to most of
the Italian towns.

(1) The Julian law (dex Fulia de civitate B. C, 90) pro-
56 OUTLINES OF ROMAN LAW.

posed by L. J. Cesar, granted the rights of citizenship
to certain subject communities, the extent of its pro-
visions, however, being a matter of some dispute. Niebuhr
insists that “it is quite certain the lex Sulia affected
the Latins only.” Mommsen is equally certain that it
“conferred the franchise on burgesses of all those com-
munities of Italian allies which had not up to that time
openly declared against Rome.’’ There seems to be: no
special reason, however, for dissenting from the statement
of Cicero, in which he refers to the lex Yulia as affecting,
under certain conditions, both the soci and the Latint
(“ Pro. Balb.,” ch. 7).

(2) The lex Plautia Papiria (B. C. 89) extended the
civitas to persons not reached by the Julian law. By the
new provision, any person might become a Roman citizen
who was enrolled in an allied town, who was a resident
of Italy at the time of the passage of the law, and who
had within sixty days expressed his desire to become a
citizen (Cicero, “ Pro Arch.,” ch. 4).

(3) Supplementary legislation was still necessary to
complete the civil equality between Romans and Italians.
Many cities refused to accept the civil rights proffered
by the previous laws, owing to the fact that their political
rights were not sufficiently guaranteed. It was only by
the efforts of Marius and Cinna, and by the revolution
of the municipal system during the Sullan epoch, that the
civil distinction between Romans and Italians in Italy
disappeared. Under the new arrangement every mumni-
cipium came to be a body of Roman citizens, possessing
the full franchise, together with the power of local ad-
ministration, so far as this was consistent with the polit-
ical sovereignty of Rome.

(4) With the union of the people of Rome and of Italy
into a body of equal citizens, the opposition became more
ENLARGEMENT OF THE ROMAN STATE, 57

marked between Italy and the provinces. The jus pro-
venciarum, though granting certain privileges of local
government, did not confer any of the distinctive rights
of Roman citizenship. The movement, by which this
distinction between Italians and provincials was broken
down, began before the fall of the Republic. The system
of extra-Italian colonization introduced by C. Gracchus
transferred to the provinces a citizen class, although it
did not affect the provincials themselves. Sertorius had,
indeed, attempted to give to the Spanish province an in-
dependent constitution, securing to its inhabitants civil
and political rights similar to those enjoyed by the Ital-
ians. But Julius Cesar seems to have been the first
statesman of Rome who fully conceived the need of a
civil reorganization of the provinces, like that which had
taken place in Italy; and before his death this result was
in part accomplished. Cisalpine Gaul was granted full
Roman rights and united to Italy. The Latin right was
bestowed upon certain cities in Spain and Africa; and
upon other towns were conferred the right of the old
Italian allies. But the completion of this movement was
not brought about until after the establishment of the
Empire.

References.—A general review of the extension of the Roman
franchise may be found in the ordinary histories ; ¢. g., Leighton,
Liddell, Arnold, Mommsen, Ihne, Schwegler, Niebuhr. More spe-
cial references are the following: ‘‘ Dict. Antiqq.” (Colonia,
Civitas, Latinitas); Arnold (W. T.), ‘‘Roman Provincial Ad-
ministration,” ch. 2; Phillimore, ‘‘ Study and Hist. of the Roman
Law,” pp. 191-207 ; Ortolan, ‘‘ Hist. of Roman Legislation,” pp. 169-
182; Walter, ‘‘ Gesch. des Rém. Rechts,” I., §§ 99-270; Warn-
kénig, ‘“‘Vorschule der Institutionen und Pandekten,” Zweite
Periode ; Marquardt, ‘‘ Rém. Staatsverwaltung,” I., Italia, pp. 18-
89, ‘‘Der Rom. Provinzen,” pp. 90-425 ; Madvig, ‘‘De Jure
et Condicione Coloniarum”; Savigny, ‘‘Zeitsch.,” I., “* Ueber
58 OUTLINES OF ROMAN LAW.

Entstehung . . . der Latinitat,” IX., ‘‘Der Rém. Volks-
schluss der Tafel von Heraclea”; Heineccius, ‘‘ Antiquitatum Ro-
manarum Syntagma,” ed. Haubold et Mihlenbruch, Appendix lib.
I., ch. 1, ‘‘ De Jure Quiritium et Civitatis,” ch. 2, ‘‘ De Jure Latii,”
ch. 3, ‘‘ De Jure Italico,” ch. 4, ‘‘ De Jure Provinciarum” ; Fron-
tinus, ‘‘ De Coloniis Italie” ; Sigonius, ‘‘ De Antiquo Jure Provin-
ciarum.”
CHAPTER II.
THE ROMAN PRETOR AND THE EARLIER JUS GENTIUM.

WE have now seen how, with the enlargement of the
Roman State, the privileges embodied in the ancient jus
civile were gradually extended from the patricians to the
plebeians, from the Romans to the Latins and the Italians,
and from the inhabitants of Italy to the more favored in-
habitants of the provinces. In connection with this
movement, which of itself tended to break down the for-
mal exclusiveness of the old law, a more thorough revo-
lution was taking place in the spirit and substance of the
law under the influence of the Roman pretor. During
this period the pretor was, in fact, the fountain of justice
in the Roman State. Under his administration, a pro-
gressive spirit was introduced into the whole legal system.
Not only were there important changes made in the jus
civile, but there grew up a body of more liberal princi-
ples, which, under the name of jus gentium, formed what
might be called a system of equitable jurisprudence.

1. The Jurisdiction of the Prztor.—The germs
of that authority which expanded into the full pretorian
jurisdiction may be traced to the power of the consul,
and remotely, of course, to that of the king. The zm-
perium of the kings involved supreme military and judi-
cial power. When the royal power was put into commis-
sion by the appointment of the consuls, the comprehen sive
notion hitherto attached to zmperium became specialized
into two somewhat distinct elements, viz. : the power of the
sword (imperium merum), which could be exercised only

59
60 OUTLINES OF ROMAN LAW.

outside of the city, and the power incident to the admin-
istration of the law (émperium mixtum). With the crea-
tion of the new Republican offices, the praetor (first
appointed as a special judicial officer B.C. 366) acquired
all the power hitherto involved in the judicial functions
of the consul. In the broadest sense of the word, there-
fore, jurisdiction included not only the power to declare
the law (jus dicere, to which power the term jurisdiction
is sometimes restricted in a special sense), but also the
imperium mixtum, or the power to carry into execution
any judicial decision or decree. The scope and impor-
tance of this authority will be seen by considering the
forms under which it was exercised and its influence upon
the development of the law.

(1) There were several forms under which the pretor’s
judicial authority was exercised. His jurisdiction might
be either “voluntary” (voluntaria) or “contentious”
(contensiosa). In the former case it referred to the pro-
nouncing of judgment, in order to render valid certain
legal acts where there was no conflict of claims, ¢.g.,
in the case of manumission, 77 jure cessio, etc. In the lat-
ter case, it was exercised to settle a dispute between con-
tending claimants. When there was no dispute as to the
facts in the case, the pretor himself disposed of it accord-
ing to his interpretation of the law. But when the facts
were disputed, he ordinarily referred the case to a judex,
giving the latter tne necessary legal instructions as to the
mode of rendering a decision. In certain extraordinary
cases, however, the prztor assumed charge of the entire
case, including law and fact. This gave rise to the dis-
tinction between “ ordinary” and “ extraordinary ” juris-
diction. Besides the power of granting judgment in
actions, another element of the preetor’s judicial authority
was the power of -issuing “interdicts ” (daterdicta). This
ROMAN PRATOR AND JUS GENTIUM. 61

was exercised when the summary interference of the
magistrate was necessary to prevent an immediate inva-
sion of rights.

(2) While the primary function of the praetor was to
declare and enforce the existing law, he of necessity as-
sumed the power to construe the law so as best to secure
the rights of injured persons ; and, in this way, he con-
tributed to the development of the law itself. The
XII. Tables formed, of course, the legal basis of the
pretor’s decisions. This code was regarded as the ulti-
mate guide to civil conduct. But the very act of inter-
preting and applying it led to the internal growth of the
law, and to its adjustment to the new relations and grow-
ing needs of society. By the use of fictions, the old rules
of the law were employed as a means for the introduction
of new principles. In the process of administration, the
practical sense of the pretor often supplied the defects of
the code ; and, although the forms of the jus civile were
ostensibly preserved, its spirit and substance were under-
going important changes.

2. The Character of the Pretorian Edicts.—In
addition to the administration of the law in a judicial
manner (jus dicere) the pretor also possessed the power
of issuing edicts, which power partook of the character of
direct legislation (jus edicere, jus edicendi). The edictal
power, it is true, belonged to all the higher magistrates ;
but the preetorian edicts are especially important as an
historical element in the Roman law. In fact, there was
no other source of legislation which contributed so largely
to the growth of broad and liberal principles by breaking
down the extreme technicalities, and supplying the de-
fects of the ancient us cévile.

(1) The various kinds of edicts issued by the Roman
magistrates, suggest the mode in which the edictal power
62 OUTLINES OF ROMAN LAW.

acquired importance as a source of legislation. In the
earliest times, edicts were issued occasionally as circum-
stances might require, and were hence called edicta re-
pentina. Although a magistrate might publish an edict
at any time during his term of office, the custom arose of
issuing a general edict at the beginning of the term, and
the lex Cornelia (B.C. 67) forbade a pretor from disre-
garding the provisions of the edict issued at his accession,
Such edicts were called perpetua (in distinction from re-
pentina) since they continued in force during the whole of
the official term. Each succeeding praetor, however, had
the right to issue his own edict without regard to that of
his predecessor. But there were reasons which would
naturally lead a new magistrate to adopt many provisions
already published and tested by experience. The ele-
ments of the edict which were thus transmitted from the
edicts of previous magistrates were called ¢ra/atitia, as op-
posed to the new provisions of the edict, which were
called zova. Whatever rules and principles had been
found most conducive to the interest of society, would in
“ this way be handed down from one pretor to another,
until the transmitted portion would come to form the
most important part of the edicts. By this process, the
series of edicts came to form a continuous and well-de-
fined body of legal principles founded upon experience
and continually growing as new emergencies required.
The body of law thus developed was called the jus pre-
toriunt.

(2) The beneficial influence of such a mode of legis-
lation is quite evident. Though founded theoretically
upon the jus czvile, the pretorian law was instrumental in
modifying the strict rules of the old procedure and in en-
larging the substantive portion of the law to meet the
needs of an advancing society. It was characterized by
ROMAN PRATOR AND JUS GENTIUM. 63

Marcian as “ viva vox juris civilis” (D. 1,1,8). Papinian
says of it: “ Jus preetorium est quod prztores introdux-
erunt adjuvandi vel supplendi vel corrigendi juris civilis
gratia, propter utilitatem publicam” (D. 1,1,7,1). The
mode in which the preetorian law was developed was en-
tirely in harmony with the conservative character of
Roman institutions. The process was not abrupt and
revolutionary, but gradual and reformatory. What al-
ready existed was not destroyed ; it was rather adjusted
to"a new state of things. This mode of legislation was
found to be more efficient than that of the Comitia in
introducing a progressive spirit into the whole body of
the civil law.

3. The Functions of the Pretor Peregrinus.
—The judicial and legislative authority thus described
belonged especially to the early Roman pretor, who came
to be called by way of distinction the pretor urbanus.
This authority was exercised in the hands of the “ city
pretors”” to protect the rights and interests of Roman
citizens, When, by the extension of the Roman dominion,
a large class of foreigners were brought into relation to
the state, the jurisdiction of the city praetor was found to
be inadequate to meet all the demands of justice. So far
as the foreigners were granted rights of citizenship, they
came, it is true, under the authority of the city preetor ;
but so far as they were excluded from citizenship, they
possessed no rights that could be protected by the
Roman law. A new pretor was accordingly appointed
(B. C. 246)—called the praetor peregrinus,—who was given
authority to decide those cases which were not provided
for by the jus czvile.

The office of the new pretor was modelled, to a certain
extent, after that of the existing praetor. He was ap-
pointed in the same way and exercised a similar kind of
64 OUTLINES OF ROMAN LAW.

judicial and legislative power. His function yet differed
materially from that of the pretor of the city. His juris-
diction did not extend exclusively over Roman citizens,
nor was his administration based upon the jus civile. He
was, therefore, at first, not a judge, in the proper sense of
the term, administering an established body of law; but
rather an arbitratdr, making periodical tours through the
Italian cities, hearing those cases not provided for by the
existing law, and deciding them upon principles of general
utility. There was a variety of relations which demanded
the cognizance of the “foreign pretor,” and which may
be described as follows:

(1) Relations between Romans and foreigners. It was
a general principle which marked the early Roman policy
in Italy to allow a subject community to retain its own
municipal laws, and to administer justice between its own
citizens, so far as this was consistent with a state of sub-
jection to Rome. The citizens of such a state would thus
have legal rights with reference to each other. But when
these citizens were brought into commercial relations
with Romans, an anomalous state of things would arise. In
case a Roman citizen, for instance, committed a wrong
against a subject foreigner, the latter had no means of re-
dress—either in the Roman law, because he did not pos-
sess the rights of Roman citizenship, or in his own law,
because the Roman was not amenable to the laws of a for-
eign city. Justice could be done only by referring such
a case to the praetor peregrinus.

(2) Relations between foreigners of different commu-
nities. Although each city possessed the right of local
jurisdiction over its own citizens, and although the sev-
eral cities were in common subject to the political su-
premacy of Rome, still they possessed no strictly legal
relations with each other. A citizen of one subject com-
ROMAN PRATOR AND JUS GENTIUM. 65

munity possessed no legal status in any other, and was
not amenable to the laws of any other. In short, the
citizens of different communities had no legal rights as
against each other. But public policy required some sort
of adjustment of the difficulties which might arise be-
tween such persons, and hence, cases of this kind were
left to the jurisdiction of the new pretor.

(3) Relations between foreigners of the same commu-
nity when residing at Rome. In case a controversy arose
between members of the same community when residing
at Rome, or outside of the jurisdiction of their own city,
such a controversy could not originally be decided by
any legal process. Being foreigners, they could not ap-
peal to a Roman tribunal; and being at Rome, they
could not appeal to their own magistrate since the latter
possessed no authority in the Roman city. The only
mode of adjusting their claims was by a reference to the
foreign pretor.

4. The Growth of the Earlier Jus Gentium.—
The most important result which grew out of the admin-
istration of justice in the cases referred to, was the de-
velopment of a new body of law supplementary to the
ancient jus cévile, and destined by its superiority to exer-
cise a beneficial influence upon the whole body of Roman
jurisprudence. The peculiar position in which the for-
eign preetors were placed rendered them, in great meas-
ure, independent of the old civil law; and compelled
them to administer justice upon broader principles than
those embodied in the XII. Tables, or expressed in the
edict of the city pretor. How this was brought about
will be apparent from the following considerations.

(1) The foreign pretors, at first, must have decided
the cases presented to them in a somewhat arbitrary
manner, that is, without reference to any fixed body of
66 OUTLINES OF ROMAN LAW.

legal rules. They were appointed not to administer a
system of law, but to settle disputes in a manner most
satisfactory to the contending parties and most conducive
to the public interests. They were therefore, at first,
placed in the position of arbitrators rather than that of
judges. They were not bound to refer to any code in
order to determine whether an injury had been committed,
nor were they bound to adhere to any technical mode of
procedure in affording redress. While their previous
legal education might unconsciously affect their action in
a given case, they were bound simply to consult their own
sense of justice and the public utility.

(2) But this primitive mode of settling controversies
speedily gave way to a more fixed method of adjudica-
tion. Experience taught the necessity of recognizing
certain uniform principles which should furnish a perma-
nent standard of judicial decision. These uniform prin-
ciples the foreign pretors obtained by comparing the
local laws of the various communities over which they
exercised jurisdiction. This was done not with any con-
scious design of developing a better set of legal rules than
those already existing in any single state, but as the most
expedient way of settling disputes and of satisfying the con-
testing parties. While each party would naturally chafe
under a technical procedure which was foreign to the
laws of his own community, both parties would alike feel
the binding force of a principle which formed a common
element in the laws to which they had severally been sub-
ject. This consideration furnished a motive to the
foreign praetors to compare the local laws of the various
communities in Italy, and to render judgment with refer-
ence to the common principles thus discovered.

(3) As a result of this method of judging between
subject foreigners in Italy there grew up a common sys-
ROMAN PRATOR AND JUS GENTIUM. 67

tem of Italian law. Following the custom which the city
pretor had adopted of issuing an edict for the govern-
ment of Roman citizens (edictum urbanum), the foreign
pretor also issued an edict containing rules for the
decision of cases in which foreigners were concerned
(edictum peregrinum). The same consideration, moreover,
which led the foreign praetor, when deciding a case, to
effect a compromise between the customary laws of dif-
ferent states, would also induce him, when issuing an
edict, to embody in it those principles of law and modes
of procedure which were recognized in common by the
several communities. As the observation of the pretor
became more extended the local and technical features of
the different systems would be more and more eliminated
until the foreign edict would come to have the character
of a general and impartial code. The foreign przetors
thus acquired a legislative power, and in their successive
edicts developed a body of law founded not upon the
Roman jus civile, but upon the common usages of the
Italian states.

(4) We may further observe that the position of the
foreign pretors with reference to the inhabitants of Italy
furnished a kind of model for the authority which the
provincial governors assumed with reference to the in-
habitants of the provinces, In fact, the first governors
were themselves pretors and had a judicial and legislative
authority similar to that exercised by the preetorsin Italy ;
and whatever these governors were afterward called
(whether proprztors, proconsuls, or presides) they con-
tinued to exercise the same kind of official power. They
possessed the right to judge (us dicere), and the right to
issue edicts (jus edicere). To whatever extent the pro-
vincial cities were allowed to retain their own laws, cases
would continually arise which would require the interfer-
68 OUTLINES OF ROMAN LAW.

ence of the governor. No existing law would apply to
the disputes between Roman citizens and provincials, or
between the provincials of different cities. These cases
were similar, in many respects, to those for the settlement
of which the foreign pretors had developed the common
system of Italian law. Similar principles of adjudication
were therefore adopted by the provincial governors, and
the common elements thus gathered from the provincial
communities were promulgated in the provincial edict
‘(edictum provinciale).

(5) This whole body of supplementary law, which
had grown out of the common usages of the Italian
states and the common law gathered from the provinces,
received the general name of jus gentium—that is, the
law common to all nations. The term jus gentium, in
its earlier empirical sense, must not be confused with
the higher philosophical meaning which it afterward
acquired. During the time of the Republic, or at least be-
fore the introduction of the Stoic philosophy into Rome,
the phrase was applied simply to “the sum of the
common ingredients in the customs of the old Italian
tribes,” and of other communities brought under Roman
sway. From the mode in which this supplementary
body of law was developed, the general character of
its principles is quite evident. Since it was created to
afford relief in cases which transcended the authority of
the civil law of Rome and that of any subject state, it
was more comprehensive in its scope than any previously
existing law and possessed broader and more equitable
principles. Since, moreover, it was called into exist-
ence, in great part, to facilitate commercial transactions,
it was especially beneficial in promoting safe and easy
modes of transferring property, and in securing the
validity of business contracts. And, finally, since it was
ROMAN PRATOR AND JUS GENTIUM. 69

gathered from the common elements of various systems,
its modes of procedure were divested of the extreme
technicalities which marked the special laws of Rome
and of the other early Italian communities.

5. Relations of the Jus Gentium to the Jus
Civile.—The earlier jus gentium, thus springing up as a
practical means to adjust the civil relations between
Romans and foreigners, and afterward extended to the
non-citizen class of the whole Roman world, approached
the character of an impartial and universal code. The
relation which this new body of law sustained to the jus
civile, or the body of strictly Roman law, was quite dif-
ferent at different periods of its development. The steps
by which the jus gentium was brought into harmonious re-
lations with the jus civile may be indicated as follows :

(1) At first these two systems were regarded as en-
tirely distinct from each other, being totally separate in
their origin and application. The sus civile was the law of
the XII. Tables, augmented by subsequent legislation
and juristic interpretation founded upon that code. The
jus gentium was the law gathered from the common
usages of the subject states and published in the edicts of
the foreign pretors and of the provincial governors. The
former was the peculiar and sacred heritage of the
Roman people ; the latter possessed no traditional sanc-
tity, and being accumulated from the laws of foreign
states, the Romans looked upon it at first with no favor.
The superior features of the jus gentium were disregarded
on account of the greater dignity which attached to the
ancient Roman code.

(2) But while the jus gentium was at first regarded as
totally distinct from the civil law, its marked superiority
came to be gradually recognized, and it soon exerted an
important influence upon the legislation of Rome. It
70 OUTLINES OF ROMAN LAW.

served as a model for the city preetor and enabled him to
give a wider interpretation to the ancient civil law. As
the city magistrate looked forward to the provincial gover-
norship as a sequence to his own office, he was led to view
with favor the foreign system, and to introduce many of
its principles into his own edict. Wherever the civil law
was defective or manifestly unjust in its application, re-
course was had to the body of principles contained in the
foreign edict. This compelled a comparison of the two
systems, and exposed the technicalities and defects of the
old law. In this way, the equitable rules which had been
established to meet the exceptional cases in which for-
eigners were concerned, were gradually adopted to adjust
the relations between Roman citizens. The impartiality
of the “ Gentile law,” the facility with which it met many
cases for which the ancient law provided no remedy, served
to destroy the early prejudice against it until the Roman
citizen appealed to it as a refuge to protect him against
the limited justice afforded by the ancient code. It was
often called by the Romans jus aguum, or eguitas—not
however in the sense of being a standard of abstract jus-
tice, but as being a branch of positive law more even and
fair in its provisions than the jus civ/e, and better suited
to protect the interests of all persons.

(3) Inthe process of time a large part of the jus gentium
came to be absorbed into the jus civi/e, or, in other words,
embodied in the edicts of the city pretors. The real.
distinction between the two systems became less and less
important. When the Italian gommunities were received
into the rights of citizenship, after the “social war,” the
equitable principles of the jus gentium were not abandoned,
but continued to be administered between the new Roman
citizens throughout Italy. And so when the office of
praetor peregrinus fell into disuse, the law which he had
ROMAN PRATOR AND JUS GENTIUM. 71

administered was still preserved, since it had been, for the
most part, taken up into the perpetual edict of the praetor
urbanus. The us gentiéum thus came at last to form a con-
stituent part of the Roman law—of equal and even of
superior dignity to the jus civile. The names of the two
bodies of law were preserved chiefly to indicate the sepa-
rate sources from which various legal principles were
derived. Consequently, the whole body of the Roman
law (or the jus czvi/e in its more extended sense) was con-
sidered as made up of two essential and co-ordinate
parts—that which was derived from the old jus cévile, and
that which was derived from the jus gentium. These two
parts, however, were welded into one complete body of
jurisprudence, and were administered by the same tri-
bunal.

The tendency of legal development at Rome was thus
to blend “law” and “equity” into a single and organic
system of justice. The ancient customary law was in this
way continually enlarged and improved by the introduc-
tion of a supplementary body of principles, which had
been developed to supply apparent deficiencies and to
afford a greater facility in the protection of the rights of
Roman subjects.

References.—The general character of the praetorian office and
legislation will be found discussed in the following works: Maine,
“* Ancient Law,” ch. 3; Kaufmann’ s Mackeldey, N. Y., 1845, I. pp.
20-22; Austin, ‘‘ Lectures on Jurisprudence,” Lect. 31 ; Walker (B),
‘‘Edictum Julianum,” Introduction; Phillimore, ‘Study and
History of the Roman Law,”Mch. 3; Ortolan, ‘‘ Hist. of Roman
Legislation,” Eng. trans, §§ 33, 40-45, 54; Rivier, ‘‘ Introduc-
tion Historique,” pp. 198-201 ; Grapel, ‘‘ Sources of the Roman
Civil Law,” ch. 6; Warnkonig, ‘ Vorschule,” S. 83; Zimmern,
“Geschichte,” §§ 37-41; Hugo, ‘‘ Histoire du Droit Romain,”
trad. par Jourdan, I., §§ 177-179; Holtius, ‘‘ De jure praetorio tum
. apud Romanos tum apud Anglos,” 1841; Lenel, ‘‘ Beitrage zur
Kunde des pretorischen Edicts,” Stuttgart, 1878.
CHAPTER III.

THE IMPROVEMENT OF THE ROMAN LAW DURING THE
REPUBLICAN PERIOD.

THE improvement of the Roman law, from the time of
the XII. Tables to the fall of the Republic, was due, for
the most part, to the two movements already described,
viz,: first, the extension of the Roman franchise by the
enlargement of the state, whereby many persons who had
hitherto belonged to the non-citizen class were admitted,
either wholly or partly, to the rights of citizenship; and,
secondly, the growth of the earlier jus gentium under the
administration of the preetors, whereby those who were
still excluded from the strict privileges of the jus civile
were yet protected in the exercise of certain equitable
rights. To obtain more definite knowledge with respect
to the progress of the law during this period it will be
necessary for us to review briefly the effect which these
two important influences produced upon the substance
of the law itself.

I. Extension of the Civil Capacity of Persons.
—The most obvious example of the liberalizing tendency
of the law is seen in the status of persons. In the begin-
ning of this period, the possession of legal rights was
restricted to a comparatively few persons, and these were
mostly the members of the old patrician gentes. The
progress of the law, however, was characterized by the
removal of the civil incapacity resting upon a large part
of the persons subject to Roman authority. Though
prompted by motives of expediency rather than the sense

72
IMPROVEMENT OF THE ROMAN LAW. 73

of justice, the Romans came to recognize the principle
that every freeman had a right to appeal to some tribunal
and obtain redress for injuries received. All men were
not yet recognized as equal before the law. Still every
free person possessed a legal status—whether as a citi-
zen, a Latin, or a peregrinus.

(1) The status of citizenship, at first restricted to the
patrician aristocracy, was extended, as we have seen, to
the extra-patrician class, so that before the establishment
of the Empire it was held not only by the plebeians, but
by all the free inhabitants of Italy and by the Roman
colonists in the provinces.

(2) Moreover, the Lat/nitas, originally bestowed upon
the Latin nation, came to be a general right granted
to the inhabitants of any community whose commercial
relations Rome was willing to protect by the sanctions of
the jus civile. The Latin right was thus a sort of quali-
fied citizenship ; and wherever bestowed, it paved the
way for the more complete rights of the cévitas. With
the recognition of the separate rights involved in the
commercium as affording the basis of a distinct status,
many persons received the protection of the civil law
who otherwise would have been excluded from its priv-
ileges.

(3) A more striking illustration of the expansion of the
law relating to persons is to be seen in the equitable
rights conferred upon the alien population. In early
times a foreigner was looked upon as a Aostis, and de-
barred from all legal privileges. He was soon allowed to
transact business under the patronage of a Roman citi-
zen, who could protect him as a client in a court of jus-
tice. But it was only under the liberal administration of
the pretor peregrinus, and with the growth of the jus gen-
tum, that the foreigner came to have his rights so dis-
74 OUTLINES OF ROMAN LAW.

tinctly recognized that he may be said to have a real
status in the Roman law. On account of the large num-
ber of rights which were recognized in the jus gentium,
and on account of the facility with which these rights
could be pursued before the praetor, the legal position of
foreigners came to be well-nigh equal to that of citizens.

2. The Pretorian Law of Possession.—The
growth of the Roman law may be still further seen
in the tendency to give a more adequate protection to
the rights of property—or rather to give to certain forms
of “ possession ” a right analogous to that of property.
According to the ancient jus ccvé/e there was strictly but
one form of ownership, which was called emphatically
Quiritarian ownership (dominium ex jure Quiritium).
This right could not be acquired except through the
forms of the civil law; it could not be exercised by a
person not possessing the commercium ; and it could not
be acquired in the provincial land. To prevent the in-
convenience or injustice which might arise from the strict
application of these rules of the civil law, the preetor
was wont in certain cases to protect a person in the fos-
session of property, even when all the legal conditions of
ownership had not been technically complied with. He
did not assume to create Quiritarian ownership where it
could not legally exist. He did, however, give a sanc-
tion to the right of possession, treating it as practically
equivalent to the right of property. This may be illus-
trated as follows :

(1) In the first place, it is evident that even a Roman
citizen could not acquire Quiritarian ownership in a
thing except through the technical forms of the civil law.
If, for instance, a res mancipi was delivered to a purchaser
without the process of mancipation, the seller would
still retain the legal ownership. Between the time of the
IMPROVEMENT OF THE ROMAN Law. 75

transfer and the time allowed by the civil law for the
possession to ripen by wsucapio into complete ownership,
the purchaser would have no legal protection against the
legal owner, or against any other person who should dis-
possess him of the object. This defect of the civil title
was, however, met by the pretor, who sanctioned the
equitable right of the purchaser under the name of fos-
sessto in bonis, or what has been called “ bonitarian ” own-
ership. The purchaser was now secured in his rights by
the possessory interdicts (caterdicta retinend@ possessionis
et recuperande@ possessionis). He was also protected against
any technical claims of the legal owner by a special rem-
edy (exceptio rei vendita et tradite). He was, moreover,
given a real action to recover the thing from any persons
whatever who wrongfully dispossessed him of it (actio in
rem Publiciana). In this way the practical right of own-
ership might be transferred without the cumbrous forms
of the jus cévile.

(2) Again, a foreigner could not hold property under
the protection of the ancient civil law. Although the
pretor could not grant to aliens Quiritarian ownership,
he could, by the issue of the possessory interdicts, pre-
vent any invasion of their just rights. Foreigners were
thus secured in the enjoyment of the practical rights of
ownership through the sanction which the pretor gave to
the right of possession. ‘

(3) Furthermore, the same general principle was ap-
plied to the enjoyment of provincial land. There is
reason to believe that in early times nearly all land was
subject to public dominion, having been acquired by
conquest. But the security which the state granted to its
citizens in the private occupation of land resulted, in the
process of time, in the gradual translation of the ager
publicus into ager privatus, so that before the close of the
%6 OUTLINES OF ROMAN LAW.

Republic all the land of Italy was capable of Quiritarian
ownership. But the provincial land—except where the
jus Italicum had been granted,—continued to be subject
to the public dominion. This land, though incapable of
Quiritarian ownership, could yet be occupied ; and its
possession was regarded as the proper object of commer-
cial exchange. Although one could not acquire in it the
right of Quiritarian ownership, he might yet be regarded
as its proper possessor, having a better right to its enjoy-
ment than any other person. By securing this enjoyment
against invasion, the right of possession in provincial land
came to be practically equivalent to the right of owner-
ship.

The various modes which the pretor adopted to secure
the undisturbed possession of property in cases not pro-
vided for by the old jus czvile, illustrate the growth of
equitable ownership in the Roman law. When the right
of possession became so protected as to secure to the
possessor not only the use and the fruits of the property,
but also the power of voluntary transfer ; and when this
right was still further made available against the world at
large, it fulfilled all the essential conditions of a proprie-
tary right. But since it was protected under sanctions
distinct from those of the jus civile, it had the character
of an equitable, rather than that of a strictly legal right.

3. Acquisition of Property ex Jure Gentium.
—Somewhat allied to the growth of the pretorian right of
possession was the introduction of new methods of ac-
quiring property, which were admitted and sanctioned
at first by the praetor peregrinus. By the comparison of
various customs and the adoption of those features
which were found to be common, the pretor was led to
recognize the validity of certain forms of acquisition
not burdened with the technicalities of the jus civile.
IMPROVEMENT OF THE ROMAN LAW. ae

These titles were hence said to be derived from the Jus
gentium, They comprised ¢raditio, occupatio, and accessio,

(1) The common element which characterized the
early forms of conveyance, wherever observed, was
the actual transfer of the possession accompanied by the
intention of passing the ownership. Even the old man-
cipatory process, though cloaked with symbolical forms,
was in reality a hand-transfer, The importance which
the preetor attached to possession as a right analogous to
that of ownership caused him to regard the actual trans-
fer of possession as a proper title to property, when it
was accompanied with an evident intention to transfer the
ownership. This mode of acquisition, called ¢raditio,
had been no doubt recognized at the time of the XII.
Tables as applicable to res nec mancipi ; but it was now
applied in general to the transference of bonitarian owner-
ship, and also to the transference of all proprietary rights
coming within the jurisdiction of the praetor peregrinus,
and also of the pretor urbanus so far as the latter accepted
the rules of the jus gentium.

(2) From the theory of possession arose also the idea
of “occupation” as a legal title. In case a thing was a
res nullius—that is, the property of no one—the right of
the first possessor could not be justly questioned by any
other person. Therefore, he who first brought such a
thing within his possession with the intention of making
it his own was regarded by the pretor as having a valid
title to its ownership.

(3) As by priority of possession a person obtained a
right to that which belonged to no one else, so a person
obtained a right to that which came into his possession
by acceding to, or growing out of, what already belonged
to himself. For instance, if one owned a piece of land,
he was entitled to its fruits; if he owned an animal, he
78 OUTLINES OF ROMAN LAW.

was entitled to its offspring. This form of acquisition,
though involved in the early customs of all peoples, was
adopted by the pretor as a distinct legal title under the
name of “accession.”

4. Changes in the Law of Succession.—The
changes which the pretor made in the law of succession
‘—both intestate and testamentary—are also worthy of
notice. The history of the Roman law of intestate suc-
cession reflects the progress which took place in the
spirit and constitution of the Roman family. We see the
natural principle of consanguinity gradually invading and
superseding the ancient principle of the fotestas. The
tendency of the pretor’s legislation was to recognize the
claims of the natural family as well as those of the civil
family. This was done, not by formally setting aside the
civil law, but by the introduction of a fiction, whereby
persons not technically entitled to the inheritance were
yet protected in the possession of the estate. This form
of succession was called ossessto bonorum, and sustained
the same relation to legal succession that bonitarian or
equitable ownership did to Quiritarian or legal owner-
ship.

(1) This may be illustrated, in the first place, by the
mode in which the rights of emancipated children were
secured. When a father died, the first right to the in-
heritance belonged to the children immediately under his
power (suz heredes). By the strict law those who had
been emancipated from the fofestas were deprived of the
inheritance, because by the act of emancipation they
were legally excluded from the family. But the natural
claims of these emancipated children came to be respected
by the praetor. As such children could not by any strict
interpretation of the civil law be considered as suz her-
edes, they were called by the praetor possessores bonorum :
IMPROVEMENT OF THE ROMAN LAW. 79

and their rights were protected by the pretorian inter-
dicts, This mode of evading the strictly legal effect of
emancipation was applied not only to the first order of
succession—that is, the sui Aeredes, but also to the second
order—that is, the agnates.

(2) A more important change in the law of succession
was the introduction of the cognaii, or the kindred by
blood, as the third order of succession in place of the
gentiles, This change was the result of two significant
facts; first, the decay of the gens asa civil institution ;
and secondly, the legal recognition of relationship traced
through a female line. The gevs, which formed such an
important element in early Roman society, became less
and less defined as its membership increased with each
successive generation, and as the relationship between its
members became more remote and difficult to be traced.
On the contrary, the growing disposition to set a value
upon blood-relationship caused the substitution of de-
scendants through a female line in place of the genéles.
The method by which this was accomplished was the
same as that adopted to protect the rights of emancipated
children and agnates—that is, by securing to the persons
admitted to the inheritance their rights of “‘ possession”
to the estate.

(3) Besides these changes in the law of intestate suc-
cession, the preetor brought about a radical change in the
form of the testament, which practically dispensed with
the cumbrous process of mancipation. The mancipatory
will of the civil law was a sale of the estate per @s e¢
Libram, in the presence of witnesses, to the familia emptor,
who received the instructions of the testator as to how
the estate should be disposed. The directions of the
testator were at first given orally; but afterward they
were permitted to be reduced to writing. At first it was
80 OUTLINES OF ROMAN LAW.

customary for the heir himself to act as familie emptor ;
but later it was allowable for some other person to act in
that place, especially if the testator wished to conceal his
intention from the heir, or if, from any cause, the heir
himself could not engage in the process. It is evident
that the essential part of thé old will was the symbolical
process, which gave a legal validity to the whole transac-
tion.

But the introduction of writing, whereby the direc-
tions of the testator were recorded, and the relief of the
heir from being a party to the transaction, rendered the
mancipatory part of the will a mere artificial form. The
pretor, consequently, declared a will valid, if the written
instructions of the testator were attested by the seals of
seven witnesses, even though the process of mancipation
was omitted. The number of witnesses corresponded to
the five witnesses of the old process together with the
familie emptor and the “bripens, or balance-holder. The
heir, in this case, did not receive the legal Aereditas in
the strict sense of the civil law; but he obtained the
possessio bonorum, which permitted him to enjoy practi-
cally what he would have enjoyed had he been techni-
cally constituted heir. The distinction, however, between
hereditas and possessio bonorum ceased after a time to be
of any special significance.

These few examples are sufficient to show the sweeping
reforms which took place in the Roman law of property
resulting from the simple idea of possession as an equi-
table right,—reforms which not only widened the concep-
tion of ownership itself, but also increased the facility of
alienation both during the lifetime of the owner and at
his death.

5. Growth of the Law Regarding Contracts.—
The increase of commercial business among the Romans
IMPROVEMENT OF THE ROMAN LAW. 81

themselves, the growing intercourse with foreign commu-
nities, and the necessity of more simple processes by
which to conduct exchanges, led to the improvement of
the law relating to contracts, We have seen that the
mancipatory process, or sale per @s et libram (otherwise
called the exwm), was the necessary condition which en-
tered into the contract of the ancient civil law. When
the zexum was used to legalize an obligation it comprised
three elements: first, the symbolical process per @s e¢
“ibram ; secondly, the transfer of the property or thing
which formed the basis of the obligation; and, thirdly,
the xwncupatto, or the formal words which fixed the terms
of the obligation. The first of these elements tended to
lose its significance with the general decay of legal sym-
bolism. From the other two elements were specialized
new forms of contracts which were accepted as valid and
enforced by the pretor.

(1) The contracts which evidently stood in the closest
historical relation to the ancient exum were those which
were said to be made verdis and Hterzs. In the “ verbal”
contract the process per @s et Libram was fictitiously
held to have been performed, and the formal words of the
nuncupatio were regarded as sufficient to fix the nature of
the obligation. The form of words was at first restricted
to a single interrogation with a corresponding answer,
viz.: spondes? spondeo. But as foreigners were admitted
to the privilege of making contracts, other forms were
allowed : ¢. g., promittes ? promitto ; dabis? dabo.

In a somewhat similar way the “literal” contract can
be traced to the zexum. In this case, the sum of money
was considered as having been weighed out,—as was sym-
bolically done in the process per @s et libram,—and the
fact was noted in the family register. This written regis-
ter was held to be a formal acknowledgment of the debt,
82 OUTLINES OF ROMAN LAW.

and determined the extent of the obligation in a manner
similar to the oral form of words used in the xuncupatio.
The historical relation of this contract to the symbolical
process of weighing out the bronze by means of the bal-
ance is evident from its original name, expensilatio (ex-
pendere, to weigh out), The sum itself which formed the
object of the contract was called pecunta expensa lata, or
simply expensum.

The origin of verbal and literal contracts here given
has been questioned by Mr. Hunter; but sufficient rea-
sons have been set forth by M. Ortolan and Sir Henry S.
Maine to justify the view presented.

(2) The way in which new contracts were developed
from the ancient exum may be illustrated still further
by those obligations which were made 7e—or by the trans-
fer of the thing which was the object of the contract.

In the old law an obligation might be created by the
conveyance of property through the forms of the zexum,
under the conditions indicated in the xuncupatio. With
the separation of the idea of possession from that of own-
ership, the simple possession of property might be trans-
ferred conditioned by special forms of agreement. The
different conditions under which such possession was ac-
cepted gave rise to different kinds of ‘‘real” contracts,
Tf, for example, a party accepted the possession of a thing
on condition of preserving it and of returning it on demand,
the contract was called depositum. If he received posses-
sion of a thing on condition that he might make use of it
while it was in his hands, it was called commodatum, Still
further, if together with the possession he was given the
right to consume the thing on condition of returning an
exact equivalent, the contract was called mutuum. Fin-
ally, if he received possession of a thing as a security for
debt on the condition of returning it when the debt was
paid, it was called pignus.
IMPROVEMENT OF THE ROMAN LAW. 83

In all these cases the contract was based upon the fact
of conveyance, conditioned by an accompanying agree-
ment; and hence it was genetically related to the nexum
with its accompanying nuncupatio.

(3) A more important advance was made in the law of
contract when, in certain cases, the technical forms were
dispensed with altogether, and the legal obligation was
made to depend simply upon the mutual consent of the
parties. This innovation was due to the influence of the
jus gentium, It grew out of the increasing demands of
trade, and was introduced by the pretors to facilitate
the business transactions between Romans and foreign-
ers. Here, as in other instances, the comparison which
the preetors made between the customs of different com-
munities, led to the pruning away of those features which
were technical and local, and to the preservation of those
elements which were common and universal. By this
process, not only was the law simplified in its forms, but
its essential principles were brought more clearly into
view. However various might be the forms of the con-
tract in different communities, the element of consent
seemed to be everywhere present. By recognizing the
mutual consent of the parties as the basis of a legal ob-
ligation, the praetor developed a new class of contracts,
said to be made consensu. These comprised the contract
of purchase and sale (emptio et venditio), of letting and
hiring (/ocatio et conductio), of partnership (socéefas), and
of agency (mandatum).

(4) The principle of consent was at first applied only
to the contracts above named. But the pretor was led
to apply the principle to other cases. Any convention,
involving the assent of both parties, followed by an execu-
tion or partial execution of the terms of the agreement by
one party, was held to be binding upon the other, To such
84 OUTLINES OF ROMAN LAW.

agreements were given the general name of “ innominate”
contracts, They were simply contracts in which the con-
sent was evident by a part performance—that is, an execu-
tion by one of the parties—and which could not be
referred to the classes already named. They were some-
times designated by the consideration which accompanied
the part performance as follows: do ut des ; do ut facias ;
facio ut des ; and facio ut facias.

(5) But the idea of consent was stil] further extended.
It came to be applied to those cases in which the consent
was implied in the very relation which the parties assumed
with reference to each other. For example, if a person
voluntarily and in good faith assumed the business of an
absent person, he had the same legal rights with reference
to that person as though he had been employed by a
special mandate. Such contracts in which the consent
was implied in the mutual relation of the parties were
called obligations guasi ex contractu,

This cursory review indicates the general manner in which
the various contracts of the Roman law were evolved from
the ancient zexum under the administration of the preetor.
The xexum itself was gradually transformed and de-
veloped into the verbal, literal, and real contracts. The
idea of consent which was implicitly contained in the
nuncupative part of the ~exum, was brought into prom-
inence by the preetor through the comparison of the cus-
toms of different communities, and was made the basis
of the consensual, innominate, and implied contracts.

6. Reform of the Law of Procedure.—The same
general influences which tended to enlarge the civil
capacity of persons, to improve the law of property, of
succession, and of contracts, also led to the modification
of the old “actions of the law.” These actions were the
product of a barbarous age, and were ill-suited to the ad-
IMPROVEMENT OF THE ROMAN LAW. 85

vanced condition of Roman society. By the rigid and
sacred forms with which they were invested, the adminis-
tration of justice had in early time been confined to the
aristocratic class. But the introduction of the plebeians
and foreigners into the state, and the disposition of the
pretor to secure the rights of all classes, brought into
discredit a procedure which was adapted only to the pro-
tection of Quiritarian rights.

(t) The first step which led to the decline of the Zegis
acttones was due to their publication. As long as the
knowledge of legal forms was restricted to the patrician
class, the people at large were helpless in their efforts to
obtain an impartial administration of justice. The credit
of divulging the judicial secret is given to Cneus Flav-
ius. From the knowledge which he obtained as scribe of
Appius Claudius, he was enabled to publish (B. C. 304)
a practical manual on the modes of procedure, giving
also a list of the des fast, or the days on which justice
could be administered. This work received the name of
jus civile Flavianum. -A more complete work was after-
ward published (about B. C. 200) by Sextus lius, called
the jus “Zlianum. It was also called the 77ifertita, be-
cause it contained three parts, viz.: first, the law of the
XII. Tables ; secondly, the interpretation of the same ;
and thirdly, the description of the degzs actiones.

(2) As the forms of procedure lost their mysterious and
sacerdotal character, they were laid open to public criti-
cism, which finally resulted in their overthrow. The
formal abolition of the Zeg7s actiones was effected by the
lex Atbutia and the leges Fulie. The date of the former
law is uncertain ; but it was probably passed about a
century before the fall of the Republic. There is also
some uncertainty attaching to the /eges Fulia—it being a
matter of doubt whether they were passed under Julius
86 OUTLINES OF ROMAN LAW.

Ceesar or under Augustus. However this may be, Gaius
distinctly says that by these laws the old “ actions” were
abolished.

(3) The Jegi’s actiones were superseded by the “formu-
lary system,” which dispensed with the symbolical pro-
cesses of the old procedure. The new system derived its
name from the formula, which was a legal document
drawn up by the pretor after hearing the claims of both
parties, containing instructions to the jwdex as to the
points at issue, and the mode of deciding the case accord-
ing to the facts which should be proved. The general
character of this process and its improvement upon the
old actions, will be evident from an analysis of the
formula, which consisted usually of three distinct
parts.

The demonstratio was the statement setting forth the
subject-matter of the controversy.

The zntentio contained the precise claim or demand
made by the plaintiff.

The adjudicatio contained the charge of the magistrate
directing the judex how to decide the case after investi-
gating the facts ; this was employed in suits in which the
partition of property was involved. The condemnatio
was substituted for the adjudicatio if the claim was made
for pecuniary damages,

The formula might also contain, in connection with the
intentio, the pleadings of the parties, or the counter-state-
ments made by the defendant and again by the plaintiff,
in ordér to ascertain the exact point at issue between the
contestants—thus taking the place of the oral altercation
already described as forming a part of the ancient actio
Sacraments,

(4) It is quite evident that the formulary system was,
in the words of Ortolan, “nothing but an ingenious
IMPROVEMENT OF THE ROMAN LAW. 87

method of constituting and directing a jury in civil
cases.” The separation of questions of Jew from ques-
tions of facz, though not clearly defined in this proceed-
ing, was yet involved in it. This distinction was un-
doubtedly an outgrowth from the ancient distinction be-
tween proceedings zz yure and in judicto. With the decay
of symbolism, the proceeding 7” jure was translated from
a sacred and technical ceremony into a series of direc-
tions founded upon the legal aspect of the case, and set-
ting forth the points at issue; while the proceeding im
judicio came to be an elaborate and careful investigation
of the facts in the case. In this way the formulary pro-
cedure, in its application to civil cases, brought into
prominence one of the most essential features of the jury
system.

(5) There was also a tendency to introduce a form of
jury trial into criminal cases. Although the Senate, with
the growth of its administrative powers, acquired criminal
jurisdiction in certain cases, the prosecution of crimes
was, in the early Republic, conducted for the most part
before the assembled people in the Comitia. With the
growth of the population and the increase of crimes, this
inconvenient method of conducting criminal trials was
superseded by the custom of making each particular case
subject to a special trial (guestio), which was conducted
before a select body of judices under the direction of a
questor, specially commissioned to preside in the given
case. The custom of creating a special commission to
try each case soon gave way to the organization of several
permanent tribunals (gucestiones perpetue), each having
jurisdiction over a certain class of crimes, Every crimi-
nal trial was thus conducted before a legal magistrate
and a body of judices, or, in modern phrase, before a
judge and jury. These two elements of the criminal
88 OUTLINES OF ROMAN LAW.

court were distinct in character and functions. It was
the duty of the magistrate, who was either a pretor or an
officer called judex questionis, to conduct the trial ac-
cording to the law which applied to the case. It was the
duty of the jurors, who were private citizens selected for
the occasion, to decide upon the guilt or innocence of
the accused according to the evidence.

The reforms of procedure were thus in harmony with
the changes which we have noticed as taking place
in the substantive portion of the law, and alike illustrate
the general progress of Roman jurisprudence during the
Republican period.

References.—Few writers have presented in a clear manner the
changes which actually took place in the substance of the Roman law
from the time of the XII. Tables to the establishment of the Empire.
A general survey of the law during this period is given in Ortolan,
“History of Roman Legislation,” Eng. trans., pp. 169-175, 269-275.
A more thorough review will be found in Hugo, ‘‘ Histoire de Droit
Romain,” I., §§ 187-273, and in Rivier, ‘‘ Introduction Historique,”
pp. 183-274. The actual extent of the improvement of the law can,
perhaps, be best discovered by gathering together the various legal
changes ascribed to the Roman praetor. These can be presumed to
belong to this period, since the influence of the preetor declined after
the establishment of the Empire. The student will find much assist-
ance by consulting the last chapters of Maine’s ** Ancient Law,” and
the annotated editions of Gaius and Justinian, ¢. g., Poste’s
“Gaius,” Sandars’ ‘‘Justinian,” and Ortolan, ‘‘Instituts de Jus-
tirien”; also the general histories of the Roman law, «. g., those
of Walter, Gravina, Hoffman, Rudorff, Esmarch, Vering; and special
historical works, such as Zimmern, ‘‘ Der Rém. Civilprocess,”’ and
Savigny, ‘‘ Das Recht des Besitzes.”
PERIOD III.

FROM THE ESTABLISHMENT OF THE EMPIRE TO
THE ACCESSION OF DIOCLETIAN.
CHAPTER I.
THE ESTABLISHMENT OF THE IMPERIAL SYSTEM.

WE come now to consider the character of the imperial
system, and the influences existing under the early Empire
that tended still further to improve the body of the Roman
law. It should be noticed that the transition of the
Roman State from the Republic to the Empire was not a
sudden and formal revolution. It was rather a gradual
transference of the real sovereign power from the Senate
and the people to the hands of a single person—while the
constitutional forms of the state remained substantially
unchanged. The power of the ancient zmpertum, which
in the regal period was well-nigh unlimited, and which
had retained some of its original features in the offices of
the consul, the dictator, and the proconsul, had grown
into extraordinary proportions in the hands of Marius,
Sulla, Pompey, and Cesar. By the victory at Pharsalia,
Julius Cesar became the true founder of the new mon-
archy. His authority was, in its essential nature, hardly
any thing more than a restoration of the old ¢mperium of
the kings, with its military, priestly, and judicial func-
tions. The true character of the Empire, as a unifying
influence upon legislation and jurisprudence, will be evi-
dent from the position which the Emperor occupied in
the State, and the relation which he assumed with refer-
ence to the surviving institutions of the Republic.

I. The Position of the Emperor.—The Empire,
which was, in fact, established by Julius Cesar, was
92 OUTLINES OF ROMAN LAW.

permanently organized under his true successor, Octa-
vianus, or Augustus. The prudence and sagacity of
this prince were shown in his conservative policy
of heeding the popular attachment to existing forms,
and of refraining from the open assumption of power
which had provoked the assassination of Julius. His
purpose was to reconcile the old Republican preju-
dices to the spirit of the new monarchy, and thus to
organize the whole administration upon principles which
would draw to his support the adherents of all parties.
He was, as Gibbon says, “sensible that mankind is gov-
erned by names ; nor was he deceived in his expectation
that the Senate and the people would submit to slavery,
provided that they were respectfully assured that they
were enjoying their ancient liberty.” The irresponsible
character of the government was thus concealed by the
preservation of Republican forms.

The apparent complexity which marks the early Empire
grows out of the fact that it was real autocracy co-exist-
ing with those departments of state in which the various
functions of public authority had hitherto been kept dis-
tinct. While, in form, the Empire preserved the differ-
entiated branches of a legal government, as in the Re-
public ; in fact, it returned to the original idea of a
united magistracy, as in the Kingdom.

The functions of administrative power, which from the
fall of the ancient kingdom had been parcelled out to
new magistrates, were now re-united in the hands of the
Emperor. By being made the honorary recipient of the
official titles of state, Augustus gradually appropriated all
real administrative power. Contrary to the usual custom
of resigning the z#perium on his return to the city, he was
induced to retain this power, which involved the com-
mand of the army and of those provinces that required
THE IMPERIAL SYSTEM. 93

the presence of the army. The title of Censor was con-
ferred upon him, by which he was enabled to “ purge”
the Senate. At the suggestion of Agrippa he was ap-
pointed Princeps Senatus, so that he could direct the de-
liberations of that body. There were showered upon him
in rapid succession the titles of Perpetual Tribune, which
identified him with the interests of the people ; of Per-
petual Consul, which made him supreme magistrate in the
capital ; of Perpetual Censor, which confirmed his pre-
vious reconstruction of the Senate. After the death of
Lepidus he consented to assume the office of Pontifex
Maximus, which brought the Roman religion under his
immediate supervision. And, finally, the title of Pater
Patrig was a recognition of the paternal character of the
government under his reign.

The imperial authority thus came to be a consolidation
of all the prerogatives hitherto distributed among the
several Republican offices.

2. The Relation of the Senate to the Em-
peror.—The spirit of the monarchy is illustrated by the
new relations which the various branches of the govern-
ment sustained to the Emperor, Although still recog-
nized as formal elements of the constitution, they lost
their independent character, by being reduced to the will
of the prince. In the flourishing period of the Republic,
the Senate had been the most dignified and important
branch of the government. With the rise, however, of
the democratic leaders during the civil wars it had been
gradually deprived of its ancient authority and distinction.
Augustus tried to gain the support of the aristocracy by
restoring to this body some of its ancient dignity. He ac-
cordingly raised the property qualification of its members,
and reduced their number to the old standard of six hun-
dred. He also flattered the Senate by ostensibly sharing

A
94. OUTLINES OF ROMAN LAW.

with it the administration of the government, assigning
to its management a certain number of the provinces and
a certain portion of the revenue.

Although the emperor thus gave to this body a sort of
new dignity, and although he formally derived from it
his official power, he was in no respect controlled by its
action. On the contrary, the senators, being dependent
for their place upon the imperial censorship, were not
disposed to interfere with the execution of his designs ;
and instead of assuming their right as an independent
branch of the government, they became the submissive
instruments of his will.

3. The Position of the Comitia.—The tendency
of the monarchy was also to infringe as much as possible
upon the rights of the people, without immediately des-
troying the ancient forms of legislation. The people had
hitherto been recognized as the ultimate source of public
authority. Assembled in the Comitia Centuriata, they
had confirmed or rejected the proposals of the consul ;
and in the Zriéuta they had passed measures which had
an authority over the whole nation. The real position
which they occupied in the new government is evident
from the rights which they still retained, and the priv-
ileges which they lost.

(1) The rights which they still retained were: the
formal confirmation of the laws submitted to them by the
Emperor ; and the election of the old Republican officers,
who still held a nominal position in the state.

(2) The privileges which they lost were : first, the right
of initiating legislation, which had passed to the emperor
with the tribunitian and consular titles ; secondly, their
legislative independence, by being obliged to submit their
most important acts to the approval of the Senate, and by
the growing custom which the Emperor acquired of issuing
THE IMPERIAL SYSTEM. 95

edicts with full legislative authority ; and, thirdly, the
judicial authority which the Centuriata had previously
exercised as the highest tribunal in criminal cases, which
right was superseded by the “ prerogative of pardon”
assumed by the emperor. Under the successors of Au-
gustus other rights—such as that of formally ratifying
the imperial laws—were also gradually taken away from
the people.

4. The New Imperial Officers.—aAll substantial
power necessary for the administration of the government
was, as we have seen, vested in the hands of the Em-
peror. But this power was concealed, to a certain extent,
by the preservation of the principal offices of the com-
monwealth. The consuls, pretors, queestors, sdiles, and
tribunes continued to be elected as before, although pos-
sessing only asemblance of their former authority. There
were, however, appointed certain new officers, who actu-
ally assisted the emperor in the administration. Of
these the most important were the following :

(1) The Preefect of the City (Jrefectus urbi) was en-
trusted with all power necessary to preserve order within
the city—which was organized for this purpose into four-
teen regions, each with its own subordinate minister.
This preefect had at first a certain civil jurisdiction in
cases involving domestic relations, which power was
gradually extended until it absorbed the functions of
the praetor urbanus.

(2) The Pretorian Prefect (prefectus pretorio) was a
new military officer, who commanded the body-guard of
the emperor. This office increased in importance until
it became second only to that of the prince.

(3) The Prefect of Provisions ( prefectus annone) had
the supervision of the corn market, and the supply of
largesses to indigent citizens. This office had existed
96 OUTLINES OF ROMAN LAW.

temporarily under the Republic, but was made permanent
by Augustus.

Besides these three officers there were also created the
Prefect of the Night Guards (prafectus vigilum),
governors of the imperial provinces (/egati Cesaris) and
a few others of minor importance. All these offices were
entirely under the control of the Emperor, and were held
by those persons who were devoted to his interests.

5. The Judicial System of the Empire.—By the
constitutional limitations which had been imposed upon
the imperium during the growth of the Republic, the
judicial power had been taken away from the chief Execu-
tive and entrusted either to the pretor and the udices in
civil cases, or to the Centuriata and the gucstiones in
criminal cases.’ But with the establishment of the im-
perial power, the regal idea of jurisdiction was practically
restored; and the Emperor became the supreme judge
in the state. The adjustment of these two contradictory
ideas of judicial authority—the one republican and the
other autocratic—was brought about by subjecting the
judicial system of the Republic to the appellate juris-
diction of the Emperor. Ordinary cases were conducted
in the same manner as heretofore, the Emperor simply
assuming the right to revise the judicial sentence. The
custom of revising cases on appeal was soon followed by
the practice of giving instructions to the magistrates pre-
vious to their decisions, whenever this seemed advisable ;
and also, in exceptional cases, by the original institution
ot proceedings before the Emperor himself. In the latter
case, the Emperor was assisted by a judicial council called
the auditorium.

Thus, in accordance with the general spirit of the
period, the old judicial methods were formally preserved,
but made subject to certain modifications to meet the
demands of an autocratic government.
THE IMPERIAL SYSTEM. 97
References.—The facts relating to the establishment of the Em-
pire may be found in the general histories of Rome. The influences
leading to the imperial revolution are treated in the last chapter of
Mommsen’s ‘‘ History,” in Long’s ‘‘ Decline of the Roman Republic,”
and Seeley’s ‘‘ Essays on Roman Imperialism.” A general survey of
the early imperial government is given in the first three chapters of
Gibbon’s “‘ Decline and Fall,” and in Merivale’s ‘‘ Romans under the
Empire,” vol. III., chs. 31, 32. Other references are the following :
Deurer, ‘‘ Geschichte,” §§ 69-77 ; Warnkénig, ‘‘ Vorschule,” S. 100—
108 ; Ortolan, ‘‘ History,” Eng. ed., §§ 58-64; Rivier, ‘‘ Introduc-
tion Historique,” pp. 293-301 ; Walter, ‘‘ Geschichte,” I., §§ 271-
290 ; Mommsen, ‘‘ Rémisches Staatsrecht,” Zweiter Band, II. Ab-
theilung ; Pigeonneau, ‘‘ Transformation de la République romaine
en monarchie,” Paris, 1874.
CHAPTER II.

THE SOURCES OF LEGISLATION UNDER THE EARLY
EMPIRE,

WHATEVER opinion may be held regarding the influence
of imperialism upon the political liberties of Rome, it can-
not be denied that the most flourishing period in the history
of the Roman civil law is that which followed the establish-
ment of the Empire. The overthrow of the aristocracy of
the later Republic, and the reduction of all citizens to a
plane of practical equality under a single supreme head,
though exposing the Roman state to the dangers of autoc-
racy, tended in great measure to destroy class distinc-
tions and to give breadth and uniformity to the adminis-
tration of civil justice. Legislation, moreover, whatever
might be its formal sources, was ultimately derived from
the will of the prince, and hence acquired more than
ever before the character of unity and coherence. Be-
fore looking into the philosophical influences which
affected the fundamental ideas and the inner spirit of
Roman jurisprudence, let us first consider how the various
sources of legislation were reduced to a formal unity by
being brought under the influence of the imperial will.

1. The Enactments of the People.—The ancient
sovereignty of the Roman people could not be entirely
ignored even after the establishment of the principate.
But it was only in the early part of the period which
we are now considering, that the /eges and the plebiscita
possessed any legal significance; for they were soon

98
SOURCES OF LEGISLATION. 99

superseded by other forms of legislation. The character
of these enactments, so far as they possessed the force of
law at all, may be seen from the authority held by
the different assemblies at this time.

The Comitia Curiata still existed, although possessing
only a shadow of its ancient power. It continued to
pass the ex curiata de imperio, by which in ancient times
it had conferred the magisterial power upon the kings and
the consuls. This law, under the name of /ex regia, the
Curtata still enacted after the accession of each Emperor,
as a perfunctory recognition of his authority.

The Centuriata and Tributa also continued to meet,
and the early Emperors, especially Augustus, allowed
them to confirm the imperial acts. To show the waning
influence of the people in legislation mention may be
made of the chief laws passed by them under Augustus
and his successors. The following are referred to the
reign of Augustus: the x $ulia Majestatis, relating to
the crime of treason ; the lex Alia Sentia, to restrain the
manumission of slaves; the /ex Furia, to limit the
number of slaves manumitted by will; the lex Sunita
Velleta, protecting the rights of posthumous heirs ; and
the lex Fulia et Papia Poppea, discouraging celibacy and
regulating other domestic matters. During the reign of
Tiberius was passed the lex SYunia Norbana, conferring
the Latinitas upon a certain class of manumitted slaves.
Under Caligula was passed the ex Mamitia, with refer-
ence to colonies ; and under Claudius, the ex Claudia,
abolishing the agnatic guardianship over women.
These enactments, which were merely ratifications of
proposals coming from the Emperor, thus became less
and less in number after the time of Augustus. And
from the time of Claudius, even the formal recognition
of the popular will in legislation came to be disregarded,
100 OUTLINES OF ROMAN LAW.

as the princes found more convenient means to give
to their acts the force of law.

2. The Decrees of the Senate.—As the legisla-
tion of the people declined, that: of the Senate increased
in importance. The Senate had, even in the later
periods of the Republic, exercised a kind of legislative
power ; and Cicero includes the sexatus-consulta as a part
of the civil law in his time. But before the accession of
Augustus the decrees of the Senate pertained almost en-
tirely to matters of administration. After that time they
related also to subjects of private law—the greater part
of them referring to the status of persons and the
rights of inheritance. From the time of Tiberius to that
of Hadrian, the senatus-consulta formed the most im-
portant part of the imperial legislation. But even during
this time they derived their spirit from the policy of the
Emperors. ‘Tacitus, it is true, mentions a few cases in
which the senators ventured to express their own ideas,
and attempted to revive their decaying power. But the
very idea of independence gradually died out, and the
senate met merely to ratify the proposals of the Emperor,
which under the name of orationes were submitted to
it. In some cases, the orato contained all the details of
the proposed law, when the senators were expected to
confirm it without change. In other cases, the general
outlines of the law were presented to them, when they
were ‘allowed to supply the details. After the reign
of Hadrian, the senatus-consulta decreased in importance ;
and under Septimius Severus and Caracalla they entirely
disappeared.

3. The Edict of the Przetor.—In accordance with
the general spirit of the early Empire the preetors con-
tinued, formally at least, to publish their edicts on enterin g
upon their term of office. But this practice lost its ancient
SOURCES OF LEGISLATION. x

significance as the Emperors assumed the power to con®

trol the various acts of legislation. It should, however,
be noticed that the jus honorarium, or the edictal law,
containing the great body of principles hitherto de-
veloped by the preetors, lost none of its ancient authority.
On the contrary, it became the object of assiduous
study, and efforts were made to put it into a permanent
and codified form. The mode in which this law had
grown up gave to it a lack of coherence and uniformity.
We therefore find various attempts to reduce it to some
kind of system. This work had been begun by Ofilius,
the friend of Julius Cesar. Under the Empire still
greater attention was paid to its study and arrangement.
During the reign of Augustus, Labeo wrote an extensive
treatise, called Ad Edictum Pretoris Peregrini. But the
most important and successful attempt to systematize
the pretorian law was made by Salvius Julianus during
the reign of Hadrian. This compilation was called
the Edictum Perpetuum—a name which had hitherto been
applied to the pretor’s annual edict.

On account of the fact that only fragments of this
work—the Perpetual Edict of Salvius Julianus—have
come down to us, there has been much controversy re-
garding its authority, the extent of its subject-matter, and
its effect upon the subsequent edictal power of the praetor.
With reference to this discussion the following conclu-
sions may be given:

(1) Regarding the first question, it is now quite definitely
settled that the Perpetual Edict was not a mere private
collection made for a scientific purpose ; but that it was
made under the direction of the emperor, was confirmed
by the Senate (A. D. 131), and hence possessed all the
authority of a proper code.

(2) Regarding the subject-matter of the Edict, the
102 OUTLINES OF ROMAN LAW.

most trustworthy view seems to be that it was made up
of the edicts of the pretor urbanus, the praetor peregrinus,
and the provincial governors. Julian seems to have col-
lected together the whole edictal law, to have rejected
what was obsolete, and to have reduced the rest to
a form best suited to the needs of judicial administra-
tion.

(3) In regard to the influence of the publication of
this code upon the edictal power of the pretor, it is diffi-
cult to speak with certainty. But it is quite evident that
the promulgation of the pretorian law in a codified form
would do away with the necessity of each pretor’s de-
claring in an edict of his own the principles that he ex-
pected to follow. It would also restrain the independent
legislative power of the praetor by binding him to a fixed
code, Whether or not the pretor ceased to issue edicts,
it is quite certain that from the time of Hadrian, the Ro-
man law received no important additions from this
source.

4. The Responses of the Jurists.—Not only did
the old forms of legislation yield to the imperializing ten-
dency, but the scientific interpretation of the law was
also brought into relation to the Emperor. The opinions
of the jurists now obtained a positive authority which
they had not before possessed. The relation of the jur-
ists to the imperial legislation will be seen by consider-
ing first, their character as a professional class, and sec-
ondly, the authority which their opinions acquired under
the Empire.

(t) The origin of the jurisconsults as a professional
class may be traced to very early times. When, by the
publication of the jus Flavianum and the jus Elianum, the
knowledge of the old civil law ceased to be the exclusive
possession of the pontiffs, certain persons assumed the
SOURCES OF LEGISLATION. 103

right to expound the meaning of the law and to give ad-
vice to any one that might desire it. It is said that Cor-
uncanius began publicly to give information on the law
*hree centuries before Christ. The general lack of legal
knowledge on the part of the preetors, judices, and even
of advocates, led to the continuance of this practice. A
class of professional jurists thus sprang up, who made
the law a distinct branch of scientific study, and who
gave legal advice whenever it was desired. Under the
imperial system the jurisconsults increased in number
and importance, and a great impulse was given to the
production of legal literature. The adoption of various
methods of interpretation, or at least the acceptance of
different views upon mooted questions of law, led to the
growth of different schools. The most important of
these were the schools of Labeo and Capito—or, more
properly, the Proculeians and Sabinians. From the time
of Hadrian to that of Alexander Severus flourished the
most distinguished jurists of the Empire, pre-eminent
among whom were Gaius, Papinianus, Paulus, Ulpianus,
and Modestinus.

(2) In respect to the authority of the jurists, it should
be noticed that before the time of Augustus their opin-
ions and writings were entirely of a private character and
had in themselves no binding force. Their discussions no
doubt led to a clearer statement of legal principles, and
thus exercised a beneficial influence upon the growth of
jurisprudence. But under the Empire, a wholly new
character was given to the juristic writings. Augustus,
desiring to bring the jurists into harmonious relations
with the new government and to make their opinions ap-
pear as a kind of emanation from the imperial will, gave
to certain of them the legal right of giving opinions (jus
respondendi), which opinions were to have the full force
104 OUTLINES OF ROMAN LAW.

of law. The jurists upon whom this right was not con-
ferred were not deprived of the right to express their pri-
vate views as heretofore ; but the views of such persons
would have little importance in comparison with the
opinions of the privileged class. The jus respondendi
thus gave to a body of scientific persons the right to de-
clare the law, and such opinions were to be followed by
the judicial magistrate. The fact that these opinions were
sometimes found to be conflicting led Hadrian to issue a
rescript to the effect that the opinions of the privileged
jurists, when unanimous, must always be accepted as law ;
but when they were not unanimous, the magistrate might
follow the one which he thought best suited to the case in
hand.

The opinions of the privileged jurists (vesponsa pru-
dentum) became a very important source of law during
the early imperial period ; and, by the scientific influence
which was thus brought to bear upon legislation, they
contributed, as we shall hereafter see, more than all other
means to give breadth and consistency to the Roman
law.

5. The Constitutions of the Emperors.—From
the time of Augustus, the emperor had exercised an indi-
rect influence upon all the existing forms of legislation.
But his legislative power acquired a more direct mode of
expression with the growing practice of issuing edicts, or
constitutions (placita, or constitutiones principum). The
exercise of direct legislative authority on the part of the
Emperor was not an open usurpation; it was founded
upon well-established precedents. The “initiative” in
legislation, which he exercised from the first with refer-
ence to the comitia and the Senate, he acquired naturally
by being invested with the tribunitian and consular pow-
ers. The right to issue edicts was, in a similar way, de-
SOURCES OF LEGISLATION. 105

rived from the pretorian power with which he was invested.
Augustus, it is true, was cautious in the exercise of the
edictal power ; and was generally contented simply to guide
the legislation of the Senate and the people. But the exer-
cise of the “ initiative’ over a submissive body and the
consciousness of possessing the functions of the preetor, led
the successors of Augustus—especially from the time of
Hadrian—to substitute the direct for the indirect mode of
enacting laws. Ulpian has described the legislative power
which the Emperor possessed in his timie in the well-
known formula—guod principi placutt, legis habet vigorem.

Every formal expression of the imperial will was called
a “constitution,” which in its widest sense might apply
to any matter of public or private law,—of legislation,
administration, or jurisdiction. In view of the great
variety of imperial constitutions, they may be conven-
iently classed as edicts, decrees, rescripts, mandates, and
privileges.

(1) Edicts (edicta, edictales leges, generales leges) were
general legislative enactments issued by the emperor as
chief magistrate of the state. They were universal in
their application—that is, binding upon all the subjects
of the Empire.

(2) Decrees (decreta) were judicial decisions in cases
brought before the emperor, either in the first instance or
upon appeal. They were called definitive when they con-
tained a complete and final judgment upon the whole
case ; and ¢nterlocutory when an incidental point of law
was decided in the intermediate stage of a judicial pro-
cess. The decrees of the emperor, like the judgments of
the preetors, had reference primarily to the case in hand.
But as they might be looked upon as precedents, they
had practically a general application.

(3) Rescripts (rescriféa) were written answers to ques-
tions proposed to the prince either by private persons or
106 OUTLINES OF ROMAN LAW.

public officers. These were sometimes called epistole.
If the answer was directed to a corporate body or com-
munity it was called a sanctto pragmatica. The rescript,
while primarily having only a particular application,
might, from the nature of the questions submitted, have
a general significance.

(4) Mandates (mandata) were official instructions di-
rected by the emperor to public functionaries, whether
governors of provinces or other officers.

(5) Privileges (privilegia) were special acts having ref-
erence to a particular person or case. They might be
beneficial or unfavorable, according to the will of the
empercr. From their very nature they could not be used
as precedents, since, as Gaius says, the application of
such acts could not extend beyond the particular person
affected.

The imperial constitutions, under these various forms,
comprised a large part of Roman legislation after the
time of Hadrian. These acts were not necessarily of an
arbitrary and despotic character, issued simply to carry
out the personal interests of the emperor. They were
frequently drawn up by the emperor’s legal advisers, who
were generally professional jurists, and who took advan-
tage of this mode of legislation to bring the law into har-
mony with their conceptions of justice.

References.—The different sources of legislation under the early
empire will be found described in the following works: Sandars’
“Justinian,” Intr., pp. 15-18, 81-84 ; Kaufmann’s ‘‘ Mackeldey,”
pp. 27-36 ; Taylor’s ‘‘ Civil Law,” pp. 177-235 ; Ortolan, ‘‘ Hist.
of Roman Legislation,” Eng. trans., §§ 65-68 ; Demangeat, ‘‘ Droit
Romain,” I., pp. 79-104 ; Zimmern, ‘‘ Geschichte,” §§ 20-25, 33-36 ;
Warnkonig, ‘‘ Vorschule,” S, 109-115 ; Hugo, “ Ilistoire,” trad. par
Jourdan, II., p. 1-95; Deurer, ‘‘ Geschichte und Institutionen,”
8§ 78-81 ; Marezoll, ‘‘ Lehrbuch,” §§ 23-26; Walter, ‘‘ Geschichte
des Rém. Rechts,” TI., §3 431-442 ; see also Walker (B.), ‘‘ The
Fragments of the Perpetual Edict of Salvius Julianus.”
CHAPTER III.
THE STOIC PHILOSOPHY AND THE LATER JUS GENTIUM.

THE unity which the Roman law acquired by being
brought under the authority of the Emperor as supreme
law-giver would have been merely formal and artificial
had it not been supplemented by some more fundamental
and rational principle of growth. A more important uni-
fying influence than that due to political centralization
was derived from the philosophical spirit that pervaded
the legal thought of the time. It was this scientific spirit
that distinguished the law of the Empire from that of
the Republic.

During the Republican period, the law had ad-
vanced, for the most part, through empirical methods,
Legal reforms had been brought about through the agency
of the pretor, and in the actual process of administra-
tion. The rules of law had not been deduced from
general principles of justice ; but had been gathered
together from local customs, or constructed by the exten-
sion of existing law to new cases as they might happen to
arise. The preetorian law, like the old us civile, had grown
up through procedure. Under the Empire, however, the
belief that law was founded upon ethics, that the spe-
cific rights and duties of men were derived from certain
ultimate and universal principles of natural justice, fur-
nished a new impulse and gave a new direction to legal
development.

The effort to found civil law upon natural equity

107
108 OUTLINES OF ROMAN LAW.

gave to Roman jurisprudence a breadth and liberality
that it had not possessed under the Republic; and,
in fact, resulted in the development of a body of uni-
versal legal principles applicable te all times and nations.
The influences which thus furnished a scientific impulse
to the legal reforms of the early Empire were derived, in
great part, from the philosophy of the Greeks—especially
that of the Stoics.

1. The Stoic Philosophy at Rome.—Since the
conquest of Greece, this philosophy had been received
with favor by the Romans, and was especially cultivated
by the more intelligent classes. Even under the later Re-
public it had been a formidable rival of the schools of
Epicurus and Carneades. Cicero, though attached to
the speculative doctrines of the New Academy, accepted
with little change the ethical principles of the Stoics.
After the establishment of the Empire, this philosophy
attained a still greater influence; and although it was
proscribed by a few despotic princes, it was the object of
favorable regard on the part of nearly all the early em-
perors, Athenodorus was highly esteemed and often
consulted by Augustus. Seneca was a Stoic as well as a
statesman, and as long as he was the adviser of Nero, the
imperial government was mild and judicious. Under
Antoninus Pius, schools of Stoicism were supported at
public expense. In the person of Marcus Aurelius, Stoi-
cism ascended the throne of the Empire; and from the
time of the Antonines to that of Alexander Severus this
philosophy continued to be taught at Athens and Alex-
andria, the two great intellectual centres of the Roman
world.

The Stoic philosophy thus became an important ele-
ment in Roman education and culture, and received
the almost uninterrupted support of the state during the
THE STOIC PHILOSOPHY. 109

period in which the influence of the Roman jurisconsults
was most marked.

2. The Stoic Theory of Natural Law.—The
prevalence of a philosophy so vigorous and elevating as
that of Stoicism could not fail to affect the fundamental
conceptions and the habits of thought of all those per-
sons who were brought under its influence. It will not
be difficult for us to find in this system certain doctrines,
which, however vague and speculative they may appear
in the writings of Greek theorists, were yet capable of a
practical application in the hands of Roman _ jurists,
in solving questions regarding the rights and duties of
men in civil society.

The point of contact between the Stoic philosophy and
Roman jurisprudence is to be found in the theory of the
Law of Nature—which the Stoics had deduced from
their conception of the universe, and which the Roman
jurists employed, under the name jus naturale, to indicate
the natural or ethical foundation upon which civil law
must rest. With the Stoics, the universe was considered
as imbued with an all-pervading soul or power, which was
looked upon not only as a dynamical force producing
motion, but as a rational principle producing order and
perfection. This rational principle is a constituent element
of all being. It is revealed not only in external nature as
a law of the physical world, but also in the original nature
of all men as a guide for human conduct. The great
duty of man is, hence, to discover and conform to the
highest law of reason, as this law is set forth in the essen-
tial constitution of his nature. “To live in harmony
with nature” was thus the highest precept of the Stoic
philosophy, and the ultimate principle which must guide
men in all the relations of life. By his original constitu-
tion, man is a participant of the Universal Reason, and
IIo OUTLINES OF ROMAN LAW.

by the exercise of his rational faculties he can discover
the law of nature, so far as it is necessary to control his
own conduct. When looked at from a moral point of
view, the law of nature is thus the highest rule of human
conduct, and the ultimate standard by which all human
actions, whether individual, social, or civil, must be
judged.

3. Acceptance of this Theory by the Jurists.—
This conception of natural law worked its way into
Roman thought, and was used to explain not only the
foundation of individual and social morality, but also the
basis of legal rights and duties. From the time of Cicero
to that of Alexander Severus, the legal literature of Rome
is pervaded with the idea that law has a more ultimate
foundation than custom or convention—that it is founded
in the very nature of things. The first important attempt
made by the Roman writers to ground law upon nature
we find in the “ Laws” of Cicero, where the fundamental
proposition is laid down “that man is born for justice,
and that law and equity are not a mere establishment of
opinion, but an institution of nature” (“ De Legg.,” Bk.
I.). The specific application of this principle in determin-
ing legal rights and duties was reserved for the jurists of
the Empire.

The influence of Stoicism upon the Roman lawyers is
not to be judged—as was attempted by Cujacius and his
followers—by any servile repetition of particular moral
precepts. It is to be judged rather by the prevalent be-
lief in natural law as the ethical basis of civil law ; by the
general recognition of the supremacy of reason as a guide
in civil action ; and by the common method which came
to be employed of interpreting legal duties in the light of
the higher principles of natural equity. It is sometimes
claimed that the idea of natural law exercised very little
THE STOIC PHILOSOPHY. II!

influence upon these writers, on the ground that the
term itself is rarely employed in their works ; and that,
when it is employed, it is not used in the sense of the
Stoics. But as a matter of fact, not only is the term “nat-
ural law” specifically defined by the institutional writers
in an ethical sense, but the method of reasoning which is
used in their interpretation of the law is founded upon
the theory that the civil law must be brought into har-
mony with natural justice—with what is right in the
nature of things.

It is true that Ulpian gave a peculiar definition to
natural law—as that which nature teaches all animals—
which conception exercised little or no influence upon
the legal thought of Rome. But even Ulpian in other
forms of expression recognized, like his contemporaries,
an ethical standard of law; for example, when he defines
justice as “‘constans et perpetua voluntas jus suum
cuique tribuendi”; when he lays down as the funda-
mental precepts of the law, “ honeste vivere, alterum non
ledere, suum cuique tribuere’”’; when he defines juris-
prudence as “‘ justi atque injusti scientia”’; and when, in
speaking of the duties of the jurists, he says: “ Justitiam
namque colimus, et boni et equi notitiam profitemur ;
zequum ab iniquo separantes, licitum ab illicito discer-
nentes” (D., 1, 1, 1). But to cite from other jurists :
Paulus refers definitely to the law of nature as a moral
principle, when, in distinguishing the various meanings
attached to the word jus, he says: ‘Id quod semper
zequum et bonum est, jus dicitur, ut est jus naturale” (D.,
1,1,11). The belief that all law is limited and determined
by nature is expressly declared by Celsus in the words:
“Quze rerum natura prohibentur, nulla lege confirmata
sunt” (D., 50, 17, 188).

These few illustrations are sufficient, for the present, to
112 OUTLINES OF ROMAN LAW.

show that the jurists of the Empire possessed certain
philosophical conceptions concerning the moral basis of
law which were closely related to the ethical system of
the Stoics. The influence of these conceptions, and the
method of reasoning which followed their adoption, will
be more clearly understood as we proceed.

4. New Meaning Attached to Jus Gentium.—
The influence of new ideas in changing the significance
of existing phrases is seen in the way in which the term
jus gentium came to be turned from its old meaning and
brought into harmony with the new theory of natural
law. This term was originally applied, as we have seen,
to the body of customs common to Rome and the states
subject to Roman dominion. As the Roman conquests
came to be looked upon as universal, the jus gentium was
considered to be the law common to all nations. But
still there was attached to the term no philosophical
meaning. It was simply the sum of the ingredients which
were found in the actual laws of existing communities.
When viewed, however, in the light of the “natural law,”
the yus gentium acquired a new significance. The com-
mon laws collected by the pretors were now believed to
be remains of that primitive law which the Universal
Reason had instituted for all men. The fact that they
were common seemed to prove that they were derived
from universal principles inherent in the very nature of
man. The tendency thus showed itself among the more
philosophical jurists to identify the jus gentium, in its
highest sense, with the jus naturale. Gaius says that
“the law which natural reason has constituted for all
men obtains equally among all nations, and is called jus
gentium” (Gaius, Inst., 1, 1).

This higher interpretation of the jus gentium served to
explain the practical superiority of the pretorian law over
THE STOIC PHILOSOPHY. 113

the ancient jus civile. It was now easy to see that the pre-
tors in their efforts to develop a universal law had been
unconsciously reaching after the perfect code of nature.
But with the highest respect for the edictal law so far as
it had been developed, it was yet believed that the per-
fect law of reason could best be discovered not through
the empirical method of the pretors, but through the
rational interpretation of the jurists; and these writers,
when expounding the Edict, felt called upon to construe
it as far as possible in accordance with the highest dic-
tates of reason,

The gradual change in the meaning of the term jus
gentium also explains the apparent ambiguity which is
sometimes seen in its use during this period. For ex-
ample, Florentinus says that “slavery is an institution of
the jus gentium, by which one becomes subject to another
contrary to nature” (D., 1, 5,4, 1). This could hardly
be true in the sense in which Gaius used the term, as
being the law which is in conformity to natural reason.
It is evident that while the old meaning of the word has
survived in the former author, it has acquired its higher
philosophical significance in the latter. Slavery was con-
sistent with the older idea of jus gentium as a body of
common usages, but it was inconsistent with the later
idea of jus gentium as a body of principles founded upon
the law of nature.

5. The Later Jus Gentium Viewed as Equity.
—As the jus gentium received a higher significance when
seen in the light of the theory of natural law, so too the
conception of Equity passed from that view in which it
refers simply to the broader and more liberal portion of
the positive law, to that view in which it is looked upon as
a rational standard to which all positive law must con-
form.
114 OUTLINES OF ROMAN LAW.

The old jus gentium by its incorporation into the
pretor’s edict, had become a part of the positive law of
Rome. It possessed as definite a sanction as the jus
civile, and was in the same way enforced by the public
authority. As it was distinguished from the special and
technical features of the jus civile by containing broader
and more liberal rules, it was sometimes called jus
aquabile, jus eguum, or eguitas. Equity, in its earlier
sense, thus referred to the more general and impartial
rules which the positive law had derived from the admin-
istration of the pretor peregrinus, But with the growth
of more philosophical ideas regarding the jus gentium, it
was believed that the superiority of the equitable portion
of the positive law was due to its approximation to the
perfect law of reason. That is, equity, in its highest
sense, is identical with natural reason and justice. In
this way the postive equity of the preetors, which had been
derived from the observation of ‘general customs, and had
become actually incorporated in the existing body of law,
was supplemented by the natural equity of the jurists,
which was based upon the dictates of reason and regarded
as a moral standard by which the.character of the exist-
ing law must be judged, and to which it must as far as
possible be made to conform.

It was by means of this higher conception of equity,
which resulted from the identification of the jus gentium
with the jus naturale—that the alliance between law and
philosophy was made real and efficient. As the ethical
system of the Stoics thus acquired a legal significance in
the writings of the jurists, there was erected a moral
standard of justice to which every expounder of the law
felt obliged to appeal, and by a comparison with which
the defects of the existing law were exposed and cor-
rected. Paulus says: ‘In omnibus quidem, maxime
TIIE STOIC PHILOSOPHY. 15

tamen in jure, zquitas spectanda est” (D., 50, 17, 90),
and the same jurist in interpreting a provision of the edict
defends the position which he advocates by saying:
““Heec equitas suggerit, etsi jure deficiamur ” (D., 39, 3,
2,5). According to the view of the classical jurists, law,
though made compulsory by the state, derives its ultimate
authority from the moral code of nature, and is itself re-
garded simply as a means for the administration of justice.

References.—Regarding the influence of Stoicism upon the
Roman jurists, different opinions have been advocated by different
‘legal writers. Some profess to find the Roman law filled with partic-
ular precepts drawn from the Stoic philosophers; while others seem
to question the reality of any Stoical influence at all. Among those
who are perhaps inclined to exaggerate the influence of Stoicism may
be mentioned Cujacius, Heineccius, Welker, and Pothier, and among
those who are inclined to take the opposite view are Hoffman, Hugo,
Austin, and Hunter. The view which seems most reasonable, is that
the Stoic theory of natural law exercised a positive influence upon the
legal thought of Rome, exhibited not so much in the form of particu-
lar rules, as in the general principles which controlled the methods
of interpretation employed by the jurists.

This subject is treated in the following works: Maine, ‘‘ Ancient
Law,” ch. 3; Ortolan, ‘‘ Hist. of Roman Legislation,” Eng. trans.,
p. 225; Herford, ‘‘The Stoics as Teachers”; Zimmern, ‘' Ge-
schichte,” § 62; Gravina, ‘*Origines du Droit civil,” p. 513 et seg.;
Taylor, ‘Elements of the Roman Law,” p. 67 e¢ seg.; Hugo, ‘‘ Ge-
schichte,” $§ 314-334. Some of the more important special works
on this subject are the following: Laferriere, ‘‘ L’ influence du Sto-
icisme sur la doctrine des Icti Romains,” 1860; Ratjen, “ Hat die
stoische Philosophie bedeutenden Einfluss. . . . gehabt?” Kiel,
1839 ; Ortloff, ‘‘ Ueber den Einfluss der Stoischen Philosophie auf die
Rémische Jurisprudenz,” Erlangen, 1797 ; Boers, ‘‘ De Anthropologia
Jurisconsultorum Romanorum, quatenus Stoica est,” 1766 ; Schaum-
berg, ‘‘ De Jurisprudentia vet. Rom. Stoica,” 1745 ; Hering, ‘‘ Pr.
de Stoica veter. Roman. Jurisprudentia,” 1719; Otto, ‘‘De Stoica
veter. Jurisconsultorum Philosophia,” 1714; Boehmer, ‘‘ Pr. de Stoica
Jurisconsultorum Philosophia,” 1701. One of the first of modern
writers to point out the Stoical element in the Roman law was
Cujacius, *« Observationes,” Lib. 26, ch. 40.
CHAPTER IV.

THE INFLUENCE OF THE JURISCONSULTS UPON THE
ROMAN LAW:

We have thus far considered the general influence
which the philosophical ideas derived from Greece ex-
ercised upon Roman thought by developing broader con-
ceptions regarding the foundation and purpose of law.
These new philosophical conceptions did not, however,
exist in the mind of the Roman jurists merely as specula-
tive theories. They worked their way into the actual
system of justice, and tempered by their influence the
whole body of Roman jurisprudence. As a result of this
movement the law was brought within the domain of
reason. Its particular rules were interpreted in the light
of general principles, and its various branches became
unified into something like a coherent system. This may
be illustrated by the method adopted by the jurists in
their interpretation of the law, and the way in which their
general ideas of justice affected the substance of the law
through indirect and direct legislation.

1. The Method of the Jurists.—In considering the
scientific influence of the Roman jurists, it must not be
supposed that these writers were consciously inspired by
what we would call a strictly scientific purpose. Their
efforts were directed not so much toward the construc-
tion of an ideal system of rights and duties as toward the
actual improvement of their own law. The legal writers
of Rome were, in short, performing the work, not of

116
INFLUENCE OF THE JURISCONSULTS. 117

speculative philosophers, but of practical jurists. This
fact will enable us to give a fair estimate of the relation
which these writers sustain to legal science in general.
A great deal of unnecessary criticism has, in recent
times, been levelled against the Roman jurisconsults on
account of their failure to treat of law as a pure science,
and to apply to it the principles of classification which
an ideal logical method would seem to demand. It ought
never to be assumed, however, that a body of concrete
law—especially while it is in the process of historical
growth—can acquire the formal completeness of an ab-
stract science. But in spite of their defects in logical
arrangement, the Roman jurists made important con-
tributions to legal science in general.

(1) In the first place, they emphasized the importance
of appealing to general principles in the solution of
specific questions, and hence brought into prominence
the idea—without which there can be no scientific con-
ception of law—that the rights of men in civil society
depend upon something more ultimate than custom or
arbitrary legislation. On account of their liberal methods
of interpretation they were led to appreciate the value of
certain criteria with reference to which the merits of par-
ticular rules must be judged. ‘The relation which they
were thus led to perceive between abstract principles and
the concrete rights of persons and of property gave to
their writings a truly scientific character. While, there-
fore, they were especially concerned in improving their
own national system, they gave to the Roman law the
character of a universal code.

(2) In the second place, the jurists perceived the true
relation between law and morality. They properly re-
garded law as founded upon ethics; but they did not
look upon it as commensurate with the full extent of
118 OUTLINES OF ROMAN LAW.

natural morality. The cardinal virtues of the Stoics
were wisdom, justice, courage, and temperance. It is
justice which by way of distinction furnishes the basis of
legal rights and duties, Jurisprudence is defined by Ul-
pian as “that science which discriminates between the
just and the unjust” (D., 1,1,10). But law in its relation
to morality has a still further specific feature. While law
and natural justice are at one regarding the kind of
duties to be enforced, they differ with respect to the
method by which they are enforced. The one depends
upon free volition ; the other upon public authority. If
we consider the positive sources from which the jurists
conceived all law to be derived, and also the fact that
they regarded every legal duty as enforceable by a legal
action, we will not fall into the common error of suppos-
ing that these writers made no distinction between moral.
and legal duties. According to the Roman jurists the
fundamental principles of the law rest upon morality,
since it is from the latter that those duties are to be
determined which should govern men in civil society ;
but théy believed that moral duties are transformed into
legal duties only by the express or tacit sanction of some
public authority.

2. Definitions and Maxims of the Law.—The
scientific spirit of the jurists is still further seen in their
efforts to make clear and definite the fundamental con-
ceptions of the law, by setting forth the significance
of legal terms, and by formulating the general rules
which should be employed in the interpretation and
application of the law. This is seen in the character of
their definitions and maxims,

(1) There are two dangers into which legal language
may fall. The one is the danger of looseness, by which
it is liable to uncertainty and vacillation. The other is
INFLUENCE OF THE JURISCONSULTS. TI9
i

the danger arising from a professional and technical
rigidity, by which it may become estranged from popular
usage, so that while gaining in scientific precision it is
made liable to misapprehension on the part of those who
appeal to the law for protection. The jurists guarded
alike against these two dangers to which all language is
exposed. To employ terms which are at the same
time precise and intelligible was considered by them
as essential to the equitable interpretation of the law.
This method of definition was in harmony with their
general theory that the purpose of the law was to promote,
and not to obstruct, the ends of justice. The writings of
the jurists abound in examples that show their earnest
efforts to prevent the failure of justice, which may result,
on the one hand, from a vague and indefinite, and, on
the other hand, from a too technical, use of language.
Many of these definitions are gathered together in the
title of the Digest, ‘‘De Verborum Significatione” (D.,
50, 16).

(2) The scientific wisdom of the jurists is still further
seen in their legal maxims. Those who deny the influ-
ence of the theory of natural law upon Roman juris-
prudence fail to appreciate the real character of these
axiomatic rules and their influence upon legal inter-
pretation, The jurists looked upon these maxims of the
law as self-evident truths, dictates of reason. They were
founded neither upon legislation nor customs; they
rested in the very nature of things. They were, in
reality, the outgrowth of those enlarged ethical concep-
tions which formed a part of the philosophical tendency
of the times. If we look at any of these rules—many of
which may be found in the title of the Digest, “ De Diversis
Regulis” (D., 50, 17)—we must be impressed with the
scientific spirit which inspires them and the axiomatic
120 OUTLINES OF ROMAN LAW.

form in which they are stated. For example: “ What is
prohibited by the law of nature can be confirmed by no
statute” (Celsus). ‘“‘It is just by the law of nature that
no one should be enriched through another's disad-
vantage or injury” (Pomponius). “It is according to
nature that he who suffers the inconvenience should en-
joy the benefit” (Paulus). “According to the law of
nature all men are equal” (Ulpian). ‘Lapse of time
cannot cure that of which the origin is vicious” (Paulus).
“What is ours cannot be transferred to another without
an act of our own” (Pomponius). “No one can trans-
fer a greater right than he himself possesses ” (Ulpian).
“ He who can say Yes can also say No” (Ulpian). “He
is free from blame who knows but cannot prevent”
(Paulus), “They are’ not defrauded who know and
consent ” (Ulpian).

The constant use of such general principles in deter-
mining the character of specific rules in the various
branches of the law—though not necessarily improving
the formal arrangement of the different parts,—tended
to give a logical consistency and substantial coherence to
the whole body of jurisprudence. ,

3. The Reason of the Law, “ Ratio Legis.”—
In their efforts to apply the principles of natural justice
to the actual relations of society, the jurists did not
openly ignore the binding force of the existing law.
Nearly all their writings, on the contrary, were expositions
of the previous Roman law, and a large part of their com-
mentaries treat of the Pretorian Edict. But they were
not slow to discover that a law which had grown out of a
previous condition of things, was not necessarily adapted
to the present ; and that a rigid application of any given
rule might result in injustice. It was seen that a strict
and severe application of a particular law might thwart
INFLUENCE OF THE JURISCONSULTS. 121

the very purpose for which all law existed. “Summum
jus summa injuria”’ had been received as an axiom even
in Cicero’s time. Consequently, the jurists sought to har-
monize law with justice. Without denying the authority
of the existing law, they believed that its real binding force
resided, not in its form, but in its rational spirit; and
that the “reason of the law” would be found, if properly
interpreted, to be consistent with natural equity. They
thus perceived the principle—which must be fundamen-
tal in all scientific interpretation—that the rational intent
of the law is to promote justice, that the law itself is but
a means whereby that which is just and equitable may
be secured. The respect which the jurists thus paid to
what they called the ratio legis, or ratio juris, led to the
adoption of certain equitable rules of interpretation.

(1) In the first place, where there is an apparent op-
position between the letter and the spirit of the law, the
spirit of the law must be followed rather than the letter.
As Julianus says: ‘‘In his, que contra rationem juris
constituta sunt non possumus sequi regulam juris” (D.,
1, 3,15). This principle was at variance with all mere
verbal quibbling. Notwithstanding their rigorous method
of reasoning, the Roman jurists did not tolerate that mode
of formal and grammatical construction which stops at
the word and loses sight of the thought. Celsus says:
“Scire leges non hoc est verba earum tenere, sed vim
ac potestatem”’ (D., 1, 3,17). This principle was also op-
posed to a harsh and severe application of a legal rule.
In the words of Modestinus : “ Nulla juris ratio aut equi-
tatis benignitas patitur, ut, quz salubriter pro utilitate
hominum introducuntur, ea nos duriore interpretatione
contra ipsorum commodum producamus ad severitatem ”
(D., 1, 3, 25).

(2) In the second place, when the meaning of a law is
122 OUTLINES OF ROMAN LAW.

capable of more than one interpretation, that interpreta-
tion is to be followed which will result in the least injury.
We find that this rule was frequently kept in mind by the
jurists, showing that the very ambiguity of the law was
made an occasion to further the ends of justice. Gaius
says: “Semper in dubiis benigniora preeferenda sunt ”
(D., 50, 17, 56). A similar rule is laid down by Celsus :
“In ambigua voce legis, ea potius accipienda est signifi-
catio, que vitio caret” (D., 1, 3,19). So, too, Marcellus :
“In re dubia benigniorem interpretationem sequi, non
minus justius est, quam tutius”’ (D., 50, 17, 192).

(3) In the third place, when a particular rule of law
construed by itself would seem to operate unjustly, it
must be interpreted with reference to other rules of a
similar character, and even with reference to the spirit of
the whole law upon the subject in hand. The body of
the law must be looked at as a whole, and each part must
be construed with reference to all other parts. Thus an
earlier rule may be superseded by a later one; and a
particular rule may be modified in its application, when
seen in its relation to all other legislation bearing upon
the subject. To quote a fragment of Celsus: “ Incivile
est, nisi tota lege perspecta, una aliqua particula ejus
proposita, judicare vel respondere’’ (D., 1, 3, 24).

In all these rules there is no open disposition to ignore
the binding force of the existing law, but rather a desire
to fulfil its highest and most rational purpose—that is, to
protect those natural rights which spring from the moral
constitution of man,

4. Restrictive and Extensive Interpretation.—
Certain rules of interpretation were also recognized when
it became necessary to deal with cases for which the
written law obviously contained no provisions whatever,
The deficiency of the law might grow out of the fact that
INFLUENCE OF THE JURISCONSULTS. 123

it was either too broad, or too narrow, to meet exactly the
case in hand, To supply such defeats —while still respect-
ing, in theory at least, the authority of the existing law—
the jurists adopted certain modes of construction, which
have been called restrictive and extensive interpretation.

(t) Laws which are established to meet the needs of a
large community must of necessity be general in their
nature, “Jura non in singulas personas,” says Ulpian,
“sed generaliter constituuntur” (D., 1, 3, 8). The diffi-
culty of framing laws so as to cover expressly every case
that may arise is clearly set forth in the following state-
ment of Julianus: “ Neque leges neque senatus-consulta
ita scribi possunt, ut omnes casus qui quandoque inciderint
comprehendantur; sed sufficit ea que plerumque acci-
dunt contineri” (D., 1, 3, 10). In the solution of actual
cases it often becomes necessary, therefore, to supply the
defects of the law growing out of its generality. This
might be effected not only by the legislation of the prince
but also by interpretation. As Julianus further says:
“Et ideo de his, que primo constituuntur, aut interpreta-
tione aut constitutione optimi principis certius statuendum

st” (D., 1, 3, 11). It was through this restrictive mode
of interpretation that the law became specialized to meet
a large number of cases which, though not expressly pro-
vided for, were yet construed as coming under its general
provisions.

(2) Extensive interpretation, on the other hand, is that
which is used with reference to cases which the letter of
the law strictly taken would not comprehend at all. By
studying the intention of the legislator with reference to
certain cases, it is inferred what his intention would have
been had it been expressed with reference to certain other
cases of a similar character. This mode of extending the
law to meet the case in hand was regarded by Julianus as
124 OUTLINES OF ROMAN LAW.

coming within the province of the magistrate in the exer-
cise of jurisdiction, Says this jurist: “Non possunt
omnes articuli singillatim aut legibus aut senatus-consultis
comprehendi; sed cum in aliqua causa sententia eorum
manifesta est, is qui jurisdictioni preest ad similia proce-
dere atque ita jus dicere debet ” (D., 1, 3, 12). But Ulpian
regards this process as belonging to the legitimate func-
tion of interpretation as well as of jurisdiction, as is
shown in the following passage: “Nam, ut ait Pedius,
quotiens lege aliquid unum vel alterum introductum est,
bona occasio est cetera, que tendunt ad eandem utili-
tatem, vel interpretatione vel certe jurisdictione suppleri”
(D., I, 3, $3):

By these various methods of interpretation which the
jurists adopted to construe the law, and which they em-
ployed to carry out what they believed to be the rational
purpose of the law, they were enabled to bring Roman
jurisprudence more and more into harmony with the
natural law, or, in other words, with the fundamental
principles of reason and equity.

5. The Jurists and Indirect Legislation.—To
appreciate still further the great influence exercised by
the Roman lawyers in the days of the Empire, we must.
keep in mind the fact that the privileged class of jurists
were not merely scientific expounders of the law. They
were, in fact, a body of men ‘who exercised a kind of
legislative authority. The possession of the jus respon-
dendi gave to them a position entirely unique in the his-
tory of jurisprudence. It is evident that their interpreta-
tion of the law partook of the character of indirect
legislation; and, consequently, the rational principles
which they advocated became actually incorporated into
the body of the positive law. Let us look for a moment
at the peculiarity of this kind of legislation, and the
\

INFLUENCE OF THE JURISCONSULTS. 125

reforming influence which it exerted upon the substance
of the law.

(1) The indirect method of legislation employed by
those jurists who possessed the jus respondendi may be
roughly compared to what has been called in modern times
“judicial legislation.” The function of the judge is
theoretically confined: to declaring and applying the law
to a given case. But in the very process of construing
the law to meet the case in hand, the law may become
specialized or even modified. Supplementary provisions
thus grow up through judicial administration, which, by
being enforced in the given case and by being used as
precedents in similar cases, acquire the character of new
laws. In certain respects, this bears an analogy to the
way in which the Roman law became modified by passing
through the hands of the jurists, But the jurists were
not judicial magistrates ; and their opinions of the law
were not restricted to cases actually presented for adjudi-
cation. Any legal question whatever might be made the
subject of their discussion, and their opinions upon such
a question obtained the same authority as though it had
been declared as law by a legislative body.

(2) As aresult of this process of indirect legislation,
the substance of the law became not merely adjusted to the
special relations of society, but imbued with the same
liberal and equitable spirit as that which inspired the
jurists themselves, It would, of course, be impossible to
indicate in this place the many changes which were
brought about by this means, since nearly every portion
of the Roman law was reviewed in the juristic writings.
A few examples taken from the law of status may serve
to illustrate the general character of these changes.

It was accepted as a principle of the natural law that
all men are born free and equal. Ulpian says: “Jure
126 OUTLINES OF ROMAN LAW.

naturali omnes liberi nascerentur ” (D., 1, 1, 4); and again:
“ Quod attinet ad jus civile, servi pro nullis habentur ; non
tamen et jure naturali, quia, quod ad jus naturale attinet,
omnes homines zequales sunt” (D., 50, 17, 32). The be-
lief that slavery was not natural to man, but was a civil
institution contrary to nature, led to certain rules favorable
toliberty. While the jurists were unable to ignore the laws
which recognized the existence of slavery, they yet laid
down the principle that in all cases of doubtful status the
presumption should be in favor of freedom. Pomponius
states the rule as follows: “ Quotiens dubia interpretatio
libertatis est, secundum libertatem respondendum erit ”
(D., 50, 17, 20). Paulus applies the rule to cases of
doubtful manumission : “In-obscura voluntate manumit-
tentis favendum est libertati”” (D., 50, 17, 179).

Again, a person according to the civil law, was free if
born of a free woman—that is, a woman who was free at
the time of the birth. But the jurists extended this rule so
that a child was considered free, even though the mother
was a slave at the time of the birth, provided she had been
free at any moment between conception and birth (D.,
I, 5, 5, 2—Marcianus),

So too, the theory of natural equality led the jurists to
ignore many artificial distinctions among persons which
had been but partially destroyed by the pretorian
legislation. The legal rights of women, of sons and
daughters of mature age, came to be more definitely
recognized. As a general rule, only those persons that
were physically or mentally incompetent were regarded
as legally incapable of acting for themselves; and even
these were carefully protected from injustice “benigna
juris interpretatione.”

Similar examples of this liberal spirit might be given
from the law of property, of contracts, of wills, and of
INFLUENCE OF THE JURISCONSULTS. 127

actions. Such phrases as guas? possessio, quast ususfructus,
guast maleficium, quast publica accusatio, of which the
writings of the jurists are full, bear evidence of the extent
to which, by the use of fictions, the body of the law was
enlarged and liberalized to meet the demands of public
utility and equity.

6. The Jurists and Direct Legislation.—The
important influence of the jurists is finally shown in
the direct legislation of the emperors themselves, The
imperial constitutions as far as they bear upon mat-
ters of private law evince the same equitable temper
as that seen in the interpretation of the jurisconsults.
Even some of the most despotic emperors are noted
for wise and beneficent legislation. This seeming anom-
aly is only to be explained by the fact that in mat-
ters of civil law the emperors were guided by the
counsels of the jurists. The great favor in which these
persons, with few exceptions, were held by the princes,
the official positions with which they were frequently
honored, and their membership in the imperial council,
together with the positive statements of Roman writers
that the emperors often yielded to their advice—indi-
cate that, for a time at least, the Roman Empire was,
like France under Philip the Fair, and England under
Edward I., a government of lawyers. Cervidius Sce-
vola reduced to writing the edicts of Marcus Aurelius,
and was the teacher of Septimius Severus. Ulpian
was a member of the council of Alexander Severus.
The great jurists, Papinian, Julian, Paulus, and Mo-
destinus, also held important positions in the imperial
government.

The most conclusive evidence of the influence of these
writers upon the constitutions of the emperors is to be
found in the character of the legislation itself. If we
128 OUTLINES OF ROMAN LAW.

look at these acts we shall find a disposition to found
the civil law upon the natural rights of men that is in
striking accord with the philosophical spirit displayed by
the jurisconsults. A few examples may be given by way
of illustration.

(x) In the first place may be noticed the tendency to
protect the slave from unnatural cruelty on the part of
the master. Augustus granted to the preefect of the city
jurisdiction over the domestic treatment of slaves, where-
by the master was restrained from certain forms of cru-
elty. Claudius enacted that if a master exposed his sick
or infirm slave, he forfeited all rights over him ; and if
he killed the slave the act should be treated as murder.
Hadrian suppressed the work-houses (ergastula) in which
masters sometimes imprisoned their slaves; and also
restrained a master from selling his slave as a gladiator
except for punishment, and then only with a judicial
sanction. Antoninus Pius declared that a man had no
more right to kill his own slave than a slave belonging to
another; also that on proof of intolerable treatment a
master should be compelled to sell his slave to a more
humane master. “Both ordinances” says Gaius, “are
just ; it is proper that the abuse of a legal right should
be restrained.” (Gaius, Inst., 1, 53.)

The most direct illustration that the imperial acts were
influenced by a theory of natural law, such as inspired
the jurists, is afforded by the natalibus restitutio—where-
by a freedman, that is, a man who had once been a slave,
might by an act of the emperor acquire the status of a
Sreeborn person. This was based upon the doctrine that
all men by nature are born free—since the freedman in
this case was restored not to the actual state in which he
was born, but to his supposed state of original freedom.

(2) Again, the imperial legislation tended to restrain
INFLUENCE OF THE JURISCONSULTS. 129

the great power which the father had hitherto been per-
mitted to exercise over the son. These provisions were
in harmony with the general theory which prevailed at
the time, that all persons possess certain natural rights,
and that it is the office of the law to protect as far as pos-
sible such rights. Trajan compelled a father who had
been guilty of cruelty toward his son to emancipate him ;
and deprived the father, in such a case, of the right of
inheriting the son’s property acquired since emancipa-
tion. And Papinian says that the act was made by
Trajan on the advice of the jurists Neratius and Aristo
(D., 37, 12, 5). Passing over other examples which
might be mentioned, it is to be noticed that Alexander
Severus treated the power of life and death as obsolete in
his time; and limited the father’s power to simple cor-
rection, placing all severe punishment under the jurisdic-
tion of the public magistrate. The proprietary rights of
the son also began to be respected under the Empire.
From the time of Augustus the son was permitted to
hold as his own whatever he acquired in the military
service. This was called peculium castrense, and was
defined by Macer to be “ whatever the son received from
his father or relatives by way of equipment, or whatever
he himself obtained while in the service” (D., 49, 17, 11).

(3) Another important feature of the imperial legisla-
tion was the disposition to extend the rights of citizen-
ship, and to make these rights, as far as possible, equal.
However far the Roman Empire may have come short of
a perfect government, it certainly tended to reduce all its
subjects—optimates and populares, Italians and provin-
cials—to a plane of civil equality. Independent, then, of
its political significance, the gradual extension of Roman
citizenship was really a movement in the direction of a
more complete equalization of civil rights, and, conse-
130 OUTLINES OF ROMAN LAW.

quently, of a more equitable administration of justice.
This movement was carried on by the acts of Augustus,
Tiberius, Claudius, Nero, and Hadrian, and reached its
culmination in the celebrated edict of Caracalla, by which
citizenship was conferred upon all the freeborn subjects
of the Empire.

Certain writers have attempted to belittle the impor-
tance of this last act by impeaching the motives of the
Emperor. But granting all that is claimed,—that the
edict was prompted by the avaricious desire to extend
the tax upon legacies,—it yet simply imposed a kind
of burden upon provincials which already rested upon
citizens. Independent of the motives of the Em-
peror, it equalized, even though it increased, the pecuni-
ary burdens resting upon the Roman subjects; and so
far as it affected-civil rights, it was in the line of previous
reforms, and was in harmony with the principle of equal-
ity advocated by the jurists. Asa result of the edict of
Caracalla and certain minor acts which immediately fol-
lowed, both the rights and the duties of citizenship be-
longed equally to all the freeborn subjects of the Roman
world.

If further examples were necessary to illustrate the
general spirit of the imperial laws, we might cite the acts
regarding testamentary trusts, which formed a large part
of the legislation of this period, and which show how the
natural or moral duties of the trustee were made com-
pulsory by law, and how the equitable rights of the tes-
tator, the trustee, and the heir were alike carefully pro-
tected. But the illustrations already given are sufficient
to show that a common spirit pervaded the constitutions
of the emperors and the interpretation of the jurists, and
that the whole tendency of legal reform during the early
Empire was toward realizing those ideas of natural jus-
INFLUENCE OF THE JURISCONSULTS. 131

tice which were derived from broad philosophical con-
ceptions regarding the essential nature and rational end
of positive law.

References.—Additional information regarding the scientific
method and influence of the Roman jurisconsults may be obtained
from the following works: Grapel, ‘‘Sources of the Roman Civil
Law,” ch. 8; Ortolan, ‘‘ History of Roman Levislation,” Eng.
trans., pp. 367-378; Rivier, ‘‘ Introduction Historique,” §§ 132-
162; Warnkoénig, ‘‘Vorschule,” S. 115-132; Hugo, ‘* Histoire,”
trad. par Jourdan,” §§ 335-366; Zimmern, ‘‘ Geschichte,” §§ 61-
63; Phillimore, ‘‘ Legal Maxims”; Bremer, ‘‘ Rechtslehrer und
Rechtsschulen in Romischen Kaiserreich” ; Fitting, ‘‘ Alter der
Schriften Rémischer Juristen von Hadrian bis Al-xander” ; Schul-
ting, ‘‘Jurisprudentia velus antejustinianea”; Huschke, ‘‘ Jurispru-
dentiz antejustinianze que supersunt” An enumeration of the
jurisconsults together with their respective works may be found in:
Vering, ‘‘ Geschichte und Pandekten.” § 27; Deurer, “ Gesch. und
Inst.,” § 85 ; Zimmern, “ Geschichte,” §§ 71-103.
PERIOD IV.

FROM THE ACCESSION OF DIOCLETIAN TO THE FINAL
CODIFICATION OF THE LAW BY JUSTINIAN.
CHAPTER I.
THE REORGANIZATION OF THE IMPERIAL SYSTEM.

Wit the accession of Diocletian began a series of
political and social changes which brought about a com-
plete reorganization of the imperial system, and which
affected in various ways the character of the Roman law.
In the earlier Empire, the power of the prince had been
concealed by a covering of constitutional forms; in
the later Empire, the disguises of republicanism were
thrown off, and the Emperor stood forth as the real
source of law and justice. In the former period the dis-
tinctive features of Roman jurisprudence had been de-
rived from the influence of the classical jurists; in the
latter period the law received its liberalizing impulse
from the influence of the Christian clergy. Since the
character of the law in this period, as in those that have
gone before, was impressed with the political and moral
features of the age, it may be well for us to consider
briefly the character of the revolution by which the Em-
pire of Augustus and Hadrian was transformed into the
Empire of Diocletian and Constantine.

1. Failure of the Augustan Constitution.—It
is not necessary to probe very deeply into Roman society
to find the causes which naturally led to this change.
Besides the general decay of morality and patriotism,
whereby the primitive force of the Roman character was
undermined, the government itself had relapsed into a
condition of weakness that made it incapable to withstand

135
136 OUTLINES OF ROMAN LAW.

\
longer the internal and external dangers threatening the
state. The early constitution of the Empire had evi-
dently failed to secure permanently that unity and peace
which it was originally intended to promote.

In the first place, the imperial office since the time
of Commodus had lost the dignity which had previously
attached to it. No regular law of succession had become
established, and the pretorian guard assumed the right
of murdering or deposing a distasteful prince, and of
choosing a successor. The military force with which
Augustus had sought to support the throne had already
become the power behind the throne. The early govern-
ment had doubtless been conducive to the welfare of
Rome, when vested in a paternal prince like Nerva, or a
philosophical statesman like Marcus Aurelius; but from
the close of the second century it had become degraded
into the worst form of military despotism.

Again, the degradation of the central authority was
accompanied by the dissolution of the provinces. The
Empire had been held together by the supreme authority
of the prince. The decline of this power opened the way
for local insurrections. Almost every provincial governor
became an aspirant for the imperial throne, or at least
desired to exercise an independent authority within his
own domain. Within a single century, it is said, nearly
a hundred governors might be named who with various
success raised the standard of revoit.

Moreover, the decay of the internal organization
laid the Empire open to the attack of foreign enemies.
The rivalry of different armies prevented any united and
successful resistance to these invasions. Asia Minor and
Greece had already been devastated by the Goths, and
the eastern frontiers were continually shrinking before
the encroachments of Persia.
.

REORGANIZATION. 137

On account of the growing weakness of the imperial
power, the threatened dismemberment of the provinces
and the increasing incapacity to repel the foreign in-
vaders, it seemed necessary either to abandon the state
to its enemies, or to give it a new and more efficient
organization.

2. The Orientalization of the Empire.—The
immediate source from which the forms of the new im-
perialism were derived, can be found in the growing in-
fluence of Eastern ideas. The new Persian monarchy had
impressed the Romans with its political and military
strength. The exalted veneration in which its prince
was held by the people, the brilliancy of its court, the
systematic organization of its dependencies, the efficiency
of its armies, were in striking contrast to the degenerate
condition into which Rome had fallen. The oriental
features of government expressed in the forms of the
Persian monarchy were hence taken as a model upon
which Diocletian began his reforms. The influence of
these reforms is seen directly in the new position of the
Roman emperor and the retinue which became attached
to his person.

To exalt the person of the emperor was one of the
first objects of the reforms of Diocletian. This prince
assumed the diadem of the East, and the approach to his
person was rendered difficult by complicated ceremonies.
Every means was used to prevent any detraction from
the imperial honor and sanctity.

The dignity of the emperor was further secured by the
introduction of a court retinue by Constantine, which was
also borrowed from the East. The large body of court
officials who were honored by being brought into im-
mediate relation to the prince, and by being made the
agents through whom he exercised the functions of gov-
138 OUTLINES OF ROMAN LAW.

ernment, was organized under several chief officers.
The Grand Chamberlain ( prapositus sacri cubicul’) stood
nearest to the prince and exercised a supervision over
the private apartments of the palace: The Chancellor,
or Master of Offices (magister officiorum) was the chief
judicial officer of the court and minister of foreign affairs.
The Questor (guestor sacri palatit) was the organ of the
emperor in legislation, putting into form and announcing
the imperial edicts. The Minister of the Treasury
(comes sacrarum largitiorum) controlled the collection
and disbursement of the public revenue. The Master of
the Privy Purse (comes ret principis) managed the private
estate of the emperor. The two Counts of the Domestic
Troops (comites domesticorum) commanded the infantry
and cavalry which formed the body-guard of the emperor.
This organization intended to give seclusion and sanctity
to the emperor, was preserved by the successors of Con-
stantine, and was in fact the prototype of the royal courts
of modern times.

3. Reorganization of the Provinces.—But be-
yond these changes which related to the person and reti-
nue of the emperor were others of greater importance
which affected the whole provincial system. Diocletian
had associated with himself in the government his com-
panion in arms, Maximian; and under the name of
“ Augusti,” these two persons had divided between them
the Eastern and Western provinces. Each Augustus also
chose an associate under the name of “Cesar.” Thus
all the Roman provinces were grouped into four great
territorial divisions. This formed the basis of the pro-
vincial system of Constantine, who not only perfected the
territorial organization of the Empire, but also separated
the civil from the military authority, so as to prevent the
dangers of local insurrection.
REORGANIZATION, 139

(1) For purposes of civil administration the whole
Empire was divided into four great preefectures, each
under its own governor, called a Pretorian Preefect. The
prefecture was divided into dioceses, each under an
officer called a Vicar. Each diocese was subdivided into
provinces, under officers variously called Presidents,
Consulars, Correctors, or Dukes. Within the provinces
were the cities, each under its own municipal govern-
ment. A review of this distribution of territory shows
that there were in all four prefectures, thirteen dioceses
and one hundred and nineteen provinces. Each governor
represented in his own domain the imperial authority.
By the hierarchy of civil officials thus established, the
government of the Roman territory was reduced to the
most systematic organization.

(2) Moreover, an entire separation was made between
the civil and military power. The old custom whereby
the provincial governor was also a military commander
was discontinued. The army received a distinct organi-
zation under its own officers, and hence a great tempta-
tion to revolt was taken away from the provincial gov-
ernors.

4. The Forms of Legislation.—The centralizing
policy of the later emperors had a noticeable effect upon
legislation. Even more than in the previous period was
the will of the emperor the ultimate source of law. On
account of the decay of legal science after the time of
Alexander Severus, the interpretation of the jurists became
no longer an active source of legislation ; although the
opinions of certain jurisconsults of the previous period
were still recognized as binding. The written law under
the later Empire was restricted therefore to the imperial
constitutions, and the writings of the classical jurists
designated in the “ law of citations.”
140 OUTLINES OF ROMAN LAW.

(1) The imperial constitutions now became the chief
source through which the law was extended: or modi-
fied. They were restricted for the most part to the
“rescripts”’ and “edictal laws.” The former had ref-
erence to matter of a special character ; while the latter
applied to matters of general legislation. Nearly all the
additions which were made to the body of Roman law
from the time of Diocletian to that of Justinian were
consequently made through these two forms.

(2) During this period the emperors designated by
name the jurists whose writings should be accepted as
law. Constantine ordered the works of Papinian and the
“ Sentences ” of Paulus to be respected by the judge ; and
his respect for Papinian was so great that he invalidated
the notes of Paulus and Ulpian upon this writer. About
acentury after this time was passed the famous “ law of
citations ” (dex de responsis prudentum) by Theodosius II.
and Valentinian III. By this constitution all the works
of Papinian, Paulus, Ulpian, Modestinus, and Gaius, and
these only, were declared to have a legal authority. The
notes of Paulus and Ulpian upon Papinian were still held
to be invalid. To fix the relative weight to be attached
to the accepted jurists, it was declared that a majority of
those whose opinions were given upon a certain point
should be decisive; and that if their opinions were
equally divided, that of Papinian should be accepted.
The law of citations continued in force until the time of
Justinian.

5. The Character of the Judicature.—The estab-
lishment of the later form of imperialism involved also
important changes in the judicial system. The formu-
lary system of the Republic was inconsistent with the
spirit of the new government. The old system not only
involved the general separation of questions of law and
REORGANIZATION. 141

fact, but it admitted a body of non-professional citizens
to a share in the administration of justice. This system
had been continued in the early Empire in accordance
with the general tendency to preserve the constitutional
forms of the Republic. But the revolution of Diocletian
and Constantine resulted in bringing the administration
of justice entirely under the control of the Emperor and
the officers expressly appointed by him. This is seen
both in the decay of the formulary system and in the
duties of the pedanet judices,

(1) The formulary system was in harmony with the
old republican idea that the functions of government
should be exercised by the citizens, or by the magistrates
chosen by citizens. The pretor, who presided over the
proceedings 7 jure, was an officer chosen by the people.
The judex, who took charge of the proceedings i judicio,
was a man selected from the body of citizens. This
whole procedure, involving the separation of jus and
judicium and the exercise of judicial functions on the
part of private citizens, was overthrown by Diocletian.
The change not only grew out of the autocratic tendency
of the new government ; but was in part rendered neces-
sary by the decay of the public spirit of the citizens, who
avoided as irksome all share in public duties. Hitherto, :
the magistrate might, in exceptional cases, assume the
entire control of a case, and thus dispense with the servi-
ces of a judex. It was by ordering the exclusive use of
this kind of procedure, which was called “ extraordi-
nary,” that Diocletian abolished the formulary system,
which was involved in the “ordinary” method of pro-
cedure. By a constitution of the emperor all officers
having jurisdiction were instructed to decide all ques-
tions—even those of fact, which had previously been
referred to the judices. Even the word judex was no
* fe : 2
142 OUTLINES OF ROMAN LAW.

longer used in the old sense, but was applied to the
magistrate, who exercised both jus and judicium. The
decay of the formulary system through the exclusive use
of extraordinary procedure placed the whole administra-
tion of justice under the direct control of the emperor.
(2) In order to relieve the provincial governors from
an excess of judicial business Diocletian granted to them
the right to refer cases of minor importance to subordi-
nate officers (pedaned judices). This, however, involved
in no respect the preservation of the formulary system.
The distinction between jus and judicium was in no sense
retained, but the whole case was turned over to subordi-
nate magistrates. The pedaned judices were not judices in
the old sense of the word, but, according to the opinion
of Ortolan, permanent magistrates entrusted with the
special duty of conducting such cases as the governor
might see fit to refer to them, No other view of the char-
acter of these officers seems consistent with the auto-
cratic spirit which permeated the whole imperial system.

References. The general character of the new imperial system
is described in Gibbon’s ‘‘ Decline and Fall,” ch. 17. To this may
be added Ortolan, ‘‘ Hist. of Roman Law,” Eng. trans., §§ 83-95 ;
Hugo, ‘‘ Histoire,” trad. par Jourdan, §§ 378-383; Rivier, ‘‘In-
troduction Historique,” §§ 163-173; Marezoll, ‘‘ Lehrbuch,” §§
27-31; Warnkénig, ‘‘ Vorschule,” S. 135-145; Walter, ‘‘ Ges-
chichte,” I. §§ 359-423; Manso, ‘t Leben Constantins des Gros-
sen”; Burckhardt, ‘‘ Die Zeit Constantins des Grossen.”
CHAPTER II.

THE RELATION OF CHRISTIANITY TO THE EMPIRE AND TO
LEGISLATION.

THE principal influence that affected the substance
of the Roman law during this period grew out of the
new relations between Christianity and the Empire.
The pagan religion, which, from the earliest times,
formed an essential element of the Roman state, had
already lost its hold upon the people. On the other
hand, Christianity had made rapid progress throughout
the Empire ; and the failure of the last attempt under
Diocletian to crush the new religion led Constantine to
adopt measures whereby the Christian worship should
not only be tolerated, but be taken up into the imperial
system, and be made to play the part hitherto performed
by the pagan cu/tus. The elevation of Christianity to the
position of a state religion was therefore due not so much
to the ambition of the Church as to the the policy of the
Emperor.

1. Triumph of Christianity.—The steps which fin-
ally resulted in the incorporation of the Christian religion
into the Empire may be seen in the indirect support given
to it by Constantine, and in the more positive legislation
of his successors.

The edict of Milan was the beginning of a series’ of en-
actments which finally opened the doors of the state to
the Christian hierarchy. Constantine himself issued addi-
tional laws more or less favorable to the Church. That the
144 OUTLINES OF ROMAN LAW.

“ first Christian Emperor,” however, looked upon the new
religion merely as a serviceable prop to the state is evident,
not simply from the fact that he tolerated Christianity
only when he was obliged to accept its triumph as inevi-
table, but because his attitude toward the contending
faiths bears the marks of duplicity rather than of unequivo-
cable friendship toward the new worship. While pro-
fessedly favoring Christianity, he also tried to obtain all
the advantage possible from the surviving relics of pagan-
ism. He humored the Christians by enjoining the re-
ligious observance of Sunday; and reconciled the
pagans by calling it Dzes Solis, or the day of the sun-god,
and urged them to consult the auguries in proper form.
He placed his capital under the joint protection of the
God of the Martyrs and the goddess Fortune. He not
only called himself the Bishop of bishops, and assumed a
sort of headship over the Christian clergy, but he also re-
tained to the last the title of Pontifex maximus, which
marked his supremacy over the pagan hierarchy.

But the irrepressible conflict between the old and the
new religion rendered the double dealing of Constantine
difficult for his successors. Julian, indeed, declared
openly for paganism. But with the legislation of Jovian,
Valentinian, Gratian, and Theodosius, the heathen wor-
ship was gradually deprived of its position in the state.
Its rites were condemned, its property confiscated, its
temples demolished. With every blow given to paganism
the Church obtained a new and stronger hold in the
body-politic, until at last it was completely installed as
an essential feature of the imperial government.

2. Relation of the Church to the State.—The
precise relation that the Church sustained to the Empire,
it is difficult clearly to define, since the alliance between
the two was gradual in its formation and was founded
CHRISTIANITY. 148

rather upon tacit consent than upon any formal compact.
The Church was incorporated into the state; but each
preserved to a certain extent its independence within its
own sphere of action. The state maintained its authority
over all things relating to the political administration.
The Church, on the other hand, preserved its supremacy
in all matters of a purely ecclesiastical nature. The
priest, as a citizen, was amenable to the laws of the Em-
pire ; while the magistrate, as a Christian, was bound to
submit to the canons of the Church.

Considered thus roughly, the boundary between the
ecclesiastical and political bodies might seem to be clearly
defined ; but still there were many circumstances that
would lead the one, in defending its own interests, to en-
croach upon the jurisdiction, and sometimes even to seek
the protection, of the other. The clergy sought as far as
possible to bring the acts of the emperor into conformity
to the spirit of the Christian religion. The emperor, on
his part, assumed not only an external authority over the
Church as a legal corporation, but also frequently exer-
cised an internal supervision over its controversies, when
such interference seemed necessary for the general peace
of the Empire.

The Church was, in fact, a sort of émperium tn imperio,
struggling at the same time to merit the protection of the
state and also to maintain its own independence, but
obliged to recognize itself as a part of the imperial system
and subject to the imperial authority.

3. Immunities and Privileges of the Clergy.—
The fact that the Church was looked upon as a kind of
political support to the Empire seemed to justify the
emperors in bestowing upon the clergy certain rights
and privileges similar to those hitherto enjoyed by the
pagan priests.
146 OUTLINES OF ROMAN LAW.

(z) In the first place they were relieved from thosé
public burdens (munera publica) to which all subjects
qualified by a certain amount of property were lable.
This included the exemption from the decurionate in
municipal towns. They were also discharged from the
personal services which were due to the state from the
less opulent classes, such as the duty of keeping in repair
the public highways and bridges and of entertaining gov-
ernmental officers and messengers. They were, more-
over, exempted from certain pecuniary burdens, such as
the capitation tax, the road tax, the tax upon trades,
local taxes imposed for the temporary supplies of the
army, etc.

(2) The emperors also provided for the endowment of
the churches and the support of the clergy. Constantine
not only restored the buildings and lands confiscated
during the previous persecutions and transferred to the
Church certain temples, estates, and public property of
pagans and heretics, but he also granted to the Church the
right to receive bequests. The clergy, hitherto depend-
ent for their support upon the voluntary contributions
from the Christians, now received a fixed income from
the church fund derived from the imperial and municipal
treasuries.

Immunities and privileges of this kind, though subject
to many abuses, gave to the clergy a political status
which not only bound them to the support of the gov-
ernment, but added to their power and influence in civil
affairs.

4. The Judicial Authority of the Clergy.—But
the most important prerogatives which the clergy re-
ceived from the state were those connected with the
exercise of judicial authority. Their jurisdiction was
partly of an ecclesiastical, and partly of a civil and crimi-
nal nature.
CHRISTIANITY. i47

(1) With the growth of the church organization the
clergy had. already assumed an authority necessary for
the internal government of the Christian body. But this
authority could not hitherto be enforced except by
spiritual penalties, and was not of such a character as
to prevent a person from appealing to the civil tribunal
for protection against the bishops. The Christian
emperors, however, passed a series of ordinances which
prohibited all appeals to lay authority in spiritual and
ecclesiastical causes. The ecclesiastical courts thus
obtained an independent jurisdiction in the domain of
Church doctrine and discipline.

(2) The jurisdiction of the clergy was still further
recognized in certain civil cases. It had been customary
for the members of the early church, in order to prevent
the scandal of going before a heathen tribunal, to sub-
mit to the bishop their disputes, even those of a civil nat-
ure. But, of course, the judgment of the bishop had
hitherto possessed no strictly legal sanction, and was
valid only so far as both parties were in conscience
bound to submit to it. But Constantine made the sen-
tence of the bishop legally binding in such cases, when
the parties had once agreed to submit their cause to
an ecclesiastical tribunal.

(3) The clerical courts also obtained a limited criminal
jurisdiction extending to those cases in which the clergy
were charged with certain crimes, termed lighter offences
(deviora delicta), But this exemption of the clergy from
responsibility to the imperial courts did not extend to
the greater crimes against the state (graviora delicta).

(4) Somewhat connected with the jurisdiction of the
clergy was the right of “asylum,” and the right of “inter-
cession.” The heathen temples, public altars, and the
statues of the emperors had heretofore been respected as
148 OUTLINES OF ROMAN LAW.

places of refuge, conferring temporary exemption from
pursuit to debtors and criminals amenable. to public
justice. This sanctity was transferred to the Christian
houses of worship. It was enacted (A. D. 431) that not
“ only the altar, but whatever formed any part of the
church building, should be an inviolable place of refuge ;
and it was forbidden on pain of death to forcibly remove
any person who had fled thither unarmed.

The right of intercession, moreover, grew out of the pa-
gan custom whereby the priests were allowed to intercede
for criminals, prisoners, and unfortunate persons of any
class who were resting under the penalty of the law. This
right was given to the Christian clergy to be exercised, as
the law says, ‘‘ for the interests of humanity.”

5. Christianity and Legislation.—Different views
have been held by legal historians regarding the influence
of Christianity upon Roman legislation, Those who
dwell upon the intolerant laws of the Christian em-
perors with respect to pagans, Jews, and heretics, are led
to depreciate the beneficent results that flowed from
the religious revolution. On the other hand, those who
assume that with the professed conversion of Constantine,
the spirit of Christian morality was suddenly infused into
the whole body of Roman institutions, are inclined to ex-
aggerate the legal reforms of the later Empire. There is,
moreover,-a certain class of apologists who, recognizing
the great improvements made in the law, during the pre-
vious period, are disposed to attribute even those im-
provements, not so much to the influence of pagan phil-
osophy, as to an unconscious influence which Christian
ideas exercised upon the minds of the Roman phil-
osophers and jurists.

This diversity of opinions is evidently due, on
the one hand, to the failure to distinguish Chris-
CHRISTIANITY. 149

tianity as an ethical system from the Church as a
corporate institution; and, on the other hand, to the
failure to give proper credit to paganism for the posses-
sion of high moral purposes and conceptions. In spite
of the fact that the Church in some cases set its face
against civil equality, and the fact that the Roman law
had already received a liberal temper from the influence
of Greek philosophy, it cannot be doubted that the pro-
gress of the law, in general, kept pace with the unfolding
of ethical ideas in the Roman mind ; and that so far as
Christianity furnished a system of ethics more just,
liberal, and humane than that of Stoicism, it brought to
bear upon the Roman law a moral power superior to that
which had previously been exerted upon it through the
writings of the philosophical jurists.

The changes made in the law under the Christian em-
perors consisted, partly, in carrying still further the
liberal reforms begun in the previous periods; and,
partly, in introducing modifications which were essen-
tially new. A few examples must suffice to indicate the
general character and tendency of legislation under the
Christian Empire.

(1) The laws regarding slavery were inspired by a
humane disposition to respect the inborn rights of the
slave, to encourage manumission and to break down the
distinction hitherto existing among freedmen. In the
first place, the slave was still further protected from the
cruelty of the master. To poison a slave, to tear his
body with the nails of wild beasts, and to brand him were
regarded as equivalent to homicide. Again, the higher
spirit of the new legislation is shown in the encourage-
ment given to manumission. Although no general acts
of enfranchisement were passed, easier methods of manu-
mission were introduced. A slave could be freed by a
186 OUTLINES OF ROMAN LAW.

letter from his master ( per efistolam) by a declaration of
the master in the presence of witnesses (¢x/er amicos), or
in the presence of the assembled congregation (én ecclestis).
Many legal restraints upon manumission were also re-
moved. The Church encouraged the freeing of slaves,
and treated the act as the mark of a religious disposition
on the part of the master. Moreover, the civil condition
of freedmen was made uniform. Until the time of Jus-
tinian, there were certain cases of misconduct on the part
of the slave which prevented him, when manumitted,
from receiving the full rights of citizenship. But Jus-
tinian removed these disqualifications and declared that
full citizenship was involved in the gift of liberty. These
changes in the law were due, in great part, to the sym-
pathy between the master and the slave growing out of
their common ecclesiastical relations, and to the humane
spirit of Christianity itself.

(2) Further restrictions were also laid upon the pa-
ternal power. It is true that the early emperors and the
jurists had greatly mitigated the severity of the fatria
potestas, Marcian had already declared that “the pa-
ternal authority should consist in affection and not in
atrocity’ (D., 48, 9, 5). But Christianity made more
efficient this reforming tendency. Constantine openly
declared that the father who killed his son should be
held for murder. Except in the rarest cases, the father
was forbidden to expose his children, or to sell them into
slavery. The father could not give away his son by
adoption except with the son’s consent. The proprietary
tights, also, which a son acquired in his military earnings
(peculium castrense) were extended by Constantine to
what was acquired in any public office (peculium quast
castrense). By later legislation, the son possessed the
right to property coming from other sources ( peculium
CHRISTIANITY. 151

adventitium). By these measures the personal and pro-
prietary independence of the son after reaching majority
was almost completely recognized ; and the patriarchal
idea of the family founded upon the life-long and absolute
power of the father, gave way to the more modern and
humane idea of the relation of parent and child.

(3) The influence of Christianity may also be seen in
laws regarding marriage and the status of women. Mar-
riage was transformed from a civil contract to a religious
sacrament ; and a moral freedom was given to it by the
abolition of the artificial penalties which the 4x Papia
Poppea had fixed upon celibacy and childlessness. The
reverence which Christians paid to the Old Testament
scriptures led to the adoption of the Jewish restrictions
upon marriage within certain degrees of consanguinity.
Marriage was also rescued from certain abuses and cor-
ruptions, by restraints placed upon divorce and concu-
binage. There were, however, such inconsistencies in
the various laws regarding marriage, some being founded
upon old practices and some upon Christian ideas, that
Jerome said of them that “some were the laws of the
Czesars and some of Christ.” The legal status of women
was also somewhat affected by the later legislation.
Women were granted substantially the same rights as
men in the control of their property ; and they were no
longer compelled to be subject to tutors. A woman was
granted the right of guardianship over her children,
which right had formerly been exercised exclusively by
men.

(4) It is difficult to determine how far the reforms in
the law of succession were due directly to Christianity ;
but these reforms were evidently made from humane mo-
tives, and with a desire to recognize to a greater extent
than heretofore the natural ties of blood. Both the decay
152 OUTLINES OF ROMAN LAW.

of the paternal power and the greater respect paid to
woman rendered the descent through a female line
equally worthy of recognition as descent through a male
line. Valentinian the Younger placed the children of a
daughter on an equality with the children of a son. Jus-
tinian also enacted that the children of a daughter should
represent their mother in the inheritance as if she were
technically within the family. But the greatest reform
occurred with the revolution of the law of succession by
Justinian, which is recorded in the 118th and 127th
Novels. By this change the old orders were done away
with, and the natural ties of blood substituted as the
basis for the devolution of property. The first order of
succession now became the descendants ; the second, the
ascendants ; the third the collaterals—the male and the
female lines sharing equally in the inheritance.

Other examples might be given of ‘the influence of
Christianity upon the general legislation of Rome, such
as the care exercised over widows and orphans, the treat-
ment of prisoners, the protection of benevolent founda-
tions, the abolition of gladiatorial shows, etc., which ex-
hibit a spirit of humanity more broad and liberal than
that which marked any previous period of Roman juris-
prudence.

References.—This has been « favorite topic, especially with the
ecclesiastical historians, who have not always, however, treated the
subject with the discrimination that it requires. The following
references may be of service to the student : Ortolan, “ Hist.,” § 93;
Zimmern, ‘‘ Geschichte,” § 130; Gibbon, ‘ Decline and Fall,” ch.
20; Smith’s ‘‘ Dictionary of Christian Antiquities,” art. aw, by
Sheldon Amos; Greenwood, ‘“ Cathedra Petri,” Bk. II., ch. 7;
Balmes, ‘‘ European Civilization,” chs. 14-19; Lecky, ‘‘ European
Morals,” vol. II., pp. 1-90; Ozanam, ‘‘ Civilization in Fifth Cen-
tury,” I., ch. 5 ; Schaff, ‘‘Hist. of the Christian Church,” II., ch. 3;
Guericke, ‘Church History,” § 69; Gieseler, ‘‘ Church History,”
CHRISTIANITY, 153

I., § 105; Bingham’s '* Antiquities of the Christian Church,” I., Bk.
5; Milman, ‘‘ History of Christianity,” Bk. III., Bk. IV., ch. 1,
and ‘‘ Latin Christianity,” Bk. III., ch. 5; Broglie, ‘‘L’ Eglise et
Y Empire romain du IV.¢ siecle” ; Troplong, ‘‘De I’ influence
du Christianisme sur le droit civil des Romains” ; Meysenburg, ‘‘De
Christianz religionis vi et effectu in jus civile’” ; Rhoer, “‘ De effectu
religionis Christiane in jurisprudentiam Romanam”; ‘‘ Codex Theo-
dosianus,”” which is the chief original authority.
CHAPTER III.
THE FINAL CODIFICATION OF THE ROMAN LAW.

Tue period extending from Constantine to Justinian
was preéminently a period of codification. Although
efforts had previously been made—notably that of Sal-
vius Julianus—to bring portions of the law into a con-
densed form, such. efforts now became so numerous as to
form a distinctive feature of the time. The body of
Roman jurisprudence was no longer inspired by the crea-
tive and scientific spirit which prevailed during the pre-
vious period. Few jurists of eminence had appeared
since the days of Alexander Severus, and on this account
the great legal authorities belonged to the past. Prac-
tically the sources of the law were restricted to the five
great classical jurists already mentioned, and to the con-
stitutions of the emperors. Upon these all legal decis-
ions were based. Efforts were now made to bring the
juristic and statutory law into such a form as to render it
most serviceable to the courts. These efforts were at
first directed toward the less unwieldy portions of the
law, the imperial constitutions ; and asa greater faculty
for cedification was developed, they were extended to the
writings of the jurists. We may group these compilations
into three ciasses : the pre-Justinian codes of the East, the
Roman codes of the West, and the final codification of
Justinian.

a. The Pre-Justinian Codes of the East.—Be-
fore the time of Justinian several efforts were made in

154
FINAL CODIFICATION. 155

the East to collect the scattered fragments of the law.
Some of these were made by private persons and some
under the imperial sanction.

(1) The first compilations were made by Gregorianus
and Hermogenianus, who probably lived during the reign
of Constantine. These codes (codex Gregorianus, codex
Hermogenianus) contain constitutions of the emperors
from the time of Septimius Severus to that of Diocletian
and Maximian. They are usually regarded as having
been the work of private persons, and consequently not
possessing any public authority. But very little is
known of them, either as to their date or the extent
of their subject-matter, since a few fragments only have
reached us.

(2) The Theodosian code (codex Theodosianus) was of
much greater importance. Taking as a model the codes
just mentioned, Theodosius II. appointed a commission
under the direction of Antiochus to collect all the im-
perial edicts, with many of the rescripts issued since the
time of. Constantine. This collection was published in
438 A. D. as the law of the Eastern Empire ; and in the
same year it was received by Valentinian III. and con-
firmed by the Senate as the law of the West. The code
was divided into sixteen books, which were subdivided
into titles and sections. With the exception of the first
five books, which are imperfectly preserved, the collection
is still extant in a complete form. The Theodosian code
possesses great historical importance ; first, because it is
the chief source of our knowledge of the legislation of
the early Christian emperors; and, secondly, because it
exercised a marked influence upon the West, being made
the basis of the codification of the Roman law by the
German conquerors. It is said to have been the original
intention of Theodosius not only to codify the imperial
156 OUTLINES OF ROMAN LAW.

constitutions, but to compile the writings of the jurists,
This latter work, however, even if commenced, was never
completed.

(3) The first evidence that we have of any compilation
of the writings of the jurists is found in a collection of
fragments known as the /ragmenta Vaticana. This name
is given to these fragments because they were discovered
and edited by Angelo Mai in 1823 from a codex rescriptus
in the Vatican library. So far as can be determined,
they were not arranged according to any general design,
but seem to have been collected simply as materials pre-
paratory to some more systematic work. They contain
excerpts from the writings of Paulus, Ulpian, Papinian,
and many other jurists, They also contain certain im-
perial constitutions extending from the time of Marcus
Aurelius to that of Valentinian I. This collection pos-
sesses some historical value, as it throws light upon the
details of certain portions of the law, such as dower and
usufruct, not to be obtained elsewhere.

(4) Another work, which is perhaps worthy of note,
was a collection of juristic writings evidently intended to
compare the Mosaic and the Roman law. This is gen-
erally known as collatio Mosaicarum et Romanarum legum.
So far as it realizes its evident purpose to show that the
Roman law was derived from the Mosaic law, it is of
little value. But it has been of service in reconstructing
certain ancient works, especially the “Sentences” of
Paulus and the “Rules” of Ulpian.

2. The Roman Codes in the West.—During the
fifth century occurred the fall of the Western Roman
Empire and the erection of the new Germanic kingdoms.
While the Germans brought with them their own laws
and customs, the Romans still claimed the right to be
judged by the laws of the Empire. The respect which
FINAL CODIFICATION. 157

the German kings paid to this claim led to the adoption
of the principle of “personality of the law,” whereby
every person, whether German or Roman, was allowed
to be judged by his own national laws. Moreover, the
desire for codification which had shown itself in the East
now extended to the West, and the barbarian kings not
only caused their own laws to be reduced to writing, but
were also induced to compile the Roman laws for the
benefit of their Roman subjects.

(1) The first collection of law made after the fall
of the Roman power in Italy was the Edict of Theodoric
(Zdictum Theodorici). This edict is said to have been
drawn up by the two eminent Latin writers, Cassiodorus
and Béethius. It was published by Theodoric, King of
the Ostrogoths, in the year 500 A. D. As Theodoric,
more than any other barbarian king, was desirous to bring
his own people under Roman influences, this law was
made binding not only upon the conquered Romans but
also upon the Ostrogoths themselves. The Gothic cus-
toms, however, were allowed to remain so far as they did
not conflict with the provisions of the Edict. Although
the Roman sources are treated with more freedom in this
collection than in any other made at this time, the traces
of its origin are sufficiently evident to show that the law
was drawn, in great part, from the Theodosian Code and
the “Sentences” of Paulus. This Edict remained in
force until the conquest of Italy by Justinian, when it
was superseded by the body of codified laws drawn up by
that emperor.

(2) A similar collection of Roman law was made
by Alaric II, King of the Visigoths, in 506 A. D. This
code is known as the Lex Romana Visigothorum or
the Breviarium Alaricianum. It was composed of two
sets of materials, which were distinguished by the com-
158 OUTLINES OF ROMAN LAW.

pilers as Zeges and Fus—the former being imperial laws,
and the latter extracts from the jurists. The chief
sources from which this compilation was drawn were the
Theodosian code, a series of new constitutions (xovella)
issued by Theodosius II. and his successors, the “ In-
stitutes’ of Gaius, and the ‘‘Sentences”’ of Paulus, This,
was the most important of all the codes of the Roman
law made by the barbarian kings. Its authority extended
over the southern part of Gaul and nearly the whole of
Spain. Its influence is seen in the subsequent legislation
of the Spanish clergy in the Council of Toledo. It
also possesses important historical value from the fact
that certain portions of the Roman law are nowhere else
so well preserved—for example, the first five books of the
Thecdosian code, and the writings of Paulus. Before the
discovery of the ‘‘ Institutes ” of Gaius in the beginning
of the present century, it also furnished to us our chief
knowledge of that work.

(3) A less important collection was published by
Sigismund, king of the Burgundians, about the year 517
A.D. Itis known as the Lex Romana Burgundionum.
The name Responsa Papiniani, by which it is sometimes
called, was incorrectly applied to it by Cujacius, who
at first mistook it for the responses of Papinian. In the
preface of this collection is clearly announced the “ per-
sonality of the law,” since it expressly orders that the
Romans shall be judged by the Roman law. The au-
thority of this code was very brief. At the fall of the
Burgundian kingdom (534 A. D.) it gave way to the
Roman code of Alaric, which became the law for all
Roman subjects throughout the southern part of Gaul.

3. The Final Codification by Justinian.—While
the provinces of the West were becoming the seats of
the new Germanic kingdoms, and a new set of institutions
FINAL CODIFICATION. 159

was springing up through the union of German and
Roman elements, the Empire of the East was successfully
withstanding the invasions; and during the reign of
Justinian (A. D. 527-565) it even recovered some of its
ancient splendor. By the notable victories of Belisarius
and Narses its dominion was extended once more over
Italy and Africa, But the fame of Justinian rests chiefly
upon the codification of the Roman law made under his
direction. The previous collections had been, to a
great extent, partial and unsatisfactory. Moreover, the
imperial constitutions, issued since the publication of
the Theodosian code, had, with few exceptions, been left
in an uncollected form. But more than this, the great
body of juristic literature had remained almost un-
touched by the compilers. Those jurists only whose
writings had been sanctioned in the “‘law of citations”
had furnished any materials for codification. Justinian,
therefore, determined to complete the work of Theo-
dosius, and also to bring into a condensed form the
works of all the most important jurists of Rome, so far
as their opinions were applicable to the existing state of
society.

(1) The first efforts of Justinian were directed to the
imperial constitutions, and resulted in the formation of the
Earlier Code (codex vetus). A commission of ten persons
was appointed, with instructions to collect into a single
code the constitutions already embodied in the previous
codes, together with all the constitutions issued since the
time of Theodosius. The commission was empowered
to omit all obsolete matter, to adjust the law to the re-
quirements of the time, and to divide the. whole into
suitable books and titles. This first edition of the code
was completed and confirmed by Justinian in the year
529 A. D.
160 OUTLINES OF ROMAN LAW.

(2) After the publication of the Earlier Code, Justin-
ian, to translate his own words, “ resolved to make a com-
plete revision of the whole civil law and of all the Roman
jurisprudence, by collecting together in a single work the
scattered volumes of the many jurists.” For this pur-
pose, in 530 A. D., a commission of sixteen persons was
appointed, under the direction of Tribonian, with in-
structions to ‘‘ choose and correct all that had been writ-
ten by the jurists whom the emperors had authorized to
interpret the laws.” The commissioners were, therefore,
not restricted by the Theodosian “law of citations,” but
the whole field of authorized juristic literature lay open
before them. They were directed to avoid -repetitions
and contradictory statements, to omit what was obsolete,
and otherwise to adjust the law to the needs of the pres-
ent. This work was completed in three years, and con-
firmed in 533 A. D. It was the boast of the commission
that three million lines had been reduced to one hundred
and fifty thousand. Extracts were made from the works
of thirty-nine jurists, chief among whom were Ulpian—
who furnished more than one third of the whole,—Paulus,
Papinian, Julianus, Pomponius, Quintus Cervidius Scz:
vola, Gaius, and Modestinus.

The whole work was called the Digest or Pandects
(Digesta sive Pandecte). It was divided into fifty
books, which are generally subdivided into titles,
laws or sections, and paragraphs. The general ar-
rangement of subjects was not made with reference
to any strictly logical method, but was probably
founded upon the traditional order of codification as it
existed in the Perpetual Edict and the XII. Tables. The
special order of the titles, according to the theory of the
German critic Blume, grew out of the method adopted
by the compilers to facilitate their work. The theory
FINAL CODIFICATION. 161

of Blume, which seems to be well supported by the facts
in the case, may be indicated by the following brief ex-
tracts from his Essay on this subject. ‘The compilers
separated all the writings from which extracts were to be
made into three parts, and formed themselves into three
committees * * * When the three committees had
finished their labors, the present Digest was formed out
of the three collections of extracts * * * The com-
mentaries on Sabinus (ad Sabinum), on the Edict (ad
Edictum), and Papinian’s writings, are at the head of these
three classes. We may accordingly denote these three
masses respectively by the names Sabinian, Papinian, and
the Edict. In each of these classes, the several works
from which extracts are made always follow in regular
order.”

The Digest, when completed and sanctioned by the
emperor, was made to supersede all the ancient juristic
writings, and was also forbidden to be supplemented by
explanatory notes, lest the original text might be ob-
scured.

(3) Since the works already described were hardly
suited to the purposes of elementary instruction, Justin-
ian directed Tribonian, with the assistance of Theophilus
and Dorotheus, to prepare a brief and systematic treatise
which should contain the elements of the law. This
work, called the Institutes (Zmstitutiones), was scarcely
more than a revision of a similar work written by
Gaius, with such modifications as seemed necessary to
make it applicable to the time. It consisted of four
books, subdivided into titles. Though intended merely
for the use of students, it received the imperial sanction,
and obtained the force of law at the same time as the
Digest.

(4) In the course of the work of codification, many
162 OUTLINES OF ROMAN LAW.

contradictory opinions were discovered in the writings of
the jurists. The more important of these, which the
compilers themselves did not wish to adjust, were re-
ferred to Justinian for his special decision. These de-
cisions had increased to the number of fifty, and were at
first published under the name of Quinguaginta Decist-
ones; they were afterward embodied in the revised
edition of the Code, which was now published. In order
to bring the old code into harmony with the Digest, and
to put into a permanent form his own constitutions issued
up to this time, Justinian ordered a revision of the Earlier
Code. The new edition of the Code (codex repetite pra-
lectionis) was confirmed in 534 A.D. It contains, besides
the Fifty Decisions, the most important constitutions
issued from the time of Hadrian to the year in which
it was published.

(5) During the interval which elapsed between the re-
publication of the Code and the death of Justinian, new
constitutions were issued which affected the law in many
particulars. The number of these ordinances was, how-
ever, very much decreased after the death of Tribonian,
(545 A.D.), which fact perhaps indicates the great influ-
ence which this jurist exercised upon Justinian’s legisla-
tion. The new constitutions (zovelle constitutiones) were
collected and published after the death of the Emperor.
Many of them were originally published in Greek, as the
language of the people; but their translation into Latin
was permitted. The most important part of this collec-
tion is that which relates to the new law of intestate suc-
cession, contained in the 118 and 127 Novels.

4. General Character of the Corpus Juris.—The
Institutes, the Digest, the Code, and the Novels, comprise
what is known as the Corpus Furis—or the Corpus Furis
Civilis, as distinguished from the Corpus $uris Canon-
FINAL CODIFICATION, 163

ict. The most diverse opinions have been expressed
regarding this work of Justinian. Those who look at it
from a merely logical or critical point of view, of course,
find much fault with its arrangement and general method.
By such persons its faults and imperfections are exagger-
ated, and its adjustment to the existing wants of the
Empire is regarded as evincing a barbaric disregard for
the purity of the ancient texts. On the other hand, those
who look at it from an historical point of view, see in it
materials from which may be reconstructed the legal his-
tory of the Roman state. In spite of the freedom which
may have been taken with the ancient texts, it is still the
completest record that we have of the legal thought of
Rome; and, without it, we would lack the greatest monu-
ment of the genius of the Roman people.

The Corpus Juris marks the close of the development
cf the ancient Roman Law—which, from a body of
customary and technical rules originally adapted to the
narrow interests of asmall aristocratic class, had expanded
into a universal system of human rights founded upon
principles of natural equity and adjusted to the needs of
a highly developed civilization. Its reforms were, to use
the language of Legaré, “ a perpetual sacrifice of law to
2quity, of science to policy or feeling, of jus czvile to jus
yentium, of the pride and privileges of Rome to the genius
of humanity consecrated by the religion of Christ.” The
legislation of Justinian was the end of ancient, and the
beginning of modern, jurisprudence. “It was in this
form,” as Savigny says, “that the Roman law became the
common law of Europe.”

References.—Mackenzie, ‘‘Roman Law,” pp. 22-29; Philli-
more, ‘‘ Yntroduction to Roman Law,” ch. 4; Gibbon, “Decline and
Fall,” ch. 44; Guizot, ‘ Hist. of Civilization in France,” Lect. 11;
“Dict. Antiqq.” (Codex Gregorianus, Codex Theodosianus, Brevi-
164 OUTLINES OF ROMAN LAW.

arum Alaricianum, Edictum Theodorici, Corpus Furis Civilis,
Codex Fustinianeus, Pandecte, Institutiones, Novelle); Kaufmann’s
Mackeldey, I., pp. 37-60; Ortolan, ‘‘ History,” Eng. trans., §§ roo—
111; DuCaurroy, ‘‘Instituts de Justinien,” Preliminaire; Rivier,
“Intro. Historique,” §§ 170-197; Demangeat, ‘‘ Droit Romain,”
I, pp. 104-141 ; Hugo, ‘‘ Histoire,” trad. par Jourdan, II., §§ 384-
407; Thibaut, ‘‘Gesch. und Inst ,” §§ 86-95; Deurer, ‘' Ge-
schichte,” §§ 87-92; Marezoll, ‘‘ Lehrbuch,” §§ 27-36; Zimmern,
Geschichte,” $§ 46-49 ; Gravina, ‘“‘ Origines,” p. 588, ef seg. On the
arrangement of the Roman codes, see Maine, ‘‘ Law and Custom,”
ch. 11; Hammond's Introduction to the American edition of San-
dar's ‘‘ Justinian”; also Blume, ‘‘ Abhandlung tiber die Ordnung
der Fragmente in den Pandektentiteln,” ‘‘ Zeitschrift,” IV; On the
historical significance of the Roman law, see Legaré, ‘‘ Origin, His-
tory, and Influence of Roman Legislation,” ‘‘ Writings,” I., p. 502.
PERIOD V.

FROM THE CODIFICATION OF THE LAW BY JUS-
TINIAN TO THE PRESENT TIME.
CHAPTER I.
THE ROMAN LAW DURING THE MIDDLE AGES.

Ir we pursued no farther our study of the history of
the Roman law, we would lose sight of the important in-
fluence that this body of principles has exercised upon
modern jurisprudence. The chief significance that this
system has for the student of to-day is due to the position
that it holds as an essential and permanent factor of
European civilization. Its history may, in fact, be re-
garded as continuous from the time of the XII. Tables—
or rather from the earliest settlement of the Aryan tribes
in Italy—to the present. And it is only by tracing its
fortunes since the days of Justinian that we can fully
appreciate the large place that it occupies in the legal
systems of modern times. Indeed, it may be said that, by
its perpetuity and diffusion among European states, its
importance as a civilizing agency has been even greater
in the modern than it was in the ancient world.

In attempting to review the modern history of the
Roman law, we must, of course, confine ourselves to the
merest outlines of the subject. We shall consider, first,
its preservation during the Middle Ages ; then, the revival
of its scientific study since the twelfth century ; and,
finally, the extent to which it has become an integral
element of modern jurisprudence. In looking at its des-
tiny in the Middle Ages, we shall find that its influence
was preserved, not only in the Eastern Empire, but also
in the barbarian kingdoms of the West, in the feudal

167
168 OUTLINES OF ROMAN ‘LAW.

system, in the medizval Empire, and in the Latin Church.

1. Its Continuance in.the Eastern Empire.—
The Roman Empire, under various names and dynasties,
continued to exist in the East -until the capture of Con-
stantinople by the Turks in 1453 A.D., or more than nine
hundred years after the codification of the law by Jus-
tinian. During this time the Corpus Furis never lost en-
tirely its influence, although it was not always respected
with that deference which Justinian had desired. At first,
its original authority was weakened by numerous trans-
lations and by new constitutions; but it recovered, to a
great extent, its prestige through the works of Basilius,
the Macedonian, and became recognized as the funda-
mental element in the Greco-Roman law. The stages of
its history in the East may be noticed as follows :

(1) Soon after the death of Justinian, the Institutes,
the Digest, and the Code were translated into Greek as
the more popular language of the East. As these trans-
lations were more convenient than the Latin text, they
soon superseded the original law books of Justinian. They
became the basis of new commentaries ; and this fact, to-
gether with the fact that new constitutions were continu-
ally issued by the Eastern emperors, caused the Corpus
Furis in its Latin form to be received with less and less
authority. But the legal principles which it contained,
though clothed in a Greek garb and somewhat modified
in their application, did not entirely pass away.

(2) The multiplication of Greek commentaries upon
the laws of Justinian led in the ninth century to an im-
portant legal reform, involving a new compilation of the
law, by which it was brought into closer harmony with the
original Roman sources. This compilation was begun by
Basilius, the Macedonian. An abridgment of the Roman
and Greek laws was first prepared as a text-book. A more
ROMAN LAW DURING THE MIDDLE AGES. 169

complete compilation was then made, containing selections
from the Corpus Furts and the later constitutions. This
work, which was a kind of restoration of the body of Jus-
tinian’s law, was completed by Leo the Philosopher, and
published (a.p. 887) by him as an authoritative code
under the name of Basilica. That this code preserves
in great measure the laws of Justinian is evident from the
‘fact that it is regarded by modern writers as affording
great assistance in the interpretation of the Corpus Furis.

With the conquest of Constantinople by the Turks
and the fall of the Eastern Empire, the Koran became
the chief legal authority. But still the Romano-Greek law
was not entirely superseded. A policy somewhat akin to
that of “personality”? was adopted by the Turks. The
Greeks were allowed, in many cases, to retain their own
courts and laws. As a consequence, the Basilica have
remained not only under the Turkish rule, but under the
recent independent government, as an essential element
of the laws of modern Greece. ,

2. Its Preservation in the Barbarian King-
doms.—Passing to the West, we find that the Roman law
was subject to more unfavorable influences on account of
the overthrow of the provincial system and the introduc-
tion of peoples and institutions foreign to those of Rome.
But these influences, unfavorable as they may have been,
were not sufficient to destroy the remains of the civil law.
The theory once held that all knowledge of the Roman
law was lost with the fall of the Western Empire only to
to be restored by the discovery of a manuscript of the
Corpus Furis at the siege of Amalphi (A.D. 1135), has
been so thoroughly exploded that it is now scarcely worthy
of mention. In the noted work of Savigny on the History
of the Roman Law in the Middle Ages, there is collected
amass of facts showing conclusively that the knowledge
170 OUTLINES OF ROMAN LAW.

of the civil law was never lost in Western Europe. We
have already seen that between the reigns of Theodosius
and Justinian, the kings of the Visigoths, Ostrogoths,
and Burgundians permitted their Roman subjects to be
governed by the Roman law, and framed codes for the
benefit of these subjects. In other parts of Europe it
might also be shown that, although there were issued no
special Roman codes, yet the knowledge and practice of
this system never died out. The survival of the ancient
law during the barbarian period is evident from the fol-
lowing circumstances :

(1) In the first place, the relation which generally exists
between a conquering and a conquered people would lead
us naturally to conclude that the civilization of Rome
survived in the new Germanic kingdoms. A superior
civilization is never utterly destroyed by a conquest. The
Greek culture, for example, was not overthrown when
Achaia was subdued by the Romans. On the contrary,
it was taken up by the conquerors, and its influence be-
came more extensive than ever before. In the same way
Carthage, Egypt, and Syria survived in the Roman Em-
pire. Although the political system of Rome was dis-
membered by the German invaders, the conquerors did
not destroy—they rather absorbed the civilization of the
conquered people; and of that civilization the law was the
most imperishable element.

(2) Again, the fact that the Roman municipal system
was preserved in the West furnishes a presumption that
the law continued to exist. The organization of the
cities suffered very little change as the result of the inva-
sions. The curia and the city magistrates—the duumvirt
and the defensores—still remained as features of the
municipal government. The Roman provincial govern-
ors, it is true, disappeared, and their places were occupied
ROMAN LAW DURING THE MIDDLE AGES. 171

by the barbarian kings. But these new princes, as a gen-
eral rule, assumed those functions only which were of a po-
litical nature. They required allegiance on the part of the
Roman population ; but the civil jurisdiction and the con-
trol of the private relations of the citizen generally
remained with the curvéa and the municipal magistrates.
As a result, the traditions and practice of the Roman
law were kept alive in the cities.

(3) The influence of the clergy, moreover, tended to
perpétuate the principles of the ancient civil law. The
dignity which was attached to this body of men, their
superior intelligence, and their close relation with the
governing powers enabled them to guide in many respects
the policy of the kings and the forms of legislation. The
private Iaw of the Romans was always looked upon by
the clergy with the greatest respect; and the laws by
which they themselves were governed, were largely per-
vaded by Roman principles. The clerical influence,
therefore, was everywhere directed toward upholding
the ancient jurisprudence. A respect for the laws of the
conquered people was thus instilled into the minds of the
barbarian kings ; and their own customs were reduced
to a'codified form after the pattern of the Roman codes.
By the peculiar position which they occupied, the clergy
were, in fact, the mediators between Roman civilization
and barbarism.

3. The Roman Law and the Feudal System.—
As Europe gradually emerged from the barbarism of the
early medizeval period, there grew up that peculiar form
of social organization known as the feudal system. Pre-
vious tu the growth of this system the Romans and the
Germans had lived side by side, both retaining to a great
extent the customs of their own ancestors. But during.
the ninth and tenth centuries the line of separation be-
172 OUTLINES OF ROMAN LAW.

tween the two races became less and less distinct. Com-
mon customs and institutions were developed that gave a
more uniform character to the social and political system.
These institutions, indeed, possessed many specific dif-
ferences in various parts of Europe ; but there were cer-
tain general features everywhere present. The personal
relation between lord and vassal, the “ double ownership”
of land involved in the feudal tenure, and the exercise of
civil jurisdiction by the holders of fiefs were principles
which in the tenth century prevailed throughout Western
Europe.

Historians have been divided as to the origin of this
peculiar social system. Some have professed to see in it
nothing but the continuance of German customs. Others
attempt to trace it exclusively to a Roman source. The
more comprehensive view seems to be that it was the
product of a union of Roman and German institutions
resulting from the fusion of the two races. While it is
impossible to refer all the essential features of feudalism
to Roman sources, it is unquestionably true that Roman
ideas became incorporated into this system,—which fact
was conducive to the preservation of certain principles of
the Roman law. One or two facts may be sufficient to
illustrate this statement.

(1) The peculiar mode in which the feudal land was
held and certain incidents connected with this tenure bear
the marks of a Roman origin. This statement refers not
merely to the fact pointed out by Sir Francis Palgrave,
that the land was held on a military condition similar to
that in which the colonial lands and the lands on the
frontiers had been held by the Roman veterans ; but to
the fact that the land was held by a perpetual lease, a
sort of “double ownership ” similar to the Roman emphy-
teusis. In the Roman law of empAyteusis, as in the feudal
ROMAN LAW DURING THE MIDDLE AGES, 173

tenures, the superior right of ownership on the part of
the proprietor coexisted with the inferior right of owner-
ship on the part of the tenant. In both cases, the right
of the landlord, as well as that of the tenant, was heredi-
tary. Moreover, certain specific incidents, such as “ es-
cheat ” and “fine upon alienation,” were common to both
systems. Whether the growth of feudal tenures can be
traced directly to a Roman origin or not, it is yet quite
certain that some peculiar principles of the Roman law of
property, which had survived in Europe after the fall of
the Empire, came to be applied to the proprietary rela-
tion existing between the feudal lord and vassal.

(2) Again, the written remains that we possess of the
medizval feudal law show that it contained considerable
infusions of Roman law. A compilation of the feudal law,
made by the consuls of Milan, is extant, and is appended
to some modern editions of the Corpus Furis, under
the name of Consuetudines Feudorum, An examination of
this collection is sufficient to show that the two bodies of
law—the Roman and the feudal—are not entirely foreign
to each other. The terminology, for example, is strikingly
similar, especially in those parts which relate to servitudes,
to the division of estates, to the contracts of purchase and
sale, and of letting and hiring, to pignus and hypotheca,
etc. We also find repeated in the feudal code the well-
known formula of Ulpian, that “the precepts of the law
are to live uprightly, to injure no one, and to render to
every one his due.” Moreover, the express statement is
made that “some causes are to be tried by the Roman
and some by the Lombard laws ” (lib. 2, tit. 1, ed. Gotho-
fredus).

It must not be supposed that the Roman law,
which became mingled with feudal customs, was
preserved in all its original purity. It was, of course,
174 OUTLINES OF ROMAN LAW.

modified in many respects, and adjusted to the new rela-
tions of society ; but still it did not lose entirely the
marks of its descent.

4. The Roman Law and the Medieval Empire.
—Another influence which tended to preserve certain
principles of the ancient civil law during the Middle
Ages was due to the survival of the Roman idea of im-
perialism. The idea of Rome never passed away from
the minds of men. On the contrary, the imperial notion
of government to which the people of Europe had be-
come accustomed under the old Empire continued to hold
sway over the political life of the West, even after the
dissolution of the provinces. And, consequently, those
doctrines of the civil law which were bound up with the
idea of imperialism were fostered by the new rulers.

(1) The idea of the Roman Empire exercised a certain
influence in Europe even during the interval which
elapsed between the fall of the Western Empire and its
restoration by Charlemagne. This is shown in the nomi-
nal submission which the new princes of the West yielded
to the Eastern emperor. By accepting the titles of “ con-
sul,” “patrician,” etc. from the sovereign at Constanti-
nople, the barbarian rulers evinced the respect which they
still retained for the imperial government. Such facts
seem to justify the opinion of Professor Bryce, that,
according to the prevailing belief of the time, the
Western Empire was not so much destroyed by the
deposition of Romulus Augustus, as re-united under
the common sovereignty of the Eastern emperor.

Besides, the barbarian kings not only accepted titles
from the East, but affected Roman methods of admin-
istration in their several governments. It is true that
they were led to do this, as well by the influence of
the clergy as from their own reverence for the Em-
ROMAN LAW DURING THE MIDDLE AGES. 175

pire. Without detailing the causes that brought about
this result, it is enough to say that the idea of mon-
archy among the barbarians was continually tending in
the direction of imperialism. ‘So soon as the royal
authority,” says Sir Francis Palgrave, ‘became devel-
oped among any of the barbarians who settled upon
Roman ground, all the kings took upon themselves, so
far as they could, to govern according to the Roman
policy, and agreeable to the maxims prevailing in the
decline of the Empire, and declared to be imperial
law.”

(2) The idea of imperialism became a more con-
scious and efficient factor in the organization of society
through the revival of the Western Empire by Charle-
magne. Whatever reasons may have existed at the time
to justify this movement, it was generally believed that
Charlemagne was the legitimate successor of Constan-
tine and Augustus. And there is no reason to doubt
that the Emperor himself shared sincerely in this be-
lief, With the restoration of the imperial title we see
attempts made to consalidate and organize the peoples
of Western Europe under one administration, and in a
manner similar to that which had existed in former
times. The Emperor adopted Roman methods, both in
his central and in his provincial administration. Not-
withstanding the prevalence of barbarian ideas, we can
easily see that Charles the Great was moved by a policy
more broad and elevating than that of a mere Frankish

_king—a policy, indeed, which aimed to restore the
Roman Empire in fact, as well as in name, and which
affected the judicial as well as the political system.
The respect in which the Carlovingian rulers held the
civil law of the Romans is evident from a capitulary
of Charles the Bald, which provided “that in all the
176 OUTLINES OF ROMAN LAW.

provinces subject to the Roman law, the delinquent
must be punished according to that law”; with the
further statement of this prince, “that neither he nor
his predecessors had ever designed to enact any thing
repugnant to it.”

(3) With the dismemberment of the Frankish Empire,
the imperial title, after some interruption, passed to the
German monarch, in whose hands the idea of the mediaeval
Empire attained its full development. Under the general
concept of Rome as typifying supreme and universal
dominion, the rulership of the Christian world was con-
ceived to be divided between two co-ordinate spheres of
government—the one temporal and the other spiritual.
Within the one ruled the Roman Emperor ; within the
other, the Roman Pontiff. This idea of universal domin-
ion, comprehending the secular and the spiritual govern-
ment of the world, was known as the Holy Roman Empire.
By such an exaltation of the idea of Rome, the Emperor
and Pontiff alike drew upon the Roman law for legal
principles upon which to support their respective claims
to authority. Especially was this true of the German
emperors, who thought they could definitely trace their
line of succession to Charlemagne, to Constantine, and to
Augustus ; and who in support of their power called into
requisition the principles of the civil law

5. The Roman Law and the Medieval Church.
—Although the theory of the medizval Empire involved
the co-ordinate union of Church and state, the Church
herself was not always bound by this theory. She re-
garded herself in the early period of the Middle Ages as
independent of the state; and in the later period, as
superior to the state. But in all the changes of her policy
the Western Church never ceased, through the entire
medizeval period, to be Roman ; and during this time she
ROMAN LAW DURING THE MIDDLE AGES, 177

never ceased to feel the influence of Roman legislation.

(1) The close relation of the civil law to the Church
is seen, at a very early period, in the preservation of
ecclesiastical provisions established or at least sanctioned
by the later emperors. The Church was not, of course,
indebted to the Roman emperors for the articles of her
faith or discipline. The ecclesiastical organization had
become quite fully developed before Christianity was
accepted as the state religion. After this time, however,
the emperors not only sanctioned the new religion, but
confirmed by their edicts the laws of the Church relating
to faith, morals, and discipline; so that in the course of
time, as Gosselin says, “there was hardly a single im-
portant article of faith or of discipline which was not con-
firmed by the imperial decrees.” The extent to which
ecclesiastical provisions formed a part of the later legisla-
tion of Rome is evident from the codes of Theodosius
and Justinian. It was but natural that these elements of
the Roman law should survive in the Church after the dis-
solution of the Empire.

(2) The devotion of the clergy to the civil law was
another reason why it retained an influence in the Church.
Having been accustomed to this system, the clergy con-
tinued to respect it after the barbarian invasions ; and
taking advantage of the principle of “ personality ” they
chose the Roman code as the system by which they should
be governed. “It seems to be certain,” says Robertson,
“that ecclesiastics: never submitted, during the Middle
Ages, to the laws contained in the codes of the bar-
barian nations, but were governed entirely by the Roman
law.” And this author further observes that “when any
person entered the holy orders, it was usual for him to
renounce the code of laws to which he had been for-
merly subject, and to declare that he submitted to the
Roman law.”
178 OUTLINES OF ROMAN LAW.

(3) Again, on account of the attachment of the clergy
to the forms and principles of the civil law, the in-
fluence of the law was extended with every encroach-
ment made by the clergy upon the secular jurisdiction.
By continually enlarging the authority of the ecclesias-
tical courts, it was soon in their power, says M. Fleury,
“to withdraw almost every person and cause from the
jurisdiction of the civil magistrate. As they thus ob-
tained control over new causes, they applied to these
causes, not the imperfect rules of the barbarians, but
the more refined principles of the civil law.” They
set their faces against private warfare and trial by
combat and favored the modes of judicial procedure
derived from the Roman system. Thus the canon law
derived large accessions from the civil law as a result
of the extensive jurisdiction assumed by the ecclesiastical
courts,

(4) Furthermore, with the growth of the papacy, the
entire organization of the Western Church became per-
vaded with the imperialistic idea of government. The
papacy may, in many respects, be regarded as an histori-
cal continuation of the ancient Roman monarchy.
Hobbes not inaptly characterizes it as “the ghost of the
old Empire sitting on its tomb and ruling in its name.”
The centralization of ai] authority in one supreme head
was the idea of government which clung to the Latin
Church, after the Latin Empire had fallen under the
weight of the barbarian irruptions. At first this idea
was attached oniy to the exercise of authority in matters
spiritual ; and was thus in harmony with the codrdinate
supremacy of the German emperors in matters temporal.
But the rivalry which grew up between the Church and the
Empire caused the Church to adopt a theory of supreme
dominion more consistent than that involved in the ‘idea
ROMAN LAW DURING THE MIDDLE AGES. 179

of the medieval Empire, viz.: the theory that absolute
sovereignty cannot be divided. Consequently, the tem-
poral power was regarded not as coGrdinate with, but
subordinate to, the spiritual power. In carrying out this
idea the Pope succeeded to the place of the later Roman
emperor, who had assumed to be the only supreme
ruler of the Christian world. The methods of admin-
istration adopted by the papal government were hence, in
many respects, derived from the old imperial government
of Rome; and the principles of the civil.law were in this
way, as well as in others already mentioned, taken up into
the canon law, becoming an important element in the
legal system by means of which the ecclesiastical authority
was maintained throughout Western Europe.

With reference to the profound influence of the Roman
law during the medieval period, Legaré very forcibly
and truthfully says that “one does not very readily con-
ceive how the history of the human mind in the middle
ages, can be written without reference to a branch of
study, which, in its double form of civil and canon law
did, during that period, more than all others put together,
to shape and control the opinions of mankind.”

References.—The history and influence of the Roman law from
the time of Justinian to the twelfth century will be found described
with more or less of detail in the following works: Mackenzie,
‘“‘Roman Law,” pp. 30-33; Kaufmann’s Mackeldey, pp. 61-66;
Amos, ‘‘ Roman Civil Law,” Part III., ch.1., ‘‘ The Civil Law in the
East” ; Schomberg, ‘‘ Historical View of the Roman Law,” pp.
164-204 ; Robertson’s, ‘‘ Charles V.,” Intro. notes 24, 25; Irving,
“Introduction to the Civil Law,” pp. 56-77; Ortolan, ‘‘ Hist. of
Roman Legislation,” §§ 115-123 ; Gosselin, ‘‘On the Power of the
Popes in the Middle Ages,” trans. by Kelly, Intro. ; Rivier, ‘* In-
troduction Historique,” Appendice, ch. 1; Marezoll, ‘ Lehrbuch,”
§§ 37-39; Deurer, ‘‘Gesch. und Inst.,” §§ 94, 95; Warnkcenig,
“Vorschule,” S., 164-180 ; Savigny, ‘‘ Geschichte des Rém, Rechts
180 OUTLINES OF ROMAN LAW.

im Mittelalter,” earlier chapters of the work ; Haubold, ‘* Manuale
Basilicorum,” Leipsic, 1819; Zacharid, ‘‘ Historia Juris Grzeco-
Romani Delineatio,” Heidelberg, 1839 ; Heimbach, ‘‘ Histoire du
Droit Byzantin, ou du Droit Romain dans |’ empire d’ Orient,” Paris,
1843-46. For the general influence of Roman imperialism in the
West, the student is referred to the admirable work of Professor
Bryce, ‘‘ The Holy Roman Empire.”
CHAPTER II.

THE REVIVAL OF THE STUDY OF THE ROMAN LAW
FROM THE TWELFTH CENTURY.

THE traditions of the civil law which survived in the
secular and ecclesiastical governments of Western Europe
from the fifth to the twelfth century were drawn, in
great part, from the ante-Justinian legislation. This law
survived because it had already become incorporated into
the life and practice of the provincials. The Corpus Furis
itself possessed no positive authority, except perhaps in
Italy, where it had been introduced when this territory
was wrested by Justinian from the Ostrogoths. And even
in Italy, as in other parts of Europe, the contact of Ger-
man customs and the growth of new institutions tended to
obscure the knowledge of the Roman law as a scientific
system. It would perhaps be too much to say that there
existed during this time no scientific knowledge whatever
of the law in its codified form. But it is doubtless true
that such knowledge was exceptional; and where it did
exist it was confined almost exclusively to the clergy.
The civil law which prevailed in Europe from the fifth
to the twelfth century was, hence, not so much a system
of scientific jurisprudence, as a body of legal rules in-
herited from the Empire and preserved in the practice
of the Romano-Germanic states.

From the beginning of the twelfth century, howevegs,
the ancient law acquired a new position and influence in
the legal systems of Europe. While we may discard the
story of Amalphi, we cannot lose sight of the new and

181
182 OUTLINES OF ROMAN LAW.

powerful impulse which was, at this time, given to the
study of the laws of Justinian, This movement was, in
fact, a part of the general awakening of the human mind
which followed the Crusades ; and so important was it
that the statement of Blackstone is hardly overdrawn,
when he says that the revival of this study “ established
in the twelfth century a new Roman empire over most of
the states of the continent.”

I. The School of Bologna in Italy.—It was in
Italy, the home of the Renaissance, that this scientific
movement had its inception. Even in the eleventh
century, a magistrate of Bologna had given a public
course of law lectures in that city. But it was not until
about the year 1120 that the school of Bologna became
famous as a seat of legal studies. To this place students
flocked from all parts of Europe to become acquainted
with the original laws of Justinian. Among the names
of many legal writers, those of Irnerius, Accursius, and
Bartolus, may be noticed as marking the progress of legal -
study in Italy.

Imnerius is properly regarded as the founder of the
school of Bologna. The method which he adopted in
the study of the Corpus Furis was followed by his suc-
cessors ; and, in fact, gave the distinctive character to
this school for nearly a hundred and fifty years. He was
accustomed to illustrate the text of Justinian by making
brief interlinear and marginal notes, called glosses ; and
this method of annotating the original text gave to him
and his followers the name of gdossators.

Accursius, who died in 1260, is chiefly known from
his collection of the glosses of his predecessors. This
collection is called the Glossa Ordinaria. It contains
important extracts from the whole Corpus Furis, with
the annotations of the glossators, supplemented by his
STUDY OF THE ROMAN LAW. 183

own comments. The value of this work has been vari-
ously estimated. On account of its many contradictions,
it has often been made the object of ridicule; and has
hence tended to bring into discredit the whole school
which it represents. But Ortolan, with more charity than
some others claims that the work must have possessed
great utility, at the time at least when it was written,
from the assistance and impulse which it gave to the
new study of the civil law.

From the school of Bologna the interest in the Roman
law extended to other parts of Italy. Bartolus, who
lectured at Pisa, gave a new direction to legal study
by departing from the method of the glossators. The
great respect for the traditional gloss began to disappear,
and more attention was paid to the exposition of the
principles of the law. Although the independent method
adopted by the Bartolists led to broader and more
scientific notions, their excessive subtilty and finely spun
theories have caused their writings to be well-nigh for-
gotten.

With all the defects of the Italian civilians, it is well to
remember that their earnest labors, extending over a
period of four hundred years, aroused an interest in the
study of the Roman law throughout Europe which has
never ceased to the present day.

2. Study of the Roman Law in France.—lIt is
said that Lanfranc, in the middle of the eleventh cen-
tury, gave lectures upon the Roman law in Normandy ;
and that there appeared, about the same time, in the
south of France, a collection, called Petri exceptiones legum
Romanorum, and derived from the Institutes, Digest, and
Code of Justinian, But it was not until after the rise of
the school of Bologna that the study of Justinian’s laws
began to exercise any general or marked influence upon
184 OUTLINES OF ROMAN LAW.

education in France. The study of the civil law in
this country may be sketched under three distinct
phases: its study from the twelfth to the sixteenth cen-
tury ; its study during the sixteenth and seventeenth
centuries ; and its study from the eighteenth century to
the present.

(1) The first school of the civil law was established at
Montpelier by Placentinus, whose name is said to be de-
rived from the fact that he came from the Italian city of
Placentia. The system which he introduced into France
was that of the glossators ; but this system was soon sup-
plemented by broader and more liberal methods. There
arose a class of civilians who, in their zeal for the Roman
law, sought to instil its principles into the practice of
the local courts and into the policy of the French kings.
Louis IX. ordered the Roman law to be translated into
French; and the Zvablissements of this monarch show
that his own laws were in some cases drawn from Roman
sources. The extraordinary favor with which the civil law
was received, and the seeming prejudice which the canon
law thereby incurred, led Pope Honorius III. to issue the
decretal. Super specula (1220 A.D.), regulating the study of
the Corpus Furis at Paris, the chief centre of theological
learning. The purpose of this decretal was not, however,
as is often supposed, to forbid absolutely the study of the
civil law, but, as has been pointed out by M. de Ferriere,
to prevent ecclesiastics from leaving the holy orders and
betaking themselves to the secular professions of law and
medicine. There is every reason to believe that the Ro-
man law continued to be studied during this period, not
only by civilians as a means of professional advancement,
but even by ecclesiastics themselves as an aid to the
interpretation of the canon law.

(2) From Montpelier and Paris the study was trans-
STUDY OF THE ROMAN LAW. 185

ferred to other parts of France ; and there sprang up the
great schools of Bourges, Orleans, and Toulouse. In
these seats of learning the law was taught from the texts
of Justinian ; and legal instruction and investigation were
marked by a scientific clearness and breadth unknown
since the days of the Roman jurisconsults. Among the
great French civilians who flourished during the six-
teenth and seventeenth centuries, should be mentioned
Alciat, who gave a polite and liberal character to the
study of law ; Cujacius, whose influence has been endur-
ing from the impulse which he gave to the historical
method of legal study; and Domat, who introduced a
more systematic and philosophical treatment by attempt-
ing to set forth the ‘‘ civil laws in their natural order.”

(3) Since the eighteenth century the study of the civil
law has been made auxiliary not only to liberal culture
but also to the improvement and recasting of the French
law. Among the jurists of this period, Pothier undoubt-
edly holds the most distinguished place. By his labors
and his genius he “exercised an important influence
upon the juridical studies and legislation of his country,
inspiring both the jurist and the legislator with an earnest
desire to adjust and digest the incongruous laws which
prevailed at that time.” Following in the steps of Do-
mat, he published his Pandecte Fustiniane in novum ordt-
nem digesta, in which the attempt was made to rearrange
the laws of Justinian in a scientific and logical order.
This work has received the highest encomiums of jurists ;
and it was doubtless of great service in preparing the
way for the formation of the Code Napoléon.

3. Study of the Roman Law in Holland.—In
the early part of the sixteenth century the low countries
were subject to Spain, where the study of the civil law
had not been neglected. As early as 1254, 4 university
186 OUTLINES OF ROMAN LAW.

had been founded at Salamanca in imitation of the school
at Bologna. But the rise of legal studies in Holland may
be traced more directly to the French influence. The
first impulse in this direction was given by Donellus, a
French Protestant who had been driven from his native
country during the religious wars. Under his influence
the University of Leyden soon became famous as a seat
of legal learning. Afterward, there sprang up the Dutch
schools of Utrecht, Harderwyk, Groningen, and Franeker.
During the sixteenth and seventeenth centuries Holland
produced many able men who hold a high rank among
the most distinguished of European civilians. Among
these may be mentioned the names of Grotius, Vinnius,
Huber, Voet, Schulting, and Bynkershoek. Two of these
names at least should not be passed by without a brief
notice.

“Tf Holland had added no other name to the an-
nals of jurisprudence,” says Dr. Irving, “the native
country of Hugo Grotius must still have commanded our
respect.” The great distinction of this jurist rests not
simply upon his exposition of the laws of Justinian, but
upon his application of the principles of the Roman law
to the relations between sovereign states. Although he
was preceded by Gentilis and some other writers, his
claim to be the real founder of the science of interna-
tional law can never be questioned. His work, “De
Jure Belli et Pacis,” is a remarkable example of the utility
which can be derived from the study of the civil law, and
the mode in which its principles may be employed in the
solution of legal and ethical questions.

One of the most thorough and critical expounders
of the Roman law in Holland was Voet, who was a pro-
fessor at Utrecht and Leyden. There have been few
civilians whose opinions have been so highly esteemed in
STUDY OF THE ROMAN LAW. 187

every part of Europe; and in Scotland his authority
surpassed even that of the ancient jurists. ‘‘ With us
nowadays,” says Professor Wilde, in his preliminary
lecture to the Institutes, “the authority of this whole
law seems, in Scotland, to be referred to Voet. It is not
the Corpus Furis that is held in estimation ; and the au-
thority of this Dutchman is now far beyond any authority
of Paulus or Ulpian, or any decision of a Roman emper-
or, strengthened by the advice of all the lawyers in his
states. In short, the commentaries of Voet are made our
Roman law.”

It must not be supposed that the interest in the civil
law ceased with the seventeenth century. Its stady was
not, it is true, pursued with great zeal during the
eighteenth century ; but since the erection of the recent
kingdom of the Netherlands, the universities of Leyden,
Utrecht, and Groningen have been placed upon their
former footing. Two new schools have also been estab-
lished in Belgium, at Ghent and Liége, which have been
honored by the labors of Warnkénig, one of the prominent
civilians of the present century.

4. Study of Roman Law in Germany.—There
is no country of modern times in which the study of the
civil law has been pursued with greater zeal and success
than in Germany. This study, beginning with the six-
teenth century, has been continued with increasing inter-
est until, at present, the German civilians hold the pre-
eminent authority which hitherto belonged successively
to the writers of Italy, France, and Holland. The
writings of the earlier German civilians, though marked
by great industry and research, were extremely technical
and prolix, and possess very little interest for the student
of the present. It is true that a broader appreciation of
the civil law was awakened by such men as Leibnitz and
188 OUTLINES OF ROMAN LAW.

Thomasius, who looked upon it as an important element
of liberal culture. But it was not until the time of
Heineccius (1681-1741) that the German writers may be
said to have attained a rank among the great civilians of
Europe. From this time the various writers on the civil
law may perhaps be grouped into two classes—according
as they have followed the expository, or the historical,
method.

The writings of the eighteenth century were, by way
of eminence, expository in their character—although
some works appeared having more or less of an historical
purpose. The great representative writer of this period
was Heineccius, whose concise and systematic method
has gained for him a great reputation as a text-book
writer. His works were for a long time used in many of
the principal universities of Europe. Although his most
important works were devoted to expounding the doc-
trines of the laws of Justinian, he did not ignore the im-
portance of uniting the study of history with the exposi-
tion of the law. His work on “ Roman Antiquities” was
followed by the “ History of Roman Jurisprudence ” by
Bach, and by other similar works, and perhaps paved the
way for the historical school of the present century.

The recent historical school in Germany grew out
of a reaction against the extreme idealistic tendencies of
German philosophy, which sought to deduce the prin-
ciples of positive law exclusively from ideas of “ pure rea-
son.” This attempt to ignore the empirical element in
law, and to construct a system of jurisprudence with no
reference to the principles of historical growth, was op-
posed by a class of writers by whom the historical method
was strongly emphasized. The founder of this school
was Hugo ; its chief representative was Savigny. The
influence of this school has extended to other countries
STUDY OF THE ROMAN LAW. 189

of Europe; and its method has been of great service in
throwing light upon the origin and development of the
legal systems which prevail throughout the world.

It would be a mistake, however, to think that all the re-
cent civilians of Germany have been devoted to the histori-
calmethod. Asin the eighteenth century there were excep-
tions to the expository mode of treatment that generally
prevailed at that time, so in the present century the his-
torical method has not been the exclusive method pur-
sued by legal writers. Even Savigny met with a strong
opponent in Thibaut, who believed that Germany, having
thrown off the French yoke, should declare itself free
from every foreign system of law, ancient as well as mod-
em. The historical method as expounded by Savigny,
has also at present a prominent antagonist in Ihering, who
claims that law should be regarded not so much as the
product of unconscious historical forces, as the result of
a conscious struggle for the attainment of rights.

5. Study of the Roman Law in England.—As to
the extent to which the civil law has been cultivated in
England, there is by no means a uniform opinion among
historians, The vulgar belief that the English law sus-
tains no historical relation to the Roman, has no doubt
prevented in England the same enthusiasm that has been °
displayed in other parts of Europe. But in spite of this
lack of interest, due to an inadequate knowledge regard-
ing the relation of the two systems to each other, it may
yet be shown that the study has not been entirely
neglected. Leaving for the present the question as to
the historical influence of the Roman law upon the sub-
stance of the English law, a few observations may here
be made regarding the cultivation of the civil law as a
scientific study, both in earlier and in later times.

It is well known that almost immediately after the
190 OUTLINES OF ROMAN LAW.

rise of the school of Bologna, the Italian civilian, Vaca-
rius, was invited to England by Theobald, Archbishop of
Canterbury, to deliver lectures at Oxford. These lectures
were very popular; and Vacarius wrote an epitome of
the Digest and Code for the use of his students. The
similarity of the civil and the canon law led to the idea
that the former, as well as the latter, was an instrument
of papal dominion, and prompted Stephen to forbid its
further study. This interdict was only temporary in its
effect, and the laws of Justinian continued to be studied
as a part of a liberal education. The subsequent kings
encouraged the study in the universities ; and “every
one that affected learning,” says Arthur Duck, “ both
civil and ecclesiastical persons, eagerly pursued the study
of the civil law as the high road to rewards and prefer-
ments.” This author, after enumerating the civilians
who are known to have taught in England, says: “It is
plain that the study of the civil law has flourished in
the kingdom from the reign of King Stephen ; that our
kings have ever had it in their royal protection, and since
the reign of Henry VIII. have allowed an annual salary
for the maintenance of the royal professors of the civil
law, who were before supported by contributions from
their auditors.” And Professor Bryce also says that
“there is abundant evidence that the study of the Roman
law was regularly pursued down to the sixteenth century.”
Toward the close of this century the interest languished,
and it was not until the succeeding century that the study
was again pursued as a branch of legal science.

From the seventeenth century the study of the civil
law in England has been pursued with considerable
success, although, it must be confessed, with not the
same zeal as that shown by the continental jurists. Only
the more intelligent and liberal scholars and jurists
STUDY OF THE ROMAN LAW. I9I

have been able to see the utility to be derived from its
pursuit. Certain scholars, like Duck, Zouch, Taylor,
Irving, and Phillimore, have been devoted to its study,
and have acquired a European reputation ; and certain
jurists, like Selden, Hale, Holt, and Mansfield, have
been well versed in its principles. And there are not
wanting names at present—for example, those of Maine,
Hunter, Holland, Clark, and Amos—to show that the
study of the civil law is still pursued with interest and
with profitable results.

References.—Mackenzie, ‘‘Roman Law,” pp. 33-43; Tom-
kins and Jencken, ‘‘ Modern Roman Law,” Intr.; Bryce, ‘‘Academi-
cal Study of the Civil Law” ; Irving, ‘‘ Introduction to the Study of
the Civil Law,” pp. 78-167 ; Ortolan, ‘‘ History of Roman Legisla-
tion,” §§ 124-127; Kaufmann’s Mackeldey, pp. 64-77 ; Marezoll,
‘* Lehrbuch,” §§ 40-42; Deurer, ‘‘ Gesch. und Inst.,” § 96 ; Warn-
keenig, ‘‘ Vorschule,” S 181-295 ; Haubold, ‘ Institutiones Juris
Romani,” Bd. I; Hugo, ‘‘ Lehrbuch der Gesch. des Rém. Rechts
seit Justinian,” S 99-575; Savigny, ‘‘Geschichte des Rém. Rechts
im Mittelalter,” later chapters of the work; Duck, ‘‘ De Usu et
Auctoritate Juris Civilis Romani,” etc. ; Wenck, ‘‘ Magister Vacarius
Primus Juris Romani in Anglia Professor,” Lipsiz, 1820; Rivier,
“Tntroduction Historique,” Appendice, ch. II, with an extensive
bibliography.
a

CHAPTER III.
THE ROMAN ELEMENT IN MODERN JURISPRUDENCE,

WE are now prepared to consider the extent to which
the principles of the Roman law have become a part of
the substance of modern jurisprudence. The continued
practice of this system, to a greater or less extent, after
the fall of the Latin Empire, and the scientific interest
shown in its study since the twelfth century, are facts
which would naturally lead us to believe that it must have
exercised an important influence upon the spirit of mod-
ern law. On examination it will be found that, asa
result of the historical and scientific tendencies already
described, the general legal principles which control the
administration of justice throughout the courts of Chris-
tendom to-day, are essentially the same as those em-
bodied in the code of Justinian. These principles
have, of course, been applied in modern times to a wide
range of social, industrial, and commercial facts which
did not exist in the Roman Empire; but it is no less true
that the general doctrines expressed in the various
branches of the ancient civil law still influence, either
consciously or unconsciously, nearly every modern
tribunal.

It must be observed that the reception of the Roman
law in modern times has been due not so much to any
positive state authority as to the essential superiority of
the law itself. As Puchta says: “It was not through
any external power, but by the force of scientific convic-
tion, that the Roman law, just like the philosophy of the

192
THE ROMAN ELEMENT. 193

Greeks and the masterpieces of the ancient world, found
an entrance into modern life.” This fact is also expressed
in a maxim which prevails upon the Continent : “‘ Serva-
tur ubigue jus Romanum non ratione imperit, sed rationis
imperio.”

_ I. The Modern Civil Law on the Continent.—
We may illustrate the influence of the Roman law upon
the substance of modern jurisprudence by first referring
briefly to the “modern civil law.” This term is usually
applied to that part of the Roman system which has been
preserved in the municipal laws of modern continental
states. Although the term ought, perhaps, to be extended
so as to apply to the whole body of principles derived
from Roman jurisprudence wherever they may be found,
we shall lose nothing by employing it in the ordinary
sense, provided we bear in mind that the reception of
these principles is by no means confined to the municipal,
or national, laws of continental Europe. So well recog-
nized is the fact that the states of the continent have de-
rived the main part of their jurisprudence from the civil
law of Rome, that they are often called the “ civil-law
countries,” as opposed to the ‘‘ common-law countries,”
that is England and her congeners, which are supposed
to have an independent system of jurisprudence. The re-
ception of the Roman law on the Continent may be illus-
trated by a few statements regarding the civil law in Italy,
Spain, France, and Germany.

(1) In Italy, the Corpus Furis has never ceased, since
the days of Justinian, to form an integral element of the
legal system of the country. With the union of Italy to
the Eastern Empire, the Roman code obtained full au-
thority in all the courts. With the conquest of the coun-
try by the Lombards, and afterward by Charlemagne, a
portion of the peninsula still remained under the Eastern
194 OUTLINES OF ROMAN LAW.

authority ; and even in that part which became subject
to the invaders, the Roman people were not deprived of
their national laws. With the gradual amalgamation of
the Romans and the Germans, the laws of these peoples
became fused into a common body of legal cus-
toms. The clergy, by their great influence, emphasized
the importance of the ancient jurisprudence, and suc-
ceeded in giving to the Roman element a predominant
importance throughout the peninsula, More than all
else, the veneration which the Corpus Furis acquired by
the revival of its scientific study, caused it to be ac-
cepted by the courts as the chief authority in legal
decisions. And this influential position it has in
general retained until the present time. The authority
of the Corpus Furis may, of course, be superseded by
legislative enactments, or be modified by well-established
customs ; but where it is not thus superseded or modi-
fied, it is by presumption the law of the kingdom.

(2) In Spain, as we have already seen, the law
rests historically upon the ante-Justinian legislation
embodied in the code of Alaric II., together with the
German customs brought into the country by the Visi-
goths. The almost unlimited influence of the clergy dur-
ing the formation of the Visigothic state, secured the
continuance of the Roman law, in spite of the efforts of
some Gothic princes to abolish it. The conquest of the
Saracens, indeed, imposed the Koran upon Spain for the
time being; but the recovery of the peninsula by the
Christians reéstablished the Gothic law with all its Roman
ingredients. The revival of the scientific study of the
law had the same general effect in Spain as elsewhere,
although its influence may not have been so marked.
The Corpus Furis was respected as a body of auxiliary
law, to be quoted, but not to supersede established cus-
THE ROMAN ELEMENT. t95

toms. It is doubtless true that the external authority of
the laws of Justinian did not have as much weight
in the Spanish courts as in those of some other countries ;
but an examination of the substance of the Spanish law
is sufficient to convince any one who is acquainted with
the Roman code that it isin fact largely derived from
Roman sources. Among certain Spanish writers—for
example, Asso and Manuel—it is the fashion to ignore
this indebtedness. In the Institutes of the Spanish law,
however, compiled by the writers just mentioned, not
only are the survivals of the Roman law most apparent
and striking, but the explicit statement is more than once
made that certain rules are derived from the laws of
Rome. “The truth is,” says Mr. Johnston, the translator
of Asso and Manuel’s Institutes, “ that almost every civil-
ized European nation which may wish to assume credit for
the originality and perfection of the principles of its
jurisprudence, proclaims its plagiary in the very promulga-
tion of those principles; and it appears something like
an act of imbecile ingratitude to wish to diminish the
debt, more or less, due to their great prototype, Rome.
To no nation more than Spain does this charge attach
for the disavowal of this obligation.” But still certain
legal writers of Spain—such as Castro, Alvarez, and
Palacios—openly avow the Roman or civil law to be
a part of the common law of the country.

The various compilations of the Spanish law have
tended to reduce to a permanent form whatever Roman
elements it may have hitherto contained. As early as
1255, the “ Fuero Real ” was issued by Alfonzo the Wise.
This prince also collected the “ Partidas,” a code which
was not, however, put into force until about 1348. A signifi-
cant remark is made by Alvarez, in reviewing the history of
the royal laws of Spain, to the effect that the “ Partidas”
196 OUTLINES OF ROMAN LAW.

were ‘

‘composed in great measure of the laws of the
Roman codes, and of chapters from the canonical law.”
These collections formed the basis of the later codes—the
“Recopilacion,” published in 1567 under Philip II, and
the “Novisima Recopilacion,” issued in 1805 under
Charles IV.

(3) In France, influences of a similar kind have been
at work to make the Roman law a constituent part of the
national jurisprudence. In early times these influences
were stronger in the south than in the north of France,
which gave rise to the distinction between the country of
the written law (pays de droit écrit) and the country of
the customary law (pays de coutume). The proximity of
Southern France to Italy, its larger number of Roman
municipalities, its occupation by the Visigoths and Bur-
gundians among whom Roman codes had been pub-
lished, and, later, the ardor shown in the revived study
of the law at Montpelier and Toulouse, are facts sufficient
to explain the preponderance of the Roman law in the
south. But its influence was by no means unfelt in the
north. Charlemagne had republished the code of Alaric
II., and both he and his successors recognized the prin-
ciple of ‘ personality.” And in later times the Roman
law came to be treated as common law by some cities, as
Metz, Toul, and Thionville, and also by certain provinces,
as Auvergne, Bourbon, and Berry.

The growth of the French monarchy had a tendency
to unite the north. and the south under a common admin-
istration of justice, and to give a more extended influence
to the laws of Justinian. This movement was greatly
aided by the civil lawyers (Zégis¢es), who used their supe-
rior knowledge not only to repress the anarchy of the
feudal system, but to build up a uniform system of juris-
prudence throughout the kingdom, By their admission
THE ROMAN ELEMENT. 197

to the baronial courts and the Parlement of Paris, they
introduced the principles of the civil law into all the
tribunals of France. The authority thus given to these
principles is evident from the statements of Pierre de
Fontaine and Beaumanoir, to the effect that the Roman
law was in their time considered as common law in default
of well-established customs to the contrary.

With the decline of barbarism and feudal customs, and
the more complete organization of the judicature, to-
gether with the increasing influence of the égzstes, the
civil law became by far the most important element in the
laws of France. The “Code Napoléon,” in which these
laws are brought into a codified form, is, hence, in great
part, a republication of the laws of Justinian, as they have
in the process of time become adjusted to the needs of
the French nation,

(4) In Germany, we find a state of things which, in
early times, was entirely different from that existing in
other parts of the continent ; but which, in later times,
was quite similar to that already described in France.
Since the Romans gained no permanent foothold beyond
the Rhine, this country was affected by scarcely any
Latin influence before the fall of the Empire. The
people, unmixed with foreign blood, retained the primi-
tive customs of their ancestors. Even the principle of
“personality,” which in other countries favored the con-
tinuance of the Roman law, enabled the Saxons who
were brought within the empire of Charlemagne to cling
to their old traditions. While, therefore, the Goths, the
Burgundians, and the Franks, who had sought new homes
across the Rhine, were brought under the Romanizing in-
fluences of the south, the Germans who remained in their
original seats developed a customary law of their own.
This body of customs was in the thirteenth century com-
198 OUTLINES OF ROMAN LAW.

piled in the “Saxon Mirror” (Sachsen Spiegel), and later
in the “ Swabian Mirror ” (Schwaden Spiegel), which codes
represent an important historical element in the local
jurisprudence of the modern German states.

But causes similar to those existing in other parts of
Europe gave to the civil law a marked influence upon the
general laws of the Empire. The growth of the monarchy,
the influence of the clergy upon the civil power, but es-
pecially the conquest of Italy and the revival of the im-
perial title, together with the prevailing theory that the
German Empire was merely a continuation of the Roman
—led to the introduction of the civil law as a support to
the royal power. This gave a new importance to the
civil lawyers who had received their legal education in
Italy. These persons espoused the cause of the em-
peror as against the feudal nobility, and the alliance
thus formed gave to the Corpus Furis a predominant au-
thority in the imperial courts. The subsequent cultiva-
tion of the law in the German universities, and the new
organization of the judicial system, by which the civilians
were given a place in the administration of justice, opened
the way completely to the influx of Roman ideas. The
civil law, so far as it was applicable in judicial cases, be-
came incorporated as a part of the imperial law ; and the
later codification of the law in Prussia, as well as in Aus-
tria, while professing to supersede the Roman law, has,
in fact, given to the body of the civil law already received
by the courts, a permanent legislative sanction. Besides
those portions which have thus become embodied in the
German law through judicial and legislative sanctions,
the Corpus Furis itself has still, with few exceptions, a
subsidiary authority in the courts, having a binding force
in default of contrary statute or custom.

2. The Roman Element in the English Law.
THE ROMAN ELEMENT. 199

—That the laws of Continental Europe are grounded upon
the Roman law is a fact everywhere recognized. As we
approach, however, the question as to its influence upon
the English law, we come upon controverted ground.
The theory was for a long time held, and still prevails to
a certain extent, “that the development of the English
law has been entirely uninfluenced by the Roman, and
that it should be regarded as merely the natural indigenous
product of the English soil.” In opposition to this view,
certain jurists, such as Selden, Hale, and Lord Holt, have
for a long time recognized the fact that many portions of
the English law have been drawn from Roman sources ;
and, more recently, certain legal historians, such as
Spence and Finlason, have earnestly advocated the opin-
ion that the great body of the English law, notwithstand-
ing its own distinctive features, is indebted to the Roman
more largely than is generally supposed. While there
can be no doubt regarding the Roman influence upon
the ecclesiastical, the chancery, and the admiralty laws,
the theory is gaining ground that even the early common
law was based upon, or at least greatly influenced by,
Roman ideas. This influence was not, of course, due
so much to any formal sanction, as to causes which were
indirect and often unconscious in their operation.

To estimate the full extent to which the laws of Rome
have passed into England, it would be necessary to con-
sider their early introduction into Britain by the Roman
occupation ; their continuance after the Saxon migra-
tions and the Norman Conquest; their incorporation into
the early common law, as shown by the early text-book
writers ; and their influence upon the other branches of
English jurisprudence. It will be impossible for us here
to follow out this line of argument; but those who pursue
such an investigation, uninfluenced by a national bias, will
be drawn doubtless to the following conclusions:
200 OUTLINES OF ROMAN LAW.

(1) The Roman law was firmly implanted in Britain
while that island was yet a province of the Empire. The
Roman rule continued in that country for nearly four
hundred years, during which time justice was adminis-
tered by Papinian, and also, as Selden thinks, by Paulus
and Ulpian. That the island was not reduced merely for
a military purpose is evident, not only from the general
policy, expressed in the words of Seneca, that “where
the Roman conquers, he also inhabits,” but also from the
specific testimony of such writers as Tacitus and William
of Malmesbury. Without going into the details of this
question, it must suffice to say that all the evidences de-
rived from the extent of the Roman occupation ; the
thorough organization of the provincial system ; the in-
troduction of Roman and Italian colonists ; the large
number of Roman municipalities ; the extension of civil
rights to all the free inhabitants of the province by the
general edict of Caracalla ; the administration of justice
by eminent Roman jurists, and the introduction into the
Roman code of opinions delivered in Britain—combine
to show that the Roman law prevailed in England during
this period.

(z) The Roman law was not abolished by the Anglo-
Saxon invasions and the Norman Conquest. The notion
that it was so abolished is due to mistaken views regard-
ing the effect of the withdrawal of the Roman legions, and
regarding the importance of the early Saxon and Nor-
man institutions, as well as to an inadequate knowledge
of the substance of the law itself during this period.
It is impossible to suppose that the transfer of a few
thousand soldiers across the channel could uproot four
centuries of civilization. On the contrary, the cities
still remained, and the Roman law continued to be
administered in them, even after the Saxons introduced
THE ROMAN ELEMENT. 201

their barbarous customs. During this period the influ-
ence of the clergy, here, as elsewhere, was always in favor
of the civilized code of the Empire. These persons aided
in the administration of justice in the Saxon courts ; and
it was under their influence, Bede tells us, that the Saxon
customs were codified in imitation of the Roman laws.
Mr. Spence has collected a large number of legal principles
current in England at this time which can be explained
only on the theory of their Roman origin.

The Norman Conquest, moreover, did not entirely de-
stroy the Roman influence. Regarding the body of law,
known as the Leges Henrict Primi, the only important
collection made during this period, Mr. Finlason says it
“is composed of equal portions of Roman law and Saxon
law, and is an obvious endeavor to engraft the former
upon the latter, or rather to unite a Roman system with
Saxon institutions.” It may be safely asserted that at no
time from the organization of Britain as a Roman prov-
ince to the end of the Anglo-Norman period did the
Roman law cease to be an important element of the le-
gal institutions of England.

(3) The actual incorporation of the Roman law into
the substance of the English common law is shown from
the works of the early text-book writers. The revival of
the scientific study of the civil law under Vacarius and
his successors resulted—notwithstanding the opposition
sometimes shown to the new studies—in the desire to
reduce the prevailing customs to a systematic form.
These customs comprised Roman as well as Saxon and
Norman elements, as is evident from the writings of
Glanville, Bracton, and the author known as Fleta. Of
these writings the work of Bracton is the great monu-
ment of the early common law. Itis called De Legibus et
Consuetudinibus Angle, and the author says in his preface
202 OUTLINES OF ROMAN LAW.

that he is expounding the law actually in force in the
English courts. An exhaustive analysis of this work by
a recent German writer, Giiterbock, shows that the Eng-
lish common law relating to persons, to property, to con-
tracts, and to procedure is governed by principles and
rules, and even expressed in phraseology, to a great ex-
tent, identical with those found in the laws of Justinian.
And Mr. Spence, whose thorough knowledge of both the
English and the Roman law is unquestioned, says: “ My
own observation would lead me to say that there is
scarcely a principle of law incorporated in the treatise of
Bracton that has survived to our own time, which may
not be traced to the Roman law.”

(4) The influence of the Roman law in England is
still more clearly seen in other branches of the national
jurisprudence. It is seen in the ecclesiastical law, in
which a great variety of Roman principles regarding
the administration of estates passed into England. It is
also seen in the chancery law, in which Roman doctrines
were employed by the English chancellor in the construc-
tion of the law relating to uses and trusts, the right of
redemption in mortgages, the extent of liability in cases
of ignorance and fraud, etc. It is, moreover, seen in the
commercial law, in which the general principles relating
to contracts which had been developed by the Roman
pretors and jurists became absorbed into the English
law—notably under the judicial reforms of Lord Mans-
field.

Speaking generally, it may be said that, with the
exception of certain provisions relating chiefly to the law
of real property, the most important principles of the
English law, not established by direct legislation, may be
traced either directly or remotely to the laws of Rome.
There is a strange fascination which seems to lead some
THE ROMAN ELEMENT. 203

authors to attempt to ground the great principles of
English jurisprudence—and especially those that are
derived from the common law—upon the barbarous cus-
toms of the Anglo-Saxons, This spirit is well rebuked
by Mr. Goldsmith, an eminent English writer on Equity.
“It is scarcely possible,” says this jurist, “to suppose
that any well-read lawyer, captivated as he may be with
the notion of Saxon liberty, can proceed far in the study
of either system without perceiving a striking analogy
between the civil law of Rome and the common law of
England, not only as to their maxims and principles, and
their technical phraseology, but also their method of
practice, showing how early, and to what extent, one sys-
tem became the instructor and guide of the other. To
some minds there is a black-letter witchcraft in the
expression ‘ Anglo-Saxon liberty,’ ‘ancient constitution,’
and the like, whilst the chances are that, in furnishing an
example, they may not unfrequently fall into the whim-
sical position of seizing upon some relique of Roman
jurisprudence, to prove the perfection and justice of their
own.”

3. The Roman Law and the Modern Canon
Law.—Besides the municipal laws of different countries,
the laws of the Church, which have formed an important
part of modern European jurisprudence, have also taken
up and perpetuated the principles of Roman jurispru-
dence. By the term “canon law” is meant “the body
of rules and regulations which were primarily established
by the Christian Church and enforced by ecclesiastical
authority, but which in the course of time became ex-
tended to many matters purely civil, and were recognized
and sanctioned by the tribunals of the state.” We have
already seen how the early Church became related to
the Roman Empire ; how the clergy acquired jurisdiction
204 OUTLINES © ‘ROMAN LAW.

in civil as well as in ecclesiastical matters ; and how the
imperial system of law furnished a repository of legal
principles from which the Church derived many rules
applicable to those cases which came under its jurisdic-
tion. By these means the Church has aided in preserv-
ing the Roman law to modern times.

The modern stage of the canon law may be said to
date from the formation of the Corpus Furis Canonict,
which was a direct result of the revival of the study of
civil law in Italy. It is difficult to indicate in a few
words the precise relation of the civil to the canon law.
But a brief reference to the form, the substance, and the
authority of the latter-code will serve to show that it has
been a sort of counterpart or reflection of the laws of
Justinian, and has aided in extending their influence in
modern Europe.

(1) The form of the Corpus Furis Canonici, as regards
not only its name but its arrangement, was fashioned
after that of the Corpus Furis Civilis. In imitation of
the Digest, the Code, and the Novels, the main body of
the canon law has taken the form of three distinct com-
pilations,

The first part is the “Decree” of Gratian (Decretum
Gratiani, A. D. 1140), which was published by Gratian,
a Benedictine monk of Bologna; and was based upon
all the previous legislation of the Church, contained in
the acts of councils, decrees of popes, and previous com-
pilations.

The second part consists of the “ Decretals,” including
the “Five Decretals” of Gregory IX. (Quingue Libri
Decretalium Gregortti Noni, A. D. 1234), which is said
to have been issued on account of the light thrown
upon the previous law by the study of Justinian’s works ;
the “Sixth Decretal” (Liber Sixtus Decretalium, A, D.
THE ROMAN ELEMENT, 205

1294), prepared by order of Boniface VIII.; and the
“Clementine Constitutions” (Clementis Pape Constitu-
tiones, A. D. 1313), issted by Clement V., and sometimes
called the “Seventh Decretal.”

The third part consists of the “ Extravagantes,” in-
cluding those issued by John XXII. (£xtravagantes
Fohannis XXII, A. D. 1340), and others issued from
the time of Urban VI. to that of Sixtus IV. (£xtrava-
gantes Communes, compiled A. D, 1483).

The formal relation of this body of law to the codifica-
tion of Justinian is well expressed in a statement often
quoted from the work of Arthur Duck, on the “ Use and
Authority of the Civil Law”: “The Roman pontiffs ef-
fected that in the Church which Justinian effected in the
Roman Empire. They caused Gratian’s Decree to be pub-
lished in imitation of the Pandects ; the Decretals in imita-
tion of the Code; the Clementine Constitutions and the
Extravagantes in imitation of the Novels; and to com-
plete the work, Paul IV. ordered Launcellot to prepare
Institutes, which were published at Rome under Gregory
XITI., and added to the Corpus Furis Canonici.”

(2) As regards the substance of the canon law, there is,
of course, much that deals with matters peculiar to Church
doctrine and discipline, to the functions of the clergy, etc.,
which bear few marks of the ancient secularlaw. But there
are yet manyexamples which indicatethesurvival of Roman
legislation in the Church. In opening the body of the
canon law, we first notice the preliminary statements of
the “ Decree” which define the general principles and
sources of the law, and which reproduce, in many respects,
the phraseology of the Digest. More striking examples
are seen in the various titles of the “ Decretals,” which,
for instance, relate to the elements of procedure, as res#-
tutio in integrum, litis contestatio, presumptions, exceptions ;
206 OUTLINES OF ROMAN LAW.

to the different kinds of contracts, as commodatum, deposit,
purchase and sale, letting and hiring, exchange ; to modes
of acquiring property, as prescription, donations, testa-
ments; to dower, and donation between husband and
wife, etc. And the rules and principles which are found
in the various branches of the law are largely identical
with those found in the corresponding branches of the
civil law.

In many cases, it is true that the principles of the canon
law are modified to meet the advanced ideas of the Church
regarding morality and justice, For instance, the laws
relating to marriage and divorce are more closely linked
with the religious idea of the family than was the case in
the laws of the Empire. So, too, the principle of good
faith (dona fides) on the part of the possessor, when this is
made the condition of a good prescriptive title, is more
strongly emphasized in the canon than in the civil law.
But, in spite of such changes, it is clearly evident thatthe
laws of Justinian have been woven into the fabric of the
canon law, and in that form have obtained the sanction
of the Church,

(3) So far as the ancient law has been taken up into the
Corpus Furis Canonici, it has been kept alive through the
influence and authority which the canon law itself has
obtained in different countries, The peculiar position of
the Latin Church in the growth of modern states has
served to bring this code into close connection with the
national laws of Europe. As longas the papal supremacy
was recognized, the canon law possessed an unlimited
authority in the Church, and formed, in great part, the
basis of the ecclesiastical law in every country. And even
after the decline of the papal power, it generally retained
the force of subsidiary law in Protestant states. In Scot-
land and Germany it has not only exercised a great in-
THE ROMAN ELEMENT. 207

fluence upon the common law, but its authority is openly
acknowledged when not opposed by the established law
or customs of the land. In France, though it is accepted
only so far as it has received the formal sanction of the
state, it has yet contributed much to the ecclesiastical and
secular jurisprudence. Evenin England, where the op-
position to it has been most marked, it has retained, in
connection with the civil law, an authority in the ecclesi-
astical, the admiralty, the military courts, and the courts
of the two universities. On account of the peculiar jurisdic-
tion of the ecclesiastical courts in England, a considerable
portion of the law relating to marriage, divorce, inherit-
ance, and wardship has been derived from the principles
of the canon law, which in many cases, as has been said,
can be traced to the ancient civil law.

In addition to this, it may be remarked, in passing, that
the administration of the estates of deceased persons,
which formerly characterized the English diocesan courts,
indicates the origin of the distinct surrogate jurisdiction
that prevails in the United States ; and thereby suggests
an important point of contact between the Roman canon
law and American jurisprudence.

4. The Roman Law and Modern International
Law.—Not only has the Roman law been preserved in
the municipal and ecclesiastical jurisprudence of modern
Europe ; it has also exercised a marked influence on the
growth of that body of rules by which the states of Europe
are bound together in one moral commonwealth. Inter-
national law is by way of eminence a product of the last
three hundred years. The Greek states, it is true, recog-
nized certain mutual obligations in times of peace and
war ; and the Romans observed certain forms in declaring
war, which were expressed in their jus feciale. During
the Middle Ages, also, the papacy sometimes exercised a
208 OUTLINES OF ROMAN LAW.

sort of international authority ; and certain rules govern-
ing international trade were also embodied in maritime
codes, such as the Consulato del Mare and the laws of
Oleron, of Wisbuy, and of the Hanseatic towns, But still
the fact remains that international law has obtained a
definite scientific form only since the time of Hugo
Grotius. The introduction of Roman ideas into the
writings of this great publicist and of his successors, and
consequently their influence upon certain general prin-
ciples of international law, are facts that might be illus-
trated in many ways. A few examples only of this in-
fluence can be noticed here.

(1) The most fundamental point of contact between
Roman and modern international law is to be found in
the idea of natural law embodied in the jus gentium.
The jus gentium was not, it is true, conceived by the
Romans as applying to the relations between independent
states. It was, nevertheless, so interpreted by the early
publicists of modern times ; and the ambiguity thus at-
taching to the term, jus gentium, led, in fact, to the most
important and beneficent results. It came to be regarded,
not simply as a law common to all states, nor even as a
natural law universally binding upon individuals,—the
earlier and later ideas of the Romans,—but as a universal
law morally binding upon all nations zvter se. While
Grotius rejected Ulpian’s definition of the jus naturale,
he accepted the idea of natural law expressed in the
later jus gentium of the Romans, as a body of principles
based upon the common reason of mankind. It was
therefore possible for him to extend the equitable prin-
ciples already developed in the Roman jus gentium to
the relations existing between sovereign states. States
were looked upon as moral persons—subjects of the
natural law, and as equal to each other in their moral
rights and obligations.
THE ROMAN ELEMENT. 209

(2) The contact between Roman and _ international
jurisprudence may be seen more specifically in the law
relating to national dominion. Mr. Maine has clearly
shown how the application of the Roman law of owner-
ship (dominium) was favored by the association of political
sovereignty with territory. The old medizval idea that
a king was merely the chief of his tribe, or people, was
gradually superseded by the idea that he was the owner
of the soil occupied by his people. Hence it became
possible to look upon the sovereigns of Europe as “a
group of Roman proprietors.” Their respective rights
over their own lands, and their territorial relations to
each other, could be justly determined upon principles
derived from the Roman law of dominium, or ownership.
The influence of these principles is seen in the definition
of those things common to all mankind (ves communes) ;
in the founding of the right of discovery upon the law of
“ occupation”; and in the determining of other modes
of territorial acquisition, as voluntary transfer (¢raditio)
and long possession ( prescriptio).

(3) Furthermore, the law relating to treaties is, to a
great extent, founded upon principles derived from the
Roman law of contracts. As states are moral persons,
the obligations which they establish by mutual agreement
are binding in so far as a recession from the agreement
would be injurious to either party. The Roman law of
contract was largely derived from the jus gentium, and
was liberally interpreted according to the principles of
natural equity. It thus furnished a broad basis for the
law relating to those obligations which grow out of
national agreements. Grotius not only founds the con-
ventional obligations between states upon the law of con-
tract, but shows, in a manner similar to that pursued by
the Roman jurists, how specific obligations are affected
210 OUTINES OF ROMAN LAW.

by damages wrongfully done, and by other accessory
facts.

The connection between the two systems might, fur-
ther, be indicated by selecting other examples from the
work of Grotius, and by pointing out the influence of
Grotius upon more recent publicists, and also by showing
how the scientific principles of Grotius and his successors
have been taken up into the concrete body of rules actually
binding between civilized nations. Such examples, how-
ever, would but furnish additional evidence that modern
international law cannot be adequately understood with-
out some reference to the Roman sources from which it
is in great measure derived. In the words of Mr. Maine:
“Tf International Law be not studied historically—if we
fail to comprehend, first, the influence of certain theories
of the Roman jurisconsults on the mind of Hugo Gro-
tius, and, next, the influence of the great book of Grotius
on International Jurisprudence—we lose at once all
chance of comprehending that body of rules which alone
protects the European commonwealth from anarchy.”

5. Spread of the Roman Law by Colonization.—
One of the most important movements of modern history
has been the spread of European civilization by the es-
tablishment of colonies. It is but natural to suppose that
such a movement would result in transferring to other
lands the ideas and institutions already existing in Euro-
pean states. Making all due allowance for the changes
which a legal system must undergo in being adjusted to
the customs of a foreign people, it is yet true that the
laws of European colonies are, in great part, the laws of
Europe. The administration of justice in these territories
has generally been conducted by European officials, and
according to the forms of European jurisprudence. Even
when native courts and customs have been recognized,
THE ROMAN ELEMENT. 2ii

the judicial decisions have been subject to review by the
tribunals of the mother country. Hence, if we examine
the laws of those countries which have sustained, or which
still sustain, a colonial relation to Europe, we shall find
that wherever European power has extended, there have
been diffused the principles which modern jurisprudence
has derived from Rome. While a large number of co-
lonial states have passed from the state of dependence to
that of independence, the laws established by the mother
country have, to a greater or less extent, remained in force
as a part of the customary law. Important traces of the
Roman law may, therefore, be found in the colonial states
of Spain, Holland, France, and even of England.

(1) The extensive discoveries made by Spain in the East
and West Indies, in Mexico and South America, although
prompted by the spirit of commercial enterprise, were
accompanied by a policy which required the permanent
possession and organization of the conquered countries.
The supreme authority over all the colonies was vested in
a general council (consejo de Indias) residing at Madrid.
The local authority was exercised by viceroys (vérreyes),
and justice was administered by local tribunals (awdien-
cias), from whose decision there was an appeal to the
general council. Under such an administration, the Span-
ish laws were transported to the newly discovered coun-
tries. With the throwing off of the Spanish yoke and the
formation of independent states, the civil law of Spain
with its Roman ingredients remained as an important
element of the national jurisprudence.

(2) The principal colonial settlements of the Dutch
were made in India, Java, and Japan. By repeated suc-
cesses over the Portuguese, the Dutch held for a time
the control of the commerce of the East. The exclusive
commercial spirit which inspired them did not, however,
212 OUTLINES OF ROMAN LAW.

require such an extensive occupation of the inland terri-
tory as that to which the Spaniards, by their desire to
possess the mining districts, had been driven in America.
But still the Dutch organized local governments, and
their laws became introduced into the East, the most im-
portant example of this being the Dutch laws of Ceylon,
which contained a large Roman element.

(3) Although France took some part in the East Indian
trade, her colonies were principally confined to America,
where she took possession of the countries bordering on
the St. Lawrence and the Mississippi. These countries
were organized under French rule, and justice was ad-
ministered in accordance with the laws of the mother
country. When her possessions on the St. Lawrence were
wrested from her by the English, a deposit of French civil
law remained in the customary law of Lower Canada. A
similar result took place in Louisiana when the territory
of the Mississippi was purchased by the United States.
The code of Louisiana, in which the customary law of
this State was compiled in 1824, is regarded by many as
the most faithful and systematic compendium of the
modern civil law. This code is certainly a remarkable
monument of the influence of Roman institutions in the
New World.

(4) England must, of course, be regarded as the most
important colonizing country of recent times. If we
accepted the old view which assumes the absolute inde-
pendence of the laws of England from those of Rome,
we might despair of finding in her colonies any deposit
of Roman law. But the result of the recent investiga-
tions to which we have referred as establishing the his-
torical connection between the Roman jurisprudence and
the various branches of the English law, would lead us to
believe that the laws of the United States, as well as of

wo

\ ae
THE ROMAN ELEMENT. 213

the colonial countries still under the British rule, have a
genetic relation to the legal system developed by the
Roman pretors and jurisconsults. The colonies in
America adopted, at the outset, the English common law,
which has remained a fundamental element of American
jurisprudence. The portion of the common law, how-
ever, which relates to real property and which is the
most distinctive feature of the English law, has been
greatly affected by the prejudice existing in this country
against feudal ideas ; and there has consequently been a
tendency to assimilate the law of real property to that of
personal property, which is more strictly in harmony with
the principles derived from the ancient jurists. The
English commercial law, moreover, which possesses
large infusions of Roman law, and the principles devel-
oped in the English chancery and ecclesiastical courts,
have been, in great measure, taken up by the various
tribunals in this country.

More direct remains of the civil law may be found in
those colonies which the English have obtained from
other countries. These remains may be seen not only
in the province of lower Canada, to which we have
already referred, but in other countries as well. Chan-
cellor Kent says: “The Roman law was blended with
that of the Dutch and carried into their Asiatic posses-
sions; and when the island of Ceylon passed into the
hands of the English, justice was directed to be admin-
istered according to the former system of laws in the
Dutch courts; and Van Leeuwen’s commentaries of the
Roman Dutch law were translated into English in 1820
expressly for the benefit of the English judiciary in the
country.” So, too, when the island of Trinidad passed
from Spain to the English, a translation of Asso and
Manuel’s Institutes was published to facilitate an
214 OUTLINES OF ROMAN LAW.

acquaintance with the Spanish civil law which remained
in force after the English occupation of the island.

These illustrations must suffice to indicate the impor-
tant place that the principles of the Roman law now hold
in the various systems of jurisprudence throughout the
civilized world. In speaking of the modern influence of
the Roman law, Chancellor Kent says: ‘‘ With most of
the European nations, and in the new states of Spanish
America, and in one of the United States, it constitutes
the principal basis of their unwritten or common law.
It exerts a very considerable influence upon our own
municipal law, and particularly on those branches of it
which are of equity and admiralty jurisdiction, or fall
within the cognizance of the surrogate or consistorial
courts. * * * It is now taught and obeyed not only
in France, Spain, Germany, Holland, and Scotland, but
in the islands of the Indian Ocean, and on the banks
of the Mississippi and St. Lawrence. So true it seems
are the words of d’Aguesseau, that ‘the grand destinies
of Rome are not yet accomplished; she reigns through-
out the world by her reason, after having ceased to reign
by her authority.’”

References.—This subject is so extensive that it is difficult to
make a brief list of references touching all the points involved in its
investigation. For a general survey of the subject the student is re-
ferred to Sheldon Amos, ‘ Roman Civil Law,” Part III., ch. 2,
‘« The Civil Law in the West,” but especially § 4, ‘‘ The Civil Law
in Modern States previous to the French Revolution”; Maine,
‘* Essay on Roman Law and Legal Education,” Cambridge Essays,
1856; Kaufmann’s Mackeldey, vol. I., pp. 64-87; Tomkins and
Jencken, ‘‘ Modern Roman Law,” Intr. ; Ortolan, ‘‘ Hist. of Roman
Legislation,” §§ 119-128 ; Rivier, ‘‘ Revue de Legislation Ancienne
et Moderne,” 1873; Spangenberg, ‘‘ Einleitung in das Rémisch-
Justinianeische Rechtsbuch;” S. 94-116, on the present authority of
the Roman law in Italy, Portugal, France, England, Netherlands,
THE ROMAN ELEMENT. 218

Germany, Poland, Denmark, Sweden, Switzerland, etc. ; Duck (Ar-
thur), ‘‘ De Usu et Auctoritate Juris Civilis Romanorum in Dominiis
Principum Christianorum. For the influence of the civil law in
France, cf, Le Bas, ‘‘ Dictionnaire Encyclopédique de la France,”
‘*Droit Romain” ; Ferrier, ‘‘ Hist. of the Roman or Civil Law,”
trans, by J. Beaver, Esq., ch. 26, ‘‘ Of the Use of the Roman Law in
France”; the ‘‘ Code Napoléon.” For Spain, ¢f,, Guizot, ‘‘ Hist. of
Representative Government,” Part I., Lect. 26; Alvarez, ‘‘ Institu-
ciones de Derecho Real de Espafia,” part relating to the history of
the royal laws, translated in White’s ‘‘ New Recopilacion,” I., pp.
352-356 ; Asso and Manuel, ‘‘ Institutes of the Civil Law of Spain,”
trans. by L. F. C. Johnston, Esq. For Germany, cf, Meyer,
‘‘Esprit, Origine, et Progrés des Institutions Judiciares,” tom. IV.,
ch. 9, ‘‘ Intro. du Droit Romain et Canon en Allemagne”; Eichhorn,
“Deutsche Staats- und Rechts-Geschichte”; the ‘‘ Fredrician
Code,” Eng. trans., Edinburgh, 1761. The extent to which the civil
law has become embodied in the German law may be seen in the
works entitled ‘‘ Pandekten,” ¢, g., Puchta, ‘‘ Lehrbuch der Pandek-
ten,” Leipzig, 1856; Von Vangerow, ‘‘ Lehrbuch der Pandekten,”
Leipzig, 1863; Arndts, ‘‘ Lehrbuch der Pandekten,” Miinchen,
1865 ; Windscheid, ‘‘ Lehrbuch der Pandektenrechts,”’ Diisseldorf,
1870. For England, cf, Finlason’s Introduction to Reeves’ ‘‘ His-
tory of the English Law”; Spence, ‘‘ Equitable Jurisdiction of the
Court of Chancery,” vol. I., and ‘‘ Origin of the Laws of Modern
Europe,” especially ch. 25; Hoffman, ‘Course of Legal Study,”
vol. II., p. 504, ef seg.; Story, ‘‘Comm. on Equity,” vol. I., § 23;
Goldsmith, ‘‘ Doctrine and Practice of Equity,” pp. 6-16; Zaw
Review and Quarterly Fournal of British and Foreign Furisprudence,
vol, V., Nov., 1846, ‘‘ Origin of the Common Law”; Giiterbock,
‘* Bracton and his Relation to the Roman Law,” Eng. trans.; Selden,
‘‘Dissertatio ad Fletam ”; Diemer, ‘‘ Comm. de Usu et Auctoritate
Juris Romani in Anglia.” For the canon law, cf, Butler, ‘‘ Horze
Juridice ”; ‘‘ Enc. Britannica,” ninth edition, “Canon Law” (W.
F. Hunter); ‘‘Enc. of Christian Antiquities,” ‘‘ Law” (Sheldon
Amos), ‘‘Canon Law” (Benjamin Shaw); Phillimore, ‘‘ Influence
of the Canon Law,” Oxford Essays, 1858; Arndts, ‘‘ Encyclopadie,
§§ 119-121 ; Gibson, ‘‘ Codex Juris Ecclesiastici Anglicani,” Preface ;
Schulte, ‘‘ Lehrbuch des Katholischen Kirchenrechts,” 1868, ‘‘ Ge-
schichte der Quellen und Literatur des canonischen Rechts,” 1877;
‘Corpus Juris Canonici,” Editio Lipsiensis Secunda, Lipsiz, 1879.
216 OUTLINES OF ROMAN LAW.

For influence of Roman law upon international law, ¢f., Maine,
‘* Ancient Law,” ch. 4; ‘‘ Enc. Brit..” ninth ed., ‘‘ International
Law” (Prof. E. Robertson); Wheaton, ‘‘ Hist. of International
Law,” Intr, For its influence through colonization, cf, Kent,
‘«Commentaries,” vol. I., ch. 23; White, ‘‘New Recopilacion,”
Containing ordinances of Great Britain, France, and Spain, with
reference to their respective colonies, with those of Mexico and
Spain on the same subject ; ‘‘ Civil Code of the State of Louisiana,”
ed. by Upton and Jennings; Heeren, ‘‘ European States and Colo-
nies,” Eng. Trans., 1846.
PART SECOND.

THE GENERAL PRINCIPLES OF THE ROMAN
LAW.
INTRODUCTION.
FUNDAMENTAL CONCEPTS AND DIVISIONS OF THE LAW.

Havine completed our review of the history of the
Roman law, we proceed to consider the substance of the
law itself, as it existed at the time of Justinian. And as
we do this, we should keep in mind the fact, which has
been emphasized by our historical review, that we are
dealing with a body of legal truth that forms the common
basis of nearly all the modern systems of positive law.
While we are professedly studying the laws of ancient
Rome, we are in fact studying certain general doctrines,
which, to a greater or less extent, pervade the laws of all
civilized countries. It is, of course, true that some pecul-
iar features of the Roman law have passed away with the
decay of the social institutions upon which they were
founded, as, for instance, those that relate to slavery. It
is also true that certain features have been modified to
meet the new and more complex relations of modern life.
But so far as modern jurisprudence moves in harmony
with the rational purpose of all law, it cannot depart from
those broad and essential truths which received a clear
and scientific form in the writings of the Roman jurists,
and which have been preserved in the Corpus Furis.

I. Justice and Law.—The scientific character of
the Roman law is seen, not so much in its formal arrange-
ment, as in the fact that it is founded upon certain prin-
ciples which are conceived tobe ultimate in their nature
and universal in their application. All law, when looked
at from a rational point of view, must rest in justice.

219
220 OUTLINES OF ROMAN LAW.

This principle was regarded by the Romans as an es-
sential element in the moral nature of man. In the words
of Ulpian : “Justitia est constans et perpetua voluntas
jus suum cuique tribuendi.” Being a moral quality, it
depends, like every other moral quality, upon an intel-
ligent conformity to the nature of things. By means of
this broad conception of justice, the jurists grounded law
directly upon the moral nature of man, and remotely upon
the moral order of the universe. Law was not only based
upon a moral principle ; it was also conceived to be a
means for the attainment of a moral end. As a science,
it discriminates between the just and the unjust. “ Juris-
prudentia est justi atque injusti scientia’’ (D. 1, 1, 10, 2).
As an art, it aims to bring about that which is right and
equitable. “ Jus est ars boni et zequi” (D. 1, 1, 1)

In thus connecting law so closely with morality, it
need not be supposed that the jurists confused these two
ideas, and regarded the purpose of the law to be the
moral improvement of the individual. It may not create
in the subject a truly moral respect for the rights of
others, It must itself, however, be prompted by a con-
stant and perpetual disposition to render to every one his
right. Law in its truest sense has thus a permanent
moral character and purpose of its own, independent of
_the character and motives of the subjects to whom
it may be addressed. It is, as Cicero says, “right
reason conformable to nature, whose commands urge
us to duty, and whose prohibitions restrain us from
evil, Whether it enjoins or forbids, the good re-
spect its injunctions and the wicked treat them with
indifference. It is not one thing at Rome, and another
at Athens; one thing to-day, and another to-mor-
row ; but in all times and nations, this universal law must
forever reign, eternal and imperishable” (“De Rep.,” 3,
INTRODUCTION. _ 221

22), By thus perceiving in law an ethical principle, the
Romans were able to construct their jurisprudence upon a
rational, instead of a merely empirical basis.

2. Natural and Positive Law.—When the law is
considered in the broad ethical sense just indicated, it is
called natural law, or the law which the natural reason
has constituted for all men (jus naturale, or jus gentium
in the later sense) ; in opposition to the céve/ or positive
law, or that law which derives its special binding force
from the authority of any particular state (jus civile).
But the great body of positive law is, in theory, drawn
from the sphere of natural law. In other words, the rules
of natural justice, in accordance with which every one is
bound to respect the rights of others, are transformed
into civil laws by the state’s affixing to them a compulsory
sanction. In this way the natural law furnishes the un-
derlying basis of positive law. It is true that a portion
of the civil law seems to be of an arbitrary character and
does not rest upon uniform principles, as, for example,
the forms of marriage, and the number of witnesses to a
testament. Such provisions may vary in different states.
But the essential portions of the law are yet derived from
the natural precepts of justice, and are for the most part
recognized by the common reason of mankind.

In spite of the ambiguity which sometimes attaches to
the term us naturale, the proper distinction between natu-
ral and positive law is clearly indicated in the writings
of the Roman jurists. This distinction depends, not so
much upon the content of the law, as upon the authority
by which it is enforced. All those rules of conduct
which are universally binding upon men and are sanc-
tioned by the dictates of right reason belong to the do-
main of natural law. On the other hand, the rules of
conduct which are prescribed and enforced by the sov-
222 OUTLINES OF ROMAN LAW.

ereign power of the state belong to the domain of positive
law. But while natural law and positive law are entirely
distinct from each other as regards their respective sanc-
tions, the jurists believed that they should be entirely har-
monious with each other as regards their subject-matter.

3. Written and Unwritten Law.—Having reached
the conception of positive law, as a body of rules founded
upon natural justice and sanctioned by the state authority,
we may next consider the modes in which this sanction is
expressed. What are the sources from which the law
derives its positive character ?

The most obvious manner in which the positive law is
sanctioned, is through the express enactment of a legisla-
tive body, or of a person having legislative authority.
Such law is called written law, because its provisions are
explicitly set forth, and are generally reduced to a writ-
ten form, But its distinctive character does not depend
upon the mere fact that it is written. It depends rather
upon the fact that it derives its binding force from the
expressed will of the state. This will may be expressed
not only directly by the supreme power of the state, but
also indirectly by subordinate authorities upon whom the
legislative function has been conferred. For example:
in the early Roman empire, laws might be instituted by
the popular assemblies, by the Senate, by the preetor, by
the privileged jurists, as well as by the emperor himself.

But all law does not, according to the Roman concep-
tion, depend for its sanction upon the express enactment
of a legislative body or person. It is sometimes recog-
nized as binding even though it has not been formally
promulgated as law. Such law is said to be constituted
by custom—that is, such usage as indicates the tacit con-
sent of the community. It was known at Rome as un-
written law (jus ex non scripto, or jus moribus constitutum).
INTRODUCTION. 223

Regarding this kind of law, Ulpian says: “ Diuturna
consuetudo pro jure et lege in his qu non ex scripto
descendunt, observari solet” (D. 1, 3, 33). Whatever has
existed for a long period of time, and is in harmony with
the moral judgment of the community, is regarded as
having the force of law, and the judicial authority is
bound to recognize it as such, even though it has never
been expressed in-a legal enactment. It was also a
maxim of the Romans, that not only can laws be estab-
lished by custom; they can also be abrogated by custom
—that is, by contrary usage.

It is unnecessary to consider here the objections raised
by some modern jurists, such as Austin, to this view of
customary, or unwritten, law. It is enough for our present
purpose to say that this was the conception of the
Roman jurists regarding the origin of a portion of the
positive law, and a conception which has been adopted
by the majority of modern civilians,

4. Public and Private Law.—Besides the above
distinction between the written and the unwritten law,
founded upon their sources, or the methods in which they
were sanctioned ; the positive law was also divided with
reference to its subject-matter into public and private.
The former was defined to be that which pertains to the
Roman state ; the latter, that which pertains to the inter-
ests of individuals.

More specifically, the public law includes all those
regulations which have reference to the organization and
administration of the government—whether in its re-
ligious or political character. The public law may
hence be divided into the sacred law (jus sacrum), and
the non-sacred law (jus non sacrum)—the former being
concerned with matters relating to the public worship, such
as the appointment of priests and the regulation of the
224 OUTLINES OF ROMAN LAW.

sacrifices ; the latter dealing with the duties of civil magis-
trates, the preservation of public order, and the rights
and duties of persons in their relations to the state.

The private law, on the other hand, comprises all
those provisions which determine the rights and duties of
persons with reference to each other, as the right of prop-
erty, of contract, of personal ams) of obtaining redress
in case of injury.

5. The Law as to Reman Things, and
Actions.—The most important division of the Roman
law, and that which formed the basis of its logical treat-
ment, had reference to the character of the righ¢s secured
by the state to the subject. Every legal right, when con-
sidered in its fullest and most complete sense—as a cer-
tain degree of liberty sanctioned by law—may be said to
involve three distinct elements, viz.: first, a certain de-
gree of legal capacity on the part of the subject by whom
it is exercised ; secondly, a certain degree of legal control
over the object with reference to which it is exercised ;
and, thirdly, a certain degree of /egal authority involved
in the sanction, or remedy, by which its validity is in-
sured, Although a general legal right cannot be regarded
as complete without all these elements, it may yet be re-
solved into subordinate specific rights according as it is
viewed with reference to its subject, its object, or its
sanction. This furnished the basis upon which the whole
treatment of the private law was separated by the Roman
jurists into the law pertaining to persons, to things, and
to actions.

(1) Rights may thus be considered, in the first place,
with reference to the person, or subject, by whom they
are exercised. Thus we may speak of the right of a free-
man, the right of a citizen, the right of a father and of a
son, the right of a husband and of a wife, the right of a
INTRODUCTION. 228

guardian and of a ward. These rights, relating to persons
as such, which refer to the extent of capacity that the law
recognizes on the part of the subject (and which may be
called sudyective rights), are treated in the law pertaining
to persons—jus ad personas, jus personarum,

(2) Rights may also be viewed with reference to the
thing, or object, in respect to which they are exercised.
Thus we may speak of the right of ownership, the right
to the use and to the fruits of a thing, the right to sella
thing pledged, the right to a specific performance based
upon a contract, the right to compensation for private
injuries. These rights, relating to things as such, which
refer to the extent of legal control that the law permits to
be exercised over the object (and which may be called
objective rights), are treated in the law pertaining to things
—jus ad res, jus rerum.

(3) Rights may finally be considered with reference to
the action, or remedy, by which they are enforced. Thus
we may speak of the right of real action, the right of per-
sonal action, the right of injunction, the right of appeal.
These rights, relating to actions as such, which refer to
the extent of authority that the law permits to be used in
obtaining a remedy (and which may be called remedial
rights), are treated in the law pertaining to actions—yus
ad actiones, jus actionum.

This division of the private law, adopted by the insti-
tutional writers of the Romans, has been made the sub-
ject of severe criticism by modern jurists. Many attempts
have, consequently, been made to form a new classifica-
tion which will not involve the defects that are charged
against the Roman method. But it may be questioned
whether any recent division is so free from criticism as

-to warrant us in ignoring that given by Gaius and Jus-
tinian. For our ‘purpose at least, we shall certainly ob-
226 OUTLINES OF ROMAN LAW.

tain a more accurate knowledge of the Roman law itself,
if we adhere as closely as possible to its method of classi-
fication.

References.—Gaius, I., 1-8; Justinian’s Institutes, I., 1, 2;
Digest, ‘‘ De justitia et jure” (Bk. 1, especially titles 1, 3, and 4) ;
Mackenzie, ‘‘ Roman Law,” preliminary chapter ; Kaufmann’s
Mackeldey, vol. I., pp. 1-8; Taylor’s ‘‘Civil Law,” earlier dis-
sertations of the work ; Goudsmit, ‘‘ Roman Law,” trans. by Gould,
Bk. I., chs. 1 and 2; Sandars, ‘‘ Institutes of Justinian,” introd.
to the American edition, by Judge Hammond; Hunter, ‘‘ Roman
Law,” p. xxxiii., ‘‘ Criticism of the Order of Gaius” ; Austin, ‘‘ Lec-
tures on Jurisprudence,” vol. II., various lectures on the divisions of
law and criticism of the Roman method; Lightfoot, ‘‘ The Nature
of Positive Law,” ch. 11, ‘‘ Modern Theories of Law,” ; Deman-
geat, ‘Droit Romain,” I., pp. 143-146; Ortolan, ‘‘ Instituts de
Justinien,” II., pp. 17-36; Marezoll, ‘‘ Lehrbuch,” §§ 47-65 ;
Vering, ‘‘Geschichte und Pandekten,” §§ 4-26; Bdcking, ‘‘ Ré-
misches Privatrecht,” S. 1-13.
BOOK I.

THE LAW OF PERSONS—JUS PERSONARUM.
CHAPTER I.
PERSONS CONSIDERED WITH REFERENCE TO LIBERTY.

THE exposition of the Roman law properly begins with
the description of persons as the subjects of rights. In the
“Institutes,” this is regarded as necessary to the under-
standing of the other portions of the law. As has already
been suggested, the provisions of the law relating to per-
sons, to things, and to actions, are so closely related that
a full discussion of the one seems to involve a knowledge
of the others. In the application of the law to a given
case, it is, of course, necessary to ascertain, not only the
legal capacity of the person who lays claim to a given
right, but also the character and extent of the right over
the thing to which he lays claim, and the character of the
remedy by which the claim may be enforced. But in re-
viewing the general principles of the law, without refer-
ence to their specific application, it is more convenient
to consider the various classes of persons as regards their
legal capacity, as a separate subject—distinct from, and
preliminary to, the various kinds of rights which may be
exercised in respect to things, and also the various kinds
of remedies by which these rights are enforced.

I. The Legal Idea of Person and Status.—In
reviewing the principles of the law regarding persons, it
is necessary at the outset to attach a definite notion to
the term person (Zersona), and also to understand how, in
general, legal personality is affected by the possession and
the loss of civil status.

(1) According to the popular meaning, the word

229
230 OUTLINES OF ROMAN LAW.

“person” is applied to any human being without regard
to his condition or capacity. But in the legal sense, those
only are looked upon as persons who possess the capacity
of assuming the rights and duties which are sanctioned
by the state. Although every man may be considered
as entitled by nature to the possession of legal rights, as
a matter of fact, the law sometimes refuses to accord
personality to certain men—as, for example, slaves. On
the other hand, the law sometimes regards as persons
certain subjects other than human beings, as corporations,
endowments, etc. In the sense of the Roman law, the
term person may be defined “ as a being, whether abstract
or concrete, real or ideal, whether physically existing or
a mere creature of the law, capable of becoming the sub-
ject of legal rights and duties.”

A legal person is thus a being vested with a civil
capacity. By virtue of this capacity, he is gualified to
exercise the rights and privileges protected by the law,
whether, as a matter of fact, he exercise them or not. For
example, a person may have a legal capacity to hold
property, and yet have no property of hisown. He may
have a legal ability to form a contract, and yet have no
actual claim against any other person. In like manner,
he may be legally qualified to bring an action, and yet
have no cause of action against any one.

(2) While every legal person must possess a certain
degree of legal capacity, the extent of this capacity is not
the same for all. In spite of all humane efforts to
equalize the rights of men, there still remain certain dis-
tinctions which seem involved in the very structure of
society, and even in the necessities of nature. <A pro-
gressive system of law tends, it is true, to reduce these
inequalities to the minimum. But with all the liberal
theories of the Roman jurists, the Roman law still im-
‘PERSONAL LIBERTY. 231

posed legal disqualifications upon certain members of
society. Some of these, no doubt, rested in nature, as
the incapacity of dependent children. Others have since
been proved to be artificial, as the incapacity of slaves.

In general, the extent of one’s legal capacity depended
at Rome upon his civil position, or status. This was
viewed with reference to three things, viz.: Zertas, or
personal freedom ; cévdfas, or citizenship; and familia,
or domestic position. Accordingly, a person’s capacity,
in the eyes of the law, depended, in the first place, upon
whether he was a freeman or a slave; in the second
place, upon whether he was a citizen or a foreigner; and,
in the third place, whether he was independent of pater-
nal authority or dependent upon it. If a person were
free, he was relieved from the severe and almost absolute
disqualifications which rested upon the slave. Besides
being free, if he were also a citizen he was not burdened
with the civil disabilities which for a long time rested
upon foreigners. And if, besides being a freeman and a
citizen, he were independent, he was not subject even to
the lighter incapacities which rested upon the dependent
members of the household. It was, hence, only the free
and independent Roman citizen who possessed the full
capacity of exercising all the rights guaranteed by the
law.

(3) The loss of status was called capitis deminutio. As
a person might possess one or more of the elements of
status, so he might lose one or more. The loss of
freedom involved, of course, the loss of citizenship and
of family rights, and was called maxima capitis deminutio.
The loss of citizenship did not necessarily involve the
loss of freedom, but it carried along with it the loss of
domestic position, and was called media capitis deminutio.
The loss of domestic position involved the loss of nothing
232 OUTLINES OF ROMAN LAW.

more than the rights growing out of one’s previous domes-
tic relationship. It was called minima capitis deminutio.
In the following arrangement of the elements of status, it
will be observed that the possession of the lower status
involves the possession of the higher; and, conversely,
the loss of the higher involves the loss of the lower.

ELEMENTS OF STATUS, Loss oF STATUS.
Status libertatis, Maxima capitis deminutio,
Status civitatis, Media capitis deminutio,
Status familiz, Minima capitis deminutio.

2. Freedom as a Condition of Personality.
Freedom was the primary condition upon which, in the
Roman law, every man’s legal capacity was made to
depend. Liberty was somewhat vaguely defined by
Florentinus to be ‘“‘the natural faculty by which one can
do what he pleases unless restrained by force or by law”
(D. 1, 5, 4). When viewed with reference to status,
freedom may be regarded as that condition which does
not involve a general negation of legal rights. As regards
the general relation of liberty to the law of status we may
notice, first, the theory upon which the Roman jurists
justified the recognition of slavery; and, secondly, the
division of persons in respect to personal freedom.

(1) The origin of slavery was referred to the jus gentium
(in the earlier sense) as an institution common to all
nations. It was not by the Roman jurists, as by some of
the Greek philosophers, justified as consistent with
nature. The Romans held that by the law of nature
all men were born free. Slavery was, however, inwrought
into the social structure of all ancient nations; and al-
though the tendency of Roman legislation was to do
away with its harsher features, it was yet accepted as a
creature of immemorial custom. And-only upon this
theory did the jurists justify its recognition in the posi-
tive law.
PERSONAL LIBERTY. 233

(2) The division of persons with reference to liberty
was made necessary by the very fact that slavery existed
as a civil institution. Slaves could not, in the strictest
sense, be regarded as legal persons ; they were yet, with
some inconsistency, considered as forming a class coér-
dinate with that of freemen. With the growing spirit of
humanity the barriers which separated the free and the
slave became less fixed ; and the class of freemen was
continually reinforced from the slave population. The
custom of releasing men from slavery, whereby they
obtained certain civil rights, was the occasion of sub-
dividing freemen into those who were born free and those
who were made free. Hence there came to be at Rome
three classes of persons as regards freedom: servi, or
slaves ; /ébertint, or freedmen; and inmgenui, or freeborn
persons.

3. Legal Status of Slaves.—In reviewing the law
relating to the status of any class of persons we must
notice, first, the antecedent facts, or conditions, by which
a person is recognized as belonging to one particular
class and not to any other ; and, secondly, the extent of
capacity or incapacity which attaches to him by virtue of
his membership in that class.

(1) The antecedent facts which indicated that a person
belonged to the slave class, had reference either to a
certain condition of birth, or to some event after birth
specified by law. A person was a slave by birth whose
mother was in a servile condition at the time of birth and
had not been free at any time during the period of
gestation. As slaves could not contract legal marriage
there was applied to them the maxim that a person born
out of lawful marriage followed the condition of the
mother—fartus seguitur ventrem. But a person once free
might become a slave by law—either jure gentium or jure
234 OUTLINES OF ROMAN LAW.

ctvile. In accordance with the jus gentium a person was
reduced to slavery by being captured in war, such
captives being sold as belonging to the state, or else dis-
tributed by lot among the soldiers. According to the
jus civile a free person became a slave if he permitted
himself to be sold for the purpose of sharing in the price ;
if he were condemned to certain kinds of punishment
(servus poene) ; if he evaded the military service ; if he
refused to be enrolled on the censor’s list ; and if, being
a freedman, he was guilty of ingratitude toward his
patron.

(2) The condition of slaves as regards their legal
capacity may be described, in brief, as a general negation
of rights. They were not, strictly speaking, persons
in law ; and their only claim to be so classed was based
upon the fact that they might perform acts somewhat
analogous to those of persons, and were also recognized
as having certain natural rights which were sanctioned
by custom and which even possessed some legal
significance. The way in which the incapacity of the
slave, strictly imposed by the law, came to be beneficially
affected by certain customs may be illustrated by the
following examples.

It was a principle of the law that slaves could not con-
tract civil marriage. A certain matrimonial relation yet
existed under the name of contubernium, which formed
the basis of a domestic group ; and this group was some-
times recognized by law, as, for instance, when it was
forbidden in selling slaves to separate those belonging to
the same family, and also when the former relationship
by blood was legally recognized, after Manumission, as
determining the rights of inheritance.

Again, slaves could not legally hold property. Yet
they were frequently allowed, at the discretion of their
PERSONAL LIBERTY. 238

master, to use a certain amount of property (pecu/inm),
which ‘might by skilful management be so increased as to
enable them to purchase their own freedom; and the
freedom thus obtained was legally protected.

Moreover, a slave could not form a legal contract nor
bring a legal action. Yet the natural obligations arising
from the dealing of a slave with other persons sufficed for
nearly every transaction of business; and in certain cases
of injury his rights might be assumed and prosecuted by
his master.

Still further, the slave strictly possessed no leégal
right as against his master; but the whole tendency of
the later legislation was to make the master responsi-
ble to the state for his treatment of his slave, and thus
by the time of Justinian the natural right of the slave to
his own person was, in great measure, protected.

(3) Closely allied to slaves was a class of persons
which come into view in the later period of the Empire.
This class comprised the adscriptitii and the colont. The
former corresponded more nearly to rural slaves; they
could not, however, be removed from the soil to which
they were attached, and they possessed the right of legal
marriage, even without the master’s consent. The coloni
approached more nearly the condition of freemen. In
addition to the privileges of the adscripiitit, they had a
right to the products of the soil after paying a certain
fixed rent to the owner; they might also bring an action
against the owner for an injury done to themselves or to
their families.

With the extinction of the Western Empire, which fol-
lowed the invasion of the northern nations, Roman
slavery, in its various forms, was merged into the system
of serfdom and villenage which prevailed throughout
Europe during the Middle Ages.
236 OUTLINES OF ROMAN LAW.

4. Legal Status of Freedmen.—The next class of
persons to be considered is that of freedmen (dibertini )—
that is, those persons who had been released from slavery
in a manner prescribed by law. We may briefly notice
the legal methods in which a slave might obtain his free-
dom, and the legal capacity which he acquired = be-
coming a freedman.

(1) In case the slave had performed some sitar ser-
vice to the state, he might be freed by the Emperor with-
out the master’s consent. But the usual method required
the master’s consent, and was accompanied by a process
called “‘manumission.” Of this process there were vari-
ous forms. By the vindicta, or lictor’s rod, the slave in
early times obtained his freedom in a fictitious suit before
the magistrate. He was said to be freed by the census,
when he was enrolled as a free citizen upon the censor’s
list with the consent of the master. By /estament, the
master might confer liberty upon his slave, either by
commanding the heir to manumit him in proper form, or
by simply declaring him to be free. We have already
had occasion to refer to the easy methods which had be-
come current in the Empire before the time of Justinian,
—for example, per epistolam, inter .amicos, in ecclestis ;
and Justinian himself removed nearly all the legal im-
pediments which had previously stood in the way of
manumission.

(2) The civil capacity enjoyed by freedmen before the
time of Justinian was by no means uniform. With ref-
erence to their status, they had been divided into three
classes, viz., céves Romani, or those who obtained the full
rights of citizenship ; Latind Funiani, or those who, being
manumitted without the proper formalities, were re-
stricted to the Latin franchise; and dedititi?, or those
who, having suffered certain disgraceful punishments,
PERSONAL LIBERTY. 237

were compelled after being manumitted to remain in the
condition of surrendered enemies and deprived of civil
rights, These distinctions were abolished by Justinian,
who declared that the full right of citizenship was in-
volved in the gift of liberty. But even when granted
the full right of citizenship, the freedman still retained,
as Jibertus, a subordinate relation to his former master, as
patronus. He was obliged to pay to the latter a certain
degree of respect, to render certain services to him, and
to support him, if reduced to poverty. The patron pos-
sessed also the right of succession to the property of the
freedman, if the latter died intestate.

5. Status of Freeborn Persons.—The remaining
class of persons to be noticed under the status of liberty
are those who were freeborn (émgenui). We may con-
sider here, as in the previous classes, the facts which in-
dicated that a person belonged to this class, and the legal
qualifications which attached to the class.

(1) A person was regarded as freeborn if born of free
parents 2” matrimonio, or even of a free mother extra
matrimonium, and this rule held good whether the parents
themselves were ingenui or Libertint. A child born in civil
marriage must necessarily be free, because legal marriage
could be contracted only between persons who were them- .
selves free. But a child born out of lawful marriage fol-
lowed the condition of the mother according to the maxim
already quoted, partus sequitur ventrem. With the growth

of the later jus gentium, there arose a fiction, to which we
have already referred, whereby the Emperor gave to a
freedman, that is, a person who had in fact been born a
slave, the character of an zmgenuus, that is, a person who
was legally considered as born free. This form of pro-
ceeding, which was founded upon the maxim of the na-
tural law that all men are born free, was called xatalibus
238 OUTLINES OF ROMAN LAW.

restitutio, By it a freedman became in every legal sensé
an ingenuus, and was hence relieved from those obliga-
tions which he otherwise would have sustained to his
former master.

(2) The status of a freeborn person was called ingen-
uitas. Considered by itself, it determined a man’s civil
capacity only in a negative manner. It showed that he
was relieved from the almost absolute disqualifications
resting upon the slave, and also from those minor burdens
which continued to weigh upon the freedman. The posi-
tive capacity of the freeborn person could be ascertained
only by a further consideration of his status with refer-
ence to domestic position.

The Roman law with reference to the status of liberty
exercised some influence during the Middle Ages, and
perhaps in modern times. But the gradual abolition of
slavery in all its various forms has given to this portion
of the Roman law, for the most part, a merely historical
interest.

References.—Gaius, I., 9-47; Inst., I., 3-7; Digest, ‘‘ De
statu hominum” (1, 5), ‘‘De manumissionibus” (40); Code,
“De his qui ecclesiis manumittuntur” (1, 13), ‘‘ De vindicta et apud
concilium manumissione” (7) ; Poste’s ‘‘ Gaius,” pp. 29-44 ; Sandars’
‘« Justinian,” Eng. ed., pp. 86-99, Am. ed., pp. 76-88 ; Mackenzie,
“Roman Law,” pp. 91-96; Hunter, ‘‘ Roman Law,” pp. 12-38;
Smith, ‘‘ Dict. Antiq.,” (Servus, Manumissio, Libertus, Ingenut);
Blair, ‘‘Slavery among the Romans”; Demangeat, ‘‘ Droit Ro-
main,” pp. 148-220; Ortolan, ‘‘ Instituts de Justinien,” II., pp. 36-
69; ‘‘ Deurer, ‘‘Gesch. und Inst, des Rémischen Rechts,” § 104; °
Marezoll, ‘‘ Lehrbuch der Institutionen,” §§ 154-170. Wallon,
‘Histoire de l’Esclavage dans l’Antiquité,” Paris, 1847, tom. II.,
III,
CHAPTER II.

PERSONS CONSIDERED WITH REFERENCE TO FAMILY
RELATIONS,

In passing from the status of liberty to that of domes-
tic position, it should be noticed that the intermediate
status based upon citizenship had by the edict of Cara-
calla and the reforming legislation of Justinian lost the
importance which it had hitherto possessed. It hence
finds no place in the “ Institutes,’’ as the legal incapacities
previously resting upon foreigners and Latins no longer
existed. But yet all free persons were not entirely equal
before the law. The natural incapacity of the dependent
members of a family was still recognized by the law as:a
ground of distinction among persons. This distinction
was not, it is true, in ancient times, based upon the
theory of natural incapacity, but rather upon the custom-
ary principle that the father was the legal head and rep-
resentative of the family, and that he only sustained any
legal relations to the state. But the social revolution, by
which the structure of the old patriarchal family was in
later times undermined, was attended by a growing recog-
nition of legal rights on the part of the wife and children ;
and with the acquisition of personal and proprietary
rights, the wife and older members of the household be-
came practically independent even during the lifetime
of the father. While the theory of the ancient law re-
garding the relative position of the father and the mem-
bers of his family was maintained in some respects until
the latest period, the tendency of Roman legislation was

239
240 OUTLINES OF ROMAN LAW.

to remove those legal incapacities on the part of the
children which were not necessary for their protection.

1. The Power of the Father over the Child.
—The term patria potestas, in the Roman law, refers to
the mutual relation of father and child, and involves not
only the capacity of the father to exercise authority
over the child, but also the correlative incapacity of
the child growing out of his subordinate position, In
considering this subject there can be no greater mistake
than that which is often committed of transferring to the
laws of Justinian the idea of the paternal power which
prevailed in the early ages of Rome. In ancient times,
the patria potestas involved the “ power of life and death”
on the part of the father, and the utter incapacity of ac-
quiring and holding property on the part of the son.
But at the time of Justinian neither of these features of
the paternal power existed. By the efforts of the censors
under the Republic, and by the legislation of the em-
perors, the son was released from the unjust oppression
to which he had been subject. The later law was the
product of a more just conception regarding the natural
rights of the individual,

(1) In the first place, we may notice the features which
rendered the paternal power at the time of Justinian but
a shadow of what it was in early times. The imperial
laws not only restricted the father’s authority over the
person of the son, but also granted to the son extensive
proprietary rights. The power of life and death was
transferred to the magistrate ; and the father who killed
his son was held guilty of murder. The theory of the
modern law was fully established, that the authority of
the father is limited to simple correction. The ancient
custom also of selling freeborn children as mancifia was
practically abolished.
FAMILY RELATIONS. 241

Moreover, the law granted full proprietary rights over
all that the son acquired in military service (peculium
castrense) ; and over that which he acquired in thé exer-
cise of public duties (peculium quasi castrense); and,
finally, over all that which he acquired by gift, by testa-
ment,.or by any legal title from any person except
his own father (peculium adventitium), The only remains
of the ancient law is seen in the fact that, while the
ownership in the cases mentioned was vested in the son, a
life interest in the property still remained with the father.
The special fund which the father might loan to the son
for purposes of business ( peculium profectitium) remained,
of course, in the father’s estate. But all other property
acquired by the son was his own, subject to the life in-
terest just mentioned. There were certain cases specially
designated by the law in which even this life interest was
not allowed to the father, as when a gift was made to the
son with the special condition that he should receive it in
full ownership.

From these facts it is evident that after reaching an age
when he was able to transact business for himself, the son
was, in fact, well-nigh independent as regards both his
personal and proprietary rights. The chief significance
of the patria potestas, at the time of Justinian, consisted
in the fact that, in connection with blood, it determined
the extent of the family, and the right of succession in
the event of the father’s death.

(2) The paternal power was acquired, or, in other
words, a person came under the fofestas of another, by
birth ; by legitimation ; and by adoption. A person born
in lawful marriage came immediately under the power of
his father. An illegitimate child could, however, by a
late constitution, be brought under the power of his
father by “legitimation.” This could be effected by a
242 OUTLINES OF ROMAN LAW.

subsequent marriage (per subseguens matrimonium), or by
an imperial rescript (per rescriptum principis). The pa-
ternal power could also be acquired, in certain cases, by
adoption, although the effect of adoption was greatly
modified by Justinian. We have seen that adoption had
its origin in the necessity of providing for the transmis-
sion of the estate in case the father was childless. But
the subsequent growth of an elaborate law of testamen-
tary succession had to a great extent done away with its
importance as a legal institution. Justinian, therefore,
ordained that only in case a person was adopted by his
natural ascendant—for example, his father or grandfather
—should the fotestas be acquired ; since in this case, as
the Institutes say, ‘‘the rights of nature and adoption
concur.” In all other cases adoption produced no legal
effect, with the single exception that the adopted person
still retained the ancient right of succession to his adop-
tive father in case the latter died intestate.

(3) The paternal power might be dissolved by the death
of the father ; by his suffering a capitis deminutio ; or by the
emancipation of the son. By the death of the father the
potestas may be said to have been dissolved—although, in
fact, it was transmitted to the sons hitherto under power,
who thus became independent.

The father might suffer a capitis deminutio sufficient to
destroy his Zotestas, either by deportation, or by being
captured ‘in war. By deportation, which was a perpetual
banishment, the criminal lost with his citizenship all rights
incident to his domestic position ; and his sons acquired
his Zotestas and his inheritance. If, however, he were par-
doned, he was-restored so far as it was consistent with
justice to his former civil and domestic position. A
captive in war, in a similar way, lost his paternal power ;
but if he returned he was restored to his former position
by what was called jus postlimini?,
FAMILY RELATIONS. 243

Finally, by emancipation, the son was released from
his father’s authority. The cumbrous process by which
this was originally effected through three fictitious sales
was modified, so that it could be accomplished by a
simple declaration before the proper magistrate. Jus-
tinian further improved the law by requiring the son’s
consent to legalize the act. There were other minor
modes in which the paternal power might cease—as, for
example, by the son’s obtaining certain civil and religious
offices.

2. The Nature of Roman Marriage.—The legal
capacity of persons was also affected by marriage, or the
relation existing between husband and wife. In consid-
ering the Roman law on this subject, we must, as in the
case of the paternal power, keep in mind the great differ-
ence between the early customary law and the principles
developed by the later legislation. The strictness of the
old jus civile, the extreme technicality of its forms, and
the peculiar nature of the ancient patriarchal family com-
bined to give to the marriage relation a very arbitrary
and despotic character. This was, however, superseded
by an extremely liberal theory, which involved the almost
absolute independence of husband and wife, at least so
far as their legal rights were concerned. No change
could be more radical than this transition from one ex-
treme theory of marriage to its opposite. The exces-
sive liberality of the later law will be best understood
when it is seen to be in fact the result of a'natural reac-
tion against the arbitrary and oppressive features of the
early customary law.

(1) The first peculiarity of the later law: that we notice,
is the fact that no importance was attached to the an-
cient distinction between matrimonium justum and matri-
montium non gustum. This distinction was originally
244 OUTLINES OF ROMAN LAW.

founded upon the notion that marital rights, like all
other rights, were created by the civil law. The
strictly civil, or legal, marriage was confined to Ro-
man citizens. The non-civil marriage possessed no legal
significance, except as it came to form a part of the
equitable provisions of the jus gentium. The matrimo-
nium justum was prohibited between certain classes of
persons, as patricians and plebeians, zugenud and dibertint,
citizens and foreigners. The connubial right was, how-
ever, bestowed upon the plebeians by the /ex Canuleia
(B.C., 445), and upon the Zbertiné during the reign of
Augustus (A.D., 4) ; and with the general extension of
citizenship under the Empire the exclusive character of
civil marriage entirely passed away. At the time of Jus-
tinian, legal marriage (xupiie juste) was simply restricted
by a few reasonable conditions, hereafter to be noticed.
(2) Another important feature of the later law, and
one which explains the free notions of marriage prevail-
ing in the Empire, was the tendency to recognize the legal-
ity of wedlock, when not accompanied with the manus.
The significance of this change will be seen by recalling
certain features of the ancient law. In the earliest times,
when the family was organized upon the purely religious
basis, marriage took the form of a religious sacrament
(confarreatio), by which the wife was transferred from
the worship and priestly power of her father to the wor-
ship and priestly power of her husband. This was sup-
plemented by the more secular and commercial form of
marriage (coemptio), in which the dominion over the wife
was transferred from the father to the husband by the pro-
cess of “mancipation.” In this case the transaction was
to all intents a legal conveyance, involving all the conse-
quences of any transfer of property. In connection with
this proprietary idea of marriage, the principle of pre-
FAMILY RELATIONS. 245

scription was so interpreted that the husband could, even
in the absence of the above forms, acquire dominion over
the wife by an uninterrupted possession of one year
(usus). When brought under the power (manus) of her
husband in any of these ways, the wife lost all the rights
which she previously had in her father’s family. Al-
though she was legally recognized as a daughter (¢” loco
jilie) to her husband, and thereby acquired the right of
inheritance to his estate, she yet lost the right of inheri-
tance to the estate of her father, and, moreover, whatever
she may have previously acquired in her own name was,
by marriage, merged in her husband’s property ; and the
same despotic authority which the ancient law allowed
the father to exercise over his child, the husband was
permitted to exercise over his wife.

Against this unjust conception of marriage, by which
the wife lost her legal personality by being brought zz
manum virt, was gradually developed the idea that the
matrimonial relation need not involve any change of
domestic status. Provided she did not submit to the
technical forms of the old law, the wife might remain in
the family of her father, and at his death she might re-
tain her own share in his estate. Even the wsuzs she
might avoid, by absenting herself for three successive
nights from her husband’s domicile. A marriage could,
therefore, be effected either with or without the manus,
according to the will of the parties. With the general
adoption of the latter form, which did not involve
the subjection of the wife to the husband’s power,
marriage came to be regarded as a simple contract,
or, more properly, a lifelong union between hus-
band and wife, based upon the mutual consent of the
parties. Justinian defines it as “‘viri et mulieris con-
junctio, individuam vite consuetudinem continens ”
246 OUTLINES OF ROMAN LAW.

(Inst. 1, 9, 1) ; and Modestinus describes it as “con-
junctio maris et feminz, et consortium omnis vite, divini
et humani juris communicatio” (D. 23, 2,1). In the
later Roman law, no special form was required for a valid
marriage ; the consent of the parties, or of those in whose
power they were, was the essential element. Paulus says:
“‘Nuptize consistere non possunt nisi consentiant omnes,
id est, qui coeunt quorumque in potestate sunt” (D.
23, 2, 2). ;

3. The Conditions of Legal Marriage.—While
marriage was primarily founded upon the simple consent of
the parties interested, there were certain conditions which
determined the capacity or incapacity of persons to as-
sume the marriage relation. All persons who were legally
competent to marry were said to possess the connubium,
The conditions upon which the connubial right depended
were defined by the law in a negative rather than ina
positive manner. In other words, the connubium was
possessed by all free persons who were not expressly de-
prived of it by the law. The impediments to legal mar-
riage existing at the time of Justinian depended chiefly
upon age, relationship, and public policy.

(1) Persons were forbidden to marry who had not at-
tained the requisite age—which was fixed at fourteen for
males and twelve for females.

(2) Certain persons related by consanguinity or by
affinity—that is, by blood or by marriage—were forbidden
to intermarry. This provision included, first, ascendants
and descendants of whatever degree ; secondly, speaking
in a general way, collaterals within the third degree of
relationship, as brother and sister, uncle and niece, aunt
and nephew,—but marriage between cousins was lawful.
As an example of the prohibition based upon affinity may
be noticed the law of the later Empire which provided that
FAMILY RELATIONS. 247

a man could not marry his brother’s widow, or his
deceased wife’s sister.

(3) Still further, certain marriages were forbidden from
motives of public policy. For example, provincial
officers were forbidden during their term of administra-
tion to marry any woman living in their province. A
guardian could not marry his pupz//a until she had passed
the age of pupilage. By a law introduced A. D. 388,
Christians were forbidden to marry with Jews.

4. The Legal Effects of Marriage.—In the old
Roman law, when the marriage was attended with the
conventio in manum, the wife, as has been stated, came under
the absolute dominion of her husband. Her legal per-
sonality was merged in his. Her property passed to him
by universal succession. She had no power to acquire
property for herself. She lost entirely her legal inde-
pendence. But after the marriage sine conventione became
the prevailing form, the legal relation of husband and
wife acquired an entirely different character. The effects
of the later Roman marriage may be viewed with refer-
ence to the personal relation between husband and wife,
the power over children begotten in lawful wedlock, and
the proprietary rights of the wife.

(1) As to the personal relation between husband and
wife, the wife acquired the name, the rank, and the
domicile of her husband. Otherwise they were entirely
distinct as regards their domestic status. The husband
had no power over the wife; and the wife had no claim
to support from her husband, unless there had been a
special contract to that effect. Their mutual rights and
duties rested, for the most part, upon a moral basis. The
duty of fidelity may, however, be regarded as having a
legal sanction, inasmuch as each party was liable to cer-
tain penalties affixed to the violation of the marriage vow.
248 OUTLINES OF ROMAN LAW.

(2) The law granted to the husband the fo/estas over
the children begotten in lawful wedlock. Although the
paternal power itself was relieved of many of its earlier
features, the principle that children born in lawful mar-
riage came under the power of the father, continued to
the latest period of Roman history.

(3) With regard to the rights of the married woman to
her own property, it may be said in general that they
were unaffected by the marriage relation. She retained
her previous property, and continued to hold it in her
own name and in full ownership. She had a right to
whatever she acquired after marriage ; and she had a
right to dispose of her own property as she pleased,
either by gift, by sale, or by testament. Marriage, in
brief, gave to the husband no claim to the property of
his wife.

5. The Roman Dos and Donatio Propter Nup-
tias.—While marriage did not impair the woman’s right
to her own property, certain proprietary relations might
yet exist between husband and wife. These relations de-
pended upon the peculiar character of the Roman dowry
and the marriage settlement.

(1) According to the later idea of Roman marriage,
whereby the wife was considered as still belonging to the
family of her father, the husband was under no obligation
to maintain the wife, unless there had been some provision
made for that purpose at the time of the marriage. To
provide for the support of the wife, the father usually
furnished to the husband a marriage portion, called the dos.
This portion might, however, be furnished by other per-
sons than the father, as by the wife’s relations, or even by
the wife herself. By whomsoever it was furnished, it was
governed by substantially the same principles.

The dos comprised every thing that was contributed in
FAMILY RELATIONS, 249

behalf of the wife to aid the husband in meeting the ex-
penses incident to the marriage state. By the x Fulia
every father was compelled to give his daughter a mar-
riage portion, if he had the means. The husband ac-
quired the management of the dos; but he could not dis-
pose of it, or burden it by a mortgage. The wife, on her
part, had not only the right, previously mentioned, to
manage her own property (parapherna), but also a right
to see that the dos was applied according to its legitimate
purpose. By the dissolution of the marriage the dos,
generally speaking, reverted to the donor or to the heirs
of the donor.

(2) A proprietary relation might also exist between
husband and wife by virtue of a marriage settlement
(donatio propter nuptias), This was a conditional gift
made by the husband to be vested in the wife in the
event that she survived him. This property was man-
aged by the husband, and reverted to him in full owner-
ship in case he survived the wife. But during the life-
time of the latter it could not be alienated even with the
wife’s consent. This donation, at the time of Justinian,
was regarded as a necessary correlative to the dos; and
whenever the latter was furnished by the wife, the former
must be furnished by the husband.

6. Divorce and its Legal Effects.—The marriage
relation might be dissolved by the death of either party,
or, during the lifetime of the parties, by divorce. In its
form divorce was closely related to marriage. Corre-
sponding to the ancient forms of marriage by confarreatio
and coemptio, there existed the forms of divorce by diffar-
veatio and remancipatio. But when simple consent be-
came the sole condition of marriage, divorce depended
simply upon the will of the parties. It was merely a pri-
vate act, and required the sanction of no tribunal, It
250 OUTLINES OF ROMAN LAW.

might be effected by the will of both parties, or by the
will of either. In the latter case, however, the state
sometimes interfered, not by way of preventing the dis-
solution of the marriage, but by attaching a penalty to
unjust repudiation. It is noticeable that there was little
legislation to restrain the freedom of divorce, until the
time of the Christian emperors, when stringent laws were
passed to make the marriage relation more binding.

The legal effects of divorce related chiefly to the dis-
position of the dos and to the custody of the children
In case the separation was brought about through the
fault of the wife, a certain portion of the dos was retained
by the husband. The custody of the children also de-
pended upon the fault of the parties, as they were taken
from the party at fault and assigned to the other.

The Roman law of marriage was modified in many
respects when taken up into the canon law; and it
was principally in this modified form that it entered into
the modern continental law. The theory of the English
common law bears some analogy to the old Roman idea of
marriage with the manus, involving the absorption of the
personality of the wife into that of her husband. But
the tendency of legislation in England, and especially in
the United States, is in the direction of a greater degree
of legal equality between husband and wife, similar to
that which obtained in the later Roman law.

References.—Gaius, I., 55-141; ‘‘Inst.,” I., g-12; “ Digest,”
De his, qui sui vel alieni juris sunt (1, 6), De adoptionibus, etc.
(1, 7), De peculio (15, 1), De castrensi peculio (49, 17), De sponsalibus
(23), De divortiis et repudiis (24, 2); ‘‘ Code,” De sponsalibus (5);
De patria potestate (8, 47), De castrensi peculio (12, 37), De adoptioni-
bus (8, 48); Poste’s ‘‘Gaius,” pp. 47-94; Sandars’ “Justinian,”
Eng. ed., pp. 102-128, Am. ed., 91-117; Mackenzie, ‘‘ Roman
Law,” pp. 97-145; Hunter, ‘‘Roman Law,” pp. 43-77, 498-514;
Amos, ‘Roman Civil Law,” pp. 267-290 ; Smith, ‘‘ Dict. Antiqq.,”
FAMILY RELATIONS. 251

‘*Patria Potestas,” ‘‘ Marriage (Roman),” ‘‘ Dos,” ‘‘ Divortium ” ;
Smith, ‘‘ Dict, Christian Antiqq.,” ‘‘ Marriage”; Tomkins and
Jencken, ‘‘Modern Roman Law,” pp. 112-135; Demangeat,
“Droit Romain,” pp. 231-326; Ortolan, ‘‘ Instituts de Justinien,”
II., pp. 70-135; Zimmern, ‘‘ Geschichte,” §§ 139-193, 219-231 ;
Marezoll, ‘‘ Lehrbuch,” §§ 158-181; Deurer, ‘Gesch. und Inst.,”
§8§ 199-208; Bocking, ‘‘ Rom. Privatrecht,” S 14-28, 165-182;
Vering, ‘‘Geschichte und Pandekten,” §§ 220-238 ; Thibaut,
‘‘Lehrbuch,” §§ 154-170; Arndts, ‘‘Lehrbuch der Pandekten,”
§§ 393-438.
CHAPTER III.
PERSONS CONSIDERED WITH REFERENCE TO GUARDIANSHIP,

A PERSON who was dependent (a/ieni juris) became in-
dependent (sad juris) when released in any way from the
paternal power. But even when he had passed from a
state of dependence to that of independence, there might
exist certain reasons, such as immaturity of age or mental
incapacity, which would require him still to be protected
in the exercise of his legal rights. Upon this necessity
depended the law of guardianship, The special features of
this law originally grew out of the nature of the family
organization, and were closely connected with the laws of
inheritance. The care of incompetent persons in the
family was, at the death of the father, naturally placed in
the hands of those upon whom the estate devolved, and
who were at first hardly more responsible than the father
himself had been. But as the state gradually interfered
in controlling the appointment and the duties of the guar-
dian, the office came to be a public trust (munus publicum),
and the person receiving the trust became responsible to
the magistrate for the proper fulfilment of his duties.
Thus the office of guardian in the Roman law was some-
what akin to that of trustee. The person holding it was
a kind of joint administrator of the ward’s estate, sup-
plementing by his own legal acts the natural incapacity of
the ward. The incapacity of the ward, however, was of
a nature entirely different from that of the child under
power. The former, since he was sud juris, had the full
capacity of acquiring rights in his own name, which the

252
GUARDIANSHIP. 253

latter had not. The ward was simply incapacitated,
either wholly or in part, from performing legal acts ; and
this incapacity extended only so far as it was necessary to
protect him from possible injury.

The general idea of guardianship was not expressed in
the Roman law by a single word, but was designated by
the terms ¢uéela and curatio, according to the degree of
authority held by the guardian ; or, conversely, accord-
ing to the degree of incapacity resting upon the ward.
The two kinds of guardians were called tutors (¢u/ores)
and curators (cwratores), Although in many respects the
two offices were similar, there were certain specific dif-
ferences which justify their separate treatment.

1. Different Kinds of Tutors.—Justinian preserves
the definition of Servius to the effect that “¢wtela is the
right and power conferred or authorized by the civil law
for the protection of an independent person, who is, by
reason of age, incapable of protecting himself. And tutors,
who have this authority, are so called from the nature of
their office, in that they act as protectors (¢wifores) and
defenders” (Inst. I. 13,1 and2). Theage of puberty was
fixed in the Roman law as that before which every inde-
pendent person required the protection of a tutor. In
the ancient law, it is true that women remained under
tutelage during their entire lives, or until they were mar-
ried with the conventio in manum. But the tutelage peculiar
to women passed away with the later legislation, when
substantial equality was established between the sexes.

As tutelage was looked upon as a public trust, no one
could hold the office of tutor who had not attained the age
of twenty-five; and, as a general rule, females could not
act as such, although an exception was made in favor of
the mother and grandmother of the pupil. Moreover, for
the same reason—that the office was a public trust—no
254 OUTLINES OF ROMAN LAW.

one could refuse to act, unless he was relieved under cer-
tain excuses specified by law (excusationes tutorum). Tutors
were divided, according to the method of their appoint-
ment, into three classes, viz.: testamentary, legal, and
dative.

(i) Testamentary tutors were such as were appointed
by the testament or codicil of the father. The power thus’
to appoint tutors existed as early as the XII. Tables, and
formed, in fact, a part of the general law regarding the
disposition of the familia by the father’s last will. That
an appointment by testament might be valid, it was the
general rule of the law that the pupil must have been un-
der the power of the father at the time of the latter’s
death, and must become su¢ juris by virtue of such de-
cease. In case, however, the father wished to appoint a
tutor for his emancipated son, the magistrate generally
felt bound to ratify the nomination made in the will.

(2) Legal tutors, or tutors-at-law, were those who, in
case no one had been named in the will, were called tothe
office by operation of law. It was amaxim of the Roman
law that “he who has the benefit of the succession ought
also to have the burden of the tutelage” (Inst. I. 17).
This maxim was, of course, founded upon the more an-
cient customary principle, that the care of the feeble mem-
bers of a household devolved, at the death of the father,
upon those who became the father’s legal successors.
Therefore, according to the XII. Tables, the tutelage
descended upon the nearest agnates, and failing agnates
upon the gentiles. But as the gens lost its legal signifi-
cance, and as the distinction between agnates and cog-
nates was abolished, the principle obtained that the
nearest legal heir who was capable of fulfilling the duties
was bound to accept the trust.

Moreover, the duties of legal tutelage were imposed upon
GUARDIANSHIP. 285

the father who had emancipated his son, and upon the
master who had manumitted his slave, provided the son
or the slave was in the pupillary age. And the duties of
such a father with reference to the. emancipated son, and
of such a patron with reference to his manumitted slave,
descended by law upon the heirs of the father, and of the
patron.

(3) In default of testamentary tutors and of tutors-at-
law, the magistrate who was duly authorized ap-
pointed certain persons to the office, who were thus
called tutors-dative. A tutor-dative might even be ap-
pointed temporarily, in case there was any delay in the
assumption of the office by the persons otherwise desig-
nated; or, in case the testamentary tutor or the tutor-at-
law should at any time be rendered incapable of perform-
ing the duties incident to the trust.

2. Powers and Duties of Tutors.—We need here
refer only to the official powers and duties of the tutor as
they are determined by the legal incapacity of the ward ;
since the personal rights and obligations of the tutor with
reference to his pupil belong rather to the law relating to
implied contracts. As the office of the tutor was in-
tended to supplement the legal personality of the pupil,
his power was in a general sense correlative to the in-
capacity of his ward. The law, in fact, determined the
extent of disability on the part of the pupil, as well as the
extent of power granted to the guardian. The power of
the latter was, of course, greater, as the capacity of the
former was less. Hence a distinction existed between the
power of the tutor when exercised over an infant, and the
power when exercised over a person who had passed the
age of infancy.

(1) The first period of pupilage extended from birth to

-- the end of the seventh year, during which time persons

.
256 | OUTINES OF ROMAN LAW.

were called infants (gud on fari possunt). An infant was
considered incapable of performing any legal act what-
ever, even with the consent of the tutor, Although he
was in the full sense of the word a person, and could be
made the recipient of proprietary rights, he was yet held
to be incapable of performing any legal act which required
the exercise of will. Hence the power of the tutor ex-
tended to the entire management of the affairs of the in-
fant so far as such management was not specially restricted
by law. The tutor acted in his own name, but in behalf
of his ward. His chief duty was to preserve intact the
property, and to supply the necessities of the one placed
under his protection ; and only'in rare emergencies was
he allowed to perform any acts beyond that required for
the safe management of the property. The custody of
the infant remained with the mother, and only in extreme
cases did the tutor control the person of his ward.

(2) When the pupil had passed his seventh year he
acquired a greater degree of legal capacity. He was then
said to possess understanding (¢fellectus), but not judg-
ment (judicium). He could engage in legal transactions
in his own name so far as they were beneficial to him ;
but no act of his own could operate to his prejudice. In
the language of the law, he could bind another, but could
not be bound himself.

In order, therefore, that the acts of the pupil might
possess full legal force and be binding upon himself as
well as upon the party with whom he came into relation,
it was necessary for the tutor to add his authority (awe-
toritatem imponere), This involved the active .co-opera-
tion on the part of the tutor by means of which a “ natural
act” would be converted into a “juridical act.” The
specific cases requiring the authorization of the tutor
depended upon the general principle that the pupil
GUARDIANSHIP. 267

could improve but not worsen his condition. Hence, in
making contracts which involved an obligation on the
part of the pupil, the tutor must sanction them to render
them binding in law. Again, the pupil could not enter
upon an inheritance without the tutor’s authority, since
its acceptance involved duties as well as rights ; and this
general rule was preserved in all cases, even where no
risk was apparently involved. The tutor retained the
power to manage the property of the pupil, when such
Management was in the interest of the ward ; but in no
case could he use it for his own benefit..

(3) The office of tutor was terminated by the pupil’s
reaching the age of puberty; by the death or capitis
deminutio, either of the pupil or of the tutor; by the ful-
filment of the condition on which the tutor, if testamen-
tary, may have been appointed ; by the removal of the
tutor on “suspicion”; or by an “excuse” which was
valid.

3. The Law Relating to Curators.—According
to the old Roman law, a person sui 7uris, on passing the
age of pupilage, acquired full legal capacity—except the
right of holding public offices, which was not obtained
until the age of twenty-five. The necessity, however, of
granting some kind of protection to persons between the
ages of fourteen and twenty-five became apparent, and
led to the growth of the law relating to curatorship
(curatio), With reference to this subject, we may notice
the steps in the growth of the law; the power of the
curator over the minor; and his power over persons
other than minors.

(1) The XII. Tables provided for the appointment of
curators over the insane and prodigals, but not over
minors. The young man who had passed the age of
puberty was, if sud juris, considered to be of full age and
258 OUTLINES OF ROMAN LAW.

was responsible for all his acts. The first enactment
made specially for the benefit of minors was the lex
Pletoria. This law was passed before the time of Plau-
tus ; and there has been much dispute as to its exact pro-
visions. It is sometimes supposed that among other
things it allowed a minor to choose a curator to advise and
protect him in a particular transaction. The undisputed
portion of this law is that which held criminally liable
those who defrauded persons under twenty-five years of
age (minores viginti quinque annis).

The pretor also interfered for the protection of the
minor, without appealing to the penalties of the Pletorian
law. He introduced a remedy which was intended not
so much to protect the minor from the fraudulent acts of
others, as to protect him from the consequences of his
own inexperience and folly. If the minor had performed
an act or incurred an obligation that would inflict upon,
him any injury, the praetor ordered a restitutio in integrum,
by which he was restored to the position in which he was
before the unfortunate transaction had occurred. But it
is quite evident that such a “ restitution,” while it would
fully protect the minor in his dealings with others, would
also act as a restraint upon others from being drawn into
any dealings with minors, The prejudice thus naturally
engendered against dealing with minors, who might, by a
special plea before the magistrate, render void a trans-
action, was met by an edict of Marcus Aurelius, This
emperor provided that on the application of the minor,
curators should in all cases be appointed, whose consent
to any act of the minor should render it less capable of
being reversed by a plea of minority. These provisions
furnished the basis of the law relating to curatorship as
it_existed in the time of Justinian.

(2) The extent of the curator’s power depended upon
GUARDIANSHIP. 259

the purpose for which he was appointed. He might be
appointed for a special transaction, or for the general
management of the business interests of the minor. But
a minor was not bound to receive a curator against his
will—except in case of a lawsuit, or in case a debtor
wished to compel a final settlement of accounts with him.
If appointed for a special transaction, the curator’s power
was restricted to that transaction ; but his consent was
necessary to render valid any act involved in that trans-
action. The authority of the general curator (generalis
curator) extended to the entiremanagement of the estate of
the minor, in that the consent of the curator was required
to render valid any act of the minor with reference to the
disposition of his estate. The minor could, however,
without such consent, incur an obligation, subject to the
right of “restitution.” Even when the consent of the

_ curator was given to an act, the minor was not entirely
deprived of the restitutio in integrum, although the grounds
for obtaining it were much restricted.

In general, it may be said that the office of the curator
was to assist the minor in the management of his estate
and to sanction his legal acts when such assistance and °*
sanction seemed necessary for the protection of his inter-
ests. A person appointed as general curator held his
office until his ward had attained the age of majority.
As an exception to this rule, however, a man at twenty,
ora woman at eighteen, might, if deemed advisable, re-
ceive from the emperor a special dispensation (venza
@tatis) and be relieved from further guardianship.

(3) Curators were appointed not only over minors, but
also over the insane, spendthrifts, and all independent
persons who, on account of any natural incapacity, re-
quired the assistance of others to give to their acts a ju-
ridical character. The guardianship of the insane and
260 OUTLINES OF ROMAN LAW.

spendthrifts, as before noticed, owes its origin to the XII.
Tables, which provided that such persons be placed un-
der the supervision of their agnates or the members of
their own geas. In the later law, curators might be ap-
pointed not only by the law (curatores legitimi) but also
by the magistrate (curatores honorarii). In either case
they held their office until the ward recovered his normal
capacity, or until they were removed for a valid cause.
The power of the curator, when exercised in these cases
was quite similar to that of the tutor. In the case of the
insane, all legal acts were performed by the curator; but
in the case of spendthrifts, the curator was required only
to give his consent. :

4. Protection against Tutors and Curators.—
To prevent the property of wards from being wasted and
destroyed by tutors and curators, the Roman law estab-
lished certain special provisions. Some of these related
to the imposing of special obligations upon guardians ;
others related to the removal of persons suspected of
malfeasance.

(1) Generally speaking, all tutors, except those ap-
pointed by testament, and all curators, except those ap-
pointed upon inquiry, were bound to give security for
the proper execution of their duties. And the magistrate
himself was liable if such security was not imposed, or if
it was insufficient. Every guardian was also bound to
make an inventory of the property of his ward, and to
render a final account at the expiration of his term of
office. And the guardian was himself made liable for all
losses due to neglect or fraud.

(2) In addition to the protection of wards afforded by
the provisions mentioned above, all tutors and guardians
were liable to be removed on the charge of suspicion
(suspectt crimen), which provision existed as early as the
GUARDIANSHIP, 261

XII. Tables. Since the office of guardian was a public
trust, malfeasance was looked upon as a public offence ;
and the accusation could be brought against a suspected
guardian by any one who could institute a public action.
The grounds of suspicion were specified in the law, and
if sustained in a particular case, the suspected person was
removed and his place was filled by a more suitable per-
son.

The general principles of the Roman law with reference
to guardianship are quite faithfully preserved in the
modern civil law, and to a certain extent in the English
common law, although the broad distinction which the
Romans recognized between tutors and curators does not
exist in England.

References.—Gaius, I., 142-200; ‘‘Inst.,” I., 13-26; ‘‘ Di-
gest,” De tutelis (26), De excusationibus (27); Ulpian, ‘‘ Fragm.” (11
and 12); ‘*Code,” 5, 28-75; Poste’s ‘‘ Gaius,” pp. 94-129 ; Sandars’
‘* Justinian,” Eng. ed., pp. 128-164, Am. ed., pp. 117-153; ‘‘ Dict.
Antig.,” (Zutor, Curator, Infans, Impubes); Mackenzie, ‘“ Roman
Law,” pp. 146-154; Hunter, ‘‘ Roman Law,” pp. 516-556; Tom-
kins and Jencken, ‘‘ Modern Roman Law,” pp. 137-149; Deman-
geat, ‘‘ Droit Romain,” pp. 326-435 ; Ortolan, ‘‘ Instituts de Jus-
tinien,” II., pp. 135-216; DuCaurroy, ‘‘ Instituts de Justinien,” I.,
pp. 172-248 ; Deurer, ‘‘ Geschichte und Institutionen,” §§ 209-212 ;
Bécking, ‘‘ Rom. Privatrecht,” S. 182-192 ; Marezoll, ‘ Lehrbuch,”
8§ 184-191; Arndts, ‘‘ Lehrbuch der Pandekten,” §$ 439-462;
Vangerow, “Pandekten,” §§ 261-294; Puchta, ‘‘ Pandekten,” §§
321-358.
CHAPTER IV.
ARTIFICIAL PERSONS—CORPORATIONS.

Tue legal capacity which we have thus far considered
is that which the law recognizes as belonging to natural
persons—that is, persons who derive their existence from
nature. But the law also takes account of certain sub-
jects of rights other than natural persons. It attaches a
legal personality to certain artificial persons which are
themselves the creatures of the law. Although in both
cases the legal personality is strictly derived from the
sanction of the law, in the one case the personality is
conferred upon a subject whose existence is independent
of the law, while in the other case the personality is con-
ferred upon a subject which, at the same time, is created
by the law, and which, in fact, has no existence inde-
pendent of the law. Such fictitious subjects have a legal
capacity, however, as distinct and real as that which is
attached to natural persons.

1. Nature and Kinds of Artificial Persons.—In
the sense of the Roman law, an artificial or juridical per-
son is any being which is regarded as a proper subject of
rights and duties, and which owes its existence to the law
alone.

The nature of such persons will be apparent from the
general purpose for which they are constituted. As the
legal capacity of a natural person ceases at the death of
such person, in order to give perpetuity to certain rights
and duties, the law creates a subject which receives the
capacity to exercise such rights and duties beyond the

262
ARTIFICIAL PERSONS. 263

natural period of human life. Although the artificial
subject is generally constituted by an association of
natural persons, as in the case of a corporation, a new
personality is brought into being which is distinct from
the natural persons who compose it, and which continues
its identity even though the membership is entirely
changed. In this case the legal personality belongs to
that fictitious and independent unit which results from
the corporate organization.

This will be more clearly seen by defining the various
kinds of juridical persons recognized in the Roman law.

(1) In the first place, the public treasury (jiscws) was
regarded as a distinct person, having its own rights and
obligations independent of the rights and obligations of
the person or persons who performed the fiscal duties
connected with it. And it remained one legal person
even when the management of accounts required a sepa-
ration into a number of different departments.-

(2) Again, an estate, or inheritance of a deceased per-
son before it was taken up by the heir (A@reditas jacens),
itself constituted an independent legal person. It could
be a debtor and creditor, and thus sustain legal relations
to other persons as really as the decedent whose legal
position it temporarily held.

(3) So, too, a charitable endowment (fza causa),
founded in a proper manner for the purpose of carrying
out some specific object, constituted a legal person.
Whether founded by testament or by gift, if within the
scope of the law, it possessed a legal status of its own
independent of the persons by whom its provisions were
executed.

(4) Finally, a corporation (universitas), that is, a body
of persons legally organized for some permanent object,
was invested with the capacity of acting as a single being,
264 OUTLINES OF ROMAN LAW.

and was hence recognized by the state as a distinct juri-
dical person. There are various kinds of corporations
mentioned in the Roman law, viz.: political, such as
municipalities, colonies, and even the provinces; re-
ligious, such as associations of priests, and anciently of
the vestal virgins ; official, such as organizations of scribes
and decuriales ; industrial, as the organizations of the
artisans of various trades; mercantile, or organizations
of merchants and of other persons in the pursuit of gain;
social, or associations organized for friendly purposes, as
clubs.

2. Legal Status of Corporations.—The “status ”
of a corporation has reference to its position as a distinct
personality, which involves its legal capacity to possess
certain rights and duties apart from the rights and duties
of the natural persons who form its constituent members.
Ulpian lays down the maxim: “Si quid universitati
debetur, singulis non debetur; nec quod debet univer-
sitas, singuli debent,” (D. 3, 4, 7, 1). As the corporation
is in all respects an artificial person, not only is its pos-
session of a distinct legal capacity derived from the state,
but the extent to which that capacity may be legitimately
exercised is determined by the same authority. It is
therefore improper to extend to the corporation all the
principles regarding personality which apply to natural
persons. As it is created primarily for some specific ob-
ject—which generally involves the administration of
property—its capacity is, in general, restricted to the exer-
cise of those functions or the performance of those acts
necessary to accomplish that object. The legal capacity
of acorporation may be considered with reference to its
essential rights, or those for the exercise of which it is
directly established ; and its incidental rights, or those
without which it would cease to exist as a corporate body.
ARTIFICIAL PERSONS. 266

(1) Its essential rights are : first, the right to acquire,
hold, and dispose of property in its own name and under
its own seal, so far as this is not limited by special provi-
sions of the law ; secondly, the right to form contractual
obligations with other persons—the corporate property
only, as a general rule, being liable for the debts of the
corporation ; thirdly, the right to sue in a court of justice
and obtain the ordinary remedy for any infringement
upon its proprietary or contractual rights.

The possession of these rights with reference to other
persons involves, of course, the existence of correspond-
ing duties to which the corporation itself is subject. It
is not, however, as a distinct person, answerable for the
commission of crimes, since the several members in their
individual capacity—and not the corporation—are amena-
ble for criminal offences.

(2) The incidental rights are those which it possesses
ipso jure, as being involved in its existence as a corporate
body, and which are indirectly necessary to fulfil the
ultimate purposes for which it is established. These are,
first, the right to an internal organization, which generally
includes the right to fill vacancies in its membership, to
elect its own officers, to pass its own by-laws; and sec-
ondly, the right of representation—that is, to indicate who
shall express its will in its transactions with others.

The whole legal capacity of the corporation is circum-
scribed, in the Roman law, by the obligation to respect
the general laws of the state, and also the particular law
or act from which it derives its existence and by which
its legitimate object is determined. =

3. Creation and Dissolution of Corporations.—
A corporation could be created only by the express
authority of the state. This authority could be expressed
either by a general law relating to the organization of
266 OUTLINES OF ROMAN LAW.

certain corporate bodies asa class; or by a special law
or act relating to a particular corporation. Three mem-
bers at least were necessary in the Roman law for the
creation of any waiversi/as ; although its existence might
be continued by one. When once constituted it re-
mained the same identical person whatever changes
might take place in its membership.

A corporation might cease to exist in any one of the
following ways :

(1) By the expiration of the time fixed by the charter,
if established for a limited period.

(2) By voluntary forfeiture of its charter to the state.

(3) By an act of the state declaring it dissolved—which
might occur if the corporation transcended its legitimate
purpose.

(4) By the death or withdrawal of all its members,
when it was organized for a private purpose.

The Roman law regarding corporations has, so far as
its main principles are concerned, been largely preserved
in modern jurisprudence. The application of .kese prin-
ciples may vary somewhat in different countries as the
result of statutory legislation : but the underlying doc-
trines of the modern law are clearly indicated in the
Digest of Justinian.

~ References.—‘‘ Digest,” Quod cujuscumyue universitatis nom-
ine (3, 4), De collegiis et corporibus (47, 22), De jure fisci (49, 14);
‘*Cod.,” De sacrosanctis ecclesiis(1, 2) ; Mackenzie, ‘‘ Roman Law,”
pp. 155-160; Kaufmann’s ‘‘ Mackeldey,” I., pp. 145-150; ‘‘ Dict.
Antiqgq.,” (Universitas, Collegium) ; Goudsmit, ‘‘ Roman Law,” Eng.
trans., pp. 66-88 ; Bécking, ‘‘ Rom. Privatrecht,” S. 28-30 ; Arndts,
“Lehrbuch,” §§ 41-47; Mommsen, ‘‘De Collegiis et Sodaliciis
Romanorum.”
BOOK II.

THE LAW OF THINGS—JUS RERUM.

TITLE I.

THE LAW OF PROPERTY OR OWNERSHIP,
CHAPTER I.
THINGS CONSIDERED AS THE OBJECTS OF OWNERSHIP.

Every right, in the broadest sense of the word, in-
volves both a subject by whom it is exercised, and an object
with reference to which it is exercised. A system of law
must therefore determine not only who may be the sub-
jects, but what may be the objects of a right. It must
define not only the extent of legal capacity which belongs
to the subject, but also the extent of legal control capable
of being exercised over the object. It must still further
indicate not only the antecedent facts upon which one’s
legal status depends, but also the antecedent facts by
which one’s power over an external object may be legally
established. The consideration of rights thus viewed
with reference tv their objective relations forms the sub-
ject-matter of the law of things (jus ad res, jus rerum).

It is clear that the legal right of one person to control
for his own benefit an external object involves a corre-
sponding legal duty on the part of others to respect that
right. This duty in some cases is universal—that is,
binding upon all men ; in other cases it rests merely upon
some particular person. Rights with reference to things
may thus be distinguished, in general, according to the
extent of their correlative duties. In this way the right
of property may be clearly separated from the right grow-
ing out of a contract. Over against the former right is a
general duty resting upon all men; while the duty which
stands over against the latter right is specific, resting upon
some determinate person or persons. The former is

269
270 OUTLINES OF ROMAN LAW.

called a rea/ right ; the latter a personal right. This dis-
tinction, though not explicitly stated by the Roman
jurists was implied in their writings. It was clearly in-
dicated in their division of “ actions,” by which rights are
enforced. For example, those actions which are em-
ployed to enforce a right availing against all the world
were called actiones in rem ; while those which are em-
ployed to enforce a right availing against some determi-
nate person were called actiones in personam, Applying to
rights the same terms that the Roman jurists applied to
their corresponding actions, we may say that every right
included under the us Rerum is either a jus in rem or a
jus in personam, The Law of Things may therefore be
properly divided into the law relating to real rights, and
the law relating to personal rights; or, in other words,
the law of Property, and the law of Obligations.

In dealing with the law of Property, we shall follow the
general order of the Institutes, and consider the way in
which things are viewed as the objects of ownership ; the
extent of the various rights which are involved in owner-
ship ; and the different modes of acquiring ownership,
whether in single things or in an entire estate.

1. Legal Idea of Res or Thing.“The term
“thing” as employed in the Roman law has a meaning
as broad and flexible as the term “ person.” As the word
persona designates every being capable of becoming the
subject of a legal right, so the word ves is used to denote
any thing capable of becoming the object of a legal
tight. The term may be applied to a physical object
which one person may legally appropriate to the exclusion
of others—as a piece of land. It may also refer to any
specific service or “right” in a physical object which
may be regarded as distinct from the object itself—as the
right of way over a field. It may even refer to an act
OBJECTS OF OWNERSHIP. 271

(positive or negative) on the part of one person the exer-
cise of which is beneficial to another—as the obligation
due according to the terms of a contract. Ulpian says:
“ Nominis et rei appellatio.ad omnem contractum et ob-
ligationem pertinet ” (D. 50, 16, 6).

This broad conception of res was evidently in the
minds of the jurists when they declared that all law re-
lates to persons, to things, or to actions. But the term is
more often used in a restricted sense to denote the object
of ownership, or of a real right. In other words, when
any thing is viewed with reference to its being made the
object of a proprietary right, it is called a res—the right
itself being called by modern civilians a jus im rem. It
is thus in connection with the law of property or owner-
ship that the legal characteristics of things are chiefly
discussed.

Things were classified in the Roman law with reference
to different principles, and were arranged into various
antithetical groups, as corporeal and incorporeal, mova-
ble and immovable, etc. In looking at these different
classes we shall see that things are sometimes considered
with reference to their legal capacity to be made ob-
jects of ownership; sometimes with reference to their
general qualities ; sometimes with reference to the mode
in which they are designated in a legal transaction ; and
sometimes with reference to their relation to each other.
For the sake of convenience we will adopt this order in
defining the various classes into which things were divided
by the Roman lawyers.

2. Things as to Their Legal Capacity.—As
persons were distinguished from each other with refer-
ence to their capacity to be made the subjects of legal
rights ; so things were separated into classes with refer-
ence to their capacity to be made the objects of legal
272 OUTLINES OF ROMAN LAW.

rights. The capacity of a thing to be made the object of
aright might be taken away entirely by being excluded
from the jurisdiction of ordinary law ; or by not being
capable of individual ownership ; or its legal capacity
might be affected by certain artificial and formal restric-
tions.

(1) According to Gaius the most important division is
that by which things are separated into those which are
subject to the divine law (res diviné juris) and those
which are subject to the human law (res humani juris),
The former class included sacred things (res sacra), or
those consecrated to the superior gods, as_ temples ;
religious things (ves religiose), or those consecrated to the
inferior gods, as burial-places; and holy things (res
sancte), or those specially protected from desecration, as
the walls of acity. All these things by being subject to
the divine law were incapable of being made the object
of private rights. The importance of this distinction de-
pended solely upon the peculiar relation that existed be-
tween the religious and the civil law at Rome.

(2) Again, of those things which were not subject to
the divine law some were regarded as incapable of in-
dividual ownership (res extra patrimonium, or extra com-
mercium) ; while over others the rights of property could
be exercised (res 2 patrimonio, or in commercio). In the
former class were included things common to all man-
kind (ves communes), as the air and the sea; things be-
longing alike to all the members of the state (ves public),
as public roads, rivers, ports, theatres ; and things be-
longing to a corporation of any kind (res universitatis).

(3) Among those things which were capable of in-
dividual ownership there was recognized up to the time
of Gaius the distinction between res mancipi and res nec
mancipt, according as their alienation did or did not re-
OBJECTS OF OWNERSHIP, 273

quire the formal process of mancipation. But at the
time of Justinian, this distinction became practically un-
important, on account of the decay of symbolic forms
and the practical identification of legal and equitable
ownership.

3. Things as to Their General Qualities.— With
the decline of the artificial distinction between ves man-
cipi and res nec mancipi, there was brought into promi-
nence the more natural classification based upon the
general quality of the things themselves.

(1) We notice, in the first place, the division most:
usually emphasized by the Roman jurists, that by which
things are grouped as corporeal (res corporales) and in-
corporeal (ves incorporales). The former class includes
all those objects which are tangible or perceptible to the
senses (gue tangi possunt), as land, houses, clothing,
money. The latter class includes all those objects which
cannot be touched or perceived by the senses (gue tangi
non possunt), as certain claims, privileges, “ rights,” or
services which, though not tangible, are yet capable of
being made the objects of a real right. Among these
things are, for example, a “ right” of way, a “ right” of
using and enjoying the fruits of a corporeal thing.

It must be observed that an incorporeal thing viewed
as the object of a right is sometimes itself called a
“right "—as the “right” of way. But here the term
simply refers to a service in a material thing, which
service is properly a ves, or the object of a legal right in
the general sense of that phrase. The criticism which is
often made upon the Roman lawyers in drawing this
distinction between corporeal and incorporeal things, may
perhaps be explained from the twofold meaning here
attached to the word vigh/, It is claimed that this dis-
tinction is entirely illogical, since “the right of owner-
274 OUTLINES OF ROMAN LAW.

ship is just as incorporeal as the right of way.” It may
be said in answer to this statement, that neither the term
“corporeal” nor the term “incorporeal” can be applied,
in the sense of the jurists, to the Zg#¢ of ownership at all.
These terms can only be applied, in this connection, to
things as the objects of a proprietary right. If the object
is afield, it is a corporeal thing. If the object is merely
a specified service in a corporeal thing, as the “ right
of way” over a field, it is itself an incorporeal thing.
It is therefore incorrect to say that the Roman jurists
speak of some rights as incorporeal rights, implying
that other rights are corporeal. As a matter of fact, they
speak of certain services (to which the term “ rights” in
a special sense is sometimes applied) as incorporeal things
as opposed to other things which are corporeal.

(2) Again, things were divided into movable (ves
mobiles) and immovable (res émmobiles), according as they
can or can not be transferred from place to place without
injury to their substance or form. Among immovable
things were included lands and every thing attached
thereto, such as buildings, trees, ungathered fruit, stand-
ing grain, minerals. While this distinction is -based
primarily upon the physical nature of the things them-
selves, the question as to the immovability of certain
things may depend upon their juridical relation to other
things. Upon this principle, the jurists worked out quite
thoroughly the subject of fixtures ( jira), that is, things
which are so related to an immovable thing as to partake
of the same character.

(3) Things were, moreover, regarded as either divisible
(res dividug) or indivisible (res individue), according as
they can or can not be separated into parts without de-
stroying their essential character or use. The jurists re-
garded as divisible only those things which, without de-
OBJECTS OF OWNERSHIP. 275

struction of their substance or perceptible diminution of
their value, are susceptible of being split into portions
analogous in quality to the thing itself and differing
from it only in quantity. But the principle of division
was extended so as to apply not only to a physical divi-
sion into definite parts (partes certe), but also to a juridi-
cal division into imaginary parts (partes incerte), as
when a single thing is owned by two or more persons in
common.

(4) For certain special purposes, things were also re-
garded as either consumable (gue usu consumuntur) or
inconsumable (gue usu non consumuntur). The former
class includes those which necessarily lose their substance
or value by legitimate use, as wine, oil, food, etc. All
other things are included in the latter class. This dis-
tinction is important in connection with certain kindg of
loans, and also in determining the extent to which a per-
son is liable who has received the right of using a thing
belonging to another.

4. Things as to Their Mode of Designation.—
A still further method of viewing things was according
to the mode in which they are designated in a legal
transaction, ¥

(1) On this principle was founded the division of
things into those which may be furnished i” genere, and
those which must be furnished zz specie. By a “ generic”
thing is properly meant not a class of things, but a thing
designated by the class to which it belongs. When,
therefore, a thing is generically designated in a contract,
any one of the kind may be furnished. But when a thing
is specifically named, the particular thing itself must be
furnished. These classes are sometimes distinguished by
the barbarous Latin phrases, res fungibdiles and res non
JSungibiles,
276 OUTLINES OF ROMAN LAW.

(2) Somewhat allied to the above distinction is that
by which things are regarded either as particular (res
singulares) or collective (rerum universitates). By a res
singularis is meant an individual thing taken by itself, as
a slave, a house. By a rerum universitlas is meant a
group of things taken as a whole without regard to the
number or specification of the individuals composing it,
as a flock of sheep, a stock of goods, an entire estate.
The peculiarity of a collective thing consists in the fact
that it is not legally affected by any natural increase or
diminution of the individual elements that enter into it.

5. Things as to Their Mutual Relations.—
When considered with reference to their relations to each
other, things were regarded as either principal (res princi-
pales) or accessory (ves accessorig). A principal thing, ac-
cording to the Roman law, is one that can subsist by it-
self, and is legally viewed as the direct object of a right.
An accessory thing, on the other hand, is one that is so
joined or related to the principal that its legal character
is merged in that of the latter. This relation of principal
and accessory is of the greatest importance as connected
with the transference of the title to property and the re-
covery of property by suit. It was a general principle of
the law that whoever has the right to the principal, has
also the right to the accessory thing.

In defining the things that are included under the term
“accessory,” it is necessary to observe that the term ap-
plies to something else than that which merely forms an
essential and constituent part of another thing (ars ret
principalis) and which from its very nature must follow
the disposition of the whole. The term applies rather to
that which possesses, to a certain extent, a distinct char-
acter of its own, but which loses its legal independence
by sustaining a subordinate relation to another thing.
OBJECTS OF OWNERSHIP. 277

Things properly regarded as accessory may be grouped,
in general, under “ appurtenances” and “ fruits.”

(1) Appurtenances are things which have been so
joined or attached to the principal thing as to be regarded
as necessary auxiliaries to it (cause ret) and to be legally
treated as though they were parts of it (guasi partes ret ).
They may belong to movables or immovables. But that
they may be properly auxiliary to the principal thing, it
is necessary, first, that they be naturally adapted to serve
the principal thing and augment its utility ; secondly,
that this adaptation be of a permanent character ; and,
thirdly, that it be efficiently realized. The rule of the
Roman law is that every disposition that affects the prin-
cipal affects also the appurtenances, unless an exception
be expressly made.

(2) Under the term “ fruits,” the Roman law includes
not only the natural organic products of a thing (fructus
naturales), as the products of the soil and the offspring of
animals ; but the pecuniary benefits that may be legiti-
mately drawn from a thing (fructus civiles) as interest
and rents. Natural fruits comprise something more than
those which are called strictly natural (mere naturales),
that is, which result from the spontaneous growth of
nature ; they include, besides, those which are called
industrial (¢adustriales), that is, the production of which
requires the aid of human labor, as agricultural and
mechanical products. For the purpose of determining
the legal disposition of certain natural fruits, it becomes
necessary sometimes to distinguish between those which
are still unsevered from the principal thing ( pendentes) :
those the separation of which has resulted from chance
or natural causes (separati); and those which have
been gathered or appropriated with the intention of
retaining possession (fercepfi), The principles which
278 OUTLINES OF ROMAN LAW. ‘

were applied to the legal disposition of natural fruits were,
in general, applied also to civil fruits,

Within the meaning of the Roman law, the term acces-
sory thing thus comprehends everything which in a legal
transaction is by presumption transferred or retained
with the principal ; and, consequently, everything which,
in a civil suit, the claimant of the principal may prop-
erly demand from the defendant in addition thereto,
including what he would have derived from the principal
had it not been unjustly withheld from him.

References.—Gaius, 2, 1-14; “ Inst.,” 2, 1-12; ‘‘ Digest,” De
divisione rerum (1, 8), De actionibus emti et venditi (19, 1); Mac-
kenzie, ‘Roman Law,” pp. 161-164; Tomkins and Jencken,
‘“Modern Roman Law,” pp. 56-62; Amos, ‘‘ Roman Civil Law,”
pp. 123-131; Kaufmann’s ‘‘ Mackeldey,” I., pp. 151-158 ; Philli-
more, ‘‘ Private Law Among the Romans,” pp. 88-93; Goudsmit,
‘“*Roman Law,” Bk. I., ch. 4; Demangeat, “Droit Romain,” L,
Pp. 438-447; Marezoll, ‘‘ Lehrbuch,” §§ 82-85 ; Bécking, ‘‘ Rom.
Privatrecht,” S. 30-36; Arndts, ‘‘ Pandekten,” §§ 48-55 ; Vange-
row, ‘‘Pandekten,” §§ 61-79; Windscheid, ‘“ Pandekten,” §§
137—144.
CHAPTER II.
THE GENERAL RIGHT OF OWNERSHIP—DOMINIUM,

Tue law of property in general determines not only the
various kinds of things which may be made the objects of
a real right, but also the various kinds of real rights
which may be exercised with reference to things. These
rights may be very extensive or they may be very limited.
But the common feature which characterizes them and
which distinguishes them from personal rights is the
fact that they avail against the world at large. In de-
fining the character and extent of real rights, a distinc-
tion is to be drawn between those which one possesses
in that which belongs to himself (jura in re propria), and
those which he possesses in that which belongs to another
(jura in re aliena).

Reserving for the present the consideration of the latter
class of rights, we shall notice the distinctive features of
those rights which one is said to possess in that which
is his own. These rights involve the highest and most
absolute control which a person is permitted under the
law to exercise with reference to an object. To this
superior class of real rights, the Roman jurists applied
the term dominium—that is, ownership in the proper
sense of the word. It is true that the term dominium
was sometimes used to include all kinds of real rights,
whether superior or subordinate ; but it was generally
restricted to that class of rights with reference to things
which not only avail against the world at large, but which
are held under no superior except the law-making power,

279
280 OUTLINES OF ROMAN LAW.

We shall be in a position better to define the specific
elements and various forms of ownership, if we first con-
sider the growth of the legal idea of property as illus-
trated especially in the Roman law.

1. Growth of Property as a Legal Right.—
Property is founded primarily upon the instinct to ap-
propriate the necessary means of human existence and
happiness; and when considered as a moral right, it
has no doubt an ultimate basis in the nature of man.
But when looked upon from a purely legal point of
view, it is seen to be immediately connected with the
evolution of civil society and the growth of state-power.
This may be illustrated by the successive forms in which
property has been held, and by the successive modes in
which it has been protected.

(1) In the early stages of society, the social and the
proprietary relations of men are so closely allied to each
other as to be governed substantially by the same princi-
ples. On account of the peculiar organization of early
society, the primitive form of property, especially as it re-
lates to immovables, partakes somewhat of the character of
“communism.” The individual rights of appropriation
are merged in the general proprietary rights of the group.
Whatever is acquired by any member belongs to the
common estate; and it is held and perpetuated as an
adjunct of the community as a whole. But the growth
of the importance of the individual as an independent
member of society is accompanied by the growth of
individual ownership as a right distinct from the general
right of ownership exercised by the community at large.
The transition from collective to individual property
seems to be an historical fact that has everywhere at-
tended the emergence of man from a state of barbarism.

In Roman history, we find illustrations of this fact in
THE GENERAL RIGHT OF OWNERSHIP. 281

the gradual decline of the collective idea of property in-
volved in the organization of the gens and the patriarchal
family, and in the corresponding growth of an elaborate
system of rules, granting to the individual the inde-
pendent power of acquisition and alienation.

(2) The growth of the legal idea of ownership is also
associated with the evolution of the state as a mediating
and sanctioning power. In primitive society the right of
property is based upon force. The right of the group to
that which it holds depends upon its capacity to retain
its goods against forcible dispossession. With the growth
of the state, however, the force necessary to protect prop-
erty is taken away from the elementary group and the
individuals composing it, and reposed in the larger body-
politic. This results in the adoption, on the part of the
state, of certain rules in accordance with which its medi-
ating and sanctioning authority is exercised. The right
of appropriation, protected by the force of the proprietors
themselves, is thus modified by the growth of common
rules’ of acquisition, which apply alike to all and which
are enforced by the sovereign power of the whole com-
munity. And in adjusting the conflicting claims of
different proprietors, the state, as it ceases to be a re-
specter of persons, comes gradually to recognize princi-
ples that are based upon an equality of rights. In con-
nection, therefore, with the movement whereby collective
property is translated into individual property, there is
also a movement whereby the sanctioning power is trans-
ferred from the proprietors to the body-politic.

The growth of the Roman law of property gives un-
mistakable evidence of this twofold process—the differ-
entiation of the proprietary tenure from collectivism to
individualism, and the integration of the sanctioning
pewer from private force to state authority. The legal
282 OUTLINES OF ROMAN LAW.

idea of property, therefore, which we find in the Roman
law is that of a right held by a person over a thing—
absolute with reference to all other persons, but relative
with reference to the state. It is relative with reference
to the state not only because the right itself is sanctioned
by the state, but because its extent and the legitimate
modes of its acquisition are determined by the state
authority. The legality of the right of property thus
depends directly upon the sanction given to it by the
state. But it must not be supposed that the Roman
jurists ignored the ethical basis of this right. No more
than any other right is the right of property created by
the arbitrary will of the state. It is sanctioned by the
state because it is in accordance with the natural princi-
ples of justice, which the state is always morally bound
to respect.

2. Elements Involved in Ownership or Domin-
ium.— According to the Roman law, the right of owner-
ship, or dominium, is the most extensive real right which
a person can legally. exercise over a thing. It is the
plenary control over an object availing against the world,
and in its exercise it is subject to no superior authority
except that of the state. It must not, however, be re-
garded as an absolutely unlimited right, for it is restricted
by the legal rights of other persons and by the general
duties resting upon the owner as a law-abiding citizen.

Though subject to these necessary restrictions, it yet
approaches in its complete form the character of an ab-
solute right. It is, in general, indefinite as to its extent,
unlimited as to its duration, and unrestricted as to its
disposition. Hence, the owner, or dominus, can hold the
object to the exclusion of all other persons; can use it
according to his own free-will ; can reap all the benefits
capable of being legitimately derived from it; and can
THE GENERAL RIGHT OF OWNERSHIP. 283

freely dispose of it during his lifetime or at his death.
In the technical language of the Roman law, dominium,
or complete ownership, includes :

(1) The jus utendi, or the right of making use of the
thing.

(2) The jus fruendi, or the right of appropriating its
fruits, whether natural or civil.

(3) The jus abutendi, which involves the right of dé-
struction, consumption, and free disposition.

3. Different Forms of Ownership.—In connection
with the simple idea of ownership just described, there
are certain special features relating to the form of owner-
ship, or the mode in which it is exercised, that should be
noticed.

(1) In the first place, the Romans made a distinction
that corresponds somewhat to legal and equitable owner-
ship. This distinction, which as we have seen ‘played a
very important part in the history of the law of property,
was based not so much upon the extent of the right as
upon the kind of sanction by which it was protected. It
is only necessary to collate certain facts already referred
to, in order to see the relation which these two forms of
ownership sustained to each other. Dominium, it will be
remembered, referred originally to that right of property
which was protected by the jus czvile. But the pretor
assumed the authority to protect dona fide possession even
when all the conditions required by the jus c7vile had not
been complied with. This kind of property was said to
be held zz Jonis ; and these two forms of ownership the
commentators have distinguished as dominium Quirita-
rium and dominium bonitarium. With the fusion of the
jus civide and the jus gentium, and with the tendency of the
jurists to found all rights upon common principles, the
possessio in bonis came to be assimilated to domintum.
284 OUTLINES OF ROMAN LAW.

Though the distinction between these two forms of
ownership continued to exist in legal phraseology, they
were practically equal in extent, and came to be protected
by the same tribunal.

(2) Again, the right of domini‘um in one and the same
thing may be exercised by a single person or by two or
more persons. This gives rise to the distinction between
single and joint ownership. In the latter case (condomin-
ium) the undivided thing is held in common by all the
owners ; they are all in common, according to their share,
entitled to its fruits, and are also obliged to defray its
necessary expenses. No one of the owners is entitled to
the entire thing, nor indeed to any separate part of it.
But either owner could obtain his own proper share by
an action called communi dividundo,

(3) While the dominium in the fullest sense is an un-
limited and exclusive right, it may yet be qualified in
various ways without destroying the real right of the
dominus. Upon this fact depends the distinction between
absolute and qualified ownership, or free and burdened
property. The ownership is said to be free, or absolute,
when all the rights involved in the dominium are vested
in the owner himself ; and in this case it is distinguished
by the terms dominium plenum, or plena proprietas. But
when certain subordinate rights, as the right to use the
thing or of reaping the fruits, are detached and trans-
ferred to another person than the owner, the property be-
comes to this extent burdened. The superior right, how-
ever, which still remains with the owner, does not lose its
essential character as dominium. On account of the fact,
however, that it is burdened and not free, it is called by
way of distinction dominium minus plenum, or nuda pro-
prietas. The dominus is still a dominus even when his
rights of ownership are thus restricted or qualified.
THE GENERAL RIGHT OF OWNERSHIP. 285

4. Possession and its Relation to Ownership.—
Besides the right of ownership, the Roman law recognizes
another real right, which often sustains an important re-
lation to ownership, viz.: the right of possession. It is
evident that there is a clear distinction to be drawn be-
tween the right to possess (jus possidendi) which is merely
a legal consequence of ownership, and the simple right of
possession (jus possessionis) which may exist independent
of ownership. Possession and ownership may, and gen-
erally do, coincide. But as a person may be the owner
of a thing and not possess it, so a person may be the pos-
sessor of a thing and not be the owner. It is when the
possessor is not the legal owner that it becomes important
to consider to what rights he is entitled by virtue of his
possession. To sum up in the briefest space a subject
which has afforded much discussion and controversy, the
following statements must suffice.

(1) Possession, when considered as a mere fact, is sim-
ply the corporeal apprehension of a thing, or the holding
of a thing under one’s physical control. In order to have
any juridical significance, the corporeal detention (corpus)
must be accompanied by an intention (animus) to hold
the thing as one’s own—which, of course, cannot be the
case when one holds a thing as the property of another
(alieno nomine possidet) as a trust or security, in which
case the Roman law says, that he does not strictly “ pos-
sess” it (won possidet). In order that possession may
have full significance as a legal fact (fossesséo civilis) it
must have been acquired lawfully and in good faith. Itis
lawfully acquired (possessio ex justa causa) when it has
been acquired through the forms of a legal title and not ina
vicious manner (v7, clam, vel precario). It is acquired
in good faith ( possessio bone fidet) when the possessor
believes that no one has a better right to the thing than
himself.
286 OUTLINES OF ROMAN LAW.

(2) A question which has seriously disturbed the minds
of modern civilians is, whether possession, in the Roman
law, isa right or merely a fact. Notwithstanding the
clear statement of Papinian, ‘‘ possessio non tantum cor-
poris sed et juris est” (D., 41, 2, 49, 1), and the fact that
the term jus possessionis is repeatedly used by the jurists,
it may be the part of wisdom for us to avoid this issue,
and simply say that, whether possession is a legal fact or
a legal right as well, it is certainly true that the Roman
law recognizes on the part of the possessor certain definite
legal rights to which he is entitled by virtue of his pos-
session. These rights may be considered with reference
to juridical possession, and with reference to civil pos-
session.

In the case of juridical possession—that is, where the
detention of a thing is accompanied with the-intention of
holding it as one’s own—the possessor has the right of
protection against any other person who has not a better
title than himself ; and in case he is improperly dispos-
sessed (27, clam, vel precario) he has the right to be sum-
marily restored to his possession. As against any one
claiming a better title, he has the right of retaining pos-
session until the issue is legally decided.

In the case of civil possession—that is, where juridical
possession is also done fidet and ex justa causa—the posses-
sor has not only the right of protection but the right of
assuming full ownership after a period of time specified by
law (usucagio). He has also the right to the gathered
fruits of the estate as long as his title remains secure
against adverse claimants.

When considered with reference to their accompanying
rights, juridical and civil possession are sometimes dis-
tinguished as possessio ad interdicta and possessio ad usu-
capionem. The former was protected by the pretorian in-
THE GENERAL RIGHT OF OWNERSHIP. 287

terdicts (nterdicta retinende et recuperand@ possessionis) ;
the latter was protected by the actio Pudliciana until it
ripened in full ownership. The rights which accompany
juridical and civil possession possess a close similarity to
ownership. They are substantially real rights, availing
against all the world, except the single person who can
show a better title—and in the case of civil possession
this exception ceases after a prescribed period of time.

References.—Gaius, 1, 54; 2, 40; 3, 80; Digest, Communi di-
vidundo (10, 3); De acquirenda vel amittenda possessione (41, 2); Ute
possidetis (43, 17); Code, De acguirenda et retinenda possessione (7,
32); Mackenzie, ‘‘Roman Law,” pp. 165-167; Hunter, ‘‘ Roman
Law,” pp. 195-222; ‘‘Dict. Antiqg.” (Dominium, Possessio)
Tomkins and Jencken, ‘‘Modern Roman Law,” pp. gg-III, 150-
154; Kaufmann’s ‘‘ Mackeldey,” I., pp. 231-272; Damangeat, I.,
Pp. 447-452; Deurer, ‘‘Gesch. und Inst.,” §§ 147-150; Marezoll,
“Lehrbuch,” §§ 82-103; Bécking, ‘‘ Rém. Privatrecht,” S 133-
140; Vering, ‘‘Gesch. und Pandekten,” §§ 136-140; Arndts,
“Pandekten,” §§ 123-143 ; Vangerow, ‘‘ Pandekten,” §§ 198-210,
295-304; Windscheid, ‘‘ Pandekten,” §§ 145-169.

There is hardly any topic connected with the Roman law which
has been so extensively discussed as that of ‘‘ possession.” A great
number of the more recent writings have been provoked by the
theory of Savigny, which the Englisn student will find stated in the
“Dict. Antiqg.” (ossessio). The diverse views regarding this
subject may be found in Tomkins and Jencken’s “ Modern Roman
Law,” and in Kaufmann’s ‘‘ Mackeldey,” in the text and the notes.
The literature of this subject is extensive ; but, perhaps, the most
significant works are: Thibaut, ‘‘ Ueber Besitz und Verjahrung,”
Jena, 1802; Savigny, ‘‘Das Recht des Besitzes,” Giessen, 1803 ;
Warnkénig, ‘‘Analyse du Traité de la Possession par M. De
Savigny,” Liege, 1824; Zacharid, ‘‘ Neue Revision der Theorie des
Rom. Rechts vom Besitz,” Leipzig, 1824; Gans, ‘‘ Ueber die Grund-
lage des Besitzes,” Berlin, 1839; Pfeiffer, ‘‘ Ueber den Besitz nach
Rom. Recht,” Tiibingen, 1840.
CHAPTER III.
THE SUBORDINATE RIGHTS OF OWNERSHIP—JURA IN RE.

In complete ownership, all the rights involved in the
dominium are united and vested in the gominus. But own-
ership without losing its essential nature, may be-
come qualified or burdened. This occurs when certain
subordinate rights are separated from the dominium and
conferred upon some other person than the dominus.
For instance, one person may be the owner of a thing and
have the right to its substance ; while to another person
may be granted the right to use the thing in a specified
way, or to make use of its fruits for a specified time. The
rights which may thus be detached from the dominium
without destroying the superior right of the dominus—in
other words, the rights which one person may exercise in
the property of another—are called ura in re aliena, or
simply jura in re. They are regarded as subordinate to,-
yet distinct from, the dominium, and are hence subject to
a separate consideration.

1. General Features of Jura in Re.—The jura in
re of the Roman law may be defined in general as certain
subordinate rights of ownership which are exercised by
one person in the property of another. They do not
themselves constitute ownership in the proper sense, but
are certain rights of a specified nature “carved out” of
the dominium, without, however, destroying the residuary
or principal right of ownership (xuda proprietas). In this
separation of the rights of property, the distinction must
be kept in view between the superior rights which the

288 .
SUBORDINATE RIGHTS. 289

owner still retains in his property, and the subordinate
rights which are transferred to another, In sucha sep-
aration, these two sets of rights in the same object are cor-
relative to each other—the superior right being restricted
in proportion to the extent of the subordinate rights
which are detached.

The general characteristics of the jura in re may be
described as follows :

‘(1) They are regarded as read rights, availing against
all the world equally with complete ownership.

(2) They are less in extent than complete ownership
(plena proprietas), although they may, in some cases, be
practically of greater extent than the residuary right
of ownership (xuda proprietas) left after their separa-
tion.

(3) They sustain a certain subordinate relation to
ownership, since in case of their extinction as separate
rights, they are re-absorbed into the dominium. ~

(4) They are never presumed, but if questioned they
must be proved as to their existence, and also specifically
defined as to their extent, and as to their duration if
limited in time.

Among the various jura in re of the Roman law, some
are granted for the benefit of an adjoining estate, as
preedial servitudes ; some are granted for the benefit of a
particular person, as personal servitudes; some are
granted in perpetuity for the benefit of a person and his
heirs, as emphyleusis and superficies ; and some are granted
to acreditor as asecurity for debt, as pignus and
hypotheca, We shall consider them briefly in the order
named.

2. Predial Servitudes—Rural and Urban.—Pre-
dial servitudes comprise certain rights, or services, in one
estate which are detached from that estate and united to
290 OUTLINES OF ROMAN LAW.

an adjoining estate for the benefit of the latter. In such
a case, the one estate is burdened to the extent that the
other is benefited ; or, in the language of the law, one
estate serves the other—predium servit predio. Of the
two adjoining estates, the one from which the rights are
detached, or which suffers the burden, is called the
predium serviens ; while the other, which receives the
benefit of the servitude, is called the predium dominans,
When a preedial servitude has once been established, the
privileges of the dominant estate and the burdens of the
servient estate remain without regard to what particular
persons may come into possession of the different estates.

The general principle controlling przdial servitudes is,
that the dominant estate must derive an actual benefit
from the servitude, and the benefit derived must be due
to the relative position, the essential nature, or the pecu-
liar features of the servient estate. This benefit, which
the owner of the dominant estate derives from the other,
may be positive, as when he is allowed to put the servient
estate to a certain use which he could not otherwise do,
é. g., in using the right of way; or the benefit may be
negative, as when the owner of the servient estate is re-
strained from using his property as he might do if the
servitude did not exist, ¢. g., in being prevented from
raising his building so high as to obstruct his neighbor’s
light. Upon this principle depends the distinction be-
tween positive (or affirmative) and negative servitudes.

Preedial servitudes are commonly divided into rurai, or
those that relate to land, and wrdam, or those that relate
to buildings—so-called because the former are more
common in the country, and the latter in the city.

(1) Rural servitudes comprise the rights which the
owner of one piece of land has to certain services or
benefits afforded by an adjoining piece of land belonging
SUBORDINATE RIGHTS. 29

to another person. As examples of such servitudes may
be mentioned : the right to pass over an adjoining field
on foot or horseback (¢éer) ; the right of passage for car-
rlages or for cattle (actus) ; the right of way for any kind
of vehicle or for any kind of purpose (za) ; the right of
drainage (agueductus) ; the right of watering cattle on
another’s field, or of drawing water from another’s well
(aguehaustus) ; the right of pasturage on another’s land
(jus pascend: ), etc.

(2) Urban servitudes are similar to the preceding, ex-
cept that they relate to buildings. The following are
some of the chief examples: the right of supporting a
building upon another’s house-wall (jus oneris ferendi) ;
the right of inserting a beam into another’s wall (jus tignt
immittend: ) ; the right of projecting a roof over another’s
ground, or of opening a house-drain upon it (jus stillicidi¢
vel fluminis recipiend?) ; the right to restrain a neighbor
from raising a wall so high as to obstruct the light (jus
altius non tollendt ).

No servitude, whether rural or urban, whether posi-
tive or negative, exists unless it has been constituted
in a manner prescribed by law. And when once estab-
lished, it remains until terminated according to the rules
of the law. A predial servitude may be created by agree-
ment ; by testament ; by prescription; or by a judicial de-
cree. It may be terminated by renunciation, or voluntary
surrender ; by negative prescription, or non-use for that
period of time which would have been necessary to es-
tablish it ; by consolidation or merger, which takes place
when the ownership of the adjoining estates becomes
united in a single person ; and by destruction either of
dominant or of the servient tenement.

The general principles of the Roman law regarding
praedial servitudes are preserved in the modern civil law,
292 OUTLINES OF ROMAN LAW.

and are applied, in a great measure, to the “ easements ”
of the English common law.

3. Personal Servitudes—-Usufruct, Use.—Per-
sonal servitudes comprise certain subordinate rights in
property which are detached from the dominium for the
benefit of some particular person other than the owner.
On account of their distinctive character in being grant-
ed by the owner to some specific person, they cannot,
strictly speaking, be alienated, and they cannot extend
beyond the lifetime of that person for whose benefit they
are granted. The character of personal servitudes will
be more clearly indicated by defining their species, which
are Usufruct, Use, and some others of less importance.

(1) Usufruct (wswsfructus) is the right of using a piece
of property belonging to another and enjoying its fruits
without impairing the substance. Or, in the words of
Paulus, it is: “Jus alienis rebus utendi fruendi salva re-
rum substantia” (D., 7, 1,1). This right may be estab-
lished in any corporeal thing, whether movable or im-
movable. It was originally restricted to things that are
not consumed by use ; but a gwas7 usufruct was afterward
allowed in consumable things, on the condition that an
equivalent of the substance consumed be restored, either
in kind or in money. The person for whose benefit the
servitude is established is called the usufructuary (wsw-
Jructuarius). It was a peculiar principle of the Roman
law that, while the right of usufruct was regarded as
strictly inalienable, the usufructuary might permit a third
person to exercise it and receive the benefit that it
afforded. But in this case the original relation between
the usufructuary and the proprietor still remained
unchanged.

The privileges and the liabilities of the usufructuary
grow out of the essential nature of the right itself. Heis
SUBORDINATE RIGHTS. 293

entitléd to use the property in any legitimate manner. He
is entitled to the benefit of all the fruits, both natural
and civil, that are properly accessory to the estate—that
is, the fruit ungathered at the commencement of the in-
terest, and the fruit gathered before the termination of
the interest. Consequently, the fruit gathered before the
commencenient and ungathered at the termination of the
interest belong to the dominus. The usufructuary is also
under certain obligations which attend his right, viz.: to
make compensation for any injury done to the property ;
to keep the property in ordinary repair ; and to pay the
public burdens or taxes to which the estate is liable.
Every usufructuary was also obliged, according to the
Roman law, to give security to restore the property in
the same condition as that in which he received it.

Like all other servitudes, the usufruct must be created
and terminated in a manner prescribed by law. It may
be established by testament ; by agreement followed by a
quasi tradition ; by being reserved in the alienation of the
nuda proprietas ; by adjudication, as when a judge by a
compromise between disputants decrees the nuda pro-
prietas to one claimant and the usufruct to another ; and
by special law, as where Justinian gave the father a life
interest in the son’s peculium. The right, on the other
hand, may terminate by the natural or civil death of the
usufructuary ; by limitation, when granted for a specified
period; by merger, when the usufruct and the nuda pro-
prietas are re-united in the hands of the same person ; by
renunciation, when the right is voluntarily surrendered to
the proprietor ; by non-use for the prescriptive period ;
and by the destruction of the property in which the right
is established.

(2) Use (wsws) is an interest in the property of another
of less extent than the usufruct. It is restricted to the
204 OUTLINES OF ROMAN LAW.

simple use of the property, excluding the fruits—except
when granted in land, in which case there is included the
right to the fruits necessary to supply the daily wants of
the usuary (wswarius). The use was not only inalienable,
like the usufruct, but even the exercise of the right could
not be transferred to another. The principles relating to
the establishment and termination of the use were sub-
stantially the same as those that applied to the usufruct.

(3) Besides these more important personal servitudes,
there were in the Roman law certain others which need
merely to be mentioned, viz.: the right to reside in a
house (Aaditatio) ; the right to the labor of slaves (opere
servorum) ; the right to the use of animals (opfere
pecorum) ; and the right to possess and enjoy the tem-
porary benefit of another’s property, whether movable or
immovable, at the will of the owner (frecarium). The
general principles applicable to these were similar to those
principles already mentioned in connection with the other
personal servitudes,

The personal servitudes of the Roman law, and of the
modern civil law, so far as they relate to immovable prop-
erty, are somewhat analogous to the “estates not of in-
heritance”” of the English common law. Owing to the
peculiar and distinctive origin of the English law of real
property, this analogy indicates, however, no historical
relation between the two interests.

4. Emphyteusis and Superficies.—The broadest
jura in re of the Roman law were the Lmphyteusis
and the Superfictes, which approximate quite nearly to the
complete right of ownership. In these cases, the largest
portion of the rights involved in the dominium are granted
to some other person than the dominus, so that the residu-
ary rights belonging to the dominus are of a comparatively
limited character.
SUBORDINATE RIGHTS. 295

(1) Amphyteusis is the perpetual right of using and
enjoying the fruits of the land belonging to another
on condition of proper cultivation and the payment of an
annual rent. Before the legislation of Justinian, this
right had no definite character of its own, sometimes be-
ing treated as asort of perpetual usufruct and sometimes
as guasi dominium—although it could neither be a usu-
fruct, since it was inheritable ; nor dominium, since it was
distinct from the right of the dominus. Justinian, ac-
cordingly, gave it a distinct character, by applying to it
the law relating to ager vectigalis—or the land leased in
perpetuity by towns,—which had itself been founded
upon the law relating to ager publicus.

We may, therefore, trace the principles involved in the
emphyteusis, or the perpetual lease of land, to the earliest
theories of landed property existing. at Rome. The land
which was originally conquered by the Romans was for
the most part given over to individual citizens to occupy
and enjoy. But its true ownership still remained with
the state, the land itself being called ager pudblicus. Its
possession involved the exclusive right to its enjoyment,
and was protected by the pretor’s interdicts. The land
thus possessed was subject to an annual rent—usually a
tenth or a fifth part of the products,—whereby it was
sometimes called ager vectigalis. The latter term was
afterward applied to any land leased in perpetuity by the
state, or by any municipal or ecclesiastical corporation ;
it was usually restricted, however, to town lands, which
were so leased that neither the lessee nor his legal suc-
cessors could be ejected or disturbed so long as the vecti-
gal, or rent, was paid. The application of the law re-
garding the ager vectigalis to perpetual leases of private
land gave to the latter, under the name of emphyteusts, a
distinctive character as a part of the law of private

property.
296 OUTLINES OF ROMAN LAW.

Although the emphyteusis did not properly carry with it
the dominium, it involved all the beneficial rights of own-
ership. Not only did the emphyteuta, or holder of the
right, possess all the privileges involved in the usufruct,
but the right itself was alienable, devisable, and inherita-
ble. The rights which the dominus (with his heirs) still
retained were the right to the annual rent, the right of
pre-emption, the right to a fine of one-fiftieth part of the
value of the estate upon alienation, and the right of re-
version. There was thus involved in the relation growing
out of this right a sort of “double ownership ’’—a_prac-
tical but inferior ownership held by the emphyteuta, and a
theoretical but superior ownership held by the dominus.
This principle of double ownership in land, uniting the
beneficial right of the tenant with the reversionary right
of the lord, is analogous, and perhaps historically related,
to the feudal tenures of the Middle Ages, upon which are
founded the “estates in fee”’ of the English law.

This right, like every other jus zz re of the Roman law,
was never presumed to exist. It might be created by
contract, which was, on account of the early indefinite
nature of the right itself, sometimes regarded as a lease
and sometimes as a sale, until the emperor Zeno gave to
it a distinctive character and name (contractus emphyteuti-
carius); by testament ; and, as some suppose, by prescrip-
tion. It might cease to exist—that is, revert to the
dominus—by renunciation ; by serious injury to the prop-
erty ; by the non-payment of the rent or of the public
burdens to which the land was liable; by alienation
without due notice to the owner; by negative prescrip-
tion, which might occur when the owner himself held the
land by dona fide possession for the prescriptive period ;
and by the death of the empAyteuta without heirs.

(2) Superficies is a right similar to the preceding, appli-
SUBORDINATE RIGHTS. 297

-cable, however, to buildings instead of land. By it a
person could erect a building upon the land of another,
which building, though theoretically belonging to the pro-
prietor of the land, was practically the property of the
grantee, who could use it, transfer it, or transmit it to his
heirs, subject to the payment of an annual rent. This
right is analogous to the long building-leases of the Eng-
lish law. The conditions of its creation and extinction
were substantially the same as those of the empAyteusis.

5. Pignus and Hypotheca.—The remaining jura
zn re to be considered are those rights which a creditor
might acquire in the property of another as a security for
debt. These are the fsignus and the hypotheca. The
chief distinction between these two rights consists in the
fact that the former, like the English pawn, involves the
transference of the possession of the property to the
creditor; while the latter, like the English mortgage,
allows the possession to remain in the hands of the
debtor. In considering the nature of these rights, we
may notice the mode in which they were developed as
real rights ; the principles by which they are controlled ;
the modes in which they may be established; and the
conditional power of sale which they involve.

(1) The earliest mode of granting security for debt—

‘leaving out of account the manus injectio of the XII.
Tables, which placed in jeopardy the personal liberty of
the debtor—was by the fiducta. This involved the trans-
fer of full legal ownership in the property to the creditor
(by mancipation or 7” jure cessto) upon the condition of
its being re-conveyed by the creditor on the payment of
the debt. The fiducia was not only attended with incon-
venience, but did not secure the debtor from the injustice
which might arise in case the creditor saw fit to alienate
the property. Having relinquished the legal ownership
298 OUTLINES OF ROMAN LAW.

the debtor had no remedy for the recovery of the prop
erty, in case it passed from the hands of the creditor.
This injustice was partially met by the early pignus, or
pledge. In this case, the possession only of the property
was transferred to the creditor, who simply acquired the
right of sale if the debt was not paid when due. The
debtor was now made safe by retaining the full owner-
ship of the property ; and the claim of the creditor was
secure as long as he retained possession of the property
pledged. But in case the latter lost his possession, he
also lost his security ; since, not being the owner, he had
no real action for its recovery.

In order to prevent injustice either to the debtor or to
the creditor, it was necessary not only to preserve to the
debtor his right of ownership, but also to secure to the
creditor his right of conditional sale, whoever might
happen to be the possessor of the property. This was
accomplished by the pretorian law, which at first gave to
the proprietor of an estate a real action (acto Serviana)
for the recovery of property pledged by his tenant
(colonus) as a security for rent. This right was extended
by the actio guast Serviana (called also actio hypothecaria),
so that any creditor might pursue his right to any prop-
erty that had been pledged as a security for debt, against
any person having it in his possession. The ancient
jiducia passed away, as the pignus and hypotheca assumed
the character of jura in re, or real rights, available against -
any person who might hold the burdened property in pos-
session. With certain supplementary provisions giving to
the owner of the burdened property a reasonable time in
which to redeem his property from the burden resting up-
on.it, the Roman law of pledge and mortgage was essen-
tially complete.

(2) The principles which controlled the piguus and the
SUBORDINATE RIGHTS. 299

hypotheca were substantially the same, with the general
distinction that the former involved possession on the
part of the creditor, which the latter did not. Each
right pre-supposes a valid claim, for the security of
which it is established ; and hence, if the debt is not
legally valid, the security has no significance. The right
may be granted in any thing which is capable of aliena-
tion, This generally consists in a corporeal thing, mov-
able or immovable, or in any aggregate of rights that
can be conveyed, But a personal servitude (as a usufruct)
although it cannot itself be strictly alienated, may furnish
the basis of a security ; in this case, however, the creditor
cannot seize upon the right of usufruct itself, but only
upon the fruits that result from the usufruct. The right
of pledge or mortgage is said to be general, when it re-
lates to the whole property of the debtor; and special,
when single things only are pledged.

(3) The right may be established by agreement ; by
testament ; by judicial decree ; and by operation of law,
When created by agreement or testament, it can be estab-
lished only by the one who has the legal right to the
thing pledged. By a judicial decree, the possession of the
debtor’s property may be adjudged to the creditor until
the judgment-claim has been satisfied. By operation of
law, the tacit right of mortgage (Aypotheca ftactta) was,
among the Romans, attached to certain specified claims.
For example: The jscvs had a general mortgage on the
property of all subjects as a security for public taxes ;
the husband on the property of him who promised the
dos ; the wife on the property of the husband for the res-
titution of the dos ; the lessor on certain things belonging
to the lessee as a security for rent. In some other cases
specified by law, similar burdens rested upon property as
a security for claims—which were somewhat analogous to
300 OUTLINES OF ROMAN LAW.

certain liens of the English law. The right of pignus or
of Aypotheca is terminated upon full legal satisfaction of
the claim for the security of which it was established.

(4) The power of sale (jus distrahendi) in-cases of non:
payment, forms an essential feature of the pledge and mort:
gage. Lest creditors on the one hand should be hin-
dered in pursuing their rights, and lest debtors on thé
other should too hastily lose the ownership of their prop-
erty, Justinian fixed certain provisions regarding the en-
forced sale (distractio). If the parties had agreed as to
the time and manner of the sale, the terms of the agree-
ment must be carried out. If there had been no agreement
to that effect, and the creditor wished to sell the prop-
erty, he must, if he had possession, give formal notice of
his intention to the debtor ; or, if he had not possession,
he must obtain a judicial decree; and after two years
from either of those events, he was authorized to sell the
property and satisfy his claim. After the satisfaction of
the claim, the surplus of the proceeds of the sale belonged
to the debtor. If the claim was not fully satisfied by the
proceeds, the debtor was still responsible for the de-
ficiency.

Closely connected with the right of sale is the question
of priority, when several pledges are established in the
same property. In general, the rule holds that the earlier
pledge or mortgage has the preference over the later.
But this rule is modified by the recognition of certain
privileged mortgages specified by law. For example,
those based upon an operation of law were generally
preferred to those created by convention or testament.
Among privileged mortgages, those based upon the claims
of the jscus stood first, and those based upon the claims
of the wife to her dowry stood next. The claims of each
prior mortgage must be fully satisfied, before the right of
sale passes to the one next in order of priority.
SUBORDINATE RIGHTS. 301

It may be said, in conclusion, that the Roman law of
pignus and hypotheca forms the basis of the modern civil
and English law of pawn and mortgage. The English
law of mortgage, however, being based upon the theory
of a legal conveyance by deed, is more analogous to the
ancient fiducia. It is, no doubt, true that the rights of
the debtor are better protected in the common law than
in the ancient law of the fiducia ; while in equity, the
practical tendency is to bring the mortgage into substan-
tial harmony with the principles of the later Roman hypo-
theca, both in respect to its essential nature as a jus in re,
and to its principles regarding redemption.

References.—‘‘ Inst.,” 2, 2-5 ; ‘‘ Digest,” De servitutibus (8) ;
De usufructu, etc. (7), St ager vectigalis, id est emphyteuti-
carius, petatur (6, 3), De superficiebus (43, 18), De pignoribus et
hypothecis (20); ‘‘ Code,” De usu fructu et habitatione (3, 33), De jure
emphyteutico (4, 66); Sandars’ ‘‘Justinian,” Eng. ed., pp. 195-
216, Am. ed., pp. 185~206; ‘‘ Dict. Antiqq.” (Servitutes, Emphy-
feusis, Pignus); Mackenzie, ‘‘Roman Law,” pp. 177-185; Kauf-
mann’s ‘‘ Mackeldey,” I., pp. 317-400; Hunter, ‘‘ Roman Law,”
pp. 222-276 ; Tomkins and Jencken, ‘‘ Modern Roman Law,” pp.
168-200 ; Ortolan, ‘‘ Instituts de Justinien,” II., pp. 317-359 ; Du
Caurroy, ‘‘Instituts .Expliquées,” I., pp, 321-367; Demangeat,
‘Droit Romain,” I., pp. 500-563 ; Deurer, ‘‘ Gesch. und Inst.,” §§
156-164; Marezoll, ‘‘ Lehrbuch,” §§ 104-117; Bécking, ‘‘ Rom.
Privatrecht,” S. 93-124; Vering, ‘‘ Geschichte und Pandekten,” §§
158-177; Arndts, ‘‘ Pandekten,” §§ 175-200; Vangerow, ‘‘ Pan-
dekten,” §§ 338-392 ; Windscheid, ‘‘ Pandekten,” 8§ 200-249. See
also the recent work of Prof. Roby, ‘‘An Introduction to the Digest
of Justinian,” which contains a full commentary on the title, De wsu-
fructu,
CHAPTER IV.
THE ACQUISITION OF OWNERSHIP IN SINGLE THINGS.

Havine thus far considered the various kinds of things
that can be made the objects of ownership, and the various
kinds of real rights that can be exercised with reference
to things, we pass to consider the various modes by which
ownership in things may be legally acquired. A “mode
of acquisition” (modus acguisitionis), or title to property,
refers to any fact or event by which the dominium becomes
legally vested in a determinate person. It applies alike
to the original acquisition of a thing which has no pre-
vious owner ; and to the derivative acquisition of a thing,
that is, the transference of a thing from one owner to
another, whether the transference is made during the life-
time of the previous owner or on the occasion of his
death. But it applies strictly to the dominium only ; and
not to the creation and transference of the jura in re,
except where such application is specified by law. From
the point of view of the owner, the jura iz re are simply
burdens or restrictions resting upon his property ; so that
when he transfers his property to another, he must trans-
fer it subject to such burdens—that is, ménus the rights
which are detached. Ulpian says: “ Nemo plus juris ad
alium transferre potest quam ipse haberet ” (D., 50, 17,
54):

In their arrangement of this subject, the Roman lawyers
made a broad distinction between the acquisition of
single things (acguisitie singularum rerum), and the
acquisition of an entire estate (acguisitio per universi-

302
OWNERSHIP IN SINGLE THINGS. 303

tatem rerum). Following their order let us then define
first the modes, or titles, by which ownership may be
acquired in single things as opposed to an entire estate.
At the time of the classical jurists, these were regarded
either as ‘‘natural” or “civil.” In other words, things
were said to be acquired either ex jure gentium or ex jure
civili, ‘The former comprised occupation, accession, and
tradition ; the latter comprised mancipation, #” jure cessio,
usucapio, and donation. But by the changes which had
taken place in the law, mancipation and 7 jure cessto had
practically passed away ; and wsucapio had become identi-
fied with jpossessio longi temporis, assuming the more
general character of prescription. We may, therefore,
consider the Justinian law regarding the acquisition of
single things under the heads of occupation, accession,
tradition, prescription, and donation.

1. Occupation, its Principles and Application.—
Occupation (oceupatio) consists in taking possession of a
thing over which no one has a proprietary right. The
tule of the law is, res nullius cedit occupant’, There are
four essential conditions which must co-exist in order to
give to occupation its full legal significance as a title to
property. First, the thing must be a res nu//ius—that is,
a thing which either never had an owner, or which,
by virtue of a previous dereliction, has not an owner at
the time of its occupation. Secondly, it must be a thing
which is capable of ownership—that is, a res 1m commercio.
Thirdly, it must be brought into the actual possession or
control of the one professing to acquire it. Fourthly, the
person must acquire it with the intention of assuming
ownership in it; in other words, the possession must be
juridical.

There are several applications of this title that are
specified in the Roman law, of which the following are
the most important :
304 OUTLINES OF ROMAN LAW.

(1) Wild beasts, birds, fishes, and in fact all animals
which are still in their natural state of freedom, become
the property of the captor. This rule, of course, applies
especially to hunting, fishing, and fowling. The rule
holds good even though the capture be made on another's
land ; the captor, however, is in this case liable for any
damage resulting from his trespass.

(2) Precious stones and gems in a state of nature be-
come the property of the finder. This principle does not,
however, apply without modification to a treasure-trove—
that is, a treasure deposited in a place for so long a time
that its owner is unknown. If found upon one’s own
ground, such a treasure belongs wholly to the finder ; but
if found upon another’s ground, the property is equally
divided between the finder and the owner of the ground.

(3) Things the ownership of which has been abandoned
are capable of occupation. But the dereliction must have
been absolute. Ownership is not abandoned in things
which have been lost, or which have been thrown over-
board from a ship in distress.

(4) Things captured in war were generally regarded by
the Romans as res nudiius, and hence became the property
of the captors. This rule was restricted to movables,
since the conquered land was reserved for the state.
Moreover, in case property captured by the enemy was
retaken, it was restored to the original owners by the jus
postliminit. The law of the Romans regarding captures in
war has been almost entirely superseded in modern times
by the theory that all.captures belong to the state. The
ancient rule seems to be preserved only in the exceptional
cases of privateering and foraging.

2. Accession, its Character and Various
Forms.—By accession one becomes the owner of that
which is legally united to what already belongs to him,
OWNERSHIP IN SINGLE THINGS. 305

In this case the owner of the principal thing becomes the
owner of the accessory thing, according to the rule, ves
accessoria cedit rei principali. When the accessory thing
is produced by a natural or industrial process, as in the
case of the fruit of one’s own trees, or the new product
which one forms from his own material, the accession is
closely related to occupation, since no one other than the
owner of the principal has a prior claim to that which is
thus acquired. But when a thing which hitherto be-
longed to one person becomes accessory to the property
of another, the rule relating to accession is just only on
the condition that compensation is granted to the pre-
vious owner of the accessory thing. These principles
the law seeks to apply io the various forms of accession,
of which the following are the chief examples :

(1) Fructus—The simplest mode of accession is that
by which one acquires the right to whatever is produced
from that which he already owns. Here the principle
applies not simply to purely natural fruits, or those which
are produced by a process of nature; but to industrial
fruits, or those which are produced by the application of
one’s labor to one’s own material ; and also to civil fruits,
or the revenues which accrue from one’s own property.
In all these cases, the owner of the principal thing ac-
quires ¢pso jure all that which is produced from it.

(2) Alluvio.—The new soil gradually deposited by the
natural action of a stream or other waters belongs to the
owner of the land upon which the deposit is made. But
this accretion must be strictly of the character of alluvion,
in that it cannot properly be referred to any previous
owner. Hence the principle does not include violent
changes, as when a piece of land is detached from one
estate and transferred to another by a deviation in the
course of ariver. If, however, by natural causes, a piece
306 OUTLINES OF ROMAN LAW.

of land hitherto belonging to no one, as an island, ap-
pears in the middle of a stream, it belongs in common to
the adjacent owners; if it appear on one side of the
middle of the stream, it belongs to the nearest proprietor.

(3) Adjunctio.—The forms of accession previously no-
ticed are those in which the principal thing receives its
increment without disturbing any previous right of own-
ership. But there are cases in which things belonging to
different owners may become related as principal and ac-
cessory, and the property of one owner is thus increased
at the expense of the other. If the things can be dis-
united without injury to either, then each owner may
claim his own property and the principle of accession
does not apply. But if the two things are so related that
they cannot be separated, then the rule holds that the ac-
cessory yields to the principal. In such a case, however,
it is sometimes difficult to determine which is the princi-
pal and which is the accessory. In general, the less im-
portant yields to the more important. For example, a
building accedes to the land; that which is sown or
planted, to the soil ; the writing to the parchment ; but,
in the case of a painting, the canvas accedes to the pic-
ture as the principal thing.

As to the question of compensation, the general rule is
that he who has adjoined to his own property a thing that
belongs to another is obliged, if he acted Jond fide, simply
to compensate the other for his actual loss. But if he
acted with evil intent, he is liable for the penalty of
theft.

(4) Commixtio and Confusio.—If the things that are
united are of equal importance, as the union of homo-
geneous things, whether solid (commixtio), or liquid (confu-
sto), the rule is that the compound, if inseparable, becomes
the common property of both the previous owners. In
OWNERSHIP IN SINGLE THINGS. 307

this case, it may be said that each thing accedes to the
other, since the owners of the different things become
joint owners of the common product. This principle
applies properly only to the case in which the compound
is inseparable into its constituent elements. If the separa-
tion of the compound is possible, then no accession
takes place, and each owner retains his original right
of property, which can be pursued by a real action.

(5) Spectficatio—The last example of accession is the
case where one person has formed a new species from
the materials belonging to another. The Roman jurists
were for a long time divided upon the question whether,
in this case, the material or the product should be re-
garded as the principal thing. The opinion finally pre-
vailed that if the product be capable of being resolved
into its original material without injury, then the material
is the principal thing, and the workman is entitled to
compensation for his labor ; but if the product cannot be
thus resolved, then the product is regarded as the princi-
pal thing, and the workman is liable to the owner of the
material for the simple value of the material, if he acted
in good faith ; or for the penalty of theft if he acted ald
fide.
3. Tradition, its Requisites and Modes.—The
third general method of acquiring ownership in single
things is by tradition (¢raditio), or the actual delivery of a
thing from one person to another, accompanied with the
intention to transfer the ownership in the same. Accor-
ding to the Roman law, property cannot be transferred
by mere agreement. The agreement, even though it take
the form of a legal contract, simply expresses the inten-
tion of the parties and does not create a rea/ right to the
property ; it merely creates a personal right against the
one making the agreement. To effect a legal transfer the
308 OUTLINES OF ROMAN LAW.

intention must receive a physical expression in the form
of delivery. The special features of tradition as a title
to property may be seen from its requisites, and from the
various modes in which it is effected.

(1) The requisites, or conditions, necessary for a legal
delivery are the following : First, the person making the
transfer must be the owner of the thing and be legally
capable of making the conveyance. Secondly, the person
receiving it must be legally capable of acquiring and
holding property. Thirdly, there must be a justa causa,
that is, some external fact or legal transaction which in-
dicates the intention to transfer the ownership ; in other
words, the delivery must be based upon some legitimate
reason, as for example a previous contract of sale, a bar-
gain for a dowry, an intention expressed in a legacy, or
even amotive of liberality. A susta causa does not neces-
sarily involve a guid pro quo; it is simply a fact indicative of
the intention to transfer the right of ownership. Fourth-
ly, if the usta causa be a contract of sale, the delivery
is not regarded as complete until the price is paid, even
though the thing has passed to the buyer ; but when the
price is paid the legal delivery is fictitiously dated back
to the time of the contract. This is based upon the
theory that the intention of the seller to transfer the own-
ership is based upon the condition of receiving the price.
If the price is unpaid, the transaction is invalid, and there
is no transference of ownership ; but on the payment of
its price the transaction is rendered valid from the first.

(2) The formal element of tradition is the actual trans-
fer of possession from one party to the other. This is
interpreted to mean simply that the one who receives the
thing is put into a position to deal with it as his own.
Hence tradition may be performed in many ways accord-
ing to circumstances. It may be effected by the transfer
OWNERSHIP IN SINGLE THINGS. 309

of the actual physical possession of the thing itself; or
by the transfer of the means necessary for taking posses-
sion, as the keys of a house; or by pointing out the thing
from‘a distance with the permission to take possession
(longé manu); or by allowing the person who already
holds a thing to retain possession, when the intention to
transfer ownership in it has been declared (drez7 manu).
These formal acts of tradition are valid whether per-
formed by the parties themselves or by their authorized
representatives,

4. Prescription, its Origin and Principles.—In
addition to the modes of acquisition already described
which were referred to the jus gentium were certain others
which were referred to the jus civile. The most impor-
tant of these, after the decline of mancipation and za jure
cessio, was prescription (prescriptio), whereby one becomes
the owner of a thing on the ground that he has possessed
it for a long time under certain specified conditions,
This mode of acquisition was based upon public expedi-
ency, and was established, as Gaius says, that the titles
of property might not remain uncertain,

(1) In considering the origin of the law of prescription
as fixed by Justinian, we find it to be the result of a union
of principles hitherto applicable to wsucapio, to possessiv
longi temporis, and to the limitation of actions, This will
appear from the following statements. Usucapio, which
had existed from the time of the XII. Tables, provided
that uninterrupted dona fide possession of movables
for one year, and of immovables for two years, vested the
right of ownership. But this rule applied only to Roman
citizens, and to property capable of Quiritarian ownership
—for example, Italian land.

Under the pretors a principle patterned after the analo-
gy of usucapio was recognized whereby possession for a
310 OUTLINES OF ROMAN LAW.

long time ( possessio longi temporis) either by a foreigner,
or in provincial land, could be pleaded as an exception
(prescriptio) to debar any opposing claims that might be
raised by other persons than the possessor. The time
was ten years for persons “ present,” that is living within
the same province, and twenty years for persons “ absent,”
that is, living in different provinces. While this kind of
prescription did not, as in the case of wsucapio, confer the
strict right of ownership, it yet served as a legal protec-
tion to persons in their possessory rights over things that
were not susceptible of usucapio.

In addition to this form of prescription founded upon
“Jong possession ” there arose another form based upon
the limitation of actions, As a general rule, all actions
were in early times perpetual (actiones perpetua)— that is,
could be brought within any period of time ; but certain
pretorian actions were made limited to a definite time
within which they must be brought or the cause of action
would not be recognized (actiones temporales). And as a
result of the later imperial legislation, the term of thirty
years was prescribed as the limit of every action—with
the exception of a few specified cases in which the limit
was extended to forty years. Under this provision, there-
fore, a person who had held uninterrupted possession of
property for the prescribed term of years, was secured in
his possession by the extinction of all rights of action
against him.

These various principles were finally welded together
into the general law of prescription as finally established
by Justinian ; so that possession under certain conditions
and for a certain length of time not only debarred the
technical right of action but also gave a positive right to
ownership, which principle was applied alike to provin-
cial and to Italian soil.
OWNERSHIP IN SINGLE THINGS. 311

(2) The main principles which governed the law of
prescription at the time of Justinian were the following :

In the first place, the thing must be capable of pre-
scription (es hadilis). This principle, in its ordinary ap-
plication, excluded the public property of the state and
the private property of the ruler ; immovable property be-
longing to municipal or ecclesiastical corporations ; the
adventitia of children—that is, the property legally ac-
quired by a person under power ; and things alienated by
a person in bad faith without the knowledge of the
proprietor.

In the second place, the possession must, as a general
rule, be “civil” and “continuous.” It is civil (possessto
ciuilis) when, as we have seen, it has been acquired
through the form of a legal title (justa causa), and when
it is held in good faith (dod fide). Possession is said to
be continuous (fossessio continua) when it has not been
subject to an interruption (wswrpatio)\—which may occur
when the possession of the thing has been actually lost,
or when a just action has been instituted against the
possessor.

In the third place, the possession must have continued
for the period of time prescribed by law. In fixing this
time a distinction is made between ordinary and extra-
ordinary prescription. In case all the foregoing condi-
tions have been fulfilled, the ordinary period is sufficient
to vest the ownership. This period is three years for
movables, and for immovables ten years if the parties
contesting the right live in the same province, and twenty
years if they live in different provinces. On the other
hand, in case the Jond fide possessor can show no former
title, or in case a former title can be shown to a thing
which is not susceptible of ordinary prescription, the ex-
traordinary period must elapse before the right is incon-
412 OUTLINES OF ROMAN LAW.

testible. This period is generally thirty years, except in
the case of property claimed by the state or by municipal
and ecclesiastical corporations, when the time is forty
years.

Before leaving this general subject, it should be noticed
that donation (donatio), or free gift, is often mentioned as
a civil mode of acquiring property. But the tendency of
the later legislation was to assimilate gifts to other
branches of the law. For example, the donatio propter
nuptias was connected with the law relating to dos; the
donatio causa mortis was treated by Justinian as a kind
of legacy ; and the donatio inter vivos was generally re-
garded merely as a usta causa indicating the intention to
transfer the thing, having no legal validity except when
followed by tradition,

References.—Gaius, 2, 15-96; ‘‘Inst.,” 2, titles 1, 6, 73
“Digest,” De acgudrendo rerum dominio (41) ; Poste’s Gaius, pp. 139-
176 ; Sandars’ Justinian, Eng. ed., pp. 172-195, 216-233, Am. ed.,
pp. 162-185, 206-223 ; “' Dict, Antiqq.” (Dominium, Usucapio, Pre-
scriptio) ; Mackenzie, ‘‘ Roman Law,” pp. 168-174, 186-193 , Kauf-
mann’s ‘‘ Mackeldey,” pp. 272-302; Hunter, ‘‘ Roman Law,” pp.
109-174 ; Tomkins and Jencken, ‘‘ Modern Roman Law,”’ pp. 156-
165; Ortolan, ‘‘Instituts de Justinien,” II., pp. 260-313, 359-400 ;
Du Caurroy, ‘‘Instituts Expliquées,” I., pp. 259-317, 367-405 ; De-
mangeat, ‘‘ Droit Romain” I., pp. 452-500; Deurer, ‘‘ Gesch. und
Inst.,” §§ 151-153 ; Bécking, “ Rm, Privatrecht,” S. 81-91 ; Vering,
‘“‘Gesch. und Pandekten,” §§ 141-149 ; Arndts, ‘‘ Pandekten,” §§
144-164 ; Vangerow, ‘‘ Pandekten,” §§ 305-331 ; Windscheid,
“ Pandekten,” §§ 170-190.
CHAPTER V.
THE ACQUISITION OF OWNERSHIP BY INHERITANCE,

THE acquisition of things by universal succession (er
universttatem) follows in the Roman law as a subject co-
ordinate with the acquisition of single things. Universal
succession may be defined, in brief, as the acquisition, on
the part of one person, of the entire estate belonging
to another. By an entire estate is meant the totality of
the rights and duties which are attached to the legal
status of any particular person. The effect of universal
succession is, hence, to transfer to one person the whole
set of rights and duties which make up the legal per-
sonality of another, so far as these rights and duties are
capable of being transferred.

The Roman law recognized three principal modes by
which an entire estate might thus be transferred, viz.: by
inheritance, or the succession to the estate of a deceased
person according to the rules of the jus civile ; by bono-
rum possessio, or the acquisition of the estate of a deceased
person according to the principles of equity laid down by
the praetor; and per adrogationem, by which a person sui
juris placed himself and his estate under the protection
of another person. There were still other modes of less
importance, which need not be mentioned here. The
most important mode of universal succession was by in-
heritance, which in later times was blended with the
bonorum possessio—both methods being treated by Justin-
ian as forming substantially one mode of acquisition.

t. Nature of Inheritance.—Inheritance is defined

313
314 OUTLINES OF ROMAN LAW.

to be the succession to the entire legal position of a
deceased person. In the words of Julianus: “‘ Heredi-
tas nihil aliud est, quam successio in universum jus,
quod defunctus habuerit” (D. 50, 17, 62). According
to the theory of the Roman law, when a person dies, his
status or legal personality does not perish, but survives,
and is assumed by a successor who continues to represent
him in all his proprietary relations. This idea may be
traced to the very earliest stage of Roman society, and in
fact to the primitive Aryan customs from which the first
principles of the Roman law had their origin. Here we
find that the idea of succession was immediately connec-
ted with the organization of the family as a religious
group, under obligation to perpetuate the ancestral wor-
ship and the patrimonium which was conceived to be
accessory to the worship. Property, like the sacra, was
regarded as a permanent adjunct to the family organiza-
tion, to be administered by the one who possessed the
potestas, and to be assumed by the person or persons upon
whom the paternal power descended. Though legally
held and managed by the father during his lifetime, the
property theoretically belonged to the collective body, so
that the child was, in a certain sense, co-proprietor with
the father in the family estate. When, therefore, the
father died, the corporate estate descended upon the cor-
porate members, who thus assumed both its benefits and
its liabilities. The death of the father, therefore, occas-
ioned no acquisition of new property, but only an in-
creased freedom in the administration of existing prop-
erty. The family estate still remained with its claims
and liabilities with reference to all extraneous persons.
This fundamental idea of inheritance affected the law
during all the subsequent periods of its history. Although
inheritance was deprived in later times of its religious
OWNERSHIP BY INHERITANCE. 315

significance, although the father acquired a certain de-
gree of liberty in designating his successor and in dis-
tributing his property, and although inheritance came to
be regarded as giving a new title to property on the part
of the heirs and legatees—still the idea was kept alive
that the estate itself was something permanent, retaining
its claims against its debtors, and its liabilities with refer-
ence to its creditors.

The main features of the law of inheritance grew out of
this conception, that the status or legal personality of a
‘man does not die with him, or rather, that all those legal
‘rights and duties which make up his estate remain after
‘his death. Only those rights and duties which are es-
‘sentially of a personal nature and untransferable—such
as the rights of family, usufruct, etc.—can be said to
cease at death. All other legal relations are still main-
tained in the permanent estate of the person deceased.
Before the estate is again taken up by any natural person,
it is itself regarded as a juridical person (hereditas jacens),
possessing, to a certain extent, the legal capacity to ac-
quire new rights and incur new liabilities. This fiction
of the personality of the hereditas jacens ceases, however,
as soon as the estate is assumed by the heir.

2. Position and Functions of the Heir.—The
heir, or universal successor (Heres), in the Roman law, is
simply the person upon whom is devolved the entire estate
of the person deceased. By assuming the estate, the heir
not merely obtains a title to property ; he becomes the
legal representative of the one whose estate he has ac-
quired. In other words, he steps into the position made
vacant by death. Ulpian says: “ Heredem ejusdem
potestatis jurisque esse, cujus fuit defunctus, constat”
(D. 50, 17, 59). There is no essential difference in the
character of his position, whether he is designated by law
316 OUTLINES OF ROMAN LAW.

or appointed by the deceased. Neither are the rights
and duties of heirship essentially different, whether the
position is assumed by a single person, or by two or more
co-heirs. In the latter case, the relations of the joint-
heirs to each other are entirely consistent with the com-
mon relations which they sustain to the estate. In con-
sidering the legal functions of the heir, we may look at,
first, the rights and duties incident to heirship in gen-
eral; and next, the mutual relations existing among co-
heirs,

(1) In general, the heir succeeds to all the rights of the
deceased, with the exception of those which are from
their nature untransferable. He acquires the right of
ownership in the property of the deceased, subject to the
burdens incident to heirship. His proprietary rights in
the estate involve not only the right to that which is in
the possession of deceased at the time of his death, but
also the right to all that which is due to the estate.
Hence, it is sometimes said that the heir acquires both
rights zz rem and rights 2x personam. But the rights in
personam which he acquires are, in general, only those
obligations against third parties, the prosecution of which
will increase the pecuniary value of the estate, such as
debts due to the deceased.

But the heir does not acquire usually an absolute own-
ership of the whole estate. The estate is generally bur-
dened with certain obligations, which pass to the heir,
and become duties incidental to his position. These in-
clude, first, the duty of paying all debts due to the credi-
tors of the estate ; and, secondly, the duty of paying all
legacies or gifts in accordance with the desire of the de-
ceased, so far as this desire is legally expressed. These
two classes of duties, as regards their character and ex-
tent, may be considered separately. os
OWNERSHIP BY INHERITANCE. 317

In the first place, the heir was bound, before the time
of Justinian, to pay all the debts of the deceased, even
though the estate was insolvent. By accepting the estate,
the legal personality of the heir became merged in that of
the deceased, and the property of the heir became liable
for the debts of the person to whom he succeeded. But
this injustice, which resulted from the old conception
that the patrimonium was the common property of father
and son, was remedied by Justinian, who granted to the
heir the benefit of inventory (denefictum inventarit), by
which he might escape any liability beyond the actual
value of the estate. The legal personality of the heir
became no longer identified with that of the deceased.
The heir acquired, in this respect at least, something of
the character of the English executor combined with that
of the residuary legatee.

In the second place, the heir is bound to distribute the
property of which he comes into possession according to
the legally expressed will of the decedent. In early
times this duty was absolute, so that after the debts were
paid, the remaining property of the estate might be en-
tirely exhausted in legacies, leaving nothing in the hands
of the heir to compensate him for assuming and adminis-
tering the estate. To remedy this defect, certain laws
were passed, which Justinian says “ were made in the in-
terest of testators themselves, for often men died intestate
because the heirs named in the will refused to enter on
inheritances from which they would derive little or no
benefit.” The character of this legislation will be more
properly noticed under the head of “legacies.’’ It is
sufficient to say here that the heir was still bound to pay
all those legacies which were made in accordance with
the law.

(2) When two or more co-heirs succeed to the estate,
318 OUTLINES OF ROMAN LAW.

their rights with reference to the property and to the
debtors of the deceased, and their duties with reference
to the creditors and legatees are, when looked upon as a
whole, in all respects the same as though the estate had
been assumed by a single person. But the rights and
duties of each one of the joint-heirs are affected by the
proportionate share which he acquires in the estate. In
the case of intestacy, this share is equal for all; other-
wise, the proportionate share of each is determined by
the will of the deceased. In either case, all the succes-
sors become, according to their respective shares, joint-
owners of the property left by the deceased and of the
debts collected in favor of the estate. And, in the same
way, each successor, in proportion to his proper share, is
liable to the creditors and legatees, so far as these obliga-
tions come within the limits of the law. The mutual
rights and duties of co-heirs thus depend upon the prin-
ciple of joint-ownership. Any heir is, however, entitled
to a partition of the estate, by which he may obtain the
individual control of his own share, through a judgment
rendered by the court (judicium familia erciscunde.)

3. Character and Forms of the Testament.—
We are now prepared to consider the mode in which the
heir is appointed. We have already seen that the origi-
nal mode of designation was by law, that is, by the custom-
ary rules that grew out of the family and the gentile
organization. But as the father came to exercise his own
will in the appointment of his successor, the customary
mode of designating the heir by law was called into exer-
cise only when the father had failed to express his will in
a legal manner.

The testament, in the Roman law, was essentially an
instrument by which a person appoints his own heir, or
universal successor. It might, it is true, contain other
OWNERSHIP BY INHERITANCE. 319

provisions than the appointment of an heir. It might,
for example, dispose of property to legatees, or appoint
tutors for dependent children. But these were merely
incidental and not essential features of the testament. A
testament might be made without the appointment of
legatees or tutors; but if no heir was appointed, there
was no testament. However much the form of the
testament may have varied at different times, its essen-
tial nature remained the same. The ancient ‘estamen-
tum calatis comitiis was the appointment of an heir under
the approval of the popular assembly. The Zestamentum
per as et libram was the appointment of an heir through
the forms of “ mancipation.” And the pretorian testa-
ment was the appointment of an heir by a written instru-
ment attested by witnesses. No heir, no testament, was
the general principle of the Roman law. We shall here-
after see, however, that in spite of this strict notion of the
testament, the Romans, by the peculiar force which they
gave to the “codicil,” provided that the desires of tes-
tator need not be entirely ignored, even if the testament
failed for want of an heir. Passing by for the present
the peculiar nature of the Roman codicil, let us consider
the testament as an instrument for the appointment of an
heir, or universal successor to the estate.

The special requirements necessary for the formal va-
lidity of the testament, at the time of Justinian, may be
briefly enumerated as they relate to written wills; to
nuncupative, or oral, wills ; to privileged wills ; and to the °
legal capacity (Zestamenti factio) on the part of the per-
sons connected with the testament, whether as testator,
heir, or witnesses.

(1) The formalities required for the written will, at the
time of Justinian, bear the marks of the different stages
through which the testament had passed in the process of
320 OUTLINES OF ROMAN LAW.

its evolution. ‘ When the progress of society,” says Jus-
tinian, ‘‘and the imperial constitutions had brought about
a fusion of the jus civile and the pretorian law, it was es-
tablished that the testament should be made at one and
the same time in the presence of seven witnesses (which
was a provision of the jus civile), with the subscription of
the witnesses (which was introduced by the imperial con-
stitutions) and with the attachment of their seals, accord-
ing to the edict of the pretor. So that the law of the
testament seems to have a threefold origin, since the
witnesses and their presence at one time for the formal
solemnizing of the will are derived from the jus civile ; the
subscriptions of the testator and the witnesses, from the
imperial constitutions ; and the seals of the witnesses and
their number, from the przetorian edict” (“‘Inst.,” 2, 10, 3).
This description renders sufficiently clear for our purpose
the general formalities required for the written will, viz. :
the presence of seven witnesses, the subscription of the
testator, the attachment of the names and seals of the
witnesses, and the fact that the whole process must be
performed in a single transaction (uno contextu).

(2) In the nuncupative or oral testament, the above
formalities were not required. A person might declare his
last will by word of mouth in the presence of seven wit-
nesses. And even without the formality of witnesses, he
might declare his will in the presence of the magistrate,
who ‘entered the statement upon the public records.

(3) In certain privileged cases, the usual formalities
were modified to suit the convenience of the testator.
For example, a soldier might make a testament by ex-
pressing his intention in any way susceptible of proof,
whether by writing or word of mouth. Such a will, how-
ever, retained its validity for a year only after the sol-
dier’s discharge from service. Another privilege which
OWNERSHIP BY INHERITANCE. 321

attached to soldiers may be mentioned here—that is, the
fact that they could die partly testate and partly intestate,
which was not the case with any other persons. There
were also other examples of privileged testaments. It was
provided that in times of pestilence the presence of the
seven witnesses at one and the same time was not re-
quired ; and also that in sparsely settled districts, five
witnesses might suffice if a greater number could not be
obtained.

(4) The formal validity of a testament depended, more-
over, upon the zestamenti factio, or the legal capacity of
those concerned in the production and execution of the
will. This capacity may be considered in its relation to
the testator, to the heir, and to the witnesses. First, as
regards the testator, legal capacity (¢estamenti factio
activa) involved domestic independence, the posses-
sion of a mature and sound mind, and the exercise
of free will. Persons incapacitated were thus slaves, per-
sons under power except as regards their pecudium, pupils,
spendthrifts, and persons both deaf and dumb ; also per-
sons not in the possession of full consciousness, and those
under constraint. Secondly, as regards the heir, legal
capacity (destamenti factio passiva) was less restricted, as
the capacity to receive property is more extended than
the capacity to dispose of it. Many of the persons, there-
fore, who were disqualified from making a will might yet
be instituted as heirs. The chief conditions required for
a person to be made heir in the time of Justinian were
that he be specifically appointed in the testament, and
that he be capable of holding property. Thirdly, as to
witnesses, legal capacity was possessed by all persons not
expressly disqualified by law. Persons thus disqualified
were slaves, zmpubes, women, those instituted as heirs,
those under the power of the testator, and persons deaf,
322 OUTLINES OF ROMAN LAW.

dumb, blind, or insane. The disability of women to act
as witnesses was continued in opposition to the general
spirit of the law, which conferred upon them in nearly
every other respect full legal independence and equality
with men.

4. Necessary Contents of the Testament.—The
validity of the Roman will depended not merely upon the
formal conditions just mentioned ; there were also cer-
tain conditions relating to the contents of the testament
that must be observed. The provisions upon this sub-
ject relate to the disherison, the institution, and the sub-
stitution of heirs.

(1) There were certain persons who were regarded as
having such an interest in the estate that if the father de-
sired to exclude them from the inheritance, he must do
so in a definite and express manner. If such persons
were entirely ignored, and were neither made heirs nor
expressly disinherited, the will was void. The necessity
of disherison was, of course, based upon the ancient
principle that the children were, in a certain sense, co-
proprietors of the family estate, and were, consequently, at
the death of the father, presumptively entitled to succeed
to the inheritance. This principle still retained an influ-
ence upon the law even after the father had obtained
larger testamentary powers ; so that if he desired to ap-
point other persons as heirs, he could do so only by for-
mally setting aside those who had a natural claim to the
estate. Although this provision was necessary to prevent
the will from being void at the outset, it left open the
question whether or not the disherison was just; and did
not, as we shall hereafter see, prevent the will from being
invalidated by an action. The persons who (if not made
heirs) must be formally set aside were in general those
who would have been entitled to succeed had the father
died intestate, ;
OWNERSHIP BY INHERITANCE. 323

In the first place, the sad heredes, or those who became
sut juris at the father’s death, must, if the father desired
to exclude them, be expressly disinherited. Before Jus-
tinian, the sons only needed to be mentioned by name
(xominatim), it being sufficient to disinherit the daughters
in a general clause (cefer7), But this emperor required
both the sons and the daughters to be mentioned by
name, for as Justinian says : “ Between males and females
in this branch of the law there is no difference.”

In the next place, those who became sut heredes after
the making of the will, must be mentioned by anticipa-
tion, or else the will became void. Posthumous heirs had
formerly been regarded as uncertain persons (cucerte per-
song) ; and as such persons could not be instituted heirs,
they need not be disinherited. But in the later law this
principle was modified for the benefit of the children of
the testator born after the making of the will. The
necessity of disherison also applied to a grandson, who be-
came a suus heres by the death of a son.

Again, in the case of emancipated children, the effect
of the pretorian legislation had been to do away with the
ancient idea that emancipation destroyed the right of in-
heritance ; so that such persons were now entitled to a
special mention in the testament. If, however, emanci-
pated children were passed over, the prator, instead of
declaring the will wholly void, granted them the right of
“possession contrary to the terms of the will ” (possessio
bonorum contra tabulas). “mancipated children could
not, therefore, be disinherited without special mention ;
and in case they were not mentioned, the will was prac-
tically set aside to the extent necessary to secure them in
their rights to the inheritance.

Furthermore, the general principle of disherison was
applicable, in part, to adopted children, In early times,
324 OUTLINES OF ROMAN LAW.

children by adoption acquired, of course, the same legal
position as children by birth. But the tendency of
the later legislation was to lessen the legal importance
of adoption. In the laws of Justinian, the adopted
child still retained a claim to the estate of his natural
father, and acquired in general a right to the estate
of the adoptive father only in case the latter died in-
testate. But adoption retained its full legal significance
if the adoptive father was a natural ascendant of the
adopted son. The principle of disherison was, there-
fore, still applicable to an adopted son who was the natural
descendant of the testator.

(2) But disherison, however necessary it might be in
certain cases, was not the ultimate purpose of the will.
On the contrary, the essential object of the will was the
institution of heirs. If no heirs were instituted, the testa-
ment possessed no validity as a testament. The heirs
instituted by the testator might be either the natural
heirs, or, if these had been properly disinherited, any
other persons who possessed the legal qualification to
hold property—even slaves, who became free by the very
act of being instituted. In sketching the provisions of
the law relating to the institution of heirs and its effect
upon the vesting of the estate, we must notice, first,
whether the heirship is conferred upon one person or
upon more than one; and, secondly, whether it is con-
ferred absolutely or conditionally,

In the first place, if a single person is instituted heir,
the estate, of course, remains undivided, and the entire
ownership rests in the heir, after the burdens resting
upon the estate are removed—whether these be in the
form of debts or legacies. But, if more than one person
is instituted, the estate is shared between them in certain
proportions, If no express provision has been made
OWNERSHIP BY INHERITANCE, 325

upon this point by the testator, they all obtain equal
shares. But if it be the desire of the testator that the
heirs receive unequally, the estate is ideally divided into
certain aliquot parts, and to each heir is assigned a greater
or less number of these fractional portions; and in the
vesting of the estate they all become joint-owners to the
extent of their respective shares, Since a person cannot,
according to the general rule of the Roman law, die
partly testate and partly intestate, if any part of the
estate is unprovided for, either by the oversight of the
testator or by the failure of any of the heirs, it is ratably
distributed among the remaining heirs in accordance with
what is called the right of accretion (jus accrescendi).

In the second place, if the heir is appointed uncon-
ditionally, his rights in the estate date from the death of
the testator; but if he is appointed conditionally, his
rights date from the fulfilment of the condition. The
term condition (conditio) is here used in its technical
sense to denote the happening of an uncertain event and
not the arrival of a certain day (des). For example, if a
person is appointed heir on condition that he outlive a
third person, the provision is a condition in the proper
sense of the word. It should be further noticed that an
impossible condition does not invalidate the will; it is
simply treated as if it had not been written.

(3) Closely allied to the institution of heirs is the sub-
stitution of heirs, that is, the conditional appointment of
certain persons to act as heirs, in case those first appoint-
ed should from any cause fail to act. This may not seem
to be an essential part of the will. But it is evident that
should those first appointed die or refuse to accept the
inheritance, a provision in the will for others to take
their place would be necessary to prevent the will from
becoming void. Moreover, the great discredit which the
326 OUTLINES OF ROMAN LAW.

Romans attached to dying intestate greatly enhanced the
importance of substitution as a special feature of the
testament. Three forms of provisional appointment are
mentioned in the Roman law.

Ordinary substitution (sabstitutio vulgaris) is simply the
provisional institution of heirs to act in case those first
appointed fail. The object of such substitution was, of
course, to prevent the failure of the testament by the
death or refusal of the heirs originally instituted. Any
number of substitutions might be made. One person
might be substituted for several, or several for one ; or
the original heirs might be substituted for each other,
so that in case one failed some other might succeed
also to his share.

Pupillary substitution (swbstitutio pupillaris) is the con-
ditional appointment of a person to receive the inheri-
tance of a child in pupilage in case the latter die be-
fore reaching the age of maturity.

Quasi-pupillary substitution (swbstitutio guast pupillaris)
is similar to the preceding, except that instead of ap-
plying to a child in pupilage, it applies to any person
of unsound mind. This is equivalent to the father’s
making a will for such a person, to take effect at the
latter’s death. This form of substitution, as well as the
preceding, loses its effect as soon as the circumstances
on account of which it was made, cease to exist.

5. Methods of Invalidating the Testament.
A will which does not conform to the requirements
already mentioned is void, or invalid from the first (zjus-
tum). In this case it is regarded either as imperfect
(imperfectum), when some formality is wanting, or an
heir is not properly instituted ; or else, as of no effect
(nullius momenti), when persons who have a claim upon
the estate have not been properly disinherited, But a

 
OWNERSHIP BY INHERITANCE. 32

will that is in all respects valid at the time when made,
may become invalid from several causes.

(1) A testament is technically said to be broken (rup-
tum) when rendered invalid in any of the following
ways:

By the subsequent agnation of a swus heres, that is, by
the introduction into the family of any person—as a child
by birth or by adoption—who has a natural claim upon
the estate and who has not been mentioned in the will,
as being either instituted or disinherited.

By the making of a second will according to the proper
legal forms—since a subsequent will, properly made, re-
vokes any prior one.

By destroying the will already made, by tearing or de-
facing it, or by otherwise indicating the wish on the part
of the testator that it shall no longer remain in force.

(2) Again, a testament is technically rendered ineffec-
tual (érritum) if the testator after making the will suf-
fers a capitis deminutio. But in this case, if the testator
recovers his legal capacity before his death—although
the testament is strictly regarded as invalidated—the
estate is generally granted to the appointed heirs, in ac-
cordance with the equitable principle laid down by the
praetor under the name of “ possession according to the
will” (Jonorum possessio secundum tabulas).

(3) Still further, a testament which is formally and
essentially perfect may, under certain circumstances, be
set aside as undutiful (zoficiosum). In this case the will
is not regarded as void; it is yet voidable by an appro-
priate action (actio de inofficioso testamento). The mere
fact that a person has been disinherited in due form in
the will is not sufficient to debar him from his just rights
in the estate. The question whether this disherison has
been made on sufficient grounds can be laid before the
328 OUTLINES OF ROMAN LAW.

court and decided upon its merits. The provisions of
the law were made very specific by Justinian, and the
reasons were precisely stated that were admitted as the
only proper grounds for disinheritance. The persons
who are allowed to attack the will as undutiful are the
children ; or the parents, if there are no children ; or the
brothers and sisters, if there are no children or parents,
or if an infamous person has been instituted in their
stead. In case the will is successfully attacked as zn-
officiosum, it is rendered entirely void and set aside.

It must be observed that the will can be set aside as
undutiful only in case the persons above named have
been completely disinherited, and nothing at all has been
left to them. But the law goes still further, and protects
them in their claims to a définite portion of the estate.
This legal portion ( portro legitima), to which they are by
presumption entitled, is one-fourth of what they would
have received by intestate succession. If, therefore, they
have been unjustly cut off with a less amount, they may
have the legal portion made up to them by bringing an
action for that purpose (actio in supplementum legitime).
By these methods, the legal and worthy heir was pro-
tected in the Roman law from any malice or caprice on
the part of the testator.

(4) Finally,’ a testament may become invalid by the
failure of all the heirs appointed in the will, whether on
account of death or non-acceptance (destitutum). An
estate might be of such a character as to render its ac-
ceptance a burden instead of a benefit to the heir—for
example, if it be insolvent. With reference to the ca-
pacity to accept or refuse an estate, heirs are considered
as necessary (mecessariZ), proper and necessary (sw et
necessarti), and extraneous or voluntary (extrani?, volun-
tart). A necessary heir is the testator’s slave, who is
OWNERSHIP BY INHERITANCE. 329

obliged to receive the master’s inheritance, and to pay all
the debts—being liable, however, only to the extent of the
value of the estate. Proper and necessary heirs are the
descendants of the deceased, who are instituted heirs and
become sud juris at the testator’s death. They are called
necessary because they were originally obliged to accept
the inheritance with all its burdens; but the preetor
afterward gave them the benefit of refusal (deneficium
abstinendi), provided they abstained entirely from all
interference with the estate. Extraneous heirs comprise
all other persons who may be instituted. They are per-
fectly at liberty to accept or refuse the inheritance, and
are hence sometimes called voluntary heirs. If, however,
they have once assumed it, they are not at liberty to
renounce it.

6. Inheritance ab Intestato.—A person is said to
be intestate who has made no will at all; or one not
legally valid ; or one that has become invalidated from
any of the causes previously mentioned. Although in-
testate succession was the original form of inheritance, it
was, after the development of the will, called into exer-
cise only exceptionally, and in the absence of testamentary
heirs. We have already considered the general character
of the law relating to this form of inheritance as it existed
at the time of the XII. Tables; and also as it was modi-
fied by the pretorian legislation. We have seen that in
the earliest times, intestate succession was simply the
succession of the independent members of the family to
the family estate ; and that the order of legal heirs was
determined by proximity of relationship to the deceased,
as traced through a common /ofestas—this order being
sui heredes, agnati, and gentiles. We have also seen how
the praetor recognized the claims of the natural as well as
the civil family, by granting the right of possession to
330 OUTLINES OF ROMAN LAW.

emancipated children, and by substituting the cognates,
or blood-relations, for the gen/iles.

The most important change in the law of intestate suc-
cession was made by Justinian in the 118th and 127th
Novels, when all legal distinction was abolished between
the sud heredes and the emancipated children, and between
agnates and cognates; and the principle of blood-rela-
tionship was fully recognized in place of the old principle
of relationship based upon the fofestas. We may also no-
tice that the Roman law draws no line of distinction be-
tween real and personal property, between elder and
younger sons, or between males and females. The right
of inheritance to the entire estate devolves, in general,
upon all persons according to the proximity of their
blood-relationship to the deceased. The orders of suc-
cession may be considered under three classes—descend-
ants, ascendants, and collaterals.

(1) The first order of legal heirs (heredes ab intestato)
are the descendants—that is, those persons of either sex
and of whatever degree who are lawfully descended in a
direct line from the deceased. Such persons exclude all
ascendants and collaterals. Descendants of the first de-
gree, that is, lawful children—whether sons or daughters
—succeed per capita ; in other words, they share equally
in the estate. Descendants of a more remote degree
succeed fer stirpes, or by representation. For example :
if a son or daughter has died leaving lawful children, such
grandchildren of the deceased receive among themselves
the share of the estate to which their parent would have
been entitled had he remained alive. And among de-
scendants, this right of representation extends to the
remotest degree.

In connection with this subject, it should be observed
that the wife of the deceased, if without a dowry, is en-
OWNERSHIP BY INHERITANCE. Bay

titled to a certain share of the estate along with the chil-
dren. Justinian provided that in case there were three
children, or a less number, she should be entitled to a
fourth part of the estate; but in case there were more
than three children, she should share with them equally.
A similar provision applied to the succession of the hus-
band to the wife’s estate. These are the chief instances
in which affinity, or relationship by marriage, is recog-
nized by the Roman law as a basis of the right of succes-
sion.

(2) The second order of legal heirs are the ascendants
—that is, those persons of whatever degree, whether male
or female, from whom the deceased has lawfully descend-
ed in adirect line. Such persons exclude all collaterals,
with the exception of brothers and sisters of the whole
blood, and the children of such brothers and sisters. We
must, hence, distinguish the case in which ascendants
succeed without collaterals from that in which they
succeed wz¢h collaterals.

In the first place, if there be no brother or sister, or
children of the same, then the ascendants—male or female,
paternal or maternal—succeed to the inheritance accord-
ing to their proximity to the deceased ; the nearer degrees
entirely exclude the more remote, for among ascend-
ants there is strictly no representation. Consequently,
not only the father and mother, but the father alone or
the mother alone will exclude the grandparents and all
remoter degrees. But if there be no parents living and
there are several remoter ascendants who concur in the
same degree, they receive the estate ger /ineas—that is,
one half of the estate is divided equally among those of
the paternal line, and the other half among those of the

maternal line..
In the second place, if in connection with ascendants
932 OUTLINES OF ROMAN LAW.

there are brothers or sisters of the whole blood, such
brothers and sisters share the estate with the nearest
living ascendants. A vexed question has arisen among
commentators as to whether such brothers and sisters are
placed, in all respects, upon an equality with the father
and mother, thus excluding the remoter ascendants if the
parents of the deceased are not living ; or whether they
are obliged, if the parents be dead, to share the estate
with the ascendants of a remoter degree, if any such
be living. It was the opinion of Voet that such col-
laterals exclude the grandparents and remoter degrees.
The great influence of this jurist is seen from the fact
that this opinion was incorporated into the English law
through a decision of Chancellor Hardwicke. The op-
posite view is, however, held by Domat, WarnkGnig, and
other eminent civilians, Without discussing this ques-
tion, we may accept the latter view as that which at
present prevails among commentators. Furthermore, the
same principle that applies to the brothers and sisters
of the whole blood applies also to the children of such
persons, since such children succeed to their parents’
share by representation.

(3) If there are neither descendants nor ascendants,
then the right of inheritance belongs exclusively to the
collaterals—that is, those persons, not in the direct line
of ascent or descent, who can trace their relationship to
the deceased through a common ancestor. The general
principle that governs the succession of collaterals is that
the nearer degrees exclude’ the more remote. But this
principle needs to be more specifically stated in order to
indicate the preference given in certain cases to the
whole blood over the half-blood, and the extent to which
representation exists among collaterals.

In the first place, brothers and sisters of the ile
OWNERSHIP BY INHERITANCE. 333

blood exclude all other collaterals. Such heirs succeed
to the estate per capita ; and if any have died, the chil-
dren of such receive the vacant share per stirpes ; but the
principle of representation dees not extend below the
children of such brothers and sisters.

In the next place, if there are no brothers or sisters of
the whole blood, or children of such persons, the brothers
and sisters of the half-blood are next entitled to the estate,
and consequently exclude all collaterals of a more remote
degree. The principle of representation applies in this
case as in the one previously mentioned.

Finally, if there are no brothers or sisters, either of the
whole blood or of the half-blood, or children of the same,
then the remaining collaterals have a claim upon the
inheritance in the order of their proximity to the
deceased. But in no case does the principle of represen-
tation apply to the children of collaterals beyond the two
cases previously described. Among collaterais, the
degree of relationship is determined by counting the
whole number of generations in passing from one col-
lateral to the other through the common ancestor. Thus
in the Roman civil law, the number of generations is
counted in both lines of descent from the common ances-
tor. But the method of the canon law, which has been -
adopted in the English law, is to reckon simply the num-
ber of generations passed over in a single line, passing
from the common ancestor to the more remote descendant.
In the words of Blackstone :—‘‘The method of com-
puting these degrees in the canon law, which our law
has adopted, is as follows: we begin with the common
ancestor and reckon downward; and in whatsoever
degree the two persons, or the more remote of them, is
distant from the common ancestor, that is the degree in
which they are related to each other” (Comm. IL, 206).
334 OUTLINES OF ROMAN LAW.

It is necessary to observe, in conclusion, that if there
are no collaterals, the entire estate devolves upon the
surviving spouse according to the preetorian edict (unde
vir et uxor); and on the failure of all the legal heirs
mentioned, the succession goes to the public treasury as
the ultimus heres.

7. Legacies, Fideicommissa, and Codicils.—In
connection with the subject of inheritance, the Institutes
treat of certain topics which, though not strictly belong-
ing to universal succession, are yet incidentally related to
the transmission of property by inheritance. These are
legacies, fideicommissa, and codicils.

(1) A legacy (degatum) is a gift left by the testator to
be delivered by the heir to a third person designated as
the legatee. The extremely technical features that char-
acterized the early legacies were abolished by the imperi-
al constitutions ; and the law was so simplified that the
intention of the testator was carried out without regard to
the form of words employed in making the legacy. The
capacity to give and to receive by legacy is the same as
that which is required in the case of the testament. The
largest liberty is also given as to what may be left by
legacy. It may be any thing 2” commercio belonging to
the deceased ; or it may be, in effect, even the property
of another, since the testator can impose upon the heir
the obligation of purchasing something and of delivering
it to the legatee. If the same thing be left to two or
more persons, each takes an equal share; and if one of
two or more joint-legatees should die before the common
thing left to them has been delivered by the heir, the
share thus left vacant goes to the remaining joint-legatees
by the right of accretion (jus accrescendt ).

The general rules for the interpretation of legacies, as
of wills, came to be, in the later Roman law, very liberal
OWNERSHIP BY INHERITANCE. 338

in their character. For example, a mistake in the name
of the legatee does not vitiate the legacy, provided there
is no doubt as to the identity of the person intended.

A legacy is extinguished by the death of the legatee, if
the death occurs before the property vests in him. It
may also be extinguished by the testator himself, either
by revocation (ademptio) or by the transference (¢rans-
Jatio) of it from the original legatee to another person.

Besides these general principles, we may notice, in
brief, the effect produced upon legacies by the limita-
tion of the testamentary power. Certain provisions were
made in order that the whole estate might not be ex-
hausted in legacies, and that there might be, conse-
quently, some inducement for the heir to accept the
estate. The dex Furia provided that more than a certain
sum (r1ooo asses) could not be left in a single legacy. But
this failed of its purpose, as the number of legacies was
not limited. The x Voconia then provided that no
legatee could receive more than the heirs. But this was also
ineffectual for a reason similar to that mentioned in the
previous case. The defects of these laws were met,
however, by the /ex Falcidia, by which a testator was pro-
hibited from giving away in legacies more than three-
fourths of his entire estate after its debts were paid.
The fourth of the estate thus ensured to the heir was
called the Falcidian portion (guarta Falcidia).

It was a peculiar feature of the early law that a legacy
was valid only when embodied in the testament, so that
if the testament failed, the legacies failed with it. But
Justinian assimilated the taw of legacies to that of fider-
commissa, so that they could be made independent of
the will, and be binding upon the heirs-at-law.

(2) Fideicommissa, or bequests in trust, are directions
given to the heir that he, on coming into possession of
336 OUTLINES OF ROMAN LAW.

the estate, convey the bequest to a third person, or
use it for the benefit of such person ( fideécommis-
sarius). Such fiduciary bequests were originally intro-
duced to evade the strict provisions of the civil law,
and to leave property to persons legally incompetent to
receive by testament or legacy. Before the time of
Augustus, the execution of the trust depended solely
upon the honor of the heir upon whom the trust was
imposed (heres fiduciarius). But this emperor made it
legally binding upon the heir to execute the trust ; and
soon after, a special praetor was appointed having juris-
diction in such cases (pretor fideicommissarius).

In order to prevent certain forms of injustice that
might arise from the legalization of trusts, two sup-
plementary laws were passed. Since the civil law had
made the heir responsible for the debts of the estate, the
senatus-consultum Trebellianum provided that when an in-
heritance was transferred by an heir in pursuance of a
trust, all the liabilities relating to the estate should also
be transferred to the person for whose benefit the trust
had been made. Again, in order to ensure the acceptance
of the inheritance by the heir in such a case, and thus
prevent the loss of the trust intended by the testator, the
senatus-consultum Pegasianum permitted the heir to retain
a fourth part of the estate as against the fidetcommissarius,
in a manner similar to that in which the Zex Falcidia pro-
tected the heir as against the legatee. These two provisions
were adjusted to each other by Justinian, who guaranteed
the “ Pegasian portion” to the heir, but divided ‘the lia-
bilities of the estate between him and the fideicom-
missarius according to their respective shares, so that the
two persons were practically placed upon the same
footing.

A jfideicommissum might be made in a testament, in
OWNERSHIP BY INHERITANCE. 337

which case its validity would depend upon the validity of
the will; or it might be made in a codicil, when its val-
idity would not depend upon the appointment of testa-
mentary heirs.

(3) Codicils (codicitli ), as used in the Roman law, are
written directions to the heir—requiring none of the
solemnities of the testament,—which express the wishes
of the deceased regarding the disposition of the estate,
either by way of legacies or fideicommissa. It is said that
Augustus set the example of executing a trust imposed
by a codicil, and from that precedent the codicil acquired
a legal validity. This instrument must not be regarded,
like the English codicil, as asupplementary will ; although
it may be employed to modify all the provisions of an
existing will, with the exception of what has been
described as its necessary contents. That which consti-
tutes the essential feature of the testament—the appoint-
ment of an heir—cannot be provided for by the codicil.
But in case no testament has been made, or in case the
testamentary heirs fail, the provisions expressed in the
codicil are still binding upon the heirs-at-law.

On account of this peculiar feature of the Roman codicil,
the testament itself acquired a new character, and the dis-
positions therein contained were rendered more secure.
By the addition of a “‘codicillary clause ’’—to the effect
that if the will should prove invalid it should be regarded
as a codicil—its execution was made binding upon the
legal heirs, who thus acquired functions somewhat similar
to those possessed in the English law by persons called
“administrators with the will annexed.” In this way the
lawful intention of a person regarding the disposition of
his estate at death might be fully carried out whether the
inheritance passed to the testamentary or to the legal

heirs.
338 OUTLINES OF ROMAN LAW.
References.—Gaius, II., 97-289, and III., 1-76; ‘‘Inst.,” II,
10-25, and III., 1-12; ‘‘ Digest,” Qu testamenta facere possunt,
elc, (28), De testamento militis (29), De legatis et fideicommissis
(30-34), De conditionibus, etc., qua in testamento scribuntur
(35), Ad senatus-consultum Trebellianum (36), De bonorum pos-
sessionibus (37); ‘‘Code,” De inofficioso testamento (3, 28), and
various titles in Book VI., especially 9-59 ; Poste’s “© Gaius,”
Pp. 179-275; Sandars’ ‘‘Justinian,” Eng. ed., pp. 245-408,
Am. ed., pp. 235-396; Mackenzie, ‘‘Roman Law,” pp. 253-
292; Amos, ‘‘Roman Civil Law,” pp. 305-340; Hunter,
“Roman Law,” pp. 559-782 ; Hallifax, ‘‘ Elements of Roman Law,”
Pp. 43-62; Phillimore, ‘‘ Private Law Among the Romans,” pp.
328-392; ‘‘ Dict. Antiqg.” (Heres Roman, Legatum, Fideicommis-
sum); Tomkins and Jencken, ” Modern Roman Law,” pp. 201-299 ;
Ortolan, ‘‘Instituts,” II., pp. 436-677, III., pp. 1-128; DuCaur-
roy, ‘‘Instituts,” II, ; Demangeat, ‘‘ Droit Romain,”J., pp. 638-
875, II., pp. 1-162; Deurer, ‘‘Gesch. und Inst.,” §§ 213-252;
Thibaut, ‘‘Gesch. und Inst.,” §§ 222-252; Bécking, ‘‘ Rom,
Privatrecht,” S. 229-289; Marezoll, ‘‘Lehrbucn,” §§ 192-237;
Vering, ‘‘ Gesch. nnd Pandekten,” §§ 246-287 : Puchta, ‘‘ Pandek-
ten,” §§ 446-564; Arndts, ‘‘ Pandekten,” §§ 403-607; Vangerow,
“ Pandekten,” §§ 393-565 ; Windscheid, ‘‘ Pandekten,” §§ 527-622.
TITLE II.

VWHE LAW OF OBLIGATIONS.
CHAPTER I.
THE GENERAL CHARACTER OF OBLIGATIONS.

WE now pass from the law of property, or ownership, to
the law of obligations, which forms the second. general
branch of the us Rerum. The relation between these
two branches rests upon the distinction already noticed
between rights zz rem and rights iz personam. It has
been said that every objective right refers to a certain
degree of legal control which a person may exercise with
reference to some object external to himself, The earlier
modern civilians, in attempting to expound the theory of
the Roman jurists, explained the division of rights by a
reference to tlie directness of the relation between the
person and the thing, or the subject and the object of the
right. For example, if a man owns a house, he has a
direct control over the thing itself, and his right is said to
be zm the thing (zz re). But if he makes a contract with
another that the latter convey to him a house, his right,
so far as the house is concerned, cannot be realized ex-
cept through the act of the person with whom the con-
tract is made; in other words, he has only a right zo the.
thing (ad rem). The later civilians, however, have made
more clear the Roman theory of the distinction between
rights, by comparing it with the distinction between
actions by which rights are enforced. Taking the ex-
amples just mentioned, if a man owns a house and is
deprived of his right, he brings, according to the Roman
law, an action zz rem, in which his right is merely as-
serted, as such, without reference to the person who has

341
342 OUTLINES OF ROMAN LAW.

deprived him of it—that is, the right is conceived as
availing against the world at large. But if he is deprived
of the right due him according to the terms of a contract,
he brings an action 7” personam, in which must be named
the particular person who has deprived him of the right
—that is, the right is looked upon as availing against a
determinate person.

In thus distinguishing between actions, the Roman
jurists indicated the distinction that they had in mind
with reference to the rights themselves. The rights in-
volved in ownership, whether superior or inferior, differ,
therefore, from those growing out of what is called an
“obligation,” in that the former avail against the world at
large, while the latter avail against some determinate per-
son or persons, The duties corresponding to rights zz
rem are general and negative, but those corresponding to
rights 2 personam are specific, and may be positive as
well as negative. The latter class of rights and duties
forms the subject-matter of the law of obligations.

1. Nature of Obligation as a Personal Right.
—A legal obligation must be distinguished, in the first
place, from those general negative obligations which are
correlative to the rights of property, and which rest upon
the world at large. It must also be distinguished from
those natural or moral obligations which, though resting
upon particular persons, and though sometimes having a
legal significance, are not made compulsory by a legal
action. The distinctive feature of a legal obligation is
the fact that it rests upon a particular person and is en-—

forceable by. a legal action. It is defined in the Roman

law as “a legal bond (vinculum juris) whereby, according
to the laws of the state, one person is bound to render
something to another” (“ Inst.,” 3, 13, pr.). This perso-
nal relation involves both a right and a duty—a right on
CHARACTER OF OBLIGATIONS. 343

the part of one person called the “creditor” to exact
something, and a duty on the part of another person
called the “debtor” to render something.

The nature of a legal obligation may be illustrated by
referring to its historical origin. The legal bond between
debtor and creditor sprang from thc relation existing be-
tween the parties to the ancient mexum. The nexum, as
we have before seen, was originally related to “man-
cipation,” or the conveyance of property per es et Libram.
The parties to such a transaction were called nexi, and
were legally bound to each other until the process was
completed. At first, every such proceeding was an inter-
change of property and price. By a kind of fiction, how-
ever, a loan could be effected through this process, The
price would be paid and the transference of the property
with-held until some future time. The debtor would
still be a nexus, and be legally bound either to convey
the property, or to repay the price advanced to him. This
obligation the magistrate could enforce by granting to
the creditor an executory judgment (manus injectio) against
the person of the debtor. The idea of an obligation as
a “legal tie” between debtor and creditor thus arose in
the civil law, from the bond which existed between the
next, and which was established through the forms of an
incomplete conveyance. These forms might be used for
other purposes than for effecting a loan ; but in all cases
they gave a compulsory character to the obligations
thereby established. However much the formal processes
may have been changed by the decay of symbolism and
the influence of the praetor, the relation between the
parties remained a vinculum juris. The creditor still re-
tained his power over the debtor to the extent of enfor-
cing his claim by a legal action. But this power included
not only the right growing out of a claim founded upon
344 OUTLINES OF ROMAN LAW.

the voluntary consent of the parties; but also the right
resulting from an injury which one party had done to
another, and by which the former was placed under obli-
gation to pay to the injured party compensatory damages.

The essential features of the legal obligation, as con-
ceived by the Roman jurists, may be summed up as fol-
lows: First, it involves a legal relation between two par-
ties, a creditor and a debtor. Secondly, it involves on
the part of the creditor a personal and not a real right—
a right which avails against the debtor only. Thirdly, it
involves on the part of the debtor a duty whereby he is
bound to the creditor, either to transfer something to him,
or to render him some service, or to grant him compen-
satory damages for some injury done to him. In the
concise words of Paulus: “‘ The essence of an obligation
consists not in this, that it makes a thing or a servitude
ours ; but that it binds another to give something to us,
or to do something for us, or to grant us some compen-

 

sation” (ad dandum vel faciendum vel prestandum.—D.
44, 7, 3).

2. The Subject-Matter of Obligations.—The
subject-matter of an obligation, or the object for which
it is established, always involves some act on the part of
the debtor, the performance of which will be beneficial
to the creditor. It must be observed, however, that this -
may be a negative as well as a positive act. The obliga-
tion may require the debtor not to do something, as well
as to do something. In either case, the act of the debtor
is subject to the control of the creditor. The general
principles which apply to the subject-matter of an obliga-
tion may be described with reference to its essential, and
to its non-essential elements.

(x) The essential elements of an obligation are those
which are involved in its very nature, and without which
CHARACTER OF OBLIGATIONS. 345

it could not exist. For example, the obligation arising
from a contract of sale necessarily has in view the trans-
ference of a thing from the seller to the buyer, and the
transference of the price from the buyer to the seller.
The duty to perform these two acts forms the essential
feature of such an obligation. Without such require-
ments, this specific obligation could not exist. In like
manner, every legal obligation possesses certain elements
which constitute its essential or necessary subject-matter.
The validity of every obligation must therefore be deter-
mined, primarily, wifh reference to the character of its
essential elements, or necessary subject-matter.

In the first place, it is a general principle of the Roman
law that the essential elements of an obligation must not
involve any thing that is impossible, illegal, or contrary to
good morals. No one can be bound to do that which is
in the nature of things impossible. Jmposstbilium nuéla
obligatio est (D., 50, 17, 185). An obligation is also null the
primary object of which is to require something to be
done that is forbidden by law. The law cannot enforce
that which it at the same time prohibits. Associated
with the above invalid objects are those which are op-
posed to the general moral sense of the community, or
inconsistent with the public welfare.

In the second place, the essential object of an obligation
must be determinable, and of an actual pecuniary value.
That the object may be determinable, it is simply neces-
sary that it shall be so fixed as not to depend upon the
arbitrary will of either of the parties. It need not, how-

ever, be specific, since it may properly require the delivery
of things 2” genere. It need not be particular, as, for ex-
ample, when one of two or more acts is required, either
one of which will satisfy the claims of the creditor. If
the object be specific and particular, it is called certain
346 OUTLINES OF ROMAN LAW.

(certum), if not, as in the cases just noticed, it is called un-
certain (incertum). The object may hence be either certain
or uncertain ; but in no case can it be so indefinite as not to
be determined by either party to the obligation. The
object must also be of sufficient benefit to the creditor
that its value may be estimated in money. As Ulpian
says: “Ea enim in obligatione consistere, que pecunia
lui preestarique possunt” (D. 40, 7, 9, 2). This princi-
ple depends upon the fact that the obligation is rendered
compulsory in law by the debtor’s being compelled to
pay to the creditor a pecuniary compensation for the
damage resulting from his failure to perform his part of
the obligation. An obligation would, therefore, have no
legal significance, the breach of which did not cause ap-
preciable injury to the creditor.

(2) The non-essential, or incidental, elements of an
obligation are those which are not necessarily involved
in the nature of the obligation, but which being intro-
duced, impose additional or more specific duties upon
one or the other party. The most important of these
elements relate to time, condition, place, and conventional
penalty.

The time (aes) may be specified by the parties to an
obligation, before which the performance cannot be de-
manded. Without such specification, the obligation must
be performed immediately ; but by thus fixing upon a
future time the execution of the obligation may be sus-
pended. This future time may be definitely fixed (dies
certus) ; or it may be made to depend upon some future
event which must at some time occur, as the death of
some person (dies incertus). In either case, the obligation
begins to exist from the day on which the agreement is
made, although its performance cannot be demanded
until the arrival of the time, or the occurrence of the
CHARACTER OF OBLIGATIONS. 347

event specified. This is the basis of the distinction made
in the Roman law between the time at which an obliga-
tion arises (dies cedit), and the time at which it may be
enforced (dies venit).

But when the obligation is made to depend upon
some future event which is not only uncertain as to
the time of its occurrence, but uncertain as to the fact of
its occurrence—as the election of a particular person to
the consulate—such an element is technically called a
condition (conditic). In such a case the obligation does
not arise, and of course is not enforceable, until it is
ascertained that the uncertain event has happened. But
with the occurrence of the uncertain event, the obligation
at once arises and is enforceable.

A specification may also be made with reference to the
place (Jocus) at which the performance must be made. If
for any reason the debtor is required to perform the obli-
gation elsewhere than the place fixed upon, he is entitled
to compensation for the disadvantage thus incurred.

A specific obligation may still further grow out of what
is called a stipulated penalty (stpulatio pene), by which
either party may bind himself to forfeit a certain amount
if he fails to perform the principal obligation. In case
of non-performance, the creditor can demand either the
fulfilment of the principal obligation, or the forfeiture of
the penalty—but not both.

Other accessory elements. of a similar kind may be in-
troduced into an obligation, which we need not describe.
It is sufficient to say, in general, that they depend upon
the expressed will of the parties ; and that they cannot
destroy the essential nature of the obligation, although
they may modify the legal consequences which would
naturally flow from an obligation in case no specification
was annexed.
348 OUTLINES OF ROMAN: LAW.

3. Accessory Liability in Obligations.—In addi-
tion to those rights and duties which grow out of the
nature of the obligation itself, and which arise from the
expressed will of the parties, are others which depend
upon the liability of either party to an obligation, to make
indemnity for any injury or loss occasioned to the other.
This liability must be distinguished from the principal
obligation arising from a “ delict,”’ in that the injury must
be of such a character as to affect the obligatory relations
of parties who are already bound by a winculum juris.
The party who occasions such an injury or loss becomes
still further a debtor, and is bound to make indemnity ;
and the party who suffers such a loss becomes still further
a creditor, and has a right toclaim indemnity. In order
to produce this new relation between persons already
bound by an obligation, it is of course necessary that the
loss which is suffered by one of the parties be occasioned
by the other; and also that the loss have reference
to something that comes within the scope of the obliga-
tion already existing. As a general rule, each party is
liable to the other for the loss or damage of which he
himself can be said to be the proper cause. But the ex-
tent of this liability is dependent upon various circum-
stances, as, for example, whether the damage arises through
malicious intent (dolus), negligence (cu/fa), delay in per-
formance (mora), or accident (casus). The following
principles apply to these several cases:

(1) The party to an obligation who with malicious in-
tent (dolws) inflicts a loss upon the other party, is always
responsible to the full extent of the injury done. The
parties to an obligation are always bound dolum prestare ;
and any special agreement to the contrary is void. This
principle holds whether the malicious act is a positive or
a negative one. The failure to prevent a loss, if such
CHARACTER OF OBLIGATIONS. 349

failure is due to a malicious purpose, creates a liability,
so far as such loss affects the subject-matter of the obliga-
tion.

(2) When a loss is occasioned by a party, not through
malicious intent, but through the lack of proper care or
attention, it is said to be due to negligence, or fault
(culpa). In fixing the extent of liability for fault, the
Roman law draws a distinction between two kinds of
negligence, viz.: that which is gross and inexcusable
(culpa fata), and that which is slight, or which any careful
person not exercising extraordinary diligence might com-
mit (culpa levis). In the former case, where the loss is
occasioned by gross neglect, the party at fault is always
responsible to the full extent of the injury done, without
regard to what may be the subject-matter of the obliga-
tion. Gross negligence is thus assimilated to malicious
intent—culpa lata egquiparatur dolo, But in the latter
case, where the loss is occasioned merely by slight neg-
lect, that is, where it has occurred in spite of the exercise
of ordinary care, the extent of the liability depends upon
the character of the obligation. Asa general rule, a party
is not responsible for loss occasioned by slight neglect—
in other words, he is not obliged to exercise more than
ordinary care—unless he himself derive a benefit from
the obligation. For example, if a person receive a de-
posit obtaining therefrom no benefit, he is obliged simply
to preserve it with ordinary care, such as an ordinarily
careful person would exercise over his own property ; and
he is not liable for any loss not occasioned by the lack of
such reasonable care. But if a person receive a pledge
as a security for debt, since he obtains from it a benefit,
he is obliged to exercise extraordinary care, and is re-
sponsible for the slightest neglect—that is, he is liable for
any loss that might have been prevented by the greatest
350 OUTLINES OF ROMAN LAW.

diligence (exactissima diligentia). It is not necessary to
mention the exceptions to these principles ; it is sufficient
to say that when they occur, they depend upon the special
nature of the obligation itself. «

(3) If a party to an obligation occasions any loss by
delay (mora) in the performance of the obligation, after
the time has arrived when its execution may be legally
demanded, and’ such delay is not unavoidable, he is
obliged to make indemnity for the loss thus occasioned.

(4) A loss or injury occasioned by an unavoidable
accident (casus), that is, by a cause which no human fore-
sight or power could avert, can be attributed to neither
party. Hence such loss cannot be indemnified, but must
remain with the person upon whom it is inflicted ; for ex-
ample, with the owner of a piece of property which has
been damaged or destroyed in the way mentioned, even
though its possession is in the hands of another party.

4. Classification of Obligations.—Before proceed-
ing to the specific obligations described in the Roman
law, we may notice the various classes into which they
are grouped. These classes are based upon different
principles, viz.: upon the legal significance of the obliga-
tions themselves ; upon the jurisdiction by which they are
enforced ; and upon the modes in which they are estab-
lished.

(x) With reference to their legal significance, they are
divided into natural and civil. Natural obligations are
those which, though based upon a moral duty, cannot be
legally enforced. Although such an obligation is not
directly compulsory by law, it is yet not deprived of all
legal significance. It might, in the Roman law, be
pleaded as an “exception,” whereby a performance based
upon it could not be rescinded. Civil obligations, on
the other hand, are those which are directly enforceable
by a legal action,
CHARACTER OF OBLIGATIONS. 35t

(2) With reference to the jurisdiction to which they are
subject, they are divided into civil (in a restricted sense)
and pretorian. The former are constituted by the civil
law, and enforceable by a civil action. The latter are
created by the prztorian law, and are enforceable by a
preetorian action. By far the largest part of the obliga-
tion of the Roman law was developed under the preetor’s
jurisdiction, and hence relieved of the technical features
which characterized the ancient civil law.

(3) A more important division is that based upon the
modes in which they may arise or become established,
Some are established by a contract (ex contractu), or a
voluntary agreement, whereby one person legally binds
himself to render something to another. Others are es-
tablished by a delict (ex delicto), or a private wrong,
whereby one person is legally bound to make compensa-
tion for the injury done to another. Obligations may
also arise from several other causes, which are, however,
from their peculiar features assimilated either to those
arising from contract (quasi ex contractu) or to those arising
from delict (guasi ex delicto), We may, hence, treat all
obligations as arising (properly or fictitiously) either from
contracts or from delicts.

References.—‘‘ Inst.,” III., 13; ‘‘ Digest,” De obligationibus et
actionibus (44, 7); ‘‘ Code,” De obligationibus et actionibus (4, 10) ;
Sandars’ ‘‘ Justinian,” Eng. ed., pp. 408-413, Am. ed., pp. 396-
405; Mackenzie, ‘‘ Roman Law,” pp. 194-200; Amos, ‘‘Roman
Civil Law,” pp. 169-177; Phillimore, ‘‘ Private Law among the
Romans,” pp. 220-237; ‘‘ Dict. Antiqg.” (Odigatio); Tomkins and
Jencken, ‘‘ Modern Roman Law,” pp. 300-320 ; Ortolan, ‘‘ Insti-
tuts,” III., pp. 128-138; Ducaurroy, “‘Instituts,” III., pp. 1-7;
Molitor, ‘‘ Les Obligations en Droit Romain,” tom. I.; Deurer,
“Gesch. und Inst.,” §§ 165-188 ; Bécking, S. 124-135; Marezoll,
‘‘Lehrbuch,” $$ 118-125; Vering, ‘‘Gesch. und Pandekten,” §§
178-194; Puchta, ‘‘ Pandekten,” §§ 218-248; Arndts, “ Pandek-
ten,” §§ 201-277; Vangerow, ‘‘ Pandekten,” §§ 566-594; Wind-
scheid, ‘‘ Pandekten,” §§ 250-301.

i
i
CHAPTER II.
OBLIGATIONS ARISING FROM CONTRACTS.

By far the largest and most important class of obliga-
tions, or rights 2% personam, are those which arise from the
legal transactions called contracts. |“ This is,” says Poste,
“the portion of Roman jurisprudence which has survived
with least alteration in modern Europe.” It should be
observed that the Roman law does not, as is done in the
English law, confuse the idea of contract with the idea of
the obligation that results from the contract. The con-
tract (contractus) is simply the investitive fact which gives
rise to the obligation. The one stands in relation to the
other as cause to effect. The contract itself is not a
right ; it is a transaction by which a right and a duty are
legally established between two or more determinate per-
sons. Keeping in mind this distinction between the con-
tract and the obligation ex contractu, let us consider the
essential features of the contract, and indicate the specific
kinds of obligations which arise from the different forms
of contracts.

1. Essential Features of the Contract.—A con-
tract, in the strict sense of the word, may be briefly de-
fined as an agreement between two or more persons which
gives rise to a legal obligation. An agreement which
does not produce a legal obligation is called a simple
pact (zudum pactum). That an agreement may be of
such a character as to create a legal obligation, it must,
of course, not attempt to establish a relation between the
parties inconsistent with the principles already mentioned

352
CONTRACT OBLIGATIONS. 333

as controlling the legality of obligations in general. But
besides this, it must possess thre¢ distinctive and essential
features, viz.: it must be made by parties legally com-
petent ; it must express an actual consensus between the
parties; and it must be made according to the forms
prescribed by law.

(1) All persons are competent to make a contract ex-
cept those who are expressly disqualified by law. The
chief persons thus disqualified are, in the Roman law, in-
fants, zmpudes except to ameliorate their condition, mad-
men, and lunatics except in lucid intervals.

(2) The contract must be a voluntary concurrence of
will (consensus) between the parties. This involves a
promise on the part of one (fol/icitatio) and an accep-
tance on the part of the other, so that the wills of the
two parties are brought together (conventio). And the
promise and acceptance must relate to the same identical
object (consensus ad idem). Since a true consensus must
grow out of a free and intelligent exercise of the will, a
contract is void, or at least voidable, if it is the result of
force, of fraud, or of excusable error.

An agreement is not binding if extorted by force (zs),
or, what is equivalent to force, such an intimidation
(metus) as would cause a man of ordinary firmness to do
what he would not do of his own free will.

Again, an agreement which has been obtained through
fraudulent deception (dolus malus), though not properly
void at the outset, is so vitiated that it may be rendered
void, or its effect modified by an appeal to the magis-
trate.

Moreover, an error bearing upon the subject-matter of
the agreement, whether due to mistake or ignorance—
without which the agreement would not have been made
—furnishes a ground for modifying the effects of the
354 OUTLINES OF ROMAN LAW.

contract. As a general rule, an error is excusable only
when it relates to a matter of fact (error facti), as all
persons are presumed to know the law, or at least to have
the opportunity of knowing it. Certain persons, however,
such as minors, women, and soldiers, in certain cases,
were allowed by the Roman law to plead error as to law
(error juris) as well as to fact.

(3) Finally, an agreement to be a contract must be
made in a manner prescribed by law. The different
modes in which contracts might be formed in the Roman
law may be seen from the various classes into which they
were divided. They were broadly separated into “in-
nominate” and “ nominate.”

Innominate. contracts (contractus innominati), on the
one hand, are those which have no special designation in
the law, but which comprehend transactions involving
the mutual consent of the parties, followed by a part per-
formance, The execution of the agreement by one party
is regarded as forming a consideration sufficient to make
the execution compulsory upon the other party. These
contracts involve the various kinds of exchanges, whether
of things or of services. Paulus sums up the various cases
in which such contracts may arise, as follows: “ Aut do
tibi ut des ; aut do ut facias ; aut facio ut des; aut facio
ut facias” (D. 19, 5, 5). That is, if I give something to
you on the condition that you give something to me, the
very fact that I have executed my part of the agreement
places you under a legal obligation to execute your part ;
and the same principle applies to the other forms of ex-
change mentioned.

Nominate contracts (contractus nominati), on the other
hand, are those which are distinguished by a special name
in the law. They are divided, in general, according to
the ways in which they are formed—that is, with refer-
CONTRACT OBLIGATIONS. aad

ence to the specific fact which is regarded as giving a
binding force to the agreement. If the binding force of
the agreement is based upon the delivery of something
from one party to another, the contract is said to be made
re ; and the obligation arising therefrom is said to be
contracted re (re contrahitur obligatio). If the contract is
based upon a form of words, it is said to be made verdts.
If it is based upon a written record, it is said to be made
Uiteris. And if it is founded merely upon the consent of
the parties, it is said to be made comsensu. We may there-
fore designate the nominate contracts of the Roman law
as real, verbal, literal, and consensual.

To present in the briefest manner the general principles
of the law regarding these contracts, it will be best simply
to define the specific contracts belonging to each class,
and indicate the principal obligations to which they sev-
erally give rise, and the accessory liability resting upon
the contracting parties in case of loss or injury.

2. Real Contracts, or Those Made Re.—A con-
tract is said to be made 7e, when the agreement is ac-
companied by the delivery of a thing from one person to
another under certain specified conditions. The obliga-
tion resulting from such a contract does not arise until
the delivery has been made. The voluntary acceptance ©
of the property of another imposes upon the receiver the
obligation to abide by the terms of the agreement, whether
expressed or implied, according to which the thing is de-
livered. There are four real contracts in the Roman law,
each one of which creates obligations peculiar to itself :
mutuum, commodatum, deposttum, and pignus.

(1) Mutuum, or loan for consumption, is a contract
formed by the gratuitous delivery of consumable goods
from one person to another on condition of a return in
kind. The subject-matter of the mutuwm must consist of
356 OUTLINES OF ROMAN LAW.

things ‘that can be measured, weighed, or numbered, such
as wine, corn, or money ; that is, things which being con-
sumed can be restored in genere. As this is a gratuitous
loan, it does not include the lending of money on inter-
est. From the nature of this contract the obligation is
imposed upon the borrower to restore to the lender, not the
identical thing loaned, but its equivalent—that is, another
thing of the same kind, quality, and value. A contract
which thus creates an obligation upon one party only is
said to be “ unilateral.”

With regard to the responsibility for loss, since from
the peculiar character of the contract the right of con-
sumption passes to the borrower, the latter is looked upon
as the practical owner of the thing loaned, and he there-
fore holds it entirely at his own risk; he is not relieved
from his obligation to return the equivalent even though
the thing be destroyed by unavoidable accident.

(2) Commodatum, or loan for use, is a contract whereby
the owner lends a thing to another to be used for its
legitimate purpose, without payment, on the condition
that it be returned after the purpose has been served.
This contract is “ bilateral,” imposing an obligation on
both parties—viz.: a direct obligation on the part of the
borrower to return the identical thing uninjured after the
use specified (enforced by an actio directa) ; and acontrary
obligation on the part of the lender to pay for any extra-
ordinary expenses which the preservation of the thing has
required during its use (enforced by an actio contraria).

As to the liability for loss, since the ownership of the
thing remains with the lender, the borrower is not re-
sponsible for loss by accident. Since, however, the loan
is for the benefit of the borrower, he is responsible not
only for culpable negligence (cudpa data), but even for
the slightest neglect (culpa /evis) ; in other words, he is
CONTRACT OBLIGATIONS. 357

oblixed to exercise extraordinary diligence in preserving
uninjured the thing loaned.

(3) Depositum, or deposit, is a contract by which the
owner entrusts athing to another for safe-keeping, with-
out pay. As in the previous case, this contract is bilat-
eral, creating an obligation on the part of the depositary
(depositarius) to restore the thing on demand; and an
obligation on the part of the owner to reimburse the de-
positary for necessary expenses incurred in preserving
the thing.

Since, in this case, the contract is not made for the
benefit of the depositary, the liability for loss, or injury
done to the thing deposited, does not extend to culpa
levis—the depositary being responsible only for loss
resulting from fraud, or such gross neglect as amounts to
fraud. This rule is, however, modified so that the lia-
bility extends to slight neglect in the following cases: if
the depositary assumes charge of the thing without being
authorized so to do; or if he receive pay for his ser-
vices, in which latter case, the deposit is assimilated to
the contract of hiring. The liability for loss due to
slight neglect was interpreted by the praetor to apply to
ship-masters and innkeepers with reference to the baggage
and other effects of travellers. This rule has been ex-
tended in the modern civil law and in the English law
to apply to all common carriers, by land as well as by
water.

(4) Pignus, or pledge, is a contract by which a thing
belonging to a debtor is delivered toa creditor as a se-
curity for debt. The present use of the word is distinct
from its use as denoting the vea/ right which the creditor
acquires in the thing pledged, and which avails against
all the world, enabling him to recover its possession if
lost. It here refers to the simple transaction which gives
358 OUTLINES OF ROMAN LAW.

rise to personal obligations between the debtor and the
creditor with reference to the thing pledged. This con-
tract imposes a twofold obligation. Upon the receiver
of the thing pledged is imposed the duty of restoring it
on payment of the debt ; or, in case of sale, of restoring
the surplus of the proceeds above what is necessary to
liquidate the indebtedness. Upon the owner of the thing
pledged is imposed the duty of reimbursing the receiver
for necessary expenses incurred in its preservation.

As this contract is made for the benefit of the creditor
as well as the debtor, the former is liable for any injury
done to the thing pledged, resulting even from slight neg-
lect. But it should be further observed, that in this
case, as well as in the case of the other real contracts, the
liability of the person having the property of another in
his possession may be offset by contributory negligence
on the part of the owner of the property. In other words,
the owner of the property must bear the loss to which
he may be said to have contributed by his own knowl-
edge.

The real contracts of the Roman law are preserved in
the modern civil law, and they correspond in many par-
ticulars to the English contracts of bailment.

3. Verbal Contracts, or those made Verbis.—
A contract is said to be made verdis when it is based upon
a solemn form of words. This form consists of an in-
terrogation and a corresponding answer. In the ancient
civil law, the question and answer must respectively con-
tain the words spondes and spondeo. But afterward,
other words were allowed as promittis and promitto, or
dabis and dabo ; and by a constitution of the Emperor
Leo, any form of words was sufficient that clearly ex-
pressed the consensus of the. parties.

(1) Stipulatio is the name by which a verbal con-

ss ‘

= rye L
o oLe ee

aes oe

('sae SE.
CONTRACT OBLIGATIONS. 359

tract is generally designated. Such a contract is not
confined to any particular kind of transaction; but
any promise, whatever may be its subject-matter, may
be made legally binding by being put into the form
of a definite question and answer. It may refer to the
delivery of a thing or to the performance of a service,
and that, too, without reference to the element of con-
sideration. Its essential features are, that the question
and the answer be consecutive, and that they refer to
precisely the same thing. This contract is unilateral,
creating an obligation—not upon the s#pulator, or the
one who asks the question—but upon the sromissor, or
the one who answers the question in the affirmative.
If a reciprocal obligation is to be created, it is neces-
sary for the parties to make two distinct stipulations,
each person taking successively the part of stipudator and
promissor.

The principles which have been described as the non-
essential, or incidental, elements of an obligation are
especially applicable to the obligations arising from this
form of contract. In other words the stipulation may be
made unconditionally (pure), or with reference to a cer-
tain time (x diem), or subject to the happening of an un-
certain event (sub conditione). In the first case, the obli-
gation arises immediately and the performance can be
instantly demanded (dies cedit et dies venit). In the second
case, the obligation arises immediately, but the perform-
ance cannot be demanded until the time specified (des
cedit sed dies non venit), In the third case, the obligation
neither arises nor can its execution, of course, be de-
manded until the condition is fulfilled (dies nec cedit nec
venit, nist exstiterit conditio).

While the stipulation is essentially an oral contract, its
terms may be reduced to writing. But the writing is not
360 OUTLINES OF ROMAN LAW.

regarded as the basis of the obligation; it merely fur-
nishes evidence as to the actual subject-matter of the
contract.

(2) Fideyussio is a special form of the verbal contract
by which one binds himself as surety to another person.
This contract, in its earliest form (adpromissio), was used
simply to secure a previous obligation which itself rested
upon a verbal contract. But in its later form, the con-
tract of surety, although it was itself still made verbis,
came to be used to guarantee an obligation based upon
any kind of contract, whether made verbally or otherwise.
As a result of this contract the person who becomes a
surety (fideyussor) is bound to meet the obligation of the
principal debtor, in the case of the latter’s failure. This
duty is not limited by time, and it may even be trans-
mitted to heirs. But to protect the surety from arbi-
trary action on the part of the creditor, the creditor is
obliged, in the first place, tosue the principal debtor, if
solvent, before proceeding against the surety (Jeneficium
ordinis); and, in the second place, if there are several
sureties, to demand a share of the debt from each (dene-
jicium divisionis). Moreover, if the surety pays any thing
toward securing the principal debtor, he retains a right of
action against the latter for its recovery.

It may be observed regarding the verbal contracts of
the Roman law, that the peculiar feature which marks
them—in creating an obligation without regard to a con-
sideration—is rejected by the English law, which pro-
fesses to make a good or valuable consideration an
essential element of every contract.

4. Literal Contracts, or Those Made Literis.
——A contract was said to be made Zteris, when it was
based upon a formal record or entry made by the credi-
tor with the knowledge and consent of the debtor. In

x coer
Burrcompare aoe led tant
CONTRACT OBLIGATIONS. 361

this case the writing itself was the foundation, and not
merely the evidence, of the contract. In case of liti-
gation, the parties could not go back of the written
record. This peculiar form of contract originated from
the ancient custom of the Romans of transcribing their
accounts from the ordinary day-book (adversaria) to the
more formal and permanent ledger (codex accepti et ex-
pensi), which was: evidently done'with the most scrupu-
lous care, since Dionysius declares that every Roman
was obliged to take oath before the censor that his book-
keeping was honest and accurate.

The early form of the literal contract, called expens¢la-
tio, was superseded by the chirographum, or a written ac-
knowledgment of debt on the part of the debtor given to
the creditor; and also by the syzgrapha, or a written
statement of the debt, signed by both parties and kept by
both. But these passed into disuse, and at the time of
Justinian there were no literal contracts, in the earlier
and strict sense of the word. The cawtio, or written ac-
knowledgment of debt, which existed at that time, was
not the basis, but merely the evidence, of a contract.

5. Consensual Contracts, or Those Made Con-
sensu.—A contract is said to be made consensu when it
is based upon the simple consent of the parties. In this
case the contract is complete when a real concurrence of
will has been reached. Such contracts, therefore, to be
valid, require no delivery of a thing, no special form of
words, and no reduction to writing, although their sub-
ject-matter may be reduced to writing as an evidence of
the agreement. Consequently, they can be made not
only by parties present, but by parties absent through
letters or by messenger. They, moreover, create in all
cases bilateral obligations—that is, reciprocal duties rest-
ing upon both parties to the contract—whereas literal
362 OUTLINES OF ROMAN LAW.

and verbal contracts, and the real contract of mutuum, as
we have seen, impose a duty upon one party only. .

The consensual contracts were introduced into the
Roman law through the pretorian legislation, and were
consequently founded upon broader principles of justice
than the other classes of contracts, which continued to
preserve, in some respects, the technical features of the
ancient customary law. They were liberally interpreted,
according to the intention of the parties and the demands
of equity. Although few in number, they formed by far
the most important part of the Roman law of contract,
and have survived, with little alteration, in the modern
civil law ; and have also exercised a great influence upon
the English common law. These contracts comprise
purchase and sale, letting and hiring, partnership, and
agency. :

(t) Purchase and sale (emptio et venditio) is a contract
in which one person (vendstor) agrees to deliver to an-
other (empfor) a certain commodity in consideration of a
given price. This contract in itself does not, of course,
transfer the right of ownership in the thing which is the
object of the sale ; it simply creates personal obligations
between the buyer and the seller. In considering the
general principles that relate to the contract of sale, we
may notice briefly the essential elements of the contract,
the principal obligations that it imposes upon the parties,
the incidental features that may attend the principal obli-
gations, and the responsibility for loss that results from
the contract.

Besides the legal competence of the parties, there are
three elements essential to a contract of sale, viz.: a thing,
which is iz commercio, and which is of a determinable
character, whether it be corporeal or incorporeal, present
or future, im genere or in specie; a price, which must be a
CONTRACT OBLIGATIONS. 363

sum of money of a legal character and definite in amount,
whether fixed by agreement, or by reference to a third
party, or by the market rate ; the consent of the parties,
which is regarded as consummated as soon as the price is
agreed upon—or, if the contract is to be written, with the
complete execution of the writing. The writing, how-
ever, was in no case obligatory in the law of Justinian ;
it merely furnished a better proof of the terms of the
contract, 7

The principal obligations which by this contract are
imposed upon the seller are: To deliver the thing itself
to the buyer, and to give him lawful and undisturbed
possession ; to guarantee the buyer against eviction by
law resulting from a defective title at the time of the sale,
and to compensate him for any loss sustained by such
eviction ; and to warrant the thing sold to be free from
secret faults, which might be done, if such faults were
afterward discovered, either by a satisfactory reduction
of the price or by a dissolution of the contract itself.
The implied warranty, which in the Roman law was an-
nexed to every sale, was thus entirely at variance with the
maxim of the English law, caveat emptor. The principal
obligations resting upon the buyer, on the other hand,
are: To pay the price fixed upon, together with interest
from the time the price is due; and to compensate the
seller for necessary expenses in keeping the thing prior
to its delivery.

Incidental obligations may be created by special agree-
ments, or pacts (facta adjecta). For example, the sale
may be made to take effect zm diem, or sub conditione, or
subject to approval on the part of the buyer, or to reci-
sion on the part of the seller. An additional obligation
might, in the Roman law, be also created by the giving
of earnest money (arrha). This was originally regarded
364 OUTLINES OF ROMAN LAW.

simply as a proof of the contract, but under Justinian it
became a measure of damages in case either party failed
to abide by the contract—the purchaser being obliged, in
case of failure, to forfeit the earnest that he had paid;
and the seller, if he receded from the contract, to forfeit
the earnest that he had received with an equal sum in
addition.

With regard to responsibility for loss or injury in-
flicted upon the thing before its delivery, the seller is lia-
ble not only for fraud and gross negligence, but also for
slight neglect ; so that he is obliged to preserve the thing
with the greatest diligence until the time of delivery.
But in case of unavoidable accident, the loss falls not
upon the seller but upon the buyer ; in other words, the
risk passes to the buyer as soon as the contract is com-
pleted. This seems to be opposed to the general princi-
ple res domino perit, since the ownership does not, by the
mere contract of sale, properly pass to the purchaser, but
remains with the seller. To explain this apparent dis-
crepancy, it is necessary to recall the theory of the
Roman law, that, although no real rights can be created
by a simple contract, yet when the object of a contract
of sale has been delivered, the real rights of the pur-
chaser are fictitiously dated back to the time of the con-
tract. When, therefore, the purchaser acquires possession
of the thing by delivery, he also acquires the rights to all
the fruits and natural accessions which the thing has re-
ceived since the contract was made; and, on the same
principle, should suffer all the losses which the thing has
received from merely natural causes. This general prin-
ciple regarding risk does not, however, relate to a con-
tract in which the seller specially stipulates to take the
risk upon himself, or the case in which things are sold zn
genere. The question of responsibility may be still fur-
CONTRACT OBLIGATIONS. 365

ther affected by delay (mora), If the seller fails to de-
liver the thing at the time he ought, he becomes liable not
only for fault but even for accidental loss. But if the
contract is of such a character as to require the buyer to
remove the goods, and he fails to do so at the proper
time, the seller is held responsible only for fraud or gross
neglect.

(2) Letting and Hiring (docatio et conductio) is a con-
tract somewhat similar to purchase and sale, in being
founded upon consent and in being complete when the
price is fixed. But its primary object is not, like that of
sale, to effect the absolute transfer of a thing from one
person to another. It does, however, involve a sort of
qualified delivery, that is to say, one person, called the
locator, agrees to place something at the temporary dis-
posal of another person, called the conductor, on the con-
dition that the person receiving the benefit of such dis-
position—whether he be the Jocator or the conductor—pay
acertain price to the other person. It is thus evident
that, according to the theory of the Roman law, the de-
termination of the question as to which party should be
called the Jocator, and which the conductor, does not de-
pend upon the fact that one receives and the other pays
the price, but upon the more fundamental fact that one
delivers to the other, or places at his disposal, that which
forms the subject-matter of the contract. In the contract
of sale, the one who makes the delivery (that is, the ven-
ditor), always, it is true, receives the price; but in the
present contract, the one who makes the delivery (that
is, the Zocafor) may or may not receive the price, as_ will
hereafter be seen. The character of this contract and
the distinctive obligations and liabilities attending it will
be made clear by considering the different phases that it
presents, viz.: the letting of things, the letting of ser-
vices, and the letting of work.
366 OUTLINES OF ROMAN LAW.

In the letting of things (locatio-conductio rerum), the lo-
cator agrees to deliver to the conductor a thing, whether
movable or immovable, to be used by the latter on con-
"> dition of paying a fixed price.» This phase of the con-

tract relates specially to the leasing of houses or lands—
the conductor, or lessee, being technically called, in the
former case, nguilinus, and in the latter case, colonus. But
whatever may be the particular thing leased, the lessor is
bound to deliver the thing, and the lessee is bound to pay
the price, or rent. Besides these most patent duties, the
lessor, on the one hand, is also bound to guarantee the
tenant against eviction, to reimburse him for necessary
expenses, and to keep the thing in proper state of repair ;
the lessee, on the other hand, is also obliged to pay inter-
est if the rent falls in arrears, and to give up possession
at the expiration of the time specified, or if the rent is
not paid for two years. As to liability for loss, the lessor
not only holds the risk in case of accident, but is respon-
sible for damage resulting from hidden faults in the thing
leased, that is for contributory negligence; and the
lessee, on his part, is responsible for cu/pa levis, or slight
neglect.

Pa In the letting of services (locatio-conductio operarum),
the /ocator agrees to place his services or labor at the dis-
posal of the conductor on the condition of receiving some
fixed price, or wages. In this case, it is the labor which
is let by the workman, and hired by the employer ; and,
as in the previous case, the Jocazor receives the price.
The principal obligations growing out of this contract
are exceedingly simple, and are indicated by the defini-
tion already given. The workman is bound to place his
services at the disposal of the employer and to perform
the labor expected of him in a proper manner; and the
employer is bound to pay the wages agreed upon. With
CONTRACT OBLIGATIONS. 367

reference to any property of the employer which comes
into his hands, the laborer is responsible for fraud and
gross negligence, and even for slight neglect with refer-
ence to any thing specially entrusted to his care.

In the letting of work to be done (locatio-conductio
operis), the locator agrees to place in the hands of the
conductor certain materials, upon which work is to be ex-
pended for the accomplishment of a certain result, on
condition that the Jocator pay to the conductor a certain
compensation. Here the price is received by the
conductor and not by the /ocator as in the previous cases,
But still the essential character of the /ocator remains the
same, in being the person who delivers to the other that
which forms the subject-matter of the contract. Although
the purpose of the contract is to effect some improvement
or modification of the material, such improvement is
merely an accession to the material itself which belongs
to the /ocator. It is, therefore, essential to this contract
that the materials, either wholly or in part, be furnished
by one party and the improvement be effected by the
other, as when silver is delivered by one to the smith to
be wrought into a vase; or goods are furnished to a
carrier to be transported to acertain place; or when upon
one’s ground a building is constructed by a contractor
even with material furnished by the latter, since in this
case the land is the principal material to which the build-
ing accedes. The chief obligations resting upon each
party are sufficiently indicated by the nature of the con-
tract itself. But there are certain distinctive rules
regarding responsibility that need to be noticed. The
one who undertakes to do a piece of work upon the
materials of another is responsible not only for any
damage, however slight, due to his personal negligence,
but also for any injury due to the lack of proper knowl-
368 OUTLINES OF ROMAN LAW.

edge and skill. Moreover, if the work is to be done as a
whole, that is “by the job,” the entire risk remains with
the contractor until it is completed and approved ; but if
it is to be done by the Piece, the risk of those portions
which are approved passes to the /ocafor. In the case of
jettison (lex Rhodia de jactu) where a ship-master contracts
to carry goods belonging to different owners and is
obliged to sacrifice a part in order to save the rest,
the risk is distributed between the several owners of the
goods and the owner of the vessel.

(3) Partnership (socéefas) is a contract by which two or
more persons agree to combine their property or labor, or
both, on the condition of sharing the common profit and
loss. The contract requires that there be some contribu-
tion on the part of each of the parties, whether this be
equal or unequal, alike or unlike. It also requires that
there be some adjustment of the profits and losses be-
tween the parties. In the absence of any special agree-
ment each party has an equal share in the profits and
losses. But this may be modified in any way according
to the will of the parties, with the single exception that
no one can be excluded entirely from a share in the
profits (soctetas leonina).

A partnership may be either gexeral or special, accord-
ing to the extent and purpose of the contributions. A
general, or universal, partnership may be either one
in which everything belonging or in any way accruing to
each of the partners is held in common by them all
(societas universorum bonorum); or one in which everything
arising from the gains of a mercantile or professional
business is contributed to the common stock (societas
untversorum gue ex questu veniunt). A special, or particu-
lar, partnership may be either one which is formed for a
single transaction (societas negotiationis alicujus); or one
CONTRACT OBLIGATIONS. 369

which is formed to effect the joint-ownership in a particu-
lar thing (societas rei unius). The form which is gene-
rally made and which is presumed, if no other is specially
agreed upon, is the business or professional partner-
ship.

The general rights and duties of partners with refer-
ence to each other spring from the nature of the transac-
tion itself. Each one is bound to furnish what he agrees
to furnish, to pay his share of the common expenses and
losses, and to grant to the others their share of the
common gains, These mutual obligations are enforced
by the actio pro socio, In their relations to each other, all
the partners are bound by the acts of each partner, so far
as these acts are consistent with the legitimate object of
the partnership. But in relation to third persons no
partner, speaking generally, is bound by the acts of
another. According to the Roman law there is no im-
plied agency in partnership. Therefore, only the particu-
lar partner who has transacted business with a third
person can be held responsible by that person. As re-
gards responsibility for fault each partner is bound to
exercise the same care over the property and business of
the firm as he does over his own affairs, and he is
liable to his copartners for any loss due to the lack
of such care.

Partnership is dissolved by the expiration of the time
for which the contract was made; by mutual consent of
the parties; by the retirement of one of the partners,
provided this is done in good faith and not for the pur-
pose of defrauding the others; or by the death or insol-
vency of any of the partners.

(4) Mandate (mandatum) is a contract in which one per-
son (mandator) commissions another (mandatarius) to do
something, and which involves a guaranty on the part of
370 OUTLINES OF ROMAN LAW.

the former to secure the latter from loss in the transaction.
The service must necessarily be gratuitous; if a price is
given, the contract becomes Airing. The contract of
mandate is binding if the service to be performed is for
the benefit of the principal alone; of the principal and
the agent ; of a third party ; of the principal and a third
party ; or of the agent andathird party. But if it is
for the sole benefit of the agent it has no legal force.

The agent, or mandatarius, is under obligations to exe-
cute faithfully the terms of the agreement, and to give
up to the principal all the property entrusted to his care,
or all the proceeds resulting from the execution of the
commission. The principal,-or mandator, on his part, is
bound to reimburse the agent for all necessary expenses,
and to protect him from any loss incurred in faithfully
executing the mandate. If the agent, however, transcends
his commission, and, for example, pays for a thing a
higher price than that authorized, he cannot recover the
excess from the principal.

In this contract, the general rule regarding responsi-
bility for fault is subject to an exception, since the agent,
even though he derive no benefit from the contract, is
liable not only for fraud and gross negligence, but also
for slight neglect. An exceptional degree of responsi-
bility is, in this case, imposed upon the agent on account
of the peculiar nature of the contract itself, which re-
quires the exercise of special care for its proper execu-
tion.

It must be observed that the Roman contract of man-
date does not involve the modern idea of agency, whereby
the principal is brought into direct legal relation to a
third party through the acts of his agent. The Roman
contract establishes a personal relation only between the
mandator and the mandatarius ; the latter alone is bound
CONTRACT OBLIGATIONS. 371

by his transactions with the third party, although he has
himself a personal right against the mandator to be in-
demnified for obligations thus incurred, if properly within
the scope of the mandate. But it may be noticed in
passing that the modern doctrine of representation was
partly realized in the Roman law; as, for example, in the
case of slaves and children with reference to the father ;
in the case of a shipmaster in relation to the owner of a
vessel (exercifor); and in the case of the manager of a
business (¢zstzfor) with reference to his employer.

6. Obligations Quasi Ex Contractu.—In addi-
tion to the obligations that arise from contracts properly
so called, there are others that grow out of certain rela-
tions existing between persons, whereby they become bound
to each other by duties similiar to those arising from a
contract. Such obligations are said to arise guasi ex con-
tractu, The mere fact of holding a particular relatior
to another person may, in certain cases, impose specia!
obligations which are enforceable by a legal action. A
number of these cases are specified in the Roman law.

(1) Wegotiorum gestio is the assumption on the part of
‘one person of the business of an absent person, without
an express mandate. In this case, if the assumption is
made in good faith, the law imposes upon the parties the
same reciprocal rights and duties as those that arise from
the mandatum.

(2) Zutele administratio, or the administration of the
estate of the ward, necessarily imposes reciprocal duties
on the part of the tutor and the ward, the former being
legally bound to administer faithfully the estate of the
ward, and the latter to indemnify the tutor for necessary
expenses incurred in the execution of his trust.

(3) Ret communis administratio, or the administration of
a common thing, creates an obligation, whereby two or
372 OUTLINES OF ROMAN LAW.

more persons who acquire a thing in common, as by joint
legacy or gift, are each liable to the other for its proper
division.

(4) Hereditatis aditio, or the acceptance of an inheri-
tance, imposes upon the heirs the obligation to divide the
estate in a proper manner, to settle all accounts relating
to it, and to pay all legacies that the testator has legally
made.

(5) Zndebiti solutio, or the payment by mistake of
money, not due either by a natural or legal obligation,
imposes upon the person to whom such money has been
paid the duty to make restitution.

7. Dissolution of Contract-Obligations.—The
obligations arising ex contractu or quasi ex contractu, exist
until they are discharged in a manner prescribed by law.
With the proper dissolution of the obligation the debtor
is no longer liable to an action. The various modes of
aissolving obligation may be grouped as general and
special.

(1) The general modes are those which are applicable
to obligations arising from any kind of contract. They
include the following : solutfo, or the actual payment of:
tne debt or fulfilment of the obligation, either by the
debtor himself or by another for him ; compensatio, or
the offset of one debt by another existing between the
same parties ; confusio, or the merging of the debtor and
creditor in the same person, as when the debtor becomes
the heir of the creditor ; od/atio, or the tender of the
money due to the creditor, which may be formally done
by placing it subject to the order of the court; and
novatio, or the dissolution of one obligation by the forma-
tion of a new one to take its place.

(2) The special modes are those which are peculiar to
obligations arising from certain kinds of contracts. They
CONTRACT OBLIGATIONS. 373

include the following: acceptilatio, or the acknowledg-
ment in the form of a ‘‘stipulation,” that the debt has
been paid—a mode peculiar to verbal contracts, but
fictitiously applied to others; and contraria voluntas,
when parties recede from an obligation by mutual con-
sent—a form peculiar to consensual contracts.

References. — Gaius, III., 88-181; ‘‘Inst.,” III., 13-29;
“Digest,” De in integrum restitutionibus (4), De rebus creditis, etc,
(12), Mandati, vel contra (17), De contrahenda emptione, etc. (18),
De actionibus empti et venditi (19), De verborum obligationibus (45),
De fide jussoribus et mandatoribus (46) ; ‘‘Code,” De rebus credits,
etc. (4) ; Poste’s ‘‘ Gaius,” pp. 289-367 ; Sandars’ ‘‘ Justinian,” Eng.
ed., pp. 408-488, Am. ed., pp. 396-478 ; Halifax, ‘‘ Roman Law,”
pp. 63-72; Mackenzie, ‘‘ Roman Law,” pp. 194-241, 248-252;
Phillimore, ‘‘ Private Law,” pp. 238-327; Tomkins and Jencken,
“Modern Roman Law,” pp. 353-378 ; Hunter, ‘‘ Roman Law,” pp.
279-486 ; ‘‘ Dict. Antiqg.” (Odligationes, Emptio et venditio, Soctetas,
Mandatum ); Ortolan, ‘‘ Instituts ” IIL, pp. 128-410 ; Demangeat,
“ Droit Romain,” II., pp. 163-431 ; DuCaurroy, “Tnstituts,” III,
pp. 7-233; Molitor, ‘‘ Les Obligations en Droit Romain,” tom. 2;
Deurer, ‘‘Gesch. und Inst., §§ 189-196 ; Bocking, ‘‘ Rém. Privat-
recht,” S. 135-148; Marezoll, ‘ Lehrbuch,” §§ 126-144; Vering,
“Gesch. und Pandekten,” §§ 195-207 ; Arndts, ‘‘ Pandekten,” §§
278-363 ; Vangerow, ‘‘ Pandekten,” $§ 616-673 ; Puchta, ‘ Pandek-
ten,” §§ 303-374 ; Windscheid, ‘‘ Pandekten,” $§ 362-450 ; Pothier,
“Treatise on the Law of Obligations, or Contracts,” Eng. trans.
CHAPTER III.
OBLIGATIONS ARISING FROM DELICTS.

Besipes the obligations already described, which arise
from contracts and relations that are assimilated to con-
tracts, there is another class of obligations comprising
those which arise from delicts, or private wrongs. These
two'classes of obligations are in a certain sense correlative
to each other—the one being based upon beneficial acts,
and the other upon injurious acts. In either case the
two parties concerned are bound to each other by a win-
culum juris, and are placed in the legal relation of
“debtor” and “ creditor” in the broadest sense of these
words. If we look at a delict from one point of view—
simply as an injury done to a person’s property or his
body or his reputation—it would seem to be merely an
infringement of a right zz rem, and not properly related
to obligations, or rights zz personam. But, according to
the Roman view, a delict is something more than an in-
fringement of a right zz rem; it is, like a contract, re-
garded as_an investitive fact giving rise to a right i
personam.

1. Delict as a Ground of Obligation.—The
Roman view of delict, as furnishing the proper ground
of an obligation, seems to be justified by the distinction
between rights 2” rem and rights in personam. A right in
rem, though availing in a negative manner against the
world at large, really terminates in the thing that is the
object of the right. When infringed upon, whatever may
be the motive of the infringement, the vea/ right is in

374
*
DELICT OBLIGATIONS. 375

every respect vindicated by a re-establishment of the right
over the thing itself. It involves no further remedy than
the recovery of that of which one has been deprived.
It requires nothing more than restitution. Even in the
case of theft, as conceived by the Roman law, the real
right is fully vindicated by a vea/ action for the recovery
of the thing stolen. If the law merely protected the
real right, it would grant no further redress ; and if the
owner were completely satisfied with the recovery of the
thing, there would be, so far as he is personally concerned,
no need of further redress. But because he is not thus
satisfied, the law grants to him a ersonal right, enforce-
able by a personal action, to compel the offender, not
simply to restore the thing, but to give satisfaction for
the injury done. By such an injury, a vinculum juris
is established between the offending and the offended
party ; and this legal bond, whatever may be its specific
marks, possesses the same generic character as that arising
from a personal agreement to pay a certain sum of
money. It establishes a claim which can be enforced by
a legal action,

This view is consistent with the idea of private revenge
which lies at the historical basis of the law of private
wrongs, and also with the fact that, as the idea of private
revenge passes away with the progress of civilization,
acts,that were once looked upon as private delicts, as
theft and robbery, are transferred to the class of public
crimes, and punished not for the sake of giving satisfac-
tion to the offended party, but for the sake of protecting
the community at large. To properly understand the
Roman idea of delict, it must therefore be borne in mind
that its legal significance consists, not in being a violation
of a right 7» rem, but in giving birth to a right zm per-
sonam. According to this view, delicts are properly co-
376 OUTLINES OF ROMAN LAW.

ordinated with contracts, since both are alike investitive
facts giving rise to legal obligations.

2. General Features of a Delict.—A delict may
be defined as an injurious act which is regarded as suffi-
cient to impose upon the offender an obligation to give

 

satisfaction to the offended party for the evil done. It is
thus distinguished from a contract, which involves a con-
currence of wills and a beneficial relation between the
parties. Itis also distinguished from those injuries which
may arise in connection with a contract, through fault
or otherwise, and which simply modify the extent of the
contract-obligation already existing. It is, in fact, such
an injurious act which, even though there were no obli-
gation already existing between the parties, would of it-
self create such an obligation. A private delict must also
be distinguished from those public wrongs, or crimes
(delicta publica), which, though they may cause personal
injury, are punished by the state as offences against the
whole community. The fundamental idea of a private
delict is that of an act creating an injury which. can be
remedied only by the giving of personal satisfaction.
The penalty (Jena), or “damages” imposed in such a
case, is solely for the benefit or satisfaction of the person
injured.

While the specific acts to which the law attaches the
character of delicts may change with the progress of
society, there are certain features that must in general
characterize an injurious act in order that it may give
rise to a legal obligation.

(1) On the part of the offender, the act must be a cul-
pable one, that is, one for which the offender himself is
to blame. An act is not culpable merely because it is
injurious. In the first place, it must be voluntary, or
capable of being referred to the sphere of free volition
DELICT OBLIGATIONS. 379

—whether it be prompted by a criminal intent, that is, a
conscious purpose to inflict injury; or due to criminal
negligence, that is, the failure to use that precaution
which every one is bound to exercise in performing every
act. In the second place, it must be unsanctioned by
law, that is, not involved in the exercise of one’s own
legitimate rights. Paulus says: “‘ Nemo damnum facit,
nisi qui,id fecit, quod facere jus non habet (D. 50, 17,-
151).

(2) On the part of the offended person, the act must
be one which produces an injury capable of being esti-
mated in pecuniary damages. Consequently, the injury
must be actually inflicted, and not merely contemplated
or attempted; and in the second place, it must be real
not merely fanciful. The “damages,” however, may be
not simply compensatory, that is, to make amends, but
penal, that is, to give additional satisfaction to the in-
jured party.

3. Different Kinds of Delicts.—In specifying the
various kinds of wrongs that give rise to personal obliga-
tions, the Roman law includes certain offences which in
the modern law are looked upon rather as crimes. In
the estimation of damages, it also preserves to a greater
extent than the modern law the idea of penal satisfaction
which had its root in the primitive custom of private
revenge. In the Roman law at the time of Justinian,
there were recognized four kinds of delicts, viz.: theft,
robbery, damage to property, and injury to the person.

(1) Theft (furtum) is defined by Paulus to be “the
fraudulent taking, for the sake of gain, of that which be-
longs to another, whether a thing itself or its use or its
possession—an act which is forbidden by the natural
law” (D. 47, 2, 1, 3). The two essential elements of
theft are a wrongful intent, and an actual appropriation.
378 OUTLINES OF ROMAN LAW.

A wrongful intent involves a knowledge that the object
belongs to another, and a knowledge that the act is done
without the consent of the owner. But a fraudulent in-
tent does not alone constitute theft ; there must be com-
bined with it an actual exercise of physical force over
the object (contrectatio fraudulosa). There may be theft
of a thing (rei furtum), as when one purloins the goods
belonging to another. There may be theft of use (usus
furtum), as when a depositary uses for his own benefit,
and without the consent of the owner, a thing committed
to his charge, or even when a borrower puts a thing toa
use different from that for which it is lent. There may
also be theft of possession ( possessionis furtum), as when
a debtor fraudulently takes from a creditor a thing which
has been pledged to the latter as a security for debt.
In the last case, a person may be guilty of theft in taking
wrongful possession of his own property. Not only are
those persons guilty of theft who directly perform the
wrongful act, but those also who knowingly assist in the
act or contribute to it.

In estimating the degree of liability resulting from
theft, the Roman law distinguishes between theft “ mani-
fest” and “not manifest.” A manifest theft (/urtum
manifestum) is one in which the thief is taken in the act,
or near the place of the theft, with the stolen property in
his possession ; in this case, the thief is made liable for
four times the value of the property stolen. In other
cases of theft ( furtum nec manifestum), the thief is liable
for twice the value of the property. The only satisfactory
explanation of this distinction is to be found in the fact,
that originally the penalty was imposed to satisfy the
feeling of revenge on the part of the offended person,
—which feeling would naturally be greater in the former
than in the latter case. i ae

a

Ui
a.
Lae
DELICT OBLIGATIONS, 379

The purely personal obligation arising from theft was,
in the Roman law, enforced by an action for penal
damages (actio folly. But by pursuing this personal-
right against the thief, the owner did not forfeit his real
right to the thing itself. He might therefore recover
the possession of the thing from the thief in the same way
as he might from any other person—by a real action
(vindicatio) ; and if the thief had lost possession, he might
recover its value with interest (condictio furtiva). The
right of personal action against the thief belonged not
only to the owner of the stolen property, but also to any
person who had a beneficial interest in the thing—for
example, a dona fide possessor, or a usufructuary, or a
person deriving an interest from another’s property as
the result of a contract. In the modern civil law, the
action for penal damages in the case of theft has become
obsolete, which fact illustrates the tendency to eliminate
the idea of personal revenge from the law of delicts.

(2) Robbery (vapina) is the unlawful seizure of an-
other’s property, accompanied by force. To constitute
robbery, in the strict sense, it is necessary that the act
be done with violence and with evil intent. In early
times, this offence applied only to movables ; but by a late
constitution, violent dispossession in the case of immova-
bles was assimilated to robbery. The thing taken need
not be the property of the one dispossessed. It is sufficient
that the possessor have an interest in it, or even that
it be among his goods, as in the case of deposit.

The liability of the offender was, in the Roman law,
enforced by an action introduced by the preetor (v7 dono-
rum vraptorum). If the action was brought within a year,
four times the value of the property might be recovered.
But if the offended party suffered a year to elapse before
bringing the action, he could recover the simple value
380 OUTLINES OF ROMAN LAW.

only. Moreover, the quadruple damages allowed in the
former case were not, as in the case of theft, purely penal,
- but included the restitution of the property or its value.
The lighter civil penalty attending robbery, as compared
with that of theft, is perhaps explained by the fact that
one had less opportunity to protect himself against the
thief than against the open robber, in repelling whom
one was justified in using any amount of force necessary
forthe purpose. In robbery, as in theft, the offender was
also liable to a criminal as well as a civil prosecution.

Although robbery, strictly speaking, involved a criminal
intent, a constitution was issued in the time of Valentinian
whereby the violent seizure of any kind of property, even
with a lawful intent, was made an actionable offence. It
was established that if a person who was a rightful owner
reclaimed his property by force, he should be obliged to
forfeit it to the person from whom he took it ; and if he
were not the rightful owner, although believing himself to
be such, he was bound not only to restore it, but also to
pay damages equal to the value of the property.

(3) Damage to property (damnum injuria datum) com-
prehends every wrongful injury to the property of another
by which it is destroyed or its usefulness is impaired. To
constitute this offence there must be an actual diminution
in the value of the property, capable of being estimated
in money; and the injury must result from an evil intent
(dolus) or from culpable negligence (cu/pa). The ques-
tion whether negligence is culpable must be determined
by the circumstances of the case, and may sometimes de-
pend upon unskilfullness or even lack of proper knowledge.
The liability of the offender may, however, be modified
by contributory negligence on the part of the owner of
the injured property, as when the latter has the power to
prevent the injury and fails to exercise it.
DELICT OBLIGATIONS. 381

The extent of liability in case of damage was fixed in
a general way by the Zex Aguilia (B. C. 286), alaw which
superseded the earlier provisions of the XII. Tables. By
this law, if a person wrongfully killed a slave or animal
belonging to another, he was liable to pay, not the actual

value at the time of its death, but the greatest value that
it had possessed during the previous year. Moreover, if
a person caused any kind of wrongful damage to a slave,
animal, or other property belonging to another, he was
liable to pay the greatest value possessed by the thing
during the previous thirty days. The expansion of this
law relating to damage may be seen from the actions sub-
sequently granted to the injured party. An action
founded upon the text of the Aquilian law (actio directa
Aguiliz) could be brought only when the damage was
caused by an actual contact of the offending party with
the body of the injured thing (corpore corpori). The de-
fect of this action was supplied by the praetor who gave
an equitable action (actio utilis Aguiliz) against a person

who had in any indirect way inflicted an injury upon the
substance of another’s property (zon corpore sed corport).
But when an injury was caused to the owner of a thing
where there was no contact of the offending party, and
when the thing itself was not injured (ec corpore nec cor-
port), as when one assisted in the escape of another’s
slave, the owner could have recourse to an action (actio
in factum) which was given in general cases of damage
and which afforded a compensation warranted by the cir-
cumstances of the case. Still further, if the damage was
caused by the property of another, as a slave or an ani-
mal, the owner of such slave or animal was liable to the
actio noxalis, an action which was derived from the XII.
Tables, compelling the surrender of the offending object
or the payment of “damages.” Finally, in case damage
382 OUTLINES OF ROMAN LAW.

was not actually done (facfum) but was apprehended (77-
fectum), the threatened party has a special remedy (damni
infectt cautio) by which he might obtain a security against
any loss that might reasonably be expected.

(4) Injury to the person (¢jwria) includes every ma-
licious act which affects harmfully the body or reputation
of another. Such an injury is done by assaulting another,
by publicly reviling him by word of mouth or by writing,
by proceeding against him as though he were insolvent
when he is not, by attempts made against chastity, or by
any other contumelious act directed against a person’s
liberty or honor. An injury is committed against a person
himself if committed against one under his power. In the
Roman law, an injury was said to be aggravated (a¢rox)
when the circumstances were such as to increase the
extent of the outrage. Such an aggravation might be
due to the mode in which the act is performed, as when
one is beaten with a club; or to the nature of the place,
as when one is assaulted in a public assembly ; or to the
quality of the persons injured, as when an officer is as-
saulted by a subordinate ; or to the part of the body in-
jured, as when a blow is struck in the eye.

The penalty for injuries to the person was, in the XII.
Tables, based upon retaliation, and compensation by
fixed rates. But the pretor allowed the injured party to
estimate the extent of the injury and to make a claim for
the damages that would satisfy him, which claim the
judex might admit or lessen as he thought proper. But
in the case of grave injury (¢juria atrox), the amount of
damages was fixed by the magistrate, which the judex
was expected to grant if the guilt was established, It
may also be observed that the offender was liable not only
to a civil action, but also to a public prosecution as a
criminal,
DELICT OBLIGATIONS. 383

4. Obligations Quasi Ex Delicto.—In addition to
the delicts already mentioned, there were other cases of
wrong-doing which gave rise to legal obligations. The
principles governing these cases were not, however, es-
sentially different from those which applied to delicts
technically so-called, The law was simply extended to
meet cases not hitherto provided for ; and the obligations
growing out of such cases were said to arise guast ex
delicto, Four examples of this kind are given in the “In-
stitutes ”

(1) If a judex made a cause his own, that is, gave an
improper decision, whether through fear, favor, corrup-
tion, or ignorance, he was made liable for civil damages
to the party suffering from such improper decision.

(2) If a person occupied a house or apartment from
which any thing was thrown, causing injury to another’s
property or person, he was liable for twice the value of
the injury done, or an amount which the judex should es-
timate as proper under the circumstances.

(3) If a person allowed any thing to be suspended over
a public way where it was likely to fall and do harm to
one passing by, he was liable to a penalty fixed by law;
and in this case, the action could be brought by any one
whose safety was threatened.

(4) A master of aship or keeper of an inn was liable
for any damage to property, or loss by theft, occasioned
by any one employed in his service. In this case, as well
as in the previous cases of guas? delict, the action brought
was usually the actio in factum, But in the present in-
stance, the injured party was at liberty to avail himself of
the actio furti, or the actions based upon the Aquilian
law, and thus make liable the actual wrong-doer.

It may be observed, in conclusion, that the general
conception of a delict as a wrongful act creating a per-
384 OUTLINES OF ROMAN LAW.

sonal liability on the part of the offender to the offended
party, survives in the modern civil law of delicts and in
the English law of “ torts.”

References.—Gaius, III, 182-225 : “Inst.,” iv., I-53 “ Di-
gest,” De dolo malo (4, 3), De condictione furtiva (13), De doli malt
et metus exceptione (44, 4) ; De privatis delictis (47) ; ‘‘ Code,” De dolo
malo (2, 21); De condictione furtiva (4, 8); De lege Aquilia (3, 35) ;
Vi bonorum raptorum (9, 33) ; De injurtis (9, 35); Poste’s ‘‘ Gaius,”
pp- 367-398 ; Sandars’ ‘‘ Justinian,” Eng. ed., pp. 489-517, Am. ed.,
PP. 479-507 ; Hallifax, ‘‘ Roman Law,” pp. 72-79; “ Dict, Antiqq.”
(Crimen, Furtum, Bona rapta, Damnum injuria actio, Injuria) ;
Mackenzie, ‘‘ Roman Law,” pp. 242-245 ; Phillimore, ‘‘ Private Law
among the Romans,” pp. 170-196 ; Hunter, ‘‘ Roman Law,” pp. I-11,
86-109 ; Tomkins and Jencken, ‘‘ Modern Roman Law,” pp. 378-395 ;
Ortolan, ‘‘ Instituts,” III., pp. 411-471 ; DuCaurroy, “ Instituts,”
III., pp. 224-272 ; Demangeat, ‘‘ Droit Romain,” IT., pp. 432-488 ;
Molitor, ‘‘ Les Obligations en Droit Romain,” tom. 3; Marezoll,
“Lehrbuch,” §§ 145-150; Deurer, ‘‘ Gesch. und Inst.,” § 197;
Backing, ‘‘ Rom. Privatrecht,” S. 148-152, 154, 155 ; Vering, ‘* Gesch.
und Pandekten,” §§ 206-217 ; Puchta, ‘‘ Pandekten,” §§ 375-387;
Vangerow, ‘‘ Pandekten,” §§ 674-706 ; Arndts, ‘‘ Pandekten,” §§
322-339 ; Windscheid, ‘‘ Pandekten,” §§ 451-472.
BOOK III.

THE LAW OF ACTIONS—JUS ACTIONUM.
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CHAPTER I.
THE CHARACTER OF CIVIL REMEDIES.

Tue last general branch of the Roman law, as set forth
in the “Institutes,” is that which treats of “actions” in
the broad sense of this word, comprising the various
forms of civil remedies and the modes of civil procedure.
It is evident that the legality of a right depends ulti-
mately upon its protection by the state. However clearly
the “subjects ” and the “objects” of a right may be de-
fined in the law, and however definitely its extent and
the modes of its acquisition may be indicated, if the right
itself be uot protected from invasion, or if there be no
means of redress in case of infringement, it has properly
no legal character or significance. The existence of a
right involves the possibility of a wrong; but the legal
validity of a right involves the possibility of preventing
or redressing such a wrong; and of doing this not by
private force, but by means established by the public
authority.

In many respects the law of actions forms the most im-
portant part of a nation’s jurisprudence. It lies at the
historical basis of the whole legal system. The substan-
tive portion of the law is, in fact, born of procedure. At
first the granting of remedies determined, in particular
cases, who would be guaranteed protection, and showed
what were the things with reference to which that protec-
tion would be granted. In’other words, it developed the
consciousness of legal personality and of objective legal
rights. In the process of historical growth, the law of

387
388 OUTLINES OF ROMAN LAW.

actions is thus antecedent to the law of persons and the
law of things. But as society advances, the idea is grad-
ually developed that a human right is something essentiat
to human nature; that it may exist antecedent to a
wrong; and, consequently, that the state, by becoming
the administrator of justice, is bound to protect the
natural rights of men, whether these rights have hitherte
been protected or not. In primitive society the principle
exists—wbi remedium ibi jus ; and only with a more highly
developed civilization does the maxim become current—
ubi jus tbi remedium.’ As the state authority becomes
well differentiated, the ultimate guardian of rights is that
branch of the state that exercises judicial power; and
only through the remedies that it employs do rights
obtain a legal sanction. :

I. The Roman Judicature.—The methods adopted
by the Roman state for the legal protection of rights may
be considered first with reference to the judicial system,
or the body of persons authorized to administer justice.
Before the time of Diocletian such persons included
those who exercised jurisdiction (jus dicere, jurisdictio)
and those who pronounced judgment (judicium), but
after that time these two functions were united in the
same persons.

(1) Jurisdiction, in the language of the Roman law,
involves the power to grant an action (dare), to declare
the law (dicere), and to vest the title of disputed property
by adjudging it to one of the litigants (addicerc) ; it is
also accompanied by the power to enforce obedience to
the judgment of the court (imperium mixtum). The exer-
cise of jurisdiction, under the Republic, belonged by way
of eminence to the pretor, although other magistrates,
such as the zedile, possessed some limited judicial power.
The first preetor (B.C. 366), who inherited his functions
CIVIL REMEDIES. 389

from the consul, and who exercised jurisdiction within
the city (pretor urbanus), was supplemented by a second
praetor (B.C. 246), who took cognizance of cases through-
out’ Italy in which foreigners were concerned (praetor
peregrinus). With the conquest of Sicily, Sardinia, and
the two Spains, four new pretors were appointed to ad-
minister justice in the new provinces. Before the fall of
the Republic the number had increased to sixteen, And
after the establishment of the Empire special przetors
were appointed for cases relating to trusts, to guardian-
ship, and to the jiscus.

The functions of the pretors became greatly limited
by the appropriation of judicial power on the part of the
Emperor, who became the supreme judge of the state
and who was assisted by a jud‘cial council (consistorium,
or auditorium). Moreover the pretorian praefects ob-
tained, in connection w:t.. the Emperor, a general juris-
diction throughout “ue empire; and the prefect of the
city acquired judicial power at Rome, and appellate juris-
diction over the pretors. Outside of Rome and Italy,
local jurisdiction was exercised by the provincial gover-
nors and the municipal magistrates, subject to the general
appellate authority of the preetorian prefects and the
Emperor.

(2) An important feature of the judicial system of
Rome during the time of the Republic and the Empire
was the fact that the pronouncing of judgment was not,
as a general thing, left to the magistrate, but to private
persons invested by the magistrate with a judicial commis-
sion to try thecase inhand. Such persons were generally
called judices. They bore some resemblance to the Eng-
lish jurors in being chosen from the non-official class of
citizens and in dealing more especially with the facts of
the case. But at Rome there was generally one Judex
300 OUTLINES OF ROMAN LAW.

only, who was appointed in a civil case and to whom was
left the whole investigation and decision, after the issue
had been joined before the magistrate. The person to
whom the case was referred was sometimes called an
arbiter, when a greater degree of latitude was allowed in
pronouncing the sentence. When several persons were
commissioned to decide a case, they were called recupera-
tors ; and it is generally supposed that it was not neces-
sary for them to be drawn from the usual judicial lists
from which the judices and the arbiters must be selected.

In connection with this feature of the judicial system
should be noticed the centumviral court (cextumviri),
concerning which—although it seems to have existed
from very early times down to the later Empire—very.
little is definitely known. It was a permanent tribunal
made up of over a hundred members (from 105 to 180),
presided over by the pretor, and exercising the same
kind of authority as that exercised by the judices. The
causes that came under its cognizance were probably
those more closely related to the old jus cévile, as ques-
tions regarding Quiritarian ownership, and certain ques-
tions relating to status and inheritance. The antiquity
of this court is evident from the fact that a spear, the
ancient symbol of ownership, continued, as Gaius de-
clares, to be set up in its place of meeting.

(3) The new phase which the judicial system assumed
at the time of Diocletian, and which remained down to
the time of Justinian, grew out of the exclusion of the
non-official class from the administration of justice, and
the union of jus and judicium in the hands of the terri-
torial magistrates. The granting of sole judicial power
to the governors of the przefectures, the dioceses, the prov-
inces, and the cities, created a complete hierarchical sys-
tem of courts, subject to the supreme jurisdiction of the
CIVIL REMEDIES. 391

Emperor. Over the prefectures presided the new pre-
torian preefects ; over the dioceses, the vicars ; over the
provinces, the correctores and the presides ; and over the
cities, the duumviri and the defensores civitatis, The pre-
fects of Rome and Constantinople retained judicial
authority within these cities; and the bishops obtained
jurisdiction in ecclesiastical matters.

These comprised the most important persons who at
various times in the history of the Roman state were con-
cerned in the administration of justice. In close con-
nection with the courts there also grew up two classes of
professional persons, viz.: the assessors (assessores), who
gave legal advice and assistance to those administering
justice ; and the advocates (advocat?), who aided the liti-
gants in the conduct of their cases.

2. Various Classes of Action.—An action is the
means by which the plaintiff (actor) and defendant (reus)
submit their issues to a public authority for adjudication.
It was defined by Celsus to be “the right of pursuing by
judicial means that which is gne’s due” (D. 44, 7, 51).
This definition, though framed when the formulary sys-
tem was in vogue, was preserved by Justinian as suffi-
ciently concise for the purpose of his text-book. The
changes that had taken place in the organization of the
courts and in the forms of procedure did not modify the
essential idea of an action as the judicial means for the
enforcement of a legal right. In reviewing the various
classes of actions in the Roman law, it will be evident
that an attempt was made to afford the most ample pro-
tection for all the private rights of the citizen. The
classification was based upon a number of different prin-
ciples as follows:

(1) The first and most important division is that with
reference to the nature of the rights to be enforced.
392 OUTLINES OF ROMAN LAW.

Upon this principal all actions are either real or personal
(actiones in rem, in personam). A real action, which is
also called vindicatio, is brought to enforce a right avail-
ing against all the world. It is intended simply to vindi-
cate a person’s right over that which he claims as already
his own, as is shown in the typical words used in the
formula—Si paret Auli Agerii esse rem. Such an action
might be brought to enforce the right to property (ved
vindicatio), to affirm or deny the existence of a servitude
(actio confessoria, negativa), or to determine by a pre-
liminary process a question relating to status (actio
prajudicialis).

A personal action, otherwise called condictio—a name
derived from an old “action of the law” introduced
after the time of the XII. Tables, as Gaius says, by the
lex Silia and the lex Calpurnia,—is brought to enforce a
right availing against some determinate person. It is in-
tended to enforce a claim which is due to one person
from another, as is shown in the words of the formula:
St Mumerium Negidium Aulo Agerio dare oportet. These
actions are based upon an ws obligation,” and are as vari-
ous in their character as the obligations upon which they
are founded. They may depend, in general, upon a con-
tract, or a relation similar to that growing out of a con-
tract (actiones ex contractu, quast ex contractu) ; or they
may depend upon a delict, or a similar offence (actiones
ex delieto, quast ex delicto). And more specifically, every
particular right zz personam has its corresponding
action 72 p&sonam.,

There are, moreover, certain actions which are regard-
ed as mixed (actiones mixt@), since they seem to involve
the enforcement of both real and personal rights. Such
are the actions for the division of an inheritance, the di-
vision of common property, or the fixing of the boundaries
CIVIL REMEDIES. 393

of adjoining estates (actiones familia herciscunda, communt
aividundo, finium regundorum).

(2) With respect to their sources, actions are divided
into those derived from the civil law and those derived
from the pretorian law (actiones civiles, pratorig). Even
in the latest period of the Roman law there were many
actions, both real and personal, the origin of which was
traced back to the jus cévile. But there was a large
number of others, both of a real and personal character,
which the pretor had introduced to afford redress in
cases not provided for by the ancient civillaw. From this
source, arose, for example : the actio Publiciana, to enable
a bona-fide possessor to recover a thing that was lost be-
fore his right had matured by prescription into legal own-
ership ; the actio Pauliana, to enable creditors to recover
goods fraudulently alienated by their debtors ; the actio
Serviana, to enable the proprietor of an estate to recover
goods pledged by a tenant as a security for rent ; andthe
actto guast Serviana, to enable any creditor to recover
goods pledged by any person as a security for debt,—
called also actio hypothecaria,

Besides the special actions above named, there were
others of a more general nature that sprang from the
pretor’s jurisdiction. The praetor was accustomed to
grant remedies, based not merely upon a well-recognized
legal right, but upon a right analogous to that already
protected by the law; such remedies were called
actiones utiles. We also introduced what were called
actiones in factum, which were based, not upon a
strictly legal right or one properly analogous to it,
but upon what seemed to be just and equitable in
the circumstances of the particular case.

(3) With reference to the object for which they were
brought, actions were divided into those brought for the
394 OUTLINES OF ROMAN LAW.

recovery of something or its equivalent value, and
those brought for the recovery of penal damages as a
satisfaction for injury done (actiones prosecutoria, panales.)
The former included all real actions, and those personal
actions which had for their object the delivery of a thing
or the recovery of merely compensatory damages. The
latter included such actions ex delicto as required ad-
ditional or exemplary damages, which might be double,
treble, or quadruple the amount of the actual loss inflicted.

(4) There was a further division with reference to the
power granted to the judge (dex). In the so-called ac-
tions strict#i juris, there was no discretion whatever
allowed to the judge, who was obliged to decide strictly ac-
cording to the directions laid down in the formula. Such
actions were limited to those brought for the enforcement
of unilateral obligations, and for condemnation in a cer-
tain fixed amount (cerfum). But in the actions done fidei,
more latitude was allowed to the judge, resulting either
from the direction contained in the formula (quidquid
dare oportet ex bona fide), or from the general nature of
the obligations to be enforced ; for example, those arising
from deposit, mandate, loan, pledge, and from the con-
sensual contracts. In these cases the judge was per-
mitted to take account of the circumstances of the case,
the good or bad faith of the parties, the counter-claims
that might be presented, and to estimate the damages as
seemed to him just. These actions were therefore said
to be for an uncertain amount (cncertum), Under
this head were also included certain other actions called
arbitrari@, in which the case was referred wholly to the
arbiter, who was at liberty—after satisfying himself that
the claims of the plantiff were legal and just—not only to
give judgment that the defendant satisfy the specific
demands of the plaintiff, but, in case of his refusal, to
CIVIL REMEDIES. 395

condemn him to pay damages, which might be either
compensatory or penal.

(5) Actions are again considered with reference to the
persons against whom they may be brought. As a
general rule an action can be brought against him only
with whom a contract has been made, or by whom an in-
jury has been performed. But the close relation existing
between one person and those under his power renders
the former liable, in certain cases, for acts performed by
the latter. An action which could thus be brought
might be based upon a contract or upon a delict.

In the first place, an action could be brought against a
master to enforce a contract made by a slave in the
following cases: when the latter had acted upon the
master’s express command (actio guod jussu); when he
had been commissioned to act as the commander of
a vessel belonging to the master (acto exercitoria) ; or
when entrusted with the management of a shop or
any particular business belonging to the master (actio
institoria), There were a few other cases involving a
similar principle, which need not be enumerated here.
The same general rule that applied to the slave applied
also to the son under power.

In the second place, the master was subject to an
action in the case of a delict performed by a slave (actio
noxalis), in which case the master could make pecuniary
amends or deliver the slave up to the injured party. In
early times this principle applied as well to the son under
power ; but, afterward, the father was liable simply for
pecuniary damages for an injury performed by a son. A
“noxal” action could also be brought against the
owner of a beast which had caused an injury to any

one.
(6) Finally, actions were divided into perpetual and
396 OUTLINES OF ROMAN LAW.

temporary according to the period of time that must
elapse before which the right to bring them ceased (ac-
tiones perpetua, temporales). In the earlier law, all actions
founded upon the civil law, upon a senate decree, or
upon an imperial constitution were absolutely unlimited
as to their duration; while those based upon the
pretorian law lasted for one year only. But a con-
stitution issued by Theodosius II. imposed a general
limitation upon all actions, From this time those actions
were called “perpetual” that did not expire before the
lapse of thirty years; and those that expired before
the lapse of that period retained the name of “tem-
porary.” The effect of the later legislation was, more-
over, to extend the period of the pretorian actions to
thirty years, and thus to make them “ perpetual ”—except
in the case of those founded upon a delict and involving
penal damages, which were still limited to a single
year.

The right of action, during the legal period of its dura-
tion, did not, as a general rule, become extinct by the
death of either party ; but it was transmissible to the
heir of such party. The principal exception to this rule
related to those actions arising from delicts—which were
not allowed against the heir of the wrong-doer, although
they were (with the exception of the action for personal
injuries—actio injuriarum), retained by the heir of the
injured party.

3. Exceptions and Replications.—We have thus
far considered the various remedies in which a person, by
becoming a plaintiff in a suit, might protect himself from
any unjust invasion of hisrights. But the law provided
a further remedy, whereby, after the institution of a suit,
the defendant might protect himself from any unjust de-
mands on the part of the plaintiff. Ordinarily, the claims
CIVIL REMEDIES. 397

set forth in a civil action might be met in one of two
ways : either, in the first place, by an absolute denial, that
is, a denial.of the facts upon which the plaintiff founds
his claims, or of the legal consequences which he attri-
butes to such facts ; or, in the second place, by a quali-
fied denial, or the introduction of new facts which show
that the plaintiff's claims, though originally well founded,
have been destroyed sso jure, as, for example, by the
payment of a debt. Such defences were permissible from
the very nature of the action itself and required no modi-
fication of the formula.

But there were other defences of such an independent
character as to introduce new questions of right and to
modify the contents of the formula. Such defences were
called exceptions (exceptiones). They possessed the
character of counter-actions brought by the defendant,
who thereby asserted independent rights or claims of his
own, tending to modify or neutralize the claims brought
against him by the plaintiff. The defendant himself thus
became a plaintiff as to the matter introduced. Ulpian
says: “Agere etiam is videtur, qui exceptione utitur ;
nam reus in exceptione actor est” (D. 44,1, 1). But
though the exception was a sort of counter-action pro-
ceeding from the defendant, it was yet incorporated into
the same formula alongside of the claims of the plaintiff,
‘so that the claims of the one and the counter-claims of
the other could be tried in the same suit. Exceptions
were considered under two classes, either as peremptory
or dilatory.

(1) Exceptions were said to be peremptory (exceptiones
peremptoria) when they presented a permanent obstacle
to the action, and furnished a complete offset to the
plaintiff's claims. Examples of such exceptions are those
based upon fraud—upon fear—upon a previous judgment
398 OUTLINES OF ROMAN LAW.

settling the question in favor of the defendant—or upon
a previous agreement that money shall not be demanded
(exceptiones doli mali, metus causa, rei judicata, pacti con-
venti ).

(2) On the other hand, exceptions were said to be
dilatory (exceptiones dilatorig) when they presented an
obstacle only for a certain period of time, and for the
purpose of producing delay. Such exceptions were those
based upon a previous agreement that the claim shall not
be demanded for a certain definite time—upon the ground
that the plaintiff is not qualified to bring the action—or
upon an objection to the person authorized to bring the
suit( exceptiones pacti conventi ad tempus, cognitoria, pro-
curatoria).

As the defendant might thus defeat an action by means
of an exception, so the plaintiff, on his part, might render
the exception of no effect by a replication (reflicatio),
which was merely an exception to an exception. This
might in turn be met by a duplication (duplicatio) on the
part of the defendant ; and these counter-claims might be
continued until the whole matter in dispute was brought
to an issue. The peculiar and independent character
which attached to the exceptions and replications under
the formulary system was somewhat modified after the
decay of that system, so that they came to be regarded
simply as a means of joining the issue between the par-
ties, similar to that employed in the modern form of
“ pleadings.”

4. Interdicts and their Different Forms.—In
the protection of rights by the means already described,
there was involved not only a formal joining of issue in
the presence of the magistrate, but also a judicial inves-
tigation before the pronouncing of a judgment. There
was another remedy, however, of a preventive nature, by
CIVIL REMEDIES. 399

which a threatened invasion of primd facie rights was
stopped bya provisional order issued by the magistrate.
Such preventive remedies were called interdicts (¢nter-
dicta). They took the form of provisional judgments, or
interlocutory decrees, commanding a person to do or not
to do a certain thing, until the question of right, if dis-
puted, could be settled in the ordinary judicial way.
They were employed mostly-in cases in which a matter
of possession was involved; but they might also be
used for the protection of other real as well as personal
rights.

(1) The first and principal division of interdicts com-
prised the following forms : “ prohibitory ” ( prohiditoria)
by which something was forbidden to be done, as to use
force against a person in lawful possession ; “ restitutory”
(vestitutoria), by which something was compelled to be
restored, as the possession of land to the person who had
been violently expelled from it; and “ exhibitory” (ex-
hibitoria), by which some person or thing was ordered to
be exhibited, as a freeman improperly detained in cus-
tody—which example has been compared by modern ju-
rists to the English Aadeas corpus.

(2) Another division of interdicts was based upon the
fact that they were given either to acquire, to retain, or
to recover possession (causa adipiscenda, vel retinenda,
vel recuperand@ possessionis). To acquire possession, for
example, an interdict called guorum bonorum, was given
to the Jonorum possessor to protect his equitable right to
an inheritance. To retain possession, the interdicts wii
possidetis and utrubi were given to protect a person in the
possession of property, the right to the ownership of
which was in dispute—the former being applied to im-
movables, and the latter to movables. To recover pos-
session the interdict unde vi was granted, in the case one
had been deprived of a thing by violence. _
400 OUTLINES OF ROMAN LAW.

The interdicts, like the exceptions, lost something of
their distinctive character and form, though none of their
remedial effects, after the decay of the formulary system,
when the principles governing them were assimilated to
those relating to actions.

5. Restitution and its Various Grounds.—The
disposition of the Roman law to grant an equitable re-
dress in cases where the strict application of the law
would manifestly work injustice, is nowhere more clearly
shown than in the remedy of “restitution” (2% integrum
restitutio). The restitution, like the interdict, grew out
of the “extraordinary” jurisdiction of the praetor by
which he pronounced a judgment without reference to
the judex, But in this case, the judgment was not pro-
visional, like the interdict, but absolute and based upon
grounds which the magistrate regarded as sufficient in
themselves to annul a strictly legal transaction. By a res-
titution the parties to a contract, or other transaction,
were restored to the position with reference to each other
that they held before such transaction had taken place.
Its purpose was not so much to annul the law, as to cor-
rect the law by protecting the equitable rights of the par-
ties concerned. To obtain this remedy it was necessary,
first, that the claimant be really injured by the transac-
tion, and that without his own fault; secondly, that the
circumstances of the case be such as to justify a remedy;
and thirdly, that the injury be not remediable by any or-
dinary process of law.

The principal grounds which were regarded as suffi-
cient to justify the granting of this remedy were the fol-
lowing :

(rt) All minors (minores viginti qguinque annis) were en-
titled to restitution with regard to any transaction or omis-
sion by which they had suffered an injury, in so far as
CIVIL REMEDIES. 401

such injury was not due to their own fraud or to a mere
accident. This rule was subject to some exceptions, as
when the minor had solemnly bound himself not to nullify
the act by seeking a restitution.

(2) Violence. When a person had been compelled by
unlawful force or intimidation (vs vel metus) to perform
an act, he was entitled to relief for any injury thereby
resulting. A contract obtained by force was itself void,
and required no restitution ; but if any act had been
performed as a result of such illegal agreement, it was
capable of being rescinded by a restitution.

(3) Error. Another ground of restitution was error
committed without any fault on the part of the person
himself, and resulting in an injury which could not be
remedied by ordinary means. It was, of course, the
province of the magistrate to decide whether the mistake
-was of such a character as to entitle the claimant to a
restitution.

(4) Absence. When an injury resulted from any omis-
sion due to unavoidable absence, or obstacle akin to ab-
sence—such as mental derangement, imprisonment, etc.—
the injured person could plead such fact as a proper
ground for reinstatement.

(5) By a general clause introduced into the pretor’s
edict, a restitution could be claimed in many other cases
(restitutio ex clausula generali), where one was deprived of
his just rights by external events over which he had no
control, or by the acts of third parties without fault of
his own ; as,-for example, in case of sickness or serious
accident affecting himself or family, or fault on the part
of his advocate, or even unnecessary delay on the part of
the judge.

These examples are sufficient to show the tendency to
introduce into the remedial portion of the law the most
402 OUTLINES OF ROMAN LAW.

liberal principles of equity, and to make the judicial
enforcement of rights a means for the administration,
not of strict law, but of justice.

6. The Private Protection of Rights.—So far as
the state provides a system of legal remedies through
which rights are enforced by public authority, the private
redress of injuries becomes unnecessary and hence un-
justifiable. The primitive custom of “self-help”? becomes
more and more restricted as the state assumes the func-
tion of administering justice. But still there remain
certain emergencies when imminent danger renders the
timely interference of the state impracticable. In such
cases, if the person is protected at all, he must protect
himself. The circumstances, therefore, that render self-
protection necessary are regarded by the law as sufficient
to make it permissible. We hence see the survival of the
original principle of “self-help” in the right of legitimate
self-defence. The law, while accepting the principle of
self-protection, points out the limits within which such
self-protection is allowable. As regards this subject, we
find in the Roman law two principles set forth : the one
authorizing the use of private force when the state can-
not interfere ; the other forbidding its exercise in cases
in which the state has afforded a remedy.

(1) The private exercise of force is never authorized
in order to invade the rights of others. It is only per-
mitted in defending one’s self in the possession of one’s
legitimate rights against a present peril. Gaius says:
‘* Adversus periculum naturalis ratio permittit se defen-
dere” (D. 9, 2, 4,1). It is then regarded as lawful to
meet force with force, as Paulus says : “ Vim vi defendere
omnes leges omniaque jura permittunt” (D. 9, 2, 45, 4).
In brief, the exercise of private force is legal when it is
purely defensive, and when it is indispensable to ward off
CIVIL REMEDIES. 403

an imminent attack or a danger which cannot be escaped
in any other way.

(2) On the other hand, the law forbids any encroach-
ment upon another’s rights, even to do justice to one’s
self. The general principle that the state is the adminis-
trator of justice is opposed to the private redress of in-
juries in all cases where the law itself furnishes a remedy.
The Roman law expressly forbids the exercise of private
force, not only in the Julian law, de wf privata, but also in
the provision of Marcus Aurelius, whereby one is com-
pelled to forfeit his claim, if he seizes that which is due
him, without the authority of the law; and also in the
provision, before noticed, whereby a person who seizes by
force his own property from another forfeits his right of
ownership to the possessor.

The whole tendency of legislation was thus to transfer,
as far as possible, the enforcement of rights from the indi-
vidual to the state, and to limit the sphere of self-help by
providing adequate means for the redress of all injuries.

References.—Gaius, IV.; ‘‘Inst.,” IV,,6-15; ‘‘ Digest,” De juris-
dictione,(2), Dein integrum restitutionibus (4), De rei vindicatione (6),
Finium regundorum (10), De rebus creditis (12), De actionibus empti et
venditi (19), De interdictis (43), De exceptionibus, etc. (44); Poste’s
“Gaius,” pp. 398-527; Sandars’ ‘‘ Justinian,” Eng. ed. pp. 517-587,
Am. ed., pp. 507-580; “Dict. Antiq.,” (Actio, Furisdictio, [nterdic-
tum, Restitutio in integrum); Hallifax, ‘‘ Roman Law,” pp. 80-92 ;
Hunter, ‘‘Roman Law,” pp. 786-804 ; Kaufmann’s ‘‘ Mackeldey,”
I., pp. 187-230; Tomkins and Jencken, ‘‘ Modern Roman Law,”
pp. 82-98; Goudsmit, ‘‘ Roman Law,” Eng, trans., pp. 227-366 ;
Ortolan, ‘‘ Instituts,” III., pp. 471-787; Demangeat, ‘‘ Droit Ro-
main,” II., pp. 540-815 ; Marezoll, ‘‘ Lehrbuch,” §§ 54-65; Deurer,
“*Gesch. und Inst.,” §§ 137-146; Bocking, ‘‘ Rom. Privatrecht,” S.
291-333 ; Vering, ‘‘Gesch. und Pandekten,” §§ 118-135 ; Vange-
row, ‘‘ Pandekten,” §§ 132-157; Arndts, ‘ Pandekten,” 88 92-125 ;
Keller, ‘‘Der Rémische Civilprocess,” §§ 1-45, 87-93; Zimmern,
“Der Rémische Civilprocess,” §§ 1-31 ; Windscheid, ‘‘ Die Actio
des Romischen Civilrechts vom Standpuncte des heutigen Rechts.” ).
CHAPTER II.
THE ELEMENTS OF CIVIL PROCEDURE,

Tue adjective portion of the law, or that which
the Romans designated by the comprehensive phrase
jus ad actiones, not only defines the various remedies
capable of being used in cases of injury ; it also sets
forth the various processes, or modes of procedure, in
which these remedies are made operative. By estab-
lishing a remedy, the law simply indicates that a specific
right is “sanctioned,” that is, that its protection is guaran-
teed by the state. By laying down rules of procedure,
however, the law shows how an injured party can take
advantage of the remedy and make his cause an actual
matter of adjudication. The state may provide scrupu-
lously for the protection of its citizens ; but the injured
party himself must finally be the one to pursue the
right of which he supposes himself deprived. The rules
of procedure afford a practical guide to the injured per-.
son, so that he can make the general remedy of the law
a means for the judicial enforcement of his own specific
rights,

The forms of procedure existing at the time of Justini-
an were the result of a long process of development
reaching back to the very earliest times. And in the
simple processes of the later Roman law we can easily
perceive the influence of certain reformatory steps that
affected the character of the whole system. The old
“‘actions of the law,” in which a very rigid, technical, and
symbolical process was used for the purpose of submit-

404
CiVIL PROCEDURE. 405

ting a point in dispute to a disinterested person, were
succeeded by the “formulary system,” in which the
claims of the plaintiff were reduced to writing and sub-
mitted to a non-official person for judgment. From cer-
tain modifications of the formulary system—by which the
issue was in some cases decided wholly by the magistrate,
and in other cases left almost entirely to the discretion of
the yudex—arose the later system of ‘extraordinary pro-
cedure,” which united the jus and judicium in the hands
of a single person, a public officer appointed on the
ground of professional knowledge and skill. These three
stages in the growth of the law of procedure at Rome
exhibit an unmistakable progress from forms extremely
technical and rigid to forms extremely simple and plia-
ble. The forms of procedure may not have reached ab-
solute perfection even in the later period of the Roman
law. Their special merits must be judged from the fact
that they had thrown off not only the ritualistic symbol-
ism of the old “actions,” but to a great extent the tech-
nical refinement that often marked the pretorian formu-
lz. They had come to afford an easy and rational
method whereby the principles of law and equity could
be applied to every man’s cause.

In sketching the law of procedure as it existed at the
time of Justinian, and in comparing this law with that of
the earlier periods, we may consider it with reference to
the five essential elements of a civil process, viz.: (1) the
institution of the action, or the process by which the de-
fendant is brought into court ; (2) the joining of issue, in
which is ascertained the exact points of conflict between
the litigants ; (3) the trial of the case, in which the con-
flicting claims of the parties are investigated according to
the principles of law and the rules of evidence ; (4) the
sentence of the court, whether in the first instance, or as
406 OUTLINES OF ROMAN LAW.

the result of an appeal; and (5) the execution of judg-
ment, or the carrying into effect the law as judicially ap-
plied to the case in hand.

1. Beginning of a Civil Action.—The first step in
a civil action is the summons, or citation, by which the
plaintiff brings the defendant into the presence of the
magistrate. The action is, hence, instituted by the ag-
grieved party himself. If we look at the phases through
which the summons passed in the Roman law, we shall
see how it was transformed from a private and extra-ju-
dicial process into one more properly judicial and under
supervision of the public authority.

(1) At the time of the XII. Tables, the summons (7
jus vocatio) was a private act performed by the person
seeking redress. As the magistrate was supposed merely
to assist parties in settling their disputes, he had no juris-
diction until their respective claims were presented to
him. The plaintiff himself was, therefore, compelled to
bring the defendant before the magistrate. If the de-
fendant refused to go, the plaintiff was permitted, after
obtaining a witness to such refusal, to drag him into
court. The summons was, in fact, a private arrest made
by the plaintiff. The defendant could be released from
such an arrest only by satisfying the demands of the
plaintiff, or by finding a satisfactory substitute (vndex)
who would become personally responsible for his debt.

(2) Under the edicts of the pretors, there was no es-
sential change in the form of the summons; but certain
supplementary provisions were introduced that gave it
somewhat more of a judicial character. It was still exe-
cuted by the plaintiff, but disobedience to it was made a
legal offence, punishable by the state. The plaintiff, in
executing the summons, thus became, in acertain sense, an
officer of the law ; since refusal to obey his order brought
CIVIL PROCEDURE. 407

the offender within the cognizance of the court. More-
over, the old security by means of a windex was supple-
mented and gradually displaced by a security more akin
to bail (vadimonium, or cautio judicio sistendi). This was
given to secure the reappearance of the parties, after their
first appearance and the granting of an action (actéonis
editio) by the magistrate. By the vadimonium, the de-
fendant stipulated, either by himself or through a surety,
to defend the action, to satisfy the judgment, and to make
good any loss to property in dispute, if occasioned in the
meantime by fraud. The suit was thus properly insti-
tuted by the plaintiff’s citing the defendant to appear be-
fore the magistrate, and by the giving of the vadimonium
by the defendant asa security for his reappearance at
the proper time.

(3) By the imperial constitutions certain important
changes were introduced which gave to the initial steps
of a suit something of their modern features. The old
form of the summons was simplified by Marcus Aurelius,
who probably acted under the advice of the jurists.
This emperor introduced a process by which it was
simply required that a formal notice (/itis denunciatio) be
served by the plaintiff upon the defendant, setting a time
for his appearance. In the time of Constantine this
notice was submitted to the judge and served upon the
defendant by a public ‘officer. And by the time of Jus-
tinian it had taken the form of a written summons (Ze/-
lus conventionis), containing a statement of the complaint
and of the material facts, which was served by an officer
(executor) under the direction of the court.

It is thus apparent how, as Professor Hunter says, ‘‘the
summons advanced from the rude form of a legalized
use of force, through various intermediate stages, in which
pretors, jurisconsults, and emperors took part, until, at
408 OUTLINES OF ROMAN LAW.

length, it became an act of public authority, and gave the
defendant formal notice of the claim made against
him.”

2. Joining of Issue—Pleadings.—The-next step in
the process of an action is the joining of issue, or the
settling of the exact points of controversy between the
litigant parties. At the time of Justinian this stage of
the procedure had reached a very complete and simple
form—which has, in fact, exercised an important influence
upon modern judicial proceedings. This process, like
the one already described, was derived from the more
primitive forms of the early law. Based ultimately upon
the heated altercation of angry disputants, it gradually
came under the supervision of the court and was reduced
to forms more and more suited to the requirements of
judicial practice. In the “actions of the law,” in the
formulary system, and the later extraordinary pro-
cedure, we can trace the successive steps by which this:
process acquired its modern features.
~ (x) In the sacramental action of the XII. Tables the
mode of joining issue was evidently nothing more than
an oral altercation reduced to a ritualistic form and car-
ried on before the priest or magistrate. Recurring to the
form of this action previously described (cf. p. 17), it will
be seen that the plaintiff, in a set form of words, makes a
claim to the property in dispute ; and that the defendant,
repeating a similar form of words, asserts his claim in
opposition to that of the plaintiff. The plaintiff then
wagers a certain amount (sacramentum) as a challenge in
support of his right. The defendant in a formal reply
accepts the challenge. This crude performance is simply
an oral dispute fashioned into a set form of words, in
which the issue between the parties is joined by the lay-
ing of a wager, or forfeit. In this way the disputed ques.
CIVIL PROCEDURE. 406

tion was prepared for trial; but the only issue to be
tried was the question as to which party was right in the
assertion upon which the wager was laid.

(2) Passing to the formulary system, we find the claims
and counter-claims of the parties reduced to a written
form. We also find that the fiction of the wager has been
dropped, and that the issue is so joined as to present
more clearly than before the real merits of the case sub-
mitted for adjudication. The primary object of the
formula was to prepare the case for reference to the
juaex. Hence, in the preliminary proceedings the preetor
ascertained from the statements and counter-statements
of the litigants the exact nature of the subject matter in
dispute ; this was set forth in the demonstratio. The
plaintiff’s claims were then heard, and, if allowed by the
pretor, were embodied in the étentio. The intentio,
therefore, presented the case from the plaintiff’s point of
view. If, however, there were other facts and circum-
stances, not presented by the plaintiff, that would tend to
annul or modify the legality of his claim, these were set
forth by the defendant in the exceptio. The exceptio thus
presented the case from the point of view of the defendant.
The issues involved in the case were in this way brought
clearly to view by the /xéentio, supplemented, if neces-
sary, by the exceptio (and even by the repiicatio and
duplicatio), and were hence put into a convenient form for
reference. The remaining part of the formula simply
comprised the instructions of the pretor to the judex to
guide the latter in his investigation and decision of the
case.

(3) The chief defects in the mode of joining issue un-
der the formulary system grew out of the somewhat
technical character of the formule themselves. But with
the introduction of the extraordinary procedure, in which
410 OUTLINES OF ROMAN LAW.

the case was not referred to the judex, but was tried be-
fore the magistrate himself, the preliminary process of
joining the issue became less formal. The general lines
of the old formule were, indeed, followed, statements and
counter-statements being made by the opposing parties.
But these were now made, not for the sake of reducing
the case to a form suitable for reference, but for the
simple purpose of satisfying the magistrate himself as to
the exact nature of the question in dispute. The written
formula was thus superseded by a form of pleadings that
partook of the character of a preliminary discussion to
elicit the precise points at issue.

3. Trial and the Principles of Evidence.—The
trial consists in an examination of the merits of the case
as set forth in the pleadings. Before the time of Dio-
cletian, this formed the essential part of the proceedings
injudicio. It is impossible to say definitely how the trial
was conducted in very early times. The judex probably
pursued the method that seemed to him best fitted to
bring out the facts in the case. But the process came at
last to be conducted in a regular form and according to
certain well-established rules. The case was opened by
the parties, or their advocates ; the evidence was intro-
duced, and the cause summed up with reference to the
proofs admitted. There was no essential change made
in this part of the process after the decay of the formu-
lary system, except that the trial was conducted before the
same officer before whom the issue had been joined.

The most important feature of the trial was the intro-
duction and sifting of evidence. By the time of Justinian
certain principles had become fixed, which have been
substantially accepted by all modern tribunals. These
principles relate chiefly to the burden of proof, presump-
tions, the forms of evidence, and the admissibility and
CIVIL PROCEDURE. 4IIt

sufficiency of evidence. The general bearing of these
principles may be briefly indicated.

(1) The burden of proof lies upon him who asserts an
affirmative fact, if unsupported by a legal presumption.
If a legal presumption be in favor of one party, the
burden of proof is thrown upon the other. The burden
of proof may, of course, shift from one party to the other
during the course of the trial, according as the affirma-
tive fact is made to support the claims of the plaintiff or
those of the defendant.

(2) The necessity of presenting evidence may be af-
fected by what are called presumptions (presumptiones),
by which a certain state of things is assumed to be true
unless the contrary is proved. For example, a presump-
tion may be based upon what is probable in human ex-
perience (presumptio hominis), whereby from a given fact
or state of facts another fact or state of facts may be
naturally inferred. Again, a presumption may have
reference to certain facts which are assumed to be true
by a rule of law (presumptio juris); for instance, the
possessor of movables is presumed to be the owner.
Finally, a presumption is said to exist in the case of
certain facts which the law regards as essential to a legal
transaction or relation ( presumptio juris et de jure) ; for
instance, a sale cannot be effected without a price, an
impubes cannot make a contract to his detriment. The
first two presumptions mentioned are disputable and
capable of being entirely overthrown by contrary proof.
The last so-called presumption is absolute and conclu-
sive, no evidence being admissible to controvert it.

(3) The forms of evidence capable of being introduced
are generally classed as written and oral. Written, or
documentary, evidence comprises public records, private
documents attested in a legal manner, and even private
412 OUTLINES OF ROMAN LAW.

papers, when proved to be genuine. Oral, or parole, evi-
dence includes all proofs derived from the examination of
competent witnesses. All persons, in the Roman law,
were competent to testify unless expressly disqualified.
Such incompetence might be absolute, as in the case of
impubes, lunatics, infamous persons ; or it might be rela-
tive, as in the case of a father and son with reference to
each other, a slave with reference to his master, etc.

(4) A most important feature of this branch of the
law is that relating to the admissibility of evidence, and
the probative force to be attached to evidence when ad-
mitted. The elaborate character of the rules upon this
subject, renders it impracticable to recount them in this
outline. It is yet well to remember that many of the prin-
ciples regarding the admission and weighing of evidence
that prevail in modern courts were quite fully worked
out in the laws of Justinian.

4. Judgment and Appeal.—The judgment is the
authoritative decision of the judge with reference to the
conflicting claims of the parties. Such a judgment may
be interlocutory, that is, made with reference to an in-
cidental point arising in the process of the suit; or it
may be final, when it puts an end to the action by decid-
ing the whole matter in dispute. It must in all cases,
until properly reversed, be accepted by the parties as a
true and authoritative statement of their respective rights
and obligations. Inthe Roman law, a final judgment in
favor of the plaintiff gave to him the benefit of the actio
judicati, whereby he could, in case the defendant refused
to abide by the decision, call upon the public authority
for its execution. When the judgment was rendered in
favor of the defendant, it gave to the latter the benefit of
the exceptio judicati, whereby he could debar the plaintiff
from bringing a second action based upon the same
issues.
CIVIL PROCEDURE. 413

The judgment of an inferior court might, after the es-
tablishment of the Empire, be carried to a higher court.
Such a process was called an appeal (apfellatio). It had
the effect to suspend the execution of the judgment, or to
obstruct it entirely by the reversal of the former judg-.
ment. The law indicates specifically from what courts
and from what judgments an appeal could be made, and
also the form of proceeding to be followed in obtaining
an appeal.

5. Execution of Judgment.—The last step in a
civil process is the execution of the judgment, in case
the defendant refuses voluntarily to satisfy the claims
adjudged to the plaintiff. The successive methods in
which this was performed in the Roman law illustrates,
like the summons, the gradual interference of the state
with the exercise of private force. According to the
XII. Tables, the execution, though authorized by the
public magistrate, was, as before described, a private act
on the part of the plaintiff. The ancient “executory ac-
tion” (actio per manus injectionem), in which the person of
the defendant was adjudged (addictus) to the plaintiff,
and which was barbarous in the extreme, was superseded
by an action merely to enforce the judgment (actio judi-
cati). The defendant could still, it is true, be taken into
custody, if necessary ; but his person was no longer ad-
judged to the plaintiff, and he could obtain his release
either by satisfying the judgment directly, or by giving a
security for its satisfaction.

But under the above system, if the defendant could
escape arrest, he might avoid the execution. A supple-
mentary process was accordingly introduced, whereby
the plaintiff was allowed, in case of the defendant’s
escape, to take possession of his entire estate (mzssio in
possessionem). This was a sort of execution by means of
414 OUTLINES OF ROMAN LAW.

a bankrupt-sale, and was probably the origin of the law
relating to the general assignment of goods in case of in-
solvency (venditio bonorum). The execution against the
entire estate of the defendant was followed by the prac-
tice of levying execution against the property in detail
sufficient to satisfy the judgment; and the seizure and
sale of the defendant’s goods were effected by officers of
the court.

Such were the principal steps in which the “execu-
tion”’ was gradually taken up by the state, and became,
at the time of Justinian, a part of the regular judicial
process. This movement is seen to be in harmony
with that which marks the evolution of law in general,
whereby the determination and enforcement of rights
are gradually transferred from the sphere of individual
volition to the domain of public authority.

References.—Gaius, IV., 10-60 ; ‘‘ Digest,” De jurisdictione (2),
De re judicata, etc. (42), De appellationibus (47); ‘‘ Code,” De
judicits (3), De edendo (2); Poste’s ‘‘ Gaius,” pp. 407-445; ‘‘ Dict.
Antiqq.” (Actio, Fudicati actio) ; Hallifax, ‘‘ Roman Law,” pp. 96-
tor; Mackenzie, ‘‘ Roman Law,” pp. 337, 338 ; Amos, ‘‘ Roman
Civil Law,” pp. 380-391 ; Hunter, ‘‘ Roman Law,” pp. 805-901;
Keller, ‘‘ Der Rémische Civilprocess,” §§ 46-86 ; Zimmern, ‘“ Der
Rémische Civilprocess,” §§ 32-182.

In concluding this synopsis of the Roman law of persons, of things,
and of actions, it may not be out of place to indicate the relation that
this order of treatment sustains to that adopted in modern times.
The glossators naturally followed the order of the ‘‘ Digest,” since
their writings were scarcely more than annotations of this work.
This method was succeeded by a tendency to recast the subject
matter of the ‘‘ Digest” more or less in accordance with the order of
the “Institutes.” Domat in the seventeenth century, and Pothier in
the eighteenth, cut loose from this order, and attempted to rearrange
the law upon what they deemed to be more scientific principles. In
the beginning of the present century Hugo adopted an arrangement
which has exercised considerable influence upon the present treatment
of the law. This was as follows: I. Rights as to Things ; II.
CIVIL PROCEDURE. 415

Rights of Obligations; IM. Family Rights; IV. Rights as to In-
heritance. The extent to which the order of Hugo has, or has not,
been adopted, may be seen from the arrangement of some of the more
prominent of recent civilians, For example, the order of Puchta is:
I. Rights as to Personality; II. Rights as to Things; III. Rights
as to Actions (obligations); IV. Rights as to Other Persons (domes-
tic relations) ; V. Rights of Succession (inheritance). Of Vangerow :
I, General Principles, including (1) sources of law, (2) persons, (3)
things, (4) transactions, (5) rights, (6) prosecution of rights, (7) com-
putation of time, (8) possession; II. Family Law; III. Real
Rights ; IV. Inheritance; V. Rights of Obligation. Of Arndts:
I. Rights in General ; II. Rights as to Things; III. Obligations;
IV. Domestic Relations; V. Inheritance. Of Windscheid: I.
Law in General; II. Rights in General; III. Rights as to Things;
IV. Law of Obligations ; V. Family Law; VI. Inheritance. Pro-
fessor Hunter, whose work on the Roman law is probably the most
exhaustive on the subject in the English language, has sought to re-
duce the law to the following order: I. Rights in Rem; II. Rights
in Personam ; III. Inheritance and Legacy ; IV. Civil Procedure.

The modern civil codes follow more nearly the order of the “Insti-
stutes” of Justinian. For example, in the civil code of France the
order is: I. Law of Persons; II. Property and its Various Modifi-
cations; III, Various Modes of Acquiring Property (including acqui-
sition by succession, by gift and will, and by the effect of obliga-
tions), which order is also that of the code of Louisiana. The code
of Prussia is arranged as follows: I. Law of Persons; II. Law of
Things (including the division of things and the modes of their acqui-
sition, both singly and by universal succession), It may also be
noticed that in Asso and Manuel’s ‘‘ Institutes of the Civil Law of
Spain,” which is based upon the ‘‘ Partidas,” the order of the ‘‘In-
stitutes” of Justinian is followed in almost every particular, the main
division being: I. Law of Persons; II. Law of Things; III. Law
of Actions.

The relation of the Roman arrangement to that adopted by writers
on the English common law is clearly stated by Judge Hammond in
his introduction to the American edition of Sandars’ ‘* Justinian.”
 
APPENDIX

Comprising a list of the most important works, with the editions,
referred to at the close of the preceding chapters :

Amos (Sheldon) History and Principles of the Civil Law of Rome:
An Aid to the Study of Scientific and Comparative Jurispru-
dence. Lond., 1883.

Amdts (Ludwig) Lehrbuch der Pandekten. Miinchen, 1865.

Amold (Thomas) History of Rome. N. Y. and Phila., 1846.

Amold (W. T.) The Roman System of Provincial Administration
to the Accession of Constantine the Great. Being the Arnold
Prize Essay for 1879. Lond., 1879.

Asso and Manuel. Institutes of the Civil Laws of Spain. Trans.
by L. F. C. Johnston. Lond., 1825.

Austin (John) Lectures on Jurisprudence, or the Philosophy of
Positive Law. Lond., 1873.

Bingham (Joseph) Antiquities of the Christian Church. Lona.,
1850.

Blair (William) Inquiry into the State of Slavery among the
Romans. Edinburgh, 1833.

Backing (Eduard) Romisches Privatrecht. Institutionen des
Roémischen Civilrechts. Bonn, 1862.

Bruns (C. G.) Fontes Juris Romani Antiqui. Editio altera, aucta,
emendata. Tubingz, 1871.

Bryce (James) The Holy Roman Empire. Eighth edition. N.
Y., 1883.

Butler (Charles) Horze Juridicee Subsecivee: Notes on the Principal
Codes and Original Documents of the Grecian, Roman, Feudal,
and Canon Law. Lond., 1804.

Clark (E.C.) Early Roman Law. Regal Period. Lond., 1872.

Codex Theodosianus, cum perpetuis commentariis Jacobi Gothofredi.
Ed, J. D. Ritter. Lipsee, 1736.

417
418 OUTLINES OF ROMAN LAW.

Codices Gregorianus Hermogenianus Theodosianus. Ed. Gustavus
Haenel. Bonne, 1842.

Corpus Juris Canonici. Editio Lipsiensis secunda. Aimilius Fried-
berg. Lipsiz, 1879.

Corpus Juris Civilis. Ed. Dionysius Gothofredus. Lipsiz, 1705.

Institutiones recognovit Paulus Kreuger. Digesta recognovit
Theodorus Mommsen. Codex Justinianus recognovit Paulus
Krueger. Berolini, 1882.

Coulanges (Fustel de) La Cité Antique: le Droit, les Institutiones
de la Gréce et de Rome. Paris, 1864. Eng. trans. by W. Small.
Boston, 1874.

Demangeat (Charles) Cours Elémentaire de Droit Romain.
Troisi¢me edition. Paris, 1876.

Deurer (E. F. F. W.) Grundriss fir Aussere Geschichte und Insti-
tutionen des Rémischen Rechts. Heidelberg, 1849.

Dirksen (H. E.) Uebersicht der bisherigen Versuche zur Kritik
und Herstellung des Textes der Zwolf-Tafel-Fregmente. Leip-
zig, 1824.

DuCaurroy (A. M.) Instituts de Justinien. Novellement Expli-
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Duc! (Arthur) De Usu et Auctoritate Juris Civilis Romanorum in
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Esmarch (K.) Rémische Rechtsgeschichte. Géottingen, 1856,

Ferritre (Claude Joseph de) Histoire du Droit Romain. Paris,
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Freeman (E. A.) Comparative Politics. N. V., 1874.

Gibbon (Edward) Decline and Fall of the Roman Empire. Lond.,
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Gibson (Edmund) Codex Juris Ecclesiastici Angliani. Oxford,
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Gosselin (E. E. A.) The Power of the Popes during the Middle
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Goudsmit (J. E.) The Pandects: a Treatise on Roman Law and
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Grapel (William) Sources of the Roman Law: An Introduction

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Gravina (J. V.) Origines du Droit Civil ; ou, Histoire de la Législa-

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APPENDIX. 419

Greenwood (Thomas) Cathedra Petri. A Political History of the
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Giiterbock (Carl) Bracton and his Relation to the Roman Law:
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Hallifax (Samuel) Elements of the Roman Civil Law, in which a
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Kaufmann—see Mackeldey.

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Lange (Ludwig) Romische Alterthimer. Berlin, 1856.

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420 OUTLINES OF ROMAN LAW.

Lenel (O.) Beitrage zur Kunde des pretorischen Edicts. Stuttgart,
1878,

Mackeldey (F.) Lehrbuch der Institutionen des heutigen Rémischen
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Early History of Institutions. N. Y., 1875.

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Marquardt (Joachim) Rémische Staatsverwaltung. Leipzig, 1873.

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Milman (H. H.) History of Christianity from the Birth of Christ to
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Mommsen (Theodor) Rémische Geschichte. Berlin, 1861. Eng-
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Rémisches Staatsrecht. Leipzig, 1871.

Newman (F. A.) Regal Rome. Lond., 1852.

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Ozanam(A.F.) History of Civilization in the Fifth Century. Trans.
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Phillimore (John George) Introduction to the Study and History of
the Roman Law, Lond., 1848,

 

 

 
APPENDIX. 421

Phillimore (John George) Private Law among the Romans, from
the Pandects. Lond. and Cambridge, 1863.

Principles and Maxims of Jurisprudence. Lond., 1856.

Poste (Edward) Elements of the Roman Law, by Gaius, with a
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Pothier (R. V.) Treatise on the Law of Obligations, or Contracts.
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Puchta (G. F.) Lehrbuch der Pandekten. Leipzig, 1856.

Puntschart (V.) Entwickelung des grundgesetzlichen Civilrechts der
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Reeves (John) History of the English Law, from the Time of the
Romans to the End of the Reign of Elizabeth. With an Intro-
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the Rise and Progress of our Laws, and the Influence of the
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Lond., 1869.

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Jurisprudentiam Romanam. Groningen, 1776,

Rivier (Alphonse) Introduction Historique au Droit Romain.
Bruxelles, 1881.

Rudorff (A. A. F.) Rémische Rechtsgeschichte. Gottingen, 1856,

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Scheell (Rudolphus) Legis XII. Tabularum Relique.  Lipsiz,
1866,

Schomberg (Alex.C.) Historical and Chronological View of Roman
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Schwegler (A.) Rémische Geschichte. Tiibingen, 1853-58.

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Selden (John) Dissertation annexed to Fleta. Translated with
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Smith (William) Dictionary of Greek and Roman Antiquities,
Revised by C. Anthony. N. Y., 1855.

 
422 OUTLINES OF ROMAN LAW. :

Smith (William) and Cheetham (Samuel) Dictionary of Christian
Antiquities. Hartford, 1876.

Spangenberg (G. A.) Einleitung in das Romisch-Justinianeische
Rechtsbuch. Hanover, 1817.

Spence (George) Inquiry into the Origin of the Laws and Political
Institutions of Modern Europe, Particularly of Those of England.
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Equitable Jurisdiction of the Court of Chancery; Com-
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1846.

Story (Joseph) On Equity Jurisprudence. Twelfth edition, by
J. W. Perry. Boston, 1877.

Taylor (John) Elements of the Civil Law. Cambridge, 1755.

Thibaut (A. F. J.) Lehrbuch der Geschichte und Institutionen des
Romischen Rechts. Berlin, 1842.

Tomkins (F. J.) and Jencken (H. D.) Compendium of the
Modern Roman Law. Lond., 1870.

Troplong (R. T.) De l’Influence du Christianisme sur le Droit
Civil des Romains, Paris, 1843.

Upton and Jennings. The Civil Code of the State of Louisiana.
New Orleans, 1838.

Vangerow (K. A. v.) Lehrbuch der Pandekten. Marburg und
Leipzig, 1863. .

Vering (F. H.) Geschichte und Pandekten des Rémischen und
heutigen Gemeinen Privatrechts. Mainz, 1875.

Walker (Bryan) Fragments of the Perpetual Edict of Salvius Juli-
anus. Collected, Arranged, and Annotated. Cambridge, 1877.

Walter (Ferdinand) Geschichte des Rémischen Rechts bis auf
Justinian. Bonn, 1860.

Warnkénig (L. A.) Vorschule der Institutionen und Pandekten.
Freiburg im Breisgau, 1854.

Wheaton (Henry) History of the Law of Nations in Europe and
America, N. Y., 1845.

White (J. M.) New Recopilacion. A New Collection of Laws,
Charters, and Local Ordinances of the Governments of Great
Britain, France, and Spain relating to the Concessions of Land
in their Respective Colonies ; together with the Laws of Mexico
and Texas on the same Subject. To which is prefixed Judge
Johnston’s translation of Asso and Manuel’s Institutes of the
Civil Law of Spain, Phila., 1839.

 
APPEND’X. 423

Windscheid (B.) Die Actio der Rémischen Civilrechts vom Stand-
puncte des heutigen Rechts. Diisseldorf, 1856.

Lehrbuch des Pandektenrechts, Diisseldorf, 1870.

Zimmern (S. W.) Geschichte des Rémischen Privatrechts bis
Justinian. Heidelberg, 1826.

Der Rémische Civilprocess. Heidelberg, 1829.

 

 
INDEX.

ABSENCE, 401

Acceptilatio, 373

Accessio, 77, 304

Accident—see Casus

Accursius, 182

Acquisitio rerum, 302

Actio confessoria, 392

— contraria commodati, 356

— damni infecti, 382

— de inofficioso testamento, 327

— directa Aquiliz, 381

— directa commodati, 356

— exercitoria, 395

— furti, 379, 383

— hypothecaria, 278, 393

— in factum, 381, 395

— in rem Publiciana, 75, 393

—in supplementum legitime,
328

— injuriarum, 396

— institoria, 395

— judicati, 412, 413

—- negativa, 392

— noxalis, 381, 395

— Pauliana, 393

— per manus injectionem, 28, 40,
343, 413

— preejudicialis, 392

— pro socio, 369

— quasi Serviana, 298, 393

— quod jussu, 395

— sacramenti, I7, 19, 27, 86

— Serviana, 298, 393

— utilis Aquiliz, 381

— vi bonorum ‘raptorum, 379

Actiones arbitrariz, 394

— bone fidei, 394

—civiles, 393

— communi dividundo, 393

— familiz herciscundz, 393

 

Actiones finium regundorum, 393
— in factum, 393

— in personam, 392

— in rem, 392

— legis, 22, 84, 404

— mixtz, 392

— perpetuze, 310, 396
— peenales, 394

— preetorix, 393

— prosecutoriz, 394

— stricti juris, 394

— temporales, 310, 396
— utiles, 393

Actionis editio, 407
Actor, 391

Actus, 291

Aditio hereditatis, 372
Adjudicatio, 86
Adjunctio, 306
Adoption, 6, 36, 242, 324
Adpromissio, 360
Adscriptitii, 235
Adversarii, 361

Advocati, 391
f#quitas—see Equity
Agency, 369, 370, 371
Ager publicus, 295

— vectigalis, 295

Agnati, 6, 34

Agnation of a suus heres, 327
Alaric II., code of, 157
Alciat, 185

Alluvio, 305

Appellatio, 413
Appurtenances, 277
Aqueeductus, 291
Aqueehaustus, 291
Arbiter, 390

Arbitration in early law, 15-17
Arrha, 363

425
426 OUTLINES OF

Ascendants, inheritance by, 331
Assessores, 391
Auditorium, 93, 389

BARTOLUS, 183

Basilica, 169

Beneficium abstinendi, 329
— div.sionis, 360

— inventarii, 317

— ordinis, 360

Bilateral contract, 356, 361
Blume’s theory, 160
Bologna, school of, 182
Bonitarian ownership, 283
Breviarium Alaricianum, 157
Burden of proof, 411
Bynkershoek, 186

CANON law, 203

Canuleian law, 48, 244

Capitis deminutio, 231

Capito, 103

Casus, 350, 364

Cautio, 361

— judicatum solvi, 413

— judicio sistendi, 407

Celsus, quotations from,
120, 122, 391

Centumviri, 390

Cessio in jure, 20, 303

Charlemagne, empire of, 175

Charles the Bald, capitulary of,
175

Chiregraphum, 361

Christianity and the Roman Em-
pire, 143

— influence on legislation, 148

Cicero, 31, IIO

Citations, law of, 55, 140, 160

‘Citizenship, extension of,
129

Civil possession, 286

Civitas, 48

Civitates foederate, 51

Clergy, devotion to the civil law,
177

— immunities
145

— influence in the Middle Ages,
T71, 178, 201

Ill,

73,

and privileges,

 

ROMAN LAW.

Code Napoléon, 197

— of Louisiana, 212

Codex accepti et expensi, 361

—Gregorianus et Hermogeni-

—,anus, 155

— repetitz przlectionis, 162

--- Theodosianus, 155

— vetus, I59

Codicillary clause, 337

Codicilli, 337

Coemptio, 23, 30, 244

Cognati, succession of, 79

Collaterals, inheritance by, 332

Collatio Mosaicarum et Roman-
arum legum, 156

Coloni, 235

Coloniz, 51

Colonization and Roman law, 210

Comitia Centuriata, 10, 94, 99

— Curiata, 9, 99

— Tributa, 11, 94, 99

Commercium, 49, 51

Commixtio, 306

Commodatum, 82, 356

Condemnatio, 23, 30, 244

Condictio, 392

— furtiva, 379

Conditio, 347

Condominium, 284

Confarreatio, 23, 30, 244

Confusio, 306, 372

Connubium, 49, 246

Consensual contracts, 361

Consensus, 353

Consistorium, 389

Constitutiones principum, ro4

Consuetudines Feudorum, 173

Consulato del Mare, 208

Contentious jurisdiction, 60

Contracts, essential features of,

352

— growth of, 80

— innominate, 84, 354

— made consensu, 83, 361

— made literis, 81, 360

— made re, 82, 355

— made verbis, 81, 358

— nominate, 354

Contractus emphyteuticarius,
296
INDEX.

Contraria voluntas, 373

Contrectatio fraudulosa, 378

Contributory negligence,
380

Conventio in manum, 247

Conveyance, its origin, 19

— per es et libram, 21

Corporations, 264

Corpus Juris Canonici, 204

— — Civilis, 158-163

Coruncanius, 103

Crimesin the XII. Tables, 140

Cujacius, 110, 185

Culpa, 349, 356, 358, 364, 366,
367, 369, 370, 380

Culpa lata, levis, 349

Curatio, 253

Curators, 257

358,

DAMAGES, 378, 379, 381, 382

Damnum injuria datum, 380

Decreta, 105

Decretals, 204

Decretal super specula, 184

Decretum Gratiani, 104

Dedititii, 236

Defensores civitatis, 391

Delay—see Mora

De Legibus et Consuetudinibus
Angliz of Bracton, 201

Delict, Roman idea of, 375

Delicta graviora, leviora, 147

— publica, 376

Demonstratio, 86, 409

Depositum, 82, 357

Descendants, inheritance by,
330

Dies, 346, 359

Dies fasti, 85

Diffarreatio, 249

Digesta sive Pandectze, 160

Disherison, 322

Divorce, 249

Dolus, 348, 353, 380

Domat, 185

Dominica potestas, 23, 32

Dominium bonitarium, 283

— ex jure Quiritium, 74, 283

— plenum, minus plenum, 284

Donatio causa mortis, 312

 

427

Donatio inter vivos, 312

— propter nuptias, 312

Donellus, 186

Dos, 248, 250

Duplicatio, 398, 409

Dutch colonies, Roman law in,
211

Epict of Caracalla, 130

—of Milan, 143

— unde vir et uxor, 334

Editio actionis, 407

Edicts, imperial, 105

-- pretorian, 61, 100, 102

Edictum, peregrinum, 67

— Perpetuum, 101

— provinciale, 68

— Theodorici, 157

— urbanum, 67

Emancipati, succession of, 78

Emancipatio, 31, 243, 323

Emperor, position of, gi

Emphyteusis, 172, 295

Emphyteuta, 296

Emptio et venditio, 83, 362.

England, legal studies in, 189

— Roman law in, 198

English colonies, 212

Epistolz, 106

Equity, 70, 113, I14

Error, 353, 401

—> facti, juris, 354

Etablissements of Louis IX., 184

Exceptio, 397, 409

— judicati, 412

— rei vendit et traditee, 75

Exceptions dilatoriz, 398 :

—doli mali, metus causa, rei
judicate, pacti conventi, 368

—pacti conventi ad tempus,
cognitorize, procuratoriz, 398

— peremptoriz, 397

Excusationes tutorum, 255

Execution in early law, 28

— in later law, 413

Executor, 407

Expensilatio, 82, 361

Extensive interpretation, 122

Extraordinary procedure, 141,

405, 409
 

428 OUTLINES OF

Extravagantes, 205

FALCIDIAN portion, 335

Familiz emptor, 36, 79, 80

Family, early Roman, 5

Family-law in XII. Tables, 29

Fault—see Culpa

Feudal system, Roman law in,
172

Fideicommissa, 335

Fideicommissarius, 336

Fidejussio, 360

Fiducia, 40, 297

Fiscus, 263, 334

Florentinus, quotation from, 131

Force and fear—see Vis

Foreigners, status of, 64, 73

Formulary system, 86, 405, 409

Fragmenta Vaticana, 156

France, legal studies in, 183

— Roman law in, 195

Fraud—see Dolus

Freedmen, status of, 236

French colonies, 212

Fructus, or fruits, 277, 305

Fuero Real, 195

Furtum, 377

— manifestum, nec manifestum,

41, 378

GAIUS, 103

— quotations from, 17, I12, 122,
128, 402

Gens, its early organization, 7

— its decay, 79

Gentes minores, IO

Gentiles, 7, 35

Germany, legal study in, 187

— Roman law in, 197

Grotius, 186, 208, 209

HABITATIO, 294
Heineccius, 188

Heredes ab intestato, 330
— extranei, 328

— necessarii, 328

— sui et necessarii, 328
Hereditas jacens, 263,.315
Hereditatis aditio, 372
Heres, definition of, 315

 

ROMAN LAW.

Heres, fiduciarius, 336

Holland, legal study in, 185

Holy Roman Empire, 176

Honores, 49

Hortensian law, 48

Huber, 186

Hugo, 188

Husband and wife, XII. Tables,
29

— Justinian’s law, 243

Hypotheca, 297

— tacita, 299

IHERING, 189

Imperial legislation, earlier, 127

— — later, 139

Imperium merum, 59

— mixtum, 69, 388

Incerte persone, 323

Indebiti solutio, 372

Ingenui, 237

Inheritance, its nature, 313

In jure and in judicio, 87

In jure cessio, 20, 303

Injuria, 382

Injuries in the XII. Tables, 40

In jus vocatio, 26, 406

Innominate contracts, 354

Institutes of Justinian, 161

Institution of heirs, 324

Intentio, 86, 409

Interdicta, 60, 399

— causa retinendz et recupe-
rande possessionis, 75, 287,
399

— prohibitoria, restitutoria, ex-

hibitoria, 399

— quorum bonorum, 399

— unde vi, 399

— uti possidetis, 399

— utrubi, 399

International law, 207

Intestate succession, 329

Irnerius, 182

Italy, legal study in, 182

— Roman law in, 193

Iter, 291

JETTISON, 368
Joining of issue, 408
INDEX.

Joint ownership, 284

Judex in the early law, 18

— in the formulary system, 86

— questionis, 88

Judgment, 412

Judices, 389

— pedanei, 142

Judicial legislation, 125

Judicis postulatio, 29

Judicium  familiz
318

Julian law, 55; see also Lex
Julia

Julianus, quotations from, 121,
123, 124, 314

Jura in re, 288

Juridicial possession, 286

Jurisconsults, their character,
102

— authority in the Empire, 103

— scientific influence, 116

Jurisdiction, elements of, 388

— ordinary and extraordinary, 60

— rise of, 15

Jus abutendi, 283

— accrescendi, 325, 334

— fElianum, 85

— equum, 70

— altius non tollendi, 291

—civile, ancient, 14

— civile Flavianum, 85

— civitatis, 48

— dicere, 60, 67

— distrahendi, 300

— edicere, edicendi, 61, 67

— ex non scripto, 222

— feciale, 207

— fruendi, 283

— gentium, earlier, 65, 68

— — later, 112

— honorarium, IOI

— in rem, in personam, 207

— Italicum, 52

— Latii, 50

— oneris ferendi, 291

— Papirianum, 25

— pascendi, 291 :

— personarum, rerum, actionum,
224

— possessionis, 285, 286

erciscunda,

 

429

Jus possidendi, 285

— postliminii, 242, 304

— preetorium, 62

— provinciarum, 55

— respondendi, 103, 104, 124

—- sacrum, non sacrum, 223

— stillicidii, 291

— tigni immittendi, 291

— utendi, 283

— vite necisque, 32

Jus and judicium, 27, 87, 141,
390

Justa causa, 308

Justinian, his legislation, 158

— quotations from, 245, 253,
254, 317, 320, 342

LABEO, IOI

Latini Juniani, 230
Latinitas, 50, 73, 99

Law and morality, 117, 220
— of citations, 55, 140, 160
— of nature—see Natural law.
Legacy, 334

Leges, 98, 99°

— Henrici Primi, 201

— Juliz, 85

Legis actiones, 28, 84
Légistes of France, 196, 197
Legitima portio, 328
Legitimation, 241.

Letting and hiring, 365

Lex Atbutia, 85

— fflia Sentia, 99

— Aquila, 381

— Calpurnia, 392

— Canuleia, 48, 244

— Claudia, 99

— Cornelia, 62

— curiata de imperio, 9, 99
— de responsis prudentum, 140
— Falcidia, 335, 336

— Furia Caninia, 99

— Furia Testamentaria, 335
— Julia de civitatis, 55

— — de vi privata, 402

— — et Papia Poppa, 99, 151
— — Majestatis, 99

— Junia Norbana, 99

— Junia Velleia, 99
430 OUTLINES OF

Lex Mamilia, 99

— Plautia Papiria, 56

— regia, 9

— Rhodia de jactu, 368

— Romana Burgundionum, 158
— Romana Visigothorum, 157
— Silia, 392

— Voconia, 335

Liability in obligations, 348
Libellus conventionis, 407
Libertini, 236

Libertus and patronus, 237
Libripens, 21, 80

Licinian legislation, 48

Literal contracts, 360

Litis denunciatio, 407

Loan for consumption, 355

— for use, 356.

Locatio et conductio, 83, 365
Locus, 347

MACER, quotation from, 129

Magister officiorum, 138

Mancipatio, 21, 303

Mancipium, 23, 32

Mandata, 106

Mandatum, 83, 369

Manumissio, 32, 149, 236

Manus, 22, 23, 244

— injectio, 28, 40, 343, 413

Manuum consertio, 18, 24

Marcellus, quotation from, 121

Marcian, quotations from, 63,
150

Marriage, early Roman, 30

— in later Empire, 151

— in law of Justinian, 243.

Maxims of the Law, 119

Medizval Church and Roman
law, 176

Medizval Empire and Roman
law, 174

Missio in possessionem 413

Modestinus, 103, 127

— quotations from 121, 246

Modus acquisitionis, 302

Montpelier, school of 184

Mora, 350, 365

Mortgage, 297

 

Munera publica, 146

ROMAN LAW.

Municipium, 51, 56.
Mutuum, 83, 355

NATIONAL dominion, 209

| Natural law, 109, III, 208, 221

Natalibus restitutio, 128, 337
Negligence—see Culpa
Negotiorum gestio, 371
Nexum, 40, 81, 82, 84, 343
Nominate contracts, 354
Novatio, 372

Novellz constitutiones, 162
Nudum pactum, 352
Nuncupatio, 81, 82

Nuptize justae, 244

OBLATIO;s 372

Obligations, character of, 342

— ex contractu, 352

— ex delicto, 374

— quasi ex contractu, 371

— quasi ex delicto, 383

Occupatio, 77, 303

Ofilius, 101

Ogulnian law, 48

Oleron, laws of, 208

Operze servorum, 294

— pecorum, 294

Orationes, 100

Outlawry, 15

Ownership, absolute and quali-
fied, 284

— legal and equitable, 283

PACTA adjecta, 363

Pactum nudum, 352

Papacy and the Roman law, 178

Papinianus, 103, 127

— quotations from, 63, 286

Parapherna, 249

Partes certze, incerte, 275

Partidas, 195

Partnership, 368

Patria potestas, ancient principle
of, 23

— — in the XII Tables

— — melioration of, 129, 150

— — law of Justinian, 240, 248

Patrimonium, 33, 37, 38, 314

Paulus, 103, 127, 156
INDEX.

Paulus, quotation from, 111, 114,
II5, 120, 121, 126, 246,-292,
344, 377, 402

Peculium, 235, 293

— adventitium, I51, 241

— castrense, 129, 241

— profectitium, 241

— quasi castrense, 150, 241

Persona, legal idea of, 229

Personal servitudes, 292

Petri exceptiones legum Roman-
orum, 183

Pia causa, 263

Pignoris capio, 29

Pignus, or pledge, 82, 298, 357

Placentinus, 184

Pleadings, 408

Plebeian Tribunate, 12

Plebiscita, 11, 48, 98

Poena, 376

Pollicitatio, 353

Pomponius, quotations from, 120,
126

Populus Romanus, 8

Positive and natural law, 221

Possessio ad interdicta, 286

— ad usucapionem, 286

— bone fidei, 285

— bonorum, 78, 80, 313

— civilis, 285, 311

— continua, 311

— contra tabulas, 323

— in bonis, 75, 285

— justa causa, 285

— longi temporis, 309, 310

— secundum tabulas, 327

Possession, its relation to owner-
ship, 285

— preetorian law of, 74

Portio legitima, 328

Pothier, 185

Precarium, 294

Preedial servitudes, 289

Predium dominians, serviens, 290

Preefecturze, 51

Preefectus annonz, urbi,
torio 95.

Preescriptio, 309, 310

Presumptio hominis, juris, juris
et de jure, 411

pree-

 

431

Preetor fideicommissarius, 336

— peregrinus, 63, 102, 389

— urbanus, 63, 102, 389

Preetorian edicts, 61

— jurisdiction, 59

Preetorian Preefect, 139

Privilegia, 106

Procedure, early civil, 17

— in the XII. Tables, 26

— reforms in 84

— the Justinian law of, 404

Proculeians and Sabinians, 103

Property, growth of legal, 280

Propositus sacri cubiculi, 138

Proprietas nuda, plena, 284

Provinces, organization of, 53
138

— laws in, 54

Public and private law, 48

Publilian law, 48

Purchase and sale, 362

QuarTA Falcidia, 335
— Pegasiana, 336
Quasi contract, 351, 371
— delict, 351, 383
— usufruct, 292
Querela inofficiosi
327
Questio, 87
Questiones perpetuz, 87
Questor, II
— sacri palatii, 138
Quinquaginta Decisiones, 162
Quiritarian ownership, 74, 283
— rights early, 21

testamenti

RAPINA, 379

Ratio legis, 120

Real contracts, 355

Recopilacion, 196

Recuperatores, 390

Remancipatio, 249

Replicatio, 398, 409

Res, definition of, 270

— division of, 272

—mancipi, nec mancipi, 38,
272

— nullius, 304

Rescripta, 105, 140
432 OUTLINES OF

Responsa Papiniani, 158
—prudentum, 102, 104
Restitutio in integrum, 258, 400
— ex clausula generali, 401
Restrictive interpretation, 122
Retaliation for injuries, 42
Reus, 391

Rex, early Roman, 8

— sacrorum, II

Rights, division of, 224

— in rem, in personam, 341, 375
Robbery, 379

Rural servitudes, 290

SACRA, 5

Sacramentum, 18, 408
Sale, contract of, 362
Salvius Julianus, 101
Sanctio pragmatica, 106
Sanctions, early, 14
Satisfaction for injuries, 41
Savigny, 169, 148

Saxon Mirror, 198
Self-defence, 402

Senate, early Roman, 9
— relation to the Emperor, 93
Senatus-consultum, 100

— Pegasianum, 336

— Trebellianum, 336
Sceevola, Cervidius, 127
Servitudes, personal, 292
— preedial, 289

Slavery in XII. Tables, 32
— its mitigation, 128, 149
— Justinian’s law, 233 —
Societas, 83, 368

Solutio, 372

Spain, Roman law in, 194
Spanish colonies, 211
Specificatio, 307

Status, elements of, 231
Stipulatio, 358

— peene, 347

Stoic philosophy at Rome, 108
Substitution of heirs, 325
Succession in early times, 6
—in XII. Tables, 33

— preetorian, 78

— law of Justinian, 313
— per capita, 330, 333

 

ROMAN LAW.

Succession, per stirpes, 330, 333
Suffragium, 49

Sui heredes, 34

Summons, 26, 406

Superficies, 296

Surety, 360

Suspecti crimen, 260

Swabian Mirror, 198
Syngrapha, 361

TESTAMENT, its origin,35

Testamenti factio, 321

Testamentum calatis comitiis, 36,
319 :

— destitutum, 328

— imperfectum, 326

— injustum, 326

— inofficiosum, 327

— in procinctu, 36

—irritum, 327

— nullius momenti, 326

— per xs et libram, 36, 319

— pretorium, 79, 319

— ruptum, 327

Theft, 377

Traditio, 77, 307

Treasure-trove, 304

Treaties, 209

Trial, 410

Tutela, 253

Tutelz administratio, 371

Tutors, kinds of, 254

— powers of, 255

Twelve Tables, general charac-
ter of, 43

ULPIAN, 129, 156

— quotations from, I11, 118, 120
123, 124, 125, 223, 264, 271
302, 315, 346

Ulpian’s law of nature, III

Unde vir et uxor, 334

Unilateral contract, 356

Universitas, 264

Uno contextu, 320

Urban servitudes, 290

Usuarius, 294

Usucapio, 309

Usufructuary, 292

Usurpatio, 311
INDEX.

Usus, 30, 40, 293
Ususfructus, 292

VADEMONIUM, 407
Valerio-Horatian laws, 48
Venditio bonorum, 414
Verbal contracts, 358

Via, 291

Vi, clam, vel precario, 285, 286
Vinculum juris, 342, 343, 374
Vindex, 28, 406

Vindicatio, 379, 392

Vinnius, 186

Vis, 353, 401

433

Voet, 186 -
Voluntary jurisdiction, 60

WarnkOnIG, 187

Warranty in sale, 363

Wills—see Testament

Wisbuy, laws of, 208

Witnesses in court, 412

— in testaments, 320, 321

Women, status of, 30, 151, 243,
322, 323, 354

Written and unwritten law, 222

Writing in contracts, 359, 363
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