LAW OF ROME. All Rights Reserved. HISTORICAL INTRODUCTION TO THE PRIVATE LAW OF ROME BY JAMES MUIRHEAD, LL.D. (GLASG.) PROFESSOR OF ROMAN LAW IN THE UNIVERSITY OF EDINBURGH EDINBURGH ADAM AND CHARLES BLACK MDCCCLXXXVI PRINTED BY BALLANTYNE, HANSON AND CO. EDINBURGH AND LONDON. PREFATOEY NOTE. THE following pages were written originally for the ENCY- CLOPAEDIA BRTTANNICA, but had to be very much abridged in order to bring them within the limits of space the Editor could afford to devote to their subject. He did me the honour to express the opinion that their publication in extenso would prove of service to various classes of readers ; and the Publishers of the " Encyclopaedia " were so good as to urge me to adopt his suggestion. This book is the result. I think it right to prefix this explanation ; for the plan and execution might have been somewhat different had an independent volume been in contemplation from the first. EDINBURGH, 1st October 1886. PRINTED BY BAIXANTYNE, HANSON AND CO. EDINBURGH AND LONDON. PREFATORY NOTE. THE following pages were written originally for the ENCY- CLOPEDIA BRITANNICA, but had to be very much abridged in order to bring them within the limits of space the Editor could afford to devote to their subject. He did me the honour to express the opinion that their publication in extenso would prove of service to various classes of readers ; and the Publishers of the " Encyclopaedia " were so good as to urge me to adopt his suggestion. This book is the result. I think it right to prefix this explanation ; for the plan and execution might have been somewhat different had an independent volume been in contemplation from the first. EDINBURGH, 1st October 1886. CONTENTS, PART I. THE REGAL PERIOD. CHAPTER I. SOCIAL AND POLITICAL CONDITION OF ROME AND ITS POPULATION DOWN TO THE TIME OP SERVIUS TULLIUS. SECT. 1. Genesis of the Roman State (pp. 3-5). Different races. Dif- ferent customs. Dualistic result. SECT. 2. The Patricians (pp. 5-8). They alone ranked as citizens or Quirites. Their gentes or clans. Gentile organisation. Relation between the gentes and their constituent families. SECT. 3. The Clients (pp. 8, 9). How clientage arose. Relation between patron and client. SECT. 4. The Plebeians (pp. 9-13). Origin of the plebs. Accessions to its ranks. Different races and customs represented. Some of the ple- beians belonged to guilds of craftsmen. The greater number engaged in agriculture. Had no gentile institutions and no share in government. CHAPTER II. REGULATIVES OF PUBLIC AND PRIVATE ORDER. SECT. 5. Absence of any Definite System of Law (pp. 14, 15). Pom- ponius's account of the early law. Errors in it. Fas, jus, and boni mores. SECT. 6. Fas (pp. 15-18). What understood by it. Its behests. Their enforcement. The homo sacer. viii CONTENTS. SECT. 7. Jus (pp. 18-21). Meaning and etymology. Its sources : custom and statute. The leges regiae. SECT. 8. Boni Mores (pp. 31-34). Their function : restraining jus and supplementing it. Illustration : influencing faithfulness to engage- ments. CHAPTER III. INSTITUTIONS OF THE PRIVATE LAW. SECT. 9. The Family Organisation (pp. 24-36). The familia and its head and members. The patrician family (25-34). Its perpetuation a religious duty (25). Confarreate marriage (26). The husband's result- ing manus over his wife (27). His patria potestas over issue of the marriage (27-29). Recruitment of a family by adoption when marriage fruitless (29). Conjugal and parental (as distinguished from dominical) position of the paterfamilias (30-32). How and when the pat. potestas came to an end (32, 33). Guardianship of wife, daughters, and pupil sons on death of paterfamilias (33). The family clients and slaves (33, 34). Plebeian family relationships (34-36). No justae nuptiae. Their formless unions only matrimonia. Exercised a de facto pat. potestas. Having no gentes, set more store than the patricians on cognati and adfines. SECT. 10. Distribution of Land and Law of Property (pp. 36-42). Varro's bina jugera (36, 37). Gentile settlements (37, 38). Possessions in ager publicus (38). Grants of land to plebeians (39). Were the heredia inalienable ] (39, 40). Dominium ex jure Quiritium (40). Pro- perty in movables (40-42). SECT. 11. The Order of Succession (pp. 43-49). Patrician practice (43-47). By law a man's wife and children, if in manu and in potestate at his death, were his proper heirs (siii heredes) ; failing them his gens succeeded (43). Children who had quitted the family by marriage or otherwise were not sui heredes (44). By law no preference of sex or age (44, 45). Splitting-up of a heredium avoided by testamentary arrange- ment (45, 46). Testaments made with sanction of curies (47). Ple- beian order of succession (48, 49). De facto a plebeian's children in potestate succeeded (48). Having no gentiles, and being unable to make a testament, his succession was dejure vacant on failure of children (48). Its de facto appropriation by a kinsman, the foundation of the later usucapio pro herede (48, 49). SECT. 12. Breach of Contract, and Private and Public Offences (pp. 49- 55). Social arrangements left narrow range for contractual engagement (49). The guarantees for good faith : invocation of Fides, jusjurandum, and de facto pledge (50, 51). Redress for breach (51). Redress for wrongs outside contract (52). Private vengeance (52, 53). Expiatio, supplicium, sacratio capitis (53, 54). Compositions (55). CONTENTS. ix CHAPTER IV. THE SERVIAN REFORMS. SECT. 13. Effect of the Reforms of Servius Tullius on the Law of Pro~ perty (pp. 56-64). The census, and the necessity for regulating convey- ances of censuable property (56, 57). Mancipium or mancipation, its origin and reformation by Servius (57-60). Meaning of manctpium (61, 62). Res mancipi and nee mancipi (62-64). SECT. 14. Their Incidental Effects on the Law of the Family, of Succes- sion, and of Contract (pp. 64-69). Employment by plebeians of man- cipium, under the name of coemptio, as a civil form of marriage and means of acquiring manus over their wives (64, 65). Their employ- ment of it for mortis causa disposal of their estates as a makeshift for a testament (65, 66). Its employment, under the name of nexum, in con- tracting money loans (67, 68). Its employment in emancipation and adoption of a filiusfamilias, and in release of a nexal debtor (68). In all those applications it involved acquisition of manus (69). SECT. 15. Servian Amendments on the Course of Justice (pp. 69-77). The state of matters before Servius (69-73). The king's criminal juris- diction (69). Those of the paterfamilias and the gens (70). Origin of the king's jurisdiction inter privates (71-73). Servian reforms (73-77). The centumviral court (75, 76). The unus judex (77). PART II. THE JUS CIVILE. (From the Establishment of the Repiiblic till the Subjugation of Central and Southern Italy.) CHAPTER I. HISTORICAL EVENTS THAT INFLUENCED THE LAW. SECT. 16. The, Change from King to Consuls (pp. 81-83). The strife between patricians and plebeians and its causes. SECT. 17. Political Inequalities Removed (pp. 83-88). The first seces- sion and the tribunate (83, 84). The concilium plebis and its plebiscita (84). The second secession and the comitia of the tribes (84-86). The third secession and the Hortensian law (86). The Canuleian law and x CONTENTS. repeal of the prohibition of intermarriage of patricians and plebeians (86, 87). The Licinian laws, admission of the plebeians to the con- sulate, and institution of the praetorship (87, 88). Plebeians in all the magistracies (88). SECT. 18. Uncertainty of the Law (pp. 88-90). The Terentilian roga- tion, the Decemvirate, and the XII Tables. SECT. 1 9. The Public Lands (pp. 90-92). How these were dealt with. Patrician monopoly. The Cassian law of 268 u.c. The Licinian laws. Later agrarian legislation. SECT. 20. The Law of Debt (pp. 92-96). Causes of plebeian poverty and patrician wealth (92). Nexal loans and sufferings of the nexi (93). Measures in relief (94). Poetilian law abolishing nexum (95). Subse- quent enactments in aid of debtors (96). CHAPTER II. THE TWELVE TABLES. SECT. 21. Their Compilation (pp. 97, 98),, , ^ SECT. 22. TJieir Sources (pp. 98, 99). SECT. 23. Their Remains and Reconstruction (pp. 99-103). SECT. 24. General Characteristics of the Laws contained in them (pp. 103-106). CHAPTER III. THE PRIVATE LAW WITHIN AND BEYOND THE TABLES. SECT. 25. Citizen and Non-Citizen (pp. 107-113). Early law personal, not territorial (107). Position of foreigners (107, 108, 110). Conubium, commercium, actio (108, 109). Amicitia and hoxpitium (110, 111). Conu- bium, commercium, and recuperatio under treaty arrangements (111-113). SECT. 26. The Gens or Clan (pp. 113, 114). Effect of the XII Tables on gentile institutions. SECT. 27. The Family Relations Proper (pp. 115-121). Husband and wife (115-117). Manus-l&ss marriage, and manus superinduced by a year's iisus (115). The wife's dos or dowry (116). Divorce (117). Parent and child (117-120). The patria potestas (118). " Si pater- familias ter filium venum duit, films a patre liber esto" (119). Adop- tion (119, 120). Master and slave (120, 121). Statu liberi (120). Noxae deditio (120, 121). SECT. 28. GuardiansJiip and Introduction of the Order of Agnates (pp. 121-126). Impossibility of extending the gentile guardianships of the patricians to the citizens generally (121, 122). Agnatic guardianship substituted by the Decemvirs (122;. Agnation defined and illustrated CONTENTS. xi (123, 124). Order of devolution of tutory over females and male pupils under the Tables (124, 125). The office of a tutor (125). Cura- tory of lunatics and spendthrifts (125, 126). SECT. 29. Capitis Deminutio (pp. 126-131). Caput and capitis demi- nutio what ? (126, 127). Various degrees of capitis deminutio (127). Cap. dem. minima in particular (128-131). It was change of family, "but not necessarily of status in the family (129). It dissolved patria potestas and agnation (130), and extinguished claims of creditors of the capite minutus (131). SECT. 30. Mancipation and the Law of Property (pp. 131-149). Was there under the Tables any quiritarian ownership (manus) of res nee mancipi ? (131, 132). Natural and civil modes of acquiring property (133). Mancipation of res mancipi (133-143). Changes on the Servian mancipium consequent on the introduction of coined money (134, 135). Effect of mancipation in passing property (135). Transferrer's aucto- ritas or obligation to maintain his title (136-138). Statutory limita- tion of the auctoritas (138). Leges mancipii or concurrent engagements of transferrer and transferee (139). The fiducia or lex fiduciae in particular (140-142). Usureceptio fiduciae (142, 143). Did mancipa- tion avail to transfer ownership of res nee mancipi ? (143). Injure cessio (144). Adjudication (145). Uscucapion (145, 146). Offences against property (146-148). Jura in re aliena (148-149). SECT. 31. Nexum and the Law of Obligations (pp. 149-166). Sources of obligation, and preponderance in the XII Tables of obligations ex delicto (149). Mere agreement, unclothed in legal word and form, not creative of civil obligation (150, 151). Conservatism in matters of form (151). The contracts of the earliest jus civile (151). Nexum in particular (152-162). Its origin (152). The ceremonial (153). Effects of the nexal contract (154-157). The creditor's right of manus ivjectio under the XII Tables (157, 158). The nexus (or nexal debtor) in detention (158-160). Abuses of the system (160). Its practical aboli- tion by the Poetilian law (161, 162). Ordinary engagements, how their fulfilment was guaranteed (163-165). Obligations ex re (166). SECT. 32. The Law of Succession (pp. 166-180). Testamentary succes- sion (166-172). The old forms of testament and the " uti legassit" of the Tables (166, 167). The testament per aes et libram in its inchoate condition (167-169). Its second and third stages (169, 170). Appli- cation to it of the "uti legassit" (171). Necessity of institution or disherison of the testator's sui heredes (171). Intestate succession, sui heredes, adgnati, gentiles (172). Succession of agnates introduced by the Decemvirs to meet the case of non-patrician citizens (172). Limi- tations (173). Resume' (17 '3, 174). Necessary and voluntary heirs, and how an inheritance vested in them (174, 175). Eepresentation, con- sortium, and accrual (175, 176). " Heres eadem persona cum defuncto " (177). The heir and the family sacra, (178). Usucapio pro herede (179, 180). xii CONTENTS. CHAPTER IV. JUDICIAL PROCEDURE UNDER THE DECEMVIRAL SYSTEM. SECT. 33. The Legis Adiones generally (pp. 181-186). Gaius's account of them (181, 182). The five genera agendi (183). Preliminary in jus vocatio (183, 184). Proceedings in jure and in judicio (184, 185). Centumviral court, unus judex, and ires arbitri (185, 186). SECT. 34. The Legis Actio Sacramento (pp. 186-197). General idea (187). The procedure in vindication of land (179-191). The manus consertio (188-190). The sacramento provocatio, &c. (190, 191). The judgment (190). What did it all mean? (192-194). Effect of the judgment (194, 195). Application of the sacramental action in other cases (195-197). SECT. 35. The Legis Actio per Judicis Postulationem (pp. 197-201). SECT. 36. The Legis Actio per Manus Injectionem (pp. 201-214). Gel- lius's description of it (201-203). Against whom employed (203-205). Procedure when against a judgment-debtor (205-207). " Capite poenas dabat"and "partis secanto," meaning (207-210). Attempted recon- struction of provisions of XII Tables on subject (211). Effect of the Poetilian law (211, 212). Man. injectio pro judicato and pura (213, 214)j SECT. 37. The Legis Actio per Pignoris Capionem (pp. 214-217). SECT. 38. Judicial and Quasi-Judicial Procedure outside the Legis Actiones (pp. 217-225). Magisterial intervention in exercise of the imperium (217-219). Plebeian processes before the judices decemviri (219, 220). Pontifical jurisdiction (221, 222). Censorial, familiar, and gentile intervention (222, 223). International recuperatio (223-225). CHAPTER V. THE STIPULATION AND THE LEGIS ACTIO PER CONDICTIONEM. SECT. 39. Introduction of the Stipulation (pp. 226-229). Its import- ance in the history of the law (226, 227). Theories as to its origin (227, 228). Its forms sponsio (ffirtvSeiv and (TTrovSij), promissio, &c. (228, 229). A formal contract (229). SECT. 40. The Silian and Calpurnian Laws (pp. 229-232). The Silian law apparently a result of the Poetilian. Its sponsio et restipulatio tertiae partis the earliest statutory sanction of stipulation. The Calpur- nian law. SECT. 41. The Legis Actio per Oondictionem (pp. 232-235). Introduced by the Silian and Calpurnian laws. Its advantages. Procedure. CONTENTS. xiii PAET III. THE JUS GENTIUM AND JUS HONORARIUM. (Latter Half of the Republic.) CHAPTEK I. THE INFLUENCES THAT OPERATED ON THE LAW. SECT. 42. Growth of Commerce and Influx of Foreigners (pp. 239-242). Necessary consequence, commencement of a jus gentium. This chiefly in contract, but more or less affected all branches of the law. Illustrations. SECT. 43. Institution of the Peregrin Prcetorship (pp. 242-244). The urban praetorship. Date of, and reasons for, the introduction of the peregrin praetorship. Eelation of the new magistrate to his urban colleague. SECT.. 44. Simplification of Procedure and Introduction of New Remedies under the Aebutian Law (pp. 244, 245). Probable purpose of the Aebu- tian law. Eesult, the formular system of procedure. Characteristic of the new system. SECT. 45. Provincial Conquests (pp. 245, 246). Eoman officials brought face to face with new institutions. Some of these imported to Rome. SECT. 46. Spread of Literature and Philosophy (pp. 246, 247). Aided equity. This not confined to praetors and their edict. SECT. 47. Decline of Religion and Morals (pp. 248-251). Effects ou domestic relations (248-250). Divorce and judicium de moribus. In- officious testaments and introduction of the law of legitim. Effects in social and mercantile life (250, 251). New guarantees in contracting. Bankruptcy arrangements. Measures for repressing fraudulent dealings. CHAPTEK II. FACTORS OF THE LAW. SECT. 48. Legislation (p. 252). Paucity of legislative enactments affecting the private law. Some of the more important (in foot-note). SECT. 49. Edicts of the Magistrates (pp. 253-258). Antiquity of practice of publishing edicts (253). The urban prastor's edict (253-257). Edicta repentina and perpetua. Edictum tralaticium. Its gradual enlargement. Edict proper and appendix of styles. Forms of the xiv CONTENTS. edictal provisions. The edicts of the peregrin praetor, the provincial governors, and the curule sediles (257, 258). SECT. 50. Consuetude, Professional Jurisprudence, and Res Judicatae (pp. 258-264). The making of custom (258-261). The pontiffs and their " interpretatio " (261, 262). The Jus Flavianum, Tiberius Corun- canius, and the Jus Aelianum (262). The "veteres" of the later republic (263, 264). CHAPTEE III. SUBSTANTIVE CHANGES IN THE LAW DURING THE PERIOD. SECT. 51. Citizens, Latins, and Peregrins (pp. 265, 266). Jus Latii and colonial latins. Peregins of lower grade. SECT. 52. The Law of Property and the PuUician Edict (pp. 266-271). Changes in the law of property and of jura in re aliena generally (266-268). The Publician edict and the defects it was introduced to remove (268-271). Results, the introduction of the in bonis (or boni- tarian) tenure of res mancipi (269, 270), and of bonae fidei possessio as a fictitious property (271). SECT. 53. Development of the Law of Contract (pp. 271-287). De- velopment of the law of obligation generally (272). Popularisation of the stipulation (273). Indefinite stipulations, the stipulatio Aquiliana, and praetorian and judicial stipulations (274). The nomen transscripticium or literarum obligatio (275-278). Evolution of the purely consensual con- tracts (278). Sale as an example : its beginnings (279). Sale in the XII Tables (280). How aided per aes et libram (280, 281). How aided by nomina transscripticia, ancillary stipulations, &c. (282, 283). The actio empti originally an actio ex stipulatu (284). It becomes a bonae fidei action (285). Thereby sale becomes an independent consen- sual contract (285, 286). The real contracts (286, 287). SECT. 54. Amendments on the Law of Succession (pp. 288-294). Changes effected by legislation, interpretatio, and practice of the cen- tumviral court (288). Praetorian bononwi possessio (289-294). Nature and probable origin (289). Bonor. poss. secundum tabulas (289-291). Bonor. poss. contra tabulas (291, 292). Bonor. poss. ab intestato (292). Praetorian order of intestate succession (293). Admission of cognati (293, 294). How honor, possessio obtained (294). Its immediate effect (291). CONTENTS. xv PART IV. THE JUS NATURALE AND MATURITY OF ROMAN JURISPRUDENCE. (The Empire until the Time of Diocletian.} CHAPTER I. CHARACTERISTICS AND FORMATIVE AGENCIES OF THE LAW DURING THE PERIOD. SECT. 55. Characteristics generally, and Recognition of a " Jus Natu- rale " in Particular (pp. 297-301). Nature of the changes on the law during the period (297, 298). Many of them not to be accounted for by advance of jus gentium, but due to growth of jus naturale (298, 299). Characteristics and fundamental principles of latter (299-301). Natu- ralis ratio (301). SECT. 56. Influence of Constitutional Changes (p. 302). SECT. 57. Legislation of Comitia and Senate (pp. 302-307). Comitial legislation of Augustus regarding marriage (and herein of the lex Ju'ia et Papia Poppaea), manumission, and judicial procedure. Legislation of the senate from time of Tiberius onwards. SECT. 58. The Consolidated Edictum Perpetuum (pp. 307-310). His- tory of the Julian consolidation. Its contents and arrangement. SECT. 59. Responses of Patented Counsel (pp. 310-312). Origin of the jus respondendi. Value of the responsa. Their regulation by Hadrian. SECT. 60. Constitutions of the Emperors (pp. 312-314). Edicta, their character at this time. Rescripta and decreta. CHAPTER II. JURISPRUDENCE. SECT. 61. Labeo and Capito, and the Schools of the Proculians and Sabinians (pp. 315-318). SECT. 62. Julian, Gaius, and the Antoninian Jurists (pp. 318-323). Salvius Julianns (318, 319). Sextus Pomponius (319). Sextus Caecilius Africanus (320). Gaius (320-322). Q. Cervidius Scsevola (322, 323). SECT. 63. Papinian, Ulpian, and Paul (323-326). ^Emilius Papini- anus (323, 324). Domitius Ulpianus (325). Julius Paulus (326). SECT. 64. Modestine and the Post-Severan Jurists (326-328). Herennius Modestinus. Paucity of jurisprudential literature after reign of Alex- ander Severus. Excellence of many of the rescripts of Gordian and Diocletian. SECT. 65. Remains of the Jurisprudence of the Period (pp. 328-335). The Institutes of Gaius and the Verona Codex (328-331). Part of xvi CONTENTS. Ulpian's Liber Eegularum (331). Paul's " Sentences" (332). The Notae Juris of Valerius Probus, the Assis distributio of Maecianus, the Dosithean fragment on manumissions, and the Fragmentum dejure fisci (333, 334). Minor fragments (334, 335). CHAPTEK IIL SUBSTANTIVE CHANGES IN THE LAW DURING THE PERIOD. SECT. 66. Citizenship, Junian Latinity, and Peregrinity (336-341). The inductive cause of the Aelia-Sentian law (336, 337). Its provisions (337). The Junia-Norban law and the Junian latins (338, 339). Cara- calla's grant of citizenship to all his free subjects (340, 341). SECT. 67. Concession of Peculiar Privileges to Soldiers (341-345). Exceptional position of soldiers (341). The testamentum militare (342- 344). The peculium castrense (344, 345). SECT. 68. The Family (pp. 345-349). Husband and wife, and the disappearance of marital manus (345, 346). Parent and child, and relaxation of the patria potestas (346, 347). Tutory, and disappearance of that of women (348). Curatory, and institution of that of minor.? (348, 349). SECT. 69. Possession, Property, Real Eights, and Obligations (pp. 349- 351). SECT. 70. The Law of Succession, and particularly Testamentary Trusts (pp. 351-356). Testamentary succession (351). Legacies and the Senatusconsultum Neronianum (352). Fideicommissa (mortis causa trusts), universal and singular (353, 354). Codicils (355). Intestate succession and the Tertullian and Orphitian senatusconsults (335, 336). CHAPTEK IV. JUDICIAL PROCEDURE. SECT. 71. The Formular System (pp. 357-367). Characteristic (357). The Aebutian and Julian laws (357). Transition from earlier system, in personal actions by simplification of the procedure per condictionem (358-360), and in vindicationes by the introduction of that per sponsionem (360), paving the way for the formula petitoria (361). Formulae in jus and infactum conceptae (361, 362). Actiones utiles (362). Actiones fic- ticiae (362, 363). Actiones in factum (364). Actiones arbitrariae (364, 365). Exceptiones, &c. (366, 367). Elasticity of t\ie formula (367). SECT. 72. Procedure "Extra Ordinem" (pp. 368, 369). The extraor- dinaria cognitio and what occasioned it. SECT. 73. Jural Remedies Flou-ing Directly from the Magistrate's Im- perium (pp. 369-375). Interdicts (370-372). Uti possidetis and utrubi in particular (371, 372). Praetorian stipulations (372, 373). Missione in possessionem (373, 374). In integru/n restitutio (374, 375). CONTENTS. PART V. THE PERIOD OF CODIFICATION. (Diocletian to Justinian.) CHAPTER I. HISTORICAL EVENTS THAT INFLUENCED THE LAW. SECT. 74. Supremacy of the Emperors as Sole Legislators (pp. 379-381). The leges generales or edictales of the later empire. SECT. 75. Establishment of Christianity as the State Religion (pp. 381- 384\ Its influence generally (381, 382). Repeal of the caduciary pro- visions of the Julian and Papia-Poppaean law (382). Legislation about divorce (382, 383). Institution of the bishop's courts (383, 384). SECT. 76. Social and Agrarian Changes (pp. 384-387). In particular, the recognition and regulation of the colonate (or servitude of the glebe). SECT. 77. Abandonment of the Formular System of Procedure (pp. 387- 390). Abolition of the two-staged procedure (1) in jure and (2) in judicio, and. remit to ajudex allowed only exceptionally (387, 388). The ordinary fora (388). The new procedure per libellum conventions, &c. (389). Execution (389, 390). SECT. 78. The Valentinian "Law of Citations" (pp. 390, 391). Scien- tific jurisprudence gives place to mechanical. CHAPTEE II. ANTE-JUSTINIANIAN COLLECTIONS OF STATUTE AND JURISPRUDENCE. SECT. 79. The Gregorian and, Hermogenian Codes (pp. 392, 393). SECT. 80. The Theodosian Code and Post-Theodosian Novels (pp. 393- 395). SECT. 81. The " Collatio" the Vatican Fragments, and the " Consulta- tio" (pp. 395-397). The Collatio Legum Mosaicarum et Romanarum (395). The Vatican Fragments (396). The consultatio veteris juriscon- sulti (397). SECT. 82. The Romano- Barbarian Codes (pp. 397-399). The Edictum Theodorici (397). The Breviarium Alaricianum or Lex Romana Visi- gothorum (398). The Lex Romana Burgundionum (399). SECT. 83. Oriental Collections (401, 402). Bernardakis's Sinaitic papyri. The Syrian tl Leges Constantini, Theodosii, et Leonis." b xviii CONTENTS. CHAPTEE III. THE JUSTINIANIAN LAW. SECT. 84. Justinian's Collections and his own Legislation (pp. 402-414). Justinian (402). Chronology of his collections (403). His first Code of statute-law (403, 404). His commission for preparation of the Digest (404-406). The Quinquaginta Decisiones (406). The Institutes (406, 407). Publication of the Digest (407). Its divisions, and the sources drawn upon (408, 409). The order of sequence of books, titles, and fragments (409-411). The Codex Repetitae Praelectionis or second edition of his Code of statute-law (411). Its relation to the Digest (412). Its sources (413). The Novels (413). Characteristics of Justinian's own enact- ments (414). SECT. 85. Changes in the Law of the Family (pp. 414-419). Husband and wife marriage, divorce, dos, and donatio propter nuptias (415, 416). Parent and child still greater relaxation of the patria potestas, personally and patrinionially (416-418). Amendments in other branches of the law of the family adoption, legitimation, emancipation, tutory, slavery, manumission (418, 419). SECT. 86. Changes in the Law of Property and Obligation (pp. 419- 422). Abolition of distinction between res mancipi and nee mancipi and quiritarian and bonitarian ownership, and simple tradition made the universal mode of conveyance (419, 420). Usucapion and long possession remodelled (420). Emphyteusis sanctioned and regulated (420, 421). Changes in the law of obligation (421). SECT. 87. Changes in the Law of Succession (pp. 422-426). Testa- ments and codicils (422, 423). Amendments in the law of intestate succession prior to the publication of the Code (423). The 118th and 127th Novels, eradicating agnation and settling a new order of succession on intestacy (423, 424). Declaration of a child's right to be his parent's heir in a certain share of his estate, and practical aboli- tion of bonorum possessio contra tabulas (424, 425). Other amendments (425, 426). CHAPTEK IV. THE JUSTINIANIAN LAW-BOOKS. SECT. 88. Their Use in the Courts and the Schools (pp. 427-430). Translations, abridgements, &c., of Digest and Code (427, 428). New course of study for the law- schools (429). Greek paraphrase of the Institutes imputed to Theophilus (430). SECT. 89. Their Fate in the East (pp. 430-432). The Byzantine jurisprudence, and particularly the Basilica. SECT. 90. Their Fate in the West (pp. 432-443). The Romano-Bar- CONTENTS. xix barian Codes the earliest instructors of Central and Western Europe in Roman law (432). Transmission of Justinian's collections to Italy (432, 433). Literary indications of their currency there and elsewhere in Southern Europe between the sixth and eleventh centuries (433, 434). Revival of their study at Bologna, and their treatment by the glossarists (434, 435). SECT. 91. The Priiicipal Manuscripts, Texts, and Editions of the Justi- nianian Books (pp. 435-439). APPENDIX. NOTE A. On the use of the word corjnati by the lay writers (p. 441). NOTE B. On coemptio (pp. 441-443). NOTE C. On the definitions of nexum by Mamilius, Quint. Mucius, and Ael. Gallus (pp. 443 sq.) NOTE D. Ihering on the effect of the lex Papiria (de sacramentis exigundis) on the sacramental procedure (pp. 444 sq.) NOTE E. On the deposit of the sacramental sheep, cattle, or money ad pontem (p. 445). NOTE F. Argument from the L. colon. Jutiae Genctivae that the aes confessum of the XII Tables meant nexal loan (p. 445 sq.) NOTE G. Kohler on the partis secanto of the XII Tables (p. 446 sq.) NOTE H. Cicero's anecdote of Canius and Pythius, as illustrative of the operation of the nomen transscripticium (pp. 447 sq.) ADDENDUM. On p. 186, 1. 13, after "however," insert "unless, perhaps, when they arose under a lex mancipii (p. 139)." ABBREVIATIONS IN REFERENCES TO \ LITERATURE. Arch. Giurid. Arcliivio Giuridico, diretto di Filippo Serafini (Prof, in Pisa). Bologna, and now Pisa, 1868-86 ; vol. xxxvii. current. Baron, Gesch. d. R. R. Geschichte des Romischen Rechts, von Dr. J. Baron (Prof, in Berne). Erster Theil : Institutionen u. Civil- prozess. Berlin, 1884. Vol. ii. not yet published. Bekker, Aktionen (or Aid.) Die Aktionen des Rom. Privatrechts, von Dr. E. I. Bekker (Prof, in Heidelberg). 2 vols. Berlin, 1871, 1873. Bekker u. Muther's Jahrb. Jahrbuch d. gemeinen deutschen Rechts, herausg. von Bekker, Muther, u. Stobbe. 6 vols. Leipsic, 1857-63. Bethmann-Hollweg, Rom. CP. (or Gesch. d. CP.) Der Rom. Civil- prozess, von (t) Dr. A. v. Bethmann-Hollweg. 3 vols. Bonn, 1864-66. (They form the first three of his 6 vols. on the Civil- prozess des gemeinen Rechts, Bonn, 1864-74.) Bruns (or Bruns, Fontes). Fontes Juris romani antiqui ed. (f) Car. Geo. Bruns. 4th ed. Tubingen, 1879. Buonamici, Procedura. La Storia della Procedura civile Romana, per Francisco Buonamici (Prof, in Pisa). Vol. i. Pisa, 1886. Vol. ii. not yet published. Burckliard-Gliick. Gliick's Ausfiihrliche Erlauterung d. Pandekten . . . fortgesetzt von . . . Dr. Hugo Burckhard (Prof, in Wiirzburg). Serie d. Bucher 39. u. 40. (As yet 3 vols.) Erlangen, 1871-81. Clark, Early Rom. Law. Early Roman Law : the Regal Period, by E. C. Clark, LL.D. (Prof, in Cambridge). London, 1872. Clark, Pract. Jurisprud. Practical Jurisprudence : a Comment on Austin, by the same author. Cambridge, 1883. Cod. (or Cod. Just.) Codex Justiniani Augusti. See infra, p. 438. Collatio. Lex Dei, sive Mosaicarum et Romanarum legum collatio. See infra, p. 396. Collect, libror. jur. antejust. Collectio librorum juris antejustiniani in usum scholarum. Edid. P. Krueger, Th. Mommsen, G. Stude- ABBREVIATIONS. xxi mund. (As yet 2 vols.) Vol. i., 2d eel., Berlin, 1884 ; vol. ii., 1st ed., Berlin, 1878. Corp. jur. rom. antejust. Corp. Juris Romani Antejustiniani, consilio Bockingii, Bethmann-Hollwegii, Puggaei, aliorunique institutum. Bonn, 1831-44. Danz, Gesch. d. R. R. Lehrbuch der Geschichte d. Rom. Rechts, von (t) Dr. H. A. A. Danz. 2d ed., 2 vols. Leipsic, 1871, 1873. Danz, Sacrale Schutz. Der sacra] e Schutz im Rom. Rechtsverkehr, by the same author. Jena, 1857. Dig. Digesta (or Pandectae) Justiniani Augusti. See infra, p. 438. Dirksen, Hinterlass. Schrift. Heinrich Ed. Dirksen's Hinterlassene Schriften zur Kritik u. Auslegung d. Quellen Romischer Rechts- geschichte, herausg. von Dr. Fr. D. Sanio. 2 vols. Leipsic, 1871. Ferrini, Fonti. Storia delle Fonti del Diritto Romano, e della Giuris- prudenza Romana, di Contardo Ferrini (Prof, in Pa via). Milan, 1885. FiiKtel de Coulanges. La Cite Antique : etude sur le culte, le droit, les institutions de la Grece et de Rome. 7th ed. Paris, 1879. Gai. Gaii Institutionum libri iv. See infra, p. 330. Gaii Epit. Gaii Epitomes Institutionum libri ii. In the Lex Romana Visigothorum ; see infra, p. 398. Genz. Das Patricische Rom, von Dr. Hermann Genz. Berlin, 1878. Gluck-Burckhard. See Burckhard-Gliick. Gliick-Leist. Gliick's Erlauterungen d. Pandekten . . . fortgesetzt von Dr. Burkard Wilh. Leist (Prof, in Jena). Serie d. Biicher 37. u. 38. (As yet 5 vols.) Erlangen, 1870-79. Grunhut's ZSchr. Zeitschrift iiir das privat- und offentliche-Recht der Gegenwart, unter Mitwirkung d. Wiener jurist. Facultat, herausg. von Dr. C. S. Griinhut. Vienna, 1874-86. Vol. xiii. current Holder, Erbrecht. Beitrage zur Geschichte d. Rom. Erbrechts, von Dr. Ed. Holder (Prof, in Erlangen). Erlangen, 1881. Huschke, Jurisprud. Antejust. Jurisprudentiae Antejustinianae quae supersunt. In usum max. academ. compos, recens. adnot. (t) Ph. Ed. Huschke. 4th ed., Leipsic, 1879. Huschke, Multa. Die Malta u. das Sacramentum in ihren verschied- enen Anwendungen, by the same author. Leipsic, 1874. Huschke, Nexum. UeberdasRecht des Nexum u. d. alte rom. Schuld- recht, by the same author. Leipsic, 1846. Huschke, Studien. Studien des Romischen Rechts, by the same author. Breslau, 1830. Ihering, Geist. Geist d. rom. Rechts auf d. verschiedenen Stufen seiner Entwickelung, von Dr. Rudolph von Ihering (Prof, in Gottingen). As yet 4 vols., in several editions. Made use of in the following pages : Vol. i., 3d ed., Leips., 1873 ; vol. ii., 2d ed., 1866 ; vol. iii., 2d ed., 1869 ; vol. iv., 2d ed., 1871. There is a French translation by Meulenaere, revised by the author, in 4 vols., Paris, 1877-78. xxii ABBREVIATIONS. Ihering, Scherz u. Ernst. Scherz und Ernst in der Jurisprudenz, by the same author. 2d ed. Leipsic, 1885. Ihering, Zweck. Der Zweck im Recht, by the same author. (As yet) 2 vols. Leipsic, 1877, 1883. Inst. Justiniani Institutiones. See infra, p. 436. Jurisprud. Antejust. See Huschke. Karlowa, Rom. CP. Der romische Civilprozess zur Zeit d. Legisactio- nen, von Dr. Otto Karlowa (Prof, in Heidelberg). Berlin, 1872. Karlowa, Rom. Ehe. Die Formen d. Rb'in. Ehe u. Manus, by the same author. Bonn, 1868. Karlowa, Rom. RG. Romische Rechtsgeschichte, Erster Band : Staats- recht u. Rechtsquellen. By the same author. Leipsic, 1885. (Vol. ii. not yet published.) Keller, Rom. CP. Der Rom. Civilprocess u. die Actionen, von (t) Dr. Fried. Lud. von Keller. 1st ed., 1852 ;. 6th ed., by Wach, Berlin, 1883. Kohler, Shakespeare. Shakespeare vor dem Forum der Jurisprudenz, von Dr. Jos. Kohler (Prof, in Wiirzburg). Wiirzburg, 1884. Krit. VJS. (or VJSchr.) Kritische Vierteljahrsschrift fur Gesetz- gebung u. Rechtswissenschaft, herausg. von "Windscheid, Bekker, Brinz, Seydel, &c. Munich, 1853-86. Vol. xxiii. (ix. of new series) current. Kuntze, Cursus. Cursus des Rom. Rechts, von. Dr. Joh. Emil Kuntze (Prof, in Leipsic). 2d ed., Leipsic, 1879. Kuntze, Excurse. Excurse liber Rom. Recht, by the same author. 2d ed., Leipsic, 1880. Lange, Rom. Alt. Romische Alterthiimer, von Dr. Ludwig Lange. 3 vols. Berlin, 1863-71, and subsequently. Leist, Bonor. Poss. Die Bonorum Possessio : ihre geschichtliche Ent- wickelung, &c., dargestellt von Dr. Burkhard Wilh. Leist (Prof, in Jena). 2 vols. Gottingen, 1844. Leist- Gliick: see Gliick-Leist. Leist, Oraeco-ital. RG. Graeco-italische Rechtsgeschichte, by the same author. Jena, 1884. Lenel, Beitrdge. Beitrage zur Kunde des Praetorischen Edicts, von Dr. Otto Lenel (Prof, in Kiel). Stuttgart, 1878. Lenel, Edict. Das Edictum Perpetuum : ein Versuch zu dessen Wie- derherstellung, by the same author. Leipsic, 1883. Maine, Anc. Law. Ancient Law : its Connection with the Early History of Society, &c., by Sir Henry Sumner Maine (1st ed., 1861), 9th ed., London, 1883. Marculf. Marculfi monachi Formularum libri ii. Lut. Par., 1513. (Many editions.) Marquardt, Rom. Staatsverwalt. Romische Staatsverwaltung, von Joachim Marquardt. 3 vols. Leipsic, 1873-78. (Vols. iv.-vi. of his and Mommsen's Handbuch d. Rom. Alterthiimer.) ABBREVIATIONS. xxiii Mommsen, Rom. Forsch. Rdmische Forschungen, von Th. Momrasen. 2 vols. Berlin, 1864, 1879. Mommsen, Bom. Staatsrecht (or SE.) Romisches Staatsrecht, by the eame author. 2 vols. (Vol. iii. not yet published.) Leipsic, 1871-75, and later editions. (Vols. i. and ii. of Marquardt and M.'s Hand- buch d. Rom. Alterthiimer.) Moyle, Inst. Imp. Just. Institution, libri iv. with English commen- tary, &c., by J. B. Moyle, B.C.L. 2 vols. Oxford, 1883. Nouv. Rev. Hist. Nouvelle Revue Historique de Droit Francais et Etranger, publ. sous la direction de Laboulaye, de Roziere, Dareste, Gide, Esmein, &c. (Continuation of the Revue de Legislation, &c.) Paris, 1877-86. Vol. x. current. Nov. Novellae Constitutiones Justiniani. See infra, p. 439. Paul. Pauli Sententiae. See infra, p. 332. Pernice, Labeo. Marcus Antistius Labeo : das rom. Privatrecht im ersten Jahrhuuderte d. Kaiserzeit, von Dr. Alfred Pernice (Prof. in Greifswald). (As yet) 2 vols. Halle, 1873, 1878. Puchta, Inst. Cursus der Institutionen d. Rom. Rechts, von (t) Dr. G. F. Puchta ; 8. Aufl., besorgt von Dr. Paul Kriiger (Prof, in Konigs- berg). 2 vols. Leipsic, 1875. Rev. de Legislat. Revue de Legislation ancienne et moderne, publ. sous la direction de Laboulaye, de Roziere, et Dareste. (Continuation of the Revue Historique de Droit Francois et Etranger.) 6 vols. Paris, 1870-76. Richter's Krit. Jahrb. (or J.}. Kritische Jahrbiicher fiir deutsche Rechtswissenchaft, herausg. von Dr. Aem. Lud. Richter. 12 vols. Leipsic, 1837-48. Rivier, Introd. Introduction historique au Droit Romain, par Dr. Alphonse Rivier (Prof, in Brussels). 2d ed. Brussels, 1881. Roby, Introd. An Introduction to the Study of Justinian's Digest, &c., by H. J. Roby, M.A. (formerly Prof, of Jurisprud. in Univ. Coll., London). Cambridge, 1884. Rossbach, Rom. JEhe. Untersuchungen iiber die rom. Ehe, von Dr. Aug. Rossbach, Stuttgart, 1853. Rudorff, Rdm. RG. Romische Rechtsgeschichte zum akademischen Gebrauch, von (t) Dr. Ad. Fr. Rudorff. 2 vols. Leipsic, 1857, 1858. Savigny, Gesck. Geschichte d. Rom. Rechts im Mittelalter, von Fried. Carl von Savigny. 2d ed., 7 vols. Heidelberg, 1834-51. Savigny, System. System des heutigen Rom. Rechts, by the same author. 8 vols. Berlin, 1840-49. Savigny, Verm. Schr. Vermischte Schriften, by the same author. 5 vols. Berlin, 1850. Sohm, Inst. d. R.R. Institutionen des Rom. Rechts, von Dr. Rudolph Sohm (Prof, in Strasburg). Leipsic, 1884, (2d ed. 1886). Theod. Cod. Theodosianus Codex. See infra, p. 395. Theoph. Theophili Antecessoris Paraphrasis Graeca Institutionum xxiv ABBREVIATIONS. Caesarearum. Standard edition that of Reitz, 2 vols., Hag. Com., 1751. New ed. by E. C. Ferrini (Prof, in Pavia), 2 vols., Berlin, 1884-85 ; (2d not yet completed). Ulp. Ulpiani Fragmenta ex libro singulari Regularum. See infra, p. 331. Vat. Frag. Vaticana Fragmenta. See infra, p. 396. Voigt, Jus nat. Das jus naturale, aequum et bonum, und jus gentium der Romer, von Dr. Moritz Voigt (Prof, in Leipsic). 4 vols. Leip- sic, 1856-75. Voigt, XII Tafeln. Die XII Tafeln. Geschichte u. System d. Civil-und Criminal- Rechtes, wie Processes, der XII Tafeln, nebst deren Frag- menten, by the same author. 2 vols. Leipsic, 1883. Z. d. Sav. Stift., B. A. Zeitschrift der Savigny Stiftung fur Rechts- geschichte, herausg. von Bruns, Bekker, v. Roth, Bohlau, Pernice, &c. (Continuation of the Z. f. RG.} Weimar, 1880-86. Vol. vii. current. Each vol. contains a Romanistische and a Germanistische Abtheilung, separately paged ; R. A. stands for the former. Z. f. gesch. RW. Zeitschrift fur geschichtliche Rechtswissenscbaft, herausg. von F. C. v. Savigny, Goschen, Rudorff, &c. 15 vols. Berlin, 1815-50. Z. f. RG. Zeitschrift fiir Rechtsgeschichte, herausg. von Rudorff, Bruns, v. Roth, &c. 13 vols. Weimar, 1861-78. Z. f. vergl. RW. Zeitschrift fiir vergleichende Rechtswissenschaft, herausg. von Bernhb'ft, Cohn, Kohler, &c. Stuttgart, 1878-86. Vol. vii. current. PART I. THE REGAL PERIOD. PART I. THE REGAL PERIODS CHAPTER FIRST. SOCIAL AND POLITICAL CONDITION OF ROME AND ITS POPULATION DOWN TO THE TIME OF SERVIUS TULLIUS. SECTION 1. GENESIS OF THE ROMAN STATE. THE union of the Latin, Sabine, and, to a small extent, Etruscan bands that, as conquerors or conquered, old settlers or new immigrants, together constituted the first elements of the Roman people, did not necessarily involve contemporaneous adoption of identical institutions or identical notions of law. Though descended from the same Indo- European stock, and inheriting the same primitive ideas about religion and government, yet those ideas must have been more or less modified in the course of centuries of separate and independent development. 2 It is said that the 1 See especially Puchta, Cursus der Institutionen d. Rom. Rechts (1st ed., Leipsic, 1841), 8th ed. by Kriiger, Leipsic, 1875, vol. i. 36-50 ; Clark, Early Roman Law: Regal Period, London, 1872; Genz, Das Patricische Rom, Berlin, 1878 ; Kuntze, Cursus der Institutionen, 2d ed., Leipsic, 1879, 47-68 ; Bernhoft, Stoat und Recht der Rom. Kijnigszeit im Verhaltniss zu ver- wandten Rechten, Stuttgart, 1882. 2 The Aryan origin of several of the most important religious notions and public and private institutions of early Rome, and their resemblance to corre- sponding ones in India and Greece, have been shown by Fustel de Coulanges, La Cite Antique (1st ed., Paris, 1857), 7th ed., 1879 ; Sir H. S. Maine, Ancient Law (1st ed., London, 1862), 9th ed., 1883 ; Bernhoft, as above ; Leist, Graeco- Italische Rechtsgeschickte, Jena, 1884. 4 GENESIS OF THE ROMAN STATE. [SECT. i. characteristic of the Latin race was its sense of the im- portance of discipline, and the homage it paid to power and might ; that of the Sabines, their religious feeling and their reverence for the gods ; that of the Etruscans, their sub- servience to forms and ceremonies in matters both divine and human. Corresponding influences are very manifest in the growth of Rome's early public institutions, civil, military, and religious. It does not seem too much to say that they are traceable also in the institutions of the private law. The patria potestas, with the father's power of life and death over his children ; the manus and the husband's power over his wife ; the doctrine that those things chiefly was a man entitled to call his own which he had taken by the strength of his arm ; 3 the right which a creditor had of apprehending and imprisoning his defaulting debtor, and, if need were, reducing him to slavery, all these seem to point to a per- suasion that might made right. The religious marriage ceremony, and the recognition of the wife as mistress of the household and participant in its sacred offices as well as its domestic cares ; the family council of kinsmen, maternal as well as paternal, who advised the paterfamilias in the exercise of the domestic jurisdiction ; the practice of adop- tion, on purpose to prevent the extinction of a family and deprivation of its deceased members of the prayers and sacrifices necessary for the repose of their souls, these seem to have flowed from a different order of ideas, and to bear evidence of Sabine descent. Etruscan influence could make itself felt only at a later date ; but to it may pos- sibly be attributed the strict regard that came to be re- quired to the observance of ceremonials and words of style in the more important transactions both of public and private life. While the result of the union of Latins and Sabines was 3 " Maxime sua esse credebant quae ex hostibus cepissent" (Gai , iv. 16), a doctrine rather pre-Roman than Roman. ^ SECT. 2.] THE PATRICIANS. 5 that regulations were at once adopted which should apply to their public life as a united people, yet it is not only conceivable but probable that, as regarded the private rela- tions of its members, each tribe continued for a time to accord a preference to its own ideas and traditions of right and law, and that the amalgamation was a gradual process, partly silent, partly due to regal or pontifical intervention. Just as there is little reason to believe in any nicely organ- ised constitution down at least to the time of the Servian reforms, so is there little reason to believe in the existence of any very definite system of private law. Mixed races must, in minor matters at least, have made mixed customs and usages ; and, though there is lack of material for estab- lishing with certainty the coexistence of different systems among different branches of the population, yet it is difficult to resist the conviction that something at all events of the dualism 4 so marked in many of Rome's early institutions may be accounted for by ethnical considerations. SECTION 2. THE PATRICIANS. 1 There was part of the law of Rome that got the distinctive 4 Ihering, Geist, vol. i. 19 (while tracing it to another source), has thus tabulated some of its more prominent manifestations : Religious System. Profane System. Fas. Jus, vis. Symbol .... Aqua et ignis. Hasta (quiris), manus. Representative . . Numa. Romulus. Marriage. . . . Confarreatio (far, aqua et Coemptio (hasta coelibaris). ' ignis). Contract .... Oath, sacramentum, sponsio, Public guarantee, mancipa- foedus. tio, nexum. Procedure . . . Lcyis actio sacramento. Private justice, vindicatio, manus injectio, iL-c. Criminal law . . Homo sacer. Vindicta publica. Poena, a means of expiation. Poena, a means of repara- tion. 1 Ihering, Geist, vol. i. 14 ; Genz, as above,'p. 1 sq. ; Voigt, XII Tafdn vol. ii. g 169, 170. 6 THE PATRICIANS. [SECT. 2. name of jus Quiritium, the law of the Spearmen. The Quirites were the members of the gentile houses, organised in their curies, primarily for military, and secondarily for political purposes. They alone of the settlers around the urbs quadrata ranked as citizens, down at least to the time of Servius Tullius. They alone could consult the gods through the medium of auspicia, and participate in the services offered to the tutelary deities of Rome. From their number the king drew his council of elders, and they alone could take part in the curiate- comitia, the assembly of the warriors. They alone could contract a lawful mar- riage and make a testament ; in a word, it was they alone that were entitled directly to the benefit of Rome's peculiar institutions. But those prerogatives of the patrician burgesses were theirs as members of the gentile houses. Patrician Rome was a federation of gentes or clans ; the clans aggregations of families, bearing a common name, and theoretically at least tracing their descent from a common ancestor. Whether or not the traditional account of the numerical proportion of families to clans and of clans to curies have any substantial historical foundation, and whatever may be the explanation of the method by which the symmetry on which the old writers dwell with so much complacency was attained, it is beyond doubt that the gentile organisation was common to the two races at least that contributed most largely to the citizenship of Rome, and that it was made the basis of the new arrangements. Federation necessitated the appointment of a common chieftain, and common institutions, religious, military, political, and judicial. But it was long before these displaced entirely the separate institutions of the federated gentes. Every clan had its own cult, peculiar to its own members ; this was the universal bond of association in those early times. It had its common property (p. 38) and" its common burial-place. It must have had some common SECT. 2.] GENTILE ORGANISATION. 7 council or assembly ; for we read not only of special gentile customs, but of gentile statutes and decrees. Instances are on record of wars waged by individual gentes ; so they must have had the right to require military service alike from their gentiles and gentilicii. 2 Widows and orphans of de- ceased clansmen were under the guardianship of the gens, or of some particular member of it to whom the trust was specially confided. If a clansman left no heirs, his property passed to his fellow-gentiles. Over the morals of its mem- bers the gens exercised supervision and discipline ; interfer- ing to prevent prodigality and improvidence, restraining abuses of the domestic authority, and visiting with censure, and probably in grave cases with punishment, any breach of faith or other dishonourable conduct. It is said that there is no evidence of the exercise by it of any proper jurisdic- tion ; but, in the presence of all those other powers that it undoubtedly possessed, it is difficult to suppose that, within its own limits, it was not constantly called upon, through the medium of its chief, to act the part of peacemaker and arbiter. Finally, its members were always entitled to rely upon its assistance, to have maintenance when indigent, to be ransomed from captivity, to be upheld in their just disputes and quarrels, to be avenged when killed or in- j ured. How all this was worked out in detail it is impossible to say. We do not know even whether the chieftainship or presidency of a clan was hereditary or elective, and if the latter, whether for life or for a shorter term. Probably in this, as well as in other matters, there was no uniform prac- tice. But in the gentile system there was undoubtedly an imperium in imperio that must for two or three centuries have exercised a powerful influence on the private law, and 2 It was the heads of the constituent families of a gens that were properly gentiles; the dependent members of those families and the clients attached to them were only yentilicli. 8 THE CLIENTS. [SECT. 3. that must not be lost sight of in noting the conditions that accelerated or retarded its progress. 3 SECTION 3. THE CLIENTS. 1 It was very early in its history that Rome gave promise of its future eminence. Successful in one petty war after another, it deprived many small communities of their inde- pendent existence, leaving their members bereft alike of their religion, their territory, and their means of existence. These had to turn elsewhere for protection, and in large numbers they sought it from their conquerors. To many others, both voluntary immigrants and refugees from other cities, the new settlement proved a centre of attraction. It was quite ready to receive them ; but as subjects only not as citizens. Following a custom familiar to both Latins and Sabines, the new-comers invoked the protection of the heads of patrician families of repute, to whom they attached them- selves as free vassals. The relationship was known as that of patron and client. It made the latter an independent member of his patron's gens, and thus indirectly brought him into relation to the state. But it was to his individual patron that he looked primarily for support and maintenance, and to him that his allegiance and service were due in the 3 It deserves to be kept in mind that, with a very few exceptions, the indi- vidual patrician gentes were not numerically strong. Whatever may be the explanation, it seems to be the fact that, notwithstanding the admission to their ranks of the principal Alban families by Tullus Hostilius, and the crea- tion of the minores gentes by the elder Tarqnin, they died out so rapidly that by the end of the regal period the original three hundred had been reduced by more than a half (see Genz, I.e., p. 9 sq.) The reported great strength of the Tarquinian and Claudian gentes was due to their clients ; that of the Fabian' may have been due to the rule in observance amongst them prohibiting the exposure of infants, and requiring all their men to marry. 1 See Mommsen, "Die rbm. Clientel, " in his Rom. Forsch., vol. ii. p. 355 sq. ; Voigt, " Ueber die Clientel u. die Libertinitiit," in the Berichte d. phil.-hist. Classe d. K. Sachs. Gesellsch. d. Wissensch., 1878, pp. 147-219; Marquardt, Privatleben d. Romer (Leipsic, 1879), p. 196 sq. ; Voigt, XII Tafcln, vol. ii. pp. 667-679. SECT. 4.] THE PLEBEIANS. 9 first instance. Dionysius describes the relation between them as of the most sacred character, the duty the patron owed to his client coming next in order to that he owed to his children and his wards. He had to provide his vassal with all that was necessary for his sustenance and that of his wife and children ; and, as private holdings increased in extent, it was not unusual for the patron or his gens to give a client during pleasure a plot of land to cultivate for him- self. The patron had, moreover, to assist his client in his transactions with third parties, obtain redress for him for his injuries, and represent him before the tribunals when he became involved in litigation. The client, on the other hand, had to maintain his patron's interests by every means in his power. What Dionysius says of his contributing to endow his patron's daughters, and the like, obviously refers to an advanced period of the history of Rome, when it some- times happened that the position of parties, so far as wealth was concerned, was reversed ; for the relation was hereditary on both sides ; and there may have been instances of families that had risen to good social position and ample fortune recognising at the distance of many generations that they were still clients of patrician houses in embarrassed circum- stances, and rendering them assistance as in duty bound. But in the regal period the advantage must have been chiefly on the side of the client, who, without becoming a citizen, obtained directly the protection of the patron and his clan, and indirectly that of the state. SECTION 4. THE PLEBEIANS. The plebs included all those freemen who, being neither patrician citizens nor clients, had settled in Rome as per- manent residents, hoping to make a living within her bounds, and enjoy de facto at least the benefit of her institutions. The commencement of this body, as distinct from that of the 10 THE PLEBEIANS. [SECT. 4. clients, is usually associated with the overthrow of Alba ; the idea being that those of its population who were not of sufficient distinction to be admitted into the ranks of the patriciate, and yet were too independent to brook submis- sion to a private patron, put themselves under the direct protection of the sovereign, and thus, as Cicero says, though he no doubt meant the words only in a popular sense, became royal clients. Their number is said to have been largely augmented in the ensuing reign by the con- quest of many Latin towns that had broken the treaty made with them after the fall of Alba, and the removal of their inhabitants to Rome. It is very doubtful, however, whether it be possible to condescend upon any particular settlement as the origin of the plebs. It seems more consistent with history to regard them as a heterogeneous mass of non- gentile freemen, small probably in numbers at first, but augmenting with ever-greater rapidity, who had of choice or compulsion made Rome their domicile, but declined to subject themselves to a patron. Some may have been on the spot when Rome was founded, others were voluntary immigrants in pursuit of trade ; some may have been re- fugees, exiles from earlier homes because of their misdeeds ; many had been driven to seek their new shelter by the hard fate of war, which had subverted their native cities and left them godless, landless, and houseless ; while in course of time there were accessions to their numbers from amongst the descendants of clients, who either were disinclined to continue their allegiance, or were relieved from it by the extinction of their patronal gentes. That there was any general cohesion amongst them before the time of Servius there is not the slightest reason to believe. They were of different races, settling in Rome from different motives, practising in many matters different customs. If Livy be right in the statement he makes with every appearance of assurance that the worship of Hercules SECT. 4.] NUMA'S GUILDS. 11 at the ara maxima was Greek, we may almost infer that among the earliest representatives of this class of unattached non- citizen subjects may have been some of Hellenic descent. The existence at a very early date of a vicus Tuscus in the valley below the Palatine speaks of the presence of a contin- gent from Etruria. The bulk of them, however, were un- doubtedly Latins, with traditions and customs much the same as those of the greater number of the patrician houses ; and this it was that in time caused the triumph of Latinism, and the predominance of the masterful spirit in the jus Quiritium. History attributes to Numa the distribution of the artisans and craftsmen into guilds, eight or nine in number (collegia opificurn). 2 In view of the accounts we have of later date as to the relations that subsisted between guild brethren, this action of Numa's is of special interest and significance. It was the creation of associations among the plebeians that to some extent compensated for the absence among them of gentile organisation. Those associations did not affect their position politically, but they conferred upon them advantages in private life which otherwise they would not have enjoyed. They got a common cult, and possibly a common burial- place, with a master and his council to manage their affairs, consolidate customs, and arrange disputes. Between the brethren there was a bond, not indeed of descent, real or fictitious, from a common ancestor, but of close alliance and interdependence, each owing duty to the other similar to what might be claimed from him by a ward, a guest, or a kinsman. 3 The Latin contingents that helped to swell the 1 Plut. , Numa, 17. Mommsen, in his treatise De collegiis et sodaliciis Romanorum (Kilise, 1843), spoke of this as a fable ; but in his history he accepts it as fact to this extent, that the guilds must have been established in the earliest years of the City. 3 See in Mommsen, DecoUegiis, p. 3, various extracts from Cicero illustrat- ing the closeness of the relationship between saddles. M. Albert Gerard, in his Etude sur les corporatione ouwieres d, Home (Montbe"liard, 1884), p. 4, is of opinion that the guilds were no invention of Numa's, but only a reproduction 12 PLEBEIAN FREEHOLDERS. [SECT. 4. ranks of the plebeians in the reigns of Numa's immediate successors were more addicted to rural pursuits than to trade, but they seem to have been treated by the sovereign in the same indulgent spirit as the craftsmen had been previously. Not that they were incorporated in any way ; that in their case was not so necessary as in that of the traders, and might politically have been inexpedient. But they got what to them was of most importance allotments of lands for culture, and a weekly market was established in Rome, at which they might dispose of their produce. The accounts are conflicting as to the tenure on which they held their farms ; but whatever may have been the case originally, and whether the lands they occupied had been derived from the king individually or from the state, and whether acquired by assignation or purchase, it is clear that by the time of Servius they were freeholders ; for they were enrolled in his " classes " in large numbers, and the qualification was ownership of real estate on quiritarian title. It is in view of this that some authorities are disposed to regard the plebeians, even before the Servian reforms, as half-fledged citizens cives sine suffragio ; but the application to them of such an epithet seems to put their right too high. Admitted that they had the right to hold property both movable and immovable, to transfer it by quiritarian modes of convey- ance, and to have the protection for it of the tribunals, yet not only had they no share in the government of the city, but they were denied any participation in its religion. As men to whom the auspicia were incompetent, their inter- marriage with the gentile houses was out of the question ; while by the more unbending of the patricians their unions by him in Rome of an institution already well known elsewhere. There is a passage in Livy (iv. 9) in which, speaking of the revolt in 311 U.C. of t\\e plebs of Ardea against the optimates, he says that, after the former had withdrawn from the city, the opifices'resolved to side with them in hope of plunder ; his language suggests that the craftsmen had an independent organisation, and were to some extent a separate class. SECT. 4.] PLEBEIAN KINSHIP. 13 amongst themselves were often decried as wanting in the effects of lawful marriage, because unhallowed by the reli- gious ceremony to which the higher order was accustomed (p. 26). Gentes they had none during the first four centuries of Borne, a fact which placed them at a disadvantage in the matter of inheritance and guardianship ( 9, 11) ; but there are indications that for certain purposes the circle of near kinsfolk and connections by marriage held amongst the plebeians the same place that fellow-gentiles did amongst the patricians (p. 35). 14 ABSENCE OF A DEFINITE SYSTEM OF LAW. [SECT. 5. CHAPTER SECOND. REGULATIVES OF PUBLIC AND PRIVATE ORDER. SECTION 5. ABSENCE OF ANY DEFINITE SYSTEM OF LAW. PoMPONius, 1 who was a contemporary of Gaius's, describes the state of the law in regal Rome as follows : " In the early years of our City the people lived for a time without actual statute or any definite law ; in everything they were subject to the uncontrolled power (manus) of the kings. But it is related that after the City had grown somewhat, Romulus divided the populace into thirty parts, which he called curiae, because it was in accordance with the opinions expressed by them that he managed the guardianship of the state (reipublicae curam per sententias earum expediebat). He himself carried some enactments through the curiate assembly ; so did the sub- sequent kings ; all of which are extant in the collection of Sextus Papirius, who was one of the leading citizens in the time of Tarquin the Proud, the son of Damaratus of Corinth. His book bears the name of jus civile Papirianum ; not because Papirius contributed to it any- thing of his own, but because the previously isolated laws it contains were arranged by him in a sort of order. On the expulsion of the kings by the Junian law (lege tribunicia) all those royal laws fell aside, and the people once more began to be governed by undefined law and usage, rather than by legislative enactment. This state of matters lasted for about twenty years." Such is the account of the beginnings of Roman law, which Justinian places in the forefront of the chief part of the Corpus Juris. It abounds in historical errors ; yet is interesting as the record of what a jurist of the time of the Antonines believed to be fact, and which Justinian nearly 400 years later was content to accept as accurate. The only part of it that can be received without reserve is the 1 Pomp., lib. sing. Enchiridii, in Dig. i. 2, fr. 2, 1-3. SECT. 6.] FAS. 15 statement that originally the law was far from definite. It may at once be admitted also that much of what there was fell short of the conditions which philosophical jurists hold essential to the conception of law. There was no single sovereign authority that set it ; its quality was not always the same ; its sanctions were often such as would be resented by modern jurisprudence ; and in many cases their enforce- ment was the care of individuals rather than of the state. But, whether in the shape of fas or jus, or merely precepts of boni mores, there were rules in very considerable number for defining men's rights and preventing their infringement, regulatives, in a word, 'of public and private order, out of which was to be evolved in the course of centuries the matured jurisprudence of the Corpus Juris Civilis. SECTION 6. FAS. 1 While the very frequent references to fas as distinct from jus bear testimony to its importance as one of the factors of early Roman law, yet it is extremely difficult to define its nature and limits. This may to some extent be accounted for by the fact that much of what was originally within its domain, once it had come to be enforced by secular tribunals, and thus had the sanction of human authority, was no longer distinguishable from jus ; while it may be that others of its behests, once pontifical punishments for their contravention had gone into desuetude, sank to nothing higher than pre- cepts of boni mores. By fas was understood the will of the gods, the laws given by heaven for men on earth. 2 Among a people that 1 Ihering, Geist, vol. i. 18, 18a ; Voigt, XII Tafeln, vol. i. 13, 46. 2 laid., Orig., v. 2, "Fas lex divina, jus lex humana est;" Serv. ad Georg., i. 269, " Fas et jura sinunt, i.e., divina humanaque jura permittunt ; nam ad religionem fas, jura pertinent ad homines." These definitions are comparatively modern, and hardly express the idea. Ausunius identifies Fas and Themis, " Prima Deum Fas, Quae Themis est Graecis." Certainly fas was 16 THE BEHESTS OF FAS. [SECT. 6. believed so profoundly as did those early Romans that in the gods they lived and moved and had their being, it could not fail to be regarded with the utmost consideration, and to exercise an influence more potent than any merely human rules. So far as can be gathered from the scattered references to it, it occupied a higher platform and had a wider range than these last. 3 There were but few of its commands, prohibitions, or precepts that were addressed to men as citizens of any particular state ; all mankind came within its scope. It forbade that a war should be under- taken without the prescribed fetial ceremonial ; otherwise it was not a purum piiimque bellum, but an act of violence by the invaders, which their gods had not sanctioned, against others who were equally god-protected. It required that faith should be kept even with an enemy when a promise had been made to him under sanction of an oath. It enjoined hospitality to foreigners, because the stranger guest was presumed, equally with his entertainer, to be an object of solicitude to a higher power. It punished murder, for it was the taking of a god-given life ; the sale of a wife by her husband, for she had become his partner in all things human and divine ; the lifting of a hand against a parent, for it was subversive of the first bond of society and reli- gion, the reverence due by a child to those to whom he owed his existence ; incestuous connections, for they denied the altar ; the false oath and the broken vow, for they were an insult to the divinities invoked. To displace a boundary or a landmark was a most heinous offence, not so much because the act was provocative of feud, as because the march-stone itself, as the guarantee of peaceful neighbour- hood, was especially under the guardianship of the gods. sometimes personified, especially in the formulae employed by the fetiala, e.g., Liv., i. 32. See Bre'al, " Sur 1'origine des mots designant le droit en Latin," Nouv. Rev. Hist., vol. vii. (1883), p. 607 sq. 3 Fas sometimes allowed what jus forbade, " transire per alienum fas est, jus non est " (Isid., Oriy., v. 2, 2, in Bruns, p. '326). t SECT. 6.] ENFORCEMENT OF FAS. 17 No locus sacer whatever could be interfered with without a breach of the fas ; and on a day that the ministers of reli- gion had declared holy it was a sin for a magistrate to exercise any branch of his jurisdiction in which he required to pronounce one of the three solemn words of style do, dico, addico* To give an answer to the question, How were those rules of the fas enforced ? is beset with difficulties. Breach of any of them rendered the offender impius ; but his sin was sometimes expiable, sometimes not. Expiation required a peace-offering to the offended deity (piacularis hostia), ac- companied possibly with satisfaction to any injured third party.. What happened in consequence of an inexpiable breach of the fas depended apparently on circumstances. Take the case of the perjurer. He had solemnly invoked the wrath of heaven upon himself and all that belonged to him in the event of his knowingly swearing falsely. It was for the pontiff to say whether he had done so, or whether his offence was attributable to his imprudence and therefore expiable. If it was not, what then ? Did the pontiffs content themselves with their finding, abstaining from any express sentence, and leaving the party injured to be the instrument of the irate deity in punishing the offender by reprisals ? 5 Or did they formally excommuni- cate the sinner, declaring him sacer, i.e., devoting him to the infernal gods, and forfeiting his estate to the service of the deity he had primarily offended. This was expressly 4 The above are illustrations merely, and not intended as an exhaustive enumeration of what fell within the fas. Such an enumeration is impossible. Cicero speaks of the adoption of the elder by the younger as not only contra naturam but contra fas ; and Paul uses the same expression in speaking of the purchase of a freeman to take effect in the event of his becoming a slave. It is doubtful, however, whether they meant more than that the acts they were condemning were contrary to the unwritten law of nature. The same dubiety arises in other instances of the employment of the word by the later writers. 8 This is the view of Danz, Sacrale Schutz, p. 47 sq. He lays considerable stress on the words of Livy (v. 11), "Numquam deos ipsos admovere nocen- tibus manus ; satis esse, si occasione ulciscendi laesos arment." B 18 JUS. [SECT. 7. the penalty of several of the contraventions referred to above, selling a wife, striking a parent, removing a land- mark, &c. (p. 54). The homo sacer was in every sense of the word an outcast, one with whom it was pollution to associate, who dared take no part in any of the institutions of the state, civil or religious, whose life the gods would not accept as a sacrifice, but whom, nevertheless, any one might put to death with impunity as no longer god-protected. 6 Those precepts of the fas, therefore, were not mere exhorta- tions to a blameless life, but closely approached to laws, whose violation was visited with punishments none the less effective that they were religious rather than civil. SECTION 7. Jus. There is no word in the vocabulary of Roman law that had more meanings than jus, " law " as the rule of action (norma agendi), " right " as the faculty conferred by the rule (facultas agendi), "right" as opposed to wrong, "strict law" as opposed to equity, "justice" as in the phrase jus reddere (to dispense justice), " the place where justice was dispensed," as in the phrase in jus vocatio, and so on. 1 It can admit of little doubt that the first of these was the original idea the word conveyed ; and it has been well said that if we can ascertain the meaning of the name jus we shall thus have an unconscious definition of what the Romans understood by law. 2 The older form of it was jous ; and Ennius is said to have regarded it as connected with Jove. 3 Some modern authorities entertain the same opinion. 4 Re- cent philology derives it from the Sanscrit ju, to join, bind, or unite ; from which some deduce as the signification of jus 9 Festus, v. Sacer (Bruns, p. 288). See 12, notes 12, 13. i J See Dig. i. 1, frs. 11, 12. 2 Clark, Pract. Jurisprud., p. 14. 3 Apuleius, De deo Socratis, 5. 4 E.g., Lasaulx, Ueber den Eid bei den Romern, "Wiirzburg, 1844, p. 9 ; Huschke, Dasalte RomiscJie Jakr, Breslau, 1869, p. 214. SECT. 7.] MEANING OF JUS. 19 " that which binds," " the bond of society," others " that which is regular, orderly, or fitting." 5 The latest inquirer (M. Br4al) identifies it with ihejos,jaos, or jaus of the Vedas, and the jaes of the Zend-Avesta, words whose exact mean- ing is controverted, but which he interprets as " the divine will." 6 Juleo is generally allowed to be a contraction of jus hibeo, hold or take as jus. If Breal's definition can be adopted we obtain a very significant interpretation of the words addressed by the presiding magistrate to the assembled comitia in asking them whether they assented to a law pro- posed by him, Velitis, jubeatis, Quirites, &c., " Is it your pleasure, Quirites, and do you hold it as the divine will, that," and so on. As legislation by the comitia of the curies and centuries was regarded as a divine office, and their vote might be nullified by the fathers on the ground that there had been a defect in the auspicia, and the will of the gods consequently not clearly ascertained, this explanation of Breal's seems not without support, vox populi vox dei. If it be right, then the only difference between fas and jus was this, that the will of the gods, which both embodied, was in the one declared by inspired and in the other by merely human agency. This jus might be the result either of traditional and in- veterate custom (jus moribus constitutum) or of statute (lex). 7 6 See references in Clark's Pract. Jurisprud., pp. 16-20. He himself adopts the latter definition. 6 Bre'al (as in 6, note 2), p. 606. 7 There is controversy about the etymology of the word lex. It was used by the jurists in two distinct senses (1) as meaning a comitial enactment (Gai., i. 3), and hence occasionally called lex publica (Gai., ii. 104, iii. 174); (2) as meaning an obligation, restriction, condition, declaration, or what not, expressly incorporated in a private deed (lex privata), as in the phrases lex mancipii, lex contractus, lex testamenti, &c. Its most likely derivation is from \tyeiv, to say or to speak. The lex publica was originally always put to and voted by the comitia by word of mouth ; and the XII Tables, in declaring the binding effect of a lex privata when engrafted on a conveyance or contract per aes et libram ( 13), use in reference to it the phrase uti lingua nuncu- passit (Festus, v. Nuncupata, Bruns, p. 23). 20 EMBODIMENTS OF JUS. [SECT. 7. We look in vain for any legislative enactment establishing such an institution, for example, as the patria potestas, or fixing the early rules of succession on death. Statute may have regulated some of their details ; but they had taken shape and consistency before Rome had its beginnings. It can well be believed, however, that in the outset the customs in observance may have been far from uniform, that not only those of the different races but those also of the different gentes may at first have varied in some respects, but under- going a gradual approximation, and in course of time con- solidating into a general jus Quiritium. 8 That the bulk of the law was customary is universally admitted. But Pom- ponius speaks of certain laws enacted by the comitia of the curies, which he calls leges regiae. The opinion of the best authorities is that it is a mistake to attribute those so-called " royal laws " 9 to that assembly. According to the testi- mony of the old writers it had very little share in the work of legislation. Romulus jura dedit at his own hand, not jura tulit. As Bernhoft remarks, we read not a word of the co-operation of the people when he united the old Romans and Sabines, when Numa regulated the cult, when Tullus Hostilius admitted the Alban gentes to the patriciate and 8 Yet without necessarily extinguishing particular customs. E.g., the com- mon law conferred upon a parent a qualified right to abandon his offspring, while the gens Fabla required its members to rear all their children (Dion., ix. 22). " There can be no community without rules, law in the widest sense ; family, clan, &c., all must have them ; but even when the state is reached, state law does not necessarily overwhelm the rules of the lesser communities " (Bekker, Z.f. vergleich. RW., vol. i. p. 109). 9 The most recent and comprehensive treatise on the subject of the so-called Royal Laws, and containing references to the earlier literature, is that of Voigt, Ueber die Leges Regiae, Leipsic, 1876, 1877 (republished from the Transactions of the Saxon Academy). A collection of them from Livy, Dionysius, Plutarch, Servius, Macrobius, &c., will be found in Brans, p. 1 sq. Of the Jus Papiri- anum referred to by Pomponius no remains are extant ; but Paul (Dig. 1. 16, fr. 144) mentions incidentally that it was commented by one Granius Flac- cus (who was of the time of Julius Caesar). Marliani's Laws of Romulus, in his Topograpliia urbis Romae, lib. 2, cap. 8 (Graevii Thes., vol. iii. p. 86 sq.}, are now on all hands regarded as apocryphal. SECT. 8.] THE LEGES REGIAE. 21 reorganised the army, when Ancus Marcius formulated the fetial law, when the elder Tarquin augmented the senate, or when Servius Tullius created the centuries. Tarquin's attempt to double the strength of each century of the cavalry had to be abandoned ; but that was because it had been fixed by Eomulus auspicatim, and his proposal therefore an interference with divine arrangements ; he got over the difficulty by doubling the centuries themselves. When the king did consult the comitia it was in minor matters of a semi-private nature, and probably as matter of policy, the sanctioning of testaments, adregations, and the like. 10 Mommsen is probably near the mark when he describes the leges regiae as mostly rules of the fas, which were of interest not merely for the pontiffs but for the public, with which it was of importance the latter should be ac- quainted, that they might know the risks they incurred from their contravention. 11 Instead of remaining buried in the pontifical books, along with the more esoteric rules of ritual, &c., they were published in some form or other ; but whether by the kings whose names they bear, or by the pontiffs under their direction, can only be matter of specu- lation. It is not to be assumed that there was no legisla- tion beyond this ; some of the laws of which we have record were of a different character. But on the whole it seems beyond doubt that it was custom rather than statute that was the main factor of the jus of the regal period. SECTION 8. BONI MORES. As something different from the jus moribus constitutum mention must be made of boni mores as one of the regu- 10 Bernhoft, I.e., pp. 116, 117. See also Karlowa, Rom. EG., vol. i. p. 52. 11 Mommsen, Romisches Staatsrecht, vol. ii. 1, p. 41. Clark (Pract. Jurisprud., p. 284) thinks that the pontiffs, as "the repositories of those primeval customs which formed the first Roman law," threw " into the form of general rules such applications of general custom and opinion as required declaration or penal enforcement." 22 BONI MORES. [SECT. 8. latives of public and private order. 1 Part of what fell within their sphere might also be expressly regulated by fas or jus ; but there was much also that was only gradually brought within the domain of these last, and even down to the end of the republic not a little that remained solely under the guardianship of the family tribunal or the censor's regimen morum. Its function was twofold : for sometimes it operated in restraint of law by condemning though it could not prevent the ruthless and unnecessary exercise of legal right, as, for example, that of the head of a house over his dependants ; and sometimes it operated supple- mentarily, by requiring observance of duties that could not be enforced by any compulsitor of law. Dutiful ser- vice, respect, and obedience (pbsequium et reverentia) from inferiors to superiors, chastity (pudicitia), and fidelity to engagements express or implied (fides), were among the officia, that were thus inculcated, and whose neglect or contravention not only affected the reputation but often entailed punishments and disabilities, social, political, or religious. 2 To increase the respect for such virtues, and make their observance in a manner a religious duty, some of them were deified and provided with a temple and a cult. Fides was one of them (p. 50). There was none of the minor numina for which the ancient Roman had greater reverence. Whether in public or private life, an engage- ment in his eyes was sacred. 3 An avoidable breach of it 1 See Voigt, XII Tafeln, vol. i. 15. 2 The constant reference in the pages of both the lay and professional writers to infamia, iynominia, turpitude, improbitas, &c., as imposing dis- qualifications, shows how much store continued to be set, theoretically at least, on integrity of character. Even in the Justinian law we find ingrati- tude regarded as justifying a donor in revoking a donation, a patron in again reducing his freedman to slavery, a parent in disinheriting his son, and a court of law in refusing to allow an heir to take an inheritance left him by testament. 3 " Populus Romanus . . . omnium [virtutum] maxime et praecipue Fidem coluit sanctamque habuit tarn privatim quam publice" (Gell., xx. 1, 39). SECT. 8.] THE REGIMEN MORUM, 23 is said to have been extremely rare. If he failed the jus had no punishment for him. It might reach a man if he had engaged per aes et libram ( 14, 30) or by a formal sponsio (| 39) ; but then the ground of action was the ncxum or sponsio in which his engagement was clothed, not the engagement itself. " He agreed, but has not stood to his agreement," was a plaint of which the ordinary civil tribunal took no cognisance. Whether the pontiffs ever did so, viewing it as a dishonour of Fides, does not appear; but as a contravention of boni mores it was undoubtedly a matter for the animadversion of those who exercised the regimen morum, the king over the citizens generally, the gentes over their members, and probably the collegia opificum over their sodales. "Fides, i.e., dictorum conventorumque constantia et veritas" (Cic., De off., i. 7, 23). See also De off., iii. 31, 11. On Numa's institution of the cult of Fides, see Liv., i. 4 ; Dion., ii. 75. See also infra, p. 50. 24 THE FAMILY ORGANISATION. [SECT. 9- CHAPTER THIRD. INSTITUTIONS OF THE PRIVATE LAW. SECTION 9. THE FAMILY ORGANISATION. 1 IN describing the domestic organisation of the Romans it would be pedantic to be always using the Latin word familia instead of the English " family." 2 Yet there would be reason for it; for the ideas they respectively convey are by no means identical. Husband, wife, and children did not necessarily constitute an independent family among the Romans, nor were they all necessarily of the same family. Those formed a family who were all subject to the right or power originally manus, 3 but latterly jus of the same family head (paterfamilias). He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law, and grandchildren by his sons, and possibly remoter descendants related through males ; so long as they remained subject to him they con- 1 See Schupfer, La Famiglia secondo il diritto Romano, Padua, 1876. 2 Familia and " family " are used in this section solely to designate the group of persons subject to the same paterfamilias. Occasionally they meant (1) a gens or group of families in the stricter sense ; or (2) the family estate proper, as in the provisions of the XII Tables about succession adgnatus proximus familiam habeto ; or (3) the family slaves collectively, as in the phrases familia urbana, familia rustica. 3 This word manus, though in progress of time used chiefly to express the power a husband had over the wife who had become a member of his family, was originally the generic term for all the rights exercised not only over the things belonging but also the persons subject to him ; for a slave when enfranchised was said to be " manumitted," and the same phrase was also employed occasionally to express the condition of a Jiliusfamilias released from the potestas, although "emancipated " was the usual one. SECT. 9.] THE PATRICIAN FAMILY. 25 stituted but one family, that was split up only on his death or loss of citizenship. But if his wife had not passed in manum and that was common enough even during the republic and universal in the later empire she did not become a member of his family ; she remained a member of the family in which she was born, or, if its head was deceased, or she had been emancipated, was the sole member of a family of her own. Both sons and daughters on emancipation ceased to be of the family of the pater- familias who had emancipated them. A daughter's chil- dren could never under any circumstances be members of the family of their maternal grandfather ; for children born in lawful marriage followed the family of their father, while those who were illegitimate ranked from the moment of birth as patresfamilias and matresfamilias. It is very evident, therefore, that the Roman familia was an associa- tion of which the word " family " in its ordinary acceptation conveys but an imperfect and inaccurate representation. With the early Romans, as with the Hindus and the Greeks, marriage was a religious duty, 4 a duty a man owed alike to his ancestors and himself. Believing that the happiness of the dead in another world depended on their proper burial, and on the periodical renewal by their descen- dants of prayers and feasts and offerings for the repose of their souls, it was incumbent upon him above all things to perpetuate his race and his family cult. 5 In taking to himself a wife, he was about to separate her from her father's house and make her a partner of his family mysteries. With the patrician at least this was to be done only with divine approval, ascertained by auspicia. His choice was limited to a woman with whom he had conubium 4 See Fustel de Coulanges, La CiU Antique, pp. 41-54. 5 " Sacra privata perpetua manento. Deorum manium jura sancta sunto. Sos ( = suos) leto datos divos habento" (Cic., in his draft of a code, De leg., ii. 9, 22). "Animas placare paternas" (Ov., Fast., ii. 533). See also Cic., De Ic'j., ii. 22, 55 ; Aug., De Civ. Dei, viii. cap. 26. 26 MARRIAGE BY CONFARREATIO. [SECT. 9. or right of intermarriage. 6 This was a matter of state arrangement ; and in the regal period Roman citizens could have it outside their own bounds only with members of states with which they were in alliance, and with which they were connected by the bond of common religious obser- vances. A patrician citizen, therefore, if his marriage was to be reckoned lawful (justae nuptiae), had to wed either a fellow-patrician or a woman who was a member of an allied community. In either case it was essential that she should not be one of his sobrinal circle, i.e., of kin to him within the seventh degree ; 7 second cousins, therefore, being related in the sixth degree according to Roman computation, could not intermarry. 8 The ceremony itself was a religious one, conducted by the high priests of the state, in presence of ten witnesses, representatives probably of the ten curies of the bridegroom's tribe, and known as confarreatio ; 9 for it may be affirmed with all but absolute certainty that it was not until after the Canuleian law (309 u.c.) had legalised intermarriage with a plebeian, that a patrician condescended to any less sacred form of completing the bond of marriage. Its effect was to dissociate the wife entirely from her father's house and to make her a member of her husband's ; for confarreate marriage involved what was called in manum conventio, the 6 It was the want of conubium between the early settlement of Romulus and the neighbouring cities and villages that, according to the story (Liv. i. 9), caused the abduction of the Sabine maidens. Romulus is said to have sued for it in the first instance ; but his overtures were repulsed with the advice to open an asylum for women as well as men, as his only chance of finding equal mates for his followers ; and it was only then that they resorted to their rough mode of wooing and wedding. 7 According to the old phraseology there could be no intermarriage within the circle of the jus osculi. On this old institution, "the right of kiss," see Klenze, Das Familie.nrecht der Cognaten und Ajfinen nach Rom. u. verwandten Rechten (Berlin, 1828), p. 16 sq. 8 In time this was relaxed, and eventually marriage permitted even between first cousins, Just., Inst., i. 10, 4. 9 Gai., i. 112. See Rossbach, Die Romische Eke (Stuttgart, 1853), p. 95 sq.; Karlowa, Die Formen d. Rom. Ehe u. Maniis (Bonn, 1868) p. 5 sq. SECT. 9.] THE HUSBAND'S MANUS. 27 passage of the wife into her husband's "hand" or power, (but this always on the assumption that her husband was himself paterfamilias ; if he was not, then, though nominally in his hand, she was really subject like himself to his family head). Any property she had of her own which was a possible state of matters only if she had been independent before marriage passed to him as a matter of course ; if she had none, her paterfamilias provided her a dowry (dos\ which shared the same fate. Whatever she acquired by her industry or otherwise while the marriage lasted also as a matter of course fell to her husband. In fact, so far as her patrimonial interests were concerned, she was in much the same position as her children ; and on her husband's death (according to Gaius) she had a share with them in his inheritance, as if she had been one of his daughters. In other respects manus conferred more limited rights than patria potestas ; for Romulus is said to have ordained that if a man put away his wife except for adultery or one of two or three other very grave offences, he forfeited his estate half to her and half to Ceres ; 10 while if he sold her he was to be given over to the infernal gods. 11 The patria potestas was the name given to the power exercised by a father, or by his paterfamilias if he was himself in potestate, over the issue of such justae nuptiae. The Roman jurists boasted that it was a right enjoyed by none but a Roman citizen, 12 a statement not strictly accurate, seeing that in the early empire the Latin muni- cipalities of Spain and some other western provinces, though their burgesses were not Roman citizens, yet had manus 10 One wonders how in such a case children were provided for. 11 Plut., Rom., 22 (Bruns, p. 6). On the subject of the early law of divorce, see von Wiichter, Ueber Ehescheidungen liei dem Komern (Stuttgart, 1822), p. 1 sq. ; Berner, De divortiis apud Romanes (Berolini, 1842), p. 1 sq.; Schlesinger, Z. f. RG., vol. viii. (1867), p. 58 sq. 12 "Jus propriutn civium Romanorum " (Gai., i. 55, 189 ; Just., Inst., i. 9). 28 THE PATRIA POTESTAS. [SECT. 9. and patria potestas modelled on those of Rome. 13 But it certainly was peculiar to the Romans in this sense, that nowhere else, except among the Latin race from which they had sprung, did the paternal power attain such an intensity. It seems originally to have entitled a father, or his pater- familias if he was himself in domestic subjection, to decide not arbitrarily, of course, but judicially whether or not he should rear the child with which his wife had presented him. But this right of his was very early restricted ; for Romulus has the credit of having ordained (1) that he should rear all his male descendants, and at least his first- born daughter ; (2) that he should not put any child to death before it had reached its third year, unless it was grievously deformed, and then he might expose it at once, after showing it to his neighbours ; and (3) that if he transgressed he should forfeit half of his estate, and submit to other undefined penalties, probably religious. 14 But this did not affect his right to determine whether or not he should admit the child whose life was thus secured to membership in his family (liberi susceptio), with all its privileges, social and religious ; apparently it was not until in the early empire that he was deprived of his power to decide himself the question of his child's legitimacy. 15 The practical omnipotence of the paterfamilias and con- dition of utter subjection to him of his children in potestate became greatly modified in course of centuries ; but origin- ally the latter, though in public life on an equality with the house father, yet in private life, and so long as the potestas lasted, were subordinated to him to such an extent as, according to the letter of the law, to be in his hands little better than his slaves. They could have nothing of their own, all they earned was his; and though it was quite 13 Lex Salpensana (temp. Domit.), cap. 22 (Bruns, p. 131). 14 Dion. Hal., ii. 26, 27 (Bruns, p. 7). 15 See Voigt, Leyes Reyiae (as in 7, note 9), p. 24, note. SECT. 9.] THE FATHER'S JUS VITAE NECISQUE. 29 common, when they grew up, for him to give them pcculia, " cattle of their own," to manage for their own benefit, yet these were only de facto theirs but de jure his. For offences committed by them outside the family circle, for which he was not prepared to make amends, he had to surrender them to the injured party, just like slaves or animals that had done mischief. If his right to them was disputed he used the same action for its vindication that he employed for asserting his ownership of his field or his house : if they were stolen, he proceeded against the thief by an ordinary action of theft ; if for any reason he had to transfer them to a third party, it was by the same form of conveyance he used for the transfer of things inanimate. Nor was this all ; for according to the old formula recited in that sort of adoption known as adrogation, 16 he had over them the power of life and death, jus vitae necisque. This power, as already noticed, was subject to certain restrictions during the infancy 17 of a child ; but when he had grown up, his father, in the exercise of the domestic jurisdiction, might visit his misconduct, not only in private but in public life, with such punishment as he thought fit, even banishment, slavery, or death. 18 It might happen that a marriage was fruitless, or that a man saw all his sons go to the grave before him, and that the paterfamilias had thus to face the prospect of the extinction of his family and of his own descent to the tomb without posterity to make him blessed. To obviate so dire a misfortune two alternatives were open to him, either to give himself in adoption and pass into another family, or to adopt some one as a son, who should perpetuate his own. The latter was the course usually followed. If it was a 16 Aul. Gell., v. 18, 9. 17 In the Roman, not the English, sense of the word. 18 A law attributed to Numa forbade a man to sell a sou he had permitted to marry (Dion. Hal., ii. 20, Bruns, p. 9). 30 ADOPTION. [SECT. 9. paterfamilias that lie adopted, the process was called adro- gation (adrogatio) ; if it was a filiusfamilias, it was simply adoptio. The latter, unknown probably in the earlier regal period, was a somewhat complicated conveyance of a son by his natural parent to his adopter, the purpose of course being expressed ; its effect was simply to transfer the child from the one family to the other. But the former was much more serious ; for it involved the extinction of one family 19 that another might be perpetuated. It was therefore an affair of state. It had to be approved by the pontiffs, who probably had to satisfy themselves that there were brothers enough of the adrogatee to attend to the interests of the ancestors whose cult he was renouncing ; and on their favour- able report it had to be sanctioned by the vote of a comitia of the curies, as it involved the possible deprivation of his gens of their right of succession to him. If it was sanctioned, then the adrogatus, from being himself the head of a house, sank to the position of a filiusfamilias in the house of his adoptive parent ; if he had had wife or children subject to him, they passed with him into his new family ; and so did everything that belonged to him and that was capable of transmission from one person to another. The adopting parent acquired potestas and power of life and death over the adopted child exactly as if he were the issue of his body ; while the latter enjoyed in his new family the same rights exactly that he would have had if he had been born in it. The manus and the patria potestas represent the master- ful aspects of the patrician's domestic establishment. Its conjugal and parental ones, however, though not so pro- minent in the pages of the jurists, are not to be lost sight of. The Roman family in the early history of the law was governed quite as much by fas as jus. It was an association 19 A paterfamilias who had no person subject to him constituted a " family " in his own person. SECT. 9.] DOMESTIC ASPECTS OF THE FAMILY. 31 hallowed by religion, and held together not by might merely but by conjugal affection, parental piety, and filial rever- ence. 20 The purpose of marriage was to rear sons who might perpetuate the house and the family sacra. In enter- ing into the relationship the wife renounced her rights and privileges as a member of her father's house ; but it was that she might enter into a lifelong partnership with her husband, and be associated with him in all his family interests, sacred and civil. 21 The husband was priest in the family ; but wife and children alike assisted in its prayers, and took part in the sacrifices to its lares and penates. As the Greek called his wife the house-mistress, Sea-iroiva, so did the Roman speak of his as materfamilias, the house- mother. 22 She was treated as her husband's equal. As for their children, the potestas was so tempered by the natural sense of parental duty on the one side and filial affection on the other, that in daily life it was rarely felt as a grievance ; 20 " Matrem et patrem . . . venerari oportet" (Ulp., in Dig. xxxvii. 15, fr. 1, 2). " Patria potestas in pietate debet, non in atrocitate consistere " (Hadr., in Dig. xlviii. 9, fr. 5). Cicero (Cato Maj., 11, 37), speaking of App. Claudius Caecus, thus depicts the ancient household rigime : " Quattuor robustos filios, quinque filias, tantam domum, tantas clientelas Appius regebat et caecus et senex. . . . Tenebat non modo auctoritatem, sed etiam imperium in suos ; metuebant servi, verebantur liberi, carum omnes habebant ; vigebat iu ilia domo mos patrius et disciplina." De"nis, in his Histoire des idees morales dans I'antiquite (vol. ii. p. 112), says : " Instead of that terrible power (the patria potestas) of which the historians of Roman law speak so much, we read rather in the writers of the early empire of nothing but the sacred duties of father and mother. ... I might cite from Quintilian, and Pliny, and Tacitus, and Juvenal the most beautiful passages on the necessity and import- ance of education in the family, the inconvenience and mistake of confiding children to slaves, the respect due to the innocence of their infancy and youth, the tenderness that ought to be displayed towards them, and which forbids the use of the rod in training them as if they were mere animals." 21 Dion. Hal. (ii. 25) says that so it was expressly declared by Romulus. The old idea still survived in the imperial jurisprudence, when technically, in consequence of the disuse of in manum conventio, husband and wife were no longer members of the same family ; as, for instance, in the words of the emperor Gordian (Cod. Just., ix. 32, 4), " uxor, quae socia rei humanae atque divinae domus suscipitur." See also Modest., in Diy. xxiii. 2, fr. 1. 23 Materfamilias is used in the texts in two distinct senses, (1) a woman sui juris, i.e., not subject to any family head, and ^2) a wife in manu mariti. 32 THE FAMILY ORGANISATION. [SECT. 9. while the risk of an arbitrary exercise of the domestic juris- diction, 23 whether in the heat of passion or under the impulse of justifiable resentment, was guarded against by the rule which required the paterfamilias to consult in the first place the near kinsmen of his child, maternal as well as paternal. Even the incapacity of the subject members of the family to hold property of their own cannot in those times have been regarded as any serious hardship ; for, though the legal title to all their acquisitions was in the house-father, yet in truth they were acquired for and belonged to the family as a whole, and he was but a trustee to hold and administer them for the common benefit. 24 What had come to him by descent, the lona paterna avitaque, he was in a peculiar manner bound to preserve for his children, any squander- ing of them to their prejudice entitling them to have him deprived of his administration. 25 In Greece the patria potestas never reached such dimen- sions as in Rome, and there it ceased, de facto at least, when a son had grown up to manhood and started a household of his own. But in Rome, unless the paterfamilias voluntarily put an end to it, it lasted as long as the latter lived and retained his status. The marriage of a son, unlike that of a daughter passing into the hand of a husband, did not release him from it, nor did his children become subject to him so long as he himself was in potestate. On the contrary, his wife passed on marriage into the power of her father-in- law, and their children as they were born fell under that of 23 Seneca speaks of the paterfamilias as judex domesticus (Controv., ii. 3), and domesticus magistratus (De benef., iii. 11). 24 Under the Servian constitution the valuation of a man's freehold was really the valuation of the family freehold, his jiliifamilias as well as he had political and military rights and duties in respect of it. See Paul. Diac., v. Duicensus (Bruns, p. 266). 25 Paul., Sent., iii. 4a, 7. There can be little doubt that in regal Rome the interdiction of a patrician proceeded from his gens, who were his children's proper guardians, and on their failure his own heirs. The Greeks manifested the same solicitude for the preservation of the Trarpfa Trainripa. SECT. 9.] GUARDIANSHIP. 33 their paternal grandfather; and the latter was entitled to exercise over his daughter-in-law and grandchildren the same rights he had over his sons and unmarried daughters. But there was this difference, that, when the paterfamilias died, his sons and daughters who had remained in potestate, and his grandchildren by a predeceased son, instantly became their own masters (sui juris), whereas grandchildren by a surviving son simply passed from the potcstas of their grand- father into that of their father. The acquisition of domestic independence by the death of the family head frequently involved the substitution of the guardianship of tutors (tutela) for the potestas that had come to an end. This was so invariably in the case of females sui juris, no matter what their age ; they remained under guardianship until they had passed by marriage in manum mariti. 26 It was only pupil males, however, that required tutors, whose office came to an end when puberty was attained. It is doubtful whether during the regal period a testamentary appointment of tutors by a husband or parent to wife or children was known in practice, pro- bably not. If so the office devolved upon the gens to which the deceased paterfamilias belonged ; and it may reasonably be assumed that it delegated the duties to one of its mem- bers in particular, retaining in its collective capacity a right of supervision. The position of the clients attached to a family has already been referred to ( 3). The only persons belong- ing to it that have not been mentioned were its slaves. In the regal period they were socially more intimately related to the family than in later centuries ; few in num- 28 Gaius (i. 190) makes the extraordinary statement that it was not easy to assign any sufficient reason for the perpetual tutory of females sui juris. No doubt by his time its stringency had been much relaxed ; but the manifest reason originally was to put it out of the power of such women to dispose of any part of their family estate to the prejudice of their gens without its co- operation (see p. 44). C 34 THE PLEBEIAN FAMILY. [SECT. 9. ber, sitting at table with their masters, and treated with a consideration due to them as reasonable human beings, rather than as the mere chattels that they were in contem- plation of law. The existence of slavery and its enormous expansion in the latter half of the republic not only told on the social and political institutions of Eome, but exer- cised a very considerable influence on the complexion of many branches of the private law. But this can be better indicated in dealing with later periods than that of the kings. The preceding observations on the early organisation of the family refer for the most part to the state of matters amongst the patricians. In the debates that took place about the proposal of C. Canuleius to repeal the declara- tion in the XII Tables that intermarriage between the orders was unlawful, it was urged by patrician orators, in language of supremest contempt, that the plebeians in practice knew nothing of marriage ; that their unions amongst themselves were promiscuous, no better than those of the beasts of the field, and could not possibly be creative of any of the rights that resulted from justae nuptiae. 27 The picture was over-drawn and over-coloured by the prejudice of caste ; for, although the plebeians were strangers to the religious marriage confarreatione, and it could not have been until after the Servian reforms that they became familiar with the civil one effected coemptione?* yet they had amongst themselves alliances completed by interchange of consent, and doubtless accom- panied by customary social observances, which they re- garded as marriages. In the eye of law, it is true, these were not creative either of manus or potestas ; neither did they bring the wife into her husband's family. Nay, more, as a plebeian was not esteemed a citizen, and could not therefore have conubium in the sense of the right to contract 27 Liv., iv. 2. 28 On coemption, see p. 65. SECT. 9.] PLEBEIAN RELATIONSHIPS. 35 a lawful marriage, 29 his children were in patrician estima- tion illegitimate, not so much his as their mother's. 30 In this may be discovered the origin of matrimonium as distinguished from justae nuptiae, alliance with a woman in order to make her a mother of children, but that did not make her still from the patrician's point of view " a partner in all the affairs of the household, human and divine." 5 Being of different races, and the traditions of some of them, for instance the Etruscan, tinctured more or less with gynaBOcratic notions, 32 the domestic customs and institutions of the plebeians may well have varied ; but the majority being of Latin origin, it is reasonable to assume that de facto they regarded their children as in patria potestate and asserted in respect of it the same powers as their patrician superiors. They were at a dis- advantage as compared with the latter, however, in having no gentes to stand by them in emergencies, to avenge their quarrels and their deaths, and to act as guardians of their widows and orphans. To compensate for this they seem to have set more store than did the patricians upon the circle of their relatives by blood and marriage (cognaii ct adfines). It is remarkable that, notwithstanding the pre- eminence given to agnates by the XII Tables in matters of tutory and succession ( 28, 32), the law reserved to the cognates as distinguished from the agnates certain rights and duties that in patrician Rome must have belonged to 29 "Uxoris jure ducendae facultas" (Ulp., v. 3). 30 Gai., i. 67 ; Ulp., v. 8. 31 This accounts also for the grammatically untenable explanation of patricii in Liv., x. 8, 10, "Qui patrem ciere possunt" ; i.e., patricians were father's sons, while plebeians, before they were admitted to citizenship and conubium, were only reckoned mother's sons. 32 Bachofen, Das Mutterrccht, Stuttgart, 1861, p. 92. 33 Their recognition of manus may not have been so general. While the XII Tables declared that it should be the legal result of a year's matrimonial cohabitation, they reserved power to a wife and her family to prevent it ; which would hardly have been the case had not some at least of the plebeians had a preference for marriage without it 36 EARLY DISTRIBUTION OF LAND. [SECT. 10. the gens ; for example, the duty of acting as assessors in the concilium domesticum, the duty of prosecuting the murderer originally of avenging the death of a kinsman, and the right of appeal against a capital sentence pronounced upon the latter. 34 This can only have been because in olden times, when agnation was unknown as distinct from the gens, it was plebeian practice to entrust those rights and duties to the sobrinal circle of cognates. 35 SECTION 10. DISTRIBUTION OF LAND AND LAW OF PROPERTY. 1 The distribution of land amongst the early Romans is one of the puzzling problems of their history. The Servian constitution classified the citizens and determined their privileges, duties, and burdens according to the extent of their freeholds ; and yet we know very little with certainty of the way in which these were acquired. The story goes that Romulus divided the little territory of his original settlement into three parts, not necessarily of equal dimensions, one of which was intended for the main- tenance of the state and its institutions, civil and religious, the second (ager publicus) for the use of the citizens and profit of the state, and the third (ager privatus) for sub- division among his followers. Varro and Pliny 2 relate that to each of these he assigned a homestead (Jierediuni) of two jugers, equal to about an acre and a quarter, to be held to him and his heirs (quae heredem sequerentur) ; Pliny adding 34 See Klenze (as in note 7), pp. 43, 46, and passim. 35 See Appendix, note A. 1 Giraud, Recherches sur le droit de propriete cliez les Romains, Aix, 1833 (only first vol. published); Mace", Histoire dc la propriete, du domaine public, et des lois agraires chez les Romains, Paris, 1851 ; Hildebrand, De antiquissimae agris Romani distributionis fide, Jena, 1862 ; Voigt, Ueber die bina jugera d. altesten Rom. Agrarverfassung, in the Rhein. Mus. f. Phil. vol. xxiv. (1869), p. 52 sq., the opinions in which are somewhat modified in his XII Tafeln, vol. i. 102 ; Karlowa, Rom. RG:, vol. i. 15. 2 Varro, De R.R., x. 2 (Bruns, p. 309) ; Plin., H.N., xviii. 2, 7. SECT. 10.] VARRO'S BINA JUGERA. 37 that to none of them did the king give more. The credi- bility of this statement is disputed on two grounds, that so small a plot was utterly inadequate to supply the wants of a family, and that there is evidence elsewhere that the practice was to assign lands, not to an individual or a family, but to a gens? But it is not to be lost sight of that this distribution is spoken of as made in the very first days of Eome, amongst a handful of adventurers, the nuclei of future gentes, but as yet without family ties ; whose occupa- tions as herdsmen were carried on upon the open hills, and for whom an acre and a quarter afforded ample space for a dwelling for themselves, shelter for their herds, and tillage ground for their personal requirements. It is not necessary, however, to assume, nor do Pliny's words imply, that this first distribution was a final one. The Sabines and others who from time to time threw in their lot with the new settlement, recognised rights of property either in the gens or the family, it was from the former, we are told, that came the worship of Terminus and the idea of the sacredness of the landmark ; and most of them when they formed their union with the followers of Romulus must have had their own lands and possessions, which had possibly descended to them through many generations. It would be unreasonable to suppose that, joining Rome, as some of them did, as equals rather than conquered, they would be content to resign their hereditary possessions for so inconsiderable a substitute. The majority of the Servian local tribes bore the names of well-known patrician gentes; whence it may be inferred that the families of the various clans did not disperse, but continued settled alongside each other, either in their original localities or on estates newly assigned to them. This view is confirmed by the fact mentioned by Livy, that when Appius Claudius and his followers came to Rome they were drafted as a body to a district north 3 See Mommsen, Hist., vol. i. p. 194 sq. 38 HEREDIA AND POSSESSIONES. [SECT. 10. of the Anio, which was afterwards known as the tribus Claudia. It is highly probable that, as the surviving Romulian families developed into gentes, they also acquired gentile settlements proportioned to their numerical strength and expectations. In their subdivision the practice may not have been uniform ; but apparently there was a reserve retained in the hands of the gens as a corporation as long as possible, from which allotments were made from time to time to new constituent families as they arose, and which were held by them in independent ownership under the old name of heredia. As agriculture gained ground these must have been of greater extent than those originally granted by Romulus. Seven jugers, about 4J acres, seem to have been the normal extent of royal grants to plebeians, and a patrician's freehold is not likely to have been less ; probably in the ordinary case it was larger, seeing the minimum qualification for the third Servian class was ten jugers, and for the first twenty. 4 To enable him to make grants during pleasure to his clients he must have held more than seven. But he did not necessarily hold all his lands by gratuitous assignation either from the state or from his gens ; purchase from the former was by no means uncommon ; and it may have been on his purchased lands, outside his heredium proper, that his clients were usually employed. Those de- pendents were also employed in large numbers upon those parts of the ager publicus which were occupied by the patricians under the name of possessiones. It was these, and not their heredia, that were the great source of wealth to 4 At the same time the writers of the empire frequently refer to the early heredium of seven jugers, as having been amply sufficient for its frugal owner, content to till it himself with the aid of his sons. The case of Cincinnatus in the year 293 U.C. is often mentioned : having a freehold of just that extent, he had to sell three jugers to meet engagements for which he believed himself in honour responsible, and yet found the remaining four ample to enable him to maintain himself with all the dignity of a man who had been consul and became dictator. SECT. 10.] PLEBEIAN HOLDINGS. 39 the patricians in the early republic, and that formed such a fertile cause of contention between the orders. But as their monopolisation by the former did not begin to manifest itself ostentatiously or to be felt as a grievance during the period of the kings, further reference to it may be reserved for a subsequent section ( 19). The accounts of the early distributions of land amongst the plebeians are even more uncertain than those we have of its distribution amongst the patricians. They had un- doubtedly become freeholders in large numbers before the Servian reforms. But they probably attained that position only by gradual stages. There are indications that their earliest grants from the kings were only during pleasure; but latterly, as they increased in numbers and importance, they obtained concessions of heredia, varying in extent from two to seven jugers. That those who had the means also frequently acquired land by purchase from the state may be taken for granted. In fact, there is good reason to believe that by the time of Servius the plebeians were as free to hold land in private property as the patricians, although the stages by which they reached equality in this respect are uncertain and difficult to follow. The language of Varro in reference to the heredia two jugers which should follow the heir (quae heredem seque- rentur) is sometimes interpreted as implying that those of them at least which were acquired by gratuitous grant from the state were declared inalienable. 5 Such an interpreta- tion is not inadmissible ; for the Sempronian law of 621 5 Schwegler (vol. ii. p. 444 sq.) and Rudorff (Gromatische Institutionen, Berlin, 1852, p. 303) are of this opinion, and base it to some extent on the consideration that until the time of Servius there was no process by which lands could be alienated. But this is assumed. There may possibly have been something akin to the resignatio in favorem of the feudal law resigna- tion of them into the hands of the king for re-grant to an alienee. There may even have been already in practice the surrender in court (in jure cessio), which we are told was confirmed by the XII Tables, and which is explained on p. 144. 40 DOMINIUM EX JURE QUIRITIUM. [SECT. 10. expressly declared inalienable the allotments of thirty jugers which it authorised. 6 It is very likely that sale of them was never contemplated; they were assigned to families rather than individuals ; and it has been observed already (p. 32) that a man was not allowed to alienate recklessly the estate that had come to him from his ancestors and ought to descend to his children. At the same time the interpre- tation seems somewhat strained. A grant to the original grantee and his heirs is all that the words fairly cover, in contradistinction to a more limited grant during pleasure or for life. It was a grant in absolute ownership, what came to be called dominium ex jure Quiritium. The epithet was not applied from the first; for dominium was not a word in early use, the owner being originally spoken of as herus, 7 and his right as manus. s The qualification ex jure Quiritium was derived from the words of style employed in an action for vindication of a right of property ; the condi- tion of the vindicant's obtaining the protection of the state through its ordinary tribunals being that he held on a title which the state, i.e., the Quirites, regarded as sufficient. It is sometimes said that the law of the regal period ante- rior to the reign of Servius Tullius knew no property in movables. The proposition is startling. How could it be that men who held separate property in land should be indifferent to the distinction between mine and thine in other things ! It is inconceivable that a man's slaves and cattle and sheep, his plough and other instruments of hus- bandry or trade, the crops he raised from his farm and the 6 The restriction, however, was found unworkable, and had to be removed. 7 The word is common in Plautus as a form of address by a slave to his master, and occurs in the Aquilian law of 467 U.C. (Dig., ix. 2, fr. 11, 6) in the sense of owner (dominus). Paul. Diac., v. Iferes (Bruns, p. 269), and Jus- tinian (Inst., ii. 19, 7) declare that with the ancients heres had the same meaning. Corssen (Beitrage, p. 40) connects them with the Sanscrit har, to take. 8 As evidenced by the manum conserere (p. 188) of the actio sacramenti in rem, and other considerations referred to in 13. SECT. 10.] PROPERTY IN MOVABLES. 41 wares he manufactured by his industry, were not regarded by him as just as much his, de facto at least, as the lands he tilled or the house he occupied. The proposition is maintained on the strength of a dictum of Gaius's, in which, referring to the distinction that arose in the later republic between quiritarian ownership and the inferior tenure which he designates as in bonis habere? he says that formerly (olim) matters were different, that a man was either owner ex jure Quiritium or was not owner at all. 10 But from the stand- point of Gaius his olim refers only to the state of the law immediately before this bonitarian tenure of res mancipi ( 13) for it was to them only that it applied was intro- duced ; and does not exclude the possibility that at a still earlier period the law recognised a distinction between natural and legal or civil ownership. 11 The fact that the praetors and the jurists of the early empire strove success- fully to mitigate the rigour of the pure jus civile by leaven- ing it with principles of natural law, is apt to induce the belief that this element was altogether novel. Yet Justinian warns us to the contrary. " Natural law," he says, " is clearly the older, for it began with the human race ; whereas civil laws commenced only when states began to be founded, magistracies to be created, and laws to be written." ] It is quite conceivable that the law might refuse a real 9 The rule of the jus civile was that what were called res mancipi could be transferred in full or quiritarian ownership only by mancipation or surrender in court (p. 63). The result was that a transfer by simple delivery left the legal title in the transferrer ; so that the transferree was unable to maintain a real action for vindication of his right until he had cured his defective title by prescriptive possession upon it. This was amended by a praetorian edict, which, on certain conditions, allowed him an action even before the prescrip- tive period had expired ( 52). The transferrer was not thereby divested of his quiritarian title ; but, by concession to the transferree of an action in rem, the latter was also recognised as owner on an inferior title, which got the name of in bonis habcre (Gai., ii. 40). Hence the epithet of rciptos which Theophilus applies to the equitable owner. 10 Gai., ii. 40. 11 *EvaiKT] Kal two/j-o^ 5ep. 275, note; Karlowa, Rom. CP., pp. 34, 38; Voigt, XII Tafeln, vol. ii. p. 88. Ihering has not yet developed his view, reserving it for a subsequent volume of the Geist. 2 Paul., in Dig., xlvi. 3, fr. 93, 8; Ulp., in Dig., xlvii. 3, 2; infra, note 64. 3 Cicero (Top., 4, 23) says that while, by the Twelve Tables, lands might be acquired by two years' possession, all other things (ceterae res omnes) might be usucapted in one year. There is no doubt that usucapion was not an invention of the Tables ; they only denned the period, hitherto uncertain, for which possession (usus) as owner had to be continued in order to create a property title. There is just as little doubt that the title created by usucapion was a quiritarian one, the right one of dominium ex jure Quiritium. A res nee mancipi, therefore, that had been possessed for a year by a person who had not come by it theftuously, was clearly his in quiritarian right. But once SECT. 30.] MODES OF ACQUIRING PROPERTY. 133 The modes in which those two classes of things might be acquired in property were very various. But there was this important difference, that while a natural mode of acquisition sufficed in the case of res nee mancipi, some civil one was necessary for the derivative acquisition, at all events, of res mancipi. The most important were mancipation^ sur- render in court, usucapion, and bequest as singular modes ; inheritance, in manum conventio, adrogation, and purchase of a confiscated estate as universal ones. All of these, with the exception of mancipation, applied equally to res nee mancipi. But the commonest of all the modes of transfer- ring things of this class was simple tradition. If the transfer was by the owner, with the intention of passing the pro- perty, then the simple delivery of possession was enough, unless it was in virtue of a sale ; in such a case, and because a vendor had as yet no action for the price, the Tables pro- vided that the ownership should remain with him, notwith- standing the change of possession, until the price was paid or security given for it. 4 The origin of the distinction between mancipable and non-mancipable things, and of the form of conveyance by mancipation applicable to the first, has already been ex- plained in connection with the reforms of Servius Tullius ( 13). 5 As Servius introduced it, mancipation (then called this was admitted, a step farther was inevitable. If a man could competently aver that a res nee mancipi was his in quiritary right the day after he had completed a year's possession of it, it would not be long before it would be allowed that his right to it was of exactly the same character even before the year had expired, provided he was able to establish ownership independently of the usucapion. 4 Just., List., ii. 1, 41. Some writers are 'of opinion that the provision in the Tables to which Justinian alludes, (and which, strangely enough, is not mentioned in the remains of any earlier authority), can have applied only to mancipations of res mancipi. But there seems no sufficient reason for thus limiting its application ; for though an informal contract of sale had not yet been recognised as creative of legally enforceable obligations, yet sale without mancipation was an ordinary transaction of daily life, acquisition of a specific article in exchange for a certain amount of metal or (afterwards) money. 6 Literature : Leist, Mancipation und Eiyenthumstradition, Jena, 1865 ; 134 CONVEYANCE PER AES ET LIBRAM. [SECT. 30. mancipium) was not the imaginary sale that Gaius speaks of, 6 but as real a sale as could well be conceived, the weighing in scales, held by an official, of the raw metal that was to be the consideration for the transfer of a res mancipi, and the handing of it by the transferee to the transferrer, with the declaration that thereby and therewith the thing in question became his in quiritary right ; and all this in words of style, and in the presence of certain wit- nesses who represented the people and thus fortified the conveyance with a public sanction. There is some reason to believe that, when large quantities of metal had to be weighed, the practice crept in of having this done before the witnesses had assembled ; and in the formal act only a single pound was weighed as representing the whole amount. 7 This paved the way for the greater change that resulted from the introduction by the decemvirs of coined money. From that moment weighing became unnecessary. The price was counted out before the ceremony, and sometimes left to be done afterwards ; and though, in that spirit of conserva- tism that was so marked in the adhesion to time-honoured forms after their raison d'etre was gone, the scale-bearer and the scales were still retained as indispensable elements of the mancipation, yet the latter were simply touched by the purchaser with a single coin, in order that he might be able to recite the old formula " I say that this slave is mine in quiritary right, and that by purchase with these scales and this bit of copper." And that one coin, says Gaius, was then handed by the transferee to the transferrer, as if it were in fact the price of the purchase (quasi pretii loco). Thus transformed, the mancipation was undoubtedly nothing more Ihering, Gelst. d. It. R., vol. ii. 46 ; Bechmann, Geschichte des Kaufs im Pom. Recht, (Erlangen, 1876), pp. 47-299 ; Voigt, XII Tafeln, vol. i. 22, vol. ii. 84-88. 6 Gai., i. 119. 7 See this more fully explained in 13, and the justification of the conjecture in note 16 to that section. SECT. 30.] EFFECTS OF MANCIPATION. 135 than an imaginary sale ; for the real price might have been paid weeks or months before, or might not be paid until weeks or months afterwards. The actual sale might be, and probably usually was, contemporaneous ; but the mancipa- tion itself had become nothing more than a conveyance, and in this form it continued down to the end of the third cen- tury of the empire to be the appropriate mode of transfer of a res mancipi, or at least of conferring on the transferee of such a thing a complete legal title (dominium ex jure Quiri- tium). After that, however, it seems gradually to have gone into disuse, being inapplicable to lands out of Italy that did not enjoy the privilege known as jus Italicum ; 8 and long before the time of Justinian it had entirely dis- appeared. 9 The effects of a mancipation, provided the price had been paid or security given for it, 10 were that the property passed instantly to the purchaser, and that the transferrer was held to warrant the transferee against eviction from the moment the price was received. In the absence of either payment or sureties for it, the title still remained with the vendor ; so that it was in his power, by means of a real action, to get back what had been mancipated, even though it had passed into the possession of the vendee. With the change from weighed metal to coined money, payment of the price or sureties for it also became a condition of the vendor's liabi- lity to the vendee in the event of eviction. 11 This liability 8 Gai., ii. 15. See 52, note 3. 9 The latest mention of it as a still subsisting institution is in an enactment of the year 355 (Theod. Cod., viii 12, 7). 10 What sort of security the Tables required we are not informed. We know from Gellius (xvi. 10, 8) that there was a provision in them about sureties who got the name of vades; that may have dealt with the matter. See Voigt, " TJeber das Vadimonium," in Abhandl. d. phU. hist. Classe d. Konigl. Sachs. Gesellsch. d. Wissensch., vol. viii. p. 299 sq. According to him, if the vades failed to pay the price for which they had become sureties, they might be con- vened in an " actio vadimonii deserti." See also his XII Tafeln, vol. ii. p. 490. 11 Paul., Sent., ii. 17, 1, 3. 136 WARRANTY AGAINST EVICTION. [SECT. 30. is usually supposed to have arisen ipso jure, that is to say, without anything expressly said about it ; the acceptance by the transferrer of the coin with which the scales had been struck was held to have imposed upon him an obliga- tion to maintain the transferee in possession, under a penalty of double the amount of the price, recoverable by the latter by what is usually called an actio auctoritatis. 13 But this ipso jure obligation did not arise when the mancipation was either really or fictitiously gratuitous ; really, in the case of donations, &c., 14 fictitiously, when, on purpose to exclude the warranty, the recital of the transferee was that the price was a single sesterce. 15 That so serious a consequence for the vendor should have arisen without anything said by him to bind himself, seems a little inconsistent with the general principle of the law of contractual obligation in the fourth century of Rome, and with the importance ascribed by Cicero to the words spoken by a contracting party as the test and measure of his liabi- lity. 16 Referring especially to the position of the transferrer in a mancipation, Cicero speaks of him as having obliged himself qui se nexu dbligavit ; 17 and this, it has been said, suggests something more on his part than the simple accept- ance of the raudusculum. It has also been a matter of obser- vation that a man transferring a res mancipi by surrender in court (in jure cessio} incurred no such obligation ; 1S an 12 The authorities for this are mostly from Plautus ; they are collected in Voigt, XII Tafdn, voL ii. p. 190. 13 See a paper on " L'action auctoritatis," by P. F. Girard, in the Nouv. Rev. Hist., vol. vii. (1882), p. 180. Latterly it was called "actio pro evictione." 14 Examples in Leist, Mancipation, p. 169. 15 It appears from an instrumentum fiduciae, discovered in Spain in 1876 (Bruns, p. 200), that this practice must have been common in the early empire ; for the creditor bargains that in selling by mancipation any of the lands or slaves included in his mortgage he should not be bound to do so for more than a single sesterce, i.e., he should not be held to warrant them to a purchaser. The single sesterce (silver) was quite distinct from the raudusculum, which was of copper. 16 Cic., De Off., iii. 16, 65. " Cic., Pro Mur., 2, 3. 18 Voigt, XII Tafeln, vol. ii. p. 189, note 2. The reason was that it was SECT. 30.] DID IT ARISE IPSO JURE? 137 immunity usually (but wrongly) ascribed to the fact that he said nothing that could even be construed into warranty. Two theories 19 have been propounded to obviate the diffi- culty. According to one, 20 the warranty was express, and was therefore obligatory under the provision of the XII Tables that what was publicly declared by word of mouth in the course of a mancipation should be held as law. 21 If so, the liability could have been avoided by omitting any such declaration ; whereas a variety of passages in the lay writers prove that onerous mancipation without warranty was a thing unknown. 22 The other theory is that the liability did arise ipso jure ; not, however, in consequence of the words spoken by the transferee, or of the raudusculum or coin accepted by the transferrer, but because of words spoken by the latter, which were substantially an echo of those spoken by the former. This is Voigt's view, 23 quite novel, and somewhat specious. He stands upon the broad ground that it is inconsistent with the supremacy of the word spoken, and the fruitlessness of the unexpressed wluntas in the fourth and fifth centuries of Rome, to suppose either that property could pass from A to B simply because B said so without contradiction from A, or that A could be laid under obligation to warrant the possession to B without a syllable spoken by him. He contends that there must have been a declaration by the vendor, following that of the vendee, not the cedent, but the magistrate by his decree (addictio), that gave the thing to the cessionary. 19 A third view is that of Ihering (Geist, vol. ii. p. 528, note 716), that the actio auctoritatis was really an action of theft, on the ground that the vendor had swindled the vendee out of his money. But it is refuted by the fact that the duplum was exigible even though the vendor had manifestly acted in per- fect good faith. 20 See Eck, Die Verpflichtuny des Verkaufers zur Gcwahrung d. Eigenthums (Halle, 1874), p. 2. With him concur Rudorff and Karlowa as quoted by him. 21 " Cum nexum faciet mancipiumqne, uti lingua nuncupassit ita jus esto " (Test., v. Nuncupata, Bruns, p. 275). -' See note 12. 23 Voigt, XII Tafeln, vol. i. p. 217, vol. ii. p. 137. 138 THE ACTIO AUCTORITATIS. [SECT. 30. " I say that the slave is thine in quiritary right, acquired by thee by purchase with those copper scales and this copper coin ; " and that the vendor as well as the vendee appealed to the witnesses for their testimony. An appeal to the wit- nesses was certainly made in some cases by the vendor ; for that was the position held by the testator in a testament- mancipation, and both Gaius and Ulpian narrate his nuncu- patory declaration and request for testimony. 24 An " aio tuum ese," &c., however, is vouched by no authority, either lay or professional. Yet it is quite conceivable ; for though aio ordinarily introduced an averment of the existence of a right in the person of the speaker, yet it seems to be gene- rally admitted that it was used by the defendant in a legis actio sacramenti in personam when expressly admitting the plaintiff's claim. 25 The right of a vendee to sue an aetio audoritatis arose only when eviction resulted from a decree in a regular judi- cial process at the instance of a third party disputing his title ; and was conditional on his having done all that was necessary on his part to bring his vendor (auclor) into the field to defend his own interests ( 34, n. 10). And the duration of the audoritas was limited by statute to two years in the case of lands and houses, one year in that of other things. 26 As possession for those periods was sufficient to cure any defect in the vendee's title, it was but reasonable that with their expiry the vendor's liability on his warranty should be at an end. By the provision of the Twelve Tables in reference to the verba nuncupata that accompanied a mancipation, 27 its 24 Gai., ii. 104 ; Ulp., xx. 9. It to some extent supports Voigt's view that Justinian (Inst., ii. 10, 1, 2) speaks of a testament per aes et libram as made emancipatione, i.e., by an act of the testator's putting his estate out of his manus. 25 On the authority of the note in Valer. Prob. 4, No. 3 (Collect, libror. jur. antejust., vol. ii. p. 144), Q.N.Q.A.N.Q.N. = " Quando neque ais neque negas." 28 Cic., Pro Caec., 19, 54 ; Top., 4, 23. See supra, note 21. SECT. 30.] OCCASIONAL LEGES MANCIPII. 139 importance was immensely increased ; for any sort of quali- fication germane to the transaction might be superinduced upon it, and the range of its application thus greatly ex- tended. Such qualifications were spoken of as leges man- cipii^ self-imposed terms, conditions, or qualifications of the conveyance, which, as integral parts of the transaction per aes et libram, partook of its binding character and were law between the parties. The matter of oral declaration might be the acreage of lands, their freedom from burdens or right to easements, reservation of a usufruct, limitation of their mode of use, undertaking to reconvey on a certain event, or what not ; the result was just so many obligations created per aes et libram, whose contravention or denial was punished with a twofold penalty. 29 But the words spoken in the hearing of the witnesses were the beginning and the end of the liability ; it was enough that they were literally complied with, however much the other party might be injured by something inconsistent with their spirit, or which he had not taken the precaution to require should be made matter of declaration. What had not been clothed in words could not be enforced as a lex mancipii. What had been intended could not be inquired into ; the rule was " accord- ing as a man has spoken, so shall be law ; " interpretative equity had no place as yet in the jus civile, unless, perhaps, in the case of a lex fiduciae. Among the declarations, restrictions, limitations, burdens, conditions, and so forth (dicta et promissa) that might be incorporated with a mancipation as leges mancipii and which imposed obligations sometimes on one party, some- times on the other, none was more important, and from some points of view remarkable, than this so-called lex fiduciae, or often, for brevity's sake, simply fiducia? 1 It was 28 See 7, note 7. Cic., De Off., iii. 16, 65. 3) See illustrations of a great variety of them in Voigt, XII Tafdn, vol. ii. pp. 149-165. Several of them, however, are of questionable authority. 31 The subject of fiducia has latterly been much discussed in connection 140 MANCIPATORY LEX FIDUCIAE. [SECT. 30. introduced when it was the intention of parties that the mancipatory transference, although 'in form absolute, should in reality be only provisional ; the transferee was therefore taken bound to reconvey either to the transferrer or to a third party, or to manumit a slave he had received, or to denude himself of the thing in any other way that might be embodied in the engagement. According to some jurists, such a qualification of the vendee's right might be intro- duced as an ordinary lex mancipii, without any fiduciary words ; in that case the obligation was stricti juris, and the vendor, if he failed to comply, was inevitably condemned in the twofold penalty which followed breach of the verba nun- cupata. But it was usually deemed expedient although the practice can hardly have been introduced until consi- derably later than the XII Tables to free alike the right of the vendor and the obligation of the vendee from the hard-and-fast lines of the jus strictum, and subordinate them to the principles of bona fides. This was done by importing fiduciary words into the mancipatory formula, " Hunc ego hominem fidei fiduciae causa ex jure Quiritium meum esse aio," " I say that this slave is mine in quiritary right, committed to my honour, for a fiduciary purpose, and that he is mine by purchase for a single sesterce, 32 with this copper and these scales, in order that I may remancipate him to you," or what not, according to the nature of the transaction. 33 with the Spanish mane! patio fiduciae causa, referred to in note 15. See Gide, in Rev. de Lerjislat., vol. i. (1870), p. 74 sq.; Degenkolb, in Z. f. RO., vol. ix. (1870), pp. 117 sq., 407 sq.; Kriiger, Krit. Versuche im Rom. Rechte (Berlin, 1870), pp. 41-58 ; Rudorff, in Z. f. RG., vol. xi, (1873), pp. 52 sq. 12 As the sesterce was first coined in 485, the formula must have been somewhat different before then ; but we know it only from the Spanish inscription, which was of the early empire. May not the fidei fiduciae (which occur in it) have been one single word, like jurisjurandi ? 33 Ihering (Geist, vol. ii. p. 515) holds that tiiefiducin was not embodied in the nuncupatio of the mancipation, but was a subsequent agreement in which fides was pledged, and which therefore gave rise only to a bonae fidei action. The strongest reason against regarding it as a lex mancipii is that it might be SECT. 30.] PURPOSES OF FIDUCIA. 141 Gaius 34 speaks of fiducia contracted either with a friend or with a creditor : with a friend, for safe custody of the thing transferred to him during the absence of the trans- ferrer; with a creditor, for the purpose of giving him security for a debt incurred or contemplated, and which might be coupled with special agreements defining his powers of dealing with it. He mentions also in another place 35 that, in emancipating his child, a paterfamilias, if he desired to be his tutor and have the right of succession to him on his death, usually bargained fiduciarily with the transferee for remancipation, so that he (the father) should become the child's manumitter from the state of free bondage in which for the moment he was placed. This case, how- ever, as well as that of the fiduciary coemption devised by the jurists of the sixth century, 36 was by no means of the same importance as those with friends and creditors just referred to. In them the transferee was vested with the legal right of property in the thing transferred to him, and in law entitled to deal with it as owner, in so far as not restrained by special agreements ; but at the same time he was a trustee (fiduciariiis), bound so to deal with it as not un- duly to prejudice the interests of the transferrer. The latter had for his protection an action (a. fiduciae) which differed from that for enforcement of an ordinary lex mancipii in this very important respect, that it proceeded, not upon in- an adjunct of a transfer by surrender in court (in jure cessio), as well as of a mancipation (Gai., ii. 59) ; but that only amounts to this, that it might take the form of a lex in jure cession-is as well as of a lex mancipii. The truth appears to be that in course of time it became the practice to follow up the mancipation and its fiduciary clause with a separate agreement setting forth details. 3 * Gai., ii. 60. 35 Gai., i. 132, 133 (which are defective in the Verona MS.), compared with Gaii Epit., i. 6, 3, and Just., Inst., iii. 2, 8. 36 To enable a woman sui juris to substitute fur her legal tutors others of her own selection who were bound to do her bidding, or to enable her to make a testament, or to enable her to get rid of the sacra (infra, p. 179) that had devolved on her along with an inheritance. See Cic., Pro Mur., 12, 27; Gai., i. 114, 115. See also supra, 11, note 6. 142 THE ACTIO FIDUCIAE. [SECT. 30. flexible rules of law, but on considerations of what was reasonable and fair in view of tke whole circumstances of the case uti inter bonos bene agier oportet. 31 With this action a considerable latitude was given to the judge. True, if the fiduciarius deliberately failed to reconvey when it was his duty to do so, or had by his doleful actings rendered reconveyance impossible, he not only was con- demned in the usual double penalty, 38 but became infamous on account of the breach of his expressly and publicly pledged faith. 39 If, on the other hand, his inability to reconvey was attributable to no fault of his, he was entitled to judgment in his favour ; while there might be anything intermediate between double condemnation and full acquittal according to the view taken by the judge of the circumstances as a whole. Another advantage of the fiducia was this, that as the radical right still remained in him who had given the object of it in mancipation, he could reacquire the legal title without reconveyance by continuing in possession for a year ; 40 the usucapion in that case was called usureceptio, and one year's possession instead of two held sufficient even for immovables, upon the pretext that what was usucapted was a Jiducia, and therefore included amongst the " other things " of the Twelve Tables. 41 This one year's usureception was competent at all times where the fiduciary mancipation had been to a 37 Cic., De Off., iii. 15, 61 ; 17, 70 ; Top., 17, 66. 38 Paul. (Sent., ii. 12, 11) says that under the XII Tables there was an actio in duplum in the case of deposit. As deposit, as an independent con- tract, was unknown until long after the Tables, Paul's words possibly refer to the fiducia cum amico depositi causa ; although it is also probable that breach of trust by a depositary, when no mancipation had intervened, was treated as theft, and visited with the same twofold penalty. 39 Cic., Pro Cacc., 3, 7. w Gai., ii. 59. 41 "Lex XII tabularum soli quidem res biennio usucapi jussit, ceteras res vero anno" (Gai., ii. 54). It was on the same somewhat sophistical construc- tion of the law that usucapio pro hercde (infra, p. 179) was held to be com- pleted in a year, even though the bulk of the hereditary estate might consist of immovables (res soli). SECT. 30.] USURECEPTIO FIDUCIAE. 143 friend, and probably was the ordinary method of extin- guishing the fiduciary right. Where, however, the manci- pation had been to a creditor in security of his claim, there was this qualification, that while the usureception might proceed on any causa possessionis after the debt secured had been paid, it was competent before payment only when the debtor's possession was not directly derived from the creditor either by lease or precatory grant during pleasure ; in either of those cases, according to the general principles of posses- sion, he was holding for the creditor rather than himself. 42 It is very generally, if not universally, maintained that mancipation was not only inappropriate but inapplicable to res nee mancipi, that mancipation of a thing of this sort was ineffectual as a conveyance. There does not seem to be any distinct authority for such a statement. 43 In the ordi- nary case parties would rarely dream of resorting to so cumbrous a procedure if nothing was to be gained by it ; but it is conceivable that it might be employed for some ulterior purpose, such as getting the benefit of a lex mancipii or a fiducia, whose efficacy depended on the transaction per aes et libram to which it was annexed. 44 If tradition actually accompanied the mancipation of a movable res nee mancipi, then it is difficult to conceive that the superinduc- tion of the civil ceremonial could deprive it of its power to pass the property of the thing delivered. That surrender 42 Gai., ii. 60. 43 A passage in the Vatican Fragments (No. 313) an enactment of Diocle- tian's runs : " Donatio praedii . . . traditione atque mancipatione perficitur ; ejus vero, quod nee mancipi est, traditione sola." But the two last words do not mean that donation of a non-mancipable could be perfected only by tradi- tion ; they are to be read "is perfect by tradition alone," i.e., without the necessity of mancipation. 44 There is no express mention of such a thing in the text ; but as only movables could be objects of deposit, and most were nee mancipi, one would think that they must have figured in the " Hducia cum amico depositi causa " of which Gaius speaks, before deposit had been recognised as an indepen- dent real contract imposing obligations upon a depositary apart from any mancipation. 144 IN JURE CESSIO. [SECT. 30. in court (injure cessio), adjudication, and usucapion applied both to mancipables and non-mancipables is indisputable. Surrender in court, 40 which was apparently of later intro- duction than mancipation, 46 was simply a rei vindicatio (or action to have a right of property declared) arrested in its initial stage (p. 189). The parties, cedent and cessionary, having previously arranged the terms of transfer, sale, exchange, donation, or what not, appeared before the magistrate ; the cessionary, taking the position of plaintiff, declared the thing his in quiritary right ; the cedent, as defendant, was asked what he had to say in answer ; and, on his admission or silence, the magistrate at once pro- nounced a decree (ad diet io)* 7 which completed the transfer, but might be subject to a condition or other limitation, or even to a fiduciary reservation. 48 It was probably more resorted to for the constitution of servitudes, both real and personal, and transfer of such rights as patria potestas, tutory- at-law of a woman, or an inheritance that had already vested, 49 than for conveyance of property. For it was not only inconvenient, inasmuch as it required the parties to appear before the supreme magistrate in Rome, and could not be carried through by a slave on his owner's behalf (as mancipation might), but it had these serious disadvantages, that it did not ipso jure imply any warranty of title by the cedent, or afford the cessionary any action against him in the event of eviction. The reason was that in form the right of the cessionary flowed from the magisterial decree, " Since you say the thing is yours, and the cedent does not say it is his, I declare it yours," and not from any act or word of the cedent's, who was passive in the matter. 45 Ihering, Geist, vol. ii. 46 ; Voigt, XII Tafeln, vol. ii. 83. 46 But earlier than the XII Tables, because confirmed by them (Paul, in Vat. Fray., No. 50). *' Gai., ii. 22, 24 ; Ulp., Frag., xix. 9, 10. 48 Gai., ii. 59 ; Paul., in Vat. Fray., Xo. 50. 49 None of these could be transferred by mancipation, as manifestly they could not bv tradition. SECT. 30.] ADJUDICATION AND USUCAPION. 145 Adjudication was the decree of a judge in a divisory action, such as one for partition of an inheritance amongst co-heirs ; it conferred upon each of them a separate and independent right in a part of what as a whole had pre- viously been joint property. 50 Usucapion, 51 regulated by the XII Tables, but not im- probably recognised previously in a vague and uncertain way, converted uninterrupted possession (usus) into quiritary property by efflux of time. The provision in the Tables was to this effect "usus auctoritas fundi biennium esto, ceterarum rerum annuus esto." " The relation in which the words usus and auctoritas stand to each other has been a subject of much discussion ; the prevailing opinion amongst modern civilians is that the first alone refers to usucapion and the second to the warranty of title incumbent on the vendor in a manci- pation, and that both were limited to two years in the case of lands (and, by extensive interpretation, houses), and to one year in the case of anything else. In the later juris- prudence the possession " use " was the technical term in the earlier law required to be based on a sufficient title, and the possessor to be in good faith. 53 But the decemviral code, as is now generally admitted, contained no such re- quirements ; any citizen 54 occupying immovables or holding movables as his own, provided they were usucaptible 55 and 80 Ulp., Frag., xix. 16. 81 Literature : Stintzing, Das Wcscn von bona fides und titulus in d. Rom. Usucapionslehre, Heidelberg, 1852 ; Schirmer, Die Grundidee d. Usucapion im Horn. Recht, Berlin, 1855 ; Pernice, Labeo, vol. ii. pp. 152 sq. ; Voigt, XII Tafeln, vol. ii. 91 ; Esmein, "Sur 1'histoire de 1'usucapion," in the Nouv. Rev. Hist., &c., vol. ix. (1885), p. 261 sq. 62 Cic., Top., 4, 23 ; Pro Caec., 19, 54 ; Gai., ii. 42, 54, 204. 63 Just., I nst., ii. 6, pr. M TJnucapion was peculiar to citizens " jus proprium est Romanorum " (Gai., ii. 65). The provision in the XII Tables, " Adversus hostem aeterna auctoritas " (Cic., De Off., i. 12, 37), which has been the subject of a somewhat voluminous literature, is sometimes adduced as proof of statutory declaration to the same effect. 85 What belonged to the state or to religion was of course excluded from usucapion ; so were the ret mancipi of a woman in tutelage of her agnates or K 146 OFFENCES AGAINST PROPERTY. [SECT. 30. that he had not taken them theftuously, 56 acquired a quiritary right in two years or one as the case might be, merely on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired, so long as not by theft, into legal ownership, when prolonged for the statutory period, too often the mainte- nance of might at the cost of right. But in time it came to be regarded rather as a remedy for some defect of title, arising either from irregularity of conveyance or incapacity of the party from whom a transfer had been taken ; and with the progress of jurisprudence developed into the carefully regulated positive prescription which has found a place in every modern system. The Twelve Tables contained a variety of provisions regu- lating the relations between conterminous proprietors, 57 and imposed penalties of considerable severity for offences against property. For example, any one intentionally setting fire to another man's house, or to straw or such-like in its imme- diate vicinity, was to be flogged and burned at the stake. 58 The malicious driving of cattle by night to graze upon an- other man's young corn, was punished with hanging of the offender and forfeiture of his goods to Ceres. 59 Bewitching another person's hanging fruit, or spiriting away a crop from his field, was also punished with death. 60 Cutting a tree belonging to another entailed a penalty of twenty-five asses, 61 patron, if alienated by her without their authority (Gai., ii. 47), the five feet of free space between two properties (Cic., De Leg., i. 21, 55), and a few other things. 56 Gai., ii. 45. 57 See fragments 1-10 in the seventh table of the arrangement in Bruns, p. 24. 58 Gai., lib. 4. ad XII Tab., in Dig., xlvii. 9, 9. 69 Plin., 21. X., xviii. 3, 12. 60 Sen., Nat. Quaest., iv. 7, 3 ; Plin., H.N., xxviii. 2, 17 ; Serv. in Virg. Ed., viii. 99 ; Aug., De Civ. Dei, viii. 19. The penalty was probably death by burn- ing ; at least that was the punishment of sorcerers in the classical jurispru- dence (Paul., Sent., v. 23, 17). . See Voigt, XII Tafeln, vol. ii. p. 800. 61 Plin., H.N., xvii. 1, 7. SECT. 30.] THEFT IN PARTICULAR. 147 the same as was imposed for an affront offered to a free- man, or an assault upon him that did not end in breaking bones. 62 The culpable killing or hurting of a slave or four- footed animal gave its owner a right to claim amends, but it does not appear in what form. Theft was envisaged from a great many points of view. If a thief was caught plying his vocation by night, he might be slain on the spot ; it was not lawful, however, to kill him by day, unless he used arms in resisting apprehension, (which was always the act of pri- vate parties, there being as yet no city watch or police establishment). A thief taken in the act (fur manifestus), if he was a freeman, was scourged and given over by the magistrate (addidus) to the person whose goods he had stolen ; if a slave, he was flogged and thrown from the Tarpeian rock. A thief who was not taken at the time suffered only a pecuniary penalty, twofold the value of the stolen goods. Very remarkable provisions were made to prevent third parties receiving and concealing stolen pro- perty. Thus the occupant of a house in which it was alleged that stolen property was concealed was bound to submit to a search for it, on pain of being held guilty of what was called furtum prohibitum, and punished as if he were a manifest thief; but the searcher was required to go through the. house with nothing on him but a cloth round his loins, and carrying a platter in his hands, obviously to exclude all suspicion of foul play. If the result of the search was the discovery of the stolen property (furtum linteo et lance conceptum), the occupant was liable to the owner in threefold its value, however innocent and ignorant he might have been of its presence within his premises ; but he had relief against the person who had smuggled it into his house by what was called an actio furti oblati.^ 62 Gai., iii. 223. C3 All those varieties of theft and ar.tiones furti are described by Gaius (iii. 183-193), but not without some confusion. Kriiger, in an article in the 148 JURA IN RE ALIENA. [ SECT. 30. The actio de rationibus distrahendis against a tutor who had embezzled property of his ward's was just a variety of the actio furti. So originally was the actio de tigno juncto, an action competent to the owner of building materials against him who had theftuously incorporated them in his house. Their owner's property in them was suspended during their incorporation ; he was not allowed to insist on their removal, for the public interest was of greater moment than his ; but he was entitled by this action to double their value, and when the house came down he might again re- vindicate them. 64 The abstract conception of a real right in (or over) the property of another person (what was called jus in re aliena) is not to be looked for at so early a period in the history of the law as that now under consideration. The rural servi- tudes of way and water were no doubt very early recognised ; for they ranked as res mancipi, and the Twelve Tables contained various regulations in reference to the former. Usufruct, too, was probably not unknown ; but the urban prasdial servitudes bear the impress of a somewhat later jurisprudence. Emphyteutic and superficial rights were of still later origin. Pignorate and hypothecary rights were equally unknown as rights protected by action at the time now being dealt with. 60 Between private parties, the only thing legally recognised of the nature of a real security was the fiducia already described. Approaching more nearly to Z. d. Sav. Stift., vol. v. (1884), R. A., p. 219 sq., has given a somewhat dif- ferent explanation of them. See also Gulli in the Arch. Giurid., vol. xxxiii. (1884), p. 107 sq. 6 * Gai. in Dig., xli. 1, 7, 10 ; Ulp. in Dig., xlvii. 3, 1, 1. The later law did not allow eventual vindication if there had been no mala fides in the appro- priation, and the double value had already been paid. 65 Hypothecary rights were certainly unknown until near the end of the republic. But Festus (v. Nancitor, Bruns, p. 274) speaks of a provision in the Cassian league between Rome and the Latin states of the year 262 u.c. " Si quidpignoris nasciscitur, sibi habeto " which makes it difficult to believe that the Romans were altogether unacquainted in de facto practice with impigno- ration of movables. SECT. 31.] NEXUM AND THE LAW OF OBLIGATIONS. 149 the modern idea of a mortgage was the security praedibus pracdiisque required by the state from those indebted to it in assurance of their obligations. Here there was the double guarantee of sureties (precedes) and mortgaged lands of theirs (praedia subsignata) ; but how they were dealt with when the debtor made default is by no means clear. 66 SECTION 31. NEXUM AND THE LAW OF OBLIGATIONS. The jurists of the classical period attribute obligation either to contract, delict, or miscellaneous causes (variae causarum figurae) ; and those arising from contract fill a place in the later jurisprudence vastly greater than those arising from delict. In the Twelve Tables it is very dif- ferent. In them delicts are much more prominent than contracts, wrongs entitling the sufferer to demand the imposition of penalties upon the wrong-doer, that in most cases covered both reparation and punishment. The dis- proportion in the formulated provisions in reference to the two sources of obligation, however, is not surprising. For, first of all, the purpose of the decemviral code was to remove uncertainties and leave as little as possible to the arbitrariness of the magistrates. In nothing was there more scope for it than in the imposition of penalties ; and as different offences required to be differently treated, the pro- visions in reference to them were necessarily multiplied. In the next place, the intercourse. that evokes contract was as yet very limited. Agriculture was the occupation of the great majority ; trade and commerce were more backward than in the later years of the regal period ; coined money was just beginning to be used as a circulating medium. Lastly, the safeguards of engagement lay to a great extent in the sworn oath or the plighted faith ; of which the law 36 For note of the literature on the subject, see Baron, Gesch. d. R. R., vol. i. p. 169. 150 EARLY REQUIREMENTS OF CONTRACT. [SECT. 31. indeed did not yet take cognisance, but which found a protection quite as potent in the religious and moral senti- ments that had so firm a hold of the people. It was a principle of the law of Eome through the whole of its history, though in course of time subject to an increasing number of exceptions, that mere agreement between two persons did not give him in whose favour it was conceived a right to demand its enforcement. To entitle a man to claim the intervention of the civil tri- bunals to compel implement of an engagement under- taken by another, it was necessary either that it should be clothed in some form the law prescribed or recognised, or that it should be accompanied or followed by some rela- tive act which rendered it something more than a mere interchange of consent. Under the jurisprudence of the XII Tables the formalities required to elevate an agreement to the rank of contract and make it civilly obligatory some- times combined ceremonial act and words of style, sometimes did not go beyond words of style, but in all cases before witnesses. Dotis dictio, the undertaking of a parent to pro- vide a dowry with his daughter whom he was giving in marriage, and vadimonium, the guarantee of a surety for the due fulfilment of the undertaking either of a party to a contract or a party to a litigation, probably required nothing more than words of style before persons who could if neces- sary bear witness to them ; whereas an engagement incident to a mancipation, or an undertaking to repay borrowed money, required in addition a ceremony with the copper and the scales. The historical reason for the employment of the scales has already been explained. They became as time progressed mere matter of form or ceremonial ; but originally they were matter of substance. In early days neither sale nor loan was possible without them ; for both the price in the one case, and the copper that was being lent in the other, had to be weighed. It was the spirit of SECT. 31.] CONSERVATISM IN MATTERS OF FORM. 151 conservatism, so manifest in all departments of the law, that induced their retention as formalities after they had ceased to be of moment substantially ; had they had no practical significance in the first instance, it is not likely they would ever have been resorted to. There were many formal observances in Roman law that seemed to have not much bearing upon the proceeding of which they formed part ; but there was hardly one of them that had not its historical explanation. They were often retained, more or less modified, simply because they had been always asso- ciated with some particular transaction, and sometimes long after they had ceased to be of any substantial significance ; but it was not the practice to introduce merely for the sake of form a ceremonial that at the time of its introduction had no utilitarian value. If all that was wanted was deli- beration in contracting, certainty as to the nature and terms of the contract, publicity and trustworthy testimony, words of style, spoken in presence of witnesses, as in the vadimo- nium and dotis dictio, were sufficient for the purpose. The opinion is very generally entertained that the only proper contracts recognised by the XII Tables were those annexed to a mancipation or surrender in court and em- bodied in a lex mancipii or in jure cessionis, and the nexum, 1 the vadimonium, and the dotis dictio. Some reckon amongst them the verbal contract by stipulation, which in time came to be the most important and inclusive form of contract known to the law ; but it is impossible to discover even the most remote allusion to it in any extant fragment of the Tables, and the better opinion seems to be that it was of later introduction. 1 The literature on the subject of the nexum is very abundant, and the views taken of it very discordant. Danz (Gesck. d. R. R., vol. iii. 146) gives a list of the more important writings about it, and a risumA of the principal theories. To his list, which comes down to 1870, may be added Vainberg, Le nexum ... en droit Romain, Paris, 1874 ; Brinz, " Der Begriff obligatio," in Griinhut's ZSchr., vol. i. (1874) p. 11 sq.; and Voigt, XII Tafdn, vol. i. 63-65. 152 THE CONTRACT OF NEXUM. [SECT. 31. The condition of the nexi (as debtors who had been bound by nexal contract were called) during the first two centuries of the republic, and the commotions to which their grievances again and again gave rise, have been alluded to in a previous section ( 20). Although much has been written on the subject, opinions differ not a little as to who exactly those nexi were, how they became so, and what was their status in law. In this, however, there seems to be a general agreement, that the first step towards their reaching the miserable condition which Livy and Dionysius have so graphically, though perhaps not always with strict accuracy, depicted, was a loan transaction, real or fictitious, 2 which was technically called nexum or nexi datio. 3 The practice of lending per libram was doubtless of great antiquity, indeed the intervention of the scales was a necessity when money or what passed for it had to be weighed instead of counted ; and not im- probably old custom conceded to a lender who had thus made an advance in the presence of witnesses some very summary and stringent remedy against a borrower who failed in repayment. How Servius subjected it to much the same formalities as he appointed for mancipation, the state scales, the official libripens, the five witnesses repre- senting the nation, has been shown already (p. 68). With the introduction of a coinage the transaction, instead of being per libram sinfply, became one per aes et libram ; the scales were touched with a single piece, representing the money 2 The opinion is entertained by some writers that, after the introduction of coined money, and when touching the scales with a single as took the place of the weighing of so many pounds of metal as part of the ceremonial, the nexi datio upon pretence of a loan might be, and was, employed to create a bond for payment of a definite sum, no matter what the real ground of indebtedness. It is extremely probable. The sale in a mancipation was in many cases only simulated, and the payment in nexi liberatio did not need to be real ; arguing from analogy, therefore, there is no reason why a man may not have become nexus as if for borrowed money, when in fact the ground of debt was something different. 3 See Appendix, Jsote C. SECT. 31.] ITS CEREMONIAL. 153 which had already been or was about to be paid, a formula recited whereby the obligation of repayment was imposed on the borrower, and an appeal made to the witnesses for their testimony. Unfortunately this formula is nowhere preserved. Huschke 4 and Giraud, 5 assuming that the lender was the only speaker, formulate it thus, " Quod ego tibi mille libras hoc aere aeneaque libra nexas dedi, eas tu mihi post annum jure nexi dare damnas esto " " "Whereas, with this coin and these copper scales, I have given thee a thousand asses, be thou therefore bound jure nexi to repay them to me a year hence." 6 The phrase damnas esto, like the rest of the formula, is unsupported by any conclusive authority ; but as it was that most frequently employed during the republic for imposing, by a public act, liability to pay a fixed and definite sum, 7 it may not be wide of the mark. 8 What was the effect of this procedure ? The question is one not easily answered. Brinz has expressed the opinion 4 Huschke, Ueber das Recht dcs nexum (Leipsic, 1846), p. 50. 5 Giraud, Des nexi, ou de la condition dts debiteurs ckez les Romains (Paris, 1847), p. 67. 8 If the loan was to bear interest, the words cum impendio unciario, or equivalents, would be incorporated. 7 . See Huschke, I.e. He renders damnas esto (p. 51), " Du sollst ein zu geben Verfluchter sein." There has been much speculation as to the derivation and original meaning of the words damniim, damnare, damnas. See the more important suggestions in Voigt, Bedeutungswechsel, p. 142 sq. 8 Voigt, who holds that the nexi datio was at once a mode of transferring the property of the money or other ponderable from the lender to the bor- rower, and of imposing upon the latter an obligation to repay it, proposes a different formula (XII Tafeln, vol. ii. p. 483), which has the merit of coming nearer that of the nexi liberatio than Huschke's : " Haec ego octingenta aeris ex jure Quiritium tua esse aio ea lege, uti tantundem cum impendio unciario proximis kalendis Martiis recte solvas liberasque aenea libra. Hanc tibi libram primam postremam adpendo, lege jure obligatus ; " and this he holds to have been echoed by the borrower, in accordance with his theory that in every transaction per aes et libram there must have been nuncupatio on both sides. He rejects the words damnas esto, because of another theory of his own, that there was nothing peculiar in the obligation created nexo, i.e., that it did not impose any immediate liability on the borrower which the lender could enforce without judicial intervention, but that the latter required to proceed against the former in ordinary course, by what he calls an actio pecuuiae nuncupatae. 154 EFFECTS OF NEXAL CONTRACT. [SECT. 31. that the creditor was entitled in virtue of the nexum to take his debtor into custody at any time when he considered such a course necessary for his own protection, even before the conventional term of repayment, that the debtor was in bonds, virtually a pledge, from the very first, and the tight- ness or looseness of them a matter in the discretion of his creditor. 9 Voigt holds that the nexum did not give the creditor any peculiar hold over his debtor ; and that, on the latter's failure to repay, an ordinary action was necessary, to be followed by the usual proceedings in execution if judg- ment was in favour of the former. 10 These views may be said to be the two extremes, and between them lie a good many others more or less divergent. The difficulty of arriving at a conclusion is caused to some extent by the ambiguity of the words nexus and nexum. The transaction itself was called nexum ; the money advanced was nexum aes (hence nexi, i.e. aeris, datio) ; the bond was nexus (of the fourth declension) ; and the debtor on whom the bond was laid was also nexus (of the second). All this is simple enough. But we find the same word nexus employed by the historians as almost synonymous with vinctus, to de- note the condition of a debtor put in fetters by his creditor. That might be the condition either of a nexal borrower or of an ordinary judgment-debtor ( 36). The former in such a case was doubly nexus ; he was at once in the bonds of legal obligation and in those of physical constraint. In many passages in which Livy and others speak of the nexi it is extremely difficult, sometimes impossible, to be sure in which meaning they use the word. It is therefore not sur- 9 Brinz, Griinhut's ZSchr., vol. i. p. 22. He likens the position of the nexus to that of a thing, land say, mortgaged to a creditor in security of a claim. Such a security is constantly spoken of by the Roman jurists as res obligata or res nexa. As Brinz observes, the thing was obligata from the first, and continued so as long as the debt it secured was unpaid, even though the creditor found it unnecessary to reduce it into possession or interfere with it in any way. 10 See reference in note 8. SECT. 31.] SELF-IMPIGNORATION OF DEBTOR. 155 prising that there should be considerable diversity of opinion on the subject, and such frequent identification of the legal status of a nexal debtor (nexus) with that of a judgment debtor (judicatus, addictus). Consideration of the texts inclines me to the conclusion that, although de facto a creditor may have made little or no difference in his treatment of his nexi and addicti, yet de jure their positions were quite distinct both before and after the legislation of the Tables. 11 The right of a nexal creditor whose debtor was in default was, at his own hand, and without any judgment affirming the existence of the debt, to apprehend him, and detain him, and put him to service until the loan was repaid. 12 Its parallel is to be met with amongst all ancient nations, Jews, Greeks, Scandinavians, Germans, &c. 13 And it was not altogether unreasonable. If a borrower had already exhausted all available means of raising money, had sold or mortgaged everything he possessed of any value, what other recourse was open to him in his necessity than to impledge him- self? 14 For this was substantially what he did in entering 11 Dionysius (viii. 83), speaking of the events that gave rise to the first secession of the plebeians and the measures proposed for remedying their grievances, pointedly distinguishes between borrowers whose bodies had been taken by their creditors because they had failed to repay their loans at the proper period, and debtors who had magisterially been given up to their creditors because they had failed to implement judgments obtained against them. 12 This meets the definition of Varro (De L. L., vii. 105, Bruns, p. 308) " Liber qui suas operas in servitutem pro pecunia quam debet dat, dum solveret nexus vocatur" "a freeman who gives his services as a slave in return for money that he owes is called nexus so long as it is unpaid." 13 See authorities in Bruns' paper in Griinhut's ZSchr., vol. i. p. 25. The Greek phrase was 'eiri (TW/JLOLTI daveifeiv. There is a curious style in Marculfus (Form., ii. 27), in which a borrower engages that, until he shall have repaid his loan, his creditor shall have right to his services so many days a week, and shall have power to inflict corporal punishment if there be dilatoriness in ren- dering them. Kohler, in his Shakespeare vor dem Forum der Jurisprudenz (Wiirzburg, 1884), p. 7 8q., gives scores of illustrations from the early (and in some cases present) laws and customs of all parts of the world of the powers of creditors over the bodies of their debtors, which form a most instructive study in comparative jurisprudence. See infra, Appendix, Note F. 14 " He told them how he had been obliged to borrow money, because, when 156 RIGHTS OF THE NEXAL CREDITOR. [SECT. 31. into the nexal contract; 15 not in so many words, but by necessary implication. 16 That the creditor should have been entitled to realise the right he had thus acquired without the judgment on it of a court of law is equally intelligible. The nexal contract was a public act, carried out in the presence of the representatives of the people, who were witnesses alike of the acknowledgement of in- debtedness and the tacit engagement of the debtor. The only valid objection that could be stated against the credi- tor's apprehension of his debtor in execution was that the indebtedness no longer existed, that the loan had been repaid. But a nexal debt could be legally discharged only by nexi liberatio ; which also was a solemn procedure per aes et libram in the presence of five citizen witnesses. 17 he had been away fighting against the Sabines, his farm had remained nn- cropped, his house had been burned, his cattle driven off, everything plun- dered, and at the same time, unhappily for him, a tribute imposed ; how first his ancestral lands had gone, then his other property, and at last, like a wasting disease, it had come to his body ; how his creditor, instead of putting him to work (in servitium), had thrown him into a dungeon and a torture- chamber" (Liv., ii. 23). 15 It is often argued, in opposition to this view of the matter, that a Roman citizen could neither sell himself as a slave nor place himself in causa mancipii. This is true. But it is irrelevant. The nexus was neither a slave nor in causa mancipii. His creditor's right was to detain him and use his services ; protected possibly by a real action, but certainly by an action of theft 'against any third party maliciously carrying him off. In these respects the relation of the nexus to his creditor was analogous to that of an auctoratus to his lanista (Gai., iii. 199) ; yet the auctoratus was undoubtedly a freeman, and the relation the result of contract. 16 Some jurists hold that a debtor's giving himself as nexus was something distinct from the engagement to repay, and might be either contemporaneous with it or of later date. In the former case they assume that there was a separate agreement or lex nexi annexed to the main contract. For the latter they call in evidence the historians, who once or twice speak of men having yielded themselves as nexi in respect of loans they themselves had not con- tracted. But in such instances it was invariably a son that gave himself up in respect of money borrowed by his deceased father, the heir fulfilling, as the law compelled him to do, the obligation of his predecessor. 17 Gai., iii. 174. The formula of nexi liberatio is instructive as showing the actual relation in which the debtor stood to his creditor " me a te solvo liberoque hoc aere aeneaque libra " " I unbind and free myself from thee," &c. . SECT. 31.] NEXUM IN THE TWELVE TABLES. 157 "What need for a judicial inquiry in the presence of facts so notorious ? A creditor would rarely be daring enough to proceed to manus injectio if his loan had been repaid ; if he did, the testimony of the witnesses to the discharge would at once procure the release of his alleged debtor. It was probably to give opportunity for such proof, if there was room for it, that the XII Tables required that a creditor who had apprehended a nexal debtor should bring him into court before carrying him off into detention. The provisions of the Tables on the subject of manus injectio, 1 * there seems good reason to believe, applied for the most part only to judgment-debtors. There are some, how- ever, who hold they had no application at all to mere nexi ; 19 while others again are of opinion that they applied to them in their integrity as much as to judicati. 20 As described by Gellius they commenced thus : " Aeris confessi rebusque jure judicatis triginta dies justi sunto. Post deinde manus injectio esto : in jus ducito. Ni judicatum facit," &c., i.e., " for acknowledged money debts and judgments obtained by regular process of law the days of grace shall be thirty. Then the creditor may apprehend his debtor, but must bring him before the praetor. If the judgment- debtor still fail to implement the judgment," and so on. That the words " aeris confessi . . . triginta dies justi sunto " 2l referred to a nexal debtor, and not, as is generally assumed, to a defendant who had formally admitted his liability in the initial stage of an ordinary action, will be shown more conveniently in a subsequent section ( 36). He was to have thirty days' grace after the maturity of his 18 Cell., xx. i. 45. 19 E.g., Voigt, XII Tafeln, vol. i. p. 629 sq. 20 E.g., Huschke, who is of opinion (Nexum, p. 95) that the Tables must have contained a provision that a nexus was to be dealt with in the same way as a judicatus. 21 There is no good objection to the phrase " dies aeris confessi ; " for " dies pecuniae" occurs in Cic., Ad Att., x. 5, and "dies pecuniaruin" in Colum., 2Je R. R., i. 7, 2. 158 THE NEXAL CREDITOR'S MANUS INJECTIO. [SECT. 31. debt ; and then his creditor might apprehend him, present- ing him, however, to the magistrate before carrying him home (domum ductio), in order, no doubt, that the one might prove the nexal contract, and the other have an opportunity, if the fact justified it, of proving by the mouths of the wit- nesses of the nexi liberatio that the loan had been repaid. All that follows in Gellius of the provisions of the Tables on the subject of manus injectio seems to refer solely to the case of a judgment-debtor. The possible intervention of a vin- dex, the two months' provisional detention of the debtor, his periodical production in the market-place, his formal over- giving to his creditor (addictio) on the expiry of the sixty days, the capite poenas datio, the sale beyond Tiber, the partis sccare, all these ( 36) refer solely to the judicatus. There was no room for a vindex or champion in the case of a nexal debtor ; for there was no judgment whose regularity the former could impugn. Nor was there any room for a magisterial addictio of the debtor to his creditor ; for the latter's right was founded on a publicly vouched contract, and needed no decree to strengthen it. He was entitled at once, after apprehension of his debtor and production of him in court in terms of the statute, to carry him home, take such steps as were necessary to ensure his safe custody, and employ his services in profitable industry. But that he could kill him or sell him, as some sup- pose, is a proposition that is unsupported by any distinct authority. Equally untenable is the notion that the nexus became a slave, or that, while retaining his freedom, his wife, chil- dren, and belongings fell with him into the hands of his creditor. He certainly was not in a worse position than an addictus, a judgment-debtor given over to his creditor by magisterial decree on failure to make an arrangement ; yet Quintilian states distinctly that an addictus did not become a slave, that he still retained his position in the census SECT. 31.] THE DEBTOR IN DETENTION. 159 and in his tribe. 22 Many a time, when the exigencies of the state required it, were the nexi temporarily released in order to obey a call to arms, to fulfil the duty incumbent on them as citizens. In fact, a nexal debtor suffered no capitis deminutio at all because of his detention. If he was a house-father, he still retained his manus over his wife and potestas over his children. But they did not share his quasi-servitude. 23 Their earnings legally belonged to him ; but were no doubt retained by them with his consent for their own support. They certainly did not fall to his credi- tor. We may well believe that in the ordinary case a nexus, when he fell into that condition, had not much to call his own ; but to assume that all that he then had, and all that he subsequently acquired by inheritance or otherwise, passed ipso jure to his creditor, would be to set at naught the statement of Varro " dum solveret nexus vocatur." How could he pay his debt and thus obtain his release if all that he had to pay with already belonged to his creditor ? And what, on such assumption, of the provision of the Poetilian law, which made bonam copiam jurare a condition of the release of the nexi then in bondage ? 24 Whatever these words may mean and it is matter of controversy 25 they undoubtedly imply that a nexus, even when confined 23 Quint, Decl, 311. 3 If they had done so as a matter of course, there would have been no occa- sion for a son to yield himself as nexus for his father's debt on the latter's death, as we are told sometimes happened (see note 16). A passage in Livy (ii. 24) seems at first sight to partially contradict what is stated above : " Servilius . . . edixit ne quis civem Romanum vinctum aut clausum teneret, quo minus edendi apud consules potestas fieret, neu quis militis, donee in castris esset, bona possideret aut venderet, liberos nepotesve ejus moraretur." But this edict bore no special reference to nexi. It was a general prohibition of the appropriation of the goods or detention of the children of a citizen while on service, no matter on what pretext. Besides, it was nearly fifty years earlier than the XII Tables, and before there was any definite law to protect the plebeians against the high-handed oppression of their patrician fellow-citizens. ** Varro, De L. L., vii. 105 (Bruns, p. 308). 24 See infra, note 35. 160 MALTREATMENT OF THE NEXT. [SECT. 31. in his creditor's prison-house, might still have means of his own. It was the body of his debtor that the creditor was entitled to, and too often he wreaked his vengeance on it by way of punishment ; there was as yet no machinery for attaching the debtor's goods in substantial reparation for the loss caused by his breach of contract. The abuses to which the system gave rise alike in the case of nexal and of judgment-debtors have already more than once been alluded to. Their detaining creditors, instead of being content to employ them in productive industry, and resorting to no more restraint or punishment than was necessary for safe custody or in the exercise of disci- pline, often confined them in dungeons, put them in chains, starved them and flogged them, and subjected them to the grossest indignities. In the year 428 26 a more than ordi- narily flagrant outrage committed by a creditor upon one of his young nexi, who, Livy says, had given himself up as responsible for a loan contracted by his deceased father, roused the populace to such a pitch of indignation as to necessitate instant remedial legislation. The result was the famous Poetilian law (lex Poetilia Papiria). 27 It has often been summarily described as a law abolishing imprisonment for debt, and substituting real for personal execution. Its scope, however, was by no means so extensive. The imprisonment of a judgment-debtor was still competent under the legislation of Justinian, 28 although by the Julian law of cessio bonorum it might be avoided or put an end to by the unreserved sur- render of his goods to his creditor ; 29 while execution against a debtor's estate independently of his person was first made 86 According to Livy. Dionysius puts it in 462. 27 Cic., DeRep., ii. 34, 59 ; Liv., viii. 28 ; Dion. Hal.. Frag., xvi. 9 (Reiske, vol. iv. p. 2338) ; Varro, De L. L., vii. 105 (Bruns, p. 308). - 8 See references to it as a subsisting institution in Dig., xlii. 1, 34, and Cod., vii. 71, 1. 29 Severus Alexander in Cod., vii. 71, 1. SECT. 31.] THE POETILIAN LAW. 161 matter of general regulation by an edict of Pub, Kutilius Rufus, 30 who was praetor in 647 u.c. 31 So far as can be gathered from the meagre accounts of it we possess, the Poetilian law contained at least these three provisions : (1) that fetters and neck, arm, or foot blocks should in future be applied only to persons undergoing imprisonment for crime or delict ; (2) that no one should ever again be the nexus of his creditor in respect of bor- rowed money ; and (3) that all existing nexi gui bonam, copiam jurarent should be released. The first was intended to prevent unnecessary restraint upon judgment-debtors formally given over (addieti) to their creditors. Bonds were not altogether forbidden ; on the contrary, the charter of foundation of one of Caesar's colonies, in authorising manus injectio upon a judgment, expressly empowered the creditor to incarcerate his debtor, and put him in bonds such as were allowed by the jus civile. 32 It is not improbable that in addition the statute contained this positive provision in reference to the addictus, that he should work for his creditor until his debt was paid ; at least Quintilian more than once mentions an anonymous statute in which he says it was so laid down. 33 The second provision above referred 30 Gai., iii. 78, iv. 35. This edict was really a bankruptcy law, to pre- serve an insolvent debtor's estate and regulate its division among his credi- tors. But there is no reason for doubting that long before its date the praetor may have interfered in the same direction on special application in regard to each case as it arose. 31 What, no doubt, has given rise to the notion that the Poetilian law was meant to substitute real for personal execution, is the phrase in Livy's account of it, " Pecuuiae creditae bona debitoris non corpus obnoxium esset." But this is clearly comment and nothing more ; the Romans did not express their enactments in language so abstract and so vague. All that Livy meant, pro- bably, was that it was the goods of a debtor (including the produce of his labour), and not his body as such, that ought to be made responsible for money borrowed by him. 82 Lex coloniae Jullae Genetivae (710 A.U.C.), cap. 61 (Bruns, p. 110), " Judicati jure manus injectio esto. . . . Secum ducito. Jure civili vinctum habeto." 33 " Quid enim lex dicit ? ' Addictus, donee solvent, serviat ' " (Decl., 311). See also Inst. Or., vii. 3, 26. L 162 DISUSE OF NEXAL OBLIGATION. [SECT. 31. to did not necessarily abolish the contract of loan per aes et libram, but only what had hitherto been an ipso jure con- sequence of it, the creditor's right to incarcerate his debtor without either the judgment of a court or the warrant of a magistrate. For the future, execution was to be done against a borrower only as a judgment-debtor formally made over to his creditor by magisterial decree, and under the restrictions and limitations imposed by the Poetilian law itself. This very soon led to the disuse of nexal obligation ; once it was deprived of its distinctive processual advantages it rapidly gave place to the simpler engagement by stipula- tion enforcible per condictionem ( 39). As for the release of the then existing nexi, Cicero, Livy, and Dionysius say nothing of any condition annexed to the boon the statute conferred upon them ; it is only Varro that limits it to those qui bonam copiam jurarunt, those apparently who were able to declare on oath that they had done their best, and could do no more to meet their creditors' claims. 34 Such a limi- tation can hardly be called unreasonable, even were we to assume as probably we ought to do that the release spoken of was only from the bonds of physical restraint, not from those of legal obligation. 35 It might be proper enough to liberate those whose inability it was, and not their will, that prevented them fulfilling their engagements ; but to have done the same with those who, being able to do so, frau- dulently refused to pay their debts, would have been an 34 The same words occur in the Lex Julia Municipalis (line 113, Bruns, p. 101) as descriptive of a class of persons thereby disqualified for holding office in a municipality. They must therefore have implied insolvency rather than solvency. Comp. Marezoll, Frag, legis Rom. in tab. Neradeensis parte (Gottingen, 1816), p. 142 sq. ; Dirksen, Ad tab. Heracl. part, alteram (Berlin, 1817), p. 105 sq. Cic., Ad Fam., ix. 16, has bonam copiam ejurare. Paul. Diac. (Bruns, p. 266) defines ejuratio as " id, quod desideretur, non posse praestare." 35 Livy's phrase is " ita nexi soluti ; " and " nexi soluti " he employs else- where in opposition to " nexi vincti," thus distinguishing between nexi in bonds and nexi at large. In ii. 23, 8, he has " nexi vincti solutique." SECT. 31.] ORDINARY TRADING TRANSACTIONS. 163 injustice to their creditors that even the abuses that gave occasion for the statute could hardly have excused. It is obvious that the contract of nexum and the contrac- tual or quasi-contractual relations arising from a lex mancipii, a vadimonium, or a dotis dictio, must have been far from sufficient to meet the requirements even of an agricultural population such as that of Rome in the fourth century of her history. If a man purchased sheep or store cattle, a plough, a toga, a jar of wine or oil, had he no action to com- pel delivery, the vendor no action for payment of the price ? Did the hire of a horse or the loan of a bullock create no obligation ? Was partnership unknown, and deposit, and pledge, and suretyship in any other form than that of vadi- monium ? One can have no hesitation in answering that, as transactions of daily life, they must all have been more or less familiar. It does not follow, however, that they were already regulated by law and protected by the ordinary tribunals. The historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commoda- tum*), deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet very barely recognised by law. Sale was the offspring of barter, of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side, even when the ware (merx) given by one of the parties was so much rough copper weighed in the scales. The substitution of coined money for the raw metal can hardly have operated any radical change ; the ordinary practice of those early times must still have been ready-money transaction, an instant exchange of ware against price ; and it can only have been when, for some reason or other, the arrangement was exceptionally for delivery or payment at a future date, say next market-day, that obligation was held to have been created. Was that obligation enforceable by the civil tri- 164 BUYING AND SELLING. [SECT. 31. bunals ? Some jurists hold that it was, that at no time were the juris gentium contracts outside the protection of judicial remedies, although by a simpler procedure than that resorted to for enforcement of the contracts of the jus civile. But a couple of provisions in the XII Tables seem to prove very clearly that it was not. The first is that already re- ferred to as recorded by Justinian, 36 that where a thing was sold and delivered, the property, nevertheless, should not pass until the price had been paid or sureties (vades) for it accepted by the vendor. Far from being a recognition of the obligatory nature of the transaction, this provision is really a recognition of the inability of the law to enforce payment of the price by the vendee ; it is a declaration that on the latter's failure to pay, the vendor, unprotected by any personal action, should be entitled to recover the thing sold as still his own, no matter in whose hands he found it. The second related to the case of a person who had bought a victim for sacrifice, but had failed to pay for it. A real action for its revindication by the seller after it had been consumed on the altar was out of the question ; so he was authorised by the Tables, 37 by the process of pignoris capio ( 37), at his own hand to appropriate in satisfaction a suffi- cient equivalent out of the belongings of the purchaser, against whom he had no personal action. 38 It would seem, therefore, that in the earlier centuries of the history of the law juris gentium conventional obligation was cognisable by the civil courts only to a very limited extent. But it has already been pointed out in dealing with the regal period (p. 50) that if the party in whose favour 36 See 30, note 4. 37 Gai., iv. 28. 38 Gaius (I.e.) records an analogous provision in reference to location : if A gave one of his draught cattle in location to B, as a means of raising money for a sacrifice, and B failed to pay the hire, A might recoup himself by pignoris capio. Here again the exceptional procedure was in the interests of religion ; but it would have been unnecessary had there been a personal action on the contract. SECT. 31.] PENALTIES OF BROKEN FAITH. 165 such an obligation was conceived took the precaution of having it corroborated either by a solemn oath (jusjurandum) or an invocation of Fides, then a breach of it fell within the cognisance of the ministers of religion, or of the magistrate invested for the time being with the regimen morum. There were various transactions and relations, moreover, that were held to be peculiarly under the protection of Fides, even although there might have been no actual invocation ; and in some of them breach of the engagement involved, when accompanied by substantial injury to another, entitled the latter to institute proceedings against the defaulter. A guardian, for example, who had converted the funds or pro- perty of his ward to his own use, was liable in double their value. A depositary who was unfaithful to the trust reposed in him was also liable to an action for double the value of what he had failed to restore, one-half in reparation and the other half by way of penalty. 39 And it is quite possible, although we have no record of it, that the same rule applied to the borrower of some specific article (commodatarius), when by his own malfeasance he was unable to return what had been lent him. 40 Those were cases of breach of conventional or quasi- conventional obligation which, because of the grossness of the perfidy involved in them, were punished as if they were delicts. Of delicts proper offences against life, limb, re- putation, and property, independent of any breach of special duty incumbent on the offender the Tables, as there has been occasion to notice from time to time, contained a goodly list. But contract and delict were not the only sources of obliga- tion under their regime any more than at a later period. There were some that arose from facts and circumstances, events that placed one person in the position of debtor to 89 Paul., Sent, ii. 12, 11. See supra, 30, note 38. 40 That deposit and commodate stood in some respects on the same footing appears from Gai., iv. 47. 166 OBLIGATIONS EX RE. [SECT. 32. another (ex re). To this class belonged the depensum (or depensio) more than once mentioned by Gaius. 41 He speaks of it in connection with a lex Publilia, which authorised sureties (sponsores), who had paid debts for their principals, to proceed against them by manus injectio if the depensum was not repaid within six months. He does not say, how- ever, that the notion of obligation in respect of such outlay was new, or that an actio depensi was for the first time introduced by the Publilian law. And it can hardly have been so. The vindex and the vas of the Twelve Tables, it may reasonably be assumed, must have had an action of relief against the party for whom they had been required to make payment ; and there seems ground for the opinion that this must have been the actio depensi, carried out by the summary process of manus injectio ( 36). 42 To the class of obligations ex re may also be assigned those arising between co-heirs from the fact of their co-inheritance, and which were adjusted by means of the decemviral actio fami- liar erciscundae. 43 There may have been one or two others of the same sort ; but the materials at command do not enable us to speak of them with certainty. SECTION 32. THE LAW OF SUCCESSION. Patrician Rome had two varieties of testament, that made at stated periods in the comitia of the curies, under advice of the college of pontiffs, and that made by soldiers in the hearing of a few comrades on the eve of battle, and which probably was originally nothing more than an apportionment of the testator's belongings amongst his proper heirs. Both still remained in use in the early re- public ; but were in course of time displaced by the general adoption of that executed with the copper and scales (testa- 41 Gai., iii. 127, iv. 22. 42 See Voigt, XII Tafeln, vol. ii. p. 495. 43 Gai. ad ed. prov., in Dig., x. 2, fr. 1, pr. SECT. 32.] TESTAMENTARY SUCCESSION. 167 mentum per aes et libram). It seems to be the general opinion that it was to the first two alone that the words applied which stood in the forefront of the provisions of the XII Tables about inheritance, " uti legassit suae rei ita jus esto." 1 Whether resort was to the comitia or to the army, the testator's own will in the matter was henceforth to be supreme. There was to be no more reference to the pontiffs as to the expediency of the testament in view of the interests of the family sacra and of creditors of the testator's ; from legislators, sanctioning a departure from the ordinary rules of succession, the assembled Quirites became merely witnesses, recipients of the oral declaration of the testator's will in regard to his inheritance. The testament with the copper and the scales is depicted by Gaius as a written instrument. But he presents it in what was apparently the third stage of its history. Its probable origin has already been explained (p. 66) in describ- ing the result of the Servian reforms upon the private law. It was not a testament but only a makeshift for one. A plebeian was not qualified in the regal period to make a testament in the comitia ; so, instead, he transferred his estate to a friend on whom he could rely, the transferee was called familiae emptor, because the conveyance was in form a mancipation for a nominal price, with instructions how to distribute it on his death. 2 It is not at all unlikely that the same device may occasionally have been resorted to by a patrician who had neglected to make a regular testament and was seized with mortal illness before he had an opportunity of appealing to the curies. But such a 1 Gai., ii. 224; Just., Inst., ii. 22, pr. Ulpian and others interpolate "super pecunia tutelave " before "suae rei." But this has the appearance of a gloss by the interpreters of the republic ; the Tables, in dealing with in- testate succession, speak not of pecunia but of familia. Leyare does not mean "bequeath," but is equivalent to legem dicere (see supra, 7, note 7 ; 11, note 8). Suae rei refers to what is often called the res familiar is, or more briefly familia. 3 Gai., ii. 103. 168 THE TESTAMENT PER AES ET LIBRAM": [SECT. 32. disposition was not a testament, and may not have been so called. A testament was the nomination of a person as the testator's heir, sometimes the substitution of an individual of the testator's choice for the heir assigned to him by law, sometimes the acceptance of the latter in the character of testamentary heir, so that the testator might be able to impose upon him what burdens he pleased as the tacit condition of heirship. It made the person instituted as fully the representative of the testator after his death as his heir-at-law would have been had he died intestate. The mortis causa mancipation, however, that opened the way for the testament per aes et libram, conferred upon the familiae emptor no such character. Gaius says that he stood in place of an heir (heredis loco), inasmuch as he had such of an heir's rights and duties as the familiae venditor had it in his power to confer and impose ; but the transaction was but a conveyance of estate, with a limitation of the right of the grantee. It has been argued that, as the law did not recognise conditional mancipation, the conveyance must have operated a complete and immediate divestiture of the grantee. But this does not follow. For it was quite competent for a man, in transferring property by mancipation, to reserve to him- self a life interest ; 3 and apparently it was equally com- petent for him to postpone delivery of possession, 4 without infringing the rule that the mancipation itself could not be ex certo tempore. So far as one can see, therefore, there was nothing to prevent the grantee of the conveyance (or quasi-testator) bargaining that he was to retain the posses- sion till his death ; and as the familia was an aggregate of estate (universitas rerum), which retained its identity not- withstanding any change in its component elements, he must in such case have been as free to operate on it while he sur- vived as if he had never conveyed it by mancipation. But 3 Gai., ii. 33. * Gai., iv. 131a. SECT. 32.] ITS SUCCESSIVE STAGES. 169 on his death how did it stand affected by the claims of creditors ? Fraudulent alienations to defeat their rights were set aside by praetorian law; but we have no reason to believe that any such process was competent in the third century of the city. It would almost appear as if creditors must have been as much at the mercy of the familiae emptor as were those among whom he had been directed to distribute the estate. These, certainly, had nothing to depend on but his sense of honour ; they had no action against him, because he was not the deceased's heir, neither between them and him was there any bond of contract. He was a trustee and nothing more ; and it was not until early in the empire that the law undertook to enforce a mortis causa trust. 5 Probably, however, in those early times the risk was not so great as it might have been at a later period ; the Romano, fides held men to fulfilment of their engagements quite as effectually as the most elaborate machinery of the law. Cicero incidentally remarks 6 what indeed the nature of the business of itself very distinctly suggests that the true testament with the copper and scales had its statutory war- rant not in the uti legassit suae rei of the XII Tables, but in that other equally famous provision, " cum nexum faciet mancipiumque, uti lingua nuncupassit ita jus esto" (p. 139). Reflection on the import and comprehensiveness of these words led the interpreters to the conclusion that there was nothing in them to prevent the direct institution of an heir in the course of the verba nuncupata annexed to a mancipation. From the moment this view was adopted and put in practice, the familiae mancipatio ceased to be a transfer of the testator's estate to the familiae emptor ; the latter's purchase was now for form's sake only, though still an indispensable form, since it was it alone that, according to the letter of the statute, imparted efficacy to the nun- * Just., Inst., ii. 23, 1. Cic., De Oral., i. 57, 245. 170 THE TESTAMENT PER AES ET LIBRAM. [SECT. 32. cupatio. But it was the nuncupatio the oral declaration addressed to the witnesses that really contained the tes- tamentary disposition, i.e., the institution of an heir, with such other provisions as the testator thought fit to embody in it. This was the second stage in the history of the testament per aes et libram. The third was marked by the introduction of tablets in which the testamentary provisions were set out in writing, and which the testator displayed to the witnesses, folded and tied up in the usual manner, declaring that they contained the record of his last will. Gaius narrates the words spoken by the familiae emptor as follows : " Your estate and belongings (familia pecuniaque tua), be they mine by purchase with this bit of copper and these copper scales, subject to your instructions but in my keeping, that so you may lawfully make your testament according to the statute (quo injure testamentum facere possis secundum legem publicani)." 7 The meaning of the words " in my keeping " (endo custodelam mearri) is not quite obvious ; they may have been remnants of an older style. Certain it is that they no more imported a real custody than a real property in the familiae emptor ; for the testator remained so entirely master of his estate that the very next day if he pleased he might mancipate it anew to a different purchaser, and nuncupate fresh testamentary writings. The nuncupa- tion was in these terms : " As is written in these tablets, so do I give, so do I legate, so do I declare my will ; there- fore, Quirites, grant me your testimony ; " and, adds Gaius, " whatever the testator had set down in detail in his testa- mentary tablets he was regarded as declaring and confirm- ing by this general statement." To the appeal of the testator the witnesses responded by giving their testimony 8 in words which unfortunately are not preserved ; and then the testa- ment was sealed by testator, officials, and witnesses, 9 the 7 GaL, ii. 104. 8 Paul.,.&n*., iii. 4a, 4. 8 Bachofen, Auxgeu-aMte Lehrend. rom. Civilrechts (Bonn, 1848), p. 256. SECT. 32.] THE TESTATOR'S SUI HEREDES. 171 seals being on the outside, and over the cord with which the tablets were tied. Although this testament with the copper and the scales was justified in the first instance by the provision of the XII Tables as to the effect of nuncupative words annexed to a mancipation, yet one cannot fail to perceive that in course of time it came to be subordinated to that other one which dealt directly with testamentary dispositions, uti legassit suae rei ita jus esto. lQ Upon the words uti legassit the widest possible meaning was put by the interpreters : not only was a testator held entitled on the strength of them to appoint tutors to wife and children, to enfranchise slaves, and make bequests to legatees, but he might even disinherit his proper heir (suus heres) in favour of a stranger, so long as he did so in express terms. Institution of a stranger without mention of the proper heir, however, was fatal, at least if the latter was a son ; for without express disherison (exheredatio) his father could not deprive him of the interest he had in the family property, as in a manner one of its joint owners. It can hardly be supposed that disherison was contemplated by the compilers of the Tables, it was alto- gether foreign to the traditional conception of the family and the family estate ; but it was a right whose concession could not be resisted when claimed as embraced in the uti legassit, although generally discountenanced, and as far as possible restrained by the strictness of the rules imposed on its exer- cise. The potency of the innate right of the suus heres made itself manifest in yet another direction, namely, in the effect exercised upon a testament by his attaining the posi- tion after its execution. A testator had to provide, either by institution or disherison, not only for sui heredes in life at the date of his will, but also for any that might emerge subsequently ; if he neglected that precaution, the result of the birth of another child was to invalidate the testament. 10 See supra, 11, note 8. 172 SUCCESSION OX INTESTACY. [SECT. 32. It was a deed disposing of the family estate. But in that the newly-born child had an interest as a joint owner, which could not be defeated except by his institution or exhere- dation. In the absence of a testament, or on its failure from any cause, the succession opened to the heirs ab intestato. So notoriously were the siii heredes entitled to the first place and that not so much in the character of heirs as of persons now entering upon the active exercise of rights hitherto existing, though in a manner dormant u that the compilers of the XII Tables thought it superfluous expressly to declare it. " If a man die intestate, leaving no suus heres, his nearest agnate shall have his estate. 12 If the agnate also fail, his gentiles shall have it." M It has been pointed out in dealing with the tutory of agnates (p. 122) that the notion of agnation, 14 as a bond distinct from that which con- nected the gentile members of a clan, was due to the decem- virs. 1 * They had to devise a law of intestate succession suitable alike to the patricians who had yentes and the plebeians who had none. To put the latter in exactly the same position as the former was beyond their power; for the fact had to be faced that the plebeians had no gentile institutions, and to create them was impossible. The diffi- culty was overcome by accepting the principle of agnation upon which the patrician g&ns was constructed, and establish- ing an agnatic circle of kinsmen within the sixth degree, to which the gens as a corporation should be postponed in the " See Hnschke, Studien, pp. 241, 242. 12 " Si intestato moritur, eui suns hereg nee escit, a See 31, note 23. 37 Gaius (iv. 30) attributes the establishment of the formular system (71) to the ^Ebutian law in the beginning of the sixth century, and the Julian judiciary laws in the time of Augustus ; but it is clear (note 35) that it could not have been till after 710 u.c. that manus injedio disappeared. SECT. 36.] SECONDARY APPLICATIONS OF IT. 213 It was as directed against nexal and judgment debtors that manus injcdio was of most importance, and chiefly made its mark in history. But there were other cases in which it was resorted to under special statutory authority, where a remedy seemed advisable more sharp and summary than that by ordinary action. In some of these it was spoken of as manus injectio pro judicato (i.e., as if upon a judgment) ; in others as simple manus injectio (manus injectio pura). In the first the arrestee was not allowed to dispute his alleged indebtedness in person ; he could do so only through a vindex ; and if no one intervened for him in that character, he was carried off and dealt with by his arresting creditor as if a judgment had been obtained against him. A person who, having by sponsio become surety for another, had been required to pay for him, was entitled by a Publilian law of uncertain date to deal in this way with the principal debtor if he did not within six months refund what had been paid (depensum) on his account ; but this was probably nothing more than an extension to a sponsor of the remedy pre- viously competent to the vas, the praes, and the vindex (p. 166). Gaius states that the same procedure was sanc- tioned by statute in a variety of other cases ; and there is reason for thinking that it was employed by a legatee against an heir delaying to pay a legacy bequeathed in the words " heres dare damnas esto." s In simple manus iujec- tio the arrestee was not required to find a vindex, but might himself dispute the verity of the charge made against him, under penalty, however, of a duplication of his liability if he failed in his defence ; as, for example, when proceed- ings were instituted against a usurer (under the Marcian law) to compel him to repay interest taken by him beyond the legal rate, or against a legatee (under the Furian law) to compel him to refund what he had taken by way of legacy in excess of what that law allowed. By a certain Lex Vallia, 38 Gai., ii. 201, compared with iii. 175 and iv. 21. 214 THE LEGIS ACTIO [SECT. 37. probably in the latter half of the sixth century of the City, this manus injectio pura was substituted for that pro judicato in all cases in which the ground of arrest was neither judg- ment nor depensum. SECTION 37. THE LEGIS ACTIO PER PIGNORIS CAPioNEM. 1 In the ritual of the actio sacramenti, as described in a previous section ( 34), the vis civilis et festucaria was a raminiscence of the vera solida vis with which men settled their disputes about property in the earliest infancy of the commonwealth. Manus injectio was a survival from times when the wronged was held entitled to lay hands upon the wrongdoer, and himself subject him to punishment ; custom and legislation intervened merely to regulate the conditions and mode of exercise of what essentially was still self-help. In pignoris capio self-help was likewise the dominant idea. It may be fairly enough described by the single word " dis- tress," the taking by one man of property belonging to another, in satisfaction of or in security for a debt due by the latter, but which he had failed to pay. The taking did not proceed upon any judgment, nor did it require the warrant of a magistrate ; it might be resorted to even in the absence of the debtor ; but it required to be accom- panied by certain words of style, spoken probably in the presence of witnesses. 2 The remedy, however, was not competent to creditors generally, but limited to a few special cases. Gaius says of it that by customary law a soldier might distrain upon his 39 On manus injectio pro judicato and pura, see Gai., iv. 22-25, and note 16 above. Manus injectio upon nexal debt had been abolished long before the Vallian law. 1 To the literature in 33, note 1, may be added Degenkolb, Die lex Hiero- nica (Berlin, 1861), p. 95 sq. ; Ihering, Geist, vol. i. lie ; Voigt, XII Tafeln, vol. i. p. 502 sq. * Gai., iv. 29. SECT. 37.] PER PIGNORIS CAPIONEM. 215 paymaster for his pay, 3 and a knight for the sum allowed him for the purchase of a charger or for his forage money. 4 By the XII Tables distress was authorised at the instance of the vendor of an animal for sacrifice against the vendee who failed to pay for it ; and so it was at the instance of a husbandman against a neighbour for the hire of a plough- ox given in location on purpose thereby to raise money for a periodical offering to Jupiter Dapalis. 5 The farmers of the revenue (publicani) were also empowered by the contracts entered into by them with the censors to make use of the same remedy against persons whose rates or taxes (vectigalia) were in arrear. 6 Whether this exhausted the list of cases in which it was competent it is of course impossible to say. 7 Quite as difficult is it to determine what was the effect 8 It was not until the year 348 u.c. that soldiers were paid from the public purse (Liv., iv. 59). 4 Gai., iv. 27. 5 Gai., iv. 28 ; Cato, De R. R., 50, 131, 132; Paul. Diac., v. Daps (Mull. p. 68). 6 Gai., iv. 28. 7 Bethmann-Hollweg (Rom. CP., vol. i. p. 204, note 13) and Karlowa (Rom. CP., p. 216) are of opinion that it was resorted to in the case of damnum infectum, i.e., that, when a man had reason to apprehend damage from (say) the ruinous state of his neighbour's house, he might if necessary at his own hand enter into possession of it and make the requisite repairs. This view is com- bated by Bekker (A ktionen, vol. i. p. 45) and by Burckhard (Die cautio damni infecti, Gliick-Burckhard, vol. ii. p. 73 sq.) ; but receives some countenance from the words of Gaius (iv. 31), who, after saying that it was still competent to proceed by leyis actio on account of damnum infectum, adds that no one any longer cared to do so, " sed potius stipulatione, quae in edicto proposita est, obligat adversarium suum ; itaque et commodius jus et plenius est [quam] per pignoris [capionem]." (The word " quam " is not in the MS.; " pignoris " is the last word in the page, and the whole of that which follows is illegible. Most editors regard " est " as the last word of the sentence, and make " per pignoris capionem " the commencement of a new paragraph. But, as the matter of piynoris capio is apparently exhausted in 26-29, and one would naturally expect an indication of the particular procedure which was surpassed in convenience and amplitude by the praetorian stipulation, it seems more reasonable to assume that the transcriber accidentally omitted the letter " q " the ordinary contraction for "quam," and that the passage should read as printed above.) 216 PROCEDURE IN THE' LEGIS ACTIO [SECT. 37. of the distress. An observation of Gaius's, 8 in speaking of the action which, under the forrnular system of procedure, was granted to a revenue collector in place of the legis actio per pignoris capionem, favours the assumption that the debtor had the right, within a limited period, to redeem his property from the distrainer ; and the time is by some supposed to have been two months, the term of redemption of the later pignus in causa judicati captum. 9 If indebted- ness was admitted, one can understand that the debtor might either abandon the thing distrained to his creditor if it did not greatly exceed in value the amount of the debt, or claim its redemption on payment of what was due, with possibly a small addition as a fine. At the same time it is obvious that prolongation of this power of redemption even for two months would in some cases have defeated the pur- pose of the distress ; for example, the farmer who had to make his offering to Jupiter Dapalis could not postpone it, and delay in converting his pignus into money must often have been extremely inconvenient to a soldier. It is by no means improbable, therefore, that, even when the debt was not disputed, the power of redemption was in some cases more circumscribed than in others. But what if the exist- ence of the debt was either wholly or partially denied ? It cannot be doubted that in such a case the legitimacy of the distress might be called in question in a judicial process ; otherwise pignoris capio might have become a cloak for robbery. We are very much in the dark, however, as to the course of procedure. Ihering, founding on some expres- sions of Cicero's, 10 conjectures that, whether the debt was dis- puted or not, the distrainer could neither sell nor definitively appropriate his pignus without magisterial authority, that in every case he was bound to institute proceedings in jus- tification of his caption, and to take in them the position of 8 Gai., iv. 32. Dig., xlii. 1, fr. 31. 10 Cic., In Verr. II., iii. 11, 27. SECT. 38.] PER PIGNORIS CAPIONEM. 217 plaintiff. The idea is ingenious, and puts the pignoris capio in a new and interesting light. It makes it, like the sacra- mentum and (in many cases) the manus injectio, a summary means of raising a question of right, for whose judicial arbitrament no other process of law was open ; with this additional advantage, that it secured instant satisfaction to the raiser of it in the event of the question being deter- mined in his favour. If against him, the inevitable result, in substance at least, must have been a judgment that he had no right to retain his pledge, with probably a finding that he was further liable to its owner in the value of it, as a punishment for his precipitancy. 11 SECTION 38. JUDICIAL OR QUASI-JUDICIAL PROCEDURE OUTSIDE THE LEGIS ACTIONES. Whatever may have been the extent of the field covered by the actions of the law, it is very manifest that they did not altogether exclude other judicial or quasi-judicial agencies. The supreme magistrate every now and then was called upon to intervene in matters brought under his cognisance by petition or complaint, and in which his aid was sought not so much to protect a vested right of property or claim as to maintain public order, or prevent the occurrence or continu- ance of a state of matters that might prove prejudicial to family or individual interests. The party whose conduct was complained of was not brought into court (in jus wcatus) 11 This was according to the spirit of the early system, which endeavoured to check reckless or dishonest litigation by penalties ; e.g., forfeiture of the summa sacramenti and duplication of the value of unrestored property and profits in the sacramental procedure ; duplication of the value of the cause when judgment was against the defendant in an action upon an engagement embodied in a lex mancipii or lex next; duplication against a vindex who interfered ineffectually in manus injectio against a judgment-debtor ; duplica- tion against an heir who refused without judicial compulsitor to pay a legacy bequeathed per damnationem (Gai., ii. 28'2) ; the addition of one-third more by way of penalty against a debtor found liable in an actio certae creditae pecuniae (Gai., iv. 171), &c. 218 MAGISTEKIAL INTERVENTION [SECT. 38. by the complainer, but usually cited by the magistrate if the complaint seemed to him relevant. The process was not an action, with its stages in jure and in judicio, but an inquiry (cognitio] conducted from first to last by the magis- trate himself; and his finding, unless it was a dismissal of the complaint or petition, was embodied in an order (decretum, inter dictum), which it was for him to enforce by such means as he thought fit, manu militari, or by fine or imprison- ment. Some jurists are disposed to give a very wide range to this magisterial intervention. One of its most important manifestations was in connection with disputes about the occupancy of the public domain lands. These did not belong in property to their occupants (p. 90) ; so that an action founded on ownership was out of the question. But as the occupancy was not only recognised but sanctioned by the state, it was right, indeed necessary in the interest of public order, that it should be protected against disturbance. In the measures resorted to for its protection Niebuhr recog- nised the origin of the famous possessory interdict uti possi- detis ; and although opinions differ as to whether protection of the better right or prevention of a breach of the peace was what primarily influenced the magistrate's intervention, there is a pretty general accord in accepting this view. It may well be that originally the procedure was simpler than that described by Gaius ; * but it can hardly be doubted that it commenced with a prohibition of the disturbance of the status quo, and was followed when necessary by an inquiry and finding as to which of the disputants was really in possession, and which of them therefore, by persisting in his pretensions, was contravening the interdict. Another illus- tration of this magisterial intervention is to be found in the interdiction of a spendthrift (p. 126), a decree depriving of his power of administration a man who was squandering his 1 Gai., iv. 160, 166-170 ; infra, p. 370. SECT. 38.] OUTSIDE THE LEGIS ACTIONES. 219 family estate, and reducing his children to penury ; 2 a third presents itself in the removal of a tutor from office on the ground of negligence or maladministration, brought under the notice of the magistrate by any third party in what was called postulatio suspecti tutoris (p. 125) ; and a fourth in the putting of a creditor in possession of the goods of an insol- vent debtor, which must have been common enough even before the general bankruptcy regulations of the Rutilian edict (p. 161). These are to be taken merely as examples of this magisterial intervention, which manifested itself in very various directions ; indeed it does not seem to be going too far to assume that, although the classification belongs to a later period, the interdicts already in use were not confined to the prohibitory, but included many that were either exhibitory or restitutory, that is to say, in which the party complained of was ordered to produce or restore something in which the complainer had an interest. 3 It is easy to see how largely such procedure might be utilised for remedying the grievances of persons who, from defect of complete legal title, want of statutory authority, or otherwise, were not in a position to avail themselves of the ordinary " actions of the law." In one of the Valerio-Horatian laws consequent on the second secession of the plebeians there was mention of ten judges (judices decemviri), whose persons were declared as inviolable as those of the tribunes of the people and the plebeian sediles. It has already been explained (pp. 76, 85) that those were a body of judges elected to officiate on remit from a tribune or sedile acting as jus dicens in questions 2 Ulpian (in Dig., xxvii. 10, fr. 1, pr.) says that this interdiction was authorised by the XII Tables ; Paulus (Sent., iii. 4a, 7) attributes it to custom (mores). But both probably are right. The practice was customary before the Tables ; these confirmed it, with this new feature (Ulp., Frag., xii. 2), that the interdicted spendthrift was to be in the guardianship of his agnates. Gai., iv. 140, 142. 220 THE PLEBEIAN JUDICES DECEMVIRI. [SECT. 38. arising between members of the plebeian body. 4 We are without details as to the institution of this plebeian judica- tory, the questions that fell under its cognisance, the forms of process employed, the law administered by it, and the effect of its judgments. The tribunes were not invested with the jurisdictional any more than the military imperium, and manifestly were not magistrates qualified to superintend and direct the course of a legis actio. One can understand that, prior to the enactment of the XII Tables, but after the con- stitutional recognition of the plebs as a quasi-corporation with its own officials and its own council, they may have thought it expedient, because of the uncertainty of the law, and the scant justice their members got from patrician magis- trates and judges, to invest their presidents with jurisdictional powers, and elect some of their own number to act under them as judices, and in this way to some extent mitigate one of their grievances, the tribunes being fettered by no strict rules in formulating the question at issue, and the judges who probably acted singly and not collegiately deter- mining it with equal freedom, untrammelled by statutory practice. But after the promulgation of the Tables, establish- ing a written law that was to apply to all the citizens alike, the reason for the maintenance of this plebeian tribunal is far from obvious. Did its members still act under a reference from a tribune or sedile ? Or did they continue to be elected annually as a body independent of the tribunes and aediles, but from which the supreme magistrate (consul or praetor) was required to select a judcx when both the parties were plebeians and formulated a demand to that effect ? Which- ever view may deserve preference, it may reasonably be inferred from tire absence of further allusion to it in the pages of the historians, that the institution did not long 4 See Schwegler, Rom. Gcsch., vol. ii. p. 270 ; Hartmann, Der Ordo jud. privator. (Gb'ttingen, 1859), p. 87 sq. ; Huschke, Das alte rom. Jahr, p. 301, note 206 ; Voigt, XII Tafdn, vol. i. p. 634 sq. SECT. 38.] PONTIFICAL JURISDICTION. 221 survive ; the equalisation of the orders in matters social and political deprived it of its raison d'etre? As all in a manner exercising judicial or quasi-judicial functions must also be mentioned the pontiffs, the consuls and afterwards the censors as mayistri morum, the chiefs of the gentes within the gentile corporations, and heads of families within their households. While it may be the fact that with the enactment of the XII Tables the juris- diction of the pontiffs 6 was materially narrowed, yet it certainly did not disappear ; witness the famous case in which Cicero made before them the oration of which he was so proud pro domo sua. In the time of the kings, with a variety of laws whose contravention entailed conse- cratio capitis, and with the sacramental procedure in their hands, the judicial duties of the pontiffs must have been some- what onerous. But even after these had devolved on secular judges, and the sacer esto had all but disappeared from the sanctions of penal statutes, there were still not a few matters in which their judicial functions could not be dispensed with. It was the pontifcx maximus that alone exercised jurisdiction and discipline over vestals and flam ens. It may be that, with the positive declaration of the Tables, uti legassit . . . ita jus esto, he and his colleagues were no longer called upon to decide and report to the comitia whether or not a citizen's testamentary intentions were feuch as religion and law could B Hartmann (Ordo, p. 109) attributes the decadence of this plebeian tribunal to the fact that the Lex Hortensia of 468 made the nundinac lawful court days (dies fasti), and so made it possible for the country folks coming to the city to market to carry on their processes before the praetor. As observed in a pre- vious section (p. 76), there is no sufficient ground for identifying the plebeian judices decemviri with the decemviri litibus judicandis who, Pomponius says (Diy., i. 2, fr. 2, 29), were made presidents of the centumviral court early in the sixth century of the City. 6 Comp. Hiillmann, Jus pontijtcium dcr Romer (Bonn, 1837); Cauvet, Le droit pontifical chez les anciens Romains (Caen, 1869) ; Bouche"-Leclerq, Les Pontifes de I'ancienne Rome (Paris, 1871) ; Marquardt, Rom. Staatsverwalt., vol. iii. p. 290 sq. 222 CENSORIAL AND FAMILIAR JURISDICTIONS. [SECT. 38. sanction ; but their assistance long continued to be indis- pensable in an adrogation, the ceremony could not proceed until they had investigated the circumstances (cognitio), em- bodied their finding in a judgment (decretum), and dissociated the adrogatiis from the cult of his father's house (alienatio sacrorum). It was the pontiffs that determined what were impediments to marriage, that were judges in contraventions of the annus ludus, that not only performed the ceremony of diffareation but were judges of its legality. They alone could determine whether land or buildings or movables were excluded from commerce on the ground of their being sacred or religious. It has been maintained that, as charged with the cognisance of perjury and disregard of an oath, they really exercised jurisdiction in questions of breach of con- tract or engagement. It is extremely probable that at one time it was within their province to impose a penalty for violation of a promissory oath ; but during the earlier republic the action of the consuls and censors as guardians of public morals, 7 and the social and political disqualifications and pecuniary penalties with which they visited persons who had been guilty of perjury or gross perfidy, did more than any intervention of the pontiffs to foster fidelity to engagements. Through the same agency the exercise of a variety of rights was controlled and kept within bounds whose abuse could not be made matter of action, the husband's power over his wife, the father's over his children. It was not on light grounds, indeed, that the majesty of the paterfamilias within the household could be called in question ; but only when he forgot that in the exercise of serious discipline within his family he was bound to act judicially. For he also was a judge, judex domesticus, as he is sometimes called; 8 required, 7 See Jarcke, Darstdlung des censorischen Strafrechts d, Romer (Bonn, 1824) ; Karlowa, Rom. RG., p. 236 sj. 8 See 9, note 23. SECT. 38.] PRIVATE INTERNATIONAL RECUPERATIO. 223 however, in all cases of gravity to invoke the advice of his kinsfolk as a family council. 9 On him lay the duty of con- trolling his family ; if he failed to do so he was himself in danger of censorial animadversion. That his gens also, if he were a patrician, had some supervision and power of calling him to account is extremely probable ; every corpo- ration had it more or less over its members ; but neither historians nor jurists give us any definite information. 10 Between citizens and foreigners, with whom Rome was in alliance by a treaty conferring reciprocal right of action (actio), the proceedings took the form known as recuperatio. 11 A foreigner could not be a party to a legis actio, nor could a Eoman citizen in foreign territory claim the benefit of the laws and civil procedure there prevailing. Yet, where com- mercium (p. Ill) had been established between them, matters of dispute must occasionally have arisen in connection with their trading and other transactions, demanding the inter- vention of a tribunal for their settlement. It was therefore usually provided in the treaty conceding reciprocal com- mercium that recuperatio should run along with it. This was an international process, modelled to some extent upon and deriving some of its technical terms from the fetial darigatio. In the Cassian treaty of 262 U.C. and no doubt it was the universal practice whether expressed or not it was provided that it should be instituted in the forum con- 9 In 447 u.c. the censors removed L. Annius from the senate because he had divorced his wife without laying the matter before the consilium (Val. Max., ii. 9, 2). There is no recorded instance of the interference of the censors on account of abuse of the patria potestas ; but it can hardly be doubted that the interests of children would no more be neglected by them than those of a wife. 10 Livy (vi. 20, 13, 14) speaks of a nota gentilicia ; but he is in fact re- ferring to a decree of the Manlian gens, forbidding that any member of it should afterwards be called Marcus. See Voigt, XII Tafeln, vol. ii. 170. 11 See supra, 25, and Festus, v. Reciperatio (Bruns, p. 286). Cotnp. Coil- man, de Romanor. jud. recuperatorio, Berlin, 1835; Carl Sell, Die recuperatio der Romer, Brunswick, 1837; Huschke (rev. Sell), in Richter's Krit. Jakrb., vol. i. (1837), pp. 868-911 j Voigt, Jus nat., &c., vol. ii. 28-32; Karlowa, Rom. CP., pp. 218-230. 224 PROCEDURE IN RECUPERATIO : [SECT. 38. tractus. The generally accepted opinion is that it commenced with what was called a condictio, a formal and public re- quisition by the plaintiff to the defendant to attend on the thirtieth day thereafter, before a competent magistrate of the state in which the process was raised, in order that, if there was no settlement in the interval, the matter of dis- pute might be formulated and sent to 7-ecuperators for trial. The adjustment of the issue on the thirtieth day (condictus dies) was the work of the magistrate ; he heard what parties had to say in plaint and defence, and then put in simple shape the points of fact and law arising on them, authorising the recuperators to find for plaintiff or defendant according to circumstances. The recuperators were sometimes three, sometimes five, sometimes still more numerous, but always in odd number ; whether the nationality of both parties required to be represented does not appear. The day ap- pointed for further procedure before them, usually the third, was called status dies. So imperative was it that parties should appear at both stages that in Rome status condictusve dies cum Jioste was a valid excuse for a man's absence from proceedings in a legis actio, and relieved a soldier from join- ing the ranks. 12 Expedition being in most cases a matter of importance, the recuperators were required to give judg- ment within ten days. How execution proceeded upon it, if it were for the plaintiff, does not clearly appear ; Voigt, 13 founding on a few words in Festus, 14 concludes it must have 12 From the order in which the two words occur in various passages in the lay writers, Karlowa is of opinion contrary to the ordinary interpretation of the definitions of status dies in Festus, v. Status (Bruns, p. 295), and Macrob., i. 16, 14 that this was the first term of appearance before the magistrate ; that the condictio was given in his presence ; that the condictus dies was not the thirtieth day after the condictio, but, if circumstances justified it, might even be the next ; and that the proceedings before the recuperatores might be at any time convenient for all parties, so long as they were finished within ten days from the remit to them. 13 Jus nat., &c., vol. ii. p. 195. 14 Festus, v. Nancilor (Bruns, p. 274) : " In foedere Latino, '.Si quid pignoris nasciscitur, sibi habeto.' " SECT. 38.] ITS APPLICATION INTER GIVES. 225 been by something like the pignoris capio explained in last section. This recuperatory procedure in time came to be resorted to in some cases even where both parties were citizens. There are numerous instances of it in Cicero; and it is remarkable that in most of the purely praetorian actions ex delicto the remit was not to a judex but to recuperators. The explanation may be in the comparative summariness of the remedy. 226 THE STIPULATION. [SECT. 39. CHAPTER FIFTH. THE STIPULATION AND THE LEGIS ACTIO PER CONDICTIONEM. SECTION 39. INTRODUCTION OF THE STIPULATION. 1 FEW events in the history of the private law were fol- lowed by more far-reaching consequences than the introduc- tion of the stipulation. It exercised an enormous influence on the law of contract ; for by means of it there was created a unilateral obligation that in time became adaptable to almost every conceivable undertaking by one man in favour of another. By the use of certain words of style in the form of question and answer, any lawful agreement could thereby be made not only morally but legally binding ; so that much which previously had no other guarantee than a man's sense of honour now passed directly under the protec- tion of the tribunals. Stipulations became the complement of engagements which without them rested simply on good faith ; as when a vendor gave his stipulatory promise to his vendee to guarantee peaceable possession of the thing sold or its freedom from faults, and the vendee in turn gave his promise for payment of the price. The question and answer 1 Literature : Liebe, Die Stipulation u. das einfache Versprechen (Brunswick, 1840) ; Schmidt (rev. Litbe), in Richter's Krit. Jahrb., vol. v. pp. 869 sq., 961 sq. ; Gneist, Die formdlen Vertraye d. Rom. Rechts (Berlin, 1845), p. 113 sq. ; Heimbach, Die Lehre vom Creditum, Leipsic, 1849 ; Danz, Der sacrale Schutz im Rom. Rechte (Jena, 1857), pp. 102-142, 236 sq. ; Schlesinger, Zur Lehre von den Formalcontracten (Leipsic, 1858), 2 ; Voigt, Jus nat., \. ix. (1845) p. 1 sq.; Vangerow, De lege Voconia, Heidelberg, 1863. 3 Gai., ii. 225, iv. 23, 24. 4 Gai., ii. 225 ; Just, Inst., ii. tit. 22. 6 Paul., Sent., iv. 8, 20 ; see also Gai., iii. 14. 6 For a rtsuftib of the principal theories (down to 1870) about the origin of SECT. 54.] PRAETORIAN BONORUM POSSESSIO. 289 beneficial enjoyment of the estate of a deceased person with- out the legal title of inheritance. There is much to lead to the conclusion that the series of provisions in regard to it which we find in the Julian consolidation of the Edict were not devised by any single brain, but were the work of a succession of praetors, some of them probably not under the republic but under the empire ; and we have proof that some amendments of considerable value were engrafted upon the institution by imperial enactments after the Edict was finally closed. 7 It will be convenient, however, to give here a general view of the subject as a whole, disregarding the consideration that some of its features may not have been given to it within the period that is now more particularly under review. Justinian, speaking of the origin of lonorum possessio, observes that, in promising it to a petitioner, the praetors were not always actuated by the same motives ; in some cases their object was to facilitate the application of the rules of the jus civile, in some to amend their application according to what they believed to be the spirit of the XII Tables, in others, again, to set these aside as inequi- table. 8 Although there is a lack of positive evidence, it is not unreasonable to assume that it was with the purpose of aiding the jus civile that the first step was taken in what gradually became a momentous reform ; and it is extremely probable that this first step was the announcement by some praetor that, where there was dispute as to an inheritance, and a testament was presented to him bearing not fewer seals than were required by law, he would give possession bonorum possessio, see Danz, Gesch. d. R. R., vol. ii. 176. Of the later litera- ture it is enough to mention Leist, in Leist-Gliick, vols. i.-iv., Marburg, 1870-79, and Sohm, in his Inst. d. R. R., p. 330 sq., (where a novel and ingenious explanation of the institution is suggested). 7 See instances in Gai., ii. 120, 126 ; Dig., xxviii. 3, 12, pr. 8 Inst., iii. 9, pr. and 1, (confirmandi, emendandi, impuynandi veteris juris gratia). T 290 BONOR. POSSESSIO SECUNDUM TABULAS. [SECT. 54. of the goods of the defunct to the heir named in it. 9 In this as it stands there is nothing but a regulation of posses- sion of the bona of the inheritance pending the question of legal right. Just as between two parties contending about the ownership of a specific thing in a rei vindicatio the praetor first settled the question of interim possession, so did he promise to do here when a question was about to be raised about the right to an inheritance (si de hereditate ambigitur). It was a provisional arrangement merely, and very necessary in view of the state of the law which per- mitted a third party, apart from any pretence of title, to step in and complete a usucapio pro herede by a year's pos- session of the effects of the inheritance (p. 179). Even at the time when the Edict was closed it was not necessarily more than a provisional grant; for if heirs-at-law of the deceased appeared and proved that, although the testament bore on the outside the requisite number of seals, yet in fact some solemnity of execution, such as the familiae ven- ditio or testamenti nuncupatio (p. 169), had been omitted, the grantee had to yield up to them the possession that had been given him pending inquiry. 10 It was only by a rescript of Marcus Aurelius's that it was declared that a plea by the heir-at-law of the invalidity of a testament on the ground of defect of formalities of execution might be defeated by an exceptio doli ; n on the principle that it was contrary to good faith to set aside the wishes of a testator on a tech- nical objection that was purely formal. Thus was the bonorum possessio secundum tabulas, i.e., in accordance with a testament, from being originally one in aid of the jus 9 Cic., In Yerr. II., \. 45, 117. He says (writing in 684) that an edict to that effect was already tralaticium (supra, 49), i.e., had been adopted year after year by a series of praetors. Gaius (ii. 119) speaks of seven at least as the requisite number of seals ; i.e., those of the libripens and the five citizen witnesses (supra, p. 170), and of the antestatus, whose functions are not well understood, but whose official designation appended to his seal recurs so regularly as to leave no doubt that his was the seventh. 10 Gai., ii. 119. " Gai., ii. 120. SECT. 54.] BONOR. POSSESSIO CONTRA TABULAS. 291 civile, in course of time converted into one in contradic- tion of it. That the motives and purposes of the series of praetors who built up the law of bonurum possessio must have varied in progress of years is obvious ; and once the machinery had been invented, nothing was easier than to apply it to new ideas. The prsetor could not make a man heir, that he always disclaimed ; 12 but he could give a man, whether heir or not, the substantial advantages of inheritance, and protect him in their enjoyment by praetorian remedies. He gave him possession of the goods of the deceased, with summary remedies for ingathering them, so that, once in his hands, they would become his in quiritarian right on the expiry of the period of usucapion ; 13 and, by interpola- tion into the formula of a fiction of heirship, he gave him effectual personal actions against debtors of the deceased, rendering him liable in the same way to the deceased's creditors. 14 Another variety of the bonorum possessio was that contra tdbulas, in opposition to the terms of a testament. If a testator had neither instituted nor expressly disinherited a son who was one of his sui heredes, then his testament was a nullity, and the child passed over had no need of a praetorian remedy. Where sui heredes other than sons were passed over, the jus civile allowed them to participate with the instituted heirs by a sort of accrual. 15 But the Edict went further ; for if the institute was a stranger, i.e., not brother or sister of the child passed over, then, on the petition of the latter, the praetor gave him and the other sui concurring with him possession of the whole estate of the deceased, the institute being left with nothing more than the empty name of heir. 16 Another application of the 15 Gai., iii. 32 ; Inst., iii. 9, 2. 13 Gai., iii. 34, 80, iv. 144. 14 Gai., ii. 81, iv. 34 ; Ulp., xxviii. 12. 15 Gai., ii. 124. 16 Gai., ii. 125. 292 BONORUM POSSESSIO AB INTESTATO. [SECT. 54. bonorum possessio contra tabulas was to the case of emanci- pated children of the testator's. By the jus civile he was not required to institute or disinherit them ; for by their emancipation they had ceased to be sui heredes, and had lost that interest in the family estate which was put forward as the reason why they had to be mentioned in the testament of their paterfamilias (p. 171). The prgetors although probably not until the empire, and when the doctrines of the jus naturale were being more freely recognised ( 55) put them on the same footing as unemancipated children, requiring that they also should be either instituted or dis- inherited, and giving them bonorum possessio if they were not. 17 It was bonorum possessio contra tabulas in this sense, that it displaced the instituted heirs either wholly or partially ; wholly when the institutes were not children of the deceased, partially when they were. In the latter case, at least when sui were affected by it, the grant of bonorum possessio was under this very equitable condition, that the grantees should collate or bring into partition all their own acquisitions since their emancipation. 18 But for it those acquisitions would have belonged to the testator, and would have been included in his succession ; it was but right that, if they claimed to share in it as if they had not been eman- cipated, they should throw into it what in that case would have formed part of it. The third variety of bonorum posscssio was that granted ab intcstato. As has been shown in a previous section ( 32), the rules of the jus civile in reference to succession on intestacy were extremely strict and artificial. They admitted neither emancipated children nor agnates who had undergone capitis deminutio ; they admitted no female agnate except a sister ; if the nearest agnate or agnates declined, the right did not pass to those of the next degree ; mere cognates, kinsmen of the deceased who were not 17 Ulp., xxviii. 2. 18 Ulp., xxviii. 4. SECT. 54-1 THE PRAETORIAN "ORDINES." 293 agnates, e.g., grandchildren or others related to him through females, and agnates capite minuti, were not admitted at all ; while a widow had no share unless she had been in manu of the deceased and therefore Jiliae loco. All these matters the prastors amended, and so far paved the way for the revolution in the law of intestate succession which was accomplished by Justinian. The classes they established were these: (1.) Displacing the sui heredes of the jus civile, they gave the first place to descendants (liberi), including in the term all those whom the deceased would have been bound either by the jus civile or the Edict to institute or disinherit had he made a will, namely, his widow, if she had been in manu at his death, sons and daughters of his body, whether in potestate at his death or emancipated, the representatives of sons that had predeceased him, 19 and adopted children in his potestas when he died. 20 (2.) On failure of liberi the right to petition for bonorum possessio opened to the nearest collateral agnates of the intestate, under their old name of legitimi heredes. 21 (3.) Under the jus civile, on failure of agnates (and of the gens where there was one), the succession was vacant and fell to the fisc, unless perchance it was usucapted by a stranger possessing pro herede. The frequency of such vacancies wag much diminished by the recognition by the praetors of the right of cognates to claim bonorum possessio in the third place. Who they had primarily in view under the name of " cognates " it is impossible to say. The epithet is most frequently applied by modern writers to kinsmen related through females ; but in its widest sense it included all kinsmen without exception, and in a more limited sense all kinsmen not entitled to claim as agnates. There were included amongst them therefore although it is very pro- 39 Children of daughters were not admitted in this class until the later empire, being regarded as members of the family of their paternal, not of their maternal, grandfather. 20 Gai., iii. 26, 63 ; Ulp., xxviii. 7, 8. 21 Ulp., xxviii. 7. 294 ADMISSION OF COGNATI. [SECT. 54. bable that the list was not made up at once, but from time to time by the action of a series of praetors not merely kinsmen related through females (who were not agnates), but also agnates of a remoter degree who were excluded as such because the nearest agnates in existence had declined, persons who had been agnates but by reason of capitis minutio had lost that character, female agnates more dis- tantly related than sisters, and children of the intestate's who at the time of his death were in an adoptive family. 22 All these took according to proximity. (4.) Finally, the claim passed to the survivor of husband and wife, 23 assum- ing always that their marriage had not involved manus?* This list constituted the praetorian order of succession on intestacy. All those bonorum possessiones had to be formally peti- tioned for. In that db intestato descendants were allowed a year for doing so, while other persons were limited to a hun- dred days ; the period for those entitled in the second place beginning when that of those entitled in the first had ex- pired, and so forth. The grant was always made at the risk of the petitioner ; nothing was assured him by it ; it might turn out real and substantial (cum re) or merely nominal (sine re), according as the grantee could or could not main- tain it against the heir of the jus civile. For the latter was entitled to stand on his statutory or testamentary right, without applying for bonorum possessio ; although in fact he often did so for the sake of the summary remedies it afforded him for ingathering the effects of the deceased. 22 See Gai., iii. 27-31 ; Ulp., xxviii. 7, 9. - 3 Ulp., xxviii. 7. 24 The provisions of the edict, as of the /us civile, in reference to the succes- sion of a patron to his freedman necessarily differed in many respects from those explained above and in 32. They were very complicated, but need not here be entered on. PART IV. THE JUS NATURALE AND MATURITY OF ROMAN JURISPRUDENCE. The Empire until the Time of Diocletian. PAET IV. THE J US NA TURALE AND MA TURITY OF ROMAN JURISPRUDENCE. 1 he Empire until the Time of Diocletian. CHAPTER FIRST. CHARACTERISTICS AND FORMATIVE AGENCIES OF THE LA W DURING THE PERIOD. SECTION 55. CHARACTERISTICS GENERALLY AND RECOGNI- TION OF A " Jus NATURALE " IN PARTICULAR. THE first three centuries of the Empire witnessed the per- fection of Roman jurisprudence and the commencement of its decline. During that time the history of the law presents no such great landmarks as the enactment of the XII Tables, the commencement of a praetor's edict, the recognition of simple consent as creative of a contractual bond, or the introduction of a new form of judicial procedure; the estab- lishment of a class of patented jurists speaking as the mouthpieces of the prince, and the admission of all the free subjects of the empire to the privileges of citizenship, are about the only isolated events to which one can point as productive of great and lasting results. There were, indeed, some radical changes in particular institutions, such as the caduciary legislation of Augustus, intended to raise the tone of domestic morality and increase fruitful marriages, and the legislation of the same emperor and his immediate sue- 298 THE JUS NATURALE [SECT. 55. cessor for regulation of the status of enfranchised slaves ; but these, although of vast importance in themselves, and the first of them influencing the current of the law for cen- turies, yet left upon it no permanent impression. It was by much less imposing efforts that it attained the perfection to which it reached under the sovereigns of the Severan house, a steady advance on the lines already marked out in the latter years of the republic. The sphere of the jus Quiritium became more and more circumscribed, and one after another of the formalities of the jus civile was abandoned. The manus of the husband practically disappeared ; the patria potestas of the father lost much of its significance, by the recognition notwithstanding it of the possibility of a separate and independent estate in the child ; slaves might be en- franchised by informal manumission ; res mancipi constantly passed by simple tradition, the right of the transferee being secured by the Publician action ; servitudes and other real rights informally constituted were maintained as effectual tuitione praetoris ; an heir's acceptance of a succession could be accomplished by any indication of his intention, without observance of the formal cretio of the earlier law ; and many of the bargains incident to consensual contract, but varying their natural import, that used to be embodied in words of stipulation, came to be enforcible on the strength of formless contemporaneous agreements. The preference accorded by jurists and judges to the jus gentium over the jus civile is insufficient to account for these and many other changes in the same direction, as well as for the ever-increasing tendency evinced to subordinate word and deed to the voluntas from which they arose. They are rather to be attributed to the striving on the part of many after a higher ideal, to which they gave the name of jus naturale. 1 It is sometimes said that the notion of a jus 1 See Voigt, Das Jus naturale . . . der Romer, particularly vol. i. 52-64, 89-96 ; Maine, Ancient Law, chap. iii. SECT. 55.] iflSTINGUISHED FROM THE JUS GENTIUM. 299 naturale as distinct from the jus gentium was peculiar to Ulpian, and that it found no acceptance with the Roman jurists generally. But this is inaccurate. Justinian, indeed, has excerpted in the Digest, and put in the forefront of his Institutes, 2 a passage from an elementary work of Ulpian's, in which he speaks of a, jus naturae that is common to man and the lower animals, and which is substantially instinct. This is a law of nature of which it is quite true that we find no other jurist taking account. But many of them refer again and again to the jus naturale, ; and Gaius is the only one (Justinian following him) that occasionally makes it synonymous with the jus gentium. There can be no question that the latter was much more largely imbued with precepts of natural law than was the jus civile, but it is impossible to say they were identical ; it is enough to cite but one illus- tration, pointed out again and again in the texts, that while the one admitted the legality of slavery the other denied it. While the jus civile studied the interests only of citizens, and the jus gentium those of freemen irrespective of nationality, the law of nature had theoretically a wider range and took all mankind within its purview. We are assured that the doctrine of the jus gentium, agreed with that of the jus civile in holding that a slave was nothing but a chattel ; yet we find the latter, when tinctured with the jus naturale, recog- nising many rights as competent to a slave, and even con- ceding that he might be debtor or creditor in a contract, 3 although his obligation or claim could be given effect to only indirectly, since he could neither sue nor be sued. Voigt thus summarises the characteristics of this specu- lative Roman jus naturale : (1) its potential universal applicability to all men, (2) among all peoples, and (3) in all ages ; and (4) its correspondence with the innate convic- 1 Dig., i. 1, fr. 1, 3 ; Inst., i. 2, pr. 8 Ulp., in Dig., xliv. 7, fr. 14 : " Servi ... ex contractibus civiliter non obligantur ; seel naturaliter et obligantur et obligant" 300 PRINCIPLES OF THE JUS NATURALE. [SECT. 55. tion of right (innere Rechtsuberzeugung}.^ Its propositions, as gathered from the pages of the jurists of the period, he formulates thus : (1) recognition of the claims of blood (sanguinis vel cognationis ratio) ; (2) duty of faithfulness to engagements, is natura debet . . . cujics fidem secuti sumus ; 5 (3) apportionment of advantage and disadvantage, gain and loss, according to the standard of equity; (4) supremacy of the voluntatis ratio over the words or form in which the will is manifested. 6 It was regard for the first that, probably pretty early in the principate, led the praetors to place emancipated children on a footing of equality with unemancipated in the matter of succession, and to admit collateral kindred through females alongside those related through males ; and that, in the reigns of Hadrian and Marcus Aurelius respectively, induced the senate to give a mother a preferred right of succession to her children, and vice versa. It was respect for the second that led to the recognition of the validity of what was called a natural obligation, one that, because of some defect of form or something peculiar in the position of the parties, was ignored by the jus civile and incapable of being made the ground of an action for its enforcement, yet might be given effect to indirectly by other equitable remedies. Regard for the third was nothing new in the jurisprudence of the period ; the republic had already admitted it as a principle that a man was not to be unjustifiably enriched at another's cost ; the jurists of the empire, however, gave it a wider application than before, and used it as a key to the solution of many a difficult question in the domain of the law of contract. As for the fourth, it was one that had to be applied with delicacy ; for the wluntas could not in equity be preferred to its manifes- tation to the prejudice of other parties who in good faith * Voigt, l.c., p. 304. 5 Paul., in Diy., 1. 17, fr. 84, 1. 6 Voigt, l.c., pp. 321-323. SECT. 55.] NATURALIS RATIO. 301 had acted upon the latter. We have many evidences of the skilful way in which the matter was handled ; speculative opinion being held in check by considerations of individual interest and general utility. A remark of Yoigt's on the subject is well worthy of being kept in view, that the risks which arose from the setting up of the precepts of a speculative jus naturale, as derogating from the rules of the jus civile, was greatly diminished through the position held by the jurists of the early empire. Their jus res^ondendi ( 59) made them legislative organs of the state ; so that, in introducing prin- ciples of the jus naturale or of aequum et bonum, they at the same moment positivised them and gave them the force of law. They were, he says, " philosophers in the sphere of law, searchers after the ultimate truth ; but while they usually in reference to a concrete case sought out the truth and applied what they had found, they combined with the freedom and untrammeledness of speculation the life-freshness of practice and the power of assuring the operativeness of their abstract propositions." 7 There is another phrase of frequent occurrence in the writings of some of the jurists of the period, to which Voigt devotes special attention. According to Gaius and Paul, everything has a nature of its own, the aggregate of what characterise its essential destination and its special properties and peculiarities. There is a nature of man, a nature of animals, a nature of every individual thing, a nature of every sort of contract, action, and so on. In each and all of those " natures " an ordinative energy and determinative rule are observable. These are its naturalis ratio. The product of such rationes is the lex naturae ; and the substance of the lex naturae constitutes a jus naturale. " The philosophy of law of Gaius and Paul begins with the naturalis ratio" 8 7 Voigt, I.e., p. 341. 8 Voigt, I.e., pp. 270-274. 302 INFLUENCE OF CONSTITUTIONAL CHANGES. [SECT. 56. SECTION 56. INFLUENCE OF CONSTITUTIONAL CHANGES. The changes in the constitution aided not a little the cur- rent of the law. Men of foreign descent reached the throne and peopled the senate ; proud indeed of the history and traditions of Rome, yet in most cases free from prejudice in favour of institutions that had nothing to recommend them but their antiquity. Military life had not the same attrac- tions as during the republic ; there was no longer a tribunate to which men of ambition might aspire ; the comitia soon ceased to afford an outlet for public eloquence ; so that men of education and position had all the more inducement to devote themselves to the conscientious study and regular practice of the law. This was greatly encouraged by the action of Augustus in creating a class of licensed or patented jurists, privileged to give answers to questions submitted to them by the judges, and that ex auctoritate, principis ( 59) ; and still more so, perhaps, by Hadrian's reorganisation of the imperial privy council, wherein a large proportion of the seats were assigned to jurists of distinction. With several of the emperors lawyers were amongst their most intimate and trusted friends. Again and again the office of praetorian prefect, the highest next the throne, was filled by them ; Papinian, Ulpian, and Paul all held it in the reigns of Septimius Severus and Alexander. Jurisprudence, there- fore, was not merely an honourable and lucrative profession under the new arrangements, but a passport to places of eminence in the state ; and till the death of Alexander the ranks of the jurists never failed to be recruited by men of position and accomplishment. SECTION 57. LEGISLATION OF COMITIA AND SENATE. Augustus, clinging as much as possible to the form of republican institutions, thought it expedient not to break SECT. 57.] LEGISLATION OF COMITIA AND SENATE. 303 with the old practice of submitting his legislative proposals to the vote of the comitia of the tribes. Some of them were far from insignificant. Besides various measures for the amendment of the criminal law, three sets of enact- ments of great importance owe their authorship to him, the first to improve domestic morality and encourage fruitful marriage, the second to abate the evils that had arisen from the too lavish admission of liberated slaves to the privi- leges of citizenship, and the third to regulate procedure in public prosecutions and private litigations. The first set included the L. Julia de adulteriis coercendis of 736 (urgently demanded by reason of the prevailing licentiousness, and whose title explains its tendency), 1 and the Lex Julia et Pappia Poppaea. This enactment a voluminous matrimonial code for two or three centuries exercised such an influence as to be regarded as one of the sources of Roman law almost quite as much as the XII Tables or Julian's consolidated Edict. 2 It originated in the Lex Julia de maritandis ordinibus, which was approved by the senate in the year 726, but met with such violent oppo- sition that it was not until 736 that it passed the comitia. Finding by experience that its provisions were insufficient to attain its purpose, Augustus in the year 757 (4 A.D.) introduced an amended edition of it, which he only suc- ceeded in carrying by allowing a three years' grace, after- wards extended to five, before it should come into operation. That postponed it till 762 (9 A.D.), in which year a supple- ment to it was carried through by the consuls M. Papius and 1 For an account of its provisions, see Rudorff, Rom. RG., vol. i. p. 88 sq. It was the subject of numerous commentaries by the Antoninian and Severan jurists. 2 Restitutions have been attempted amongst others by Jac. Gothofredus, in his Fontes IV JUT. civ., Geneva, 1638; Heineccius, Ad I. Jul. et Pap. Popp. comm., Amsterdam, 1731 ; Den Tex and Van Hall, Font. Ill jur. civ., Amster- dam, 18-10. For a view of its provisions, see Rudorff, Rom. RG-, vol. i. p. 64 sq. ; and for an account of the writings of the jurists upon it, Karlowa, Rom. RG., vol. i. p. 618 sq. 304 THE LEX JULIA ET PAPIA POPPAEA. [SECT. 57. Q. Poppasus. The composite enactment got the name of Lex Julia et Papia Poppaea, but was often spoken of under other and simpler names, most frequently lex Julia or lex caducaria. Its leading provisions were intended to prevent misalliances, marriages between men of rank and women of low degree or immoral character, 3 concubinage, however, being expressly sanctioned ; to force men and women of a certain age to marry and have children, by declaring un- married persons incapable (under certain qualifications) of taking anything of what they were entitled to under a testa- ment, and married but childless persons incapable of taking more than a half, the lapsed provisions (caduca) falling to those other persons named in the testament who had ful- filled the requirements of the statute, and, failing them, to the fisc;-to reward fruitful marriages by relieving women who had borne a certain number of children from the tutory of their agnates or patrons, and conceding various other pri- vileges alike to fathers and mothers of children born in wedlock ; and to regulate divorce by requiring express and formal repudiation, and fixing statutorily the consequences of it so far as the interests of the parties in the nuptial pro- visions were concerned. However well intended, the lan- guage of Juvenal and others raises doubts whether the law did not really do more harm than good. By the Christian emperors many of its provisions were repealed, while others fell into disuse ; and in the Justinianian books hardly a trace is left of its distinctive features. The second set of enactments referred to above included the Aelia-Sentian law of the year 4 A.D., the Fufia-Caninian one of the year 8, and the Junia-Norban one of the year 19, 4 the latter really passed in the reign of Tiberius, but pro- 3 This part of the statute was repealed by the Emperor Justin, at the in- stance of his nephew Justinian, who found it a bar to his marriage with Theodora. 4 There has recently been considerable controversy as to the date of the Junia-Norbau law and its relation to the Aelia-Sentian. See Romanet du SECT. 57.] END OF POPULAR LEGISLATION. 305 bably planned by Augustus ; they will be alluded to in a subsequent section ( 66). The third set included the two Leges Juliae judiciariae, of which we know but little. That regulating procedure in private litigations is the same that is mentioned by Gaius as having completed the work of the Aebutian law (p. 244), in substituting the formular system for that per legis actiones. 5 It must have been a somewhat comprehensive statute, as a passage in the Vatican Frag- ments refers to a provision of its 27th section. 6 Our igno- rance of its contents, therefore, beyond one or two trifling details, is the more to be regretted. The Junia-Norban law was about the last effort of comitial legislation ; for although there are frequent refer- ences to a Lex Claudia, abolishing the tutory-at-law of women, there is some reason for thinking that it was really a senatusconsult. 7 It is true likewise that there exist in the Capitoline Museum the remains of a Lex de imperio Vespasiani of the year 70 A.D. ; 8 but its language shows that it too must have been a senatusconsult, although it may sub- sequently have received the formal assent of the lictors, as representatives of the old comitia of the curies, whose pre- rogative it was to bestow the imperium. There are also the Caillaud, De la date de la lot Junia Norbana, Paris, 1882 ; Cantarelli, " I latini Juniani," in Arch. Giurid., vol. xxix. (1882), p. 3 sq., vol. xxx. (1883), p. 41 sq. ; Schneider, "Die lex Junia Norbana," in Z. d. Sav. Stift., vol. v., R.A., (1884), p. 225 sq. ; Labbe", in app. to the 12th ed. of Ortolan, Histoire de la legislation romaine (Paris, 1884), p. 791 sq. ; Cantarelli, " La data della legge Jun. Norbana," in Arch. Giurid., vol. xxxiv. (1885), p. 38 sq. ; Holder, " Zur gegenseitigen Verhaltnisse d. lex Ael. Sent, und Jun. Norb.," in Z. d. Sav. Stift., vol. vi., R.A., (1885), p. 205 sq. 5 Gai., iv. 30. 6 Vat. Frag., 197. 7 In the index to Haenel's Corpus legum ab imperatorib. Roman, ante Justi- nianum latarum, (Leipsic, 1857), no fewer than fourteen senatusconsults of Claudius's are mentioned ; and the reason is not obvious why in this particular instance a lex should have been resorted to. It is noticeable that Gaius, speaking in i. 84, of one of those enactments of Claudius's as a senatus- consult, refers to it again in 86 as eadem lex. 8 Printed in Bruns, p. 128 sq. It seems probable that it was the applica- tion to Vespasian of the Lex reyia, from which Gaius (i. 6) and .Justinian (Inst., i. 2, 6) say that the emperors derived their legislative authority. U 306 LEGISLATION OF THE SENATE. [SECT. 57. Lex Malacitana and the Lex Salpensana, charters granted by Domitian to the municipalities of Malaga and Salpesa ; 9 monuments of great interest historically, but no more comitial enactments than the Lex metalli Vipascensis, 10 a concession of the right to work certain lead mines in Portugal. Laws of this sort were leges datae, not leges latae. From the time of Tiberius onwards it was the senate that did the work of legislation, for the simple reason that the comitia were no longer fit for it. 11 And very active it seems to have been. This may have been due to some extent to the fact that so many professional jurists, aware from their practice of the points in which the law required amendment, possessed seats in the imperial council, where the drafts of the senatusconsults were prepared. It was the senatusconsults that were the principal statutory factors of what was called by both emperors and jurists the jus novum, law that departed often very widely from the principles of the old jus civile, that was much more in accordance with those of the Edict, and that to a great extent might have been introduced through its means had not the authority of the praetors been overshadowed by that of the prince. In the end of the second and the beginning of the third century the latter's supremacy in the senate became rather too pronounced, men quoting the oratio in which he had submitted to it a project of law, instead of the resolution which gave it legislative sanction. No doubt it must have been carefully considered beforehand in the 9 Considerable portions of them were discovered in the year 1851 near Malaga. They are printed in Bruns, pp. 130-141. They have been com- mented by Berlanga, Mommsen, Laboulaye, Arndts, Giraud, Van Lier, Van Swinderen, &c. See note of literature in Bruns, p. 130. The most important contribution is that of Mommsen, Die Stadtrechte d. latin. Gemeinden Salpensa u. Malaca, Leipsic, 1855. 10 Found at Aljustrel, the ancient Vipascum, in 1876. Probably of the second half of the first century after Christ. Printed in Bruns, pp. 141-145. Literature on p. 142 ; to which may be added Berlanga, Los Bronces de Las- cuta, de Bonanza, y de Aljustrel, Malaga, 1881-84. 11 Pomponius, in fr. 2, 9, Diy. De origine juris (i. 1). SECT. 58.] THE EDICTUM PERPETUUM. 307 imperial council, and rarely stood in need of further dis- cussion ; but the ignoring of the formal act that followed it tended unduly to emphasise the share borne in it by the sovereign, and made it all the easier for the emperors after Alexander Severus to dispense altogether with the time- honoured practice. 12 SECTION 58. THE CONSOLIDATED EDICTUM PERPETUUM. 1 The edicts of the praetors, which had attained very con- siderable proportions before the fall of the republic, certainly received some additions in the early empire. But those magistrates did not long enjoy the same independence as of old ; there was a greater imperium than theirs in the state, before which they hesitated to lay hands on the law with the boldness of their predecessors. They continued as before to publish annually at entry on office the edicts that had been handed down to them through generations ; but their own additions were soon limited to mere amendments rendered necessary by the provisions of some senatusconsult that affected the jus honorarium. They ceased to be that viva vox juris civilis which they had been in the time of Cicero ; the emperor, if any one, was now entitled to the epithet ; the annual edict had lost its raison d'etre. Hadrian was of opinion that the time had come for writing its " explicit," and giving it another and a more enduring and authoritative shape, for so fashioning and so sanctioning it that it might be received as law, and not merely as edict, throughout the length and breadth of the empire. He accordingly commissioned Salvius Julianus, urban prgetor at 12 In form a senatusconsult had nothing of the imperative of a lex about it. The presiding consuls or emperor submitted their proposal in simple language (senaturn consoluerunt, verba fecerunt), and the senate approved (censuerunt). See examples in Brims, pp. 145-164. 1 See Karlovva, Rom. RG., vol. i. 82. 303 JULIAN'S CONSOLIDATION. [SECT. 58. the time (p. 318), to revise it, with a view to its approval by the senate as part of the statute law. The revised version, like the XII Tables, is unfortunately no longer extant. It is only a very slight account we have of the revision, a line or two in Eutropius and Aurelius Victor, and a few lines in two of Justinian's prefaces to the Digest. 2 We may assume, from what is said there, that there were both abridgment and rearrangement of the edicts of the urban praetor; but the question remains how far Julian consolidated with them those of the peregrin praetor and other magistrates who had contributed to the jus hono- rarium. Those of the curule aediles, we are told, were included ; Justinian says that they formed the last part of Julian's work, 3 and may have been a sort of appendix. There is reason to believe that so much of the edicts of the provincial governors as differed from those of the praetors were also incorporated in it ; for Gaius wrote a commentary on the provincial edict ; 4 and this can hardly have been anything else than the Julian version, seeing that before it there was no general provincial edict, but only a number of particular ones. 5 That the edicts of the peregrin praetors, in so far as they contained available matter not embodied in those of their urban colleagues or the provincial gover- nors, were dealt with in the same way, seems more than likely. The consolidation got the name of Edictum Per- pduurti in a sense somewhat different from that formerly imputed to eclicta perpetua as distinguished from edicta re- pentina (p. 253) ; and, after approval by Hadrian, seems to have been formally sanctioned by senatusconsult. It was thus a closed chapter so far as the prsetors were concerned ; 2 Const. AtSwKev (in front of the Digest), 18, and Const. " Tanta" (Cod., i. 17, 2), 18. 3 Const. AtSwKev, 5. 4 See the Florentine index, in Mommsen's greater edition of the Digest, vol. i. p. liii*. 6 Mommsen, in Z. f. RG., vol. ix. (1870), p. 96. SECT. 58.] ARRANGEMENT OF THE JULIAN EDICT. 309 for, though it may have continued for a time to hold its place on their album, with its formularies of actions, they had no longer any power to alter or make additions to it. It had ceased to be a mere efflux of their imperium and had become matter of statute ; and its interpretation and amendment were no longer in their hands but in those of the emperor. 6 The Julian Edict does not seem to have been divided into books, but only into rubricated titles ; 7 and the general impression is that the formularies of actions were split up and distributed in their appropriate places. The arrangement is not difficult to discover by comparison of the various commentaries upon it, particularly those of Ulpian and Paul, which each contained over eighty books. First came a series of titles dealing with the foundations and first steps of all legal procedure, jurisdiction, summons, intervention of attorneys or procurators, &c. ; secondly, ordinary process in virtue of the magistrate's jurisdictio ; thirdly, extraordi- nary process, originally in virtue of his imperium ; fourthly, execution against judgment-debtors, bankrupts, &c. ; fifthly, interdicts, exceptions, and praetorian stipulations ; and lastly, the eedilian remedies. 8 From the quotations from the Julian Edict embodied in the fragments of the writings of the com- mentators preserved by Justinian, 9 repeated attempts have been made to reproduce it. Most of them are nothing more than literal transcripts or attempted reconstructions of pas- sages in the Digest that are supposed to have been borrowed from it, and are of comparatively little value. The only 6 Julian, in Dig., i. 3, fr. 11. 7 Several of them are mentioned in the excerpts from commentaries on the Edict preserved in the Digest. 8 See Lenel (as in note 10), pp. 23-38. This generally is the order of the Digest and the Code, which Justinian (Cod., \. 17, 1, 5) instructed his com- missioners to model after the Edict. 9 It is possible that we have the greater part of Ulpian's commentary ; for nearly one-fifth of the Digest is taken from it. 310 THE JUS RESPONDENDI [SECT. 59. really scientific and worthily critical efforts are those of Eudorff in 1869 and Lenel in 1883. 10 SECTION 59. KESPOXSES OF PATENTED COUNSEL.* The account given by Pomponius of the origin of the jus respondendi ex auctoritate principis (the right of giving opinions in law under imperial authority) seems on the first view a little contradictory, and to leave it in doubt whether Augustus or Tiberius is entitled to the credit of its intro- duction. Giving advice to clients in public was no new thing ; for Pomponius himself attributes the commencement of the practice to Tiberius Coruncanius in the beginning of the sixth century of the City, and speaks of Scipio Nasica having a house in the via sacra presented to him at the public cost for greater convenience in counselling. During the last two centuries of the republic it was a matter of ambition to a patron to have daily a great leve"e of clients ; they increased his importance and augmented his influence. When, therefore, Pomponius says that Sabinus was the first that enjoyed the privilege of responding in public, having had it conceded to him by Tiberius, he may possibly mean that he was the first that had permission to open one of those stationes jus publice respondentium of which mention is made by Gellius, and where, from his account, both practical and speculative questions of law were freely discussed. 2 10 Rudorff, De jurisdictione edictum : edicti perpetui quae reliqua sunt, Leipsic, 1869, and rev. by Brinz in the Krit. VJS., vol. xi. (1870), p. 471 sq.; Lenel, Das Edictum Perpetuum: ein Versuch zu dessen Wiederherstettung, Leipsic, 1883. The last gained the "Savigny Foundation Prize" offered by the Munich Academy in 1882 for the best restitution of the formulae of Julian's Edict, but goes far beyond the limited subject prescribed ; see Brinz's full report upon it to the Academy in the Z. d. Sav. Stiff., vol. iv., R.A. (1883), p. 164 sq. 1 See Pompon., in Diy., i. 2, fr. 2, 47 ; Gai., i. 7 ; Just., hist., i. 2, 8 ; Mache'lard, Observations sur les responsa prudentium, Paris, 1871- 2 Gell., xiii. 13, 1. See Bremer, Rechtslehrer u. Rechtsschulen im Rom. Kaiserreich (Berlin, 1868), pp. 8-15. SECT. 59.] EX AUCTORITATE PRINCIPIS. 311 The right of responding tinder imperial authority, first granted by Augustus and continued by his successors down to the time of Alexander Severus, was something quite dif- ferent, and did not imply publicity. Neither did it imply any curtailment of the right of unpatented jurists to give advice to any one who chose to consult them. What it did was to give an authoritative character to a response, so that the judge who had asked for it and to whom it was presented for the judges were but private citizens, most of them unlearned in the law was bound to adopt it as if it had emanated from the emperor himself. It may be that Augustus was actuated by a political motive, that he was desirous by this concession to attach lawyers of eminence to the new regime, and prevent the recurrence of the evils experienced during the republic from the too great influence of patrons. But whatever may have prompted his action in the matter, its beneficial consequences for the law can hardly be overrated. For the quasi-legislative powers with which they were invested enabled the patented counsel to influence current doctrine not speculatively merely but positively (jura condere), 3 and to so leaven their interpretations of the jus civile and jus honorarium with suggestions of natural law as to give a new complexion to the system ( 55). Instead of giving his opinion, like the unlicensed jurist, by word of mouth, either at the request of the judge or at the instance of one of the parties, the patented counsel, who did not require to give his reasons, 4 reduced it to writing and sent it to the court under seal. Augustus does not seem to have contemplated the possibility of con- flicting responses being tendered from two or more jurists equally privileged. It was an awkward predicament for a judge to be placed in. Hadrian solved the difficulty by declaring that in such a case a judge should be entitled to use his own discretion. That on receiving a response with 3 Gaius and Justinian, as in note 1. 4 Seneca, Epist., xliv. 27. 312 ENACTMENTS OF THE EMPERORS. [SECT. 60. which he was dissatisfied he could go on calling for others until he got one to his mind, and then pronounce judgment in accordance with it on the ground that there was difference of opinion, is extremely unlikely. The more probable ex- planation of Hadrian's rescript is this, that the number of patented responding counsel was very limited ; that a judge, if he desired their assistance, was required by this rescript to consult them all (quorum omnium, &c.) ; that if they were unanimous, but only then, their opinion had force of statute (legis vicem optimt] ; and that when they differed the judge must decide for himself. SECTION 60. CONSTITUTIONS OF THE EMPERORS.* Gaius and Ulpian concur in holding that every imperial constitution, whether in the shape of rescript, decree, or edict, had the force of statute. It may be that by the time of Ulpian that was the prevailing opinion ; but modern criti- cism is disposed to regard the dictum of Gaius, written in the time of Antoninus Pius, as coloured by his Asiatic notions, and not quite accurate so far as the edicts were concerned. As supreme magistrate the emperor had the same jus edicendi that kings, consuls, and praetors had had before him, and used it as they did to indicate some course of action he meant to adopt and follow, or some relief he proposed to grant. His range, of course, was much greater than that of the praetors had been ; for his authority endured for life, and extended over the whole empire and every de- partment of government. But originally, and in principle, his successor on the throne was no more bound to adopt any of his edicts than a praetor was to adopt those of his prede- cessors. That it was not unusual for an edict to be renewed, 1 Gai., i. 5 ; Ulp. in Dig., i. 4, fr. 1, 1 ; Mommsen, Rom. Staatsrecht, vol. ii. p. 843 sq. ; Wlassak, Krit. Studien zur Thcorie der Rechtsquelltn im Zeitalter d. Tdass. Juristen, Graz, 1884 ; A. Pernice (crit. Wlassak), in Z. d. Sav. Stift., vol. vi., R.A. (1885), p. 293 sq. ; Karlowa, Rom. RG., vol. i. 85. SECT. 60.] EDICTA, RESCRIPT A, DECRETA. 313 and that it occasionally happened that the renewal was not by the immediate successor of its original author, is manifest from various passages in the texts. 2 Very frequently, when its utility had stood the test of years, it was transmuted into a senatusconsult ; 3 this fact proves of itself that an edict per se had not the effect of statute. But just as, according to Cicero, a praetorian edict that had held its place on the album through a long series of years came to be regarded as consuetudinary law, so it may have been with the imperial edicts ; their adoption by a succession of two or three sove- reigns, whose reigns were of average duration, may have been held sufficient to give them the same character ; and, by a not unnatural process, unreflecting public opinion may have come to impute force of statute to the edict itself rather than to the longa consuetudo that followed on it, thus paving the way for the assertion by the sovereigns of the later empire of an absolute right of legislation, and for the recog- nition of the lex edictalis ( 74) as the only form of statute. The imperial rescripts and decrees (rescripta, decreta) had force of law (legis vicem hdbent) from the earliest days of the empire, and their operation was never limited to the lifetime of the prince from whom they had proceeded. But they were not directly acts of legislation. In both the emperor theoretically did no more than authoritatively interpret exist- ing law, although the boundary between interpretation and new law, sometimes difficult to define, was not always strictly 2 E.g., Dig., xvi. 1, fr. 2 : "Et primo quidem temporibus divi Augusti, mox deinde Claudii, edictis eorum erafc interdictum, ne feminae pro viris suis inter- cederent ; " which indicates that the edict of Augustus on the subject had not been adopted by Tiberius or Caligula, but first renewed by Claudius. From Dig., xxxviii. 6, 26, it appears that an edict of Augustus's, forbidding a man to disinherit a son who was a soldier, dropped on his death and was not renewed by his successors. See another illustration in Jnst., ii. 12, pr. 1 As happened to the edicts referred to in the first part of last note ; they formed the substance of the Vellean senatusconsult, at the instance of the emperor Claudius. According to Tacitus (Ann., iv. 16), the senatusconsult of Tiberius's declaring that confarreation should no longer place a wife in subjec- tion to her husband (infra, p. 346) was the renewal of an edict of Augustus's. 314 IMPERIAL RESCRIPTS AND DECREES. [SECT. 60. adhered to. 4 The rescript was an answer by the emperor to a petition, either by an official or a private party, for an instruction as to how the law was to be applied to the facts set forth; it usually came from the provinces, where the services of the patented counsel were not readily obtained ; and, when from a private party, was often only in anticipa- tion of litigation, and for his guidance as to whether or not he should embark on it. When the answer was in a sepa- rate writing it was usually spoken of as an epistula ; when noted at the foot' of the application its technical name was subscriptio or adnotatio. The decree was the emperor's ruling in a case submitted to him judicially ; it might be when it had been brought before him in the first instance extra ordinem (p. 368), or when it had been removed by supplicatio from an inferior court in its earliest stage, or when it came before him by appeal. It was as a judge that the emperor pronounced his decree ; but, proceeding as it did from the fountain of authoritative interpretation, it had a value far beyond that of the judgment of an inferior court (which was law only as between the parties), and formed a precedent which governed all future cases involving the same question. Those decrees and rescripts constituted one of the most im- portant sources of the law during the first three centuries and more of the empire, and were elaborated with the assist- ance of the most eminent jurists of the day, the rescripts being the special charge of the magister libellorum. From the time of the Gordians to that of the abdication of Diocle- tian they were almost the only direct channel of the law that remained ( 64). 4 As instances may be mentioned Hadrian's rescript (epistula) introducing the "benefit of division" amongst co-sureties (Just., Inst., iii. 20, 4), and the decree of Marcus Aurelius (known ever after as the decretum dim Marci) repressing and punishing self-help (Dig., xlviii. 7, fr. 7). SECT. 61.] SCIENTIFIC JURISPRUDENCE. 315 CHAPTER SECOND. JURISPRUDENCE. SECTION 61. LABEO AND CAPITO, AND THE SCHOOLS OF THE PROCULIANS AND THE names of M. Antistius Labeo and Ateius Capito occur very frequently in conjunction. They were for a time rivals in political life, Capito attaching himself to the court party, while Labeo inclined to range himself in opposition to the regime of the nascent monarchy. Submission, if not subservience, to authority, and unquestioning acceptance of the new order of things, was the characteristic of the one ; a stout but sometimes quixotic independence the charac- teristic of the other. The attempt has often been made to trace a parallel between their respective modes of thought in politics and jurisprudence. But we do not know enough of Capito as a jurist to enable us to speak with any certainty as to his opinions. He is rarely referred to in the texts ; whereas Labeo's was the name of greatest authority from the time of Augustus down to that of Hadrian. From the remains of his writings preserved in the Digest, it is easy to 1 Mascovius, De scctis Sabinianor. ct Proculianor., Leips., 1728 ; Van Eck, " De vita moribus et studiis Labeonis et Capitonis," in Oelrichs' Novus The- saurus dissert, jurid., vol. i., torn. 2, (Bremen, 1771), p. 821 sq. ; Dirksen, " Ueber d. Schulen d. Rom. Juristen," in his Beitrdge zur Kunde d. Rom. Rechts, (Leipsic, 1825), p. 1 sq. ; Bremer, as in 59, note 2 ; Pernice, M. Antistius Labeo, 2 vols., Halle, 1873, 1878 ; Kuntze, Excurse tiber Rom. Recht, (2d ed., Leipsic, 1880), pp. 318-331 ; Schanz, "Die Analogisten und Anomalisten im Rom. Recht," in Philologus for 1883, p. 309 sq. ; Roby, Introduction, chap. ix. ; Karlowa, Rom. RG., pp. 662 sq., 677 sq. 316 THE RIVAL SCHOOLS OF [SECT. 61. see as, in fact, we are told by Pomponius and Aulus Gellius that he was a man of great general culture, well versed in the history and antiquities of the law, an acute dialectician, and in philosophy imbued to some extent with the teaching of the Stoics. In his exposition of the law he was as independent as in his political opinions, criticising with freedom the doctrines even of those who had been his instructors in jurisprudence, and guided in his own judg- ments by constant reference to the origin of an institution or a rule, and the object it was intended to effect. One of the most celebrated of his writings was his Libri iriOavuiv (Probdbiliwni), a theoretical treatise, which was epitomised and annotated by Paulus two centuries later. Another work, his Libri Posteriorum, a more practical treatise on various branches of the jus civile, was abridged by Javolenus, and seems to have been of considerable authority. Besides these, Labeo was the author of commentaries on the ponti- fical law, the XII Tables, and the Edicts of the urban and peregrin praetors, as well as of a collection of responses. The estimation in which he was held by the jurists of the classical period, i.e., from Hadrian to Alexander Severus, is to be measured, not so much by the comparatively small bulk of the excerpts from his writings preserved in the Digest (and which are almost exclusively from his Libri TriOavwv and Posteriorum), as by the frequency of the men- tion of him by other authors. It is nothing uncommon to find his opinions, and particularly his definitions of terms of law, referred to ten, fifteen, or even twenty times in the course of the same title. Labeo and Capito are said to have been the founders of the two schools or sects both phrases are used in the texts of the Proculians and Sabinians ; 2 but it is Nerva and Proculus that Gaius always speaks of as the early repre- - Pompon. ,_in Diy., i. 2, fr. 2, 47-52. SECT. 61.] THE PROCULIANS AND SABINIANS. 317, sentatives of the one, Sabinus and Cassius as the repre- sentatives of the other. 3 Bremer's view, 4 that the schools were two rival teaching halls stationes jus pullice docen- tium, 5 admits of a good deal of argument in its support ; for we are expressly told that Nerva and Proculus were pupils of Labeo's, and Masurius Sabinus, Javolenus Priscus, and Julian are all mentioned as professors as well as practi- tioners. Bremer suggests that the schools may have taken their names from Proculus and Sabinus, because they were the first to found permanent halls in which they began to teach the doctrines they had respectively received from their masters, and which became a sort of tradition with their disciples. To the question, what were the essential doc- trinal differences between them ? there is no satisfactory reply. Karlowa propounds the opinion, and backs it with many quotations that seem fairly to support it, that the Proculians preferred to abide by the jus civile, while the Sabinians had a greater predilection for the jus gentium and the speculative doctrines of natural law. But it would be easy to glean from the records of their controversies in the pages of Gaius 6 (who professed himself a Sabinian) quite as 3 The following, according to Pomponius, was the succession : PROCU- LIANS 1. M. Antistius Labeo (temp. Aug. and Tib.) : 2. M. Cocceius Nerva (consul 22 A.D.) ; 3. Sempron. Proculus (temp. Claudius, &c.) ; 4. Nerva the younger (praetor 65 A.D., father of the emperor Nerva) ; 5. Longinus (of whom nothing more is known than that he filled a praetorship) ; 6. Pegasus (temp. Vespasian) ; 7. Juventius Celsus (temp. Vespasian and Domitian) ; 8. Nera- tius Pri.scus (temp. Domitian, Nerva, Trajan) ; 9. Juventius Celsus the younger (Domitian to Hadrian). SABINIANS 1. M. Ateius Capito (consul 5 A.D., died 21 A.D.) ; 2. Masurius Sabinus (temp. Tiberius and Nero) ; 3. C. Cassius Longinus (Tiberius to Vespasian) ; 4. Cselius Sabinus (temp. Vespasian) ; 5. Javolenus Priscus (Domitian to Hadrian) ; 6. Aburius Valens (temp. Had- rian ?) ; 7. Tuscianus (temp. Hadrian ?) ; 8. Salvius Julianus (Hadrian and Antoninus Pius). These were the successive heads of the two schools, accord- ing to the narrative of Pomponius. To judge by their reputation in later years, they must have been of very unequal merit ; for of some there is no further mention. 4 Bremer, p. 68 sq. B Gell., xiii. 13, 1. 6 Most of them will be found collected in Elvers's Promptuarium Gaianum, (Gottingen, 1824), under the heads "Auctores diversae scholae" and " Nostri 318 SALVIUS JULIANUS. [SECT. 62. many texts that would support the very reverse. Karlowa's view is not very consistent either with the estimation in which Labeo was held by the jurists of two hundred years later as an independent thinker who had thrown new light upon many branches of the law, or with the fact that the Libri III de jure civili of Sabinus were regarded by those same jurists as the most authoritative repertory of it in existence, brief, no doubt, but nevertheless the basis of several voluminous commentarii ad Sabinum. SECTION 62. JULIAN, GAIUS, AND THE ANTONINIAN JURISTS. It is impossible in a work of the dimensions of the pre- sent to mention more than a few of the men who built up the law of Home in the period under consideration. 1 Labeo and Sabinus were the most eminent of the Julian period ; the Flavian produced none to equal them. Under Hadrian and the Antonines the most distinguished names are those of Salvius Julianus, Pomponius, Africanus, Gaius, and Q. Cervidius Scasvola. The first, who, according to Pomponius, 2 was in his time at the head of the Sabinian school, was by birth an African, and maternal grandfather of the emperor Didius Julianus. Under Hadrian and Anto- ninus Pius he filled the offices of prgetor, consul, and prae- fectus urbi, and for a long time was the leading spirit in the imperial council. It was to him that Hadrian entrusted the task of consolidating the Edict. That, however, was a small matter compared with the work to which he devoted praeceptores." Many more, gleaned from other quarters, will be found in Mascovius, and a considerable selection of them in Roby, p. cxxxi. sq. 1 Accounts of the jurists of the so-called classical period are abundant. See Rudorff, Rom. EG., vol. i. 66-78 ; Roby, Introduction, chaps, x.-xv. ; Karlowa, Rom. JRG., vol. i. 89-91 ; Ferrini, Fonti, pp. 55 sq. On their sequence, see Fitting, Ueber das Alter d. Sehriften d. Rom. Juristen von Hadrian bis Alexander, Basle, 1860. * See 61, note 2. Buhl, Salvius Julianus, vol. i. (Heidelb., 1886), pp. 11-134. SECT. 62.] SEXTUS POMPONIUS. 319 the best part of his life, his Digesta. 3 Labeo had been a pioneer, but in this great body of law Julian shows himself well advanced towards the citadel. In ninety books, fol- lowing so far much the same order in which he arranged the Edict, he deals with both civil and praetorian law, illustrat- ing his doctrines with hypothetical cases and fresh and lively questions and answers. There is probably none in the whole catalogue of Eoman jurists whose dicta are so frequently quoted by his successors and even by his contemporaries. Sextus Pomponius was a contemporary of Julian's, but survived him. His literary career, like Julian's and Gaius's, was prolonged, beginning in the reign of Hadrian and con- tinuing through the twenty-three years of that of Anto- ninus Pius, and well on into that of Marcus Aurelius and Verus. His work was diversified, archa3ological, historical, doctrinal, critical. His readings on Quintus Mucius Scasvola (p. 264) were utilised by the jurists of the Severan period, and drawn on to some extent by Justinian's commissioners. So were his Epistulae, which seem for the most part to have been opinions given to consulting clients in a fuller and more argumentative and critical fashion than was usual in the responsa of patented counsel. Still more largely drawn upon in the compilation of the Digest were his writings on Sabinus. Singularly enough, his voluminous commentary on the Edict is not excerpted directly, although numerous references to it are preserved in extracts from the commen- taries of Ulpian and Paul. He is most familiar to moderns in connection with his Enchiridion, from which a long passage is preserved in the Digest, sketching the external history of the law from the foundation of the City to the time of Hadrian, and which has been often referred to in the preceding pages. 4 3 See Mommsen, " Ueber Julians Digesta," in the Z. f. RG., vol ix. (1870), p. 82 sq.; Buhl, I.e., p. 86 sq. 4 Many critics entertain the opinion that it is to some extent corrupt ; 320 AFRICANUS, GAIUS. [SECT. 62. Likewise of the same period as Julian, and one of Ids friends, though probably younger, was Sextus Caecilius Afri- canus, whom Gellius introduces in a colloquy with Favorinus about some of the antiquities of the XII Tables, but without his cognomen. His principal works were several books of Questions (quaestiones) and a still greater number of Epis- tulae. The former were liberally made use of by Justinian's commissioners, but the latter very sparingly. About the Questions there is this peculiarity, that the case stated interrogatively and the answer to it, are very frequently connected by a verb in the third person, ait, respondit, &c., from which many jurists conclude that Africanus is giving not his own opinion but that of some other counsel, probably Julian. His writings are acute and exact, but sometimes obscure ; the saying was common long ago " Lex Africani, ergo difficilis." Gaius must be placed somewhat later than Julian, Pom- ponius, and Africanus ; for although he speaks of an event in the reign of Hadrian as occurring in his " own time," yet his literary activity only commenced under Antoninus Pius, continuing until after the death of Marcus Aurelius. Although of such repute in the fifth century as to be one of the five j urists put before all others in the Valentinian Law of Citations ( 78), yet of his personal history we know nothing. He is but once (if at all) mentioned by a con- temporary, 5 and never by any of his successors. Some eminent authorities are of opinion, from the internal evi- dence of his writings, that he must have been a provincial, see in particular Osann, Pomp, de origine juris fray., Giessen, 1848. Sanio has attempted to make out its indebtedness to Varro, in his Varroniana in d. Schriften d. Rom. Juristen, Leipsic, 1867. 5 By Pomponius, in Dig. , xlv. 3, 39 : "quod Caius uoster dixit." It is by no means certain that Pomponius was not referring to Caius Cassius Longinus, one of the heads of the Sabinian school, "our master Cassius." No doubt Gaius was a Sabinian as well as Pomponius, and the "noster" may mean no more than fraternity; but the "dixit" suggests allusion to a predecessor rather than to a young contemporary. SECT. 62.] GAIUS AS TEACHER AND JURIST. 321 and probably an Asiatic, 6 while others maintain as decidedly that Eome must have been his headquarters. 7 It cannot be disputed that he devoted a considerable amount of atten- tion in his Institutions to peculiarities of the law that affected peregrins ; and Karlowa suggests what so far conciliates the discordant views, that he may have taught in Rome, but addressed his teaching especially to provincials residing there. 8 It was as a teacher and theoretical jurist that he excelled ; indeed it is very doubtful whether he was a prac- titioner at all, and all but certain that he had not the jus respondendi. His famous work was his Institutionum com- mentarii quattuor ; not a work of erudition or indicative of juridical powers of the highest order ; but of great value as a compendium of the fundamental doctrines of the law, alike from the simplicity of its method, the interest of its historical illustration, and the precision and accuracy of its language. The excitement that followed the happy dis- covery of the manuscript of it in the year 1816 (p. 329), at the moment when the founders of the historical school of jurisprudence were coming to the front, and the enthusiastic gratitude men felt towards its author for the store of new material which it laid open to them, have led to his eleva- tion to a higher pinnacle than his actual merits altogether warrant. As a jurist Gaius cannot be put on the same level with Labeo or Julian, Ulpian or Papinian. It may be owing to his having been only in the second rank that his name never occurs in the pages of his contemporaries and succes- sors ; men who sat in the imperial council and responded 6 E.g., Mommsen, "Gaius ein Provincialjurist," in Bekker und Muther's Jahrb., vol. iii. (1859), p. 1 sq. ; Blume, in the Z. /. RG., vol. iii. (1864), p. 452 sq. ; Kuntze, Der Provincialjurist Gaius wissenschaftlich abgeschatzt, Leipsic, 1883. 7 E.g., Huschke, in the Z. f. RG., vol. vii. (1868), p. 161 sq., and in the introduction to his 4th edition of Gaius. 8 Karlowa, Rom. RG., vol. i. p. 722. See Roby, Introduction, p. clxxv. sq- X 322 GAIUS AS TEACHER AND JURIST. [SECT. 62. ex auctoritate principis were unlikely to quote one who, however skilful and successful as a teacher, yet had neither experience as a practitioner nor great reputation as a specu- lative jurist. All his writings seem to have had an educa- tional aim, his commentaries on the XII Tables, on the aedilian edict, the provincial edict, and the Lex Julia et Papia Poppaea, his selected titles from the urban edict, his monographs on testamentary trusts, dowries, verbal obliga- tions, and the Tertullian and Orphitian senatusconsults, his libri aureorum, &c. The last-mentioned, Rerum quotidiana- rum sive aureorum libri VII, a repertory of the law on matters of everyday occurrence, seem to have borne a cer- tain relation to his Institutions, travelling over the same ground but in greater detail, and taking up many of the matters which were not deemed suitable for the elementary treatise. The passages preserved in the Digest are models of exposition. But they display little constructive talent. In this respect Gaius compares unfavourably with Julian. His tread is firm where his ground is sure, but he manifests timidity and hesitation as he approaches controversy. Not- withstanding these defects, however, his Institutes cannot be too highly valued. Criticism may detect in them a few historical 9 and even some doctrinal errors ; but these shrink into insignificance in view of the wealth of instruction about branches of the law of the republic and early empire which their pages afford. 10 Q. Cervidius Scasvola was later than Gaius. He seems to have commenced his career in the reign of Antoninus Pius, to have been in his prime in that of Marcus Aurelius, in whose council he sat, 11 and to have been still engaged in 9 See Lotmar, Krit. Studien in SacJicn der Contrav indication (Munich, 1878)' pp. 10-22, 53-57 ; Kuntze, as in note 2. 10 The literature on the subject of Gaius is overwhelming ; the latest treatise is that of Glasson, iZtude sur Gaius, &c., 2d ed., Paris, 1885. 11 From what Capitolinus says (Marc., 11), it is probable that Scsevola was one of the emperor's praetorian prefects. SECT. 63.] QUINTUS CERVIDIUS SCLEVOLA. 323 his profession in the early years of Septimius Severus. He was that emperor's instructor in law, and at the same time had Papinian as a pupil. With his successors he had great reputation as a consulting counsel ; and many of his clients, to judge from his Digesta and Quaestiones, seem to have been in the Greek-speaking provinces. His Questions, otherwise responses, are very brief and pointed, and the answers sometimes without reasons. The same species facti one may say the same case that is recorded in them frequently reappears in his Digesta, but treated more fully and argumentatively. The latter work, however, is not exclusively devoted to case law, but contains a considerable amount of doctrinal exposition of a high order, that justifies the compliment paid to Scaevola by Arcadius and Honorius as prudentissimus jurisconsultorum. 12 SECTION 63. PAPINIAN, ULPIAN, AND PAUL. ^Bmilius Papinianus x is supposed to have been a native of Phoenicia. Trained under Scaevola, he was already advocatus fisci under Marcus Aurelius, and became master of requests (magister libellorum; 60) and afterwards prae- torian prefect under Septimius Severus. He is said to have been connected with the latter emperor by marriage, and was certainly one of his most intimate and trusted friends. He accompanied Severus to Britain ; and an enact- ment in the Code, dated from York in the year 210, may not unreasonably be imputed to his pen. 2 The emperor before his death committed to him the charge of his two sons ; but he was unable to prevent the murder of the younger, and his refusal to defend the act led to his own assassination by order and in the presence of the elder. 12 Cod. Theod., iv. 4, 3, 3. 1 See Ml. Spart., Carac., 8 ; Ev. Otto, Papinianus, sive de vita, &c., Leyden, 1718 ; Roby, Introduction, p. cxci. sq. 2 Cod., iii. 32 1, 324 .EMILIUS PAPINIANUS. [SECT. 63. The words put into his mouth in his answer to Caracalla that to defend the murder of the innocent was to slay him afresh were characteristic of Papinian, whose integrity and high moral principle were as remarkable as his eminence in law. It may be that the one helped the other ; and the criticism has been passed upon him that, if he was the prince of jurists, it was because he knew better than any of his contemporaries how to subordinate law to morals. His principal works were his collections of Quaestiones (thirty-seven books) and Responsa (nineteen books). His younger contemporaries Ulpian and Paul seem to have been somewhat envious of his reputation, and to have annotated many of his opinions with considerable freedom. But posterity judged between them ; and first Constantino in 321, and afterwards Theodosius and Valentinian in 426, refused to allow the " notes " to be cited in the tribunals in derogation of Papinian. Justinian is even more lavish in his encomiums on his genius than any of his predecessors on the throne ; splendidissimus, acutusimus, disertissimus, suUimissimus, o-o^coraro?, merito ante olios excellens, being amongst the epithets in which he indulges. Modern criti- cism, so fond of applying new standards to a man's measure- ments, endorses the verdict of antiquity in so far as it places him far above his fellows in respect of the liveliness of his conceptions of right and wrong. He has no equal in the precision with which he states a case, eliminating all irrele- vancies of fact, yet finding relevancies of humanity that would have escaped the vision of most ; and without parade, and as it were by instinct, applying the rule of law as if it lay on the surface and was patent to the world. No man was ever more worthy of the privilege of responding ex auctoritate principis, and no man ever displayed a higher sense at once of the power it conferred and the responsi- bility it imposed. Domitius Ulpianus and Julius Paulus made their first SECT. 63.] DOMITIUS ULPIANUS. 325 appearance in public life as assessors in the auditorium of Papinian and members of the council of Septimius Severus ; and in the reign of Caracalla were the heads of two minis- terial offices, the records and the requests. Ulpian was of Tyrian origin ; which may account for the intimate rela- tions that arose between him and Alexander Severus, whose mother, Julia Mammaea, was from Phoenician Syria. Helio- gabalus had deprived him of his dignities and expelled him from Home ; but on the accession of Alexander, then only about sixteen years of age, he was at once reinstated, be- came the emperor's guardian, was appointed praetorian prefect, and virtually acted as regent. His curtailment of the pri- vileges conferred on the praetorian guard by Heliogabalus provoked their enmity ; again and again he narrowly escaped their vengeance ; till at last in the year 228, in the course of a riot between the soldiery and the populace, the former one night found their way into the palace whither Ulpian had fled for shelter, and slew him almost in the arms of the emperor. It is not surprising to find that the cares of government interfered with his literary work ; for, great as it was, it seems almost entirely to have been executed before the accession of Alexander. There was a commentary on the jus civile (" ad Sabinum") in over fifty books ; one on the Edict in more than eighty books ; collections of Opinions, Responses, and Disputations ; books of Rules and Institu- tions ; treatises on the functions of the different magistrates, one of them (de officio proconsulis libri X) being a compre- hensive exposition of the criminal law ; besides monographs on various statutes, on testamentary trusts, and so forth. The characteristic of the greater treatises is doctrinal exposi- tion of a high order, flavoured with judicious criticism, and marked by great lucidity of arrangement, style, and lan- guage ; throughout they bear evidence of the extent of his indebtedness to his predecessors. The quasi-philosophical observations in which he indulges in his Institutions are 326 JULIUS PAULUS. [SECT. 64. superficial ; but otherwise his compendia are models of con- ciseness, while free from inelegance. His works altogether have supplied to Justinian's Digest about a third of its contents, and his commentary on the Edict of itself nearly a fifth. Paul, who seems to have been in youth a pupil and in riper years an admirer of Scsevola's, had a literary career very much like that of Ulpian ; it was extremely prolific until, as the latter's successor, he became Alexander's pra3- torian prefect, but happily was not altogether interrupted by the cares -of government. The range of both jurists was much the same ; Paul, however, contenting himself with a shorter commentary on Sabinus than Ulpian, though going far beyond the latter in the number of his monographs, some of which were devoted to the exposition of points of procedure. He was more many-sided than Ulpian, quite as acute, and perhaps more subtle. Modestine, who was a pupil of Ulpian's, speaks of the two as Kopvcpaioi TOW VOJU.IKCOV ; and some of the later emperors, oblivious of Labeo and Julian, bestow on Paul epithets that seem to give him rank only second to Papinian. But he failed in two qualities in which Ulpian excelled, precision of statement and clear- ness of diction; and it is not surprising, therefore, to find that his writings contributed to the Digest only about a fifth of its bulk as against Ulpian's third. SECTION 64. MODESTINE AND THE POST-SEVERAN JURISTS. Herennius Modestinus, a native of or closely connected with one of the Greek-speaking provinces, and a pupil of Ulpian's, merits special attention for no other reason than that he is put by the Valentinian Law of Citations ( 78) on the same distinguished platform as Gaius, Papinian, Ulpian, and Paul. There are numerous extracts from his writings, some of them in Greek, preserved in the Digest ; SECT. 64.] THE POST-SEVERAN JURISPRUDENCE. 327 but they leave the impression of their author's incapacity to take broad views and inclination towards hair-splitting. His career began in the reign of Caracalla, and continued through that of Alexander and into the turmoils that fol- lowed the extinction of the Severan dynasty. He is mentioned with esteem in a rescript of Gordian's of the year 239 ; and in an inscription of the year 244, (the year of the accession of Philip the Arabian), preserved in the Capitoline Museum, his name occurs as one of the arbiters in a question raised by a guild of fullers. 1 There are only four jurists of later date quoted in the Digest, and two of them (Hermogenian and Arcadius Charisius) are supposed to have flourished as late as the middle of the fourth century. With Modestine jural literature in the proper sense seems to have come to an end, and general opinion goes the length of affirming a complete eclipse of jural talent. This, however, is going too far. There are in Justinian's Code and elsewhere about 300 rescripts of Gordian's six years' reign ; the constitutions of the reign of Diocletian, half a century later, if the list of them in Hsenel's Index 2 be correct, number about 1200 or 1300, far more than nine-tenths of them rescripts ; and even in some of the intermediate reigns, e.g., those of Philip the Arabian and Valerianus and Gallienus, the num- ber is not inconsiderable. Many of those rescripts are of great merit, and not inferior to the ordinary run of the Responses of an earlier period. This could not have been the case had jurisprudence passed on the death of Alexander Severus into such utter darkness as is commonly supposed. That there was a serious change for the worse is unques- tionable ; otherwise there would hardly have been such a cessation of literary activity, contemporaneously with the discontinuance of the practice of responding. The latter is 1 Printed in Bruns. p. 259. 2 The Index Legum appended to Hsenel's Corpus leg. ab imp. rom. ante Justinianum latarum, Leipsic, 1857. 328 REMAINS OF CLASSICAL JURISPRUDENCE. [SECT. 65. to be accounted for by the growth of absolutism. It was no longer patented counsel that responded under imperial authority ; the emperor himself was now more than ever resorted to as the fountainhead of authoritative interpreta- tion ; and the imperial consistory drew within it, to aid him in his labours, all that remained of the skilled representa- tives of jurisprudence. 3 SECTION 65. REMAINS OF THE JURISPRUDENCE OF THE PERIOD. The principal repository of what remains of the juris- prudence of the first three centuries of the empire is the Digest of Justinian ( 84), the imperial rescripts being largely embodied in various collections of the later empire, as well as in Justinian's Code. A considerable number of passages from the writings of Gaius, Papinian, Ulpian, and Paul are to be found also in the Collatio, the Vatican Frag- ments, and the Consultatio ( 81). In addition to them we have from other quarters three texts of great importance, the Institutes of Gaius, part of a work of Ulpian's, and Paul's Sentences, together with some lesser ones and a few isolated fragments. 1 An abridgment of the Institutes of Gaius in two books is contained in the Lex Romano, Visigothorum ( 82). 2 It was well known to be an abridgment because of the existence of passages from the original text in the Collatio and in Jus- tinian's Digest. It was also well known that the original had not only been compiled and employed by its author for educational purposes (although opinions differed very widely 3 See on this subject Hofmann, "Der Verfall der rom. Rechtswissenschaft," in his Krit. Studien im Rom. Rechte (Vienna, 1885), p. 3 sq. 1 See a connected account of the remains of the jurisprudence of the classical period in Karlowa, Rom. RG., vol. i. 92. 2 First edited apart from the Lex Romano, in 1525 ; the last edition is that of Booking (Bonn, 1831), in the Corp. jur. rom. antejustinianei. SECT. 65.] THE VERONA MS. OF GAIUS. 329 as to its date), but that it had been in use as the elemen- tary text-book in law from the time of the establishment of the Constantinople school in 425 down to that of Justinian's reforms of 533. Great, therefore, was the regret that had often been expressed that so valuable a monument had been lost ; and great consequently the rejoicing over the happy chance that unearthed a copy of it in the chapter library at Verona. Scipio Maffei, in the middle of last century, in describing some of its manuscript treasures, referred to and printed a stray leaf that dealt with the subject of interdicts ; but it was not much noticed by lawyers, and was for the first time discovered (by Haubold) to be a passage from the long-lost Gaius in the year 1816. Almost at the same time, by a curious coincidence, Niebuhr, passing through Verona, and devoting a day or two to the library, came upon a palimpsest of the Epistles of St. Jerome, underneath which he detected what he conjectured to be a treatise of Ulpian's, but which Savigny, to whom Niebuhr communicated his discovery, along with the leaf de interdictis and a leaf from the palimpsest, at once pronounced to be the work of Gaius. 3 Further investigation revealed it to be the very copy of his Institutes from which the stray leaf referred to had been extracted, a large quarto of 127 leaves, written apparently in the fifth century. Commissioners were at once deputed by the Berlin Academy to make a transcript, and in 1820 the work was printed under the editorship of Goschen. It was very incomplete ; for some thirty pages of the MS. were entirely or to a great extent illegible, owing partially to the action of the chemicals on the parchment where the monks had destroyed the surface with pumice-stone. A revision of it was made two years later by Blume ; unfortunately his reckless use of more powerful agents than Goschen had ven- tured to employ obscured far more than it revealed. Edition 3 Savigny's account of the discovery, embodying Niebuhr's letter to him, is in the Z. f. yesch. RW., vol. iii. (1817), p. 129 sq. 330 STUDEMUND'S FACSIMILE OF GAIUS. [SECT. 65. after edition of the text followed in tolerably rapid succes- sion ; each new editor offering his own contribution of con- jectural readings towards amendment of errors and filling up of gaps. The wildness of some of their suggestions con- vinced the more reflecting of the necessity of bringing the critics back to the MS. itself. Booking set to work to pre- pare a facsimile ; but it was only of the transcripts made years before by Goschen and Blume. 4 This was insufficient ; so the Berlin Academy again took the matter in hand, and commissioned Studemund to proceed to Verona and prepare a fresh transcript of the MS. itself. He spent there several months of 1866, 1867, and 1868; and when his transcript was completed a fount of type was cast for him at the ex- pense of the Academy, representing as closely as possible the letters and other marks in the original, wherewith he was enabled in 1874 to produce his Apographum. 5 It is of the same size as the original, and represents line by line and letter by letter all that Studemund was able to decipher ; doubtful words and letters being in fainter type, what Goschen'Tiad read (before Blume's chemicals had made pas- sages undecipherable) being also in faint type but enclosed in square brackets, and those that no one had ever been able to make out being left blank. This magnificent and con- scientious reproduction will probably remain the basis of every reliable edition of Gaius for many years to come. 6 But it has already received its first supplement, the result 4 Gai Inst. Cod. Veron. Apographum ad Goescheni HoUwegi Bluhmii schedas compositum . . . publicavit Ed. Booking, Leipsic, 1866. 6 Gaii Institutionum Cod. Veron. Apographum . . . edid. Guilelmus Stude- mund, Leipsic, 1874. 6 There have been published since 1874, and based upon it, editions by Polenaar (Leyden, 1876), Kriiger and Studemund jointly (Berlin, 1877, 2ded., 1884), Huschke (his 4th, Leipsic, 1879), Muirhead (Edinburgh, 1880), Gneist (Leipsic, 1880), Dubois (Paris, 1881), Abdy and Walker (their 3d, Cambridge, 1885, which, however, contains no mention of the new readings published by Studemund in 1884). Dubois reproduced the Apographum more literally than the others. He offered no conjectural restitutions of his own, but appended iu footnotes and frequently criticised those suggested by previous editors. SECT. 65.] ULPIAN'S LIBER REGlTLARUM. 331 of a fresh inspection and chemical treatment of the MS. by Studemund and Krtiger in the years 1878 and 1883, which has enabled them (1) to add considerably to the deciphered matter, and (2) to negative with certainty the accuracy of some of the restitutions of undeciphered passages previously proposed. 7 In 1549 there were first published in Paris by Bishop Jean Dutillet, from a manuscript in his possession, what bore to be a portion of a work of Ulpian's. The MS. soon afterwards disappeared ; but its identity with one presently in the Vatican Library is now generally admitted. 8 It opens with the words " Incipiunt tituli ex corpore Ulpiani." Modern criticism has satisfactorily established that the titles which follow are from an abridgment of Ulpian's Liber sing. Regularum, executed soon after the year 320, by simple excision of matter no longer applicable to the then state of the law, but without further corruption of the text. 9 It is a sort of vade-mecum for practitioners, rather than an insti- tutional book ; every line almost embodying a doctrine, in language of unparalleled perspicuity. It follows pretty much the order of Gaius ; incorporating, however, various matters which he had purposely omitted, such as the law about dowries, the provisions of the Julian and Papia-Poppaean law, and so forth. Unfortunately a large part of it is lost, for the manuscript ends abruptly with the law of succession ; so that we are deprived of the rules about obligations and actions, of which a few sentences are preserved elsewhere. 7 Supplementa ad Codicis Veron. Apographum Studemundianum conposuit Guil. Studemund. They are printed in facsimile in the introduction to, and embodied in the text of, Kriiger and Studemund's second students' edition of Gaius (Leipsic, 1884). This edition forms the first volume of Kriiger, Mommsen, and Studemund's Collectio librorum juris antejustiniani in usum scholarum. 8 Savigny, "Ueber d. Vatikanische MS. des Ulpian," in his Verm. Schrift., vol. iii. p. 28 sq. 9 Mommsen, " De Ulpiani Regularum libro singular!," in Booking's 4th edition (Bonn, 1855) ; Kriiger in the preface to his edition of Ulpian (as in note 10), p. 1 sq. 332 PAULI SENTENTIAE. [SECT. 65. All the modern editions are based upon a facsimile of the Vatican MS. made in 1855. 10 The collection which passes by the name of Paul's Sentences (Julii Pauli libri V Sententiarum ad filium) is in this sense a compilation, that, while the whole of it is from the treatise so designated, yet its parts are collected from a variety of intermediate sources. The original, which was also a vade-mecum for practice, more detailed and more complete than Ulpian's, and arranged in the order of Julian's Edict, was held in the very highest estimation in the third and fourth centuries ; and alike by an enactment of Constan- tino's of the year 327 and by the Valentinian Law of Cita- tions of 426 was declared as authoritative as any imperial constitution. 11 The pre-eminence thus conferred upon the Sentences explains how it was they found a place in the Lex Romana Visigothorum ( 82), but greatly abridged by the omission of all that the compilers judged to be no longer of practical value. Some of the later MSS. of the Visigothic collection contain passages which are not in the earlier ones ; but the chief sources of the augment of the text are Justinian's Digest and the Collatio, the Vatican Fragments and one or two other collections also aiding to some extent. The result is a reconstruction of the five books, each divided into rubricated titles, altogether of about three times the bulk of the remains of Ulpian's Eules. This is so at least in Kriiger's edition, where the additions from the Digest, &c., 10 Ulpiani liber sing. Regularum Cod. Vat. cxempl. cur. Ed. Backing, Leipsic, 1855. Of the subsequent editions may be mentioned Vahlen's (Bonn, 1856), Kriiger's (in vol. iL of the CoUectio, &c., mentioned in note 7, Leipsic, 1878), Huschke's (in the 4th ed. of his Jurisprudentia antejustiniana, Leipsic, 1879, p. 547 sq.), Muirhead's (appended to his Gains, Edinburgh, 1880), Gneist's (in the 2d ed. of his Syntagma Institutionum, Leipsic, 1880), and Abdy and Walker's (appended to their Gains, 3d ed., Cambridge, 1885). 11 Says the Consultatio (infra, 81), vii. 3, " . . . secundum sententiam Pauli juridici, cujus sententias sacratissimorum principum scita semper vali- turas ac divalis constitutio declarant." It was probably in consequence of the authority thus accorded to them that in one or two MSS. they are called Pauli Receptae Sententiae. SECT. 65.] VALER. PROBUS, M^CIANUS, DOSITHEUS. 333 are printed as part of the text ; some editors, however, as, for example, Huschke, content themselves with a simple reference to these in what they consider their appropriate places, and print in extenso no more than is found in the manuscripts of the Visigothic collection. 12 Of less importance than the three treatises described above, though still of considerable value to the jurist, are the four following : (1.) Some remains of the Notae juris of Valerius Probus, who was of the time of Nero, Vespasian, and Domitian, explanations of the meanings of single letters occurring in laws and plebiscits, in the practice of the jus civile, in the legis actiones, and in the perpetual Edict. A.T.M.D.O., for example, is interpreted " aio te mihi dare oportere ; " B.E.E.P.P.V.Q.I., " bona ex edicto possideri proscribi venireque jubebo," and so on to the number of over 150 notae. The most authoritative edition is that of Mommsen, in Keil's collection of the Grammatici Latini (2.) Volusii Maeciani assis distributio, a tractate on money, weights, measures, and the usual modes of dividing an in- heritance, written in the time of Antoninus Pius or of Mar- cus Aurelius. Here also the authoritative edition is by Mommsen, in the Transactions of the Saxon Academy. 14 (3.) What is known as the Fragmentum Dositheanum de manu- missionibus, a passage from a school-book, dating from the year 207, which the master (Dositheus) was in the habit of setting to his pupils for translation. Its original is attri- buted by some to Pomponius, by others to Cervidius Scsevola, by others again to Gaius, Ulpian, or Paul. 15 (4.) The so- 12 The editions are numerous ; but it is enough to refer to the two men- tioned in the text. Kriiger's (of 1878) is in vol. ii. of the Collectio librorum, &.C., cited in note 7 ; and Huschke's in the Jurisprudentia antejustiniana, cited in note 10. 18 Also printed in the Collectio, &c., p. 141 sq., and Huschke, I.e., p. 129 sq. 14 Printed in Huschke, I.e., p. 409 sq. 15 Printed in vol. ii. of the Collectio, &c., p. 149 sq., and in Huschke, I.e., p. 422 sq. On the different opinions about ^it see Karlowa, Rom. RG. t p. 764 sq. 334 FRAGMENTUM DE JURE FISCI. [SECT. 65. called Fragmentum de jurejisci. This was found by Niebuhr in the chapter library at Verona at the same time that he discovered the MS. of Gaius. There is difference of opinion as to its date and authorship ; most critics attribute it to Paul; but Huschke thinks it Ulpian's, while some jurists regard it as not earlier than the time of Diocletian. It was first edited by Goschen in 1820, along with Gaius. Kriiger made a new transcript of the MS. in 1868 ; his facsimile forms the basis of all the later editions. 16 In addition to the above there exist a line or two from Pomponius about the indivisibility of servitudes, first pub- lished in 1536, from a MS. that had belonged to one of the Scaligers ; n a sentence from the first book of Papinian's Responsa on the subject of agreements between husband and wife, which forms the conclusion of the Lex Romano, Visi- gothorum ; 18 a couple of parchment sheets much decayed, brought from Upper Egypt in the year 1878, and now in the Berlin Museum, which contain extracts from the fifth book of Papinian's Response^, with some notes by Ulpian and Paul ; 19 other four tattered parchments from the ninth book of Papinian's Responsa, obtained from Egypt about the same time, and now in the museum of the Louvre ; 20 some pas- sages from Ulpian's Institutions, discovered by Endlicher in 1835 in the imperial library at Vienna, on a parchment which formed the cover of a papyrus manuscript De Trini- 16 Fragmentum de jure fisci edidit Paulus Krueger, Leipsic, 1868. See Collectio, &c., vol. ii. p. 162 sq.; Huschke, l.c., p. 615 sq. 17 Collectio, &c., vol. ii. p. 148 ; Huschke, I.e., p. 146 sq. 18 Collectio, &c., vol. ii. p. 157 ; Huschke, I.e., p. 433. 19 First communicated to the Berlin Academy by Kriiger in 1879 and 1880 ; and since then, along with the parchment referred to in note 24, the subject of several papers, for the principal of which see references in Karlowa, Mom. RG., pp. 765, 766, notes. It is remarkable that in the parchments the red letters of the rubrics are perfectly preserved, while the black letters of the text are to a great extent eaten out. 20 First published by Dareste in 1 883 in the Nouv. Rev. Hist., p. 361 sq., and since commented by Alibrandi, Huschke, Kriiger, Esmein, &c. ; see Kar- lowa, l.c., p. 768, and Nouv. Rev. Hist., vol. x. (1886), p. 219. SECT. 65.] MINOR FRAGMENTS. 335 tate ; 21 a passage from the second book of Paul's Institutions in Boethius on Cicero's Topics ; 22 a couple of sentences of Modestine's, the one (from the first book of his Rules) pub- lished in 1573 by Pierre Pithou from a MS. of his father's, and the other taken from Isidore's Differentiae ; 23 finally, a fragment of uncertain authorship dealing, inter alia, with the condition of dediticians, now in the Berlin Museum, having been obtained from Egypt along with the Papinianian parchments above mentioned. 24 21 Collectio, &c., vol. ii. p. 157 sq.; Huschke, I.e., p. 601 sq. See also note of critical papers on them in Karlowa, I.e., p. 772. 22 Collectio, &c , vol. ii. p. 160 ; Huschke, I.e., p. 546. 23 CoUectio, &c., vol. ii. p. 161 ; Huschke, I.e., p. 626. 34 Communicated to the Berlin Academy by Mommsen in 1879, See supra, note 19, and infra, 66, note 2. 336 JUNIAN LATINITY. [SECT. 66. CHAPTER THIRD. SUBSTANTIVE CHANGES. SECTION 66. CITIZENSHIP, JUNIAN LATINITY, AND PEREGRINITY. ONE of the achievements of the legislation of Augustus was the recognition of a class of freemen intermediate between citizens and peregrins, who got the name of Junian latins. 1 It came about in this way. Augustus was of opinion, and doubtless rightly, that one of the causes that had contributed to the social and political corruption of the later republic was the degradation of the burgess-class by the admission into their ranks of enormous numbers of enfranchised slaves. Prior to his legislation every freedman regularly manu- mitted became a citizen as a matter of course, although not qualified for enrolment in any but one of the four urban tribes. The Aelia-Sentian law of 4 A.D. was passed in order to render the attainment of citizenship by manumission a matter of greater difficulty. Before its enactment there were three regular modes of enfranchisement (legitimae manumissiones) known to the law, viz., (1) entry of the slave's name in the census-list as a freeman, (2) formal act in presence of the prastor (man. vindictd), and (3) testamen- tary grant of freedom ; but there were also various irregular modes, such as a written declaration addressed to the slave 1 Fragm. Dosith. (supra, p. 333), 6-8 ; Vangerow, Ueber die Latini Juni- ani, Marburg, 1833 ; Cantarelli, " I Latini Juniani," in the Archiv. Giurid., vol. xxix. (1882), p. 3 sq., vol. xxx. (1883), p. 41 sq. ; and the works cited supra, 57, note 4. SECT. 66.] THE LEX AELIA-SENTIA. 337 by his owner, an invitation from the latter to the slave to take a place at table, informal grant in presence of friends, &c. Only the legitimae manumissiones could make the freed- man a citizen, and that only if the manumitter was his quiritarian owner ; irregular manumissions, and even a regular one proceeding from a mere bonitarian owner (p. 270), were de jure ineffectual, although de facto enforced by praetorian intervention. The leading provisions of the amending enactment were these : (1) that all manumissions in fraud of creditors should be null, with this qualification, that an insolvent might institute one of his slaves as his testamentary heir, for the purpose of avoiding the disgrace of post mortem bankruptcy ; (2) that manumission by an owner under the age of twenty should not have the effect of making the freedman a citizen unless it was accomplished vindietd, and for reasons that had been held sufficient by a court of inquiry established for the purpose ; (3) that manumission of slaves under thirty years of age, in order to make them citizens, required . to be under the same two conditions ; (4) that slaves who had suffered criminal punishment or been otherwise disgraced should not under any circum- stances become citizens on manumission, but should rank only as dediticians, incapable of ever in any way attaining citizenship, and subject to other serious disabilities both in public and private life. 2 In aid, however, of a freedman under thirty, whose want of citizenship was due to nothing but the neglect of official approval of his manumission or its performance otherwise than vindietd, it was provided that if he married a woman who was either a citizen, or a colonial latin, or of his own class, declaring at the time, in presence of a certain number of witnesses, that he was doing so in 2 See Zubli, De L. Adia Sentia, Leyden, 1861 ; Brinz, Die Freiyelassenen d. L. Aelia Sentia u. das Berliner Fragment von d. Dediticiern, Freiburg, 1884. (The Fragment alluded to is that mentioned in the end of last section.) Y 338 THE LEX JUNIA NORBAXA. [SECT. 66. terms of and in order to have the benefit of the statute, then, on a child of the marriage attaining the age of twelve months, he was entitled to go to the praetor or a provincial governor, and, on proof of the facts, obtain from him a declaration of citizenship, which enured to wife and child as well, if the former was not a citizen already. 3 But a question not unnaturally presented itself as to what was the real condition of the manumittee before he had thus acquired citizenship. Was he slave or free ? It is usually said that he was de jure the former, but de facto the latter ; 4 (although de jure slavery is hardly consistent with the recog- nition of the possibility of marriage between him and a woman who might even be a citizen). The Junia-Norban law of 19 A.D. was passed to settle the question. 5 It did so by declaring that the condition of those freedmen under thirty whose manumission had not been both sanctioned by the council and accomplished vindictd was to be similar to that of the colonial latins ( 51) ; and, partly by the Juniaii law itself and partly by subsequent legislation, the same status seems to have been conferred on all freedmen, except those falling under the class of dediticians, who failed to become citizens because of the irregularity of their enfran- chisement. Hence arose that Junian latinity which figures so largely in the pages of Gaius and Ulpian. It had this ad- vantage, that it was convertible into citizenship in a variety of ways, e.g., the exercise for a certain length of time of some trade, craft, or calling from which the community derived benefit, renewal of the enfranchisement in such a way as to overcome its defects, imperial grant, and so forth. 6 While 3 This was technically cansae probatio ex lege Aelia Sentia (Gai., 5. 29) ; and to acquire citizenship in this way was ex 1. Aelia Sentia ad civitatem pervenire (Gai., iii. 73). 4 " Ex jure Quiritium servi, sed auxilio praetoris in libertatis forma ser- vati" (Gai., iii. 56). 5 There is controversy as to the date of the Junian law and its relation to the Aelia-Sentian one. See 57, note 4. 6 Gai., i. 32-34 ; Ulp., iii. 1-6. SECT. 66.] CONDITION OF JUNIAN LATINS. 339 a man remained a latin he had commercium, and therefore might be a party to a mancipation and hold property on a quiritarian title. 7 But he could not make a testament ; 8 and, though he might lawfully be instituted heir or appointed a legatee under one, 9 yet the statute did not allow him to take the inheritance to which he had been instituted or the legacy bequeathed to him unless he converted his latinity into citizenship within a certain limited period. 30 Having no potestas over his children, they could not succeed him on his death either as sui heredes of the jus civile or liberi of the prastor's edict. But for the Junian law, conferring de jure freedom on the manumittee, there would have been no difficulty in determining what was to be done with his estate after his decease. Before its enactment he was still de jure a slave, and all that belonged to him in law no more than peculium, the property of his manumitter, to whom it reverted on the freedman's death. The Junian law expressly reserved the manumitter's right to it as a quasi peculium ; he took his latin's estate on his death, not, however, as his heir, but as his owner, whose right in it had only been suspended during the freedman's lifetime. 11 This is the explanation of the memorable dictum of Justinian (who abolished Junian latinity), that, though a latin went through life as a freeman, yet with his last breath he gave up both life and liberty. 12 It must have been between the years 212 and 217 that Caracalla published his constitution conferring citizenship i Ulp., xix. 4. 8 Gai., i. 23 ; Ulp., xx. 14. 9 Ulp., xxii. 3. 10 Gai., ii. 110, 275 ; Ulp., xvii. 1, xxii. 3, xxv. 7. But he might, as a latin, take an inheritance or a legacy under a soldier's testament, or a testa- mentary trust gift even from a civilian. 11 Gai., iii. 56. 12 Just., Inst., iii. 7, 4. So fully recognised was the old owner's rever- sionary right, and so completely a vested interest, that he might transfer it inter vivos or bequeath it to a legatee (Gai., ii. 195). This is what is meant by leyatum latini in the passage referred to. 340 CARACALLA'S GRANT OF CITIZENSHIP. [SECT. 66. on all the free inhabitants of the empire. 13 Far-reaching as were its consequences, the primary purpose was purely fiscal. Augustus had imposed a tax of five per cent, on inheritances and bequests, except where the whole succes- sion was worth less than. 100,000 sesterces, or the heir or legatee was a near kinsman of the deceased. 14 It was con- tinued by his successors, and was very profitable, thanks to the propensity of the well-to-do classes for single blessed- ness, followed by testamentary distribution of their fortunes amongst their friends. But it affected only the successions of Roman citizens ; 15 so that the great mass of the provincial population escaped it. Caracalla, being needy, not only increased it temporarily to ten per cent., but widened the area of its operation by elevating all his free subjects to the rank of citizens. The words of Ulpian are very inclusive, " In urbe Romano qui sunt . . . cives Romani effecti sunt ; " but there is considerable diversity of opinion as to their meaning, caused by the fact that peregrins are still men- tioned by some of Caracalla's successors. The reasonable interpretation is that the enactment conferred citizenship on the Junian latins and on all the emperor's peregrin subjects except Aelia-Sentian dediticians ; and the boon, as a matter of course, enured to their descendants. But it did not exclude the possibility of peregrins in the future, when persons who were not citizens became subject to Rome, as happened to some extent in the course of the third century. And although all the Junian latins living at the date of the enactment in virtue of it became citizens, the class must at once have begun to form again in consequence of manumis- sions that were not in all points in accordance with the 13 Dio Cass., Ixxvii. 9 ; Ulp., in Dig., i. 5, fr. 17. Justinian (Nov. 78, cap. 5) attributes it erroneously to Antoninus Pius. 14 The lex Julia de vicesima hcreditatum of 6 A.D. See a paper on it by Bachofen, in his Ausgewahlte Lehren des Rom. Civilrechts (Bonn, 1848), p. 322 sq. 15 Plin., Paneyyr., 36-38. SECT. 67.] PRIVILEGES OF SOLDIERS. 341 requirements of the Aelia-Sentian law. Limit Caracalla's constitution, however, as we may, there can be no question of its immense importance. By conferring citizenship on the provincial peregrins it subjected them in all their rela- tions to the law of Rome, and qualified them for taking part in many transactions, both inter viws and mortis causa, which previously had been incompetent for them. It did away with the necessity for the jus gentium as a separate positive system. Its principles and its doctrines, it is true, survived, and were expanded and elaborated as freely and successfully as ever; but they were so dealt with as part and parcel of the civil law of Rome, which had ceased to be Italian and become imperial. SECTION 67. CONCESSION OF PECULIAR PRIVILEGES TO SOLDIERS. While the period with which we are dealing saw the substantial disappearance of the distinction between citizen and peregrin, it witnessed the rise of another, that be- tween soldiers and civilians (milites, pagani). 1 The peculiar position of a soldier, spending the best years of his life in camp, far away from home and kindred, with little or nothing in common with the private citizen who was occupied with the cares of his family, his possessions, and his merchandise, on the one hand subjected him to various disqualifications, and on the other entitled him to important indulgences. He could not, for example, acquire lands in the province in which he was serving ; he could not fill any municipal office ; neither could he become a surety for another, nor act for him as his attorney in a litigation. His service exempted him from undertaking a tutory ; he was relieved from the consequences of mistake in law, while a private citizen, with 1 Kuntze (Cursus, p. 648 sq.) devotes two or three chapters to the jus militare. 342 THE TESTAMENTUM MILITARE. [SECT. 67. opportunities of obtaining advice, was relieved only against mistake of fact ; if unsuccessful in a litigation, his adversary was not. allowed to deprive him of his last penny ; and on his discharge, and as a reward for his service, he often had a grant of conubium with any wife he chose to marry, even a latin or a peregrin. But the most remarkable effluxes of the jus militare were the military testament and the castrense peculium. The first set at naught all the rules of the jus civile and the prastors' Edict alike as to the form and the substance of a testament. Julius Csesar is said to have been the first to confer on soldiers the right to test without observing the requirements of the common law. His example was followed by Titus, Domitian, and Nerva, and from the time of Trajan the military testament became a recognised institution. " I will give effect," he says, " to the last wills of my faithful companions in arms, no matter how they have tested. Let them, therefore, make their testaments how they like, let them make them how they can ; the bare will (nuda voluntas) of a testator shall suffice to regulate the distribution of his goods." 2 It might be in writing, by word of mouth, by the unspoken signs perhaps of a dying man ; all that was re- quired was the will so manifested as not to be mistaken. 3 And as a man could thus make his testament free from all fetters of form, so might he also rescind it, add to it, alter it, and renew it. More extraordinary still, it was sustained even though its provisions ran counter to the most cherished rules of the common law. Contrary to the maxim that no man could die partly testate and partly intestate, a soldier might dispose of part of his estate by testament and leave the rest to descend to his heirs ab intestate* Contrary to this other maxim semel heres semper heres, he might give 2 Ulp. in Dig., xxix. 1, fr. 1, pr. 3 Gai., ii. 109 ; Ulp., xxiii. 10 ; Just., Inst., ii. 11, pr. 4 Inst,, ii. 14, 5 ; Diy., xxix. 1, 6. SECT. 67.] THE TESTAMENTUM MILITARE. 343 his estate to A for life, or for a term of years, or until the occurrence of some event, with remainder to B. 5 Contrary to the general rule, a latin or peregrin, or an unmarried or married but childless person, might take an inheritance or a bequest from him as freely as a citizen with children. 6 His testament, in so far as it disposed only of bona castrensia, was not affected by capitis deminutio minima.'' It was not invalidated by praeterition of sui heredes, 8 nor could they challenge it because they had got less under it than their " legitim " (p. 250) ; 9 and it was not in the mouth of the insti- tuted heir to claim his Falcidian fourth, even though nine- tenths of the succession had been bequeathed to legatees. 10 Finally, a later testament did not nullify an earlier one, if it appeared to be the intention of the soldier-testator that they should be read together. 11 All this is remarkable, manifesting a spirit very different from that which animated the common law of testaments. True, it was a principle with the jurists of the classical period that the voluntatis ratio was to be given effect to in the interpretation of testamentary writings ; but that was on the condition that the requirements of law as to form and substance had been scrupulously observed. But in the mili- tary testament positive rules were made to yield to the voluntas in all respects ; the will was almost absolutely un- fettered. Roman law in this matter gave place to natural law. One would have expected the influence of so great a change to have manifested itself by degrees in the ordinary law of testaments. Yet it is barely visible. In a few points the legislation of Constantine, Theodosius II., and Justinian relaxed the strictness of the old rules ; but there was never any approach to the recognition of the complete supremacy of the voluntas. In the Corpus Juris the contrast between 5 Dig. xxix. 1, 15, 4. Gai., ii. 110, 111. 7 Dig., xxviii. 3, 6, 13 ; Inst., ii. 11, 5. 8 Inst., ii. 13, 6. 9 Dig., v. ii. 27, 1. 10 Diy., xxix. 1, 17, 4. n Dig., xxix. 1, 19, pr. 344 THE PECULIUM CASTRENSE. [SECT. 67. the testamentum paganum and the testamentum militare was almost as marked as in the days of Trajan. The latter was still a privileged deed, whose use was confined to a soldier actually on service, and which had to be replaced by a tes- tament executed according to the usual forms of law within twelve months after his retirement. 12 The peculium castrense had a wider influence ; for it was the first of a series of amendments that vastly diminished the importance of the patriot, potestas on its patrimonial side. In its origin it was nothing more than a concession by Augustus to a filiusfamilias on service of the right to dis- pose by testament of what he had acquired in the active exercise of his profession (quod in castris adquisierat). 13 But it soon went much further. Confined at first to filiifamilias on actual service, the privilege was extended by Hadrian to those who had obtained honourable discharge. The same emperor allowed them not merely to test on their peculium castrense, but to manumit slaves that formed part of; and a little step further recognised their right to dispose of it gratuitously inter viws. By and by the range of it was extended so as to include not only the soldier's pay and prize, but all that had come to him, directly or indirectly, in connection with his profession, his outfit, gifts made to him during his service, legacies from comrades, and so on. All this was in a high degree subversive of the doctrines of the common law ; it may almost be called revolutionary. For it involved in the first place the recognition of the right of a person alieni juris to make a testament as if he were sui juris ; and in the second place the recognition of a sepa- rate estate in a filiusfamilias which he might deal with in- dependently of his paterfamilias, which could not be touched by the latter's creditors, and which he was not bound to collate (or bring into hotch-pot) on claiming a share of his father's succession. The radical right of the parent, how- 12 Inst., ii. 11, pr. 13 Inst., ii. 12, pr. SECT. 68.] THE MATRIMONIAL RELATIONSHIP. 345 ever, like that of a manumitter over his Junian freedman, was rather suspended than extinguished ; for, if the soldier- son died intestate, the right of the paterfamilias revived ; he took his son's belongings, not as his heir appropriating an inheritance, but as his paterfamilias reasserting his owner- ship of a peculium. u Thus did the law attempt to reconcile the privilege of the soldier while he lived with the preroga- tive of the family-head after his death. 15 SECTION 68. THE FAMILY. All branches of the law of the family underwent modifica- tion during the period, but radical changes beyond those already mentioned were comparatively few. The legislative efforts of Augustus to encourage marriage, to which persons of position showed a remarkable distaste, have already been alluded to (p. 304). The relation of husband and wife still in law required no more for its creation than deliberate interchange of nuptial consent ; although for one or two purposes the bride's home-coming to her husband's house was regarded as the criterion of completed marriage. 1 But it was rarely accompanied with manus. So repugnant was such subjection to patrician ladies that they declined to submit to confarreate nuptials ; and so great consequently became the difficulty of finding persons qualified by confar- reate birth to fill the higher priesthoods, that early in the 14 This, however, was altered by Justinian's 118th Novel, under which a father taking any part of a deceased son's estate did so in the character of his heir ; see infra, p. 418. 15 The same principles were afterwards partially extended to the peculium quasi-castrense, the earnings of a filiusfamilias in the civil or ecclesiastical service of the state : see Inst., ii. 11, 6 ; ii. 12, pr. 1 The references to the necessity in certain cases of ductio uxoris in domum mariti have led some French writers to maintain that marriage was regarded by the jurists of the empire as a real rather than a consensual contract. But it was only when one of the parties had died or deserted before they had lived together, and the ordinary evidence of completed interchange of consent failed, that this proof had to be called in aid as a decisive fact and circumstance. 346 THE PATRIA POTESTAS : [SECT. 68. empire it had to be decreed that confarreation should in future be productive of manus only quoad sacra, and should not make the wife a member of her husband's family. 2 Manus by a year's uninterrupted cohabitation was already out of date in the time of Gaius ; and although that by coemption was still in use in his time, it probably was quite unknown by the end of the period. Husband and wife therefore had their separate estates ; the common establish- ment being maintained by the husband, with the assistance of the revenue of the wife's dowry (dos), an institution which received much attention at the hands of the jurists, and was to some extent regulated by statute. Divorce was unfortunately very common ; it was lawful even without any assignable cause ; when blame attached to either side, he or she suffered deprivation to some extent of the nuptial provi- sions, but there were no other penal consequences. The relaxation of the bond between parent and child in the case of a filiusfamilias who had adopted a military career has already been alluded to. But it was not in his case alone that it was manifest; for in all directions there was a tendency to place restrictions on the exercise of the patria potestas. This was due to a great degree to the hold that the doctrines of natural law were gaining within the Roman system ; partly also to the fact that the emperors, having succeeded to the censorial regimen morum, allowed it freely to influence their edicts and rescripts. Exposure of an infant was still allowed ; 3 but a parent was no longer permitted, even in the character of household judge, to put his son to death ; in fact his prerogative was limited to moderate chastisement, the law requiring, in case of a grave offence that merited severe punishment, that he should hand his child over to the ordinary tribunals. 4 His right of sale, 2 Gai., i. 136. 3 The earliest absolute prohibition of it was by Valentinian and his colleagues in 374, Cod., viii. 51, 2. 4 Alex. Sev. in Cod., viii. 46, 3. SF.CT. 68.] RELAXATION OF THE OLD RULES. 347 in like manner, was restricted to young children, and per- mitted only when he was in great poverty and unable to maintain them ; 5 while their impignoration by him was prohibited under pain of banishment. 6 Except in the solitary case of a son who was a soldier, a paterfamilias was still recognised as in law the owner of all the earnings and other acquisitions of his children in pote- state ; but the old rule still remained that for their civil debts he was not liable beyond the amount of the fund he had advanced them to deal with as de facto their own (peculium profecticiurn), except when he had derived advan- tage from their contract, or had expressly or by implication authorised them to enter into it as his agents. 7 To the party with whom he had contracted a filiusfamilias was himself liable as fully as if he had been a paterfamilias* with one exception, namely, when his debt was for borrowed money; in that case, with some very reasonable qualifica- tions, it was declared by the notorious Macedonian senatus- consult (of the time of Vespasian) that the lender should not be entitled to recover payment, even after his borrower had become sui juris by his father's death. 9 Between a father and his emancipated son there was, and always had been, perfect freedom of contract ; but so was there now between a father and his soldier-son in any matter relating to the peculium castrense, even though the son was in pote- state. What is still more remarkable is that the new senti- ment which was operating on the jus civile admitted the possibility of natural obligation between paterfamilias and Jiliusfamilias even in reference to the peculium profecticium; which, though incapable of direct enforcement by action, was yet to some extent recognised and given effect to indi- rectly. 10 5 Paul, Sent., v. 1, 1. Ibid. 7 Gai., iv. 69-74. 8 Dig., xliv. 7, 39. 9 Dig., xiv. 6, 1. 10 See Savigny, Das Olliyatiomnrccht, vol. i. (Berlin, 1851), pp. 49, 59. 348 TUTORY AND CURATORY. [SECT. 68. In the matter of guardianship, while the tutory of pupils was carefully tended and the law in regard to it materially amended during the period under review, (particularly by a senatusconsult generally referred to as the Oratio dim Seven, prohibiting alienation of the ward's property without judicial authority), 11 that of women above the age of pupillarity gradually disappeared. This change, which was in harmony with the disappearance of the husband's manus, was aided by the Julian and Papia-Poppasan law (which made release from tutelage one of the rewards it offered to fruitful wives), and by a Lex Claudia abolishing the tutory-at-law of agnates ; but really was an inevitable result of the recognition of the right of a woman to substitute for her tutor-at-law, for her testamentary tutor, or for him who had been appointed to the office by a magistrate, another of her own selection, who was expected to comply with her wishes, and whose co-operation was therefore a mere matter of form, and prac- tically a farce. The guardianship or curatory (curd) of minors above pupillarity owed its institution to Marcus Aurelius. 12 The Pleetorian law of the middle of the sixth century of Rome had indeed imposed penalties on those taking undue advan- tage of the inexperience of minors, i.e., persons sui juris under the age of twenty-five ; and from that time the prae- tors were in the habit of appointing curators to act with such persons for the protection of their interests in parti- cular affairs. But it was Marcus Aurelius that first made curatory a general permanent office, to endure in the ordi- nary case until the ward attained majority (twenty-five). The appointment was made on the application of the minor 11 It is reproduced by Ulpian in Dig., xxvii. 9, fr. 1, 2. As Severus was in Asia at the time (195 A.D.), it must have been communicated to the senate in writing, which may account for the constant reference to the oration itself instead of the confirmatory senatusconsult. 12 Capitolin., in Marc., 10. See Savigny, Verm. Schr., vol. ii. p. 321 sq. ; Huschke, in Z. f. g. R\\'., vol. xiii. p. 311 sq. SECT. 69.] POSSESSION AND PROPERTY. 349 himself; but in practice there was this compulsitor upon him to petition for it, that his tutor refused to proceed to account for his administration unless the ex-pupil had a curator conjoined with him in the investigation, and who might concur in granting the tutor his discharge, thus mini- mising the chance of its future challenge. The powers, duties, and responsibilities of such curators became a matter for careful and elaborate definition and regulation by the j urists, whose exposition of the law of guardianship, whether by tutors or curators, has found wide acceptance in modern systems of jurisprudence. SECTION 69. POSSESSION, PROPERTY, REAL RIGHTS, AND OBLIGATIONS. In all those branches of the law there was much more of organic development than radical change. Much was written about possession; but all incidentally, and chiefly in connection with the possessory interdicts and the law of usucapion or prescriptive acquisition of property. In all the long list of the writings of the jurists we find no refer- ence to a single monograph on the subject; and as the principles of possession quoad interdicta and possession quoad usucapionem were by no means identical, and we have no absolute certainty that the compilers of Justinian's Digest were always careful to remember the distinction between them in arranging their excerpts, modern jurisprudence is anything but sure of what the general rules of possession per se really were. 1 In the law of property (dominium) nothing new of any 1 Savigny's great work on Possession (das Recht des Bcsitzes), first published in 1803. underwent great modification at his own hand in subsequent editions. Since then the books on the subject are innumerable. Bruns, Ihering, Bekker, Dernburg, and a host of eminent jurists have written upon it ; and it is not too much to say that there is hardly one of Savigny'.s positions that has not been assailed, while many have been completely overthrown. 350 PROPERTY AND JURA IN RE ALIENA. [SECT. 69. very great importance was introduced, with exception of the caducwn of the Papia-Poppasan law as a mode of acquisi- tion ; 2 but many branches of the subject underwent careful elucidation, as, for example, the requisites of various natural modes of acquisition, and the relations between an owner and a party withholding from him his property, according as the detention was in good faith or in bad. Among real rights, considerable attention was given to the nature of usufruct, the modes of its constitution, and the relative posi- tions of usufructuary and owner ; and legislation devised a means of giving effect to a bequest of a usufruct of money, which, as it could not be used without being parted with, was theoretically incapable of being usufructed. 3 The modes of constitution alike of personal and prasdial servitudes were much simplified, formal conveyance by mancipation or ces- sion in court being dispensed with, and their creation by nothing more than pacts and stipulations, or even formless agreements followed by exercise of the right without objec- tion from the owner of the servient estate, held to make them valid and effectual not only against the latter's heirs but even against a third party acquiring from him. Hypo- thec, a security over either real or personal estate, completed by simple agreement without any conveyance or change of possession, to a great extent supplanted the old and more formal fiduda ; and the jurists in time succeeded in making it a most effectual real security, with every facility for reduc- tion into possession and eventual sale of what had been hypo- thecated, no matter into whose hands it might have passed. The law of obligations made immense strides during the period ; but except in the expansion of the so-called obliga- tiones quasi ex contractu, and the determination of the true ground of actionability of the so-called innominate con- 2 Ulp., Frag., tit. xvii. ; xix. 17. 3 For usufruct was the right to use and to appropriate the fruits or profits of a thing, preserving always its substance. SECT. 70.] TESTAMENTARY SUCCESSION. 351 tracts, the results were mostly in the direction of definition and qualification of already existing doctrine, classification of already recognised grounds of liability, and simplification of current forms of engagement. SECTION 70. THE LAW OF SUCCESSION, AND PARTICU- LARLY TESTAMENTARY TRUSTS. There were far more positive changes in the law of succes- sion than either in that of property or in that of obligation. The rise and progress of the military testament has already been explained (p. 342). The testament of the common law was still ostensibly that per aes et libram (p. 167) ; but the practice of granting "bonorum possessio secundum tdbulas to the persons named as heirs in any testamentary instru- ment that bore outside the requisite number of seals, led, from the time of Marcus Aurelius, to the frequent neglect of the time-honoured formalities of the familiae mancipatio and nuncupatio testamenti. It was his enactment, 1 declaring that an heir-at-law should no longer be entitled to dispute the last wishes of a testator on the technical ground of non- compliance with the purely formal requirements of the law, that practically introduced what Justinian calls the prae- torian testament. 2 That testamentary deeds were often very voluminous is manifest from the fragmentary remains of one or two of the first and second century. In the testa- ment of one Dasumius, of the year 109, 3 for example, we have the usual institutions and substitutions of heirs, and a series of legacies (which he desires shall be paid free of duty), an- nuities, trust- gifts, and enfranchisements of slaves ; together 1 Gai., ii. 120. 2 Inst., ii. 10, 2. Justinian makes it the outcome of the praetorian Edict. This is not quite accurate ; for under the edict a grant of bonorum possessio secundum tabulas might be defeated by a hereditatis petitio at the instance of a near agnate of the testator's, on the ground of defective execution (Gai., ii. 119). 3 Bruns, Fonte-", p. 228 sq. 352 THE LAW OF LEGACIES. [SECT. 70. with instructions about his funeral arrangements and the erection of a sepulchral monument to his memory, and a re- servation of power to make alterations and additions by codicil. About fifty years before the date of this testament an important change had been made in the law of legacies. There had been, and still continued to be, four different forms in which a legacy (legatum) could be bequeathed, 4 and which were attended with very different consequences so far as concerned the rights they conferred on legatees. To a great extent it was in the power of a testator to employ which he pleased ; but his discretion was not altogether unlimited ; for some peculiarity in the subject- matter of the bequest might make one or other of them inappropriate. For instance, while it was quite lawful for a testator to bequeath what belonged to a third party, yet he could do so validly only by imposing upon his heir the obligation of procuring it or else paying its value to the legatee (legatum per damnationem}, not by a direct gift to the latter (legatum per mndicationem). There were various other subtleties of this sort, whose disregard frequently caused the failure of a bequest. To remedy this, and in the same spirit that was animating the law in many other directions, namely, that a man's wluntas should if possible be respected notwithstanding technical defect in its mani- festation, it was enacted by a senatusconsult of the time of Nero that, whenever a legacy other than one per damna- tionem was ineffectual in the particular form in which it had been bequeathed, it should be given effect to as if it had in fact been one per damnationem, which was in most respects the most favourable for a legatee. 5 The result, though not immediate, was the simplification of legacies, paving the way for their final equiparation with trust-gifts (fideicommissa). 4 They are described in Gaius, ii. 192-223. 5 Gai., ii. 197, 218 ; Ulp., xxiv. lla. SECT. 70.] MORTIS CAUSA TRUST GIFTS. 353 These had been introduced in the time of Augustus ; 6 not by statute, but by some innovator who desired to circumvent the rule of law which prevented him leaving either inheritance or bequest to an individual who had no testamenti factio with him. 7 It was a harsh rule when applied to the case of a citizen who had married a foreigner with whom he had no conubium ; for, as the issue of the marriage were not citizens like their father but peregrins like their mother, 8 they could neither succeed him ab intestato as his sui heredes or his agnates, 9 nor could he by testament either institute them as his heirs or make them his legatees. According to Theophilus, 10 amplifying an observation of Gaius's, 11 it was to meet this very case that the fideicommissum was first devised ; a testator insti- tuted as his heir a qualified friend on whom he could rely, and requested him, as soon as he had entered on the succes- sion, to transfer the benefits of it to his peregrin children. He soon found imitators ; and their number must rapidly have multiplied after the emperor, shocked at the perfidy of a trustee who had failed to comply with the request of his testator, remitted the matter to the consuls of the day, with instructions to do in it what they thought just. So quickly did the new institution establish itself in public favour, and so numerous did the questions become as to the construction and fulfilment of testamentary trusts, that before long it was found necessary to institute a court specially charged with their determination, that of the praetor fideicommissarius. 12 9 Inst., ii. 23, 1 ; ii. 25, pr. 7 Ulp., xxii. 1. s Gai., i. 67. 9 They could not even have a claim as cognates under the praetorian rules ; for the praetors followed the rule of the jus civile to this extent, that they did not grant bonorum possessio to a person who had not testamenti factio with him whose succession was in question. 10 Theoph., Par. Inst., ii. 23, 1. u Gai., ii. 285. 12 Just., Inst., ii. 23, 1. A special court was necessary for this reason, that, because of the peculiar relation between the trustee and the beneficiaries, Z 354 OPERATION OF FIDEICOMMISSA. [SECT. 70. The employment of a trust as a means of benefiting those who were under disqualifications as heirs or legatees, as, for example, persons who had no testamenti factio, women incapacitated by the Voconian law (pp. 253, 288), unmarried and married but childless persons incapacitated by the Julian and Papia-Poppaean law (p. 304), and so on, was in course of time prohibited by statute ; 13 but that did not affect its general popularity. For, whether what was contemplated was a transfer of the universal hereditas or a part of it to the beneficiary (fideicommissum hereditatis), or only of some particular thing (Jideicommissum rei singularis), a testamentary trust had various advantages over either a direct institution or a direct bequest (legatwn). In theory the imposition upon the heir of a trust in favour of a bene- ficiary, whether it required him to denude of the whole or only a part of the inheritance, did not deprive him of his character of heir or relieve him of the responsibilities of the position ; and at common law therefore he was entitled to decline the succession, often to the great prejudice of the beneficiary. In order to avoid such a mischance, and at the same time to regulate their relations inter se and towards debtors and creditors of the testator's, it became the practice for the parties to enter into stipulatory arrangements about the matter ; but these were to some extent rendered super- fluous by two senatusconsults, the Trebellian in the time of Nero, and the Pegasian in that of Vespasian, 14 which at once secured the beneficiary against the trustee's (i.e., the heir's) repudiation of the inheritance, protected the latter from all risk of loss where he was trustee and nothing more, and it would have been difficult to adjust an issue for remit to an ordinary judex formulating precisely the question between them ; consequently there was no such remit, the case being heard from first to last and finally disposed of by the praetor fideicommissarius himself, in what was called an extraordinaria cognitio. See infra, 72. 13 Gai., ii. 285-287. 14 For their provisions see Gai., ii 252-259. They were amalgamated and simplified by Justinian, as described in Inst., ii. 23, 7. SECT. 70.] ADVANTAGES OF FIDEICOMMISSA. 355 enabled the former to treat directly with debtors and credi- tors of the testator's and himself ingather the corporeal items of the inheritance. It was one of the advantages of a trust-bequest, whether universal or singular, that it might be conferred in a codicil, even though unconfirmed by any relative testament. 15 The codicil (codicillj), also an invention of the time of Augustus, was a deed of a very simple nature. It was inappropriate either for disherison of sui or institution of an heir ; but if confirmed by testament might contain direct bequests, manu- missions, nominations of tutors, and the like ; and whether confirmed or unconfirmed might, as stated, be utilised as a vehicle for trust-gifts. Latterly it was held operative even in the absence of a testament, the trusts contained in it being regarded as burdens on the heir-at-law (p. 423). The most important changes in the law of intestate suc- cession during the period were those accomplished by the Tertullian and Orphitian senatusconsults, fruits of that re- cognition of the precepts of natural law which in so many directions was modifying the doctrines of the jus civile. The first was passed in the reign of Hadrian, the second in the year 178, under Marcus Aurelius. Down to the time of the Tertullian senatusconsult a mother and her child by a marriage that was unaccompanied with manus stood related to each other only as cognates, being in law members of different families ; consequently their chance of succession to each other was remote, being postponed to that of their respective agnates to the sixth or seventh degree. The purpose of the senatusconsult 16 was to prefer a mother to all agnates of her deceased child except father and brother and sister ; father and brother excluded her ; but with a sister of the deceased, and in the absence of father or brother, she shared equally. While there can be little doubt that it was natural considerations that dictated this amendment, yet its 15 Ulp., xxv. 12. 16 Inst., iii. 3. 356 SUCCESSION BETWEEN MOTHER AND CHILD. [SECT. 70. authors were too timid to justify it on the abstract principle of common humanity, lest thereby they should seem to impugn the wisdom of the jus civile ; and so they confined its application to women who had the jus liberorum, i.e., to women of free birth who were mothers of three children and freedwomen who were mothers of four, thus making it ostensibly a reward of fertility. 17 The Orphitian senatus- consult 18 was the counterpart of the Tertullian. It gave children, whether legitimate or illegitimate, a right of suc- cession to their mother in preference to all her agnates ; and subsequent constitutions extended the principle, admitting them to the inheritance not only of their maternal grand- parents but also of their paternal grandmother. 17 This limitation to mothers of three or four children held its place till repealed by Justinian (see tit. cit., 4). 18 Inst., iii. 4. SECT. 71.] FORMULAE SYSTEM OF PROCEDURE. 357 CHAPTER FOURTH. JUDICIAL PROCEDURE. SECTION 71. THE FORMULAE SYSTEM. 1 THE ordinary procedure of the first three centuries of the empire was still two-staged ; it commenced before the praetor (injure), and was concluded before a judex (in judicio). But the legis actiones ( 33-37, 41) had given place to prastorian formulae. Under the sacramental system parties, and par- ticularly the plaintiff, had themselves to formulate in statu- tory or traditional words of style the matter in controversy between them ; and as they formulated, so did it go fpr trial to centumviral court or judex or arbiters, with the not in- frequent result that it was then all too late discovered that the real point in the case had been missed. Under the formular system parties were free to represent their plaint and defence to the praetor in any words they pleased ; the plaintiff asking for a formula and usually indicating the style on the alburn that he thought would suit his purpose, and the defendant demanding when necessary an exception, i.e., a plea in defence, either praetorian or statutory, that without traversing the facts or law of the plaintiff's case, yet avoided his demand on grounds of equity or public policy. It was for the praetor to consider and determine whether the action or exception should or should not be granted (dare, denegare actionem, exceptionem), and if granted, 1 See Keller, Rom. CP., 23-43 ; Bethniann-Hollweg, Gesch. d. CP., vol. ii. 81-87 ; Bekker, Aktionen, vol. i. chaps. 4-7, vol. ii. chaps. 15, 19, 20 ; Baron, Gesch. d. R. R., vol. i. 202-215 ; Buonamici, Procedural, vol. i. pp. 86-122. 358 TRANSITION FROM LEGIS ACTIO [SECT. 71. whether it should be according to the style exhibited on the album (p. 255) or a modification of it. The result he em- bodied in a written and signed appointment to a judge, whom he instructed what he had to try and empowered to pronounce a finding either condemning or acquitting the defendant. This writing was the formula. Although it was not until the early empire that this system of procedure attained its full development, yet it had its com- mencement two centuries before the fall of the republic. Gaius 2 ascribes its introduction and definitive establishment to the Lex Aebutia, probably of the second decade of the sixth century of the city, and two judiciary laws of the time of Augustus, all three referred to in a previous section ( 44). The Aebutian law, of which unfortunately we know very little, is generally supposed to have empowered the praetors (1) to devise a simpler form of procedure for causes already cognizable per legis actionem, (2) to devise forms of action to meet cases not cognizable under the older system, and (3) themselves to formulate the issue and reduce it to writing. It was by no means so radical a change as is sometimes supposed. There were formulae employed by the prastor both in the procedure per judicis postulationem ( 35) and in that per condictionem ( 41). The difference between them and the formulae of the Aebutian system was this, that the former were in part mere echoes of the statutory words of style uttered by the plaintiff, and that they were not written but spoken in the hearing of witnesses. A large proportion of the personal actions of the for- mular system were evolved out of the legis actio per con- dictionem. The sequence of operations may have been something like this. Taking the simplest form of it, the action for certa pecunia under the Silian law, the first step was to drop the formal condictio 3 from which it derived its 2 Gai., iv. 30. 3 Gai., iv. 18. SECT. 71.] TO PROCEDURE PER FORMULAM. 359 character of legis actio, thus avoiding a delay of thirty days ; the plaintiff stated his demand in informal words, and, if the defendant denied indebtedness, the praetor straightway formulated a written appointment of and instruction to a judge, embodying in it the issue in terms substantially the same as those he would have employed under the earlier procedure : " Titius be judge. Should it appear that N. N. ought to pay (dare oportere) 50,000 sesterces to A. A., in that sum, Judge, condemn N. N. to A. A. ; 4 should it not so appear, acquit him." This was no longer the legis actio per condictionem but the certi condictio of the formular system. The condictio triticaria of the same system ran on the same lines : " Titius be judge. Should it appear that N. N. ought to give A. A. the slave Stichus, then, whatever be the value of the slave, in that condemn N. N. to A. A.," and so on. In both of these examples the formula included only two of the four clauses that might find place in it, 5 an " intention " and a " condemnation." The matter of claim in both cases was certain, so much money in one case, a slave in the other ; but while in the first the con- demnation also was certain, in the second it was uncertain. What if the claim also was uncertain, say a share of the profits of a joint adventure assured by stipulation ? It was quite competent for the plaintiff to condescend on a definite sum, and claim that as due to him ; but it was very hazard- ous ; for unless he was able to prove the debt to the last sesterce he got nothing. To obviate the risk of such failure, the praetors devised the incerti condictio, whose formula com- menced with a " demonstration " or indication of the cause 4 In the typical Roman styles of actions the plaintiff was usually called Aulus Agerius, and the defendant Numerius Negidius. 8 Gaius enumerates them as the demonstratio, intentio, adjudicatio, and condemnatio, and describes their several functions in iv. 39-43. Besides these, a formula might be preceded by a praescriptio (Gai., iv. 130-137) ; and have incorporated in it fictions ( 32-38), exceptions ( 115-125), and replications, duplications, &c. ( 126-129). 360 THE FORMULAE SYSTEM. [SECT. 71. of action, and whose " intention " referred to it and was conceived indefinitely : " Titius be judge. Whereas A. A. stipulated with N. N. for a share of the profits of a joint adventure, whatever it appears that N. N. ought in respect thereof to give to or do for A. A. (dare facere oportere), in the amount thereof condemn N. N.," and so on. 6 Once this point was attained, further progress was comparatively easy, the way being open for the construction of formulae upon illiquid claims arising from transactions in which the prac- tice of stipulation gradually dropped out of use (p. 284) ; till at last the bonae fidei judicia were reached, marked by the presence in the " intention " of the words ex fide bona " whatever in respect thereof N. N. ought in good faith to give to or do for A. A." In the case of real actions, the transition from the legis actiones to the formulae followed a different course. The Aebutian law did not abolish the procedure per sacramentum when reference was to be to the centumviral court on a question of quiritarian right. In the time of Cicero, although the petitory formula was sometimes employed, 7 that court was still in full activity ( 33, note 13) ; but by the time of Gaius it is doubtful if it was resorted to except for trial of questions of inheritance. In his time questions of property were raised either per sponsionem or per formulam petitoriam. The procedure by sponsion must be regarded as the bridge between the sacramental process and the peti- tory vindicatio. In the first as in the second the ques- tion of real right was determined only indirectly. The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty-five sesterces in 6 This was specifically called the actio ex stipulatu, but really nothing more than a variety of the condiotio incerti. The later actions on the consensual contracts, and on all the nominate real contracts except mutuum, in like man- ner had specific names, but in fact were just incerti condictiones in the larger sense of the phrase. 7 See an example in Cic., in Verr. II., ii. 12, 31. SECT. 71.] FORMULAE IN JUS AND IN FACTUM. 361 the event of the thing in dispute being found to belong to the former ; and at the same time the defendant gave sureties for its transfer to the plaintiff, with all fruits and profits, in the same event. The formula that was adjusted and remitted to a judge ex facie raised only the simple question whether the twenty-five sesterces were due or not : the action was in form a personal, not a real one, and there- fore appropriately remitted to a single judex instead of to the centum viral tribunal. But judgment on it could be reached only through means of a finding (sententia) on the question of real right ; if it was for the plaintiff, he did not claim the amount of the sponsion, but the thing which had been found to be his ; and if the defendant delayed to deliver it with its fruits and profits, the plaintiff had re- course against the latter's sureties. 8 The petitory formula was undoubtedly of later introduction and much more straightforward. Like the certi condictio, it contained only " intention " and " condemnation." It ran thus : " Titius be judge. Should it appear that the slave Stichus, about whom this action has been raised, belongs to A. A. in quiritary right, then, unless the slave be restored, whatever be his value, in that, Judge, you will condemn N. N. to A. A. ; should it not so appear, you will acquit him." The formulae given above, whether applicable to real or personal actions, are so many illustrations of the class known Q& formulae juris civilis or in jus conceptae. The characteristic of such a formula was that it contained in the " intention " one or other of the following phrases ejus esse ex jure Quiritium, adjudicari oportere* dari oportere, dari fieri opor- tere, or damnum decidi oportere. 10 Such a formula was em- 8 Gai., iv. 91-96. 9 Employed only in the divisory actions, i.e., for dividing common property, partitioning an inheritance, or settling boundaries ; the demand was that the judge should adjudicate (or award in property) to each of the parties such a share as he thought just. 10 Employed in certain actions upon delict, where the old penalties of death, 362 ACTIONES DIRECTAE AND UTILES. [SECT. 71. ployed where the right to be vindicated or the obligation to be enforced had its sanction in the jus civile, whether in the shape of statute, consuetude, or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetors' edict, formulae so conceived were inappropriate and incompetent. The actions employed in such cases were actiones juris honorarii, and these either actiones utiles, or actiones in factum. The first were adap- tations of actions of the jus civile to cases that did not pro- perly fall within them ; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile. 11 Of the actiones utiles some were called actiones ficticiae. Resort to a fiction is sometimes said to be a confession of weakness, and adversely criticised accordingly. But every amendment on the law is an admission of defect in what is being amended ; and it was in sympathy with the spirit of Roman jurisprudence, when it found an action too narrow in its definition to include some new case that ought to fall within it, rather, by feigning that the new case was the same as the old, to bring it within the scope of the existing and familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy. A bonorum possessor (p. 291) held a position unknown to the jus civile ; he was not an heir, and therefore not entitled off-hand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors. The praetor could have slavery, or talion had in practice been transmuted into money payments, and the defendant consequently called upon to make a settlement in that way. 11 In a few instances (not satisfactorily explained) there was both civil and praetorian remedy for the same wrong ; for Gaius observes (iv. 45) that in commodate and deposit failure of the borrower or depositary to return the thing lent to or deposited with him gave rise to actions that might be formu- lated either in jus or in factum. In the same section he gives the styles of actiones depositi in jus and in factum conceptae ; their comparison is instruc- tive. SECT. 71.] ACTIONES FICTICIAE. 363 had no difficulty in devising quite new actions to meet his case ; but he preferred the simpler expedient of adapting to it those of an heir, by introducing into the formula a fiction of civil heir ship. 12 So he did with the bonorum emptor or purchaser of a bankrupt's estate at the sale of it in mass by his creditors. Emptio bonorum was a purely praetorian institution, 13 and the praetor, if he had thought fit, could easily have fortified the purchaser's acquisition by giving him praetorian remedies for recovering the property and suing the debtors of the bankrupt ; but here again he fol- lowed the simpler course of giving him, as if he were a universal successor, the benefit of an heir's actions by help of a fiction of heirship. 14 A peregrin could not sue or be sued for theft or culpable damage to property, for the XII Tables and the Aquilian law applied only to citizens ; but he could both sue and be sued under cover of a fiction of citizenship. 15 A man who had acquired a res mancipi on a good title but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner ; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it. But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usuca- pion, 16 the extremely useful Publician action referred to in a previous section ( 52). These are examples of actiones ficticiae, actions of the jus civile adapted by this very simple expedient to cases to which otherwise they would have been inapplicable, and that formed one of the most important varieties of the 12 Gai., iv. 34. ]s Gai., iii. 77-81. 14 Gai., iv. 35. Theophilus (Par. Inst., iii. 12) calls the bonorum emptor irpatTwpios SidSoxos (praetorian successor) of the bankrupt. 18 Gai., iv. 37. M Gal, iv. 36. 364 ACTIONES IN FACTUM. [SECT. 71. actiones utiles. Quite different was the course of procedure in the actiones in factum, whose number and varieties were practically unlimited, although for the most part granted in pursuance of the praetor's promise in the edict that under such and such circumstances he would make a remit to a judex (judicium dabo), 17 and formulated in accordance with the relative skeleton styles also published on the album. A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotiorum gestorum, actio hypothecaria, actio de pecunia constituta, actio vi bonorum raptorum, actio de superftcie, &c., the generic name actio in factum being usually confined to the innominate ones. Their formulae, unlike those in jus conceptae, submitted no question of legal right for the consideration of the judge, but only a question of fact, proof of which was to be followed by a condemnation. That of the actio de dolo, for example, ran thus : " Titius be judge. Should it appear that, through the fraud of N. N., A. A. was induced to convey and give up possession of his farm (describing it) to N. N., then, Judge, unless according to your order N. N. restores it, you will condemn him in damages to A. A. ; if it shall not so appear, you will acquit him." The words nisi arbitratu tuo restituat in this formula are an illustration of a qualification of the condemnatio of fre- quent occurrence in certain classes of actions. Under the formular system a judge, in condemning a defendant, had no alternative but to do so in money ; 18 the amount being sometimes definitely fixed in the formula, sometimes limited to a maximum, and sometimes left entirely to his discre- tion. 19 But it frequently happened, especially in actions for 17 Examples : " Si quis negotia alterius . . . gesserit, judicium eo nomine dabo " (Dig., iii. 5, 3, pr.) ; " Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et justa causa esse videbitur, judicium dabo " (Dig., iv. 3 1, 1) ; " Nautae caupones stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo" (Dig., iv. 9, 3, 1) ; " Quod quis commo- dasse dicetur, de eo judicium dabo " (Dig., xiii. 6, 1, pr). 18 Gai., iv. 48. 19 Gai., iv. 50, 51. SECT. 71.] ACTIONES ARBITRARIAE. 365 restitution or exhibition of a thing, that pecuniary damages might not be the most appropriate result of the procedure ; and so the judge was empowered, once the plaintiff had made out his case, to determine what, in all the circum- stances, and in fairness and equity, would be sufficient satisfaction by the defendant. 20 It is possible that in some instances this discretionary power may have been conferred on the judge in such general words as " nisi arbitratu tuo N. N. A A satisfaciat ; " but in actions for restitution or exhibition, if satisfaction was not given voluntarily, it was usually specific performance that was ordained, under such qualifications as to mode, time, and place as the judge thought proper. It was only when default was made in obeying his order that the judge proceeded to condemna- tion in damages, the amount being assessed by the plaintiff himself under oath. Actions in which such a discretionary power was conferred on the judge were called arbitrary (actiones arbitrariae). It is noteworthy that the list of them given by Justinian 21 contains none but praetorian actions. But it is not therefore to be inferred that in actions of the jus civile a judge had no such discretion. On the contrary, Gaius says that it was his duty to acquit a defendant who made satisfaction to the plaintiff at any time after litiscontestation. 22 There was no question that he was bound to do so ex officio in a lonae fidei action ; and the doubt of the Proculians whether he was bound or even entitled to do so in those that were stricti juris created no real difficulty, as it was apparently the practice in actions of that sort, when the complaint was of non-restitution, to 20 Permittitur judici ex bono et aequo secundum cujusque rei, de qua actum eat, naturam aestimare, quemadmodum actori satisfied oporteat " (Just., Inxt., iv. 6, 31). 21 Jnst., I.e. The passage in which Gaius probably dealt with them is almost entirely illegible in the Verona MS.; it is page 227, and would come between 114 and 115 of book iv. 22 Gai., iv. 114. 366 USE OF "EXCEPTIONS." [SECT. 71. introduce the words nisi restituat. This did not, it is true, empower the judge to determine what, short of restitution, might in the circumstances be deemed sufficient satisfaction to the plaintiff; but it authorised, if not compelled, him to abstain from condemning a defendant who had made full restitution. 23 Another clause that was very frequently incorporated in a formula was what was known as an exception (exceptio), a plea in defence that excluded condemnation on grounds of equity or public policy, even when the plaintiff had clearly established the matter of fact and law embodied in his intentio. Thus, suppose A. to have given B. his stipulatory promise for 1000 sesterces, and B. to have thereafter infor- mally agreed not to sue upon the debt : the agreement, as a mere nudum pactum, was of no moment according to the jus civile, and so was no ipso jure bar to an action at B.'s instance, it had not affected the dare oportere. Such an action, however, in face of the agreement, involved a breach of faith on B.'s part, which the praetor could not tolerate. He had announced in his album that he would give effect to any informal pact honestly entered into, that neither con- travened a statute nor wronged either of the parties to it ; 24 and so, when B. applied for a formula, A. was entitled to have inserted in it an instruction to the judge that condem- nation was to be conditional on A.'s failure to prove the alleged pactum de non petendo (" si inter A A. et N. N. non convenit ne ea pecunia peteretur "). 25 So where it was alleged that the money promised was in repayment of a loan that in fact had never been advanced ; that the promise had been induced by fraudulent misrepresentations, extorted by intimidation, or given under excusable error of fact ; that the matter had been compromised, and so on, in all these cases - 3 On the actiones arbitrariae and the judge's arbitrium, see Lenel, Beitrdge, p. 80 sq. ; Sohm, Inst. d. R. R., p. 136 sq. 2 * Ulp., lib. 4 ad edict., in Dig., ii. 14, fr. 7, 7. 28 Gai., iv. 119. SECT. 71.] ELASTICITY OF THE FORMULA. 367 the exception formulated by the praetor was the assertion of the equity of the jus honorarium in derogation of the strictness of the jus civile. Sometimes a defendant, instead of conde- scending on a particular fact which might have entitled him to a specific exception, deemed it more for his advantage to have words inserted in the formula which reserved to him the right to plead any unfair dealing on the part of the plaintiff that in equity disentitled him to demand condem- nation ; this was the so-called exceptio doli (generalis), " si non in ea re quid dolo malo A 1 A* fiat." It was held to be implied in all bonae fidei actions, " exceptio doli inest bone fidei judiciis;" the quidquid dare facere oportet ex fide lona of their " intention " entitled the judge, without any exception formally pleaded, to take into consideration any suggestion by the defendant of unfair conduct on the part of the plaintiff. 26 It is unnecessary to go into any explanation of the conse- quences of defects in the formula ; or of the procedure in jure before it was adjusted, or in judicio afterwards ; or of appeal for review of the judgment by a higher tribunal ; or of execution (which was against the estate of the judgment- debtor, and took the form of incarceration only when his goods could not be attached). Enough has been said to show how elastic was this procedure, and how the praetorian formulae, in conjunction with the relative announcements in the Edict, supplied the vehicle for the introduction into the law of an immense amount of new doctrine. The system was fully developed before Julian's consolidation of the Edict ; and the statutory recognition which the latter then obtained did nothing to impair its efficiency. 26 On the subject of exceptions see Lenel, Ueber Ursprung u. Wirkung d. Exceptionen, Heidelb., 1876, and literature there referred to ; Sohm, Inst. d. R. R., p. 141 sq. The latter explains very distinctly and in short compass the nature of exceptions founded on statute, such as the Velleian and Macedonian senatusconsults, and the function of the exception in actiones infactum. 368 PROCEDURE EXTRA ORDINEM. [SECT. 72. SECTION 72. PROCEDURE " EXTRA ORDINEM." l The two-staged procedure, first in jure and then in judicio, constituted the ordo judiciorum privatorum. Early in the empire, however, it became the practice in certain cases for the magistrate to abstain from adjusting a formula and making a remit to ajudex, and to keep the cause in his own hands from beginning to end. This course was adopted sometimes because the claim that was being made rested rather on moral than on legal right, and sometimes in order to avoid unnecessary disclosure of family misunderstandings. Thus the earliest questions that were raised about testamen- tary trusts were sent for consideration and disposal to the consuls ; apparently because, in the existing state of juris- prudence, it was thought incompetent for a beneficiary to maintain in reference to the heir (who had only been requested to comply with the testator's wishes) that he was bound in law to pay him (dare oportere) his bequest. Had the diffi- culty arisen at an earlier period and in the heyday of the constructive energy of the praetors, they would probably have solved it with an actio in factum. As it was, it fell to the emperors to deal with it, and they adopted the method of extraordinaria cognitio ; the jurisdiction which they in the first instance conferred on the consuls being before long confided to a magistrate specially designated for it, the praetor fideicommissarius. Questions between tutors and their pupil wards in like manner began to be dealt with extra ordinem, the cognition being entrusted by Marcus Aurelius to a praetor tutelaris ; while fiscal questions in which a private party was interested went to a praetor Jisci, whose creation was due to Nerva. Claims for aliment between parent and child or patron and freedman rested on 1 See Keller, Rom. CP., 81 ; Bethmann-Hollwe?, Gesch. d. CP., vol. ii. 122 ; Bekker, AMonen, vol. ii. chap. 23 ; Baron, Gesch. d. R. R., vol. i. 220 ; Buonamici, Procedural, p. 398 sq. SECT. 73.] REMEDIES FLOWING FROM THE IMI'ERIUM. 309 natural duty rather than legal right ; they could not there- fore well be made the subject-matter of a judicium, and con- sequently went for disposal to the consuls or the city prefect, and in the provinces to the governor. Questions of status, especially of freedom or slavery, at least from the time of Marcus Aurelius, were also disposed of extra ordinem ; and so were claims by physicians, advocates, and public teachers for their honoraria, and by officials for their salaries, the Eomans refusing to admit that these could be recovered by an ordinary action of location. In all those extraordinary cognitions the procedure began with a complaint addressed to the magistrate, instead of an in jus vocatio of the party complained against ; it was for the magistrate to require the attendance of the latter (evocatio) if he thought the com- plaint relevant. The decision was a judicatum or decretum according to circumstances. SECTION 73. JURAL REMEDIES FLOWING DIRECTLY FROM THE MAGISTRATE'S Great as were the results for the law of the multiplication and simplification of judicia through the formular system, it may be questioned whether it did not benefit quite as much from the direct intervention of the prastors in certain cases, in virtue of the supreme power with which they were in- vested. It manifested itself principally in the form of (1) interdicts ; (2) praetorian stipulations ; (3) missio in possessi- onem ; and (4) in integrurn restitutio. 1. The interdicts 2 have already been referred to as in use under the regime of the jus civile (p. 218) ; but their number 1 Keller, 74-80 ; Bethmann-Hollweg, vol. ii. 98, 119-121 ; Bekker, vol. ii. chaps. 16-18 ; Baron, vol. i. 216-219. 2 In addition to the authorities in last note, see K. A. Schmidt, Das Intcr- diktenverfahren d. Rom. in yeschichtl. Entwickelung, Leipsic, 1853 ; Mache'lard, Thioric des interdits en droit romain, Paris, 1864 ; Buonamici, Procedura, pp. 420-480. 2 A 370 INTERDICTS AND THEIR VARIETIES. [SECT. 73. and scope were vastly increased under that of the jus hoiw- rarium. The characteristic of the procedure by interdict was this, that in it the praetor reversed the ordinary course of things, and instead of waiting for an inquiry into the facts alleged by a complainer, provisionally assumed them to be true, and pronounced an order upon the respondent which he was bound either to obey or show to be unjustified. The order pronounced might be either restitutory, exhibitory (in both cases usually spoken of in the texts as a decree), or prohibitory : restitutory when, for example, the respon- dent was ordained to restore something he was alleged to have taken possession of by violent means, remove impedi- ments he had placed in the channel of a river, and so on ; exhibitory, when he was ordained to produce something he was unwarrantably detaining, e.g., the body of a freeman he was holding as his slave, or a will in which the complainer alleged that he had an interest; prohibitory, as, for example, that he should not disturb the status quo of possession as between the complainer and himself, that he should not interfere with a highway, a watercourse, the access to a burial-place, and so forth. If the respondent obeyed the order pronounced in a restitutory or exhibitory decree, there was an end of the matter. But frequently, and perhaps more often than not, the interdict was only the commencement of a litigation, facilitated by sponsions and restipulations, in which the questions had to be tried (1) whether the interdict or injunc- tion was justified, (2) whether there had been breach of it, and (3) if so, what damages were due in consequence. The procedure, therefore, was often anything but summary. In the possessory interdicts uti possidetis and utrubi in particular it was extremely involved ; due to some extent to the fact that they were double interdicts (interdicta duplicia), i.e., addressed indifferently to both parties. Gaius says, 3 but, as most jurists think, without adequate grounds for it, 3 Gai., iv. 148. SECT. 73.] UTI POSSIDETIS AND UTRUBI. 371 that they had been devised as ancillary to a litigation about ownership, and for the purpose of deciding which of the parties, as possessor, was to have the advantage of standing on the defensive in the rei vindicatio. ^ That they were so used in his time, as in that of Justinian, 5 cannot be doubted. But it is amazing that they should have been, for they were infinitely more cumbrous than the vindicatio to which they led up. 6 Take the interdict uti possidetis, (which applied to immovables, as utrubi did to movables). Both parties being present, the prsetor addressed them to this effect : " I forbid that one of you who does not possess the house in question to use force to prevent him who does possess it from con- tinuing to do so as at present, provided always that his possession is due neither to clandestine or forcible exclusion of his adversary, nor to a grant from him during pleasure." It is manifest that this decided nothing ; it was no more than a prohibition of disturbance of the status quo ; it left the question entirely open which of the parties it was that was in possession, and which that was forbidden to interfere. The manner of its explication was somewhat singular. Each of the parties was bound at once to commit what in the case of one of them must have been a breach of the interdict, by a pretence of violence offered to the other (vis ex conventu) ; 7 each of them was thus in a position to say to the other " We have both used force ; but it was you alone that did 4 If that had been their original purpose, they must have been unknown as long as the rei vindicatio proceeded per sacramentum ; for in the sacramental real action both parties vindicated, and both consequently were at once plain- tiffs and defendants (supra, 34, note 5). 6 Inst., iv. 16, 4. But long before the time of Justinian they had been greatly simplified, and really converted into an action, though retaining the old name. 6 See the (imperfect) description of the procedure in Gai., iv. 148-152, 160, 166-170. 7 So Gaius calls it : it was probably the same thing as the vis moribus facto, referred to by Cicero, Pro Caec., 1, 2 ; 8, 22. See Kappeyne van de Copello, " Ueber das vim facere beim interdictum uti possidetis," in his Abhandl. zum Rom. Staats- und Itechttlehre (Stuttgart, 1885), pp. 115 sq. 372 PRAETORIAN STIPULATIONS. [SECT. 73, it in defiance of the interdict, for it is I that am in- posses- sion." The interim enjoyment of the house was then awarded to the highest bidder, who gave his stipulatory promise to pay the rent to his adversary in the event of the latter being successful in the long-run ; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict ; and on these, four in number, formulae were adjusted and sent to a judex for trial. If the procedure could not thus be explicated, because either of the parties declined to take part in the ms ex conventu, or the bidding, or the sponsions and restipu- lations, he was assumed to be in the wrong, and, by what was called a " secondary " interdict, required at once to yield up his possession or detention, and to abstain from disturbing the other in all time coming. 8 Whatever we may think of the action- system of the Romans in the period of the classical jurisprudence, one cannot help wondering at a procedure so cumbrous and complex as that of their possessory interdicts. 2. A prastorian stipulation 9 was a stipulatory engagement imposed upon a man by a magistrate or judge, in order to secure a third party from the chance of loss or prejudice through some act or omission either of him from whom the engagement was exacted or of some other person for whom he was responsible. Although called praetorian, because the cases in which such stipulations were exigible were set forth in the Edict, yet there can be no question that they origi- nated in the jus civile; in fact they were just a means of assuring to a man in advance the benefit of an action of the 8 Kappeyne van de Copello (p. 166 sq.) holds that the secondary interdict (int. secundarium) was not a contumacial procedure, but one in which the party declining vim facere, &c., (because he knew he could not establish lawful possession in his own person), was still entitled to appear as defendant, and require his adversary to prove his possession as the foundation of a restitutory or prohibitory decre -. 9 To the authorities in note 1 add Schirmer, Ueber die pratorischen Judicial- stipulationen, Greifswald, 1853 ; Buonamici, Proccdura, p. 499 sq. SECT. 73.] MISSIONES IN POSSESSIONEM. 373 jus civile, whereby he might obtain reparation for any injury suffered by him through the occurrence of the act or omis- sion contemplated as possible. Ulpian classified them 10 as cautionary (cautionales), judicial, and common. The first were purely precautionary, and quite independent of any action already in dependence between the party moving the magistrate to exact the stipulation and him on whom it was desired to impose it. There were many varieties of them, connected with all branches of the law ; for example, the cautio damni infecti, security against damage to a man's property in consequence say of the ruinous condition of his neighbour's house, the cautio usufructuaria that property usufructed should revert unimpaired to the owner on the expiry of the usufructuary's life interest, the aedilian stipu- lation against faults in a thing sold, and so forth. In all these cases the stipulation or cautio was a guarantee against future loss or injury, usually corroborated by sureties, and made effectual by an action on the stipulation in the event of loss or injury resulting. Judicial stipulations, according to Ulpian's classification, were those imposed by a judge in the course of and with reference to an action in dependence before him, as, for example, the cautio judicatum solvi (that the defendant would satisfy the judgment), the cautio de dolo (that a thing claimed in the action would not be impaired in the meantime), and many others. Common were such as might either be imposed by a magistrate apart from any depending action or by a judge in the course of one; such as that taken from a tutor or curator for the faithful ad- ministration of his office, or from a procurator that his principal would ratify what he was doing. 3. Missio in possessionem was the putting of a person in possession either of the whole estate of another (missio in bona*) or of some particular thing belonging to him (missio in rem). The first was by far the most important. It was 10 Dig., xlvi. 5, 1. 374 IN INTEGRUM RESTITUTIO. [SECT. 73. resorted to as a means of execution, not only against a judg- ment-debtor, but also against a man who fraudulently kept out of the way and thus avoided summons in an action, or who, having been duly summoned, would not do what was expected on the part of a defendant ; against the estate of a person deceased to which no heir would enter, thus leaving creditors without a debtor from whom they could enforce payment of their claims ; and also against the estate that had belonged to a person who had undergone capitis deminutio ( 29), if the family-head to whom he had subjected himself refused to be responsible for his debts. Missio in rem was granted, for example, when a man refused to give cautio damni infecti ; the applicant was then put in possession of the ruinous property for his own protection. 4. In integrum restitutio, 11 reinstatement of an individual, on grounds of equity, in the position he had occupied before some occurrence that had resulted to his prejudice, was one of the most remarkable manifestations of the exercise of the imperium. It was not that the individual in question, either directly by action or indirectly by exception, obtained a judgment that either rendered what had happened com- paratively harmless or gave him compensation in damages for the loss he had sustained from it, but that the magistrate and it could only be the prastor, the urban or praetorian prefect, a provincial governor, or the emperor himself at his own hand pronounced a decree that as far as possible restored the status quo ante. It was not enough, however, to entitle a man to this extraordinary relief that he was able to show that he had been taken advantage of to his hurt, and that no other adequate means of redress was open to him ; he required in addition to be able to found on some subjective ground of restitution, such as minority, or, if he was of full age, intimidation which could not be resisted, 11 In addition to the authorities in note 1, see Savi^ny, System, vol. vii. 315-343 ; Buonamici, Procedura, p. 480 sq. SECT. 73.] IN INTEGRUM RESTITUTIO. 375 mistake of fact, fraud, absence or the like. What should be held to amount to a sufficient ground of restitution, either objective or subjective, was at first left very much to the discretion of the magistrate ; but even here practice and jurisprudence in time fixed the lines within which he ought to confine himself, and made the principles of in integrum restitutio as well settled almost as those of the actio quod metus causa or the actio de dolo. PART Y. THE PERIOD OF CODIFICATION. Diocletian to Justinian. PART Y. THE PERIOD OF COD I PICA TION. Diocletian to Justinian. CHAPTER FIRST. HISTORICAL EVENTS THAT INFLUENCED THE LAW. SECTION 74. SUPREMACY OF THE EMPERORS AS SOLE LEGISLATORS. FROM the time of Diocletian downwards, the making of the law was exclusively in the hands of the emperors. The senate still existed, but shorn of all its old functions alike of government and legislation. The responses of patented jurists were a thing of the past. It was to the imperial consistory alone that men looked for interpretation of old law or promulgation of new. In the reign of Diocletian rescripts (p. 313) were still abundant ; but the constitutions in the Theodosian and Jus- tinianian Codes that date from the time of Constantino downwards are mostly of a wider scope, and of the class known as general or edictal laws (leges generates, edictales). It would be wrong, however, to infer that rescripts had ceased ; for Justinian's Code contains various regulations as to their form, and the matter is .dealt with again in one of his Novels. The reason why so few are preserved is that they were no longer authoritative except for the parties to whom they were addressed. This was expressly 380 DIRECT IMPERIAL LEGISLATION. [SECT. 74. declared by the Emperors Arcadius and Honoring in 398, in reference to those in answer to applications for advice from officials ; and it is not unreasonable to assume that a limitation of the same sort had been put at an earlier date on the authority of those addressed to private parties. Puchta is of opinion that the enactment of Honorius and Arcadius applied equally to decreta (p. 314) ; for this reason, that during this period matters of litigation did not come under the cognisance of the emperors except on appeal, and that under the new arrangements of Constantino the judg- ment of affirmance or reversal was embodied in a rescript addressed to the magistrate from whom the appeal had been taken. The rule of Arcadius and Honorius was renewed in 425 by Theodosius and Valentinian, who qualified it, how- ever, to this extent, that if it contained any distinct indi- cation that the doctrine it laid down was meant to be of general application, then it was to be received as an edict or lex generalis. To this Justinian adhered in so far as rescripts in the old sense of the word were concerned ; but declared that his judgments (decreta) should be received everywhere as laws of general application, and that so should any interpretation given by him of a lex generalis, even though elicited by the petition of a private party. The imperial edicts, adjusted in the consistory, were usually addressed to the people, the senate, or some official civil, military, or ecclesiastical, according to the nature of their subject-matter. The mode of publication varied ; but when sent down to an official it was his duty to see to the matter. After the partition of the empire, as each Augustus had the power of legislating for the whole empire, constitu- tions that affected the interests of both East and West were frequently the result of consultation ; at other times there was a communication of a new law by pragmatic sanction from its author to his colleague, the latter by edict ordering its publication if thought expedient. In style the edicts SECT. 75.] INFLUENCE OF CHRISTIANITY. 381 compare very unfavourably with the senatusconsults and rescripts of the second and third century, being uniformly verbose and in many cases obscure. It is not in the least surprising that the compilers of the Lex Romano, Visi- gothorum thought them to stand in need of an " interpre- tatio ; " the pity is that the latter is itself so far from clear. SECTION 75. ESTABLISHMENT OF CHRISTIANITY AS THE STATE RELIGION.* A disposition has sometimes been manifested to credit nascent Christianity with the humaner spirit that began to operate on some of the institutions of the law in the first century of the empire, but which in a previous section ( 55) has been ascribed to the infiltration into the jus civile of doctrines of the jus naturale, the product of the philosophy of the Stoa. The teaching of Seneca did quite as much, nay, far more, to influence it then than the lessons that were taught in the little assemblies of the early con- verts. It would be a bold thing to say that, had Chris- tianity never gained its predominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years progressed, most of those amendments in the law of the family and the law of succes- sion that were amongst the most valuable contributions of the imperial constitutions to the private law. It may well be that that spirit was intensified and rendered more active with the growth of Christian belief; but not until the latter had been publicly sanctioned by Constantino, and by Theodosius declared to be the religion of the state, do we meet with incontestable records of its influence. We find them in enactments in favour of the Church and its pro- 1 Troplong, De V influence du christinnisme sur le droit civil des Remains, Paris, 1843 (and subsequently) ; Merivale, The Conversion of the Roman Empire (Boyle Lectures for 1864), London, 1864, particularly Lect. 4 and notes to it in the Appendix. 382 LEGISLATION ABOUT DIVORCE. [SECT. 75. perty, and of its privileges as a legatee ; in those conferring or imposing on the bishops a supervision of charities and charitable institutions, and a power of interfering in matters of guardianship ; in the recognition of the efficacy of certain acts done in presence of two or three of the clergy, and thereafter recorded in the church registers ; in the disabili- ties as to marriage and succession with which heretics and apostates were visited, and in a variety of minor matters. Of greater importance were three features for which it was directly responsible, the repeal of the caduciary provisions of the Papia-Poppaean law (p. 304), the penalties imposed upon divorce, and the institution of the bishop's court (epis- copalis audientia). The purpose of the Caduciary Law was to discourage celibacy and encourage fruitful marriages ; but legislation in such a spirit could not possibly be maintained when celibacy had come to be inculcated as a virtue, and as the peculiar characteristic of a holy life. The penalties alike of orbitas and coelibatus were abolished by Constantino in the year 320. The legislation about divorce, from the first of Constan- tino's enactments on the subject down to those of Justinian, forms a miserable chapter in the history of the law. Not one of the emperors who busied himself with the matter, undoing the work of his predecessors and substituting legis- lation of his own quite as complicated and futile, thought of interfering with the old principle that divorce ought to be as free as marriage, and independent of the sanction or decree of a judicial tribunal. Justinian was the first that, by one of his Novels, imposed a condition on parties to a divorce of common accord (communi consensu~), namely, that they should both enter a convent, otherwise it should be null ; but so distasteful was this to popular feeling, and so little con- ducive to improvement of the tone of morals within the conventual precincts, that it was repealed by his successor. SECT. 75.] THE BISHOP'S COURT. 383 What wonder, with such unqualified freedom of divorce, that Jerome should tell us* he had seen in Rome a man living with his twenty-first wife, she having already had twenty-two husbands ; or that we should have a bishop of Amasia, some thirty or forty years before Justinian, declar- ing that men changed their wives just as they did their clothes, and that nuptial beds were removed as often and as easily as market-stalls ! The legislation of Justinian's pre- decessors and the bulk of his own were levelled at one-sided repudiations, imposing penalties, personal and patrimonial, (1) upon the author of a repudiation on some ground the law did not recognise as sufficient, and the lawful grounds varied from reign to reign, and (2) upon the party whose misconduct gave rise to a repudiation that was justifiable. Into the details, however, it is unnecessary to enter. 2 The bishop's court (episcopate judicium, episcopalis audi- entia) 3 had its origin in the practice of the primitive Christians, in accordance with the apostolic precept, of submitting their differences to one or two of their brethren in the faith, usually a presbyter or bishop, who acted as arbiter. 4 On the establishment of Christianity the practice obtained legislative sanction ; Constantine giving the bishop's court concurrent jurisdiction with the ordinary civil courts where both parties preferred the former, and by a later enactment going so far as to empower one of the parties to a suit to remove it to the ecclesiastical tribunal against the will of the other. For various reasons, and amongst them the ignorance of the ordinary judges and the costs of litiga- tion in the civil courts, advantage was taken of this power of resorting to the bishop to an extent which seriously inter- fered with the proper discharge of his spiritual functions ; so that Honorius judged it expedient to revert to the 4 See Wachter, Ueber EJiescheidungen bei den Romern (Stuttgart, 1822), p. 184 sq. 3 Bethmann-Hollweg, Gesch. d. CP., vol. iii. 139. 4 Cox's Firnt Century of Christianity (London, 1886), p. 226 sq. 384 SOCIAL AND AGRARIAN CHANGES. [SECT. 76. original rale, and, at least as regarded laymen, to limit tlie right of resort to the episcopal judicatory to cases in which both parties consented. The procedure was of much the same nature as a reference to arbitration ; the bishop's finding was not a judgment but a definitio ; and, if not voluntarily implemented, had to be made operative by aid of the civil magistrate. It is impossible to say with any approach to exactitude what effect this intervention of the clergy as judges in ordinary civil causes for they had no criminal jurisdiction had on the development of the law ; but it can hardly have been without some influence in still further promoting the tendency to subordinate act and word to will and animus, to deal leniently with technicalities, and to temper the rules of the jus civile with equity and con- siderations of natural right. SECTION 76. SOCIAL AND AGRARIAN CHANGES. There were two amid the many social and economical changes of the period that had a material bearing on the private law, the introduction of the principle of heredity into most trades, occupations, and professions, and the exten- sion of the colonate or servitude of the glebe. The conse- quences of the first, however, are too special to be discussed with advantage. As regards the colonate (colonatus), 1 it seems to have become the normal condition of the plebs rustica all over the 1 The earlier literature is referred to and criticised in Heisterbergck, Die EntsteJiung des Colonats, Leipsic, 1876. He omits reference to the important work of Elia Lattes, Studi storici sopra il contralto d' Enfiteusi nelle sue rflnzioni col Colonato, Turin, 1868, of which chaps, ii. and iii. are devoted to the colonate. Of later date than Heisterbergck may be noted Marquardt, Rom. Staatsverwalt., vol. ii. p. 232 sq. ; Fustel de Coulanges, " Le Colonat Romain," in his Recherches sur qudques problemes d'histoire, Paris, 1881 ; Mommsen, "Ueber d. Dekret des Commodus f. den saltus Burunitanus" in Hermes, vol. xv. p. 408 sq. ; Humbert's article " Colonus," in Daremberg and Saglio's Diet, des Antiquiles Grecques et Romaines, part ix. (1884), p. 1322 sq. ; Karlowa, Rom. RG., vol. i. p. 918 sq. SECT. 76.] ORIGIN OF THE COLONATE. 385 empire, personal freedom, but perpetual servitude to the soil (servi terrae ipsius). There is much controversy as to its origin. The truth seems to be that conditions nearly resembling it, and out of which it may be said to have been evolved, existed in different parts of the empire long before there was any general legislation on the subject ; and that those conditions, regulated to a great extent by local custom or special imperial mandate, must be ascribed to different causes in different places. There is evidence that in Egypt there existed something very like the colonate even before it had passed under Roman domination ; that in some parts of Africa slaves were enfranchised on condition of perpetual attachment to the land that had been their peculium ; that into the western provinces there were repeated importations of barbarian prisoners who were distributed amongst the great landowners as coloni ; and that very often the small yeomen placed themselves in the same position in relation to some great landowner for the sake of his protection, or were by him compelled so to submit themselves. It was a state of matters which those at the head of affairs, with their recol- lection of the disastrous fate of the latifundia of Italy, had good reason to encourage ; for it moderated the mischiefs of great estates by ensuring that they would be peopled by freemen, whose poll-tax increased the revenue, and whose own interests afforded the best guarantee for their doing all they could to make their little holdings productive. According to the very numerous constitutions in the Theodosian and Justinianian Codes that regulate the posi- tion of the coloni, they were freemen, subject to capitation, and inscribed in the census list in the page appropriated to the landowner under whom they held and from whom their poll-tax was collected ; it is in reference to their liability to it that they are frequently spoken of as adscripticii, tributarii, cendti. They were liable also to military service when their lord was called upon to furnish recruits ; but they were not 2 B 386 CONDITION OF THE COLONI. [SECT. 76. entitled voluntarily to enlist, for that was to desert their service. From his lord the colonus held a small farm, for a rent payable sometimes in money but usually in kind, but which the former had no power to augment. With fixity of rent he had also a sort of fixity of tenure ; his lord (dominus, possessor, patronus) could not sell him apart from his holding, nor his holding without him ; but it was lawful for an owner of two estates, if one was insufficiently furnished with tenants, to replenish it from the other, provided that in so doing he did not separate a man from his wife and young children. If a colonus fled, his lord, when he recovered him, might put him in chains ; and against any third party de- taining him the lord had a right of action as if the colonus were really a slave. This, however, he was not ; for, with permission of his lord, which sometimes had to be paid for, he might contract a lawful marriage that gave him potestas over his children ; he might hold property of his own, even lands, in respect of which he was entered in the census lists and liable for land-tax as proprietor in his own right ; and on his death what belonged to him passed to his heirs by testament or on intestacy, and only on their failure fell to his lord. Alienation inter vivos, as a rule, was competent only with the lord's consent, the belongings of the colonus being in a manner no more than peculium ; but a privileged class known as liberi coloni, who either themselves or their ancestors had originally been citizens of free birth, were not subject to this restriction. Once a class of coloni had been created on an estate, it was perpetuated and recruited by birth (for the condition was hereditary), by prescription, by a freeman's marriage with an adscripticia, and by the reduction of able-bodied mendicants to that condition as a penalty. Once a colonus, ever a colonus, was almost literally true. For a time it was held that if a born colonus had de facto for thirty years lived in independence, he thereby acquired de jure the status of a SECT. 77.] NEW SYSTEM OF PROCEDURE. 387 free Roman citizen ; but this was disallowed by Justinian, who, possibly out of consideration for the interests of agri- culture, refused to admit the possibility of a man's escape from the bonds that tied him to the soil except by his elevation to the episcopate, and provided always he had taken orders with the consent of his lord. SECTION 77. ABANDONMENT OF THE "FORMULAE" SYSTEM OF PROCEDURE. 1 The formular system, with its remit from the prsetor to a sworn judex who was to try the cause, was of infinite advan- tage to the law ; for the judgment was that of a free and independent citizen, untrammelled by officialism, fresh from some centre of business, and in full sympathy with the parties between whom he had to decide. Such a system was incompatible with the political arrangements of Dio- cletian and Constantine ; and it is with no surprise that we find the former of those sovereigns instructing the provincial governors that in future, unless prevented by pressure of business (or, according to a later constitution of Julian's, when the matter was of trifling importance), they were themselves to hear the causes brought before them from first to last, as was already the practice in the extraordinariae cognitiones ( 72). The remit in exceptional cases was not, as formerly, to a private citizen, but to what was called a judex pedaneus, probably a matriculated member of the local bar, (whom, however, the parties might decline if they could agree upon a referee of their own selection) ; and for a time his delegated authority was embodied in a formula after the old fashion. But even this exceptional use of it did not 1 Wieding, Der Justinianeische Libettprocess, Vienna, 1865 ; Bethmann- Hollvveg, Gesch. d. CP., vol. iii. (1866) ; Muther (rev. Wieding), in the Krit. VJS., vol. ix. (1867), pp. 161 sq., 329 sq. ; Wieding, in same journal, vol. xii. (1870). p. 228 sq. ; Bekker, Aktionen, vol. ii. chaps. 23, 24 ; Baron, Gesch. d. R.R., vol. i. p. 448 sq. ; Buonamici, Procedura, p. 408 sq. 388 CENTRES OF JURISDICTION. [SECT. 77. long survive ; for an enactment by the two sons of Constan- tine, conceived in terms the most comprehensive, declared fixed styles to be but traps for the unwary, and forbade their use in any legal act whatever, whether contentious or voluntaiy. The result was not only the formal disappear- ance of the distinction between the proceedings in jure and in judicio, but the practical disappearance also of the dis- tinctions between actions in jus and in factum, and actiones directae and utiles ; the conversion of the interdict into an actio ex interdicto ; admission of power of amendment of the pleadings ; condemnation in the specific thing claimed, if in existence, instead of its pecuniary equivalent ; and execution accordingly by aid of officers of the law. In Constantinople the jurisdiction in civil matters was in the prefect of the city and the minor judges, to wit, the praefectus annonae and the praetors ; in Rome it was in the hands of the same officials, and concurrently with them the vicarius urbis. In the provinces it was in the governors ; but with a limited competence in the municipal magistrates and the defenders of towns. The vicars and praetorian pre- fects acted as courts of the first instance only exceptionally ; but the latter had eventually the same power as the emperor of citing any person to their tribunal, whatever his proper forum? In addition, there were many special fora for privileged parties or causes, to which it is unnecessary to refer. From the minor judges there was appeal to the superior ones, and from these again to the emperor. A process was full from first to last of intervention by officials. The in jus vocatio of the Twelve Tables the procedure by which a plaintiff himself brought his adversary into court, was a thing of the past. In the earlier part of the period the proceedings commenced with the litis denuntiatio intro- duced in the time of Marcus Aurelius and remodelled by Constantine ; but under Justinian (though probably begun 3 Willems, Droit puU. Remain (4th ed., Paris, 1880), p. 620. SECT. 77.] THE LIBELLUS CONVENTIONS. 389 before his reign) the initial step was what was called the libellm conventionis. This was a short and precise written statement addressed by the plaintiff to the court, explaining (but without detail) the nature of the action he proposed to raise and the claim he had to prefer; which was accom- panied with a formal undertaking to proceed with the cause and follow it out to judgment, under penalty of having to pay double costs to the defendant. If the judge was satisfied of the relevancy of the libel, he pronounced an interlocutor (interlocutio) ordaining its service on the respondent. This was done by an officer of court, who cited him to appear on a day named, usually at a distance of two or three months. The defendant, through the officer, put in an answer (libellus contradictionis), at the same time giving security for the proper maintenance of the defence and eventual satisfaction of the judgment. On the day appointed the parties were first heard on any dilatory pleas, such as defect of jurisdic- tion ; if none were offered, or those stated repelled, they then proceeded to expound their respective grounds of action and defence, each finally making oath of his good faith in the matter (juramentum calumniae), and their counsel doing the same. From this point, which marked the litis contestatio or joinder of issue, the procedure was much the same as that in judicio under the formular system. But in all cases in which the demand was that a particular thing should be given or restored, and the plaintiff desired to have the thing itself rather than damages, execution was specific and effected through officers of the law (manu militari). Where, on the other hand, the condemnation was pecuniary, the usual course was for the judge, through his officers, to take pos- session of such things belonging to the defendant as were thought sufficient to satisfy the judgment (pignus in causa judicati captwri), and which were eventually sold judicially if the defendant still refused to pay j the missio in bona (p. 390 THE "LAW OF CITATIONS." [SECT. 78 373) of the classical period was rarely resorted to except in the case of insolvency. SECTION 78. THE VALENTINIANIAN "LAW OF CITATIONS." 1 This famous enactment, the production of Theodosius II., tutor of the youthful Valentinian III., was issued from Ra- venna in the year 426, and addressed to the Roman Senate. It ran thus : " We accord our approval to all the writings of Papinian, Paul, Gaius, Ulpiaii, and Modestine, conceding to Gaius the same authority that is enjoyed by Paul, Ulpian, and the rest, and sanctioning the citation of all his works. We ratify also the jurisprudence (scientiam) of those earlier writers whose treatises and statements of the law any of the aforesaid five have made use of in their own works, Scsevola, for ex- ample, and Sabinns, and Julian, and Marcellus, and of all others whom they have been in the habit of quoting as authorities (omniumque quos illi celebrarunt) - provided always, as their antiquity makes them uncertain, that the texts of those earlier jurists are verified by collation of manuscripts. If divergent dicta be adduced, that party shall prevail who has the greatest number of authorities on his side ; if the number on each side be the same, that one shall prevail which has the support of Papinian ; but, whilst he, most excellent of them all, is to be pre- ferred to any other single authority, he must yield to any two. (Paul's and Ulpian's notes on his writings, however, as already enacted, are to be disregarded.) Where opinions are equal, and none entitled to pre- ference, we leave it to the discretion of the judge which he shall adopt." This constitution has always been regarded as a signal proof of the lamentable condition into which jurisprudence had sunk in the beginning of the fifth century. Constan- tine, a hundred years earlier, had condemned the notes of Ulpian and Paul upon Papinian. Claiming, as the later emperors did, to be the only authoritative mouthpieces of the law, it was not an unreasonable stretch of their prerogative to declare that the criticism of the two younger jurists, not- 1 Theod. Cod., i. 4, 3 ; Puchta, in the Rhein. Museum f. Jurisprud., vol. v. (1832), p. 141 sq., and in his Verm. Schrift. (Leipsic, 1851), p. 284 sq. ; Sanio, in his Rechtshistor. Abhandl.u. Studien (Konigsberg, 1845), p. 1 sq. ; Karlowa, Rom. JIG., vol. i. p. 933 sq. ; Roby, Introduction, p. Ixxxiv., sq. SECT. 78.] MECHANICAL JURISPRUDENCE. 391 withstanding that they had enjoyed the jus respondendi ex auctoritate principis, should not derogate from the authority of their more eminent predecessor. There were no longer any living jurists to lay down the law (jura condere) ; and if it was to be gathered from the writings of those who were dead, it was well that the use of them should be regulated as was done by Constantine. The Valentinian law pro- ceeded so far in the same direction. It made a selection of the jurisconsults of the past whose works alone were to be allowed to be cited : Papinian, Paul, Ulpian, and Modestine, the four latest patented counsel of any distinction ; Gains, of authority previously only in the schools, but whose writings were now approved universally, notwithstanding that he had never possessed the jus respondendi ; and all the earlier jurists whose dicta those five had accepted. 3 But it went yet a step further ; for it declared all of them, with the sole exception of Papinian, to be of equal authority, and degraded the function of the judge in most cases, so far at least as a question of law was concerned, to the purely arithmetical task of counting up the names which the industry of the advocates on either side had succeeded in adducing in support of their respective contentions. It is probable that, from the days of Hadrian down to those of Alexander Severus, when the emperor in his council had to frame a rescript or a decree, its tenor would be decided by the vote of the majo- rity ; but that was after argument and counter-argument, which must in many cases have modified first impressions. Taking the votes of dead men, who had not heard each other's reasons for their opinions, was a very different pro- cess. It may have been necessary ; but it can have been so only because a living jurisprudence had no" existence, because the constructive talent of the earlier empire had entirely disappeared. 3 This seems to be the natural reading of the enactment ; although some are of opinion that it was intended to sanction the citation of those passages only of the earlier jurists that were referred to by any of the five. 392 GREGORIAN AND HERMOGENIAN CODES. [SECT. 79. CHAPTER SECOND. ANTEJUSTINIANIAN COLLECTIONS OF STATUTE AND JURISPRUDENCE. SECTION 79. THE GREGORIAN AND HERMOGENIAN CODES. 1 THE first of these codes was a collection of imperial rescripts (with a few edicts, &c.) made by one Gregorianus in the very end of the third century, and probably at the instigation of Diocletian, though whether in East or West, critics are unable to decide. It is believed to have contained fifteen or sixteen books, subdivided into titles, arranged after the order of the Edict. Our acquaintance with its contents is derived principally from Alaric's Breviary (p. 398), and the Collatio, the Vatican Fragments, and the Consultatio (pp. 395397), although there can be little doubt that most of the rescripts in Justinian's Code are taken from it without acknowledgement. The collection of Hermogenianus, also of rescripts, seems to have been a supplement to the earlier one, but, so far as appears, arranged only in titles. As the latest enactment in it is of the year 365, the probability is that it was published about that time. Both codes, although the work of private parties, received statutory recognition from Theodosius and Valentinian in their commission for preparation of a collection of edictal law ; and from the language of Justinian in reference to them there is reason to believe that in the courts they were regarded as authori- tative, even to the ignoring of all rescripts not embodied in 1 Huschke, "Ueber den Gregorianus u. Hermogenianus Codex," in the Z. f. RG. t vol. vi. (1867), p. 283 sq. ; Karlowa, Rom. RG., vol. i. pp. 940 sq., 959 s^. SECT. 80.] THE THEODOSIAN CODE. 393 them. Their latest editor is the younger Haenel, in the Corpus Juris Romani Antejustiniani (Bonn, 1837) ; he has gathered about seventy constitutions that stood in the first, and about thirty that stood in the second. But how small a propor- tion this bears to their original contents is manifest when we take note of the 1200 or 1300 rescripts of Diocletian, and Maximian alone which we find in the Justinianian Code, and which can hardly have been obtained from any other source than the Gregorian and Hermogenian collec- tions. They seem to have been still a subject of exposition in the law-school of Beirout in the early years of Justinian ; for comments upon them by Eudoxius and Patricius, who taught there, are preserved amongst the scholia of the Basilica (p. 431). SECTION 80. THE THEODOSIAN CODE AND POST-THEODOSIAN NOVELS. 1 Three years after publication of the " Law of Citations " ( 78) Theodosius nominated a commission of nine members to initiate the preparation of a body of law, which, if his scheme had been carried into execution, would have ren- dered that of Justinian unnecessary. In a constitution some ten years later he explains the motives that had actuated him, that he saw with much concern the poverty-stricken condition of jurisprudence, and how very few men there were who, notwithstanding the prizes that awaited them, were able to make themselves familiar with the whole range ot law ; and that he attributed it very much to the multitude of books and large mass of statutes through which it was dispersed, and which it was next to impossible for any ordi- nary mortal to master. His scheme was eventually to com- pile one single code from materials derived alike from the writings of the jurists, the Gregorian and Hermogenian 1 See Karlowa, Rom. RG., voL L pp. 943 sq., 960 sq. 394 THE THEODOSIAN CODE. [SECT. 80. collections of rescripts, and the edictal laws from the time of Constantine downwards. His language leaves no doubt that it was his intention to have the general code very care- fully prepared, so as to make it a complete exponent of the law in force, which should take the place of everything, statutory or jurisprudential, of an earlier date. The collec- tion of edicts which he directed his commissioners to prepare, and which was to contain all that had not been displaced by later legislation, even though some of them might be obsolete by disuse, was to be the first step in the execution of his project. For some reason or other nothing followed upon this enactment ; and in 435 a new commission of sixteen members was nominated to collect the edicts, but with nothing said in their instructions about anything ulterior. It was completed in three years, and published at Constan- tinople early in the year 438, with the declaration that it should take effect from 1st January following; and a copy was communicated to Yalentinian, who ordained that it should come into force in the West from 12th January 439. The arrangement of the Theodosian Code is in sixteen books, subdivided into titles, in which the constitutions are placed in chronological order. They cover the whole field of law, private and public, civil* and criminal, fiscal and municipal, military and ecclesiastical. The private law is in the first five books. Until the present century, these were known only by the excerpts from them in the Lex Romance VisigotTiorum ; whereas the last eight books were published in extenso by Dutillet as long ago as 1550, from a manuscript of the Code itself, and books 6, 7, and 8 by Cujas a few years later from another manuscript. It was upon the Code as thus restored that Jac. Gothofredus wrote his six folios of commentary, a work of stupendous industry and erudition, which remains of the highest importance as illus- trative of the public law and administration of the period. Between the years 1820 and 1840 a large number of consti- SECT. 8 1.] POST-THEODOSI AN NOVELS.' 395 tutions belonging to the first five books were recovered by Amedeo Peyron, Baudi di Vesme, Cardinal Mai, Clossius, and Haenel, mostly from palimpsests in the University Library at Turin; all these were incorporated in the edi- tion of the Code contributed by Haenel to the (Bonn) Corpus Jur. Rom. Antcjust. 2 There are still, however, many deficiencies ; Haenel estimates that about 450 of the con- stitutions of the first five books are lost. The imperial edicts subsequent to the publication of the Theodosian Code got the name of Novels (novellae constitu- tiones). There were many such published in both divisions of the empire, and for a time communicated from one emperor to the other. The first recorded transmission it was of a considerable batch of constitutions was by Theodosius himself to Yalentinian in the year 447 ; Marcian seems to have followed his example, as long as Valen- .tinian was alive ; but Leo bestowed his favours only on Anthemius. It is probable that Valentinian sent his Novels to Theodosius and Marcian ; but it does not appear that the practice was followed by his successors, although a consi- derable' number were published in the Western empire by Maximus, Majorian, Severus, and Anthemius. But, whether communicated or not, none of the Western Novels seem to have been adopted in the East, for there is not one of them in the Justinianian Code. They are preserved partly in manu- scripts and partly (in abridgement) in the Breviary ; and are usually published (as in Haenel's edition) as an appendix to the Theodosian Code. SECTION 81. THE " COLLATIO," THE VATICAN FRAGMENTS, AND THE " CONSULTATIO." These three were unofficial collections. (1.) The Collatio Legum Mosaicarum et Romanarum, otherwise Lex Dei quam, 8 Codex Theodosianus. Ad LIV libror. manuscriptor. et prior, edition, fidem 396 COLLATIO, VAT. FRAGMENTS, CONSULT ATIO. [SECT. 81. Dominus praecepit ad Moysen, 1 is a parallel of divine and human law, the former drawn from the Pentateuch, and the latter from the writings of Gaius, Papinian, Paul, Ulpian, and Modestine, rescripts from the Gregorian and Hermo- genian Codes, and one or two later general enactments. Its date is probably about the year 390, but its authorship is unknown. It was first published by P. Pithou in 1573, and has been often re- edited ; the most critical version being that of Blume (Bonn, 1833), and the latest that of Huschke in his Jurisprudentia Antejiistiniana. (2.) The Vatican Frag- ments were discovered by Mai in a palimpsest in the Vati- can in 1820. What was the title of the book to which they originally belonged it is impossible to say ; but it was evidently a book of practice, compiled in the Western empire, and of very considerable dimensions. The extant fragments deal with the law of sale, usufruct, dowries, donations, tutories, and processual agency. They are drawn from the writings of Papinian, Ulpian, and Paul, the two collections of rescripts, and a few general enactments, the latest dating from the year 372. The compilation may be of about the same antiquity as the Collatio ; although Mommsen is dis- posed to ascribe it to the time of Constantino, and to assume that the enactment of 372 was introduced by a later hand. It is printed in Huschke's collection of Antejus- tinianian law ; but the authoritative text is that of Mommsen, submitted, along with a facsimile of the MS., to the Berlin Academy in 1859. 2 (3.) The Consultatio (veteris cujusdam recognov. et annot. crit. instruxit Gust. Haend, Bonn, 1842. Kriiger, in 1868, 1869, and 1878, prepared a facsimile of the Turin palimpsests, which was pub- lished in the Transactions of the Royal Academy of Berlin in 1879. He pro- mises a new edition of the Code for the 3d vol. of his, Mommsen's, and Studemund's Collectio libror. juris antejustiniani. 1 See a paper by Hnschke in the Z. f. gesch. RW., vol. xiii. (1846), p. 1 sq. ; a second by Dirksen (published originally in 1846), in his Hinterlass. Schriften (Leipsic, 1871), vol. ii. p. 100 sq.; and a third by Rudorff, in the Abhandi. d. K. Akademie d. Wissensch. zu Berlin, 1868, p. 265 sq. 2 The text is reprinted in a small volume published at Bonn in 1861, and since then in Weidmann's collection of Latin and Greek authors. SECT. 82.] THE EDICTUM THEODORICI. 397 jurisconsulti consultatio) 3 was first published by Cujas in 1577 from a manuscript (now lost) that had come to him from his friend Antoine Loysel. It seems to be part of a collection of answers upon questions of law submitted for the opinion of counsel, and is of value for the fragments it contains from Paul's Sentences and the three Codes. It is thought to have been written in France in the end of the fifth or beginning of the sixth century. SECTION 82. THE ROMANO-BARBARIAN CODES. This title is usually applied to three collections com- piled in Western Europe after it had thrown off the sove- reignty of Rome. They are 1. The Udictum Theodorici, compiled at the instance of Theodoric, king of the Ostrogoths, during his residence in Rome in the year 500. Its materials were drawn from the writings of the jurists (principally the Sentences of Paul), the Gregorian, Hermogenian, and Theodosian Codes, and the later Novels; all reduced into 154 sections, with no systematic arrangement, but touching upon all branches of the law, public and private, especially criminal law and pro- cedure. It was professedly intended to apply to all Theo- doric's subjects, both Goths and Romans ; but it is pretty generally admitted that this idea cannot have been fully realised, and that in some matters, e.g., the law of the family, Gothic customs must still have continued to prevail. 1 3 See Rudorff, " Ueber d. Entstehung d. Consultatio," in the Z. f. gesch. R W., vol. xiii. (1846), p. 50 sq., and Huschke, in his preface to it in his Jurisprud. antejustiniana, p. 797 sq. 1 See Savigny, Gesch. d. R. P., vol. ii. p. 172 sq. ; Gloden, Das Rom. Recht im Ostgothischcn Rciche, Jena, 1843 ; Stobbe, Gesch. der deutsch. Rechtsquellen (Leipsic, 1860-64), vol. i. p. 94 sq. The text was first published in 1579, from a MS. of Pithou's, in an appendix to Cassiodorus's Variarum Libri XII, and is in most collections of the Leges Barbarorum ; that in Pertz's Monum. Germ, hist., Leges, vol. v., is by Blume. The last separate edition is that of Rhon, Comment, ad Edict. Theodorici, Halle, 1816. 398 LEX ROMANA VISIGOTHORUM. [SECT. 82. 2. The Lex Romano, Visigothorum or Breviarium Alarici- anum was a much more ambitious and important collection. It was compiled by commissioners appointed by Alaric II., king of the Western Goths, with approval of the bishops and nobles, published at Aire in Gascony in the year 506, the original deposited in the treasury, and compared and certified copies sent down to all the greater officials of the kingdom, with instructions to allow no other law to be used within their jurisdictions on pain of death. In accordance with their commission the compilers selected their material partly from leges (statute law) and partly from jus (juris- prudential law) ; taking what they considered appropriate, without altering the text except in the way of excision of passages that were obsolete or purely historical. For the leges they utilised some 400 of the 3400 enactments (accord- ing to Haenel's estimate) of the Theodosian code, and about 30 of the known 104 post-Theodosian Novels ; for the jus, the Institutes of Gaius. Paul's Sentences, the Gregorian and Hermogenian rescripts, and the first book of Papinian's Responses (a single sentence). All of these, except Gaius, were accompanied with an " interpretation," which resembles the interpretatio of the XII Tables in this respect, that it is often not so much explanatory of the text as qualifica- tive or corrective. Gaius is in an Epitome in two books, believed to have been only a reproduction of an abridgement already current, and dating from about the beginning of the fifth century. The Breviary exercised very considerable in- fluence in Europe generally. This is traceable, for example, in the lex Salica, in the Capitularies, and in the collections of styles of the early middle age ; and there is no question that, until the rise of the Bologna school in the twelfth century, it was from it, rather than from the books of Jus- tinian, that Western Europe acquired its scanty knowledge of Roman law. 2 2 See Savigny, vol. ii. p. 37 sq. ; Haenel's Prolegomena ; Stobbe, vol. L p. SECT. 82.] LEX ROMANA BURGUNDIONUM. 399 3. The Lex Romano, Burgundionum, formerly, owing to a mistake of a transcriber, called Papianus. This is the col- lection which King Gundobald, in publishing in 501 his code of native law (lex Burgundionum or Gundobada), had promised should be prepared for the use of his Roman sub- jects. Its date, and even whether it was promulgated by him or his son Sigismund, are uncertain : owing to the incorporation in it of certain passages bearing a close re- semblance to some of the " interpretations " in the Breviary, many jurists think it must be of later date than 506 ; but it is quite possible that the interpretations in question were borrowed by the compilers of both collections from an earlier source. The Romano-Burgundian Code deals with private law, criminal law, and judicial procedure, distributed through forty-seven titles, and arranged very much after the order of the Gundobada, from which it has a few extracts. Its statutory Roman sources are the same as those of the Breviary ; the jurisprudential authorities referred to are Gaius and Paul, the latter in his Sentences, and the former (only three times altogether) in some other book than his Institutes. In form it is not, like the Breviary or the Justinianian Digest and Code, a collection of extracts, but a consecutive and homogeneous compilation, something be- tween a text-book and a code, with only occasional quota- tion of the writer's authorities in this way " secundum legem Theodosiani, lib. ix.," " secundum legem Novellam," " secundum Pauli sententiam," &c. 3 65 sq. ; Karlowa, Rom. RG., vol. i. p. 976 sq. The Breviary was first pub- lished in extenso by Sichard (Basle, 1528) ; but the authoritative edition is that of Haenel, Lex Rom. Wisiyothorum ad LXXII libror. manuscriptor. fidem recognovit . . . Gust. Ifaenel, Berlin, 1847. 3 See preface to Barkow, Lex Romano, Burgundionum, Greifswald, 1824 ; Savigny, vol. ii. p. 9 sq., and vol. vii. (addition by Merkel), p. 30 sq. ; Blume, " Ueber den burgundischen Papianus," in Bekker and Muther's Jahrb. des gem. Rechts, vol. ii. (1858), p. 197 sq. ; Karlowa, Rom. RO., vol. i. p. 983 sq. The first edition was by Cujas in 1566 ; the best is that of Blume, in Pertz's Monum. Germ, hist., Leyes, vol. iii. (1863), p. 505 ; the handiest that of Barkow (as above). 400 ORIENTAL COLLECTIONS. [SECT. 83. SECTION 83. OKIENTAL COLLECTIONS. A few years ago there was discovered in, the convent on Mount Sinai a bundle of papyrus leaves which seemed to contain part of a treatise on Graeco-Roman law. Their finder, Dr. Bernardakis, made a transcript, which he for- warded to Dareste in Paris, by whom they were published in 1880. Since then they have been re-edited by Zachariae v. Lingenthal, Alibrandi, and Kriiger ; and may possibly be still further elucidated after a revision and, if practi- cable, photographic reproduction of the originals. They have proved to be parts of a commentary on Vlpianus ad Sabinum, written after the Theodosian Code, but before that of Justinian, and therefore between 439 and 529. The scholiast, who seems to have intended his book rather for educational than practical purposes, and may have been of the school of Beirout, makes use not only of the Theodosian, but also of the Gregorian and Hermogenian Codes, drawing frequently upon the last, and, as Kriiger observes, creating the impression that it must have been of greater proportions than is usually supposed ; and amongst the jurists to whom he refers are Marcian, Florentine, Paul, and Modestine. The papyri have thrown new light upon a few questions of historical jurisprudence, and it is possible that still more may be derived from them. 1 Under the title of Leges Constantini Theodosii et Leonis there are extant, in Syrian, Arabic, and Armenian, in the British Museum, the Bodleian, and the National and Royal libraries of Paris, Berlin, and St. Petersburg, manuscripts of a collection of Syro-Roman law, dating from about the year 476, which was recently published by Bruns and Sachau 1 See Dareste, in the Nouv. Rev. Hist., vol. iv. (1880), p. 643 sq. ; Alibrandi, in the Studi e documents di storia e diritto, vol. iii. (1882), p. 30 sq. ; Kriiger in the Z. d. Sav. Stift. (R.A.), vol. iv. (1883), p. 1 sq. ; Karlowa, Horn. JRG., vol. i. p. 985 sq. SECT. 83.] ORIENTAL COLLECTIONS. 401 under the title of Syrisch-Bomisches Eechtsbuch. 12 It is the opinion of Bruns that all the versions are from a Greek original of which no trace survives, but which he thinks must have been compiled in Syria itself. As a repertory of Roman law it is of little or no value ; interesting no doubt as showing how, notwithstanding all the efforts of legislation, the law might become corrupted and degraded in the provinces by commixture with native custom, and to some extent by the ignorance of the jurists ; but adding scarcely a single iota to our knowledge of pure Roman doctrine. 5 Syrisch-Romisches Rechtsbuch aus demfunften Jahrhundert . . . herausge- geben, ubersetzt, u. erlautert vonDr K. G. Bruns u. Dr E. Sachau, Leipsic, 1880. See review by Bluntschli, in the Krit. VJS. f. JRechtswissensch., N.F., vol. iii. (1880), p. 548 sq. ; also Karlowa, Rom. RG., vol. i. p. 987 sq. A Syrian version, from a British Museum MS., had been published, with a Latin translation, by the Dutch theologian and orientalist, Dr. Land, in his Anecdota Syriaca (Leyden 1862) ; but as, from want of acquaintance with law, it was not up to the mark, the edition of Bruns and Sachau was undertaken at the instigation and cost of the Berlin Academy. Some particulars are given by von Hube, in the Z. d. Sav. Stiff. (R.A.), vol. iii. p. 17 sq., of a translation of the Law Book into Georgian in the 17th century, and from that into Russian in 1813 and 1823. 2 c 402 JUSTINIAN. [SECT. 84. CHAPTER THIRD. THE JUSTINIANIAN LAW. SECTION 84. JUSTINIAN'S COLLECTIONS AND HIS OWN LEGISLATION. "FLAVius ANICIUS JUSTINIANUS, surnamed the Great, the most famous of all the emperors of the Eastern Roman empire, was by birth a barbarian, native of a place called Tauresium in the district of Dardania, a region of Illyri- cum, and was born, most probably, on May 11, 483. His family has been variously conjectured, on the strength of the proper names which its members are stated to have borne, to have been Teutonic or Slavonic. The latter seems the more probable view. His own name was originally Uprauda. Justinianus was a Roman name which he took from his uncle Justin who adopted him, and to whom his advance- ment in life was due. Of his early life we know nothing except that he came to Constantinople while still a young man, and received there an excellent education. Doubtless he knew Latin before Greek ; it is alleged that he always spoke Greek with a barbarian accent. When Justin as- cended the throne in 518 A.D., Justinian became at once a person of the first consequence, guiding, especially in church matters, the policy of his aged, childless, and ignorant uncle, receiving high rank and office at his hands, and soon coming to be regarded as his destined successor. On Justin's death in 527, having been a few months earlier associated with SECT. 84.] HIS COLLECTIONS OF THE LAW. 403 him as co-emperor, he succeeded without opposition to the throne." l Of his great projects at home and abroad none was at- tended with so much success as his scheme for making an authoritative collection of the law. Ambitious to carry out a reform more complete even than that which Theodosius had planned but failed to execute (p. 393), he took the first step towards it little more than six months after the death of his uncle, in the appointment of a commission to prepare a collection of the statute law. It was published in April 529 ; and in rapid succession there followed his Fifty Decisions (529-532), his Institutes (21st November 533), his Digest of excerpts from the writings of the jurists (16th December 533), and the revised edition of his Code, in which he incorporated his own legislation down to date (16th November 534). From that time until his death in 565 there followed a series of Novels (novellae constitutiones), which were never officially collected, and of which probably many have been lost. The first intimation of his scheme was contained in a constitution addressed to the senate, of date 13th February 52S. 2 There is reason for believing that he had already p]anned the compilation of all the collections we now possess, and he may even have had in view an eventual general codification in the modern sense of the word. But this constitution contained no hint of anything beyond a collection of statute law (leges), of all that was worth pre- serving in the Gregorian, Hermogenian, and Theodosian Codes, and the later enactments of his imperial predecessors. 1 From Professor Bryce's article " Justinian " in the Encyclopaedia Britan- nica, vol. xiii. p. 792 sq. ; to which, and to another article with the same title in the third volume of Smith's Dictionary of Christian Biography, from the pen of the same learned writer, the reader is referred for an account of the emperor's administration of the empire, his ecclesiastical policy, and his wars and foreign policy generally. For the present those who would go more fully into his history must consult the pages of Gibbon. 2 Const. " Haec quae necessario," which forms the 1st preface to the Code. 404 THE (FIRST) JUSTINIANEUS CODEX. [SECT. 84. He informed the senate that for its compilation he had nominated a commission of ten members, mostly ministers of state, but including Theophilus, who was a professor at Constantinople, and two barristers of distinction. They were instructed to reject all enactments that had gone into dis- use and all that they considered of no practical value ; and were authorised to abridge those they accepted, and make such alterations in their language as they considered necessary or expedient. The work was completed in little more than a year, and officially ratified, under the name of Justinianeus Codex, by a constitution of 7th April 529, addressed to Menna, one of the praetorian prefects. 3 The emperor therein declared that the new collection was in future to be regarded as the sole repertory of statute law throughout the empire, reference to the earlier collections being expressly prohibited ; and that those of its provisions that had originally been addressed to individuals, and that hitherto had ranked only as rescripts, were now to be received with all the authority of general enactments (leges edictales). As for the statutory enactments of the republic and the senatusconsults of the early empire, these had long ceased to be referred to as authoritative monuments of legislation ; they were recognised only in the form in which they had been embodied in the writings of the jurisconsults, and were regarded as part of the jus or jurisprudential law rather than of the leges or statute law. It was to this jurisprudential law (vetus jus) that Jus- tinian turned his attention in the next place. Notwith- standing the limitation imposed by the Valentinian " Law of Citations " ( 76), in bulk it was excessive and in quality unequal, while in certainty it left much to be desired ; and it therefore seemed to the emperor expedient that it should be thoroughly sifted and reduced into more manageable com- pass. In this scheme he was seconded, if not prompted, by Tribonian, who had become Quaestor of the Royal Palace, and 8 Const. " Summa rei publicae," the 2d preface to the Code. SECT. 84.] COMMISSION TO COMPILE THE DIGEST. 405 whose name will ever be associated with Justinian's as that of the master-spirit of the latter's law-reforms. There can be little doubt that Tribonian was the real author of the constitution, addressed to himself, 4 in which the lines were laid down upon which the new collection was to be con- structed. Under the name of Digesta or Pandectae, divided into fifty books, each subdivided into titles, and arranged generally after the order of topics in the Julian consolidation of the Edict, it was to embody such a selection of extracts from the writings of those of the old jurists whose authority had been recognised by earlier sovereigns 5 as would afford an exposition of so much of the law still in observance as had not been already promulgated in the recently completed collection of statutes. To aid him in the execution of the work Tribonian was empowered to appoint such coadjutors as he thought fit. While he and they were required on the one hand, in testimony of their strict adherence to the general design, to insert at the head of each extract the name of its author and the particular treatise of his from which it was taken, they had on the other hand a very large discretion in their choice of materials and in their mode of dealing with them. The Valentinian law had forbidden any refer- ence to the notes of Ulpian and Paul upon the writings of Papinian, and had declared that, where there was difference of opinion amongst the jurists, that of the latter (unless there was a majority against him) was to prevail ; but the compilers of the Digest were relieved from any such restric- tions, and authorised to use their own judgment as to which of two or more conflicting dicta should be preferred. Fur- 4 Const. "Deo auctore" of 15th December 530, in the preface to the Digest, and again in Cod. i. 17, 1. 5 " Antiquorum prudentium, quibus auctoritatem conscribendarum inter- pretandarumque legum sacratissimi Principes praebuerunt " (Const, cit., 4). This description included not only those who had enjoyed the jus respon- dendi ex auctoritate principis (supra, 59), but also those not so privileged (such as Gaius), whose writings enjoyed imperial sanction under the " Law of Citations " ( 76). 406 THE QUINQUAGINTA DECISIONES. [SECT. 84. thermore, they were empowered to delete superfluities and redundancies, to alter expressions, and even to interpolate a word or phrase where it was deemed expedient ; for the design of the emperor was to publish, not a historical view of the law, but an authoritative statement of it as it then stood, which should be beyond controversy and everywhere be received as definitive. Tribonian associated with himself sixteen colleagues, of whom four were law-professors, and eleven were members of the bar. Even before they had commenced their labours Tribonian had discovered that there were moot points in the law which could be satisfactorily settled only by imperial authority ; and as the work progressed more and more of them became apparent. All controversy in regard to them was set at rest by a series of enactments of Justinian's in the years 52932, which got the name of " the Fifty Decisions " (Quinquaginta Decisiones), 6 and which there is some reason for supposing formed a collection by themselves before their incorporation in the second edition of the Code. 7 When the Digest was nearing its completion another work was taken in hand, which had been foreshadowed in the constitution " Deo auctore." 6 This was the little volume so well known under the name of Justinian's Institutes (Justiniani Institutiones), an elementary treatise for the use of students. Its preparation was entrusted to Tribonian, Theophilus, and Dorotheus ; but seems to have been really accomplished by the two last, who were professors in Con- stantinople and Beirout respectively. Its foundation, ac- cording to the emperor's instructions, was the Institutes of Gaius, which had long been the introductory text-book 6 " Nostras constitutiones, per quas, suggerente nobis Triboniano, . . . antiqui juris altercationes placavimus " (Just., Inst., i. 5, 3). 7 " Sicut libro L constitutionum invenies : " in the Turin Gloss on the In- stitutes, in Savigny, Gesch. d. JZ.R., vol. ii. p. 452. 8 Const, cit., 11. See also Const. " Tanta," 11, (in pref. to Dig, and in Cod. i. 17, 2), and proem. Inst. SECT. 84.] JUSTINIAN'S INSTITUTES. 407 in the law-schools. In its preparation its compilers had a much freer hand than in the Digest. They were enjoined to expunge everything that was antiquated, and to introduce whatever in their judgment was necessary to make the little book a faithful though elementary exposition of Justinianian law. In this way the detailed accounts in Gaius of institu- tions that before the time of Justinian had gone out of date, all disappeared, a brief reference to them being intro- duced only here and there ; some rules and definitions were incorporated from the Libri VII rerum quotidianarum of Gaius, and the elementary works of Marcian, Ulpian, Floren- tine, and other classical jurists ; and a great body of new matter was inserted displaying the amendments of the later emperors, among which special prominence was given to the legislation of Justinian himself. The way in which this was done is objectionable, and mars the work as a whole ; for in form the emperor is the relator ; and it is unpleasant to have him parading so frequently his own wisdom, huma- nity, and beneficence, and drawing comparisons between himself and his predecessors, all to his own advantage. The Institutes were published on the 21st November 533 ; the Digest or Pandects (Digesta, Pandectae) followed on the 16th December of the same year. Three constitutions of that date announced its completion, one, known as " Tanta," ratifying the work, which was addressed to the senate and the world ; another, known as " Ae&o/cei/," which was substantially a Greek version of the first ; and the third, known as " Omnem rei publicae," addressed specially to the professors in the law-schools. 9 Three years had sufficed to reduce the mass of the old jurisprudence (jus mtus) to about one-twentieth of its bulk. This had been facilitated by a division of labour ; the commissioners having formed themselves into three sections, to each of which were con- 9 All three are printed in the preface to the Digest ; the " Tanta " also in Cod. i. 17, 2. 408 COMPILATION OF THE DIGEST. [SECT. 84. fided all the books of a particular class, those bearing on the jus civile to the first, those bearing on the jus hono- rarium to the second, and those not properly rangeable under either of those heads to the third. 10 The matter selected by those three sections seems then to have been submitted either to the whole commission or an editorial committee, at whose hands it was distributed under appro- priate rubrics, and submitted to a second revision, in which manifest superfluities were expunged, 11 contrarieties re- moved, 12 and expressions varied or words interpolated so as to adapt the doctrine to the altered state of the law. 13 The whole was then arranged in seven parts and fifty books. The division into seven parts was made apparently in view of a readjustment of the course of study in the schools ; u that into books was in compliance with the emperor's instructions in the " Deo auctore," and was not accomplished without some humouring of the subject- matter. 15 Each book, with the exception of the three on legacies, contains a greater or smaller number of rubricated 10 It was Blume that, from internal evidence, discovered the modus operandi of the commissioners, which explains the otherwise confusing arrangement of the extracts in the several titles. His paper is in the Z. f. gesch. RW., vol. iv. (1820) p. 257 sq. An account of the results at which he arrived will be found in Roby, Introduction, p. xlvi. sq. 11 All this was in accordance with the instructions contained in Const. "Deo auctore," 7-10. 12 Justinian, in Const. "Tanta," 15, denies that any contradictions are to be found in the Digest. But there are not a few passages in it which not all the skill of the civilians has yet been able to reconcile. 13 Such alterations and interpolations are often spoken of as " Tribonian's emblems " (emblemata Triboniani). It is only in regard to a very few of the Digest extracts that we have the means of judging how far the text was manipulated ; but a comparison of some of these with the presumably original versions of them preserved in the Vatican Fragments and elsewhere is given by Mr. Roby in his Introduction, chapter v., and is very instructive. 14 On this division, see Justinian himself in Const. " Tanta" and "A^dunfv," 2-8 ; Eyssenhardt, Justinians Digesten nach Drittkeilen, Partes, Buchern, Titeln, u. Fragmenten (Leipsic, 1845), p. 44 sq. ; Roby, Introd., p. xxix. sq. 13 In order to eke out the fifty, the matter of legacies had to be spread over three books (xxx.-xxxii.), often called the 1st, 2d, and 3d books de leyatis, none of them subdivided into titles. SECT. 84.] THE SOURCES DRAWN FROM. 409 titles ; these again contain each a varying number of laws or fragments, some of no more than a word or two that serve as a connecting-link between what precedes and fol- lows, others filling two or three pages ; and all but the shortest of those fragments are subdivided into paragraphs. 16 Each law, or rather fragment, is an excerpt from some treatise of an earlier jurist ; and this, in compliance with Justinian's instructions, is invariably quoted at the com- mencement. 17 The nature of the books laid under contri- bution has been indicated in previous sections ( 61-64) in commenting on the literary activity of the jurists of the earlier empire. Their number was very considerable, but all from the pens of thirty-nine writers. The earliest is Quintus Mucius Scsevola (p. 264), not to be confounded with Q. Cervidius Scsevola (p. 322) ; he is the only jurist of the republic from whose works any direct extract is preserved. The latest are Hermogenian and Arcadius Charisius (p. 327), who are supposed to have nourished about the middle of the fourth century after Christ. The most largely utilised is Ulpian ; he furnishes about one- third of the whole Digest, the greater part being from his Commentary on the Edict. Paul supplies about one-sixth of the whole ; and next in importance, so far as the bulk of their contributions is concerned, come Papinian, Julian, Pomponius, Q. Cervidius Scasvola, Gaius, and Modestine. 18 The order of sequence of the books and titles in the Digest is at the first sight somewhat incomprehensible, and from a modern point of view anything but satisfactory. It 18 This explains the now usual method of citation : Dig. xi. 7, fr. 8, 3, or L ometimes fr. 8, 3, Dig., de religiosis (xi. 7). 17 As, in the fragment referred to in last note, " Ulpianus, libro xxv. ad Edictum." 18 In Hommel's Palingenesia libror. juris veteran, (3 vols., Leipsic, 1767) the extracts from each author are collected, re-arranged according to the books of his from which they were taken, and printed consecutively ; and the order given above is determined by the number of pages of the Palingenesia which the contributions of each of those jurists occupy. 410 AKRANGEMENT OF THE DIGEST. [SECT. 84. is not a systematic exposition either of the rights of indi- viduals or of the law by which they were regulated, but rather of the magisterial and judicial measures employed for their protection and vindication. The method is substan- tially that adopted by Julian in his consolidation of the Edict (p. 307). This was in accordance with Justinian's instructions ; and for those for whom his collection was destined was not without its advantages. But it is at first a little perplexing to a modern to find (for example) the matter of pacts or agreements dealt with in the second book, real and consensual contracts in books 1219, but stipulations postponed to the forty-fifth ; to find property dealt with in the sixth book, and its exposition resumed in the forty-first ; to see the disabilities of minors explained in the second book, but guardianship introduced only in the twenty-sixth and twenty- seventh. All this, however, has its historical explanation. 19 The order of sequence of the fragments in the individual titles was also some- what perplexing until the key was supplied by Blume (supra, p. 408). In many titles the ground seems to be gone over a second and often a third time. One is disposed to think that this might to a great extent have been avoided had the final revision been more deliberate. But expedition was one of the things at which Tribonian aimed ; as witness the allowance of no more than a fortnight between the pub- 19 See Roby, Introduction, pp. xxxi.-xlvi. He observes (p. xxxiii.) : "The Digest is a handbook for practitioners, not a systematic treatise for students. It treats of who are judges, who are plaintiffs, and how they can get de- fendants into court, what matters are actionable, the effect of a judgment and the means of enforcing it, and then other remedies, such as injunctions and recognisances " (i.e., interdicts and prsetorian stipulations). " Matter necessary for the explanation of the various actions is prefixed, often in separate titles, and cognate matter is sometimes appended in other titles." (E.g., the law of espousals, marriage, dowries, dotal settlements, and the matrimonial relation generally, is grouped round the discussion of the actio rei uxoriae.) " It is the insertion of these prefatory and explanatory titles and occasional digressions which often prevents a student from catching the main lines of the arrangement." SECT. 84.] THE CODEX KEPETITAE PRAELECTIONIS. 411 lication of this great body of law and its coming into force all over the empire. So, to save time, the matter appro- priate to any particular title, as brought up by each of the three sections into which the commission had been divided, as a rule was thrown into it as it stood, the largest contri- bution usually getting precedence ; the revisers were con- tent to leave mere repetitions undisturbed, and to expunge only what was irrelevant or contradictory. In the title locati {Dig. xix. 2), for example, there are in all 62 fragments. The first 38, with four or five exceptions, constitute what is called the Sabinianian group, the contribution of the section that dealt with works on the jus civile ; fragments 39-52 constitute the so-called Edictal group, contributed by the section entrusted with the treatise on the jus honorarium ; fragments 53-56 form the so-called Papinianian group, the contribution of the third section ; while the remainder mostly belong to what recent editors regard as an appendix to all three. The same mode of treatment is observable all through the Digest, although every now and then may be noticed the interpolation of an Edictal or Papinianian fragment in the middle of a series of Sabinianian ones, or vice versa, when it is necessary as a qualification of or an addition to what precedes. 20 Soon after the publication of the Digest, Justinian com- missioned Tribonian, Dorotheus, and two or three others to prepare a new edition of the Code of statute-law of 529. This had become necessary in consequence of the numerous amendments introduced by the emperor during the six years he had filled the throne. The terms of the commission are not preserved, but the scope of it is indicated in the consti- tution " Cordi nobis" of 16th November 534, 21 whereby the new collection was ratified under the name of Codex Justini- :o See supra, note 10. 21 It is addressed to the senate, and will be found in the preface to the Code. 412 RELATION OF CODE TO DIGEST. [SECT. 84. aneus repetitae praelectionis. This is the edition that we now possess. Owing to the entire disappearance of all copies of the earlier one it is impossible to say with certainty whether or not they proceeded on the same lines ; but from the emphasis that the emperor, in the constitution referred to, puts on the phrase repetita praelectio, it is more than probable that the only changes consisted in the deletion of what had ceased to be law, 22 and the introduction of some four hun- dred enactments of Justinian himself, including the Quin- quaginta Decisiones (p. 406). The arrangement follows that of the Edict rather more closely than does the Digest. The division is into twelve books, whose relation to the Digest is roughly this : Part i. of Digest = Books 1, 2 of Code, ii. = Book 3 in. iv. v. vi. vn. = Books 8-12 The Code, however, especially in Books 1 and 9-12, con- tains much in reference to political, ecclesiastical, criminal, municipal, fiscal, and military institutions, that has no counterpart in the Digest. Each book is subdivided into titles, much more numerous than in the jurisprudential col- lection ; and each title contains a greater or smaller number of laws (leges), the longer ones being subdivided into para- graphs. 23 In compliance with Justinian's instructions the laws in the titles are arranged chronologically ; the name of the emperor from whom each proceeded, and the body or individual to whom it was addressed, are mentioned at the head of it (inscriptio), and the place and time of its issue (if known) at the end (subscriptio). The collection contains 25 Either by accident or design one or two enactments were deleted which are founded on in the Institutes ; for example, in ii. 10, 11, and ii. 20, 27. 23 Hence the usual mode of citation, Cod, vi., 23, 1. 21, 5, or sometimes I. 21, 5, C. de testament. (vL 23). SECT. 84.] THE NOVELS. 413 between 4600 and 4700 enactments, of which more than the half were originally rescripts. The latter have manifestly been much abridged ; and comparison with corresponding versions in the Theodosian Code shows that even the con- stitutions of Constantino and Theodosius have often been considerably curtailed. The earliest in the collection is a re- script of Hadrian's, and the latest a law of Justinian's dated about a fortnight before the Code was published. Anton. Verus and Marc. Aurelius (the Dim Fratres) are responsible for about 180, Commodus for about 190, Sept. Severus and Caracalla for about the same number, Caracalla alone for nearly 250, Alexander Severus for about 450, Gordian III. for more than 270, Diocletian and Maximinian for more than 1200, Constantine for over 200, Valentinian II., Theodosius I., and Arcadius for about the same number, Valentinian II. alone for nearly 170, Arcadius for about 180, Theodosius II. for about 190, and Justinian for about 400. 24 The name of Novels (novellae constitutiones post Godicem), is given to the enactments of Justinian subsequent to the publication of the Code. They are mostly in Greek, some in both Greek and Latin, and a very small number of peculiarly local interest in Latin alone. The greater number relate to public and ecclesiastical affairs ; but some of those dealing with the private law, especially those reforming the law of intestate succession, are of the very highest import- ance. They do not seem ever to have been officially collected, and only about 170 have been preserved. 25 Taking his enactments in the Code and his Novels to- gether, we have of Justinian's own legislation not far short 24 The figures are from Deurer's Aeussere Gesch. u. Jnst. de R.R. (Heidelb. 1849), p. 174. There are chronological lists in Haenel's Corp. leg. ab impera- torib. rom. ante Juslinianum latai'um (Leipsic, 1857), and in an appendix to Kriiger's edition of the Code. 25 See Biener's Geschichte der Novetten Justinians, Berlin, 1824. A com- plete account of the sources from which those extant have been obtained may be expected in the Prolegomena to Schoell's edition of the Novels now in course of publication (see p. 439). 414 JUSTINIANIAN LAW OF [SECT. 85. of six hundred constitutions. Diocletian's contributions to the Code are more than twice as numerous, but most of them professed to be nothing more than short declaratory statements of pre-existing law ; whereas Justinian's, apart from his Fifty Decisions, were mostly reformatory enactments, many of those in the Novels as long as an average Act of Parliament, and dealing with diverse matters under the same rubric. They cover the whole field of law, public and private, civil and criminal, secular and ecclesiastical. It cannot be said that they afford pleasant reading ; they are so disfigured by redundancy of language, involved periods, and nauseous self-glorification. But it is undeniable that several of those dealing with the private law embody reforms of great moment and of most salutary tendency. The emperor sometimes loved to pose as the champion of the simplicity and evenhandedness of the early law (antiquum statum renovantes sancimus, &c.), at others to denounce it for its subtleties (antiquae subtil itatis lud-ibrium expdlentes) ; sometimes he allowed himself to be influenced by his own extreme asceticism, and now and again we detect traces of subservience to the imperious will of his consort ; but in the main his legislation was dictated by what he was pleased to call kumanitas so far as the law of persons was concerned, and by naturalis ratio and public utility so far as concerned that of things. The result was the eradication of almost every trace of the old jus Quiritium, and the substitution for it, under the name of jus romanum, of that cosmopolitan body of law which has contributed so largely to almost every modern system. SECTION 85. CHANGES IN THE LAW OF THE FAMILY. With the Christian emperors the last traces disappeared of the old conception of the familia as an aggregate of per- sons and estate subject absolutely to the power and dominion SECT. 85.] HUSBAND AND WIFE. 415 of its head. Manns, the power in a husband over his wife and her belongings, was a thing of the past; they stood now on a footing of equality before the law; perhaps it might be more accurate to say, at least with reference to the Justinianian legislation, that the wife was the more privileged of the two in respect both of the protection and indulgence the law accorded her. With manus the old confarreation and coemption had ceased, marriage needing nothing more than simple interchange of consent, 1 except as between persons of rank or when the intention was to legitimate previous issue ; in the latter case a written mar- riage settlement was required, 2 and in the former either such a settlement, or a marriage in church before the bishop and at least three clerical witnesses, who granted and signed a certificate of the completed union. 3 Second marriage, which the Julian and Papia-Poppaean law enjoined upon widows under fifty, was discountenanced by Theodosius and his successors, and latterly entailed forfeiture of the lucra nuptialia of the first, in favour of the children who were the issue of it. 4 The legislation of the Christian emperors on the subject of divorce, largely contributed to by Justinian in his Novels, has already (p. 382) been referred to. 5 In regard to the dos many new provisions were introduced, principally for curtailing the husband's power of dealing with it while the marriage lasted, enlarging the right of the wife and her heirs in respect of it, and simplifying the means of recovering it from the husband or his heirs when the marriage was dissolved. 6 Between the time of Constan- tine and that of Theodosius and Valentinian it had become 1 Theod. and Valent., in Cod. v. 4, 22 ; Just, in Nov. cxvii, cap. 4. 2 Just., in Cod. v. 27, 10, pr. 3 Just., in Nov. cxvii, capp. 4, 6. 4 Grat., Valent., and Theod., in Cod. v. 9, 1. 3 ; Leo and Anthem., eod. tit., I. 6 ; Just, eod. tit., I. 10, and in Nov. xxii, capp. 21-28. 5 There is an important enactment of Theod. and Valent. in Cod. v. 17, 8. Justinian deals with the subject eod. tit., U. 10-12, and iu Novels xxii, cxvii, cxxvii, and cxxxiv. 6 See Just., Cod. v. 12, U. 29-31 ; v. 13, I. un. 416 JUSTINIANIAN LAW OF [SECT. 85. the practice for a man to make a settlement on his intended wife of a provision which was to remain his property (but without the power of alienation) during the marriage, but to pass to her on his predecease ; it got the name of donatio ante nuptias, or sometimes, as being a sort of return for the dos, antipherna. The earliest legislation about it was by the last-mentioned emperors ; Zeno and Justin followed suit ; and Justinian, in Code and Novels, published five or six enactments for its regulation. The general result was that wherever a dos was given or promised on the part of the wife, there a donatio was to be constituted on the part of the husband ; that if one was increased during the marriage, a corresponding increase was to be made to the other ; that it might be constituted after the marriage without infringing the rule prohibiting donations between husband and wife, (which caused Justinian to change its name to donatio propter nuptias) ; that the wife might demand its transfer to her (as she could that of the dos) on her husband's insol- vency, but under obligation to apply its income to the maintenance of the family ; and that, on the dissolution of the marriage by her husband's death or by a divorce for which he was in fault, she had ample remedies for reducing it into possession. 7 The change in the complexion of the relations between husband and wife under the Christian emperors, however, was insignificant when compared with that which had over- taken the relation between parent and child. Justinian in his Institutes reproduces the boast of Gaius that nowhere else had a father such power over his children as was exer- cised by a Roman paterfamilias. 8 True it is that the patria potestas in name still held a prominent place in the Justin- ianian collections; but it had been shorn of most of the prerogatives that had characterised it during the republic. To 7 See Inst. ii. 7, 3, and tit. Cod. de don. ante nupt. (v. 3). 8 Inst. i. 9, 2. SECT. 85.] PARENT AND CHILD. 417 expose a new-born child was forbidden under penalties. 9 To take the life of a grown-up one unless it was a daughter slain with her paramour in the act of adultery 10 was murder; 11 for the domestic tribunal, with the judicial power of life and death in the paterfamilias as its head, had long disappeared. For the same reason a parent could no longer sell his child as a slave ; at least he could do so only when the child was an infant, and he in such extreme poverty as to be unable to support it. 12 Even the right to make a noxal surrender of his son to a party who had suffered from the latter's delict had silently become obsolete, so greatly had altered sentiment, in sympathy with legislation, curtailed the power of the paterfamilias over those in his potestas. 13 All that remained of it in the latest Justinianian law was no more than is sanctioned in most modern systems as natural emanations of the paternal relationship, the rights of moderate chastisement for offence, of testamen- tary nomination of guardians, of giving a Jiliusfamilias in adoption, of pupillary substitution (enlarged by Justinian), and of withholding consent from the marriage of a child, (subject to magisterial intervention if done unreasonably). How the right of the paterfamilias over the earnings and acquisitions of his children was modified by tlie recognition of the peculium castrense ml quasi has been shown in a pre- vious section (p. 344). But the modification was carried to such an extent by the Christian emperors as finally to nega- tive the father's ownership altogether, except as regarded acquisitions that were the outcome of funds advanced by him to his Jiliusfamilias for his separate use (peculium profceti- cium). u Of some of the child's acquisitions his father had, down to the time of Justinian, the life-interest and right of administration ; but by his legislation even these might be 9 Valent., Val., and Grat, in Cod., viii. 51, I. 2 ; Just., eod. tit., I. 3. 10 Dig., xlviii. 5, fr. 20, fr. 22, 2, 4. Const., in Cod., ix. 17, I un. 12 Const., in Cod., viii. 46, 10, and iv. 33, 2. 13 Jnst., iv. 8, 7. " Just., Inst., ii. 9, 1 ; Cod., vi. 61, 6. 2 D 418 THE JUSTINIANIAN LAW OF [SECT. 85. excluded at the pleasure of the persons from whom the acquisitions had been derived. 15 By the classical law, the father's radical right in his son's peculium castrense revived on the latter's death ; for if he died intestate the former appropriated it, not as his son's heir, but as an owner whose powers as such had been merely temporarily suspended. 16 But, by one of the chapters in the famous Novel on the law of intestate succession, even this prerogative of the paterfamilias was abolished, and all a child's belongings except his peculium profecticium recognised as his own in death as well as in life, so that, if any of them should pass to his parent on his intestacy, it should only be by title of inheritance and in the absence of descendants. 17 In every other branch of the law of the family the same reforming spirit was manifested. Adoption was no longer followed in all cases by a change of family for the adoptee, but only when the adopter was in fact one of his parents, such as a paternal or maternal grandfather, when there was a natural potestas to underlie and justify the civil one. 18 The modes of legitimation of children born out of wedlock, especially that by subsequent marriage of the parents, first introduced by Constantino, 19 were regulated, and the extent of the rights of the legitimated issue carefully defined. 20 Emancipation was simplified, and the old procedure by sales and manumissions, which degraded the child too much to the level of a slave, dispensed with. 21 Tutory at law was opened to the pupil's nearest kinsmen, whether on the father's side or the mother's ; 22 and the mother herself, or the child's grandmother, might be allowed, under certain 15 Nov. cxvii, cap. 1, pr. 16 Ulp., in Dig., xlix. 17, 2. 17 Nov. cxviii, cap. 1. 18 Just., in Cod., viii. 47, 10. 19 Cod., v. 27, 5. 20 Just., iu Cod., v. 27, tt. 10, 11 ; Nov. xii, cap. 4 ; Ixxiv, praef., capp. 1, 2 ; Ixxxix, capp. 8-10. 21 Just., Cod., viii. 48, 6. 22 Just., Cod., vi. 58, 15, 4 ; Nov. cxviii, cap. 5. SECT. 86.] FAMILY AND PROPERTY. 419 conditions, to act as its guardian. 23 Slavery was often con- verted into the milder condition of colonate ( 75) ; but even where this did not happen, the rights of owners were not allowed to be abused ; for slaves were permitted to claim the protection of the magistrate, and cruelty by a master might result in his being deprived of his human property. 24 Kinship that had arisen between two persons when one or both were slaves (sermlis cognatio) was recognised as creative not only of disabilities but of rights. 25 The modes of manu- mission were multiplied, and the restrictions of the legisla- tion of the early empire (p. 337) abolished ; 26 and a freedman invariably became a citizen, Junian latinity (p. 339) and dediticiancy being no longer recognised. 27 SECTION 86. THE LAW OF PROPERTY AND OBLIGATION. In the law of property the principal changes of the Christian empire were the simplification of the forms of conveyance, the extension of the colonate, the introduc- tion and regulation of emphyteusis, and the remodelling of the law of prescription. Simplification of the forms of conveyance was necessary only in the case of res mancipi, for res nee mancipi had always passed by delivery. From the Theodosian Code it is apparent that movable res mancipi usually passed in the same way from very early in the period ; and that for the mancipation of lands and houses for in jure cessio had disappeared with the formular system a solemnis traditio, a written instrument and delivery fol- lowing thereon, and both before witnesses, was gradually substituted. 1 Of this there is no trace in the Justinianian Code. For the emperor abolished all remains of the distinc- 53 This had been allowed even before the time of Justinian. See the enact- ment of Valent., Theod., and Arcad., in Cod., v. 35, 2. See also Nov. cxiv. 24 Inst., i. 8, 2. M Inst., iii. 6, 10. M Inst., i. 5, 1. 27 Cod., vii. 5, vii. 6 ; Inst., i. 5, 3. 1 Theod., Arcad., and Honor., in Theod. Cod., ii. 29, 2, 1, 2. 420 THE JUSTIXIANIAN LAW OF [SECT. 86. tion between res mancipi and nee mancipi, between full ownership, bonitarian ownership, and nudum jus Quiritiurn, placing movables and immovables on a footing of perfect equality so far as their direct conveyance was concerned. 2 But as regarded the possession required of an alienee to cure any defect in the conveyance, he made a marked dif- ference between them. For, amalgamating the old positive usucapion of the jus civile with the negative " prolonged possession" (lonyi temporis possessio) that had been intro- duced in the provinces (probably by the provincial edict), he declared that possession on a sufficient title and in good faith should in future make the possessor legal owner of the thing possessed by him, provided that the possession of himself and his author had endured uninterruptedly for three years in the case of a movable, and in the case of an immovable for ten years if the party against whom he possessed was resident in the same province, or for twenty if he resided in another one. 3 The effects of the extension of the colonate have already been referred to ( 75). The same causes that had led to it induced the introduction of emphyteusis ; 4 an institution which had previously existed in some of the Eastern provinces when independent, and which came to be utilised first by the emperors, then by the Church, and afterwards by muni- cipalities and private landowners, for bringing into cultiva- tion the large tracts of provincial land belonging to them which were unproductive and unprofitable through want of supervision on the spot. One somewhat like it had long existed both in Italy and in some of the western provinces under the name of ager vectigalis, an inheritable lease for a long term of years, usually from a municipality, which gave the grantee rights much greater than those of an ordinary 2 Cod., vii. 31. 3 Inst., ii. 6, pr ; Cod., vii. 31. 4 On emphyteusis, see Lattes (as in 75, note 1), chaps, i. and iii. ; Franjois De I'emphyteoie, Paris, 1883. SECT. 86.] PROPERTY AND EMPHYTEUSIS. 421 tenant ; but this Justinian assimilated to emphyteusis. The nature and conditions of the latter were carefully defined by Zeno and amended by Justinian himself. 5 The emphyteuta, as the grantee of the right was called, did not become owner ; the granter still remained dominus, all that the grantee enjoyed being a jus in re aliena, but de facto so ex- tensive as hardly to be distinguishable from ownership. It conferred upon him and his heirs a perpetual right in the lands included in the grant, in consideration of a fixed annual payment to the lord (canon) and due observance of conventional and statutory conditions ; but he was not en- titled to abandon it, or able to free himself of the obligations he had undertaken, without the lord's consent. The latter was entitled to hold the grant forfeited if the canon fell into arrear for three years (in church lands for two), or if the land-tax was in arrear for the same period, or if the emphy- teuta allowed the lands to deteriorate, or if he attempted to alienate them (alienare meliorationes as the text says) with- out observance of statutory requirements. These were that he should intimate an intended alienation and the name of the proposed alienee to the lord, so that the latter, before giving his assent, might satisfy himself that he would not be a loser by the transaction ; and if the alienation was to be by sale, he had to state the price fixed, so as to give the lord the opportunity of exercising his statutory right of pre- emption at the same figure. If those requirements were complied with, and the lord, himself declining to purchase, had no reasonable objection to the proposed alienee, he was not entitled to resist the alienation, provided a payment (laudemium) was made to him of two per cent, of the sale price in consideration of his enforced consent. The changes in the law of obligation were more superficial than those in the law of property, and consisted principally 5 Zeno, in Cod., iv. 66, 1 ; Just., eod. tit., II. 2, 3 ; Nov. vii, cap. 3, 2 ; Nov. cxx, capp. 6, 8. 422 THE JUSTINIANIAN LAW OF [SECT. 87. in the simplification of formalities, and in some cases their entire abolition. To describe them, however, would neces- sitate details which would here be out of place. SECTION 87. CHANGES IN THE LAW OF SUCCESSION. The changes made in the law of succession by Justinian's Christian predecessors, especially Theodosius II. and Anas- tasius, were far from insignificant ; but his own were in some directions positively revolutionary. The testament per aes et libram of the jus civile (pp. 167 sq.) probably never obtained any firm footing in the East ; for it was only by Caracalla's constitution conferring citizenship on all his free subjects that provincials generally acquired testamenti fac- tio ; and by that time a testament bearing externally the requisite number of seals had been recognised as sufficient for a grant of bonorum possessio, unchallengeable by the heirs- at-law, even though they were able to prove that neither familiae mancipatio nor testamenti nuncupatio had inter- vened. 1 Hence the universal adoption of what Justinian calls the prastorian testament ; 2 which, however, underwent considerable reform at the hands of the emperors, notably in the requirement (in the ordinary case) of signature by the testator and subscription by the witnesses. There was much hesitating legislation on the subject before the law was finally established as it stands in the Justinianian books ; s and even at the last we find it encumbered with many exceptions and reservations in favour of testaments that were merely deeds of division by a parent among his 1 Gai., ii. 119, 120 ; Ulp., xxiii. 6, xxviii. 6. 2 Inst, ii. 10, 2. 3 The leading provisions are in the title of the Code de testamentis (vi. 23). The testator's subscription was required by an enactment of Theodosius II. of the year 439 (Cod., vi. 23, 21). The subscriptions of five witnesses (as well as their seals) had been required by Arcad. and Honor. (Theod. Cod., iv. 4, 3, 1, 2), who declared they were following a rule of Constantine's. It was Theodosius in (439) that reverted to the old number of seven. SECT. 87.] TESTATE AND INTESTATE SUCCESSION. 423 children, testaments made in time of plague, testaments recorded in books of court, testaments intrusted to the safe- keeping of the emperor, and so forth. Codicils had become deeds of such importance as, in the absence of a testament, to be dealt with as imposing a trust on the heir-at-law ; 4 it was therefore thought expedient to refuse effect to them unless attested by at least five witnesses. 5 And a most important step in advance was taken by Justinian in the recognition of the validity of an oral mortis causa trust ; for he declared that if it should be represented to a competent judge that a person on his deathbed had by word of mouth directed his heir-at-law to give something to the complainant, the heir should be required either on his oath to deny the averment or to give or pay what was claimed. 6 In the matter of intestacy there was long a halting be- tween two opinions, a desire still further to amend the law in the direction taken by the praetors and by the legislature in the Tertullian and Orphitian senatusconsults (p. 355 sq.), and yet a hesitancy about breaking altogether from the time-hallowed principle of agnation. 7 Justinian in his Code went far beyond his predecessors, making a mother's right of succession independent altogether of the jus liberorum ; 8 extending that of a daughter or sister to her descendants, without any deduction in favour of agnates thus excluded ; 9 admitting emancipated collaterals and their descendants as freely as if there had been no capitis deminutio ; 10 applying to agnates the same successio graduum that the praetors had allowed to cognates, 11 and so forth. But it was by his Novels, and especially the 118th and 127th, that he revolu- tionised the system, by eradicating agnation altogether, and settling the canons of descent which were the same for 4 Inst., ii. 23, 10 ; ii. 25, 1. B Theod., in Cod., vi. 36, 8, 3. Cod., vi. 42, 32 ; Inst., ii. 23, 12. 7 Examples in Inst., iii. 1, 15 ; iii. 3, 5 ; iii. 5, 1. a Cod., viii. 58, 2. Cod., vi. 55, 12. 10 Cod., vi. 58, 15, 1. 11 Cod., vi. 4, I. 4, 20 ; Inst., ii. 2, 7. 424 THE JUSTINIANIAN LAW OF [SECT. 87. real and personal estate solely on the basis of blood kin- ship, whether through males or females, and whether crossed or not by a capitis deminutio minima (pp. 127 sq.) First came descendants of the intestate, male and female alike, taking per capita if all were of the nearest degree, per stirpes if of remoter ones. Failing descendants, the succession passed to the nearest ascendants, and, concurrently with them, brothers and sisters of the full blood and (by Nov. 127) the children of any that had predeceased. Where there were ascendants alone, one-half of the succession went to the paternal line and one-half to the maternal ; where there were ascendants and brothers and sisters, or only brothers and sisters, the division was made equally per capita ; when children of a deceased brother or sister participated it was per stirpes. In the third class came in brothers and sisters of the half blood or by adoption, and their children ; the partition here was on the same principle as in the second class. The fourth class included all other collaterals accord- ing to propinquity, and without distinction between full and half blood ; the primary division was per stirpes, but all of the same branch took per capita. A reform effected by Justinian by his 115th Novel ought not to pass unnoticed, for it rendered superfluous all the old rules about disherison and prseterition of a testator's children (p. 171 sq.^), practically abolished bonorum %>ossessio contra tdbulas (p. 291), and established the principle that a child had, as a general rule, an inherent and indefeasible right to be one of his father's heirs in a certain share at all events of the hereditas, and that a parent had the same right in the succession of his child if the latter had died without issue. The enactment enumerated certain grounds upon which alone it should be lawful for a parent to dis- inherit his child or a child his parent ; declaring that in every case of disherison the reason of it should be stated in the testament, but giving leave to the person disinherited SECT. 87.] TESTATE AND INTESTATE SUCCESSION. 425 to dispute and disprove the facts when the testament was opened. If a child who had not been disinherited and one improperly disinherited was eventually in the same position was not instituted to some share, however small, of his parent's hereditas, he was entitled to have the testa- ment declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting the minor pro- visions, such as bequests, nomination of tutors, &c. ; and if the share to which he was instituted was less than his legitim (legitima or debita portio), he was entitled to an action in supplement. The legitim, which under the prac- tice of the centumviral court had been one-fourth of the share to which the child would have been entitled ab intestato, was raised by Justinian (by his 18th Novel) to one-third at least, and one-half where there were five or more entitled to participate. He did not allow challenge of the will to be ex- cluded, as in the earlier querela inofficiosi testamenti (p. 249), because the testator had made advances to his child during his life or left him a legacy which quantitatively equalled the legitim ; his idea was that a child was entitled to recognition by his parent as one of his heirs, and that without cause to deny him that position was to put upon him an affront which the law ought not to tolerate. Amongst the other beneficial changes effected by Jus- tinian or his immediate predecessors may be mentioned the assimilation as far as possible of hereditas and bonorum pos~ sessio, so that the latter might be taken like the former without formal petition for a grant of it ; 12 the equiparation of legacies and singular trust-gifts, 13 and the application of some of their rules to mortis causa, donations ; u the exten- sion of the principle of " transmission" to every heir without 12 Const., in Cod., vi. 9, 9. 13 Just, in Cod., vi. 43, 2, 1 ; Inst., ii. 20, 3. 14 Just., in Cod, viii. 56, 3 ; Inst., ii. 7, 1. 426 JUSTINIANIAN LAW OF SUCCESSION. [SECT. 87. exception, so that, if he died within the time allowed him for considering whether or not he would accept (tempus deliberandi), his power of acceptance or declinature passed to his heirs, to be exercised by them within what remained of the period : 15 the introduction of entry under inventory (cum beneficio inventarii), which limited the heir's responsi- bilities, and rendered unnecessary the nine or twelve months of deliberation ; 16 and the application of the principle of collation to descendants generally, so that they were bound to throw into the mass of the succession before its partition every advance of importance they had received from their parent in anticipation of their shares. 17 15 Just., in Cod., vi. 30, I, 19, 1. 22, 13. 16 Just., in Cod., vi. 30, 22. 17 Leo, in Cod., vi. 20, 17 ; Just., eod. tit., U. 19, 20 ; Nov. xviii, cap. 6. SFCT. 88.] THE JUSTINIANIAN LAW-BOOKS. 427 CHAPTER FOURTH. THE JUSTINIANIAN LAW-BOOKS. SECTION 88. THEIR USE m THE COURTS AND IN THE SCHOOLS. 1 ALTHOUGH the Institutes were primarily intended to serve as a text-book in the schools, yet it was expressly declared that they and the Digest and Code should be regarded as just so many parts of one great piece of legislation and all of equal authority ; and that, although Digest and Code were but collections of legislation and doctrine that had proceeded originally from many different hands, yet they were to be treated with the same respect as if they had been the work of Justinian himself. But, while everything within them was to be held as law, nothing outside them was to be looked at, not even the volumes from which they had been collected ; and so far did this go that, after the publication of the revised Code, neither the first edition of it nor the Fifty Decisions were allowed to be referred to. If a case arose for which no precedent was to be found, the emperor was to be resorted to for his decision, as outside his collections the only fountain of the law. To preserve the purity of the texts, for which Justinian would have done well to have followed the example of Alaric, who had copies of his Breviary prepared and certified in the chancery, and then distributed through the country, he forbade the use of 1 See Heimbach's Prolegomena Basilicorum (Leipsic, 1870), book i. chap. i. 1-6, chap. ii. 1, 2. 428 JUSTINIAN'S LAW-BOOKS IN [SECT. 88. conventional abbreviations (sigla) in making transcripts, visiting an offender with the penalties of falsification (crimen falsi). Literal translations into Greek were authorised, and indeed very necessary for many of his subjects ; and so were 7rapa.TiT\a or summaries of the contents of individual titles, (although the jurists read the word less strictly). Com- mentaries and general summaries were forbidden under heavy penalties, as an interference with the imperial pre- rogative of interpretation ; but the prohibition does not seem to have been enforced, as we have accounts and remains not only of translations, but of commentaries, notes, abridgements, excerpts, and general summaries, even in Justinian's lifetime. Dorotheus, Anatolius, and Thalelaeus were all amongst those to whom his collections were specially addressed, and two of them were engaged in their preparation ; yet the first was author of a translation of the Digest with notes ; the second made an abridgement of the Code ; and the third translated it with annotations. Julian, too, who made a Latin abridgement of the Novels in 556, probably at the instance of Justinian himself, has been identified with an Anonymus often referred to in the scholia of the Basilica, as the author of an annotated translation of the Digest. All of these, it is true, were professors (ante- cessores), and their productions may have been intended primarily for educational purposes ; but there can be little doubt that they soon passed into the hands of the practi- tioners and were used without scruple in the courts. In the early empire the teaching 2 of the law was free ; and it may have been first in the time of Diocletian that state recognition was accorded to the schools of Rome and Beirout, and not until considerably later that it was extended to those of Constantinople, Alexandria, and Cassarea. That of Rome seems still to have subsisted while Italy was in the 2 See Heimbach as in last note ; Amos, History and Principles of the Civil Law (London, 1883), p. 102 s%.; Karlowa, Rom. RG., p. 1022 sq. SECT. SS.] THE COURTS AND THE SCHOOLS. 429 hands of the Ostrogoths ; but Justinian suppressed those of Alexandria and Caesarea, and prohibited the public teaching of law elsewhere than in the other three, under heavy pecuniary penalties. The course of study prior to Justinian's reforms ran over five years, the last two being given to private read- ing. The students of the first year dupondii they were called were taken through the Institutes of Gaius and four separate books of his (libri singulares) on dowries, tutories, testaments, and legacies. Those of the second (edictales) and third (Papinianistae) were exercised in the Edict or probably Ulpian's commentary on it, and the latter (in addi- tion) in eight of the nineteen books of Papinian's Responses. In the fourth the students (then called \vrai) read Paul's Responses, and in the fifth (TrpoXvTai) the imperial consti- tutions. Justinian still enjoined a five years' course, but prescribed that the teaching should be entirely from his own collections. The men of the first year whom he relieved of their old nickname, and honoured with the title of novi Justinianei (Justinian's freshmen) were to be in- structed in the Institutes and the first part (books 14) of the Digest ; those of the second year in either the second (books 511) or the third part (books 1219) of the Digest, along with four of the last fourteen books of parts iv. and v., of which one should be on the law of dowries, one on tutories, one on testaments, and one on legacies ; those of the third year in that one of parts ii. and iii. of the Digest which had not been taken up in the second, together with the first three books of the fourth part ; those of the fourth year were to read privately the remaining ten books of parts iv. and v. ; while those of the fifth were to read the Code of imperial constitutions, leaving the sixth and seventh parts (books 3750) of the Digest to be read after the course was completed, as opportunity presented itself. As already observed, it is not improbable that the instruction thus pre- scribed was conveyed through the medium of translations and 430 THE JUSTINIANIAN BOOKS [SECT. 89. annotated summaries of the Justinianian books. A Greek paraphrase of the Institutes, usually attributed to Theo- philus, a professor in Constantinople and one of Justinian's commissioners, is commonly supposed to have been used by him in his prelections. It embodies much more historical matter than is to be found in the Institutes ; but its value has been very differently rated by different critics. Its latest editor, Ferrini, 3 who puts a high estimate on it, is of opinion that the original of it was a paraphrase of Gaius, which was remodelled after the plan of Justinian's Institutes, and had their new matter incorporated in order to adapt it to the altered conditions ; but he doubts if there be any sufficient authority for ascribing it to Theophilus. If he be right in assuming it was really a redaction of Gaius, the historical explanations will be received with all the more confidence. SECTION 89. FATE OF THE JUSTINIANIAN BOOKS IN THE EAST. 1 The literary work indicated in the first part of last section was continued throughout the sixth century by various writers, of whom Heimbach gives some account in his Pro- legomena. But the next three were comparatively barren ; the only thing worth noting being the 'E/cXo'y^ rwv VO/AWV ev of Leo the Isaurian in 740, professedly an 3 Institutionum graecn paraphrasis Theophilo antecessori vulgo tributa. Ad fd. libror. manuscriptor. recensuit E. C. Ferrini. 2 vols., Berlin, 1884, 1885, (second not yet completed). 1 Zachariae, Historiae juris Graeco-Romani delineatio, Heidelberg, 1839 ; Montrueil, Histoire du Droit Byzantin, 3 vols., Paris, 1 843-46 ; Prolegomena to Heimbach's edition of the Basilica (6th vol. of Basilicorum libri LX . . . Restituit C. G. E. Heimbach, 6 vols., Leipsic, 1833-70, with a supplement to books 15-19 by Zachariae in 1846) ; Zachariae von Lingenthal, Jus Graeco- Romanum, (a collection of Byzantine treatises of the second order,) 7 vols. Leipsic, 1856-84 ; Zachariae v. Ling., Gesch. d. Griech.-Rom. Rechts (doctrine), 2d ed., Berlin, 1877 ; Rivier, Introd. hist, au droit romain (2d ed., Brussels, 1881), p. 545 sq.; Amos (as in 88, note 2), p. 392 sq. SECT. 89.] IN THE EAST. 431 abstract of the whole Justinianian law amended and re- arranged, but which was repealed by Basil the Macedonian on account of its imperfections and its audacious departure from the law it pretended to summarise. The last-named emperor, with his son Leo the Philosopher, set themselves in the end of the ninth and beginning of the tenth centuries to the production of an authoritative Greek version of the whole of the Justinianian collections and legislation, omit- ting what had become obsolete, excising redundancies, and introducing such of the post-Justinianian legislation as merited preservation. The result was the Basilica (TO. Bao-iXt/ca, i.e., vo/m.ifjLa), which was completed in the reign of Leo, though probably issued in a preparatory stage in the reign of Basil, (who also published a sort of institutional work, the Upo-^eipov, which was revised and republished by Leo under the name of 'R-Travaywyt] TOV VOJU.QV). The Basilica are in sixty books, subdivided into titles, following generally the plan of the Justinianian Code, but with the whole law on any particular subject arranged consecutively, whether borrowed from the Digest, the Code, or the Novels. Leo's son, Constantinus Porphyrogenetus, made an addition to it in the shape of an official commentary collected from the writ- ings of the sixth-century jurists, the so-called Hapdypcupai Tcav TraXaicov, which are now spoken of as the Scholia to the Basilica, and have done good exegetical service for modern civilians. The Basilica retained their statutory authority until the fall of the Byzantine empire in 1453. But long before that they had practically been abandoned ; and not a single complete copy of them exists. Their place was taken by epitomes and compendia, of which several are printed in Zachariae's collection, the last being the 'Ect/3*/3Ao9 of Const. Harmenopulus of 1345, 2 " a miserable epitome of the epitomes of epitomes," as Bruns calls it, which survived the 2 Harmenopuli manuale leyum seu Hexabiblos. Rccensuit G. E. Heimbach, Leipsic, 1851. 432 THE JUSTINIANIAN BOOKS [SECT. 90. vicissitudes of the centuries, and finally received statutory authority in the new kingdom of Greece in the year 1835, in place of the Basilica which had been sanctioned in 1822. SECTION 90. THEIR FATE IN THE WEST. Before the rise of the Bologna school it was to a very much greater extent from the Romano-Barbarian Codes ( 79) than from the books of Justinian that Central and Western Europe derived their acquaintance with Roman law. Theodoric's Edict can have had little influence after Justinian's recovery of Italy, and the Romano-Burgundian law was no doubt gradually displaced by the Breviary (Lex Rom. Visigothorum) after Burgundy had fallen into the hands of the Franks ; but the Breviary itself found its way in all directions in France and Germany, penetrating even into England, to a great extent through the agency of the Church. There must, however, have been other repertories of Roman law in cir- culation ; as witness a testament made in Paris in the end of the seventh century, preserved by Mabillon, in which the testator uses the old formula of the jus civile, " ita do, ita lego, ita tester, ita vos Quirites testimonium mihi perhibe- tote," words that are not to be found either in the Visi- gothic or the Justinianian collections. In his pragmatic sanction of the year 554 Justinian anew accorded his imperial sanction to the jura and leges, i.e., the Digest and Code, which he says he had long before trans- mitted to Italy ; at the same time declaring that his Novels were to be of the same authority there as in the East. Two years after this came Julian's Latin epitome of them, not improbably prepared by command of the emperor himself. That they all came at once to some extent into use is be- yond question ; for there is preserved in Marini's collection the testament of one Mannanes, executed at Ravenna in the reign of Justinian's immediate successor, Justin II., in which SECT. 90.] IN THE WEST. 433 the requirements of both Code and Novels are scrupulously observed. Of other monuments of the same period that prove the currency of the Justinianian law in Italy, several are referred to by Savigny in the second volume of his His- tory of the Eoman Law in the Middle Ages ; among which may be mentioned the Turin Gloss of the Institutes, which Fitting ascribes to about the year 545, and two little pieces known as the Dictatum de consiliariis and the Colledio de tutoribus, which form an appendix to some manuscripts of Julian's Epitome of the Novels, and may possibly have been from his pen. The invasion of the Lombards, the disturb- ance they caused in Italy for 200 years, and the barrier they formed between it and the rest of Europe, militated against the spread of the Justinianian law northwards ; but it was taught without much interruption in Ravenna, the seat of the exarchs, to which but this is doubtful the school (studium) of Rome, revived by Justinian, is said to have been transferred. By the Lombards, as their savagery toned down, the Roman law was recognised to this extent, that they allowed it to be applied to Romans within their territory ; and it is said to have even been taught in Pavia, which they had established as their capital. Their over- throw by Charlemagne opened an outlet for it beyond Italy ; and in the ninth century there is evidence that the Jus- tinianian books, or some of them, were already circulating in the hands of the clergy in various parts of Europe. Yet there are very few remains of any literature indicating much acquaintance with them. Almost the only pieces worth mentioning are the so-called Summa Perusina, an abridge- ment of the first eight books of the Code, ascribed to the ninth century ; the Quaestiones ac Monita on the Lombardic Laws, drawn mostly from the Institutes, but with a few texts from the Digest, the Code, and Julian's Epitome, and supposed to have been written early in the eleventh cen- tury; the Brachylogus, an abbreviated revision of Justinian's 2s 434 THE JUSTINIANIAN BOOKS [SECT. 90. Institutes, with references to his other books, which is thought to have been written in France (Orleans ?), accord- ing to Fitting between 999 and 1002, but according to other authorities nearer the end of the eleventh century ; and Petri exceptiones legum romanarum, a systematic exposi- tion of the law in four books, written in the south of France early in the latter half of the eleventh century, and mostly compiled from Justinianian sources. It was in the very end of the eleventh century or the beginning of the twelfth that at Bologna, and under one Irnerius, who appears not to have been a professional jurist but originally a teacher of letters, the study of Eoman law began somewhat suddenly to attract students from all parts of southern Europe. The only parts of the Justinianian legislation that had hitherto made any great way, and that through the action of the clergy, were the Institutes, the Code, and the Novels. The first, from its elementary character, had very naturally commended itself; the Code, with its opening title on the Trinity and its second on Holy Church, and the Novels with their abundant legislation on matters ecclesiastical, were in many respects charters of the Church's privileges and prized accordingly ; but the Digest, the work of pagan jurists, had been practically ignored. The Code and the Novels, however, with their modicum of wheat con- cealed in such a quantity of chaff, offered little attraction to laymen of intelligence ; and when a copy of a portion of the Digest, with its infinitely purer diction and clear and incisive reasoning, came into the hands of Irnerius, it must have been for him as a new revelation. The text of it seems to have reached him by instalments ; at least this is the reasonable explanation of its division by the Glossarists as Irnerius and his successors of the Bologna school were called, from the glossae, notes marginal and interlinear, with which they furnished it into three parts, Digestum Vetus (books 1 to 24, tit. 2), Infortiatum, and Digestum Novum (books 39 to SECT. 91.] IN THE WEST. 435 the end) ; the general idea being that after first the old and then the new Digest had come to light, the connecting link unexpectedly turned up, and got in consequence the some- what singular name by which it continued to be known for centuries. The whole collection was by the Glossarists dis- tributed in five volumes ; the fourth containing the first nine books of the Code, and the fifth, called volumen parvum legum, containing the Institutes, a Latin translation of 134 of the Novels known as the Authenticum, and the last three books of the Code (which had been recovered subsequently to the others). With those five volumes, the teaching that accompanied them, and the glossae, summae, casus, brocardica, &c., with which they were enriched from the rise of the school with Irnerius till its close with Franciscus Accursius in 1260, Roman jurisprudence began a new career, which it would carry me beyond the scope of this little book to attempt to trace even in meagrest outline. 1 SECTION 91. THE PRINCIPAL MANUSCRIPTS, TEXTS, AND EDITIONS OF THE JUSTINIANIAN BOOKS. Of the whole Corpus Juris Civilis, as the collected body of the Justinianian law was first styled by Denis Godefroi (Gotho- fredus) in 1583, very few MSS. are known to exist. There is one in Copenhagen, but it is not of great antiquity or any 1 The great authority on the matter of this section is still Savigny's Gesch. d. Rom. Redds im Mittelalter, 7 vols., 2d ed., Heidelberg, 1834-51 ; but much additional light has been thrown on it by Merkel, Stintzing, Blume, Fitting, Bruns, Mommsen, Kriiger, Ficker, Rivier, Conrat (Cohn), and others, whose writings, mostly in periodicals, are too numerous to mention. On the early traces of Roman law in Britain, see Amos (as in 88, note 2), p. 443 sq. ; Caillemer, Le Droit Civil dans les provinces Anglo-Normandes, Caen, 1883 ; Scrutton, The Influence of the Roman Law on the Law of England, Cambridge, 1885. A tractate by Leonard, Beitrage zur Geschichte des Romischen Rechts in England, (Heidelb. 1868), is of little value ; it is mostly compiled from Selden's Ad Fletam dissertatio, Savigny's Geschichte, and Wenck's Mayister Vacarius, primus juris Romani in Anylia Professor, Leipsic, 1820. 436 MANUSCRIPTS, TEXTS, AND EDITIONS OF [SECT. 91. critical value. It is said that a second exists (or existed) in the Dominican library at Wiirzburg, gifted to it by the Em- peror Frederick Barbarossa, and a third in a convent library at Prague ; but the mention in the Catalogus MSS. Angliae et Hiberniae of the existence of a fourth in the cathedral library at Salisbury is founded on a misapprehension. Of printed editions, on the other hand, it may be said with certainty that there is but one book of which there is a greater multitude, the Holy Bible. Of the Institutes the manuscripts are numerous, the earliest mere fragments, and but one of the ninth (or more probably tenth) century complete, the Codex Bambergensis ; the great majority are of the fourteenth century, and some still later. The earliest edition was that of Peter Schoeffer (Mayence, 1468), with the Accursian gloss; the first unglossated one was published in Paris in 1511 ; and the most authoritative one at the present day, being the result of a collation of the best manuscripts, is that of Kriiger, first published in 1867. The texts of Schrader (1832) and Huschke (1868) rank next in importance. There is but one complete manuscript of the Digest of earlier date than the rise of the Bologna school, the famous Codex Florentinus, formerly in Pisa, but now one of the most valued treasures of the Lorenzian Library in Florence. Of this MS. a minute description is given by Brencmann in his Historia Pandectarum (Utrecht, 1722), and a more critical one by Mommsen in the preface to the first volume of his greater edition of the Digest (Berlin, 1866). It is a very beautiful codex, dating from the sixth or seventh century, written, if not in Constantinople, at all events in Greece, with a good many corrections by later hands. It is free from abbreviations, the sigla which Justinian had for- bidden ; and has neither numeration of the consecutive fragments, nor spaces between the words, nor punctuation except at the end of sentences. The inscriptions are always SECT. 91.] THE JUSTINIANIAN BOOKS. 437 preserved, and the Greek passages written with even greater accuracy than the general text. Also of great antiquity, and probably not much younger than the Florentine, are the Pommersfeld and Naples codices ; but they are mere fragments, the first a papyrus containing part of the first title of the forty-fifth book, and the second a palimpsest con- taining part of the tenth book. A manuscript in the Royal Library at Berlin, which dates from the ninth century, con- tains part of the ninth book. No other known codices go beyond the commencement of the school of the glossarists. With very few exceptions, they contain not the whole Digest, but only one of its Bolognese divisions, either the Dig. Vetus, the Infortiatum, or the Dig. Novum ; not more than six or eight are as old as the eleventh or twelfth century ; while about 500 are known of later date. These last for the most part contain the Accursian gloss ; and it is char- acteristic of them that they do not give the inscriptions in full, i.e., the indications of the books of the old jurists from which the passages had been excerpted, and some- times omit them altogether ; and that they omit the Greek words and sentences, or substitute for them a current Latin translation. Of the texts, three are distinguished by the civilians, the Pisan, the Vulgate, and the Noric. The first is that of the Florentine manuscript. The Vulgate is that which was adopted by the glossarists, and which is to be found, more or less variated, in all the manuscripts from the thirteenth century downwards. Mommsen is of opinion that, while the (Pisan or) Florentine formed the basis of the Bologna text, yet the glossarists must have been in pos- session of another manuscript of perhaps equal antiquity, though possibly incomplete, from which they corrected the former with great advantage. The lectio Norica or Halo- andrina is a mixed text due to Gregorius Haloander (Metzler), the result of a collation of the Florentine with some of the oldest Vulgate MSS., aided largely by arbitrary 438 MANUSCRIPTS, TEXTS, AND EDITIONS OF [SECT. 91. conjecture, which was published by him at Nuremberg in 1529. The editio princeps, curiously enough, was of the Infortiatum, at Borne, in 1475 ; the Dig. Vetus and Novum followed in the ensuing year at Perusina and Rome respec- tively. All three were prints of the Bologna text, with the Accursian gloss. Haloander's edition of 1529, which was of the whole Digest, was unglossated. So was the magni- ficent reproduction of the Florentine Pandects by the Torellis in 1553, under the sanction of several crowned heads, and amongst them King Edward VI. From that time, and down to the middle of the present century, most unglossated editions the latest glossated one dates from 1627 were a combination of all three texts, the Florentine predominating, but conjectural readings gradually multiplying. The uncer- tainty which thus resulted induced Mommsen to undertake the preparation of the edition (2 volumes, Berlin, 1866-70) which is now on all hands accepted as authoritative. It is substantially the reading of the Florentine from a new col- lation prepared for the purpose, checked only by the three fragments above referred to and a small number of the very earliest Bologna codices, and, where necessary, by the Basilica and its scholia ; conjectural emendations being very sparingly admitted, and usually relegated to footnotes. Of the Code there exist three incomplete ante-glossarist manuscripts. Irnerius seems to have had originally only the first nine books, for the three last (tres libri) formed part of the Volumen according to the Bologna arrangement. They all fared somewhat badly ; for comparatively early the inscriptions and subscriptions and all the Greek constitu- tions came to be omitted. Into the Code as they had it the glossarists introduced what they called Autkenticae, notes of the alterations made on the law by Justinian's Novels ; also some constitutions of the Emperors Frederick I. and II., which are quite out of place. The authoritative edition, prepared from the best manuscripts, with restitution SECT. 91.] THE JUSTINIANIAN BOOKS. 439 of all that the glossarists had excised, is that of Kriiger (Berlin, 1877). The Novels, as already observed, were never collected officially. For several centuries they were known in Italy only through Julian's Latin Epitome of some 125 of them. Another Latin version, which is thought to have been also of the time of Justinian, was accepted by the glossarists (yersio vulgata), and obtained the name of Authenticum, "that sanctioned as law." 1 This they divided into twelve Collationes ; in nine of them ranging those laws which they glossated as of practical value (authenticae ordinariae), the rest (the authenticae extraordinariae or extravag antes) being placed in the other three and unglossated. In the sixteenth century two Greek manuscripts were discovered, which form the basis of the now accepted collection ; one in Florence, which was published by Haloander in 1531, the other in Venice, published in 1558 by Henry Scrimgeour, the first Scotsman who obtained European distinction as a civilian. The last edition is that of Zachariae von Lingenthal (2 vols., Leipsic, 1882). Another by Rudolf Schoell is in course of publication ; it is meant to rank with the Digest by Mommsen, and the Institutes and Code by Kriiger, as the completion of a trustworthy presentation of the whole Corpus Juris Civilis. 1 Authenticum Novellarum Constitutionum Justiniani versio vul.yata quam recensuit. G. E. Heimbach, 2 vols., Leipsic, 1851, with elaborate prolegomena and other critical apparatus. APPENDIX. NOTE A. (See 9, in fine.) REFERENCES in the pages of the lay writers to the action of the cognati and adfines must be received with caution. For instance, in their accounts of the caristia or cara cognatio, an annual festival that imme- diately followed the parentales dies and iheferalia, and at which all the members of a family assembled to renew the bonds of goodwill and affection over a common repast in presence of the domestic lares, Ovid (Fast., ii. 617 sq.) and Valerius Maximus (ii. 1, 8) speak of it as a reunion of the cognati and adfines generally, to the exclusion of all third parties. But as the feast was held everywhere on the same day and was kept up till night, and as both men and women might be nearly connected by blood or marriage with half-a-dozen families or more, it is clear that the cognation and affinity that qualified for par- ticipation in it must have stopped short of that sixth degree to which they usually extended. It is only by assuming that the gathering was exclusively of wife, sons, unmarried daughters, and wives and children of sons, around the table of the head of the house, that the account of it becomes comprehensible. His sons and their children and his unmarried daughters were undoubtedly cognates of his, and his wife and daughters- in-law adfines in the wider sense of the word ; but what a small pro- portion probably of those entitled to those designations. It may be that in other cases in which cognati and adfines are spoken of a similar limitation is necessary. NOTE B. (See 14, note 4.) Gains (i. 113) describes coemptio as an imaginary sale and purchase per aes et libram, in presence of a libripens and five citizen witnesses but unfortunately the final words in the MS. "a [ asse] emit eum mulierem, cujus in manum convenit'"' do not indicate with certainty which of the parties was the nominal seller and which the nominal purchaser. Comparative jurisprudence shows so many examples of bride-capture developing into bride-purchase, that many jurists rush to 442 APPENDIX. the conclusion that, as the story of the Sabine rape, the hasta coelibaris, the pretended forcible tearing of the bride from her mother, &c., point to a time when capture was in vogue, and as Gaius defines coemptio as an imaginary sale, there must have been an intermediate stage in which there was a real purchase of the bride from her father or guardian, of which coemptio was a modified survival ; that in it consequently the bridegroom was the purchaser, the bride's paterfamilias or guardian the seller, and the bride herself the object of sale. That there may have been such an intermediate stage is more than probable ; but the co- emption of the texts does not represent it. The following points are to be noted : (1) Emere in old Latin did not necessarily mean to purchase for a substantial money price, but simply to take, receive, or acquire ; see Festus v. Bedemptores (Bruns, p. 286), Paul. Diac. vv. Abemito and Emere (Bruns, pp. 262, 267) ; (2) though coemptio was a mancipation, yet this was used for many other pur- poses besides actual sale and conveyance of a res mancipi, e.g., the execution of a testament and the effecting of a donation, adoption, or emancipation ; the touching of the scales with a piece of copper (and later a coin) in the presence of witnesses was but the solemnity employed to mark the completion of the act, whose nature and purpose were defined in the contemporaneous spoken words ; (3) that Cicero and Gaius never use the word coemere, but always coemptionem facere, a phrase they apply exclusively to the bride, coemptionari and coemption- ator being applied to the bridegroom ; (4) that Servius, speaking of coemptio, says (in Aen., iv. 103, Bruns, p. 322), " Mulier atque vir in se quasi coemptionem faciunt," and (in Georg., i. 31, Bruns, p. 324) " Se maritus et uxor invicem coemebant ; " (5) that Boethius (in Cic. Top., ii. 3, 14, Bruns, p. 320), quoting Ulpian as his authority, says, " Sese in coemendo invicem interrogabant," &c. ; (6) that Isidore (Orig. v. 24, 26, Bruns, p. 327) says, " Se maritus et uxor invicem emebant, ne videretur uxor ancilla ;" (7) that Nonius Marcellus, v. Nubentes (Bruns, p. 312), says that in ancient times a woman marrying carried three pieces of money, one for her husband tamquam emendi causa, and the others for his domestic and compital lares. In presence of all these authorities it seems impossible to accept either the prevalent opinion that the bridegroom alone was purchaser, or that entertained by Holder (Die Romische Ehe, Zurich, 1874, p. 20 sq.), that this position was taken solely by the bride, the bridegroom being the object of purchase. Reciprocal purchase, or rather, as Boethius puts it, the acquiring of each other as paterfamilias and materfamilias respec- tively, and that under pretence of purchase, seems to have been the true nature of the transaction. The objection usually urged against this view that a man could not sell himself is of very little weight. Why could he not do so as well as the bride ? It is said she did not do so ; that if a filiafamilias, she was sold by her father, and if sui juris, by her tutors. But the last part of the explanation is inconsistent with what APPENDIX. 443 is stated both by Gaius (i. 190) and Ulpian (xi. 25), that tutors never acted for their full-grown female wards, but only sanctioned the latters' acts, a rule to which coemption formed no exception (Gai., i. 115, 195) ; and even the first part of it is contradicted by a statement of Paul's in a passage preserved in the Collatio (iv. 2, 2), that, when a filiafamilias passed in manum mariti, the act was her own, her father being no more than auctor. That a man could not go through the form of selling him- self per aes et libram, however, is a proposition that is unsupported by any authority ; the extent of the truth is that he could not so sell him- self into slavery or quasi slavery ; and Gaius says expressly (i. 123) that neither of these was implied by the words used in coemption. On these grounds I am disposed to think that there is an omission in the text of the MS. of Gaius, and that the latter ought to read somewhat to this effect, " asse [emit vir mulierem, quam in manum recipit (see Gai., ii. 98), et invicem] emit eum mulier, cujus in manum convenit." Huschke's opinion is similar ; in his last (4th) edition of Gaius he has " asse emit eum [mulier et is] mulierem, cujus in manum convenit." The objection to this reading is that, as vir does not occur in the pre- vious part of the sentence, eum and is have no antecedent. NOTE C. (See 31, note 3.) Considerable confusion has been caused as to the meaning of the word nexum by some definitions of it by writers of the later republic, pre- served by Varro, De L. L., vii. 105 (Bruns, p. 308) and Festus v. Nexum (Bruns, p. 274). In reading them it must be kept in view that Mamilius (as quoted by Varro) and Aelius Gallus (as quoted by Festus) are not speaking of a person making himself nexus by copper and scales, for that practice was abolished by the Poetilian law of 428 u.c. (supra, p. 161), but of a thing being bonded (obligata) in that way. The phrase res nexa is quite common in the classical law, as applied to something unpledged or hypothecated to a creditor ; see Ulp., in Dig., xliii. 4, fr. 1, 4, Antoninus (Caracalla), in Cod., viii. 19, 2, Alex. Sever., in Cod., viii. 27, 2. "When a thing was given as a security per aes et libram it was called fiducia (supra, p. 140 sq.), and it is this that Q. Mucius Scae- vola (Varro, as above) appears to have had in view when correcting Mamilius ; he limits the word nexum to a thing over which a nexus was created per aes et libram, and excludes from it an ordinary mancipatory conveyance of property, a limitation and exclusion of which Varro approves. It may be objected that a fiducia, although undoubtedly intended only as a security, was in form transferred to the creditor in property. But the money lent to a borrower per aes et libram also became his property, and yet it was called nexum aes. The borrowed money and the thing given as fiducia, therefore, were in much the same 444 APPENDIX. position : both became the property of the receiver, but wiith an obliga- tion of return ; if the one was properly called nexum aes, why should not the other be res nexa ? The final, and unfortunately corrupt, sen- tence in the passage of Varro refers to the case of the debtor who, in the earlier law, made himself nexus, and has little or no connection with what precedes it. (See on this subject the observations of Prof. Nettle- ship in the Journal of Philology, vol. xii. (1883), p. 198 sq.) NOTE D. (See 34, note 12.) ' In the early sacramental procedure each party had to deposit his stake before he could be heard on the question at issue ; but after- wards he only gave security for its payment in the event of a judgment declaring him to have been in the wrong. Ihering ("Reich und Arm im altrom. Civilprozess," in his ScJierz und Ernst, p. 175 sq.) regards this change of practice as a signal triumph of popular legislation. He main- tains that not only the tendency but the motive of the arrangements of the judicial procedure, both by sacrament ( 34) and manus injectio ( 36), were to throw obstacles in the way of a poor man asserting or defending his rights, by making deposit of a considerable sum of money in the one case, and the finding of a vindex in the other, a condition precedent of his plaint or defence ; that both these procedures were instruments for defeating the ends of justice when a rich man set himself in opposition to a poor one. This was in time amended in the case of manus injectio by allowing the party against whom it was employed to defend himself in most cases in propria persona, i.e., without a vindex; and in that of the sacramental procedure by its being held sufficient for the parties to give sureties for the summa or poena sacramenti, which was exacted only from him who was eventually unsuccessful. Ihering ascribes the latter amendment to a law partially preserved by Festus (Bruns, p. 43), passed on the proposal of one L. Papirius, a tribune of the people, and which cannot have been earlier than the sixth century, appointing three officials to collect and adjudicate upon sacramental penalties (sacramenta exigunto judicantoque) ; and he understands by these words that not only were they to exact the penalties, but that, disregarding the figures of 500 or 50 asses which had been named in the provocatio, they were to determine in each particular case what the amount should be. He identifies this Papirian law with one of the same name mentioned by Pliny (H. N., 33, 46), but which most recent writers assign to the year 665, reducing the weight of the copper as to half an ounce ; (it had been reduced in 485 from 1 Ib. to 4 oz., about 513 to 2 oz., and in 537 to 1 oz.) He thus makes the lex Papiria a statute of considerable scope, at once postponing the collection of the sacramen- tum until the end of the suit, empowering the Illviri capitales to say APPENDIX. 445 what should be its amount,'and facilitating its payment by reducing the value of the as. But the purpose of this last provision is more likely to have been the alleviation of the position of borrowers ; and as regards the other two, the text preserved by Festus seems rather to indicate that the new officials in exaction and judgment and what is meant by the judicanto is far from clear were to follow already existing practice. Be this as it may, and the date of the change earlier than that assigned to it by Ihering, there can be no question of its importance or doubt of the benefit it must have conferred on poor litigants. NOTE E. (See 34, note 19.) Varro, De L. Z., v. 180 (Bruns, p. 303), says that even after the summa sacramenti had been converted into money, it was deposited ad pontem, some bridge, he does not say which, where there was a sacred " pound." (Curiously enough, the Irish spelling of " pound " is " pont ; " Skeate's Etym. Diet., v. " Pound.") A most ingenious and plausible explanation was suggested by Danz in 1867, in the Z. f. RG., vol. vi. p. 359. Recalling the facts that there had been discovered in the Tiber- island sacella of Jupiter Jurarius and Dius Fidius, the two deities to whom solemn oaths were usually addressed, and that the island was spoken of as " inter duos pontes," because connected with both banks of the river by bridges bearing no particular names, he suggested that the island may have been the spot to which disputants resorted to make their sacramenta, and that the cattle, sheep, or money were deposited in a place for the purpose before the bridge was crossed. Much the same explanation was oifered by Huschke two years later in his book Das alte romische Jahr (Breslau, 1869), p. 360, apparently without being aware of Danz's speculation. He adds, on the authority of the Iguvine Tables, that while bullocks were offered to Jupiter, only sheep were offered to Dius Fidius. The island, he thinks, must have been selected as neutral ground, to which all parties might have access, and which obviated intrusion into the temples of the two gods on the Capitol and Quirinal respectively. And it is to its i;se as the scene of the sacramental pro- cedure that he attributes its name of " holy island," rather than to the fact of its having been the seat of the temple of ^Esculapius. Huschke recurs to and enforces this view in his Multa und Sacramentum (1874), p. 410, where he does refer to Dauz's paper. NOTE F. (See 36, note 11.) Another argument in favour of the view that the aeris confessi of the XII Tables referred to nexal debt occurred to me after the text was in type. It is derived from the language of cap. Ixi. of the Lex Coloniae 446 APPENDIX. Jaliae Genetivaeof the year of Rome 7lO(Bruns, p. Ill) : " Judicati jure mantis injectio esto. . . . Vindex arbitratu Ilviri quive jure dicundo praerit locuples esto. Ni vindicem dabit judicatumve faciet, secum ducito. Jure civili vinctum habeto," &c. The aeris confessi of the Tables does not reappear ; but no one contends that the manus injectio authorised by the colonial statute did not apply to the in jure confessus. If it did apply to him, it must have been because he was included in the term judicatus. The aeris confessi no doubt was omitted because it applied to nexal debtors, against whom manus injectio had been prohibited by the Poetiliau law. NOTE G. (See 36, note 20.) " The idea of responsibility (Haftung} is primarily one of answering with life and limb ; in primitive times responsibility in any other way is inconceivable. Hence the debtor who does not pay falls straightway into the hands of his creditor, who may hold him as a slave, may sell him into slavery, may kill him. But this last alternative is ere long subjected to some modification. The members of the body have very soon each its own value put upon it, in order that for every case of injury there may be a fixed and certain composition. This point reached, a creditor must no longer cut from his debtor's body more than neces- sary than is a proper equivalent for the wrong he has sustained ; and, if there be several concurring creditors, none must cut more than corre- sponds to his own claim. So we find it put in the extant remains of old Scandinavian law. In contrast it may be said to have been a step in advance when the Roman XII Tables made an end of this detestable calculation, by declaring that in such a case it should be of no moment whether one or more creditors cut away more or less than his or their proper share ; they might hack their debtor in pieces just as they pleased ; the law was no longer to be encumbered with details : si plus minusve secuerunt sefraude esto. So long as the sequence of ideas in the world's history was undiscovered, this provision of the Tables was natu- rally beyond comprehension. And yet it is somewhat surprising that no one should have lighted on the meaning of it when one thinks of all the hypotheses that have been suggested to explain it, but that really explain nothing ; hypotheses so multitudinous that there fails from the list of them this only, that the ancient Romans must have been anthropophagi ! " It is a step further in advance when the law stops short of killing a debtor, and contents itself with pains and tortures. In the invention of such punitive devices mankind has given signal proofs of its ingenuity, expulsion from the body social, infamy in every shape, corporal punishment, incarceration. All these fell to the lot of the unfortunate debtor. If he was dead, his creditor seized even his poor remains. To APPENDIX. 447 deprive a debtor's body of a peaceful grave was a custom among the Egyp- tians that survived into the Christian period. Even as late as the sixth century the emperors had to interfere to suppress this horrible abuse ; and the legends alike of East and West held him in honour who ran- somed an insolvent's corpse and gave it decent burial. " In my work ' Shakespeare vor dem Forum der Jurisprudenz,' I have shown in detail how those gruesome customs gradually disappeared, how the development of the law step by step removed the foundations of the system ; and it is enough to refer to what is there said. I have shown there also the conservative element that for many a long year held that development of the law in check. The severities that attended insolvency were perpetuated through the medium of contract. When the old consequences of insolvency no longer resulted by direct operation of law, creditors began to make sure of them by clauses embodied in their agreements. If a debtor was no longer to fall ipso jure into the hands of his creditor, it was necessary that he should expressly impledge himself. He pledged his body, his freedom, his honour, even the salvation of his soul. The clause inserted in the contract might prescribe forfeiture by the debtor of a pound of flesh, a figure that has become typical for all times through the genius of the great dramatist. Or it might be one whereby the debtor subjected himself, in the event of non-payment, to some indignity, or to outlawry, or even to excommunication," &c., &c. Kohler, Das Recht als Culturerscheinung, Wiirzbuig, 1885, p. 17 sq. NOTE H. (See 53, note 15.) Gaius says that, while it was on all hands admitted that there could be transcription of a book-debt from one person to another only between citizens, it was a matter of dispute in the empire whether there might not be transcription from thing to person even between peregrins, seeing it proceeded on an antecedent liability under a juris gentium obligation. One might suppose from the anecdote told by Cicero (De OJf., iii. 14, 58-60) of C. Canius and Pythius, the Syracusan banker, that it was in use by peregrins in his time, (unless indeed Pythius, though living in a province, was in fact a citizen). It affords a capital illustration of the effect of the nomen. Hearing that Canius was in search of a country- house, Pythius, who owned one, invited him to dine with him a day or two afterwards. In the meantime he bespoke some fishermen to be then in the bay (which was unless) with some boats well filled with fish, which, on a given signal, they were to bring ashore before the eyes of his guest, as if just caught- while he arranged with some huntsmen to be in the vicinity, well furnished with game, which they were to bring to the house while Canius was sipping his wine, pretending it had been newly killed in the woods. The bait took. A place with such attrac- 448 APPENDIX. tions was just what Canius wanted. Would Pythius sell it ] He might have any price he liked ; and so on, and so on, until Pythius made pretence of reluctant consent. Naturally, Canius had not the money with him ; but the astute Pythius knew very well that if he left the price standing until his guest had discovered the fraud, he would never have any chance of fingering it. So he produced his books and transcribed the debt at once : nomina facit, negotium conficit. He thereby made Canius his debtor, not for the price of a house and grounds, but for money booked against him, recoverable by an actio certae creditae pecuniae; and as the exceptio and actio doli had not yet been invented, there was no means by which Canius could plead the fraud as an equitable defence, or have reparation for the deceit of which he had been the victim. INDEX. ACCEPTILATION, 277. Accrual (adcretio) amongst heirs, 176. Actiones, Classes of : a. arbitrariae, 364 sq.; bonae fidei, 285 sq., 360; ficticiae, 362 sq. ; in factum, 364 ; juris honorarii, 362 ; why praetorian actions had to be raised within a year, 256 ; a. stricti juris, 199, 285 ; utiles, 362 ; practical disappearance of some of those distinctions in later empire, 388. Actiones, Leyis, see " Legis actiones." Actiones, Particular : a. auctoritatis, 136 sq. ; de dolo, 364 ; depensi, 166 ; deposili, 142 n. 8, 362 n. 11 ; de ra- tionibus distrahendis, 148 ; de tigno juncto, 148 ; empti (its successive phases), 284 sq. ; ex stipulatu, 274, 283, 360; familiae erciscundae, 166, 176 ; fiduciae, 141 sq. ; furti (the various actions of the XII Tables), 147 ; Pauliana, 250 ; Pulliciana, 269 sq. Adcretio (accrual) amongst heirs, 176. Addictio debitor is in manus injectio, 207 ; distinction between judicati and addicti, ibid. n. 17 ; no addictio in case of nexal debtors, 155, 158 ; status of addicti, 209 ; provisions of Poetilian law in reference to them, 161. Aditio hereditatis, 175 ; tempus dclibe- randi, 426 ; entry cum beneficio in- ventarii, ib. Adjudication, 145, 361 and n. 9. Adoption, its purpose originally, 29 ; a. of a paterfamilias, see " Adroga- tion;" a. of a,filiusfamilias,3Q, 119 sq. ; effect, 30, 129 ; Justinianian amendments, 418. Adrogation (or adoption of a pater- familias), its purpose, 29; how accomplished, 30 ; incompetent to plebeians in regal period, 48 ; effects, 130 n. 4, 131, 176. Adsertor libertatis (in status-actions about freedom or slavery), 196. JEdiles, Curule, their institution, 88 ; their edicts, 258. jEdiles, Plebeian, 84, 85 and n. 5. Aelianum, Jus, 262 and n. 10. Aes et libram, Origin of the negotium per, 58 ; conveyance per, see "Man- cipation ; " loan per, see " Nexum ; " marriage per, see " Coemptio ; " solutio per, 60 n. 16 ; testament per, see " Testament ; " justification of the procedure per aes et libram, 62 . n. 25, 68 sq. and n. 12. Aes confessum of XII Tables meant nexal loan, 157, 203 sq., 445 sq. Aes rude, 59. Aes signatum of Serv. Tullius, 59 and notes 12, 14. Africanus, Sext. Csec., 320. Agency, 272. Ager publicus, 90-92. Ager vectigalis, 420. Agnates and Agnation, as distinct from the gens, unknown in regal period, 43 and n. 3 ; agnatic tutory and inheritance invented by Decem- virs to meeb necessities of the plebeians, 122 sq., 172 sq. ; who were agnate, 123 sq. and notes 8, 10 ; rela- tion dissolved by capitis deminutio, 130, 174 ; tutory of agnates under XII Tables, 124 ; their succession, 172 ; limitations put upon it, 173, 288, 292 sq. ; a successio yraduum amongst them first admitted by Jus- tinian, 423 ; preference of agnates over cognates entirely abolished by his Novels, ib. 2 F 450 INDEX. Agrarian legislation of republic, 91 sq. Alaric's Breviary (Lex Rom. Visigoth.), 398. Album, The praetor's, 254, 357. Amicitia, 110. Antestatus, 290 n. 9. Aquilian stipulation, 274. Aquilius Gallus, 264. Arbitria and judicia, 198 sq. ; arbi- trium litis aestimandae, 195. Auctorem laudare, 190 n. 10. Auctoritas and Auctoritatis actio, 136 sq. ; limited to two years, 138. Auctoritas patrum (in legislation), 85. Authenticae in Code, 438. Aut/ienticum (Bolognese version of Novels), 435, 439. BANKRUPTCY, the Rutilian edict about it, 250 ; how post-mortem b. avoided, 175. Barter, its conversion into sale, 280. Basilica, The, 431. Bernardakis's Sinaitic papyri, 400. " Bina jugera," The, of Varro and Pliny, 36 sq. Bishops' courts, their institution, jurisdiction, and procedure, 383 sq. Blood-feud, its early suppression, 53. Bologna and the Glossarists, 434 sq. " Bona paterna avitaque," 32, 126. Bonae fidei action, what involved in, 285 sq. ; intentio of, 360 ; exceptio doli superfluous in, 367. Bonae fidei possessio, 271. " Bonam copiamjurare," 162. Boni mores as a regulative of public and private order, 21. Bonitarian ownership (in bonis habere) of res mancipi, 41 n. 9 ; a result of Publician edict, 268 sq. ; distinction between it and Quiritarian owner- ship abolished by Justinian, 420. Bonorum, Emptio, see " Emptio bono- rum." Bonorum possessio, 289-294 ; nature and probable origin, 289 ; b. p. secundum talulas, 289 sq. ; b. p. contra tabu/as, 291 sq. ; its practical abolition by later Justiniauian law, 424 ; 6. p. ab inteslato, 292 sq. ; the praetorian order of intestate succession and admission of cognates, 293 sq. ; how 6. p. obtained, 294, 425 ; refused in abseuce of testamenti J "actio, 353; immediate effect, 291 ; heir's actions granted to bonorum possessor under fiction of heirship, 362 sq. Brachylogus, The, 433. Breviarium Alaricianum, 398. Bargundionum, Lex Roman n, 390. Byzantine jurisprudence, 430-432. " CAPITE poenas dabat" of decem- viral manus injectio, 207 sq. Capitis deminutio : meaning of caput, 126 ; degrees of c. d., 127 ; c. d. 'minima in particular, 127-129 ; its consequences, 129-131 ; not involved in servitium of nexus, 159. Capito and Labeo, 315 sq. Caracalla's general grant of citizenship, 339 sq. Carvilius Ruga and his divorce, 248 note. Cassian treaty of 262 u.c., 223. Cattle and sheep as media of ex- change, 58 and n. 7. Cautio damni infecti, 373 ; c. de dolo, ib. ; c. judicature solvi, ib. ; c. praedibus praediisque, 149 ; c. usu- fructuaria, 373. Censors, Institution of, 88 ; their regi- men morum, 222 sq. and n. 9. Ceutumviral court, its creation, com- position, and functions, 75 sq. ; c. causes, 185 sq. and n. 13, 360 ; cen- tumviralis hasta, 75 n. 9. Certi condictio, 359. Cessio bonorum, 96, 100. Cessio injure, see "Injure cessio." Christianity, Establishment of, its influence on the law generally and specially, 381-384. Cicero's book de jure civili in artem redif/endo, 263 n. 11. Citations, Valentinian law of, 390 sq. Citizen and non - citizen under jus civile, 107-113 ; citizen's conubium, commercium, and actio, 108 ; his capacity generally, 127 ; he alone could make a testament, 48 n. 13 ; Caracalla's general grant of citizen- ship, 339 sq. Clientage in regal period, 8 sq. ; how affected by XII Tables, 114. Codex, Oregorianus, 392. Codex, Hermogenianus, 392 sq. Codex, Justinianeus, the 1st edit., 403 sq. ; J. Cod. repetitae praelectvmis, 411-413 ; its relation to the Digest, INDEX. 451 412; its sources, 413; MSS. and editions, 438. Codex, Theodosianus, 393 sq. Codices accepti et expensi, 276. Codicils, Introduction of, as adjuncts to testaments, 355 ; latterly effectual though standing alone, 423 ; wit- nesses required, ib. Coemptio, origin of, 64 ; nature, 65, 441 sq. ; how dissolved, 117 and n. 7 ; Gaius' account of, 441 sq. ; c. fiduciae causa, 44 n. 6, 141 and n. 36. Cognates (kinsmen generally), their position among plebeians prior to XII Tables, 35 sq. ; by Tables prefer- ence given to agnates in tutory and succession, 122 sq., 172 sq. ; by praetors c. admitted to succession on intestacy on failure of agnates, 293, provided they had testamenti factio with deceased, 353 n. 9 ; who in- cluded among cognati of edict, 294 ; c. put by Justinian on a par with agnates, 424 ; the word cognati in the pages of the lay writers, 441. Cognatio, Servilis, 419. Collatio Legum Mosaicar. et Romanar., 395. Collation by emancipati admitted to honor, possessio contra tabulas, 292 ; its extension in Justinianian law, 426. Collectio de tutoribus, 433. Culonatus (servitude of the glebe), 384-387. Colonial latinity, 265 sq. Comitia tributa, its institution and organisation, 85 sq. Commerce, Growth of, after first Punic war, its influence ou the law, 239 sq. Commercium, 109 and n. 6 ; its conces- sion by treaty to non-citizens, 111, 113 ; enjoyed by colonial and Junian latins, 265, 339. Compounding for capital or corporal punishment, 71 sq., 106, 361 n. 10. Concilium plebis, its legislative com- petency, 84, 86. Condictio, 232 sq. ; c. causa data causa non secuta, 280 sq. ; certi c., 359; incerti c., 359 sq. ; c. triticaria, 232, 235, 359. Conduction em, Lcgis actio per, 230-235. Confarreatio, a patrician marriage- ceremony, 26 ; incompetent to ple- beians, 34, 64 ; how dissolved, 117 ; declared creative of manus only quoad sacra, 346. Confessio injure, 203-205, 446. Consensual contracts, 278-286. Consilium domesticum, 32, 36, 117, 248. Consortium (amongst heirs), 45 and n. 7, 176. Constitutions, The imperial, in earlier empire, 312 - 314 ; edicta their character then, 312 sq. ; rescripta and decreta, 313 sq. ; the i. c. in later empire, 379 sq. Consuetude, see "Custom." Consulate, effects of its institution, 81-83. Consultatio veteris jurisconsulti, 397. Contract, Law of, in regal period and early republic, 49 sq., 150-165 ; in- sufficiency of bare agreement to create c., 150; omnipotence of word and form, ib. ; what if bare agree- ment fortified with oath or appeal to Fides, 50, 165 ; the formal con- tracts of the early jus civile, 151 ; nexum in particular, see " Nexum ; " development of the law of c. in the latter half of the republic, 271-287 ; verbal c. , see " Sponsio " and " Stipu- lation ; " literal, 275 sq. ; real, 286 sq. ; consensual, 163, 278-286 ; in- nominate, 350. Conubium, 25, 108, 109 n. 6; the essential pre-requisite otjustae nup- tiae and patria pntestas, 118 n. 10 ; not eujoyed by plebeians in regal period, 34, 64 ; the Canuleian law, 87 ; c. with non-citizens by treaty, 111 sq. ; none between citizens and colonial or Junian latins, 265, 339. Corpus Juris Cimlis, 435 ; MSS. , texts, and editions, 436 sq. Coruncanius, Tib., 262. Credita pecunia, 276. Cretio hereditatis, 175. Crime and private wrong, Line bet ween, at first not well defined, 71 ; criminal offences in early regal period, 51 sq. " Cum nexum faciet mancipiumque," &c., 137 n. 21, 169, 280, 281 n. 23. Curatory of lunatics, spendthrifts, &c., in patrician Rome, 121 ; under XII Tables, 126 ; c. of minors established by Marc. Aurelius, 348 sq. Custom or consuetude, Early, 20 ; im- portance of c. as a factor of the law at 452 INDEX. all times, 258 ; the making of custom, 259-261. "DAMNAS esto," 153 and n. 7. " Damnum decidi oportere," 361 and n. 10. Debt, Law of, in early republic, 92-96 ; treatment of nexal debtors, see "JVexum;" of judgment debtors, see ' ' Manus injectio ; " their incar- ceration in later law, 212. Decemviri, Judices, of Valerio-Hora- tian laws, 76, 84 sq. , 219 sq. Decemviri leyibus scribundis, 97. Decemviri litibus judicandis, 76 and n. 14. Decreta, Imperial, in early empire, 313 sq. ; their authority enhanced by Justinian, 380. Decretum divi Marci (punishing self- help), 314 note. Dediticiancy, Aelia-Sentian, 337 ; abo- lished by Justinian, 419. Delatio hereditatis, 174. Delegation, 278 and n. 16. Deliberandi, Heir's jus, 426. Demonstratio of formula, 359. Depensum, 166. Deposit, the action in duplumof XII Tables, 142 n. 38 ; the formulae in jus and in factum of the praetorian system, 362 n. 11. Dictatum de consiliarils, 433. Diffarreatio, 117. Digest, Justinian's instructions for its preparation, 404 sq. ; its compilation, 406 ; its completion, 407 sq. ; the sources drawn upon, 409 ; order of sequence of books, titles, and frag- ments, 409-411 ; dig. vetus, infor- tiatum, and dig. novum, 434 ; MSS., texts, and editions, 436-438. Diocletian, multitude of his rescripts, 327, 393 ; excellence of many of them, 327. Disherison of children, see "Testa- ment." Distress, see " Pignoris capio. " Divorce in regal period, 27 n. 11 ; in early republic, 116 sq. ; formula of d., 117 ; increasing frequency of d. in later republic, 248 ; d. in the classical period, 346 ; legislation of later empire, 382 sq. ; that of Jus- tinian in his Novels, 415. Dulo, Actio de, 304. Domestic consilium, 32, 36, 117, 248. Dominium bonitarium of res mancipi, see "Bonitarian ownership." Dominium ex jure Quiritium, meaning, 40; applied to res nee mancipi as well as res man., 132 and n. 3 ; civil and natural modes of acquiring, 133 ; nudumjus Quiritium, 270 and n. 13 ; abolition by Justinian of distinctions between d. ex j. Q., d. bonitarium, and nudumjus Quir., 420. Domum ductio in manus injectio, 207, 210 n. 31. Donatio propter nuptias, 416. Dos and Dotis dictio of early jvs civile, 116 and n. 4, 150 ; d. d. of classical law, 116 n. 4 ; the lex Maenia de dote, 248 note ; Justinian's legislation about dos, 415. Dosithei Fragmentum de manumis- sionibus, 333. Dualism in institutions of early law, 5. Ductio uxoris in domum mariti, 345 n. 1. EDICTS of the Emperors, their character in early empire, 312 sq. ; the edicts or leges edictales of the later empire, 379 sq. Edicts of the Magistrates, 253-258 ; an- tiquity of practice of publishing edicts, 253 ; those of urban praetor, 253-257 ; spoken of as viva voxjur. civilis, 255 ; their aim, ib. n. 5 ; edicta repentina and perpetua, 253 ; ed. tralaticia, 254 ; gradual enlarge- ment of e. t., 255 ; e. proper and app. of styles, 255 ; forms of edictal provi- sions, 256 ; e. of peregrin praetors, provincial governors, and curule sediles, 257 sq. Edictum perpetuum (consolidated) of Salvius Julianus, 307-310 ; history, 307 ; what embodied in it, 308 ; ar- rangement, 309. Edictum Theodorici, 397. Editions of Institutes, 436 ; of Digest, 438; of Code, ib.; of Novels, 439. Emancipation, early procedure in, 62 n. 25 ; Justinianian simplification, 418 ; was a capitis deminutio, 128 ; was it originally meant as a boon to child or a penalty on parent ? 118 sq. ; its result in law, 25, 129 ; put an end to patria potestas and agnation, 174 ; father not required INDEX. 453 testamentarily to institute or dis- inherit emancipated child, 292, but praetor gave latter bonor. pass, contra tnbulas on condition of collation, ib. ; by jus civile he had no right of suc- cession on intestacy either direct or collateral, 174, 292 ; by edict unde liberi prretors admitted him to intes- tate succession of parent along with unemancipated children, 293, and later imperial legislation admitted him collaterally as if never capite minutus, 423. Emblemata, Triboniani, 408 n. 13. Emphyteusis, its introduction, 420 ; amendments of Zeno and Justinian, 421. Emptio bonorum, 363 ; actions granted to b. emptor under fiction of heir- ship, ib. Episcopalis audientia (bishop's court), institution, jurisdiction, and proce- dure, 383 sq. Epistula Hadriani introducing benefi- cium divisionis, 314 note. Equity, 247, 257. Eviction, Warranty against, in manci- pation, 135-138, 279; did it arise ipsojure ? 137 ; the stipulatio duplae, 283 ; liability for e. eventually held implied in sale, 285. Exceptions, 366 sq. ; ex. doli, 367 ; unnecessary in a bonae fidei judi- cium, ib. ; ex. rei venditae et traditae, 250, 269; ex. nonnumerataepecuniae, 250. Execution under system of legis ac- tiones, see " Manus injectio ;" under formular system, 367 ; under system of later empire, 389. Exheredatio (disherison) of children, see "Testament." Expensilatio (literal contract), 275-278. Expiatio, 53. Exposure of children, law of Romulus, 28 ; XII Tables, 118; prohibited by Valentinian, 346 n. 3; prohibition renewed by Justinian, 417. Extraordinaria cognitio, 368 sq. FAMILIA, meanings, 24 and n. 2 ; fami- lia pecuniaque, 64, 66 n. 5 ; familiae emptor, 66,167-169 ; familiae mutatio, see " Capitis deminulio; " sacra fami- liae, see " Sacra." Family, The, its organisation in regal period, 24 sq.; its legal aspects, 26 sq.; its domestic aspects, 30 sq.; the plebeian f. as compared with the patrician, 34 sq.; law of the f. under the XII Tables, 115 sq.; the f. in the later republic, 248 sq.; changes in the early empire, 345 sq.; law of the f. in the Justinianian legislation, 414-419. Fas, 15-18 ; little of it in XII Tables, 104. Fideicommissa (mortis causa trusts). what led to their introduction, 241, 353; universal and singular/., 354 ; relative positions of heir (trustee) and beneficiary, ib.; regulation by Trebellian and Pegasian senatuscon- sults, ib.; equiparation of singular /. with legacies, 425 ; oral /. by a person on deathbed declared binding on heir ab intestate, 423. Fides, deification by Numa, 22 sq.; appeal to F. a safeguard of obliga- tion, 50, 165 ; its seat in the right hand, 50 n. 2. Fiducia, 139-143 ; mancipatory lex fiduciae, 140 ; purposes of /., 141 sq.; actio fiduciae, 141; usureceptio fiduciae, 142 sq.; fiduciary coemp- tion, 44 n. 6, 141 and n. 36. Filiusfamilias and paterfamilias, see " Patria potestas." Fisci, Fragmentum dejure, 334. Flavianum, Jus, 262. Florentine MS. of Digest, 436. Forcti sanatesque (of XII Tables), 111 n. 12. Foreigners, Influx of, after first Punic war, its influence on the law, 239 sq. ; capacities and disabilities of f., see "Non-Citizens." Form, Conservatism of R. L. in matters of, 151 ; all forms had their histori- cal utilitarian explanation, ib. Formular system of procedure, 357- 367 ; its introduction, 244 sq. ; its characteristic, 245, 357 ; the Aebu- tian and Julian laws, 244 sq., 358 ; transition from the legis actiones, in personal actions by the simplifica- tion of the procedure per condic- tionem, 358-360, and in -vindicatioiies by the introduction of that per sponsionem, 360, paving the way for the formula -fietitoria, 301 ; parts of & formula 35'J n. 5; formulae in jus 454 INDEX. and in faclum conceptae, 361 sq. ; intentiones of former, 361 ; actiones utileg, 362 ; act. ficticiae, 362 sq. ; act. in factum, 364 ; act. arbitrariae, 364 sq. ; exceptiones, &c. , 366 sq. ; elasticity of the system, 367 ; its abandonment in the later empire, 387 sq. Fragmenta Vaticana, 396. Fragmentum dejurefisci, 334. GAICS, 320-322 ; his Institutes and the Verona codex, 328-331. Gens, Organisation of, in regal Rome, 6 sq. ; how far affected by XII Tables, 113 sq. ; gentile settlements, 38 ; jurisdiction of g., 70, 223 ; its tu- torial and curatorial functions, 33, 121, 124 sq. and n. 15 ; how far its sanction necessary to marriage of sui juris female member, 114 ; its right of succession in regal period, 43 ; by XII Tables postponed to agnates, 172. Gentium, Jus, of Rome, 240. Glossarists, The, and their treatment of the Justinianian books, 434 sq. Grseco-Roman jurisprudence, 430-432. Greece, Decemviral mission to, 97. Greek law in XII Tables, 98. Gregorian Code, 392 sq. Guardianship, see "Tutory" and " Curatory." Guilds, Numa's, 11. HARMENOPULI Manuale, 431. Hasta, Centumviralis, 75 n. 9. Hercules, The ara maxima of, 50. Hereditas (see "Succession"), its delation by testament, see "Testa- ment;" on intestacy, see "Intes- tate Succession ; " necessary and voluntary heirs, 174; ipso jure vest- ing of h. in former, ib. ; acceptance by latter, see "Aditio;" accrual (adcretio) amongst heirs, 176 ; heres eadem persona cum defuncto, 177 ; heir's liability for deceased's debts, ib. ; its limitation by entry under inventoiy, 426 ; heir's liability for family sacra, see "Sacra familiae." Heredium, 36 sq. ; was it alienable ? 39 sq. Hermogenian Code, 392 sq. Herus, derivation and meaning, 40 n. 7. Homo sacer, see " Sacer esto." Hospitium, 110 sq. Hostis, see "Non-Citizen." Husband and "Wife, Law of. among patricians of regal period, 25-27, 31 ; among plebeians, 34 sq., 44 sq. ; under XII Tables, 115-117 ; in later republic, 248 ; in early empire, 303 sq., 345 sq. ; in later empire, 382 sq., 415 sq. Hypothec, 267 sq., 350. IMPERIUM, magisterial, quasi-judicial intervention in virtue of it, 218 sq., 369 sq. Imprisonment for debt after Poetilian law, 160. " In bonis" tenure of res mancipi, see "Bonitarian ownership." Incerti condictio, 359 sq. Ingratitude, its consequences in law, 22 n. 2. Inheritance, see "Hereditas." In integrum restitutio, 374 sq. In jure cessio, 144, 189 n. 9 ; involved no warranty of title, 136. In jus vocatio of XII Tables, 184. Institutes, Justinian's, 406 sq. ; MSS., texts, and editions, 436. Institutio and instructio, 263 n. 12. Intentio of formula, 359-361. Interdictio igni et aquae, 54 n. 13. Interdiction of spendthrift, 32, 114, 126, 219 n. 2. Interdicts under jus civile, 218; under prsetorian rules, 369-372 ; charac- teristic, 370 ; varieties, ibid. ; uti possidetis and utrubi, 371 sq. Interpretatio of republic, 100, 101 n. 3, 262. Intestate succession (see "Succes- sion "), Law of, among patricians in regal period, 43 sq. (and see "Sui heredes " and "Gens"); among ple- beians, 48 ; i. s. of agnates, after sui heredts but before ;/ens, introduced by XII Tables, 172 sq. (and see "Agnates and Agnation ") ; artifici- ality of rules of jus civile as to i. s. of agnates, 173, 292 ; prsetorian amendments, 293 ; admission of cog- nates, 293 sq. (and see "Cognates ") ; admission of i. s. as between mother and child, 355^.; Justinian's amend- ments on law of i. s. in his Code, 423 ; amendments by his 118th and 127th Novels, 424 ; rights, &c., of heir ab INDEX. 455 intestato, see " Hcreditas," "Honor. Possesio. " Jnventarii, Heir's entry cum beneficio, 426. Irnerius and the Glossarists, 434 sq. Italicum, Jus, 267 n. 3. JUDEX, The single, an institution of Serv. Tullius's, 77 ; his position, 260 ; his disappearance, 387. Judicati, manus injectio against, 205 xq. ; distinction between j. and addicti, 207 n. 17. Judices decemviri of Valerio-Horatian laws, 76, 84 sq., 219 sq. Judicia and arbitria, 198 sq. Judicial procedure, the arrangements of Serv. Tullius, 73-77 ; procedure per legis actiones, 181-217, 232-235 ; j. p. outside the legis act., 217-225 ; j. p. per formulas, 244 sq., 357-367 ; j. p. extra ordincm, 368 sq. ; quasi- judicial p. in virtue of the im- perium, 369-375 ; j. p. per libellum conventionis, 387 sq. ; j. p. in the bishops' courts, 383 sq. Jwlicis postulationem, Leg. actio per, 197-201. Judicium de moribus, 249. Julianus, Salvius, 318 sq. ; his con- solidation of the praetorian edict, 307 sq. Junian latinity, 338 sq. ; abolished by Justinian, 419. Juramentum calumniae, 389. Jurgia and lites, 73 note, 199. Jurisdiction in regal period, 69-72 ; jurisdictio of magistrate and judi- cium of judge during republic and early empire, 184 sq. ; who invested with ordinary j. in later empire, 388 ; j. of bishops, 383 sq. Jurists of later republic, 262 sq. ; honourable position held by pro- fessional j. in early empire, 302 ; notices of the most eminent, 315-327. Jus, primitive meaning, 18 ; its em- bodiments, 20 ; its prevalence in XII Tables over fas, 104 ; meaning of j. in later law, 404. Jus Aelianum, 262 and n. 10. Jus civile, j. gentium, and j. naturale distinguished, 240 n. 4. Jus Flavianum, 262. Jus gentium. The Roman, 240 sq. Jus Italicum, 267 n. 3. Jus Latii, 265. Jus liierorum, 304, 356, 423. Jus naturale in early empire, 298-301 ; distinguished from jus gentium, 299; its characteristics and fundamental principles, 299-301 ; illustrations, 300. Jus nexi mancipiique, 111 and n. 12. Jus novum, 306. Jus Quiritium, Nudum, 270 and n. 13. Jus respondendi, see " Responsa pru~ dentium." Jus vitae necisque of paterfamilas, 29 ; its restriction in the early empire, 346 ; its complete disappearance in Justinianian law, 417. Justae nuptiae, see "Marriage." Justinian, 402 ; chronology of his col- lections, 403 ; his first Code of statute-law, 403 sq. ; commission to compile Digest, 404-406 ; his " quin- quaginta decisiones," 406 ; his Insti- tutes, 406 sq. ; publication of the Digest, 407 ; second edition of his Code, 411 ; his Novels, 413 ; charac- teristics of his own legislation, 414 ; his law-books in the courts and schools, 427-430 ; their fate in the East, 430 ; their transmission to Italy, 432 ; their fate in the West, 432-435. KINGS, their criminal jurisdiction, 69 sq. ; origin of their civil jurisdic- tion, 72 sq. LABEO and Capito, 315 sq. Land, Early distribution of, 36 sq. ; the public lands, 90-92. Latinity, colonial, 266 ; Junian, 338 sq. ; legatum latini, 33!', n. 12; Junian 1. abolished by Justinian, 419. Laudatio auctoris (in &rei rindicatio), 190 n. 10. Laudemium (in emphyteusis), 421. Law-schools, The Roman, 428 ; course of study, 429. Legacies (legato), meaning of legare, 46 n. 8, 167 n. 1 ; restrictions on a testator's freedom of bequeathing 1., 253 note, 288 ; the various forms of 1., 352 ; the Sc. Neronianum, ib. ; equiparation (by Justinian) of 1. with singular trust-gifts, 425. Leges generally : Leges regiac, 20 sq. ; 456 INDEX. II. sacratae, 83, sq.; leges (comitial) displaced by senatusconsults, 306 ; II. generales or edictales of later em- pire, 379 sq. ; IL datae as distin- guished from II. latae, 306 ; II, man- cipii, 139 sq. (See "Lex.") Leges, Particular: L. Aebutia, 244 sq., 358; L. Aelia Sentia, 336 sq.; L. Apuleia, 253 note; L. Aquilia, ib.; L. Aternia Tarpeia, 193 n. 18 ; L. Atilia, 252 n. 2 ; L. Atinia, 253 n. ; L. Calpurnia, 232, 235 ; L. Canu- leia, 87 ; L. Cicereia, 253 n. ; L. Cincia de donis, 252 n. 2 ; L. Clau- dia (de tut. mulier.), 305, 348 ; L. coloniae Juliae Genetivae, 161 and n. 32, 445 sq. ; L. Cornelia (de spon- sorib.), 253 n. ; L. de imperio Vespa- siani, 305 ; L. XII Tabularum, see " Twelve Tables ; " L. Falcidia, 250 n. 3, 253 n., 288 ; L. Fufia Caninia, 304 ; L. Faria de sponsu, 253 n. ; L. Fwia testamentaria, 213, 288 ; L. Hortensia, 86, 96 ; L. Julia de adult, coercendis, 303 ; L. Julia de mari- tand. ordini'i., 303 ; L. Julia etPapia Pop/ aea, 303 sq. , 382 ; LI. Julia et TUia, 252 n. 2 ; LI. Juliae judicia- riie. 305, 358 ; L. Junia Norbana, 304, 338 sq.; LI. Liciniae Sextiae, 87 sq., 92, 95 ; L. Maenia de dote, 248 ; L. Malacitana, 306 and n. 9 ; L.Marcia, 213; L. metalli Vipascen- sis, 306 and n. 10 ; L. Papiria (de sacrament, exigundis), 444 ; L. Pin- aria, 190 n. 11 ; L. Plaetoria, 253 n., 348 ; L. Poetilia Papiria, 95, 160- 162, 212 ; L. Publilia (415 u. c. ), 85 sq.; L. Publilia de sponsorib., 166, 206 n. 16 ; L. Regia, 305 'n. 8 ; L. Rubria, 257 ; L.Salpensana, 306 and n. 9 ; L. Silia, 230 sq.; L. Terentilia, 89 sq.; LI. Valeriae Horatiae, 84 sq.; L. Vallia, 213; L. Voconia, 44 n. 5, 253 n., 288. Legisactiones generally, 181-186 ; mean- ing of lege a/jere, 183 n. ; varieties of I. a., 182; character and purpose, 183 ; in jus vocatio, 184 ; magistrate in jure, ib. ; lilis contestatio, ib. ; judge in judicio, 185; centumviral court, unus judex and tres arbitri, 185 sq. See " Sacramentum," " JH- dicis postulatio," " Condictionem, L. A. per," " Alanus injectio," " Pig- noris capio." Legislation in regal period, 20 ; in earlier republic, 83-86 ; in later re- public, 252 ; 1. of senate in place of comitia, 306 ; emperors sole legis- lators, 379 sq. Legitim (portio leyitima), introduction of, 250 and n. 3 ; Justiuianian law as to, 425. Legitimate birth, rule of XII Tables, 117. Legitimation in Justinianian law, 415, 418. Legitimus, meaning, 123. Lex, meanings, 19 n. 7 ; etymology, ib. Lex Dei or Collatio Leg. Mosaicar. et Romanar., 395 sq. Lex Rom. Burgundionum, 399. Lex, Rom. Visigothorum, 398 ; earliest channel of Roman law in Central and Western Europe, 432. Libellus conventionis and procedure of later empire, 388 sq. " Liber i" of praetorian succession on intestacy, who included, 293. Libripens in mancipation, 58 andn. 10. Literal contract, 275 sq., 447 sq. Literature and philosophy, Spread of, after first Punic war, how it in- fluenced the law, 247. Literature, Jurisprudential, of classi- cal period, 316-326, 328-335. Lites undjurgia, 73 n., 199. Litigation, Reckless or dishonest, how checked, 217 n. Litis contestatio in legis actiones, 184, 191 ; under formular system, 359 ; under that of the libellus conven- tionis, 389. Litis denuntiatio, 388. Loan per aes et libram, see " Nexum;" 1. of t\\ejusyentittm(see ''Mutuum"), 286 sq. ; impignoration of the bor- rower himself or his services in security, 155, 447. Tiongi tempori-i posscssio remodelled by Justinian, 420. Lunatics, Curatory of, 121, 125. MAECIANI Assis distributio, 333. Mancipation (mancipium, manci patio): meaning of mancipare, and rationale of m., 61 sq. and n. 25, 68 sq. and n. 12; Gaius's description of it, 57; its origin, 58 ; its regulation by Serv. Tullius, 58-GO ; its employment for creation of marital manus (see " Co- INDEX. 457 io"), 65, and in testamentary dispositions (see " Testament "), 65 sq.; originally a real sale and trans- fer, 60, 134 ; with coined money be- came an imaginary sale, really a formal conveyance, 134 sq. ; m. the appropriate form of conveyance of res mancipi, 135 ; could res nee mancipi pass by it ? 143 ; ceremonial, original and modified, 60, 134 ; was there a formula recited by both parties? 137 sq. ; effects of m. , 135 sq. ; in par- ticular, warranty against eviction, 135-138 ; leges mancipii engrafted on the business per aes et libram, 139 sq., 66 n. 6 ; last mention of m., as still in use as a conveyance, 135 n. 9 ; substitution for it of solemnis traditio in conveyance of immovable res mancipi, 419 ; simple tradition substituted for it by Justinian in all cases, 420. Mancipi, Res, see "Res mancipi." Mancipium, various meanings, 62. (See " Mancipation.") Manumission, Modes of, S36sq.; amend- ments of Aelia-Seutian law, 337 sq.; of L. Junta Norlana, 338 sq.; of Justinianian legislation, 419. Man us, its extensive meaning in early law, 24 n. 3, 40, 61 and n. 21 ; hus- band's m. over wife, 26 sq.; in manum conventio by confarreation (see " Con- farreatio"), ib.; by coemption (see '' Coemptio"), 65; by a year's unin- terrupted cohabitation as husband and wife (usus), 115 sq.; modes of dissolution, 117 ; in manum conv. was a cap. deminutio minima, 131, involving a universal acquisition for the husband, 176, without liability under the jus civile for his wife's debts, 131, though otherwise under praetorian rules, ib.; unpopularity of marital manus in early empire, 345 sq., and its eventual entire dis- appearance, 415; fiduciary manus, 44 n. 6, 141 and n. 36. Manus consertio (in sacramental action in rem), 188 sq. and n. 6. Manus injectionem, Leg. Act. per, Gellius's description of it, 201 sq.; against whom employed, 203 sq.; procedure against a nexus, 157 sq.; .( gainst a judicatus or judgment- debtor, 205 sq.; " capite poenas dabat" meaning, 208 sq.; "partis secanto" meaning, 209 sq.; Koh- ler's view, 446 sq.; attempted recon- struction of provisions of XII Tables about m. i., 211 and n. 34 ; effect of Poetilian law on m. i., 161, 212 sq.; m. i. projudicato, 213 ; m. i. pura, ib. Manuscripts of Corpus Juris Civilis, 435 sq.; of Institutes, 436 ; of Digest, 436 sq.; of Code, 438 ; of Novels, 439. Marriage: the justae nuptiae of the patricians of the regal period, 26; plebeians had no,;', n. before the time of Serv. Tullius, 64, only matri- monia, 34 sq., 115; plebeian j. n. accomplished by coemptio, 65 ; the Canuleian law sanctioning inter- marriage of the orders, 87; non justae nuptiae or juris gentium m. of the early empire, 241 ; its effects, ib., 353 ; the manus-less justae nup- tiae of the empire, 345 ; was ductio uxoris in domurn mariti essential to its completion ? ib. n. 1 ; requisites of m. in Justinianian law, 415 ; se- cond marriages, ib. Materfamilias, who so called, 31 and n. 22 ; mf. as distinguished from uxor, 115 n. Matrimonium, original meaning, 35. Minors, Curatory of, 348 sq. Missiones in possessionem, 373 sq. Modestinus, Herennius, 326 sq. Money : media of exchange before money coined, 58 ; aes rude, 59 ; aes signatum of Serv. Tullius, ib. and notes 12, 14 ; coinage of Decemvirs, 134 ; successive reductions in weight of the as, 444. Morals, Decline of, in latter half of re- public, how it influenced the law, 248 sq. Moribus, Judicium de, 249. Movables, was there any property in them in regal period ? 40 sq. Mutuum, 286 sq. NATURAL law, see " Jus Naturale;" n. 1. older than civil, 41. Naturalis ratio, 301. Nexum and Nexus, occasional ambi- guity of words, 154 ; Mamilius, Quint. Mucius, and Ael. Gallus on their meaning, 443 sq.; nexum a contract of loan of money per aes tt libram, 152-162 ; its position before 458 INDEX. Serv. Tullius, 67 ; his regulation of it, 68 ; the ceremonial after coined money in use, 152 sq.; its effects, 154 sq.; manus injectio by creditor sanctioned by XII Tables under words " ueris confessi," 203 sq., 446 ; subsequent domum ductio, but with- out addictio, 155 sq., 158, 205 sq.; status of nexus in detention, 93, 158 sq.; nexi vincti solutique, 162 n. 35 ; nexi liberatio, 156 and n. 17 ; abuses of nexum and maltreatment of the next, 93-95, 160 ; consequent pro- hibition of nexum by the Poetilian law, 95, 160 ; provisions of the statute for relief of existing nexi, 161 sq. Nomen arcarium, 276 ; n. transscripti- cium, 275 sq., 447 sq. Non-citizens, their position under the jus civile, 107-113 ; under the influ- ence of the jus gentium, 265 sq.; peregrinus, 109 n. 8 ; recuperatory procedure between citizens and non- citizens, 223 sq.; fictitious actions to or against peregrins under praetorian system, 363 ; colonial and Junian latins, see "Latinity." Novels (novellae constitutiones), Post- Theodosian, 395 ; Justinian's, 413 ; Julian's Latin epitome of them, 428, 432 ; their MSS., texts, and editions, 439. Noxae deditio, 120 sq. ; n. d. of filius- familias unknown in Justinianian law, 417. Nudumjus Quiritium, 270 and n. 13. Numa's guilds, 11. Nuncupata, Verba, in mancipation, 139 sq. OATH as safeguard of obligation, 50, 165; reference to o., 233 n. 2. Obligation, Law of, under XII Tables, 149-166 ; prominence of o. ex delicto, 149, 165 ; paucity of those ex con- tractu (see " Contract "), 149 ; by XII Tables many breaches of con- tract punished as offences, 165 ; o. ex re, 166 ; o. to restore unjustifiable gains, 272 and n. 2. Oratio principis initiating Set., 306. Osculi, Jus, 26 n. 7. PANDECTAE, see "Digest." Papinianus, ^Emilius, o23 sq. Parent and Child, the relation when latter in potestate, see " Patria potestas;" when emancipated, see "Emancipation;" when issue of non justae nuptiae (or juris gentium marriage), 241, 353 ; p. and c. in Justinianian law, 416-418. Parricidium, 53 n. 11. "Partis secanto" of decemviral legis- lation against insolvent debtors, 209 sq. ; Kohler's view of it, 446 sq. Patented counsel, Responses of, see " Responsa prudentium." Paterfamilias, 24 sq., 127. Patria potestas, its origin in custom, 118; its nature, 27 sq., 31 sq., 127; resulted from justae nuptiae (see "Marriage"), 118 and n. 10, adop- tion (see "Adoption" and "Adro- gation "), 29, and legitimation of children by a mistress, 418, but not from non justae nuptiae (or juris gentium marriage), 241 ; how p. p. came to an end, 24 sq., 32, 128 sq. (see also " Emancipation ") ; provi- sions of XII Tables in reference to it, 118 sq. ; domestic jurisdiction of paterfamilias, 32, 70, 222 sq. ; limit- ed liability of pf. for debts of filius- familias under praetorian rules, 272 ; relaxation of p. p. by introduc- tion of peculium castrense, 344 sq. ; further relaxations of classical period, 346 sq. ; remains of p. p. in Justinianian law, 416-418. Patricians, their position in early law, 6 sq. ; meaning of patricii, 35 n. 31 ; the p. family in regal period, 24 sq. ; the p. order of succession, 43 sq. ; the strife between p. and plebeians, 82 sq. Patron and client, see "Clientage." Patron and freedman, see "Manu- mission ; " p.'s right of succession to f., 294 note. Paulus, Julius, 326 ; his Sententiae, 332. Peculium profecticium, 347 ; p. cas- trense, 344 sq. ; p. quasi-castrcnse, 345 n. 15 ; the peculia oifiliifamilias in Justinianian law, 417 sq. ; the 118th Novel on the p. castrense vel quasi, 418. Pccunia credita, 230 sq., 276. Peregrinus, see "Non-Citizen." Personality, only paterfamilias had complete, 127 ; quoad jus civile thuse INDEX. 459 f subject to him were representatives of his persona, ib. Petri Exceptiones Leg. Bomanar., 434. Pignoris capionem, Leg. Act. per, its nature, 214 ; when employed, 164 and n. 38, 215 ; effect, 216. Pignus, 148 n. 65, 267 ; p. in causa judicati captum, 389. Plebeians, The, of early Rome, 9 sq. ; their position, 12; their domestic relations in regal period, 34 sq. ; had no justae nuptiae before time of Serv. Tullius, 64, only matrimonia, 34 sq., 115 ; afterwards got justae nuptiae by coemption, 65, and manus by usus, 115 ; early distributions of land among them, 38 ; their order of intestate succession in regal period, 48 sq. ; their substitute for a testa- ment, 65 ; strife between them and patricians, 82 sq. ; attainment of general equality of private rights by XII Tables, 99; right of intermar- riage with the patricians by the Canuleian law, 87. and eventually, by a series of statutes, substantial political equality, 83-88. Plebiscita, 84, 252 ; ranked with leges, 86. Pomponius, Sextus, 319. Pontiffs, their judicial and quasi- judicial functions, 72 sq., 77 note, 221 sq. ; their functions in adroga- tions, 30, in matters of testament, 47, and in the actio sacramcnto, 191 sq. ; their inter pretatio, 261 sq. Possessio, Bonaefidei, 271. Possessio, Bonorum, see "Honor. Poss." Possession, Roman law of, somewhat uncertain, 349 and note. J'ossessionem, Missio in, 373 sq. Possessiones, 90 sq. Pustulatio, Judicis, see " Jud. post." Praedes litis et vindiciarum in sacra- mental procedure, 191, 194 sq. Praetors : institution of the praetorship, 88 ; office of the urban p., 242 ; the peregrin p., 243 ; their edicts, see "Edicts of the Magistrates;" the [ p. not specially the mouthpieces of equity, 257 ; praetorian amendments often the product of years, 289. Praetorian stipulations, 274, 372 sq. Primogeniture, no privilege of, 45. Procedure, see "Judicial procedure." Proculians and Sabinians, 316 sq. Pfodigus, see "Spendthrift." "Promise," possible etymology, 50 n. 2. Property originally included inmanus, 40, 131 ; early law of p., 36 sq. ; p. civil and natural, 41 ; was there any p. of movables in regal period ? 40 sq. ; law of p. under XII Tables, 131- 149 ; offences against p. in XII Tables, 146-148 ; changes in law of p. in later republic, 266-271 ; the law of p. in the Justinian legislation, 419- 421. (See " Dominium ex jure Quiri- tium," " Bonitarian ownership.") Propinquity, computation of degrees, 124 n. 13. Provincial conquests, how they in- fluenced the law, 245 sq. ; p. gover- nors, their edicts, 258; p. land, 266. Prudentium, Responsa, see " Reap, prud." Publician edict and action, 268-271, 363. Pupils, Tutory over, see " Tutory." QUAESTIONES ac monita, Lombardic, 433. Querela inofficiosi testamenti, 249 sq., 288 ; substantially displaced by Jus- tinian's legislation, 425. Quiritarian right, origin of king's jurisdiction in questions of, 72 sq. ; Q. ownership, see " Dominium ex jure Quiritium." Quiritium, Meum est ex jure, signifi- cance, 131 sq. RAUDCSCULUM, 60. Ravenna, reported transfer of Roman law-school to, 433. Real contracts, 286 sq. Recuperatio by treaty with foreigners, 111, 113 ; its nature, 223 sq. ; its employment inter cives, 225. Regal period, elements of population, 3-13 ; regulatives of public and private order, 14-23 ; institutions of private law anterior to Serv. Tullius, 24-55 ; Servian reforms, 56-77. Religion and morals, Decline of, in latter half of republic, how it in- fluenced the law, 248 87. Remancipation, 117. Rescripta, Imperial, 313 sq. ; their diminished authority in later empire, 460 INDEX. 379 sq. ; Justinian's declaration as to them, 380. Res mancipi and nee mancipi, distinc- tion due to Serv. Tullius, 57 ; mean- ing of r. m.,62; what were r. m., 63 ; why so called, ib. ; consequence of defective conveyance of r. m., 41 n. 9 ; in bonis tenure of r. m., ib., 268, 270 ; r. n. m. might be held ex jure Quiritium, 132 ; could r. n. m. pass by mancipation ? 143 ; distinction abolished by Justinian, 420. Rcsponsa prudentium, 310-312; origin of jus respondendi, 310 sq. ; form and value of r., 311 sq. ; their regulation by Hadrian, 312 ; out of use after middle of third century, 327. Restitutio, In integrum, 374 sq. Revenge, Blood, 52 sq.; vestiges of it in XII Tables, 106. Romano-barbarian Codes, 397 sq. Roscio com., Cicero pro, 275. Rutilian bankruptcy arrangements, 161 n. 30, 250. SABINE rape, 26 n. 6. Sabini libri III de jure civili, 318. Sabinians and Proculians, 316 sq. Sacer esto and Sacratio capitis, 17, 53 sq. Sacra familiae, importance of per- petuating, 25 and note 5 ; heir's liability for, 178. Sacr amentum, Leg. actio per, general idea, 187 ; procedure in vindication of land, 187-191 ; tliemanus consertio, 188 sq. ; the Sacramento provocatio, 190 sq. ; the deposit ad pontem, 191, 445, for which praedes sacramenti substituted, 191, 444; what it all meant, 73, 192-194 ; effect of judg- ment, 194 sq. ; sacramental pro- cedure in other cases, 195-197. Sacratae, Leges, 83 sq. Sale, Stages in the history of, 163-165, 279-286 ; the decemviral provision that property of thing sold should not pass till price paid, 133 and n. 4, 135. Satisdatio secundum mancipium, 282. Scaevola, Q. Cervid., 322 sq. Scaevola, Quint. Mucius, P. f. 263. Seals to testaments, &c., 170, 290, n. 9. Secession of plebeians, First, 83 ; second, 84 ; third, 96. Sectio bonorum, 210. Self-help in regal period, 51, 71 sq. ; remains of it in XII Tables, 105; the decretum divi Marci, 314 note. Senatusconsults take place of leges, 306 ; already numerous in time of Claudius, 305. Senatusconsults, Particular: Sc.Mace- donianum, 347 ; Sc. Orphitiartum, 356 ; Sc. Peyasianum, 354 ; Sc. Tertullianum, 355 ; Sc. Trebellianum, 354 ; Sc. Vellaeanum, 313, n. 3. Servilis cognatio, 419. Servitude of the glebe, see " Colo- natus. " Servitudes in XII Tables, 148 ; creation of s. by pacts and stipulations, 267 and n. 7 ; s. in classical period, 350. Servius Sulpicius Eufus, 264. Servius Tullius, his reforms, 56-77 ; institution of census, 56 ; conse- quences, 57 sq. ; his amendments on the course of justice, 69-77 ; his fifty laws about contracts and crimes, 67, 74, 89. Sex : originally no privilege of s. in succession of sui keredes, 44 ; but females practically under fetters, ib. ; disabilities imposed on them, by Voconian law, 288 ; limitation by "interpretation" of their right of succession as agnates, 173, 288; praetorian relief, 294 ; Justinianian equalisation, 423. Sinaitic papyri, Bernardakis's, 400. Slaves : domestic position of s. in regal period, 33 ; provisions of XII Tables in reference to them, 120 sq. ; slave jure civili a thing, jure na- turali a person, 127 ; limited liabi- lity of owner for debts of s., 272; improved position of s. in Justini- anian law, 419 ; enfranchisement of s., see "Manumission." Soldiers, Exceptional privileges of, 341 sq. ; testamentum militare, 342 sq. ; peculium castrense, 344 sq. Solutio per aes et libram, 60 n. 16, 156 and n. 17. Spendthrift, Interdiction of, 32, 114, 126, 219 11. 2. Sponsio, derivation of word, 228 ; confined to citizens, 228, 273 and n. 7 ; heir of sponsor at one time not bound, 228 n. 7. (See "Stipula- tion.") INDEX. 461 Sponsio et restipulatio tertiae partis, 230 sq. Sponsionem, Procedure in real actions per, 360 sq. Stationes jus publice docentium, 317. Statu liberi, 120. "Status condictusve dies cum hoste," 224. Stipulation, its introduction, 226- 229; derivation of word, 227; theories as to origin of s., 227 sq. ; forms, sponsio (ffirtvSuv and cnrovSri), pro- missio, &c. , 228 sq. ; a formal con- tract, 229 ; its expansion in latter half of republic, 273-275 ; stipulatio habere licere, 282 sq. ; s. duplae, ib. ; s. Aquiliana, 274 ; praetorian stipulations, 372 sq. Stoics, Philosophy of the, its influ- ence on the law, 247 note. Succession, Universal, to the living, by in manum conventio, see " Manus ;" by adrogation.see "Ad- rogation ; " by bonorum emptio, see " Emptio bonorum : " to the dead, by inheritance, see " Hereditas," testamentary, see "Testament," or on intestacy, see "Intestate succes- sion ; " by usucnpio pro herede, see " Usucapio pro herede ; " by bonorum possessio, see "Honor, poss.;" by trust, see " Fideicommissa." Sui heredes, who included amongst a man's, 174 ; real nature of their suc- cession, 48 and n. 11 ; by jus civile and praetorian rules testator had either to institute or disinherit them, 171 ; consequences of prseterition, 291 ; theJustinianianlawonprseteri- tion and disherison, 424 sq. ; void- ance of a testament by subsequent emergence of s. h. who had not been provided for, 171 ; under jus civile, s. h. had the first place on intestacy, 43, 48, 172 ; had no preference over emancipated children in praetorian or imperial intestate succession, 293; no privilege of males or of primo- geniture among s. h., 44, 45 ; they were necessary heirs, 174, and took per stirpes, 175. Sui juris, 124 and n. 12. Summa Perusina, 433. Suretyship, 272. Syrian collection of Ante-Justinianian law, 400 sq. TALION in XII Tables, 106. Terminus, worship of, 37. Testament (see "Succession "), what? 168 ; only a citizen could make a t., 48 n.13 ; original incapacity of women to do so, 44 n. 6 ; the t. calatis comitiis, 47, 167 ; the t. in procinctu factum, 47 ; difficulty experienced by plebeians in making at., 65 ; their makeshift for it, 65 sq. ; the t. per aes et libram in its inchoate con- dition, 167-169 ; its second and third stages, 169 sq. ; necessity of testator's instituting or disinheriting sui here- des, see "Sui heredes ; " how he had to deal with emancipated children, see "Emancipation;" instituted heir required to have testamenti factio with testator, 363 ; substitu- tions, 175 ; subsidiary provisions, 351 ; the so-called praetorian t., ib. ; the t. of the Justinianian law, 422 ; J.'s legislation about dis- herison, praeterition, &c., 424 sq. ; rights, &c., of heir, &c., under or in opposition to a testament, see "Hereditas," "Honor. Possessio;" querela inofficiosi testamenti, see "Querela;" testamentum militare, 342 sq. ; testamentary trusts, see "Fideicommissa,;" codicils, see "Codicils." Texts of Institutes, 436; of Digest, 437 ; of Code, 438 ; of Novels, 439. Theft and its forms and actions, 147 sq. Theodorici, Edictum, 397. Theodosian Code, 393 sq. ; Post-Theo- dosian Novels, 395. Theophilus's Paraphrase of the In- stitutes, 430. Tignum junctum, 132, 148. Transmission (transmissio) of heir's jus adeundi, Justinian's amendment, 425 sq. Tribonian, 404 sq. ; his "emblems," 408 n. 13. Tribunate, Institution of, 83; functions of tribunes, 83 sq., 94. Trinoctialis usurpatio, 35 n. 33, 116. Turin Gloss on Institutes, 433. Tutory over Pupils in regal period,|33, 121 ; t. of male agnates (tutela legiti- ma) introduced by XJI Tables, 124 ; tut. leg. ended by capitis deminutio, 130; the office of a tutor, 125; the actio de rationibus distrahendis, 462 INDEX. 1 48 ; removal of tutor as suspect, 219 ; regulation of t. over p. by oratio divi Sever i, 348 ; tutory-at-law opened to cognates, and exceptionally even to females, 418. Tutory over "Women in patrician Rome, 33, 121 ; its justification, 33 n. 26 ; tutory of agnates, 124 ; fidu- ciary t., 44 n. 6 ; tutela legitima of agnates abolished by I. Claudia, 305 ; entire disappearance of t. over w. in later classical law, 348. Twelve Tables, the complaints that evoked them, 88 sq. ; their compila- tion, 97 ; sources, 98 ; remains, 99 sq. ; reconstruction, 101 sq. ; ar- rangement and most authoritative versions, 103 n. 5 ; general charac- teristics, 103 sq. ULPIANUS, Domitius, 325 ; Fragmenta Ulpiani, 331. Usucapio, The, of XII Tables, 145 sq.; amended in latter half of republic, 267 ; remodelled by Justinian, 420. Usucapio pro herede, origin, 48 sq.; nature, 179 sq., 142 n. 41. Usufruct and quasi-usufruct, 350. Usureceptio fiduciae, 142 sq. Usury, Laws to repress, 94 sq. " Uti legassit suae rei ita jus esto," original application, 167 ; extension, 171. U.cor and materfamilias, distinction 115 note. VADIMONIUJI, 150, 280 n. 2. Valentinian "Law of Citations, "390 sq. Valerius Probus, his " Notae Juris, " 333. Vatican Fragments, 396. Vectiyalis, Ager, 420. Vengeance, Private, in early law, 52 sq. Vtrla nuncupata in a mancipation, 139 sq. Vesting of an inheritance, 174 sq. " Veteres " of later republic, 263 sq. Vindex in manus injectio against a judgment-debtor, 206 and notes ; no room for him in m. i. against a nexal debtor, 158. Vindicare, meaning, 192 n. 15. Vindicatio, Rei : per sacramentum, 187-196 ; per sponsionem, 360 sq. ; per formulam pctitoriam, 361. Vindicta iu sacramental real action, 189 ; in manumission, 337. " Vis civilis etfestucaria'" (Gell.), 193. Visigothorum, Lex Romana, 398. WARRANTY against eviction in manci- pation, 135 sq. ; did it arise ipso jure f 137. "\Vomen, see "Sex," "Testament,'' " Tutory over women/' THE END. PRINTED BY UALLANTVNE, HANSON AND CO. EDINBURGH AND LONDON. 17234