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| A B C D E F G H I J K L M N O P Q R S T U V W X Y Z |
In the following article this subject is briefly treated under the two heads of; I. Principles; II. History. Of these two divisions, I is subdivided into: A. Persons; B. Things; C. Actions. The subdivisions of II are: A. Development of the Roman Law (again divided into periods) and B. Subsequent Influence.
The characteristic of the earlier Roman law was its extreme formalism. From its first secret administration as thelaw of the privileged classes it expanded until it became the basis of all civilized legal systems. The Roman law in its maturity recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law, and repudiated the concept thatjustice is the creature of positive law. Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus" (i.e. Justice is natural, not the effect of opinion). Justice was conformity with perfectlaws andjurisprudence was the appreciation of things human and divine — thescience of the just and theunjust, but always thescience of law with its just application to practical cases. Law was natural or positive (man-made); it was natural strictly speaking (instinctive), or it was natural under the Roman concept of thejus gentium (law of nations) — natural in itself or so universally recognized by all men that a presumption arose by reason of universality. The Romans attributed slavery to thejus gentium because it was universally practised, and therefore implied the consent of all men, yet the definition of slavery expressly states that it iscontra naturam, "against nature". Theprecepts of thelaw were these: to live honestly; not to injure another; to give unto each one his due. Positive law was thejus civile, or municipal law, of a particular state.
Gaius says that all law pertains topersons, to things, or to actions.
Man andperson were not equivalent terms. A slave was not aperson, but a thing; aperson was a human being endowed with civil status. In other thanhuman beingspersonality might exist by a fiction. Status was natural or civil. Natural status existed by reason of natural incidents, such as posthumous or already born (jam nati), sane and insane, male andfemale, infancy and majority. Civil status had to do with liberty, citizenship, andfamily. If one had no civil status whatever, he had nopersonality and was a mere thing. Men were either free or slaves: if free they were either free born or freedmen. Slaves were born such or became slaves either by thelaw of nations or bycivil law. By thelaw of nations they became slaves by reason of captivity; bycivil law, by the status of theirparents or in the occasional case where they permitted themselves to be sold in order to participate in the price, if they were over twenty years of age. An ungrateful freedman, again, might become a slave, as might one condemned to involuntary servitude in punishment for crime. Freeborn, in the later law, were such as were born of a mother who was free at conception, at birth, or at any time between conception and birth. Freedmen were former slaves who had been emancipated under one of several forms. They owedobsequium — i.e., respect and reverence — to their former masters. The Lex Ælia Sentia placed restrictions on emancipation by minors and infraud of creditors. The Lex Fusia Caninia restricted the right of manumission proportionately to the number of slaves owned.
Men were either citizens or foreigners (peregrini), perhaps more accurately "denizens". Assuming that one had civil status, he might be eithersui juris (his own master) oralieni juris (subject to another). The power to which he was subject was termed apotestas: slaves were under the dominical power, and children were under thepatria potestas exercised by a male ascendant; the marital power was termedmanus (i.e., "the hand", signifying force).
Slaves were at first insecure in their lives, but later the master's power of life and death was taken away. They were in commerce and might be sold, donated, bequeathed by legacy, alienated by testament, or manumitted. They had nothing of their own, and whatever was acquired through them accrued to the masters. Only very rarely could they bring their masters into legal relations with thirdpersons.
The paternal power over children (descendants) was a close patriarchal relationship, dating from remote antiquity and at first extending to life and death. Betweenpaterfamilias andfilius familias (father and son), noobligation was legally enforceable (seePrejudicial action below). During his lifetime thepaterfamilias was the owner of accessions made by thefilius familias. The later law, however, recognized a quasi-partnership of blood and conceded an inchoate ownership in the paternal goods, which was given expression in the system of successions. A child under power might have the administration of separate goods called hispeculium. Thepaterfamilias did not part with the ownership. The military and quasi-militarypeculium became a distinct, separateproperty. Even the slave at his master's sufferance might enjoy apeculium. The paternal power was stripped of the power of life and death, the right of punishment was moderated, and the sale of children was restricted to cases of extreme necessity. In the earlier law, it had been permitted to the father to give over his child (as he might give over a slave) to someperson injured through the act of the child, and thus escape liability. With the growth of humane sentiment, the noxal action in the case of children was abolished. Betweenparents and children, only affirmative or negative actions on the question of filiation or the existence of the paternal power were permitted. The paternal power was held only by males, and extended indefinitely downward during the lifetime of the patriarch: i.e., father and son were under thepatria potestas of the grandfather. Thepotestas was in no wise influenced by infancy or majority. In the case given, upon the death of the grandfather the paternal power would fall upon the father. Thepatria potestas was acquired over children born in lawful wedlock, by legitimation, and by adoption.
Marriage (nuptiœ orconnubium) was the association or community of life between man andwoman, for the procreation and rearing of offspring, validly entered into between Roman citizens. It was wont to be preceded bysponsalia (betrothal), defined as an agreement of future marriage.Sponsalia might be verbally entered into, and required no solemnities. The mutual consent of the spouses was requisite, and the object of marriage was kept in mind so that marriage with an impotentperson (castratus) was invalid: the parties must have attained puberty, and there could be but one husband and one wife. It istrue that more or less continuous extra-matrimonial relations between the same man andwoman in the absence of any other marriage were considered as a kind of marriage, under thejus gentium, by the jurists of the second and third centuries. Theconnubium, or Roman marriage, was for Roman citizens:matrimonium existed among other freepersons, andcontubernium was the marital relation of slaves. The latter was a status of fact, not a juridical status. Marriage might be incest, indecorous, or noxal: incest, e.g., between blood relations orpersons between whom affinity existed; indecorous, e.g., between a freeman and a lewdwoman or actress; noxal, e.g., betweenChristian andJew, tutor or curator and ward, etc.
Cognation or blood relationship is indicated by degrees and lines; the degree measures the distance between cognates, and the line shows the series, either direct (ascending or descending) or collateral; the collateral line is either equal or unequal in the descent from the common ancestor. In the direct line, in both civil and canon law, there are as many degrees as there are generations. In the collateral line there is a difference: bycivil law, brother and sister are in the second degree, although each is only one degree removed from the common ancestor, the father; by canon law, they are in the first degree. Thecivil law counts each degree up to the common ancestor and then down to the other collateral. The canon law measures the cognation of collaterals by the distance in degrees of the collateral farthest removed from the common ancestor. Uncle and niece are three degrees distant bycivil law; by canon law they are only two degrees removed. Affinity is the artificial relationship which exists between one spouse and the cognates of the other. Affinity has no degrees. By Roman law, marriage in the direct line was prohibited; in the collateral line it was prohibited in the second degree.
Marriage was usually accompanied by the dowry, created on behalf of the wife, and by donationspropter nuptias, on behalf of the husband. The dowry (dos) was what the wife brought or what some otherperson on her behalf supplied towards the expenses of the married state.Property of the wife in excess of the dowry was called herparaphernalia. The dowry was profective, if it came from the father; adventitious, if from the wife or from any other source. The husband enjoyed its administration and control, and all of its fruits accrued to him. Upon the dissolution of the marriage the profective dowry might be reclaimed by the wife's father, and the adventitious by the wife or her heirs. Special actions existed for the enforcement of dotal agreements.
The offspring of incest oradultery could not be legitimated. Adoption, which imitates nature, was a means of acquiring the paternal power. Only suchpersons as in nature might have beenparents could adopt, and hence a difference of eighteen years wasnecessary in the ages of the parties. Adoption was of a minor, and could not be for a time only. Similar to adoption was adrogation, whereby onesui juris subjected himself to thepatria potestas of another.
The paternal power was dissolved by the death of the ancestor, in which case each descendant in the first degree becamesui juris; those in remoter degrees fell under the paternal power of the next ascendant: Upon the death of the grandfather, his children becamesui juris, and the grandchildren came under the power of their respective fathers. Loss of status (capitis diminutio,media ormaxima), involving loss of liberty or citizenship, destroyed the paternal power. Emancipation and adoption had a similar effect.
One might besui juris and yet subject to tutorship or curatorship. Pupillary tutorship was a personal public office consisting in theeducation and in the administration of the goods of apersonsui juris, but who had not yet attained puberty. Tutorship was testamentary, statutory, or dative: testamentary when validly exercised in the will of thepaterfamilias with respect to a child about to becomesui juris, but under puberty. A testamentary tutor could not be appointed by the mother nor by a maternal ascendant. The agnates, who were an important class of kinsmen, in the early Roman law were cognates connected through males either by blood relationship or by the artificial tie of agnation. Statutory tutorship was that which thelaw immediately conferred, as the tutorship of agnates, of patrons, etc. The first statutory tutors were the agnates andgentiles called to tutorship by the Twelve Tables. Justinian abolished the distinction in this respect between agnates and cognates, and called them promiscuously to the statutory tutorship.
Similar to tutorship, although distinct in its incidents, was curatorship. In tutorship the office terminated with the puberty of the ward. The interposition of the tutor'sauctoritas in every juridical act was required to be concurrent, both in time and place. He had no power of ratification, nor could he supply theauctoritas by letter or through an agent. Curators were given topersonssui juris after puberty and before they had reached thenecessary maturity for the conduct of their own affairs. Curators were appointed also for the deaf and dumb, for the insane and for prodigals. The curator of a minor was given rather to the goods than to theperson of his ward; the curator's consent wasnecessary to any valid disposition of the latter's goods. Tutors and curators were required to give security for the faithful performance of theirduties and were liable on the quasi-contractual relationship existing between them and their wards. In certain cases thelaw excusedpersons from theseduties, and provision was made for the removal ofpersons who had become "suspect".
In thelaw ofpersons, status depended upon liberty, citizenship, andfamily; and the corresponding losses of status were known respectively ascapitis diminutio maxima,media, andminima. Theminima, by a fiction at least, was involved even when one becamesui juris, although this is disputed.
Things weredivini vel humani juris (i.e., governed by divine or by human law). Thingssacrœ were publiclyconsecrated to the gods; places of burial were thingsreligiosœ thingssanctœ were so called because protected by a penal sanction — thus the city walls, gates, ditch, etc. weresanctœ. None of these could be part of an individual's patrimony, because they were considered as not in commerce.
Thingshumani juris were the things with which the private law concerned itself. Things are common when the ownership is in no one, and the enjoyment open to all. In an analogous way, things are public when the ownership is in the people, and the use inindividuals. The air, flowing water, the sea, etc. were things common to all, and therefore theproperty of none. The seashore, rivers, gates, etc., were public. Private things were such as were capable of private ownership and could form part of the patrimony ofindividuals. Again, things were collective or singular. The once important distinction betweenres mancipi andnec mancipi was suppressed by Justinian.Res mancipi were those things which the Romans most highly prized: Italian soil, rural servitudes, slaves, etc. These required formal mancipation.
Things were either corporeal or incorporeal: corporeal were thosequœ tangi possunt (which can be touched — tangible). Detention or naked possession of a thing was the mere physical faculty of disposing of it. Possession was the detention of a corporeal thing coupled with theanimus dominii, or intent of ownership. It might be ingood faith or in bad: if there was a just title, the possession was just: if not,unjust. Atrue possession was possible of a corporeal thing only; quasi-possession was the term employed in reference to an incorporeal thing, as a right. Thejus possessionis was the entirety ofrights which accrued to the possession as such. The advantages of possession as independent of ownership were as follows: the possessor had not the burden of producing and proving title; sometimes he enjoyed the fruits of the thing; he retained the thing until the claimant madeproof; he stood in a better position in law than the claimant, and received the decision where the claim was not fully established; the possessor might retain the thing by virtue of thejus retertionis, until reimbursed for charges and outlays; the possessor ingood faith was not liable forculpa (fault). One might not recover possession byviolence or self-help.
A rightin re was a real right, valid against all the world; a rightad rem was anobligation or personal right against a particularperson orpersons. Rightsin re were ownership, inheritance, servitudes, pledge, etc. Ownership was quiritarian or bonitarian: quiritarian, when acquired by thejus civile only available to Roman citizens; bonitarian, when acquired by any natural, as distinguished from civil, means. This distinction was removed by Justinian. There could be co-ownership or sole ownership.
The modes of acquiring ownership were of two genera, arising fromnatural law and fromcivil law. One acquired, bynatural law, in occupation, accession, perception of fruits, and by tradition (delivery). Occupation occurred in acquisition by hunting, fishing, capture inwar, etc. The right ofpost-liminium was the recovery ofrights lost through capture inwar, and in proper cases applied to immoveables, moveables, and to the status ofpersons. Finding was also a means of occupation, since a thing completely lost or abandoned wasres nullius, and therefore belonged to the first taker.
Accession was natural, industrial, or mixed. The birth of a child to a slavewoman was an instance of natural accession; so also, was the formation of an island in a stream. This accrued to the riparian owners proportionately to their frontage along the side of the river towards which the island was formed. Alluvion was the slow increment added to one's riparianproperty by the current. Industrial accession required human intervention and occurred byadjunctio,specificatio, orcommixtio, or by a species of the latter,confusio. Mixed accession took place by reason of the maxim: Whatever is planted on the soil, or connected with it, belongs to the soil.
In perception of fruits the severance or taking of revenue might be by the owner or by another, as by the usufructuary, the lessee (inlocatio-conductio), by the creditor (inantichresis), and by the possessor ingood faith.
Tradition was the transfer of possession and was a corporeal act, where the nature of the object permitted. Corporeal things were moveables or immoveables. In moderncivil law, incorporeal things are moveables or immoveables, depending upon the nature of theproperty to which therights orobligations attach. In Roman lawobligations,rights, and actions were not embraced in the termsmoveables andimmoveables.
The vindicatory action (rei vindicatio) went to the direct question of ownership, and ownership was required to be conclusivelyproved. Completeproof of ownership was often extremely difficult, or impossible, and the Prætor Publicius devised theactio publiciana available to an acquirer by just title and ingood faith, but who could not establish the ownership of his author. It was available to such an acquirer against a claimant who possessedinfirmiore jure.
Ownership (dominium) is an absolute rightin re. A servitude (sometimes called a dismemberment of ownership) was a constituted right in theproperty of another, whereby the owner was bound to suffer something, or abstain from doing something, with respect to hisproperty, for the utility of some otherperson or thing. A servitude was not a service of aperson, but of a thing, and to adjoining land or to aperson. Servitudes due to land were real (predial), while servitudes due to aperson as such were personal. There were servitudes which might be considered as either real or personal, and others, again, which could only be personal, such as usufruct, use, habitation, and the labour of slaves. A real servitude existed when land was servient to land. Such a servitude was either urban or rural, depending not so much on whether the servitude was exercised in the city or country as upon its relation to buildings. Servitudes consisted in something essentially passive,in patiendo vel in non faciendo; neverin faciendo. Servitudes which consistedin patiendo were affirmative and thosein non faciendo were negative. Servitudes could arise by agreement, last will, or prescription.
There were numerous urban predial servitudes: asonus ferendi, by which one's construction was bound to sustain the columns of another or the weight of his wall;tigni immittendi, theright to seat one's timbers in his neighbour's wall;projiciendi, theright to overhang one's timbers over the land of another, although in no way resting on the other's soil;protegendi, a similar right of projecting one's roof over another's soil. The servitudesstillicidii andfluminis recipiendi, were similar:stillicidium was theright to drip; andfluminis recipiendi, theright to discharge rainwater collected in canals or gutters. The servitudealtius non tollendi was a restriction on the height of a neighbour's construction whilealtius tollendi was an affirmative right to carry one's construction higher than otherwise permitted. Servitudes of light and prospect were of similar nature.
Rural predial servitudes wereiter,actus,via,aquœductus, and the like. The servitude ofiter (way) was an eight-foot roadway in the stretches, with accommodation at the turns. It included the right of driving vehicles and cattle, and the lesser right of foot-passage.Actus was a right of trail of four feet in which cattle or suitable narrow vehicles might be driven.Iter was a mere right of path. In these servitudes the lesser was included in the greater. The nature of the right ofaquœductus is obvious, as well as the various servitudes of drawing water, of driving cattle to water, of pasturage, of burning lime, of digging sand or gravel, and the like. Servitudes of this character could be extinguished by the consolidation of ownership of both servient and dominant estate in the same owner, and by remission or release; by nonuser for the prescriptive period, and by the destruction of the dominant or servient estate.
Usufruct was the greatest of personal servitudes; yet, as its measure was not the strict personal needs of its subject, it exceeded a personal servitude. During the period of enjoyment it was almost ownership, and was described as a personal servitude consisting in the use and enjoyment of the corporeal things of another without change in their substance.Ususfructus was the rightutendi,fruendi,salva substantia. In a strict sense it applied only to corporeal things which were neither consumed nor diminished by such use. AfterTiberius a quasi-usufruct (as of money) was recognized. 1Ioney, although not consumablenaturaliter, was consumableciviliter. Usufruct could arise by operation of law, by judicial decision (as in partition), by convention, by last will, and even by prescription. The natural or civil death of the usufructuary extinguished the right, as did non-user and the complete loss of the thing.
Use and habitation were lesserrights of the same general nature.Usus was theright to use the things of another, but only to the extent of the usee's necessities, and alwayssalva substantia. Habitation was the right of dwelling in another's building in those apartments which were intended for habitation,salva substantia (i.e., without substantial modification). The personal servitudeoperœ servorum embraced every utility from the labour of another's slave or slaves. The actions from servitudes wereconfessoria ornegatoria, in assertion of the servitude or in denial of it.
Ownership might further be acquired by usucaption (usucapio) and prescription for a long period. Prescription (a slight modification of the older usucaption) is the dispensing with evidence of title, and is acquisitive when it is the means of acquiring Ownership and extinctive (divestitive) when it bars a right of action. Acquisitive prescription required
Again, ownership could be acquired by donation, the gratuitous transfer of a thing to anotherperson. Donations weremortis causa orinter vivos, and the former was in reality a conditional testamentary disposition and very similar to a legacy, while the latter did not require the death of the donor for its perfection. A species of donationinter vivos was thedonatio propter nuptias from the husband.
The juridical consequence of ownership is the power of alienation, and yet thelaw limited certain owners in this respect. The husband owned the dowry, but was subject to restrictions; the pupil under tutorship was owner, but without power to alienate, except probably in the single case of a sister's dowry. Even where one was owner without these specific limitations, if he had concededrightsin re to another, he could not alienate prejudicially to such other: thus, the pledge debtor could not prejudice therightsin re of the pledge creditor.
Acquisition could be made, not only personally, but through children and slaves; and, in the later law, through a mandatory orprocurator. Acquisition could be made of possession, of ownership, and of the right of pledge.
Succession to a deceasedperson was either testate or intestate: particular things were acquired by legacies or by trust-bequests (fidei-commissa). A universal succession was an inheritance. The Twelve Tables recognized the right of testation, and thecivil law later conceived of a partnership of blood in both testate and intestate successions. The præetor's intervention was frequent in testamentary matters; and in equitable cases he softened the rigour of thelaw and gave thepossessio bonorum. A testament was the legally declared last will in which an heir was instituted. Some departure from the strict formalities was permitted in the case of soldiers' wills. The right of testament was active and passive. Persons generally who were under no incapacity could make a will; those prohibited were such as had some defect of status, some vice or defect of mind, or even some sufficient defect of body, and those guilty of crime or improbity. The passive right of testament was theright to take under a will. Heirs werevoluntary ornecessary (forced). In the early freedom of thelaw, Romans might disinherit without cause; later, this liberty was restricted to disherison for just cause, and alegitima, or statutory provision, was prescribed. Disherison was the express exclusion from the whole inheritance of one who was entitled to thelegitima. One wasprœteritus who was neither instituted an heir nor disinherited. Since disherison was required to be express, one conditionally instituted was only pretermitted. Further, disherison required exclusion from all heirs and from every degree. Under the early law, Sons were required to be excluded by name; daughters and grandchildren could be excluded by class. The later law required that all children should be deprived by name. Justinian enumerated the "just" causes of disherison in Novel cxv; they are substantially the same in the modern civil codes.
The instituted heir, as successor to the universalrights of the decedent, was required to have passive testamentary capacity at the time of the will and at the time of the death; the intervening period was of no consequence. It was, however, requisite that he should retain capacity from the time of the death until the taking of the inheritance. In a conditional institution of the heir, capacity wasnecessary at the time of the will, at the time of the death, and at the time of the happening of the condition. Slaves as well as freemen could be instituted heirs, and, in the case of a slave the gift of liberty was implied. Uncertain and indeterminatepersons might be instituted if they could be rendered certain; such were thepoor, the municipalities, and licit corporations. Where coheirs were instituted without definite shares, they took equally. The heir might be instituted absolutely or conditionally, but not merely for a time. A physically impossible condition, negatively added, left the institution absolute; in general, the conditions annexed were various and quite similar to the classes of conditions known to the moderncivil law. Where one of several co-heirs failed to take, his portion accrued to the others as a matter of law, without theirknowledge and even against their will: this was called thejus accrescendi.
As already intimated, the testator might institute one or several heirs; if all were instituted at the same time, they were direct heirs; but one might be direct and the other substituted by way of fidei-commissum. Again, the testator could substitute an heir, in case the first should not take. Direct substitution, therefore, was the institution of a second heir, in case the first failed to take: with respect to theperson making the substitution, it was either military or non-military. The case in which the substitution was intended to take place classed it as vulgar, pupillary, or quasi-pupillary: vulgar was the ordinary substitution in which one was named to take, in case the first heir defaulted or died; pupillary, was where an heir was instituted to succeed a child under puberty (since such child could not make a will, the parent in a sense made two wills, one for himself to the child and one for the child in case the latter should die before puberty).
Testaments were vitiated in several ways:nullum, void from the beginning, where there was a defect in the institution of the heir or incapacity in the testator;injustum, not legally executed and hence void;ruptum, by revocation or by the agnation of a posthumous child, either natural or civil;irruptum, where the testator had lost the civil statusnecessary for testation;destitutum, where the heir defaulted because dead or unwilling, or upon failure of the condition;recissum, as the consequence of a legal attack upon an undutiful will.
It has been said that heirs were eithernecessary orvoluntary:necessary heirs were either such as could not be pretermitted or such as were forced to accept. These were againsui et necessarii ornecessarii only. The former were children under thepatria potestas, and they weresui because one's own, andnecessarii, because thecivil law made them forced heirs, although the prætor gave to such thebeneficium abstinendi. Voluntary heirs were strangers who had a perfect right of election to accept or reject the inheritance. The prætor conceded to the heir a period oftime in which to balance the advantages and disadvantages of the inheritance, called thejus deliberandi. Justinian added to this the benefit of inventory.
Aside from the inheritance proper, a will could contain legacies whereby things were bequeathed by a single title and by express words; they could be imperative or precative. Legacies were by vindication, where the express words justified a direct legal claim by the legatee; by condemnation, where the language condemned or ordered the heir to transmit the legacy; byprœceptio, where a legacy was left to one only of several co-heirs; andsinendi modo, by permissive words. As in the case of joint-heirs, thejus accrescendi existed also among joint-legatees.
By reason of the ambulatory character (as Heineccius terms it) of man's will, legacies and trust-bequests (fidei-commissa) were subject to ademption and transfer to another legatee. The Lex Falcidia, which created the statutory fourth portion, applied to legacies as well as to other testamentary provisions.Fidei-commissa were created by precative words addressed to theconscience of the heir, and were at first not legally enforceable. Trust-bequests were later given legal sanction; and they were universal or of single things. The moderncivil law is hostile to trusts of any kind.
If a last will contained the institution of an heir, it was a testament; if it contained less, it was a codicil. Originally, codicils were only letters; later, they began to have testamentary force, containing, however, nothing which pertained to the direct institution of the heir. There could be several nonrepugnant codicils. Not only could they contain no institution of an heir, but they could not provide for disherison or substitution. They were made either in connexion with a will or, in some cases, with a view to the intestate succession of the heir.
If there was an invalid will or no will at all, the succession was intestate: in. the ancient law the basis of intestate succession was the peculiarly Roman artificialfamily made up of the agnates. Emancipated children and non-agnatic cognates did not succeed, since they were no part of thefamily. In the first rank, the heirs were the decedent's children (natural or adoptive) who tookper capita, in the nearest degree andper stirpes, or by representation, in remoter degrees. Emancipated children had no claim until later, when they were aided by the prætor's edict, "Unde liberi". The Twelve Tables provided that, in the absence of children, the nearest agnate should be called: this was known as the statutory succession of the agnates. Those only were called who were bound in agnation to the deceased through males; hencefemales beyond sisters were not called. The prætor, however, provided for the more remote in the edict, "Unde cognati". Agnates by adoption enjoyed the samerights as agnates by nature. The nearest agnate took, and there was no right of representation, although here again the prætor made innovations which were supplemented by the legislation of Justinian. The father did not succeed to the son, consistently with theidea that the son could have nothing of his own, and, where the father took, it was by right of resumption. The father succeeded to his emancipated child, not as an agnate, but as a manumissor. The mother was not an agnate, and did not succeed to her children, nor did they succeed to her. Here, again, changes were effected by the edict, "Unde cognati", and by the Senatus-consulta Tertullianum and Orphitianum. The formersenatus-consultum provided that, if a free mother gave birth to three children, or a freedwoman to four, there should be a right of succession, and thislegislation was modified by Justinian even more favourably to the mother. The Senatus-consultum Orphitianum was the complement of the other, and provided that the right of succession between mother and children should be reciprocal. Theserights were extended by imperial constitution to grandchildren.
If agnates were wanting, the Twelve Tables called thegentiles in the next rank, and not the cognates: the prætor, however, in the edict "Unde cognati", called the cognates in this rank.
Servile cognation (that contracted in slavery) had been an impediment of marriage; but the slavewoman, manumitted with her children, could not avail herself either of the Senatus-consultum Tertullianum or of the possession of goods derived from the edict "Unde cognati". Justinian createdrights of succession to remedy this defect.
The former master or, by assignment of freedmen, his children, stood inloco parentis to the freedman, and succeeded to his patrimony. Even the predeceased patron, through his nearest children (representation being excluded) succeeded to the goods of his former slave.Libertini, freedmen, were restricted. in their capacity to make a will. The prætor considered it no more than equitable that the libertinus should leave one-half hisproperty to his former master. A higher equity arose where the freedman left children of his own, and in this case the patron might be excluded, the whole patrimony going to the freedman's children. In all other cases, and evencontra tabulas, the patron took one half: later, in special circumstances depending upon the freedman's wealth, Justinian, developing the principles of the Lex Papia Poppæa, increased the patron's portion.
The prætor's intervention in succession matters did not directly overturn the provisions of thejus civile, but he devised thepossessio bonorum, applicable to both testate and intestate successions. Justinian recognized and gave sanction to three kinds ofpossessio: first,contra tabulas (contrary to the will), wherepersons had been inequitably pretermitted; second,secundum tabulas; third, possession of an intestate's estate. Thebonorum possessor was not an heir in accordance withjus civile, yet he enjoyed all of the privileges of an heir. Justinian placed the right of succession upon a basis of cognation, or blood relationship, and succession by right of blood occurred in four orders which may be indicated as follows:
First order
Second order
Third order
None of these orders being entitled to take, the estate escheated to thefiscus, or public treasury. The adjective law (below, underC. Actions) supplied various forms for thehereditas petitio. Collatio, or the return of advancements, was required in order that there might be a fair distribution. This is the collation of the modern civil codes.
Another means for the acquisition of ownership was adrogation, whereby apersonsui juris was adopted into the paternal power of another. Originally theobligations of theadrogatus were strictly andlogically extinguished, but theinjustice to creditors was the subject of remedial legislation.
Again, one might acquire the goods of another bysectio orvenditio bonorum, a sale at auction for the benefit of creditors.
Therights growing out of pledge were also a means for the acquisition ofproperty. This institution was, in its inception, only a fiduciary pact without means of enforcement, and the title passed to the pledge creditor; later, it took the form ofpignus, or pledge proper, whereby the creditor was placed in possession of a moveable with certainduties towards the debtor; a form of the same contract was extended to immoveables, and this was known asantichresis. Inantichresis the creditor was placed in possession of the immoveables andobliged to pay, first, his interests and charges, and then to deduct from the principaldebt whatever he received as revenue.Hypotheca, or mortgage, was a development and in scientific theory is the substructure of the modern law of mortgage. Privileges were akin to modern civil-lawrights of the same name and to the liens of thecommon law; but possession was not of prime importance.
Pledge was extinguished by the extinction of the principaldebt, by express release, by expiration of the time, by destruction of the thing pledged, etc. The actions growing out of it were the Servian and general hypothecary, or quasi-Servian action.
Realrights (in re) differ essentially from personalrights (ad rem), orobligations, which havepersons as their immediate objects. Even these have things as their remote objects, since they tend to the attainment of a thing through a particularperson and by reason of their being usually convertible into a money value. Obligations (dismissing at once those which were purely natural and hence unenforceable) were broader than either contract or tort, and included liability arising from both. They were civil or prætorian, and could arise from contract, quasi-contract, delict, and quasi-delict. In conventionalobligations some things were essential, others accidental. Contractualobligations arose through delivery of a thing, through words, through writing, or merely through the consent of the parties; and were, accordingly, contractsre, verbis, littens, orconsensu.
Contractsre were the bailments, loan for use, loan for consumption, deposit, and pledge.
Contractsverbis were entered into by a formal stipulation consisting of a direct question and an adequately responsive answer. They could take immediate effect, could commencein futuro, or could be conditional. Stipulations were prætorian, judicial, common, and Aquilian: the prætorian and judicial were scarcelyvoluntary. The common stipulation was used in the ordinary affairs of men and bypersons in fiduciary relationships (e.g., in this form the tutor gave security for the faithful discharge of hisduties). The Aquilian stipulation, in connexion withacceptilatio, was a means of general release for the dissolution of anyobligation. Stipulations required the same consensual elements that werenecessary in other agreements, in addition to their own peculiar formalism. If a conditional response were made to a direct question, the stipulation was void; so also, if made by letter or messenger. The relation of suretyship could be created by stipulation: suretyship was an accessory contract, and the surety was known as thefidei-jussor. Sureties had thebeneficium divisionis, which was conceded byHadrian. They enjoyed also thebeneficium ordinis, invented byJustinian, and thebeneficium cedendarum actionum, or subrogation to the right of action of the creditor against the principal debtor, orpro rata against the co-sureties.
Contractslitteris took their juridical efficacy from writings, which evidenced the fact that anobligation subsisted or that it had been extinguished. The latter were calledapochœ. Writings evidencing a subsistingobligation were syngraphic or chirographic respectively, as they expressed a mutual or a unilateralobligation. A writing in the book of the debtor which supported the creditor's entry was conclusive, and even he creditor's entry created a strong presumption.
Contractsconsensu were not peculiar in that they required consent, which was requisite in all contracts. Their peculiarity was in the fact that consent alone sufficed. They were five in number: buying and selling (emptio-venditio); letting and hiring (locatio-conductio); the emphyteuticary contract; partnership (societas); and mandate (gratuitous agency). In sale, there wasnecessary the consent of the parties, an object and an agreed price. Letting and hiring might be considered a temporary sale, and the essential incidents of a valid contract were the same as in sale. Emphyteusis strictly was neither a sale nor a letting; it was rather a quit-rent lease dependent in its duration upon the payment of the agreedcanon. Its special incidents were a quasi-ownership in the tenant and a right of pre-emption in thedominus. Similar to emphyteusis was the right of superficies; but as it applied only to the surface — that is, to buildings — it was less permanent. Partnership was general or universal; particular or special; and, finally, singular. As consent was of its essence, withdrawal of consent worked its dissolution. Partnership was an entity distinct from the individual partners; it gave rise to theactio pro socio. The leonine partnership (societas leonina) was illegal. Mandate was a consensual contract whereby one undertook gratuitously to attend to an affair for another; it was commissioned agency and was an actual contract; it was distinguishable fromnegotiorum gestio (uncommissioned agency) in that the latter belonged to quasi-contract. It gave rise to theactio mandati, directa, orcontraria.
The contracts which had a definite name and form of action for their enforcement were nominate contracts. There were others termed innominate because they had no special names: these were summed up in the four formula:Do, ut des; Do, ut facias; Facio, ut des; andFacio, ut facias. They were enforced by the general actionin factum or by the actionprœscriptis verbis.
All of the foregoing contracts, nominate and innominate, were contracts in thetrue sense of the word, but there was another class of relations in which thelaw imposedduties andobligations as if the parties had actually contracted. These were the so-called quasi-contracts, and the forms werenegotiorum gestio, tutorship, inheritance, administration in common,hereditatis aditio, indebiti solutio (payment under mistake of fact), and a few others of similar nature.
Obligations could be acquired through the paternal and dominical powers and through mandataries. A civilobligation once constituted could be extinguished by an exception (plea in bar) or by its own terms. Pleas in bar were divers and could arise from a will, a contract or pact, a judicial decision, etc.
The means of extinction common to allobligations were:solutio (payment);compensatio (set-off);confusio (merging of the character of debtor and creditor)oblatio et consignatio (tender);rei interitus (loss of the thing);novatio (substitution ofobligations as toperson or thing);prœscriptio (lapse of time); and further, in proper cases, byacceptilatio (release) and bymutuus dissensus (mutual change of intention).
The prætorianrestitutio in integrum was an equitable restoration of the parties to their former situation, and could be invoked formetus (duress),dolus (fraud), minority, and generally by all who had suffered hardship through no fault of their own.
Obligations andrights of action arose also out ofdelictum, which was thevoluntary penal violation of human law. Delicts were either actual or quasi-delicts — the former deliberate, the latter negligent. When public, they were crimes; when private, torts. Instances were:furtum (theft), either manifest or concealed;rapina (robbery withviolence);damnum injuria datum (injury toproperty); andinjuria (a kind of outrage, or defamatory wrong by word or action). Infurtum, the thief could be prosecuted either civilly or criminally, and in the civil action the thing or the penalty could be recovered. The Roman criminal law imposed a fine to thefiscus and corporal or capital punishment. Justinian abolished mutilation and capital punishment for theft and substituted fines and exile.Rapina, likefurtum, required a criminal intent. Where the putative owner, in thebelief of ownership, sought to recover hisproperty byviolence, this was notrobbery, but the offence against public order was punished by the loss of theproperty without, however, any fine to the fiscus. Damage to theproperty of anotherinjuria datum was the subject matter of the Aquilian Law, and the damage must have been inflicted by a freedman; if by a slave, it was a noxal tort; if by a quadruped, the tort and liability were designatedpauperies. The measure of damages ininjuria depended upon the atrocity of the wrong and the status of the parties; the right of action accrued to the father forinjuria to the son; to the husband, for the wife; to the master, for the slave, etc. Quasi-delictualobligations were torts or wrongs based onculpa (fault or negligence), and not upondolus (evil intent). An instance was where anything was negligently or carelessly thrown from a house (dejecta vel effusa). Quasi-delictual, also, were theobligations ofpersons employed in a public calling, such as shipmasters and innkeepers, for the wrongful acts of their servants.
An action was the legal means for the enforcement of a right, and the Roman law included in the termactio both the right of action and the action itself. Actions were petitory, when they sought to recover the very thing in controversy, or possessory, where the right of possession only was in issue. Specific nominate actions were provided in most of the relations between men, and where the relations were innominate there wereactiones in factum, prœscriptis verbis, andcondictiones ex lege.
According to their origin, actions were civil or honorary, the latter emanating either from the prætor or from the ædiles. Civil actions were eitherdirectœ orutiles: directœ, if brought in the express words of thelaw or by thelogical parties;utiles, if brought upon equitable facts not within the strict letter, and possibly, in the case of a ceded action, by the nominal plaintiff for the use of the real plaintiff. Actions aiming to establish personal status were called prejudicial. Real actions werevindicationes; personal werecondictiones.
Rei vindicatio and the Publician action went to the question of ownership. Succession gave rise to thehereditas petitio and to thequerela inofficiosi. Servitudes were affirmed or denied by anactio confessoria ornegatoria. In pledge, there was the Servian or quasi-Servian action. The prætor or the ædile granted equitable actions, such as theactio ad exhibendum for the production of moveables; theactio in factum de edendo, an action of account against bankers; and theredhibitoria andquanti minoris, actions for redhibition and abatement of the price. The actions based on duress,fraud, and minority were purely equitable, and there was acondictio sine causa in cases of failure of consideration. This may be considered as equitable or as growing out of quasi-contract. Indeed, all of the quasi-contractual relations had their appropriate actions. Private wrongs, too, were redressed in suitable forms of action. In delicts the recovery might be simply the value, as in the persecutory actions; or double the value, as in theactio furti nec manifesti and in the action for corrupting a slave. In some instances, a triple, or even quadruple recovery might be had.
Actions founded on the consensual contracts of sale, hire, emphyteusis, partnership, and mandate, and on the real contracts ofcommodatum, depositum, andpignus were actionsbonœ fidei: so also, theactio prœscriptis verbis for innominate contracts and the quasi-contractual actionsnegotiorum gestorum, funeraria, tutelœ, etc., as well as the personal actionhereditas petitio.
Theactio ex stipulatu and thecondictio ex chirographo were actions of strict law (stricti juris).
An arbitrary action was one in which a non-compliant party was forced to comply or be held liable in a larger discretionary sum.
Certain exemptions to judgment debtors were favoured by the Roman law; among these was thebeneficium competentiœ.
Ordinarily the foundation of liability was personal, yet one might incur liability through the act of another — as a son, a slave, or even a stranger. Theactio quod jussu was properly brought against father or master for an act done by his order. The master of a ship, whether freeman or slave, by a sort ofnecessary agency could incur liability for the ship-owner and the right of action was enforced by theactio exercitoria. Similar in theory was theactio institoria which was the proper form in which to bring an action against one who had placed another in charge of a shop for the buying and selling of wares. The age and condition of the institutor were immaterial. The prætor gave anactio de peculio topersons who contracted with son or slave in respect to thepeculium, and this action was effective against the father or master to the extent of thepeculium.
Aside from the specific remedies sought in particular cases, actions were perpetual or temporary, depending upon the lapse of time. Perpetual actions were ordinarily such as were barred by thirty years' prescription, while temporary actions were barred by shorter periods.
Exceptions or pleas to actions, like actions themselves, were civil or prætorian; and in general wereperpetuœ andperemptoriœ (complete pleas in bar); ortemporariœ (only dilatory).
The developed written altercations, or pleadings, of the parties were as follows: theactor (plaintiff) brought hisactio, which thereus (defendant) met with hisexceptio (plea). To this the plaintiff could reply with areplicatio, which in turn might be met with aduplicatio, and in exceptional cases the pleadings might advance to atriplicatio and aquadruplicatio.
Theinterdicts were formulæ, or conceptions of words, whereby the prætor, in an urgent cause or in one affecting the public interest, ordered or forbade something to be done. They were, in effect, prohibitory or mandatory injunctions; they wereprohibitoria, as againstviolence to possession, obstructing a public place, etc.; they wererestitutoria, to restore possession, etc.; and, finally,exhibitoria, as for the production of a free man or for the production of a will. The object to be attained by a possessoryinterdict was to receive, to retain, or to recover possession. Theinterdictsquorum bonorum andquod legatorum had to do with successions. The Salvian and quasi-Salvianinterdicts were used for foreclosure in pledgeobligations.
(The subject of Roman criminallaw is beyond the scope of this article; its most concise arrangement is to be found inPothier's "Pandectæ: de pœnis.")
The classic period of development of Roman Law was in the second and third centuries of our era, and this is known to us for the greater part through the compilations of Justinian, in the sixth century. In the form given it byJustinian, the Roman Law, through the revival of the eleventh and twelfth centuries, spread overEurope and became the foundation of modernEuropean law.
The history of Roman law has been variously divided into periods. One division is into the Regal Period, from the foundation of the city, the Republican, until the time ofAugustus, and, finally, the Imperial, closing with the legislation of Justinian in the year 1280 ( 526) from the foundation of the city (Howe). Again, the lapse of almost 1000 years, from the Twelve Tables to the reign of Justinian, has been divided into three periods: the first, A. U. C. 303-648; the second A. U. C. 648-988, the splendid age from the birth of Cicero to the reign ofAlexander Severus; the third, from Alexander to Justinian, in which "the oracles of Jurisprudence were almost mute" (Gibbon). A better division, and one which more accurately corresponds with the growth of Roman political institutions, gives four periods: the first, from the foundation of the city down to thelaws of the Twelve Tables; the second, to the battle of Actium (beginning of the empire); the third, from the battle of Actium to the accession ofDiocletian; the fourth, fromDiocletian to the death of Justinian (565). The first of these four periods is that of infancy; the second, of adolescence; the third, of mature age; the fourth, of senility and decay (Ortolan; Staedtler).
Ourknowledge of this period is largely conjectural, from data furnished by the subsequent period. Roman history begins with pure myth and fable, then passes through a stage of blended fable and fact, and finally becomes history properly so called. The history of Roman Law has no vital interest with the petty communities and subordinate nationalities that were finally absorbed in the three ethnological elements, Latin, Sabine, and Etruscan, with which the dawn of Rome's legal history begins. Of these three elements the Etruscan was more advanced in civilization, with definite religious and political institutions (Ortolan). The only Etruscan text we have is that of the nymph Vegoia (lasa Veku), which recognizes the right ofproperty and protects it with the wrath of the gods (Casati). It is customary to speak of certainleges in the earliest historical period asleges regiœ: whether these were realstatutes enacted during the regal period or the mere formulation of customary law is disputed (Bruns, introd. note to "Leges Regiœ" in "Fontes Jur. Rom. Antiqui"). There were some well established, though crude and radical, rules of private law, such as the harsh paternal power and the equally drastic right of the creditor over his unfortunate debtor. It may safely be affirmed that during this primitive period customary law was the only law.
Pomponius says: "At the beginning of our city, the people began their first activities without any fixed law and without any fixedrights: all things were ruled despotically by kings" (2, §1. D. 1. 2). In the next paragraph he speaks of the so-calledleges regiœ as collected and still extant in the book of Sextus Papirius. Again, after the expulsion of the kings the people resorted to customary law. The great mass of historical facts prove that there was no private law other than custom down until this period closed with the enactment of the Twelve Tables (Stædtler). The lack of a precise definition of theirrights was the principal grievance of the plebeians, and in A. U. C. 292 their tribune, Terentilius Arsa, proposed thenomination of magistrates to formulate writtenlaws. In 303 decemvirs were appointed, and they agreed upon ten tables during the first year of their magistracy, and two additional tables the second year. The political object sought by the plebeians, namely, the fusing of both classes into one, was not attained: privaterights, however, were given definite form. Theselaws of the Twelve Tables contained the elements from which, in process of time, the vast edifice of private law was developed.
The law expanded rapidly and commensurately with the expansion ofRome in territory and civilization. The jurists, however, had not yet theimperium, or power of developing thelaw through judicial legislation. The growth of law was simply the result of interpretation of the Twelve Tables. The jurists of this period were skilled lawyers who penetrated the spirit of thelaw, but were not free to depart from it. The fewleges passed by the people in assembly had practically little to do with private law. The Senate, which was really an administrative body, began to assume legislative powers, but this source of law was as yet unimportant. The activity of the jurisconsults in interpreting the Twelve Tables was the most conspicuous factor in the growth of private law, and their labours were designated by the same term which designated the Twelve Tables, i.e.,jus civile. The Roman magistrate, however, did possess theimperium and, while at first he used it sparingly, he at length began to develop an equitablejurisdiction, giving remedies in a limited number of cases where thejus civile gave none. He proceeded cautiously and upon a rational theory, and, since he could not introduce chaos into thelaw by varying it in the particular case, he anticipated its defects in hypothetical cases and announced the relief which he would give. The prætor made an announcement in an edict upon assuming magistracy: he was bound by his edict, yet he did not discard the edicts of his predecessors, and in this sense the prætor's edict became anedictum perpetuum, i.e., permanent. When experience showed the value of an innovation, the prætor made it, and thus the honorary law became a developing system, modified and improved from year to year. In the course oftime it became voluminous. Most of the changes wrought by the prætor were inroads (after the manner of the English chancellors), upon the harsh rigour of the Twelve Tables. The Twelve Tables were deferentially treated by the prætor, whose functions were constructive, and not destructive, yet, by reason of hisimperium, he was not bound by thejus civile in the drafting of his edict. Hence the prætor had the power to engraft upon Roman law newideas and new principles derived from thejus gentium. There were many non-citizens atRome, and non-Roman relations were administered by a special magistrate, called theprœtor peregrinus, under a body of principles which were conceived to be common to all men. There was a naturalness and an equity in these principles in which all men were presumed to concur. This was in striking contrast with thejus civile, and the contact of legalideas began to broaden and liberalize Roman law. This influence, however, had not yet overpowered thejus civile at the close of this second period.
In this, the classic period, thescience of law reached a high degree of perfection.Leges were very rare, and were usually measures of public policy to which some slight elements of private law were incidental; such were the legislative measures rewarding marriage and dealing with the emancipation of slaves (Stædtler).Senatus-consulta, on the contrary, became of increasing importance, and, whereas at first their constitutionality, so to speak, had beendoubted, they were fully recognized as law. Other sources were theconstitutiones principum, or imperial constitutions; these took the form of edicts, mandates, decrees, andrescripts. The edictal legislation of the magistrates (the honorary law) had become so voluminous that it was incapable of further growth; it was, moreover, out of harmony with changed positive legislation and with changed conditions. Salvius Julianus was commissioned byHadrian to revise and edit it, and on this revision many of the jurisconsults made their commentariesad edictum. In the literary splendour of the Augustan age the jurisconsults took high rank; their work was not only scientific, but literary, and it has been said that, had all its other monuments perished, classical Latin would have survived in the fragments of the jurisconsults of this period.Augustus granted to the most eminent in law the startlingjus respondendi, i.e., the right of officially giving, in the name of the prince, opinions which were legally binding upon the judge. Theseresponsa were in writing and were sealed before delivery to the judge. Among the celebrated jurisconsults were Capito and Labeo, founders of rivalschools (2, § 47, D. 1. 2). Others were Salvius Julianus and Sextus Pompomus, both represented by copious fragments in thePandects. In the second century came Gaius, of whose "Institutes" those of Justinian are only a recension. In 1816 a palimpsest was discovered by Niebuhr in thelibrary of thecathedral chapter ofVerona. On it were some compositions ofSt. Jerome, in places superimposed on an earlier writing, which proved to be a copy of the lost "Institutes" of Gaius. Gaius himself was a contemporary of theEmperor Hadrian, but scientific research has fixed thedate of this copy of his great work as a little earlier than the time of Justinian, in the sixth century.
In the third century lived Papinian, "the Prince of the Jurisconsults". Ulpian and Paulus also were among the greatest lawyers of the period: approximately one-sixth of the Digest is made up of fragments from Ulpian, while Paulus is represented by upwards of two thousand fragments (Staedtler). Modestinus was the last of the great series. We have inmanuscript part of an elementary work by Ulpian and the Institutes of Gaius. In Justinian's Digest a very large part of the writings of the classical jurists is to be found. Most of the original treatises have perished; two thousand of these, containing three million unpunctuated and unspaced lines, were abridged to one hundred and fifty thousand lines or sentences. The originals became useless in practice, and were for the greater part soon lost. A number of classic jurists are represented in a collection of 341 fragments, discovered in the Vatican Library in the early part of the nineteenth century byCardinal Mai, and edited by him atRome in 1823. Another edition was published inGermany in 1828, under the title "Fragmenta Vaticana". Fragments of the classic jurists are also contained in the "Collatio Mosaicarum et Romanarum Legum", known also as the "Lex Dei", compiled in the fourth and fifth centuries. They are found also in the "Breviary of Alaric" or "Lex Romana Wisigothorum", which contains the Sentences of Paulus and the excerpts from Papinian's "Responsa". Fragments from the jurisconsults are found in the "Edictum Theodorici" or "Lex Romana Ostrogothorum" and in the "Lex Romana Burgundionum" (see below).
The seat of an absolute monarchy was now shifted fromRome to Constantinople, and the Empire was divided into East and West. Constructivejurisprudence was a thing of the past, and the sources of law were merged in the will of the prince. The edicts of the prætorian prefect were given the same effect as the imperial constitutions, which were concerned principally with public law. Private law was vast and diversified, but it had long since ceased to have any stimulating growth. Thejus civile, expanded by the ancient jurists in the interpretation, of the Twelve Tables, the honorary law of the magistrates, the public legislative acts of the early empire, the mass of imperial constitutions, and the writings of the classic jurisconsults, composed a heterogeneous jumble of legal materials from which a systematicjurisprudence was destined to arise. An attempt was made in the early fifth century to effect a workable system, and thelaw of citations was adopted by which the relative authority of the classic jurists was posthumously fixed by statute. Numerical weight of authority was done away with, and the great galaxy were the recognized authorities, although other jurists might be cited if approved by any of the five. Collections of imperial constitutions were made at an interval of fifty years, and published under the names of the Gregorian and Theodosian Codes respectively; the latter was republished in the "Breviary of Alaric". Something at least, had been done for the simplification of a difficult legal situation. The Eastern and Western emperors thenceforward agreed to mutually communicate their legislative designs for simultaneous publication in both empires, and these future projects were to be known asnovellœ constitutiones.
Upon Justinian's accession there were in force two principal sources of law: the imperial constitutions and the classicaljurisprudence operating under thelaw of citations (Staedtler). To Justinian's practical mind, the state of thelaw was still chaotic; the empire was poor, and it was a hardship for lawyers to possess themselves of thenecessary Manuscripts. The very bulk of thelaw produced a situation analogous to that which exists in common-law jurisdictions today, and which always ushers in more or less abortive efforts towards codification. Justinian undertook to make these immense materials more accessible and more responsive to the practical needs of his empire. That, in the opinion of some, he wronged posterity by destroying the original sources, is entirely beside the mark. He has been lauded as a great lawgiver when measured by the needs of his time and situation; and, on the other hand, he has been as heartily abused and reviled for an unscientific iconoclast. The first task of the commission appointed by Justinian was to edit the imperial constitutions as a code, published under the title, "Codex Justiniani". After this the emperor directed the compilation of a complete repository of thelaw made up of fragments of the classical writings strung together without any too scientific arrangement. This work is the great treasury of juridical lore, and was the most valuable part of Justinian's compilation. It was called the "Digest" or"Pandects". Occasionally Tribonian, who, with two other jurists, was intrusted with the task, complacently or ignorantly modified the text. The emperor forbade commentaries and abbreviations.
Upon the completion of thePandects, Justinian, always intelligently interested in legaleducation, ordered an abridgment of the Digest for the purposes of instruction; these are the Institutes of Justinian. The Institutes of Gaius (see above, under 3) furnished a ready model; indeed, the Institutes of Gaius and those of Justinian are even today the most essential first books of thelaw. The first draft of the Code was not in complete harmony with the Digest and the Institutes, and a revision of it becamenecessary; this waspromulgated as the "Codex Repetitæ Prælectionis". The second edition of the code was intended to be final, and upon its publication Justinian announced that any new imperial legislation would take the form of detached constitutions to be known as "novels" (novellœ, i.e. "new"); of these he issued a large number, but two only (the 118th and 127th) have great importance for modern law.
The Justinian compilation is sometimes elegantly termed the Imperial Code; it is, however, more accurate to refer to it as the "Corpus Juris Civilis". It is the whole body of thecivil law comprising the four books of the Institutes, the fifty books of the Digest, the twelve books of the Code, and the Novels. Early editions divide thePandects into three parts, the Digestum vetus, the Infortiatum, and the Digestum novum. The labours of Justinian have come down to us in the form of texts of the so-called glossators during theMiddle Ages. The glossators worked from earliermanuscripts and harmonized conflicting texts into a generally acceptedlectio vulgata ("vulgate", or "common reading"). We have one text known as the "Florentine Pandects" which dates from the seventh century, one hundred years after Justinian. It is, however, in all probability, only one of the texts from which the glossators worked, and, when theerrors of copyists are considered, its antiquity should not entitle it to overrule the vulgate. This Florentine text is the subject of legend, and the revival of the study of Roman law has been attributed to its discovery. Savigny and others have demonstrated that the revival was well under way before the discovery of this codex. The publication of a photographic reproduction of the Florentine Pandects was begun atRome in 1902, and seven of the ten parts are already at hand.
In what had been the Western Empire, Justinian no longer held sway at thedate of thepromulgation of hislaws; the subject race were, however, permitted by their barbarian conquerors to retain the pre-Justinian law as their personal law. The conquerors themselves caused to be made the several compilations known as the "Roman Barbarian Codes" (seeLEX). Justinian did, however, effect the reconquest ofItaly, and held it long enough topromulgate hislaws. When theOstrogoths again became masters they left the legislation of Justinian undisturbed, and it flourished in a less corrupted form than in the Eastern Empire, which was itslogical field. The Roman law of Justinian superseded the barbarian codes and, with the revival, was taught in themedievalschools and thus spread all overEurope.
In the Eastern Empire subsequent changes are of interest to the historian rather than to the jurist. There was a lull of nearly three centuries after the death of Justinian, until Leo the Philosopher revised the legislation and published what is known as the "Basilica". While Byzantine materials throw many side lights upon the Roman legal system, they are relatively unimportant, though they were of service to the Humanists. The Eastern lawschools only (Constantinople and Berytus) were subject to Justinian at the time of his constitution on legaleducation, yet he speaks ofRome as a royal city and prohibits the teaching of law elsewhere than in these three cities (Ortolan). Professors of law had been active in all of his reforms: Tribonian was a professor oflaw and an able, but venal, jurist, whose career had much resemblance with that ofBacon. Theophilus was also a professor of law who, like Tribonian, had taken part in the work of Justinian, and he composed a paraphrase of the Institutes in Greek. A number of commentaries in Greek were produced and an abridgment of the Novels. The greater part of the Byzantine writings were from secondary sources and are abridgments, condensations, manuals, etc. Among others were the "Enchiridium" of Isaurian law, the "Prochiron" of Basil, and the revision entitled "Epanagoge"; and the revised Basilica from 906 to 911. In the composition of these collections it is highly probable that the sources were secondary and that the originals of Justinian were not directly consulted. The Basilica through its scholia or annotations grew so bulky that a synopsis of it was made, and this continued in high repute until the fall of the empire, in 1453, when the Greek legal authorities were supplanted by theMohammedan Koran. Enough of personal law was suffered to the vanquished by the conqueror to constitute the historic element and principal basis of Greekcivil law (Ortolan, Morey). Greek fugitives also carried over with them intoItaly and elsewhere the relics of their law, and manymanuscripts are still extant: of these the Humanist Cujas possessed a valuablelibrary. Thus, the Greek texts, while of little value to the glossators, were yet a potent factor in the second renaissance of Roman law in the sixteenth century. This was of service to the historical and philologicalschool, the inspirations and traditions of which are still active in modern scholarship, particularly that ofGermany, where, as Montreuil wrote fifty years ago, the Frenchschool is refound in the labours of Reitz, Ruhneken, Biener, Witte, Heimbach, and Zacharia.
The most flourishingschool of law following the first revival of Roman law was that of Bologna, towards the end of the eleventh century. Its founder wasIrnerius, and he was the first of the glossators. Placentinus and Vacarius were others of the glossators. Vacarius was a Lombard, and he it was who carried the texts of Justinian toEngland and founded a lawschool atOxford, about the middle of the twelfth century. The glossators known as the fourdoctors all belonged to Bologna; and thatschool acquired a reputation incivil law equal to that ofParis intheology and canon law. So attractive was the Roman law that theclergy had to be restrained from its study, and the study of canon law stimulated by adecretal in 1220 (Morey). The early Church had been governed by councils,synods, etc. Collections had been made in the fifth and sixth centuries, but it was only in the ninth century that a real collection ofecclesiastical legal documents was made. There began to be collections of decrees of thepopes, and the revival of Roman law at Bologna in the twelfth century gave impetus to a systematic canon law. About 1130 Gratian, aBenedictinemonk, made the compilation which developed into the "Corpus Juris Canonici". The external similarity of this compilation to the "Corpus Juris Civilis" is thus given by Duck: "TheRoman pontiffs effected that in theChurch which Justinian effected in the Roman Empire. They caused Gratian'sDecree to be published in imitation of thePandects; theDecretals in imitation of the Code; the Clementine Constitutions and the Extravagantes in imitation of the Novels; and to complete the workPaul IV ordered Launcellot to prepare Institutes which were published atRome underGregory XIII, and added to the Corpus Juris Canonici." (In qualification of this, seeCORPUS JURIS CANONICI.)
To return to the Roman law, theschool of the glossators (of whom Accursius in the middle of the thirteenth century was the last) was succeeded by theschool of which Bartolus of Sasso Ferrato and Alciat were representatives. From 1340 the Bartolists flourished for two hundred and fifty years, to be succeeded in turn by the Humanistschool, of which Cujas was the chief ornament. Until the sixteenth century Roman law was most cultivated inItaly; its glory then passed toFrance, and, in the eighteenth and nineteenth centuries, though there were conspicuousDutch jurists of great ability in the application of thelaw, it may fairly be said to belong toGermany during that period.France,Italy,Belgium, and evenEngland, however, are awakening in the dawn of the twentieth century.
The survival of Roman-law principles was in great measure due to the principle ofpersonality. The Roman-Greek law ha not been entirely supplanted by theKoran in theMoslem states, such asEgypt andSyria (Amos). In modernEgypt there has been a reaffirmation of many Roman principles in the Civil Code proposed by the international commission which "harmonized the rules of Arabicjurisprudence which were not repugnant toEuropean legislation, with the chief provisions of the Code Napoleon". An interesting Syrian text has been edited by Bruns (Syrisch-Romisches Rechtsbuch aus dem 15. Jahrhundert). This principle ofpersonality permitted by the kings of theVisigoths,Ostrogoths, andBurgundians sufficed to keep alive the Roman law in the West. Except as to the municipalities, the Roman political system had been destroyed. The concession of personal law to Roman subjects and the influence of theclergy, who always preferred to claim thecivil law, was a barrier "between Roman civilization and barbarism" (Morey). In the military tenures offeudalism, it has been attempted to trace theidea of two distinct ownerships, thedominium eminens and thedominium vulgare, to the Roman contract of emphyteusis. A collection offeudal law known as the "Consuetudines Feudorum" is contained as a kind of appendix in most editions of the "Corpus". In the Amsterdam edition of 1681, is the note after the second book: "Hic est finis Feudorum in editione vulgata" (End of thefeudal constitutions in the vulgate edition). The third book is missing; fragments of the fourth are given, as well as parts of a fifth book, reconstructed by Cujas. Infeudalism the institutions of Roman law and Germanic customs became merged; the impress of the former upon the latter was not simply one of terminology; with the terminology was much of interpretation and illuminating principle. It would be rash to assert thatfeudalism owed more to Roman public law than to theories and analogies drawn from the private law ofRome.Charlemagne favoured the civil-lawideas which savoured of imperialism, and adopted Roman methods of administration. The German emperors also found in Roman legal institutions a plausible support for their claim to the imperial power. The predominant influence in the survival of Roman private law in all the countries of central and southernEurope was that of theclergy. In all national codes there is present a large quantity of customary law; yet, in concept and in classification, all of the civil codes are Roman through and through, and this is astrue of the German civil code (and, in part, of theJapanese code) as of those other national codes which trace their immediate parentage to the Code Napoléon and their remote ancestry to the Twelve Tables.
England, from a purely external point of view, is less indebted to the Roman system, but the jurist trained in both systems is at no pains to discover analogies and runs upon evidence of thecommon law'sindebtedness at every step. Anglo-Saxon legal institutions have been jealously and persistently represented as in no wise beholden toRome. This is to be accounted for in part by a peculiarity in the manner of administration of thecommon law. With its narrow tradition and its abject rule ofstare decisis, it has offered until recently, at least, an unattractive field for historicaljurisprudence. The courts and lawyers of thecommon law have always been intensely practical and have accepted their system, not only as purely indigenous, but also, in the words of the Blackstonian tradition, as "the perfection of reason". For four centuries after Cæsar's conquest Roman law held sway in Britain; her soil was trodden by the great Papinian himself, and possibly by others of theimmortal five (Morey). There must indeed have remained in Britain a substantial deposit of Roman law, and it is not to be affirmed that this was completely destroyed by subsequent invasions or by the conquest. The earliest English treatises are for the most part transcriptions of Roman law: such was the book ofBracton (Güterboch). The Roman law was historically in the early English law ofpersons, ofproperty, of contracts, and of procedure, although not always with equal obviousness. While it had little in common with thelaw of realproperty, we are fairly justified in maintaining that Roman law has always continued a substantial ingredient in English law, from the Roman occupation down to the time when we can cite specific decisions in which Roman law principles were engrafted in the chancery law ofEngland. In respect to admiralty, chancery, and ecclesiastical law there has never been, nor could there well be, any disposition to withhold acknowledgment toRome. The practice is quite common of referring to the chancellor as the prætor. Thisindebtedness, so begrudgingly acknowledged by many early English jurists in a mistaken sense of nationalpride, is now frankly admitted by all who lay claim to aknowledge of both Civil andCommon law.
A complete bibliography of Roman Law is precluded by the space allotted to this article. A list (by no means exhaustive) of the more modern authoritative civilians, whose works are found on the shelves of a good American collection gives some idea of the wealth of this literature: —
AMOS; ARNDDTS; ACCARIAS; BARON; BERNARD; BONFANTE; BÖCKING; BRINI; BRINZ; BRUNS; CLARK; COLQUHOUN; CONRAT (COHN); CORNIL; COSTA; COULANGES; CUQ: DE MANGEAT; DERNBERG; DEURER; DU CAURROY; DIRKSEN; ESMARCH; ESMEIN; FADDA; FERRINI; FLACK; FITTING; FRESQUET; GIRARD; GLUCK; GÜTERBOCH; HÄNEL; HALLIFAX; HAUBOLD; HEIMBACH; HERZOG; HUNTER; HUSCHKE; IHNE; IHRING; JACQUELIN; JOBBÉ-DUVAL; JORS; LENEL; MACKELDEY; MACKENZIE; MAREZOLL; MARQUART; MOLITOR; MOMMSEN; MÜHLENBRUCK; MONTREUIL; ORTOLAN; PHILLIMORE; POSTE; PUCHTA; ROBY; SANDARS; SAVIGNY; SCHEURL; SCHMIDT; SCHULTING; STAEDTLER; VOIGT; WACHTER; WALKER; WALTER; WARNKÖNIG; WINDSCHIED; VANGEROW; VERING; ZACHARIA.
The writer of this article acknowledges special indebtedness in its preparation to STAEDTLER,Cours de Droit Romain (Louvain and Paris, 1902); and toManuscript notes on lectures by PROF. STAEDTLER.
HEINECCIUS,Elementa Juris Civilis (Göttingen, 1787); MÜHLENBRUCH,Doctrina Pandectarum (Halle, 1839); SOHM,Inst. of Rom. Law, tr. LEDLIE (Oxford, 1901); MOREY,Outlines of Rom. Law (New York, 1893); CHAMIER,Manual of Rom. Law (London, 1893); HOWE,Studies in the Civil Law (Boston, 1896); MOYLE,Inst. of Just. (Oxford, 1883); VON SAVIGNY,Geschichte des römischen Rechts im Mittelalter (Heidelberg, 1822); ORTOLAN,Hist. of Rom. Law, tr. CUTLER (London 1896); AMOS,Hist. and Principles of Rom. Law (London, 1883).
Important fac-simile reproductions of original texts are the photographic copies of the Manuscript of theFlorentine Pandects (Rome, 1902) and of the Manuscript of GAIUS,Institutes (Leipzig, 1909). Among the approved texts are the following:
(a) Pre-Justinian; GAIUS, tr. by MEARS (London, 1883), by POSTE (Oxford, 1875), and by TOMPKINS AND LEMON (London, 1869);Jus Civile Antejustinianeum (Berlin, 1815);Flores Juris Romani Antejustinianei (Paris, 1839);Corpus Juris Antejustinianei (Bonn, 1841);Fontes Juris Romani Antigui (Leipzig, 1893).
(b) The Justinian texts: TheInstitutes in English by MOYLE, SANDARS, COOPER, etc.,The Digest, of which two vols. in English, by PROF. MONRO, of Cambridge, have appeared (his untimely death leaves the completion to another);The Digest has been tr. into German, French, and Spanish;Corpus Juris Civilis, of which the standard Latin text is the German ed. (Berlin, 1904-08) (Institutes by KRUEGER,Digest by MOMMSEN,Code by KRUEGER, andNovels by SCHOELL but completed after the latter's death, by KROLL). Recently Italian scholars, under the leadership of BONFANTE, have produced a similar critical text the first part of which appeared in 1908.
(c) Roman Barbarian texts:Edictum Theorodici, orLex Romana Ostrogothorum andLex Romana Burgundionum are given in BLUHME,Monumenta (Hanover, 1875);Lex Romana Wisigothorum, orBreviary of Alaric has been edited by HÄNEL (Leipzig, 1849) and more recently in Spain.
(d) Byzantine texts:Paraphrasis Theophili (Amsterdam, 1860); BASILICA, ed. HEIMBACH (Leipzig, 1833-1870); HAUBOLD,Manuale Basilicorum (Leipzig, 1819).
APA citation.Kelly, J.(1910).Roman Law. InThe Catholic Encyclopedia.New York: Robert Appleton Company.http://www.newadvent.org/cathen/09079a.htm
MLA citation.Kelly, Joseph."Roman Law."The Catholic Encyclopedia.Vol. 9.New York: Robert Appleton Company,1910.<http://www.newadvent.org/cathen/09079a.htm>.
Transcription.This article was transcribed for New Advent by Douglas J. Potter.Dedicated to the Sacred Heart of Jesus Christ.
Ecclesiastical approbation.Nihil Obstat. October 1, 1910. Remy Lafort, Censor.Imprimatur. +John M. Farley, Archbishop of New York.
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