Law, ROMAN.—-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 the law 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 that justice 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 perfect laws, and jurisprudence was the appreciation of things human and divine—the science of the just and the unjust, but always the science 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 the jus 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 the jus gentium because it was universally practiced, and therefore implied the consent of all men, yet the definition of slavery expressly states that it is contra naturam, “against nature”. The precepts of the law were these: to live honestly; not to injure another; to give unto each one his due. Positive law was the jus civile, or municipal law, of a particular state.
Gaius says that all law pertains to persons, to things, or to actions.
—Man and person were not equivalent terms. A slave was not a person, but a thing; a person was a human being endowed with civil status. In other than human beings personality 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 and female, infancy and majority. Civil status had to do with liberty, citizenship, and family. If one had no civil status whatever, he had no personality 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 the law of nations or by civil law. By the law of nations they became slaves by reason of captivity; by civil law, by the status of their parents 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 owed obsequium—i.e., respect and reverence—to their former masters. The Lex Aelia Sentia placed restrictions on emancipation by minors and in fraud 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 either sui juris (his own master) or alieni juris (subject to another). The power to which he was subject was termed a potestas: slaves were under the dominical power, and children were under the patria potestas exercised by a male ascendant; the marital power was termed manus (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 third persons.
The paternal power over children (descendants) was a close patriarchal relationship, dating from remote antiquity and at first extending to life and death. Between paterfamilias and filius familias (father and son), no obligation was legally enforceable (see Prejudicial action below). During his lifetime the paterfamilias was the owner of accessions made by the filius 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 his peculium. The paterfamilias did not part with the ownership. The military and quasi-military peculium became a distinct, separate property. Even the slave at his master’s sufferance might enjoy a peculium. 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 some person 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. Between parents 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 the patria potestas of the grandfather. The potestas 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. The patria potestas was acquired over children born in lawful wedlock, by legitimation, and by adoption.
Marriage (nuptiae or connubium) was the association or community of life between man and woman, for the procreation and rearing of offspring, validly entered into between Roman citizens. It was wont to be preceded by sponsalia (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 impotent person (castratus) was invalid: the parties must have attained puberty, and there could be but one husband and one wife. It is true that more or less continuous extra-matrimonial relations between the same man and woman in the absence of any other marriage were considered as a kind of marriage, under the jus gentium, by the jurists of the second and third centuries. The connubium, or Roman marriage, was for Roman citizens: matrimonium existed among other free persons, and contubernium was the marital relation of slaves. The latter was a status of fact, not a juridical status. Marriage might be incestuous, indecorous, or noxal: incestuous, e.g., between blood relations or persons between whom affinity existed; indecorous, e.g., between a freeman and a lewd woman or actress; noxal, e.g., between Christian and Jew, 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: by civil 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. The civil 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 by civil 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 donations propter nuptias, on behalf of the husband. The dowry (dos) was what the wife brought or what some other person on her behalf supplied towards the expenses of the married state. Property of the wife in excess of the dowry was called her paraphernalia. 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 or adultery could not be legitimated. Adoption, which imitates nature, was a means of acquiring the paternal power. Only such persons as in nature might have been parents could adopt, and hence a difference of eighteen years was necessary 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 one sui juris subjected himself to the patria potestas of another.
The paternal power was dissolved by the death of the ancestor, in which case each descendant in the first degree became sui juris; those in remoter degrees fell under the paternal power of the next ascendant. Upon the death of the grandfather, his children became sui juris, and the grandchildren came under the power of their respective fathers. Loss of status (capitis diminutio, media or maxima), involving loss of liberty or citizenship, destroyed the paternal power. Emancipation and adoption had a similar effect.
One might be sui juris and yet subject to tutorship or curatorship. Pupillary tutorship was a personal public office consisting in the education and in the administration of the goods of a person sui juris, but who had not yet attained puberty. Tutorship was testamentary, statutory, or dative: testamentary when validly exercised in the will of the paterfamilias with respect to a child about to become sui 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 the law immediately conferred, as the tutorship of agnates, of patrons, etc. The first statutory tutors were the agnates and gentiles 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’s auctoritas in every juridical act was required to be concurrent, both in time and place. He had no power of ratification; nor could he supply the auctoritas by letter or through an agent. Curators were given to persons sui juris after puberty and before they had reached the necessary 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 the person of his ward; the curator’s consent was necessary to any valid disposition of the latter’s goods. Tutors and curators were required to give security for the faithful performance of their duties and were liable on the quasi-contractual relationship existing between them and their wards. In certain cases the law excused persons from these duties, and provision was made for the removal of persons who had become “suspect”.
In the law of persons, status depended upon liberty, citizenship, and family; and the corresponding losses of status were known respectively as capitis diminutio maxima, media, and minima. The minima, by a fiction at least, was involved even when one became sui juris, although this is disputed..
—Things were divini vel human juris (i.e., governed by divine or by human law). Things sacrae were publicly consecrated to the gods; places of burial were things religiosae; things sanctae; were so called because protected by a penal sanction—thus the city walls, gates, ditch, etc. were sanctae. None of these could be part of an individual’s patrimony, because they were considered as not in commerce.
Things humani 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 in individuals. The air, flowing water, the sea, etc. were things common to all, and therefore the property 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 of individuals. Again, things were collective or singular. The once important distinction between res mancipi and nec 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 those quae 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 the animus dominii, or intent of ownership. It might be in good faith or in bad: if there was a just title, the possession was just: if not, unjust. A true possession was possible of a corporeal thing only; quasi-possession was the term employed in reference to an incorporeal thing, as a right. The jus possessionis was the entirety of rights 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 made proof; 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 the fits retentions, until reimbursed for charges and outlays; the possessor in good faith was not liable for culpa (fault). One might not recover possession by violence or self-help.
A right in re was a real right, valid against all the world; a right ad rem was an obligation or personal right against a particular person or persons. Rights in re were ownership, inheritance, servitudes, pledge, etc. Ownership was quiritarian or bonitarian: quiritarian, when acquired by the jus 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 from natural law and from civil law. One acquired, by natural law, in occupation, accession, perception of fruits, and by tradition (delivery). Occupation occurred in acquisition by hunting, fishing, capture in war, etc. The right of post-liminium was the recovery of rights lost through capture in war, and in proper cases applied to immoveables, moveables, and to the status of persons. Finding was also a means of occupation, since a thing completely lost or abandoned was res nullius, and therefore belonged to the first taker.
Accession was natural, industrial, or mixed. The birth of a child to a slave woman 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 riparian property by the current. Industrial accession required human intervention and occurred by adjunctio, specificatio, or commixtio, 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 (in locatio-conductio), by the creditor (in antichresis), and by the possessor in good 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 modern civil law, incorporeal things are moveables or immoveables, depending upon the nature of the property to which the rights or obligations attach. In Roman law obligations, rights, and actions were not embraced in the terms moveables and immoveables.
The vindicatory action (rei vindicatio) went to the direct question of ownership, and ownership was required to be conclusively proved. Complete proof of ownership was often extremely difficult, or impossible, and the Praetor Publicius devised the actio publiciana available to an acquirer by just title and in good faith, but who could not establish the ownership of his author. It was available to such an acquirer against a claimant who possessed infirmiore jure.
Ownership (dominium) is an absolute right in re. A servitude (sometimes called a dismemberment of ownership) was a constituted right in the property of another, whereby the owner was bound to suffer something, or abstain from doing something, with respect to his property, for the utility of some other person or thing. A servitude was not a service of a person, but of a thing, and to adjoining land or to a person. Servitudes due to land were real (predial), while servitudes due to a person 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 labor 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; never in faciendo. Servitudes which consisted in patiendo were affirmative and those in non faciendo were negative. Servitudes could arise by agreement, last will, or prescription.
There were numerous urban predial servitudes: as onus ferendi, by which one’s construction was bound to sustain the columns of another or the weight of his wall; tigni immittendi, the right to seat one’s timbers in his neighbor’s wall; projiciendi, the right 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 servitudes stillicidii and fluminis recipiendi were similar: stillicidium was the right to drip; and fluminis recipiendi, the right to discharge rainwater collected in canals or gutters. The servitude altius non tollendi was a restriction on the height of a neighbor’s construction while altius 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 were iter, actus, via, aquaeductus, and the like. The servitude of iter (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 of aquaeductus 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 non-user 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 right utendi, fruendi, salva substantia. In a strict sense it applied only to corporeal things which were neither consumed nor diminished by such use. After Tiberius, a quasi-usufruct (as of money) was recognized. Money, although not consumable naturaliter, was consumable civiliter. 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 lesser rights of the same general nature. Usus was the right to use the things of another, but only to the extent of the usee’s necessities, and always salva 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 servitude operae servorum embraced every utility from the labor of another’s slave or slaves. The actions from servitudes were confessoria or negatoria, 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 (I) a thing subject to prescription, (2) good faith, (3) continuous possession, and (4) the lapse of the prescribed time.
Again, ownership could be acquired by donation, the gratuitous transfer of a thing to another person. Donations were mortis causa or inter 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 donation inter vivos was the donatio propter nuptias from the husband.
The juridical consequence of ownership is the power of alienation, and yet the law 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 conceded rights in re to another, he could not alienate prejudicially to such other: thus, the pledge debtor could not prejudice the rights in 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 or procurator. Acquisition could be made of possession, of ownership, and of the right of pledge.
Succession.—Succession to a deceased person 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 the civil law later conceived of a partnership of blood in both testate and intestate successions. The praetor’s intervention was frequent in testamentary matters; and in equitable cases he softened the rigor of the law and gave the possessio 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 the right to take under a will. Heirs were voluntary or necessary (forced). In the early freedom of the law, Romans might disinherit without cause; later, this liberty was restricted to disherison for just cause, and a legitima, or statutory provision, was prescribed. Disherison was the express exclusion from the whole inheritance of one who was entitled to the legitima. One was praeteritus 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 universal rights 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 was necessary 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 indeterminate persons might be instituted if they could be rendered certain; such were the poor, 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 he institution absolute; in general, the conditions annexed were various and quite similar to the classes of conditions known to the modern civil law. Where one of several coheirs failed to take, his portion accrued to the others as a matter of law, without their knowledge and even against their will: this was called the jus 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 the person 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 status necessary 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 either necessary or voluntary: necessary heirs were either such as could not be pretermitted or such as were forced to accept. These were again sui et necessarii or necessarii only. The former were children under the patria potestas, and they were sui because one’s own, and necessarii, because the civil law made them forced heirs, although the praetor gave to such the beneficium abstinendi. Voluntary heirs were strangers who had a perfect right of election to accept or reject the inheritance. The praetor conceded to the heir a period of time in which to balance the advantages and disadvantages of the inheritance, called the jus 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; by praeceptio, where a legacy was left to one only of several coheirs; and sinendi modo, by permissive words. As in the case of joint-heirs, the jus 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 the conscience 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 modem civil 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 non-repugnant 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 connection 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 artificial family made up of the agnates. Emancipated children and non-agnatic cognates did not succeed, since they were no part of the family. In the first rank, the heirs were the decedent’s children (natural or adoptive) who took per capita, in the nearest degree and per stirpes, or by representation, in remoter degrees. Emancipated children had no claim until later, when they were aided by the praetor’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 sucession of the agnates. Those only were called who were bound in agnation to the deceased through males; hence females beyond sisters were not called. The praetor, however, provided for the more remote in the edict, “Unde cognati”. Agnates by adoption enjoyed the same rights as agnates by nature. The nearest agnate took, and there was no right of representation, although here again the praetor made innovations which were supplemented by the legislation of Justinian. The father did not succeed to the son, consistently with the idea 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 former senatus-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 this legislation was modified by Justinian even more favorably 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. These rights were extended by imperial constitution to grandchildren.
If agnates were wanting, the Twelve Tables called the gentiles in the next rank, and not the cognates: the praetor, 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 slave woman, 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 created rights of succession to remedy this defect.
The former master or, by assignment of freedmen, his children, stood in loco 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 praetor considered it no more than equitable that the libertinus should leave one-half his property 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 even contra tabulas, the patron took one half: later, in special circumstances depending upon the freedman’s wealth, Justinian, developing the principles of the Lex Papia Poppaea, increased the patron’s portion.
The praetor’s intervention in succession matters did not directly overturn the provisions of the jus civile, but he devised the possessio bonorum, applicable to both testate and intestate successions. Justinian recognized and gave sanction to three kinds of possessio: first, contra tabulas (contrary to the will), where persons had been inequitably pretermitted; second, secundum tabulas; third, possession of an intestate’s estate. The bonorum possessor was not an heir in accordance with jus 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 (a) the sui heredes, or natural heirs, who succeeded in virtue of the condominium in the inheritance; (b) those whose strict legal right had been barred (as by emancipation), but whom the praetor called to the inheritance; (c) emancipated sons to whom Justinian’s constitution restored natural rights. Second order, (a) statutory heirs, agnates; (b) persons entitled under the Senatus-consultum Tertullianum; (c) those entitled under the Senatus-consultum Orphitianum. Third order, the cognates. (Heineccius gives tables of descent both before and after Justinian’s legislation). None of these orders being entitled to take, the estate escheated to the fiscus, or public treasury. The adjective law (below, under C. Actions) supplied various forms for the hereditas 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 a person sui juris was adopted into the paternal power of another. Originally the obligations of the adrogatus were strictly and logically extinguished, but the injustice to creditors was the subject of remedial legislation.
Again, one might acquire the goods of another by sectio or venditio bonorum, a sale at auction for the benefit of creditors.
The rights growing out of pledge were also a means for the acquisition of property. 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 of pignus, or pledge proper, whereby the creditor was placed in possession of a moveable with certain duties towards the debtor; a form of the same contract was extended to immoveables, and this was known as antichresis. In antichresis the creditor was placed in possession of the immoveables and obliged to pay, first, his interests and charges, and then to deduct from the principal debt 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-law rights of the same name and to the liens of the common law; but possession was not of prime importance.
Pledge was extinguished by the extinction of the principal debt, 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.
Real rights (in re) differ essentially from personal rights (ad rem), or obligations, which have persons as their immediate objects. Even these have things as their remote objects, since they tend to the attainment of a thing through a particular person 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 praetorian, and could arise from contract, quasi-contract, delict and quasi-delict. In conventional obligations some things were essential, others accidental. Contractual obligations arose through delivery of a thing, through words, through writing, or merely through the consent of the parties; and were, accordingly, contracts re, verbis, litteris, or consensu.
Contracts re were the bailments, loan for use, loan for consumption, deposit, and pledge.
Contracts verbis were entered into by a formal stipulation consisting of a direct question and an adequately responsive answer. They could take immediate effect, could commence in futuro, or could be conditional. Stipulations were praetorian, judicial, common, and Aquilian: the praetorian and judicial were scarcely voluntary. The common stipulation was used in the ordinary affairs of men and by persons in fiduciary relationships (e.g., in this form the tutor gave security for the faithful discharge of his duties). The Aquilian stipulation, in connection with acceptilatio, was a means of general release for the dissolution of any obligation. Stipulations required the same consensual elements that were necessary 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 the fideijussor. Sureties had the beneficium divisionis, which was conceded by Hadrian. They enjoyed also the beneficium ordinis, invented by Justinian, and the beneficium cedendarum actionum, or subrogation to the right of action of the creditor against the principal debtor, or pro rata against the co-sureties.
Contracts litteris took their juridical efficacy from writings, which evidenced the fact that an obligation subsisted or that it had been extinguished. The latter were called apochae. Writings evidencing a subsisting obligation were syngraphic or chirographic respectively, as they expressed a mutual or a unilateral obligation. A writing in the book of the debtor which supported the creditor’s entry was conclusive, and even the creditor’s entry created a strong presumption.
Contracts consensu 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 was necessary 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 agreed canon. Its special incidents were a quasi-ownership in the tenant and a right of preemption in the dominus. Similar to emphyteusis was the right of superficies; but as it applied only to the surface—that as, 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 the actio 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 from negotiorum gestio (uncommissioned agency) in that the latter belonged to quasi-contract. It gave rise to the actio mandati, directa, or contraria.
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 formulae: Do, ut des; Do, ut facias; Facio, ut des; and Facio, ut facias. They were enforced by the general action in factum or by the action praescriptis verbis.
All of the foregoing contracts, nominate and innominate, were contracts in the true sense of the word, but there was another class of relations in which the law imposed duties and obligations as if the parties had actually contracted. These were the so-called quasi-contracts, and the forms were negotiorum 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 civil obligation 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 all obligations 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 of obligations as to person or thing); praescriptio (lapse of time); and further, in proper cases, by acceptilatio (release) and by mutuus dissensus (mutual change of intention).
The praetorian restitutio in integrum was an equitable restoration of the parties to their former situation, and could be invoked for metus (duress), dolus (fraud), minority, and generally by all who had suffered hardship through no fault of their own.
Obligations and rights of action arose also out of delictum, which was the voluntary 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 with violence); damnum injuria datum (injury to property); and injuria (a kind of outrage, or defamatory wrong by word or action). In furtum, 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 the fiscus and corporal or capital punishment. Justinian abolished mutilation and capital punishment for theft and substituted fines and exile. Rapina, like furtum, required a criminal intent. Where the putative owner, in the belief of ownership, sought to recover his property by violence, this was not robbery, but the offense against public order was punished by the loss of the property without, however, any fine to the fiscus. Damage to the property of another injuria 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 designated pauperies. The measure of damages in injuria depended upon the atrocity of the wrong and the status of the parties; the right of action accrued to the father for injuria to the son; to the husband, for the wife; to the master, for the slave, etc. Quasi-delictual obligations were torts or wrongs based on culpa (fault or negligence), and not upon dolus (evil intent). An instance was where anything was negligently or carelessly thrown from a house (dejecta vel effusa). Quasi-delictual, also, were the obligations of persons employed in a public calling, such as ship-masters and innkeepers, for the wrongful acts of their servants.
1. Adjective Law
—An action was the legal means for the enforcement of a right, and the Roman law included in the term actio 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 were actiones in factum, paeescriptis verbis, and condictiones ex lege.
According to their origin, actions were civil or honorary, the latter emanating either from the praetor or from the aediles. Civil actions were either directae: or utiles: directae, if brought in the express words of the law or by the logical 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 were vindicationes; personal were condictiones.
Rei vindicatio and the Publician action went to the question of ownership. Succession gave rise to the hereditas petitio and to the querela inofficiosi. Servitudes were affirmed or denied by an actio confessoria or negatoria. In pledge, there was the Servian or quasi-Servian action. The praetor or the aedile granted equitable actions, such as the actio ad exhibendum for the production of moveables; the actio in factum de edendo, an action of account against bankers; and the redhibitoria and quanti minoris, actions for redhibition and abatement of the price. The actions based on duress, fraud, and minority were purely equitable, and there was a condictio 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 the actio 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 of commodatum, depositum, and pignus were actions bonae fidei: so also, the actio praescriptis verbis for innominate contracts and the quasi-contractual actions negotiorum gestorum, funeraria, tutelae, etc., as well as the personal action hereditas petitio.
The actio ex stipulatu and the condictio 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 favored by the Roman law; among these was the beneficium competentiae.
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. The actio 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 of necessary agency could incur liability for the ship-owner and the right of action was enforced by the actio exercitoria. Similar in theory was the actio 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 institor were immaterial. The praetor gave an actio de peculio to persons who contracted with son or slave in respect to the peculium, and this action was effective against the father or master to the extent of the peculium.
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 praetorian; and in general were perpetuae and peremptoriae (complete pleas in bar); or temporariae (only dilatory).
The developed written altercations, or pleadings, of the parties were as follows: the actor (plaintiff) brought his actio, which the reus (defendant) met with his exceptio (plea). To this the plaintiff could reply with a replicatio, which in turn might be met with a duplicatio, and in exceptional cases the pleadings might advance to a triplicatio and a quadruplicatio.
The interdicts were formulae, or conceptions of words, whereby the praetor, 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 were prohibitoria, as against violence to possession, obstructing a public place, etc.; they were restitutoria, 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 possessory interdict was to receive, to retain, or to recover possession. The interdicts quorum bonorum and quod legatorum had to do with successions. The Salvian and quasi-Salvian interdicts were used for foreclosure in pledge obligations.
(The subject of Roman criminal law is beyond the scope of this article; its most concise arrangement is to be found in Pothier’s “Pandectae: de poenis.”)
II. HISTORY AND SOURCES
A. Its Development
—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 by Justinian, the Roman Law, through the revival of the eleventh and twelfth centuries, spread over Europe and became the foundation of modern European 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 of Augustus, and, finally, the Imperial, closing with the legislation of Justinian in the year 1280 (A.D. 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 of Alexander 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 the laws 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 of Diocletian; the fourth, from Diocletian 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).
(1) From the Foundation of Rome to the Twelve Tables
—Our knowledge 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 of property and protects it with the wrath of the gods (Casati). It is customary to speak of certain leges in the earliest historical period as leges regiae: whether these were real statutes enacted during the regal period or the mere formulation of customary law is disputed (Bruns, introd. note to “Leges Regiae” in “Fontes Jul’. 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 fixed rights: all things were ruled despotically by kings” (2,—§1. D. 1. 2). In the next paragraph he speaks of the so-called leges regiae 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 (Staedtler). The lack of a precise definition of their rights was the principal grievance of the plebeians, and in A. U. C. 292 their tribune, Terentilius Arsa, proposed the nomination of magistrates to formulate written laws. 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: private rights, however, were given definite form. These laws of the Twelve Tables contained the elements from which, in process of time, the vast edifice of private law was developed.
(2) From the Twelve Tables to Actium
—The law expanded rapidly and commensurately with the expansion of Rome in territory and civilization. The jurists, however, had not yet the imperium, or power of developing the law 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 the law, but were not free to depart from it. The few leges 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 labors were designated by the same term which designated the Twelve Tables, i.e., jus civile. The Roman magistrate, however, did possess the imperium, and, while at first he used it sparingly, he at length began to develop an equitable jurisdiction, giving remedies in a limited number of cases where the jus civile gave none. He proceeded cautiously and upon a rational theory, and, since he could not introduce chaos into the law by varying it in the particular case, he anticipated its defects in hypothetical cases and announced the relief which he would give. The praetor 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 praetor’s edict became an edictum perpetuum, i. e., permanent. When experience showed the value of an Innovation, the praetor made it, and thus the honorary law became a developing system, modified and improved from year to year. In the course of time it became voluminous. Most of the changes wrought by the praetor were inroads (after the manner of the English chancellors), upon the harsh rigor of the Twelve Tables. The Twelve Tables were deferentially treated by the praetor, whose functions were constructive, and not destructive, yet, by reason of his imperium, he was not bound by the jus civile in the drafting of his edict. Hence the praetor had the power to engraft upon Roman law new ideas and new principles derived from the jus gentium. There were many non-citizens at Rome, and non-Roman relations were administered by a special magistrate, called the praetor 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 the jus civile, and the contact of legal ideas began to broaden and liberalize Roman law. This influence, however, had not yet overpowered the jus civile at the close of this second period.
(3) From Actium (31 B.C.) to Diocletian (d. A.D. 313)
—In this, the classic period, the science of law reached a high degree of perfection. Lieges 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 (Staedtler). Senatus-consulta, on the contrary, became of increasing importance, and, whereas at first their constitutionality, so to speak, had been doubted, they were fully recognized as law. Other sources were the constitutiones principum, or imperial constitutions; these took the form of edicts, mandates, decrees, and rescripts. 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 by Hadrian to revise and edit it, and on this revision many of the jurisconsults made their commentaries ad edictum. In the literary splendor 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 startling jus respondendi, i. e., the right of officially giving, in the name of the prince, opinions which were legally binding upon the judge. These responsa were in writing and were sealed before delivery to the judge. Among the celebrated jurisconsults were Capito and Labeo, founders of rival schools (2,—§ 47, D. 1. 2). Others were Salvius Julianus and Sextus Pompomus, both represented by copious fragments in the Pandects. 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 the library of the cathedral chapter of Verona. On it were some compositions of St. 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 the Emperor Hadrian, but scientific research has fixed the date 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 in manuscript 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 by Cardinal Mai, and edited by him at Rome in 1823. Another edition was published in Germany 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).
(4) From Diocletian (d. 313) to Justinian (d. 565)
—The seat of an absolute monarchy was now shifted from Rome to Constantinople, and the Empire was divided into East and West. Constructive jurisprudence was a thing of the past, and the sources of law were merged in the will of the prince. The edicts of the praetorian 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. The jus 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 systematic jurisprudence was destined to arise. An attempt was made in the early fifth century to effect a workable system, and the law 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 as novellae constitutiones.
Upon Justinian’s accession there were in force two principal sources of law: the imperial constitutions and the classical jurisprudence operating under the law of citations (Staedtler). To Justinian’s practical mind, the state of the law was still chaotic; the empire was poor, and it was a hardship for lawyers to possess themselves of the necessary MSS. The very bulk of the law 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 the law 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 the Pandects, Justinian, always intelligently interested in legal education, 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 the law. The first draft of the Code was not in complete harmony with the Digest and the Institutes, and a revision of it became necessary; this was promulgated as the “Codex Repetitae Praelectionis”. 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” (novellae, 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 the civil 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 the Pandects into three parts, the Digestum vetus, the Infortiatum, and the Digestum novum. The labors of Justinian have come down to us in the form of texts of the so-called glossators during the Middle Ages. The glossators worked from earlier manuscripts and harmonized conflicting texts into a generally accepted lectio 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 the errors 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 at Rome 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 the date of the promulgation of his laws; 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” (see Lex). Justinian did, however, effect the reconquest of Italy, and held it long enough to promulgate his laws. When the Ostrogoths 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 its logical field. The Roman law of Justinian superseded the barbarian codes and, with the revival, was taught in the medieval schools and thus spread all over Europe.
B. Subsequent Influence
—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 law schools only (Constantinople and Berytus) were subject to Justinian at the time of his constitution on legal education, yet he speaks of Rome 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 of law and an able, but venal, jurist, whose career had much resemblance with that of Bacon. 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 A.D. 906 to A.D. 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 the Mohammedan Koran.
Enough of personal law was suffered to the vanquished by the conqueror to constitute the historic element and principal basis of Greek civil law (Ortolan, Morey). Greek fugitives also carried over with them into Italy and elsewhere the relics of their law, and many manuscripts are still extant: of these the Humanist Cujas possessed a valuable library. 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 philological school, the inspirations and traditions of which are still active in modern scholarship, particularly that of Germany, where, as Montreuil wrote fifty years ago, the French school is refound in the labors of Reitz, Ruhneken, Biener, Witte, Heimbach, and Zacharia.
The most flourishing school of law following the first revival of Roman law was that of Bologna, towards the end of the eleventh century. Its founder was Irnerius, 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 to England and founded a law school at Oxford, about the middle of the twelfth century. The glossators known as the four doctors all belonged to Bologna; and that school acquired a reputation in civil law equal to that of Paris in theology and canon law. So attractive was the Roman law that the clergy had to be restrained from its study, and the study of canon law stimulated by a decretal 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 of ecclesiastical legal documents was made. There began to be collections of decrees of the popes, and the revival of Roman law at Bologna in the twelfth century gave impetus to a systematic canon law. About 1130 Gratian, a Benedictine monk, 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: “The Roman pontiffs effected that in the Church which Justinian effected in the Roman Empire. They caused Gratian’s Decree to be published in imitation of the Pandects; the Decretals in imitation of the Code; the Clementine Constitutions and the Extravagantes in imitation of the Novels; and to complete the work Paul IV ordered Launcellot to prepare Institutes which were published at Rome under Gregory XIII, and added to the Corpus Juris Canonici.” (In qualification of this, see Corpus Juris Canonici.)
To return to the Roman law, the school of the glossators (of whom Accursius in the middle of the thirteenth century was the last) was succeeded by the school 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 Humanist school, of which Cujas was the chief ornament. Until the sixteenth century Roman law was most cultivated in Italy; its glory then passed to France, and, in the eighteenth and nineteenth centuries, though there were conspicuous Dutch jurists of great ability in the application of the law, it may fairly be said to belong to Germany during that period. France, Italy, Belgium, and even England, however, are awakening in the dawn of the twentieth century.
The survival of Roman-law principles was in great measure due to the principle of personality. The Roman-Greek law had not been entirely supplanted by the Koran in the Moslem states, such as Egypt and Syria (Amos). In modern Egypt there has been a reaffirmation of many Roman principles in the Civil Code proposed by the international commission which “harmonized the rules of Arabic jurisprudence which were not repugnant to European legislation, with the chief provisions of the Code Napoleon”. An interesting Syrian text has been edited by Bruns (Syrisch-Romisches Rechtsbuch aus dew. 15. Jahrhundert). This principle of personality permitted by the kings of the Visigoths, Ostrogoths, and Burgundians 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 the clergy, who always preferred to claim the civil law, was a barrier “between Roman civilization and barbarism” (Morey). In the military tenures of feudalism, it has been attempted to trace the idea of two distinct ownerships, the dominium eminens and the dominium vulgare, to the Roman contract of emphyteusis. A collection of feudal 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 the feudal 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. In feudalism 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 that feudalism owed more to Roman public law than to theories and analogies drawn from the private law of Rome. Charlemagne favored the civil-law ideas which savored 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 southern Europe was that of the clergy. 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 as true of the German civil code (and, in part, of the Japanese code) as of those other national codes which trace their immediate parentage to the Code Napoleon 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 the common law’s indebtedness at every step. Anglo-Saxon legal institutions have been jealously and persistently represented as in no wise beholden to Rome: This is to be accounted for in part by a peculiarity in the manner of administration of the common law. With its narrow tradition and its abject rule of stare decisis, it has offered until recently, at least, an unattractive field for historical jurisprudence. The courts and lawyers of the common 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 Caesar’s conquest Roman law held sway in Britain; her soil was trodden by the great Papinian himself, and possibly by others of the immortal 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 of Bracton (Guterboch). The Roman law was historically in the early English law of persons, of property, of contracts, and of procedure, although not always with equal obviousness. While it had little in common with the law of real property, 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 of England. In respect to admiralty, chancery, and ecclesiastical law there has never been, nor could there well be, any disposition to withhold acknowledgment to Rome. The practice is quite common of referring to the chancellor as the praetor. This indebtedness, so begrudgingly acknowledged by many early English jurists in a mistaken sense of national pride, is now frankly admitted by all who lay claim to a knowledge of both Civil and Common law.
JOSEPH I. KELLY