CHAPTER III

ROMAN LAW

 

ROMAN LAW is not merely the law of an Italian Community which existed two thousand years ago, nor even the law of the Roman Empire. It was, with more or less modification from local customs and ecclesiastical authority, the only system of law throughout the Middle Ages, and was the foundation of the modern law of nearly all Europe. In our own island it became the foundation of the law of Scotland, and, besides general influence, supplied the framework of parts of the law of England, especially of marriage, wills, legacies, and intestate succession to personalty. Through their original connection with the Dutch, it forms a main portion of the law of South Africa, Ceylon and Guiana, and it has had considerable influence in the old French province of Louisiana. Its intrinsic merit is difficult to estimate, when there is no comparable system independent of its influence. But this may fairly be said: Roman Law was the product of many generations of a people trained to government and endowed with cultivated and practical intelligence. The area of its application became so wide and varied that local customs and peculiarities gradually dropped away, and it became law adapted not to one tribe or nation but to man generally. Moreover, singular good fortune befell it at a critical time. When civilization was in peril through the influx of savage nations, and an elaborate and complicated system of law might easily have sunk into oblivion, a reformer was found who by skilful and conservative measures stripped the law of much antiquated complexity, and made it capable of continued life and general use without any breach of its connection with the past.

Sir Henry Maine has drawn attention to its influence as a system of reasoned thought on other subjects: “To Politics, to Moral Philosophy, to Theology it contributed modes of thought, courses of reasoning, and a technical language. In the Western provinces of the Empire it supplied the only means of exactness of speech, and still more emphatically, the only means of exactness, subtlety, and depth in thought”.

Gibbon in his 44th Chapter has employed all his wit and wealth of allusion to give some interest to his brief history of Roman jurisprudence and to season for the lay palate the dry morsels of Roman Law. The present chapter makes no such pretension. It is confined to a notice of the antecedents and plan of Justinian’s legislation, and a summary of those parts of it which are most connected with the general society of the period or afford some interest to an English reader from their resemblance or contrast to our own law. Unfortunately a concise and eclectic treatment cannot preserve much, if anything, of the logic and subtlety of a system of practical thought.

The sources of law under the early Emperors were Statutes (leges), rare after Tiberius; Senate’s decrees (senatus consulta), which proposed by the Emperor took the place of Statutes; Edicts under the Emperor’s own name; Decrees, i.e., his final decisions as judge on appeal; Mandata, instructions to provincial governors; Rescripta, answers on points of law submitted to him by judges or private persons; the praetor’s edict as revised and consolidated by the lawyer Salvius Julianus at Hadrian's command and confirmed by a Senate’s decree (this is generally called The Edict); and finally treatises on the various branches of law, which were composed, at any rate chiefly, by jurists authoritatively recognized, and which embodied the Common Law and practice of the Courts. By the middle of the third century AD the succession of great jurists came to an end, and, though their books, or rather the books written by the later of them, still continued in high practical authority, the only living source of law was the Emperor, whose utterances on law, in whatever shape whether oral or written, were called constitutiones. If written, they were by Leo’s enactment (470) to bear the imperial autograph in purple ink.

Diocletian, who reformed the administration of the law as well as the general government of the Empire, issued many rescripts, some at least of which are preserved to us in Justinian’s Codex, but few rescripts of later date are found. Thereafter new general law was made only by imperial edict, and the Emperor was the sole authoritative interpreter. Anyone attempting to obtain a rescript dispensing with Statute Law was (384) to be heavily fined and disgraced.

The imperial edicts were in epistolary form, and were published by being hung up in Rome and Constantinople and the larger provincial towns, and otherwise made known in their districts by the officers to whom they were addressed. There does not appear to have been any collection of Constitutions, issued to the public, until the Codex Gregorianus was made in the eastern part of the Empire. (Codex refers to the book-form as opposed to a roll). This collection was the work probably of a man named Gregorius, about the end of the third century. In the course of the next century a supplement was made also in the Eastern Empire and called Codex Hermogenianus, probably the work of a man of that name. Both contained chiefly rescripts. A comparatively small part of both has survived in the later codes and in some imperfectly preserved legal compilations. During the fourth century, perhaps as Mommsen thinks in Constantine’s time, but with later additions, a compilation was made in the West, of which we have fragments preserved in the Vatican Library. They contained both branches of law, extracts from the jurists Ulpian, Paul, and Papinian, as well as Constitutions of the Emperors.

Reform of Law by Theodosius II

At length the need of an authoritative statement of laws in force was so strongly felt that the matter was taken up by government. Theodosius II, son of the Emperor Arcadius, having previously taken steps to organize public teaching in Constantinople, determined to meet the uncertainties of the law courts by giving imperial authority to certain text writers and by a new collection of the Statute Law. The books of the great lawyers, Papinian, Paul, and Ulpian and of a pupil of Ulpian, Modestinus, were well known and in general use. Another lawyer rather earlier than these, of whom we really know nothing, except his name (and that is only a praenomem), Gaius, had written in the time of Marcus Antoninus in very clear style a manual, besides other works of a more advanced character. The excellence of this manual brought it into general use and secured for its author imperial recognition on a level with the lawyers first named. Another work in great general use was a brief summary of the law by Paul known under the name of Pauli Sententiae. All these lawyers were in the habit of citing the opinions of earlier lawyers and often inserting extracts from them in their own works. Theodosius (with Valentinian, then seven years old) in AD 426 addressed to the Senate of Rome an important and comprehensive Constitution, intended to put what may be called the Common Law of Rome on a surer footing. He confirmed all the writings of Papinian, Paul, Gaius, Ulpian, and Modestinus, and added to them all the writers whose discussions and opinions were quoted by these lawyers, mentioning particularly Scaevola, Sabinus, Julian, and Marcellus. The books of the five lawyers first named were no doubt in the hands of judges and advocates generally, but the books of the others would be comparatively rare, and a quotation from them would be open to considerable doubt. It might contain a wrong reading or an interpolation or even a forgery. Theodosius therefore directed that these older books should be admitted as authorities, only so far as they were confirmed by a comparison with manuscripts other than that produced by the advocate or other person alleging their authority.

But Theodosius went further. If the writers thus authoritatively recognized were found to differ in opinion, the judge was directed to follow the opinion of the majority, and if the numbers on each side were equal, to follow the side on which Papinian stood and disregard any notes of Paul or Ulpian contesting Papinian’s opinion, but Paul’s Sententiae were always to count. If Papinian’s opinion was not there to decide between equal numbers of authorities, the judge must use his own discretion.

The great portion of law which had been set forth in text-books as reasonable and conformable to precedent and statute having thus been sanctioned, and rules given for its application, Theodosius turned his attention to the Statute Law itself. The jurists had in their various treatises taken account of the pertinent rescripts, edicts, etc., already issued and it was therefore only from the time when the series of authoritative jurists ended that the imperial constitutions required collecting. The books of Gregorius and Hermogenianus (Codices Greg, et Herm.) contained those issued down to Constantine’s time, which was therefore taken as the starting-point for the additional collection. Theodosius in 429 appointed a Commission of eight, and in 435 another larger Commission of which Antiochus the praefect was named first with other officials and ex-officials of the Record and Chancellery departments and Apelles, a law professor, power being given to call other learned men to their aid. He instructed them, following the precedent of Gregory and Hermogenianus’ books, to collect all the imperial Constitutions issued by Constantine and his successors which were either in the form of edicts or at least of general application, to arrange them in the order of time under the known heads of law, breaking up for this purpose laws dealing with several subjects, and while preserving the enacting words to omit all unnecessary preambles and declarations. When this is done and approved they are to proceed to review Gregory, Hermogenianus, and this third book, and with the aid of the pertinent parts of the jurists’ writings on each head of law to omit what was obsolete, remove all errors and ambiguities, and thus make a book which should “bear the name of the Emperor Theodosius and teach what should be followed and what avoided in life”.

The Theodosian code, technically called, as Mommsen thinks, simply Theodosianus, was published in Constantinople 15 February 438 and transmitted to Rome at the end of the year. The consul at Rome holding the authentic copy in his hands, in the presence of the imperial commissioners, read to the Senate the order for its compilation, which was received with acclamation. We have an account of this proceeding with a record of the enthusiastic shouts of the senators and the number of times each was repeated, some 24 or 28 times. Exclusive authority was given to the code in all court-pleadings and court-documents from 1 January 439, the Emperor boasting that the code would banish a cloud of dusty volumes and disperse the legal darkness which drove people to consult lawyers; for the code would make clear the conditions of a valid gift, the way to sue out an inheritance, the frame of a stipulation, and the mode of recovering a debt whether certain or uncertain in amount.

Burgundian Code

With the knowledge which we possess of the Vatican Fragments and the Digest and Code of Justinian, we might expect from the above description that the Theodosian Code would contain a selection from the juristic writings as well as the constitutions of a general character arranged under the several titles or heads of law. But the Code, which has in a large part (about two-thirds of Books I-V being lost) come down to us, contains no extracts from the jurists and no constitution earlier than Constantine. So that the exclusive authority which the Emperor gave to his code can only be understood to relate to constitutions since Constantine, and he must have relied on the Gregorian and Hermogenian Codes for earlier constitutions still in force, and on the text-books of the lawyers, approved by his constitution of 426, for supplying the requisite details of practical law.

The Code of Theodosius was divided into sixteen books, each book having a number of titles and each title usually containing a number of constitutions or fragments of such. The order of subjects is similar to that of Justinian’s Code with some exceptions. Private law is treated in Books II-V, military matters in VII, crime in IX, revenue law in X and XI, municipal law in XII, official duties in I, and XIII-XV, and ecclesiastical matters in XVI. The names of the Emperors at the time of enactment and the date and the place either of framing or of publication were given with each constitution though they are not wholly preserved. Compared with Justinian's Code it contains a much larger proportion of administrative law and a much smaller proportion of ordinary private law. The Code remained in force in the East and in Italy until Justinian superseded it, though the traces of its use are few. In the West, in Spain, France, and Lombard Italy, it remained in practical use for long, chiefly as part of the Code issued to the Visigoths by Alaric II in 506.

A number of constitutions issued by Theodosius and his successors after the Code and therefore called Novellae (i.e. leges), “new laws”, have come down to us- 84 in number, the latest of which bearing the names of Leo and Anthemius was issued in 468. Of further legislation by Roman Emperors until Justinian we have only what he chose to retain in his Code.

After the Theodosian Code and before Justinian there were compiled and issued codes of laws for the Romans in Burgundy, for the Ostrogoth subjects in Italy, and for the Romans in the Visigothic kingdom in South France and in Spain; and we have evidence of other laws prevailing in the Eastern part of the Empire, before and after Justinian’s time.

In Burgundy about the beginning of the sixth century King Gundobad issued a short code of laws for all his subjects whether Burgundian or Roman. A few subsequent constitutions by him or his successors have been appended to it. Somewhat later he issued a code for his Roman subjects, when suits lay between them only. This code is about half the length of the other but many of the headings of the chapters are the same. The matter is principally torts and crimes (e.g. cattle-lifting), runaway slaves, succession, gifts, marriage, guardianship, process, and some brief rules on other parts of the law. It appears to have been taken from the same sources as the Lex Visigothorum and the particular source is frequently named. But instead of simply repeating selected words of the source, it is rather an attempt at real codification.

 (The name Papianus often given to it arises probably from this Code Codes for Ostrogoths and Visigoths having followed in the MSS. the Lex Visigothorum and the extract from Papinian which closes that having been taken as the commencement of this. Papianus is a frequent mistake for Papinianus).

Codes for Ostrogoths and Visigoths

For the kingdom of the Ostrogoths in Italy a code of laws was issued by Theodoric about AD 500. It is usually called Edictum Theodorici. The code is nearly the same length as the Lex Romana Burgundiorum and much resembles it in character and sources, but does not name them. The contents are torts and crimes, especially attacks on landed possessions and cattle-lifting, successions, marriage, serfs, conduct of judges, process, etc. The first editor, Pithou, had two MSS. in 1578, but these have completely disappeared.

The Lex Romana Visigothorum is much more important than either of the above. It is a compilation promulgated by Alaric II for Roman citizens in Spain and part of Gaul in the twenty-second year of his reign, i.e. AD 506. He states in an accompanying letter to Count Timotheus that it was compiled by skilled lawyers (prudentes) with the approval of bishops and nobles, to remove the obscurity and ambiguity of the laws and make a selection in one book which should be solely authoritative. No power of amending the law appears to have been given.

It contains a large number of constitutions from the Theodosian Code, omitting especially those which relate to administration rather than general law. Consequently there are few taken from Books VI, VII, XI, XIV. Some post-Theodosian Novels follow; then an abridgment of Gaius’ Institutes, a good deal of Paul’s Sententiae, a few extracts from the Gregorian and Hermogenian Codes, and one extract from Papinian. A short interpretation is appended to all of these, except to Gaius and to most of Paul's Sentences, where interpretation is stated not to be required. The author and age of the interpretation are quite unknown. It sometimes gives a restatement of the text in other words, sometimes adds explanations. The selection of matters for the code shows the intention of giving both Statute and Common Law. The code was no longer authoritative law after Chindaswinth (642-653), but it was used in the schools and assisted largely in preserving Roman Law in the south and east of France till the twelfth century; and a tradition that it received confirmation from Charlemagne is possibly true. Our knowledge of Books II-V of the Theodosian Code and of most of Paul’s Sentences is due to this compilation, which in modern times has received the name of Breviarium Alarici.

Syrian Code.

In the lands on the eastern part of the Mediterranean Syria, Mesopotamia, Persia, Arabia, Egypt, and Armenia a collection of laws, evidently translated from Greek, was used under the name of “Laws of Constantine, Theodosius, and Leo”, probably composed at the end of the fourth century and enlarged in the fifth, perhaps with later alterations from the Justinian laws. Versions of it in Arabic, Armenian, and several in Syriac, differing in some degree from one another, have been lately published. The chief portion relates to family law, marriage, dowry, guardianship, slaves, and inheritance, but obligations and procedure are also included. It is supposed to have been compiled for practical use in suits before the bishops and minor ecclesiastics. Differences between the law prevailing in the East and that in the West are sometimes mentioned, e.g. that in the former the husband’s marriage gift was only half the value of the wife’s dowry. Other differences from the regular Roman Law of the time are the requirement of a written contract for marriage, the recognition of the possession (as in the Gospels) of wives and slaves by demons, punishment of a receiver of others' slaves or serfs by making him a slave or serf, prescription of 30 years for suits for debts, prohibition of purchase by creditor from debtor until the debt is paid, allowance of marriage with wife’s sister or brother’s widow if dispensation be obtained from the king, many peculiarities in intestate inheritance, privileges, and endowments for the clergy, etc.

Justinian’s Reform

Justinian succeeded his uncle Justin in 527 and at once took up the task partially performed by Theodosius, and succeeded in completing it in a more thorough manner than might have been expected from the speed with which it was done. In 528 he appointed a commission of ten, eight being high officials and two practicing lawyers, with instructions to put together the imperial constitutions contained in the books of Gregorius, Hermogenianus, and Theodosius, and constitutions issued subsequently, to strike out or change what was obsolete or unnecessary or contradictory, and to arrange the constitutions retained and amended under suitable heads in order of time, so as to make one book, to be called by the Emperor’s name, Codex Justinianus. The book compiled by the commission was sanctioned by the Emperor in 529, and it was ordered that no constitution should be quoted in the law courts except those contained in this book, and that no other wording should be recognized than as given there.

The next step was to deal with the mass of text-books and other legal literature, so far as it had been recognized by the courts and by the custom of old and new Rome. In 530 Tribonian, one of the members of the former commission for the code, was directed to choose the most suitable professors and practicing lawyers, and with their aid in the imperial palace under his own superintendence to digest the mass of law outside the constitution into one whole, divided into fifty books and subordinate titles. All the authors were to be regarded as of equal rank: full power was given to strike out and amend as in the case of the constitutions: the text given in this book was to be the only authoritative one: it was to be written without any abbreviations; and, while translation into Greek was allowed, no one was to write commentaries on it. This work, never attempted before and truly described by Justinian as enormously difficult, was “with the divine assistance” completed in Justinian’s Digest three years, Tribonian calculating that he had reduced nearly 2000 rolls containing more than 3,000,000 lines into a Codex of about 150,000 lines. Justinian called this book Digesta or Pandectae and directed that it should take effect as law from 3 December 533. Its somewhat irrational distribution into seven parts and fifty books was probably due to a superstitious regard to the mysterious efficacy of certain numbers. The really important division is into titles, of which there are 432.

From reverence to the old lawyers, he directed that the name of the writer and work from which an extract was taken should be placed at the commencement of it, and he had a list of the works used placed before the Digest. This list requires some correction. There were used between 200 and 300 treatises of about 40 authors, some of the treatises being very voluminous, so that over 1600 rolls were put under contribution. Over 95 per cent, of the Digest was from books written between the reigns of Trajan and Alexander Severus. Two works by Ulpian supply about one-third of the Digest: sixteen works by eight authors form nearly two-thirds: twice this number of books supply four-fifths. From some treatises only a single extract was taken. Tribonian’s large library supplied many books not known even to the learned. Many were read through without anything suitable for extraction being found.

The plan which Tribonian devised appears to have been to divide the commission into three parts and give each committee an appropriate share of the books to be examined. Ulpian's and Paul's Commentaries and other comprehensive works were taken as the fullest exposition of current law and made the foundation. They were compared with one another and with other treatises of the same subject-matter; antiquated law and expressions were cut out or altered, contradictions removed, and the appropriate passages extracted and arranged under the titles to which they severally belonged. The titles were, as Justinian directed, mainly such as appeared in the Praetor's Edict or in his own code. The extracts made by the committee which had furnished the most matter for the title were put first, and the others followed, with little or no attempt to form an orderly exposition of the subject. What connection of thought between the extracts is found comes mainly from the treatise taken as the foundation. There is no attempt at fusing the matter of text-books and giving a scientific result, nor even of making a thorough and skilful mosaic of the pieces extracted. The work under each title is simply the result of taking strings of extracts from the selected treatises, arranging them partly in one line and partly in parallel lines, and then as it were squeezing them together so as to leave only what is practical, with no more repetition than is requisite for clearness. This process done by each committee would be to some extent repeated when the contributions of the three committees came to be combined. For special reasons occasionally this or that extract might be moved to some other place, sometimes to form an apt commencement for the title, in one case (Book XX, title 1) by way of honor to Papinian.

Justinian’s work was thus not a codification, as we understand the word, but a consolidation of the law, both of the jus and the leges, as it may be called, of the Common and the Statute Law. It was consolidation combined with amendment. The removal of obsolete law and of consequent reference led necessarily to innumerable corrections both of substance and of wording. Whatever criticism this mode of solving the problem may justly receive, it had two great merits. It gave the Roman world within a short time a practical statement of the law in use, cleared of what was obsolete and disputable, full in detail, terse in expression, familiar in language, and of unquestionable and exclusive authority, it has preserved for the civilized world in all ages a large amount of the jurisprudence of the best trained Roman lawyers of the best age, which but for Tribonian would in all probability have been wholly lost.

Revised Code. Institutes

But Tribonian was not satisfied with this achievement. In preparing the Digest it was found desirable formally to repeal parts of the old law, and for this purpose fifty constitutions were issued. On this and other accounts Justinian directed him with the aid of Dorotheus, a professor at Berytus, and of three eminent lawyers in the Courts at Constantinople to take the Code in hand, to insert the new matter, to omit what were repetitions, and thoroughly to revise the whole. This second or revised Code is what we have. It took effect from 29 December 534. The earliest constitution in it is one of Hadrian’s and there are few before Severus, the jurists’ writings having embodied earlier ones so far as they were of general and permanent application. Many rescripts of Diocletian are given, but none of subsequent Emperors. Many constitutions are much abridged or altered from the form in which they appear in the Theodosian Code, which itself contained often only an abridgment of the originals.

Justinian’s Novellae.

A manual for students (the Institutes) founded largely on Gaius’ Institutes (which have come down to us in a palimpsest luckily discovered at Verona by Niebuhr in 1816) was also sanctioned by Justinian, and took effect as law from the same day as the Digest. An authoritative course of study was ordained at the same time, and law schools were sanctioned, but only in Constantinople, Rome, and Berytus, those existing in Alexandria, Caesarea, and elsewhere being suppressed, under the penalty for any teacher of a fine of 10 lbs. gold and banishment from the town.

Justinian did not end here his legislative activity, but issued from time to time, as cases brought before him or other circumstances suggested, new constitutions for the amendment of the law or regulation of the imperial or local administration. Of these 174 are still extant, about half relating to administration and half to private law and procedure. About forty deal with the law of the family and of succession to property on death. Some are careful consolidations of the law on one subject, some are of miscellaneous content. These constitutions with a few issued by his near successors are called Novellae, and as being the latest legislation supersede or amend some parts of the Digest, Code, and Institutes, which with them form the Corpus Iuris as received by European nations. Almost all are written in Greek, whereas very little Greek occurs in the Digest (chiefly in extracts from the third-century lawyer, Modestinus) and not much relatively in the Code. An old Latin Version of many of the Novels, probably prepared in Justinian's lifetime, is often quoted by old lawyers under the name of Authenticum. It is a significant fact that only eighteen of the Novels, and those almost wholly administrative, are dated after the year of Tribonian’s death (546), though Justinian survived him nearly twenty years. One may be sure that it was Tribonian who suggested and organized this great reform of the law, though no doubt it owed much also to the good sense and persistence of the Emperor.

It would not be practicable to give anything like an adequate summary of Justinian’s law books within the limits which can be assigned to it in a general history. His own Institutes contain an authoritative and readable account, which however on some matters, especially marriage and inheritance, requires correction from the Novels. But summary information may be given here on such topics as the position of slaves, freedmen, and serfs; of the power of the head of a family; of marriage, divorce, and succession to property; of some leading principles of contract, of criminal law, and of procedure.

Slaves

In Rome the household comprised SLAVES as well as freemen, and slaves gave occasion to a great deal of legal subtlety. Theoretically they were only live chattels, without property or legal rights, absolutely at the disposal of their owner, who had full power of life and death over them. But at all periods, more or less largely, theory was modified in practice, partly by natural feeling towards members of the same household, partly by public opinion. Antoninus Pius, either from policy or philosophic pity, so far interfered between master and slave as to make it a criminal offence for a master to kill his own slave without cause, and he required one who treated his slave with intolerable cruelty to sell him on fair terms. Constantine (319) went still further and directed any master who intentionally killed his slave with a club or stone or weapon or threw him to wild beasts or poisoned or burnt him to death to be charged with homicide. But discipline was not to suffer, and therefore by another law (326) chaining or beating in the ordinary way of correction for offences, even if the slave died of it, was not to justify any inquiry into the master's intentions or to found any charge against him. Justinian in his Code reproduced only the former constitution, and retained in the Digest the duty imposed on the city praefect and provincial governors of hearing the complaints of slaves who had fled from cruelty, starvation, or indecency, to the refuge of the Emperor’s statues. To give such protection, said Antoninus (152), was required by the interests of masters, whose full command over their slaves should be maintained by moderate rule, sufficient supplies, and lawful tasks. On the other hand any offences of slaves which came under the animadversion of the State were visited with severer punishments than those of a freeman.

The economical position of slaves requires some notice also. In theory they were simply instruments of their master; what they acquired passed at once to him; they were not capable of having property of their own, he was responsible for them as he was for any other domestic animal that he kept. But in practice slaves were usually allowed to accumulate property out of their savings or from gifts, and the law by a fiction allowed them to use it in purchasing their own freedom. Such quasi-property was called their peculium (petty stock): it existed only so long as their master chose; he could withdraw it, but rarely did so, except for grave offences. But so long as it existed and his master gave him a free hand, a slave could trade with it and enter into all kinds of business transactions ostensibly for himself, but in the eye of the law for the master’s account. He could not however give away anything, and he had no locus standi in court: he could sue and be sued only in the name of his master. If he was freed by his master when living, the peculium was deemed to accompany him, unless expressly withdrawn. But if he was freed by will or alienated, it did not pass with him unless expressly granted.

The law of persons was greatly simplified by Justinian’s legislation. There were now only two classes of persons, slaves and freemen, though freemen were not all treated alike by the law. Besides some discrimination in favor of persons of high rank, freedmen and serfs were in a very inferior position.

Freedmen 

FREEDMEN were manumitted slaves and retained traces of their former servile condition. In earlier times, besides the regular forms of manumission by a ceremony before the praetor or by last will, some legal effect used to be given to informal expressions of the master’s will. The slave so informally emancipated became free in fact during his life, but his property on his death did not pass as a freeman’s by will or to his relatives, but remained like a slave’s peculium to his former master or master's representatives. Such half-freemen were called Latins as not being complete citizens. Justinian (531) allowed the informal acts which had this imperfect effect to confer in future full freedom, so that a letter to the slave subscribed by five persons as witnesses, or a declaration similarly witnessed or recorded in court, or the delivery to the slave before five witnesses of his master's documents of title, or the slave’s attendance on the bier of the deceased master by his or the heir’s direction, or the giving a female slave in marriage to a freeman with a dowry settled in writing, or addressing a slave in court as his son, were acts sufficient without further formality to make the slave a freedman or freedwoman. So also, by an edict of Claudius, ejection of a sick slave from the master’s house without making provision for him, or prostitution of a female slave in breach of a condition of her purchase, forfeited the master’s rights, and full freedom now ensued; and other cases of freedom by operation of law are mentioned. Further Justinian repealed the laws which required a master to be twenty years old before he could emancipate slaves by will, and restricted the number. Constantine confirmed (316) a custom of giving freedom in church before the priests and congregation, a record of the matter being signed by the former; and he allowed clerics to confer freedom on their slaves by any form of words without witnesses, the freedom to take effect on publication of the document at the master’s death.

A freedman did not, however, by the act of manumission lose all trace of his former condition. He remained under limited control of his former master or owner, now patron, and patron's children. A patron could claim respect (obsequium), services, and the succession to some or all of his property at death if he left no children as heirs. From services he could be exempted by a special grant by the Emperor of the right of wearing gold rings, and by a like grant (restitutio natalium, “restoration of birth”) from the patron's claim to his estate. Such grants were rarely made without the patron's consent. Justinian dispensed with the formality of special grants and made the removal of the patron’s claim to services and inheritance follow of itself on a manumission. But unless the master then, or by way of trust in his will, made a declaration to that effect, this automatic grant did not exempt a freedman from the duty of due respect to his patron. He was punishable for using abusive language to him: he could not sue him or his children except by consent of the proper authority: and any suit which he brought had to show formal respect by the complaints being couched in a mere statement of the facts without casting any imputation. Constantine allowed freedmen guilty of ingratitude or insolent conduct, even though not of a grave character, to be remitted into their patron's power. A patron in need could claim support (alimenta) from his freedman. Claims to the status of freeborn, when disputed, were reserved for the decision of the city praefect or governor: claims to the status of freedman were reserved likewise for the same high officials, or if the treasury was a party, then for the chief officer of that department.

Serfs

SERFS though free were in some respects not far removed from slaves. They were found usually in country districts in the provinces, and were often included under the general term “cultivators” (coloni), which was also applied in republican and early imperial times to small farmers, who were freemen not only in law but in practice. The origin and history of this serfdom is not clear. It may very possibly have been developed on the example of Marcus Aurelius’ settlement in Italy of numbers of the peoples conquered in the Marcomannic War, and possibly on the example of the German “Liten” (laeti), settled on the Gallic border. But besides conquered tribes retained in their own country or settled other countries, voluntary contract under pressure of poverty and statutes against beggary probably added to the number. The maintenance of the land tax introduced by Diocletian made the retention of the cultivators on the several estates a necessity.

The characteristic of a serf was that he and his descendants were inseparably attached to the land, and as a rule to one particular farm, specified in the government census, and held under a lord. If this particular part of the lord’s estate was over-supplied with cultivators, he might transfer serfs permanently to another part which was undersupplied, in accordance with the purpose of the institution that of keeping the land under due cultivation and enabling it to bear taxes. But except in such a case the serfs could not be separated from the farm nor the farm from them. They were part of its permanent stock. If the lord sold a part of the land, he must convey with it a proportionate number of the serfs belonging. If a serf wandered or was stolen, or became a cleric without his lord's consent, he could, whatever was the social position to which he had attained, be reclaimed by his lord just as if he were a runaway slave. And for some offences, e.g. marrying a freewoman, he was liable by statute, like a slave, to chains or stripes. He was not admissible to the army, but as a free man he paid poll tax. He could sell the surplus produce of his farm, and his savings, called his peculium, were in a sort his property but were inalienable except in the way of trade; on his death (e.g. as a monk), childless and intestate, they passed to his lord, but usually would pass to his children or other successors on his farm. He might (apparently) own land, and would be entered in the Register as its holder and be liable for the land tax, whereas the tax on the farm to which he was attached as a serf would usually be collected from the lord. A serf was bound to pay a rent to his lord but the rent was certain, usually a fixed portion of the produce but sometimes a sum of money. Against any attempt of the lord to increase the rent, he could bring the case into court, but on all other grounds he was disabled from suing his lord. The rent was called canon or pensio.

The union of serfs was held to be a marriage and accordingly the children were serfs, and even the children of a serf by a freewoman or a slave followed the condition of the father, until Justinian, pressed by the analogy of the rule regarding slaves’ unions, first made a serf's offspring by a slave woman to be slave (530), and afterwards from the love of liberty made a serf’s offspring by a freewoman to be free (533). He confirmed this again in 537 and 539, though, by the later law, he required the children, though free and retaining their property, to be permanently attached to the farm. Finally in 540, influenced by representations of the danger of thus depleting the land of its proper cultivators, he restored the old law and made the children serfs, without affecting the mother’s status as a freewoman. His successors made such children personally free.

It was difficult for a serf to improve his status. Justinian abolished (c. 531) any claim to throw off serfdom by prescription, but allowed anyone who had been consecrated as a bishop to be free from serfdom as from slavery (546). Orthodoxy however was essential, and any serf who encouraged Donatist meetings on his land was to be beaten, and if he persisted was fined one-third of his peculium.

Serfs were sometimes called originarii from being in the class by birth; censiti from being enrolled in the census-register; usually adscripti or adscripticii from being enrolled as of a certain farm; tributarii from paying poll tax. Another term, inquilini, which appears in the Digest in the beginning of the third century, and in earlier inscriptions, appears to denote a similar class, possibly serfs living in huts on the land and employed either as cultivators or herdsmen or otherwise. The clear recognition of serfs as half-free is seen chiefly in laws since Constantine. After Justinian there is little said of them.

Patria Potestas

PATRIA POTESTAS. The father (or grandfather) when regularly married, as head of the family (paterfamilias), had in early times absolute power over the other members whether sons or daughters. And his wife, if married by the ancient forms, ranked as a daughter. In imperial times this relation was largely modified. She remained outside her husband’s family, who instead of taking her whole property, received only a dowry of which he was rather the accountable manager than the beneficial owner. The children unless emancipated had no property of their own, any more than slaves had. Whatever came to them, from any source, passed in strict law at once to the father, who could do what he liked with it. This “fatherly power” endured irrespectively of the age or social or political position of his sons and daughters. A man of full age, married, with children and occupying a high office was, unless formally emancipated, still under his father's power and had only a peculium like slaves. He could sue and be sued only in his father’s name and in law for his father’s account. Nor could he compel his father to emancipate him, and if emancipated himself he did not thereby carry his children with him, unless expressly included in the emancipation. If his father died, his children fell into his own power; if he died first, his children remained under his father's power. Loss of citizenship had the same effect as death.

Constantine in 319 made an important innovation. He enacted that the father's full right over what came to his children should be restricted to what came from himself or his relatives; and that in anything that came from their mother, the head of the family should have only the usufruct and the administration, but with no right of alienation or mortgage. If the children died (it was enacted in 439), their property, apart from the usufruct, passed to their children, or, if there were none, to their father as next heir, not to the grandfather, who if alive would be enjoying the usufruct. When the head of the family emancipated a child, he lost the usufruct, but was authorized to take one-third of the property. Justinian (529) repealed this and gave instead to the father (or other head of the family) the right to retain one-half of the usufruct. Further this arrangement was made to apply not only to what came from the mother but (excepting, as we shall see, camp-peculium) to everything which the children acquired by their own labor or by gift or will from other than their father's relatives. The administration which accompanied the usufruct was not subject to any interference or impeachment by the children, who however were to be supported by their father. The father retained the usufruct, even if he married again.

Soldiers from the time of Augustus were privileged to treat as their own property, disposable as they chose in their life or by their will, all gains made while in the army and in connection therewith, including gifts from comrades. Such acquisitions were called their castrense-peculium. On this analogy Constantine (326) granted the like privilege to the court officials (palatini), and later Emperors extended it to provincial governors, judicial assessors, advocates, and others in the imperial service (which was often called militia); and eventually (472) to bishops, presbyters, and deacons of the orthodox faith. Wills disposing of such castrense, or quasi-castrense peculium, were specially exempted from challenge by children or parents on the ground of failure in due regard. In case of intestacy, before Justinian altered the law in 543, the intestate's camp-peculium passed to the father as if, like any other peculium, it had been his all along

As regards the persons of (free) children the father had the power and duty of correction and in early times presumably could sell or kill them, as he could slaves. But this right was rarely exercised, at least in historical times, though not until Constantine (319) was killing a son formally forbidden and ranked as parricide. Sale (with a right however of redemption) was possible only in case of a newly-born child, under pressure of extreme poverty. Exposure of a child, at least after the second century, made the parent liable to punishment. Exposed children of whatever class could not be brought up as slaves or serfs or freed, but were to be deemed freeborn and independent (529). Previously to this law of Justinian it was left to the bringer-up to make them slave or free at his choice.

The dissolution of the natural father’s power over his children, whether in order to make the child independent (sui juris), or to give him by adoption into another’s power, was in old times effected by a complicated ceremonial. This was abolished by Justinian (531), who substituted in the case of adoption a declaration before a competent magistrate, both parties being present, and, in the case of emancipation, either the like simple declaration, or, according to a law of Anastasius (502), if the son or daughter were of age and not present in court, a declaration, supported by a petition to the Emperor, with his grant of the prayer and the consent of the child, if not an infant.

Adoption.

By ADOPTION in older times a person passed under the fatherly power of one who was not his natural father. If he was not independent, he passed entirely from one family to another: his natural father no longer controlled him or was responsible for him, the son’s acquisitions did not pass to him, nor had the son any right to his inheritance. The adoptive father stood in the natural father’s place, and could retain or emancipate him. Justinian (530) altered this in all cases where the adopter was an outsider. The adopted person retained all his rights and position in his natural father’s family, and simply acquired a right of succession to the adopter if he died intestate. But if the adopter was the grandfather or other ascendant either on the father’s or mother's side, the effect of adoption remained as of old.

Adoption of a person who was sui juris was often called adrogation, and required a rescript from the Emperor. If the person to be adopted was under age (impubes), inquiry was made whether it was for his advantage, and the adopter had to give security to a public officer for restoration of all the adopted’s property to his right heirs, if he died under age. If he emancipated him without lawful cause, or died, he was bound by a law of Antoninus Pius to leave him one-fourth part of his property, besides all that belonged to the adopted person himself. If a person adrogated had children, they passed with him under the power of the adopter. In all cases it was required that the adopter should be at least eighteen years older than the adopted.

Guardianship

In the old law guardians (tutores) were required not only for young persons for a time, but for women throughout their life, though the authority they exercised was often nominal. Guardianship for women was criticized by Gaius as irrational, and it ceased probably before Constantine. By Justinian’s time, guardianship affected only impuberes. He fixed the age for puberes at fourteen for males, twelve for females. Up to that age, if their father or other head of the family was dead, or if they were freed from his power, they required a guardian to authorize any legal act which was to bind them. Without such authority they could bind others but not themselves, the rule being that they could improve but could not impair their estate. After the age of puberty the law regarded them as capable of taking the responsibility of their own acts, but practically they had not the requisite knowledge and discretion. No one could deal safely with them, because of the risk of the contract or other business being rescinded, if the praetor found that it was equitable to do so. To meet this difficulty a curator was often appointed to guide young persons in the conclusion of particular business, and eventually was appointed to act regularly in matters of business until the ward became 25 years old. It was the analogy of madmen, etc. (mentioned below), which probably suggested this course. From the third century allowance of age (venia aetatis) could be obtained from the Emperor by youths of 20 years, women of 18, on evidence of fitness. Justinian however (529) restrained them from all sale or mortgage of land, unless specially authorized.

Guardians and Curators

A guardian was appointed by the father’s will. In default of such appointment, the mother or grandmother had the first claim by Justinian’s latest legislation, and then the nearest male in order of succession to the inheritance. If such were disqualified, the praetor at Rome, the governors in the provinces, and if the estate was small, the town-defenders, made the appointment of both guardians and curators.

Guardianship was regarded as a public office, and no one was excused from undertaking it, except for approved cause. Guardians and curators were liable for any loss caused by their act or neglect. They could not marry their wards, unless approved by the ward's father or by his will.

Mothers had been allowed (since 390) to act in these capacities for their own children, but by Justinian's final legislation, had to renounce the right of re-marriage and the benefit of the Velleian Senate’s decree (see below). If they broke their promise, they incurred infamy and became incapable of inheriting from any but near relatives, besides losing part of their property.

Severus (195) prohibited all sale of a ward’s land in the country or suburbs unless authorized by the father's will or by the praetor. A subsequent edict directed everything else to be sold and reduced into money. Later Emperors (326 and after) reversed this direction, and partly on the ground of probable attachment of the ward to the family house, and the utility of old family slaves, and partly from the difficulty of finding good investments, ordered all the property to be preserved, unless land had to be purchased or loans made in order to supply the ward’s needs.

Madmen and spendthrifts, pronounced such by the praetor, were by the XII Tables under the care of their agnates (relatives through males) but in practice under a curator appointed by the praetor or provincial governor. So also a curator was appointed, without limit of age in the ward, for the demented, or deaf and dumb, or for persons incapacitated for business by chronic disease. The practice of making contracts by oral stipulation brought deaf and dumb into this category.

Rescission of contracts. Postliminium

The protection of minors, mentioned above, was an interesting feature of Roman Law but must often have been very embarrassing in practice. Whatever business a minor had conducted, a sale, a purchase, a loan, a pledge, acceptance of an inheritance, agreement to an arbitration, etc., if it was shown that he had been in any way deceived or overreached or had suffered from want of due vigilance, application might be made to the Court, to have the matter rescinded, provided he had not acted fraudulently and there was no other remedy. The Court heard the parties, and if it found the claim just, put the parties back, so far as possible, into their old positions. This was called in integrum restitutio. The application had to be made within (originally) one year after the minor’s completing his twenty-fifth year, and would be rejected if after this age he had in any way approved his former act or default. Justinian extended the period to four years.

A similar reinstatement was sometimes granted to persons of full age, if it were shown that they had suffered serious loss owing to absence on the public service, or to captivity, or fraud, or intimidation. Or the reverse might be the case: similar absence of others might have prevented plaintiff from bringing a suit or serving a notice within the proper time: reinstatement might then sometimes be obtained.

A person, who had been taken captive by the enemy and returned home with the intention of remaining, was held to re-enter at once into his old position, his affairs having been in the meantime in a state of suspense. This was called the law of postliminium (reverter). His own marriage was however dissolved by his captivity, as if he were dead, though his relation to his children was only suspended till it was known whether he would return. Slaves and other chattels taken by the enemy, if brought back into Roman territory, similarly reverted to their former owners subject to any earlier claims which attached to them. Anyone who ransomed them from the enemy had a lien for the amount of the ransom.

Betrothal. Marriage and Prohibited marriages.

MARRIAGE was often preceded by betrothal, that is by a solemn mutual promise. The consent of the parties was required, but, if the woman was under her father’s power, she was presumed to agree to his act unless she plainly dissented. The age of seven was deemed necessary for consent. The restrictions on marriage applied to betrothal, and a betrothed person was for some purposes treated in law as if married. Betrothal was usually accompanied by gifts, as earnest from or on behalf of each party to the other. If the receiver died, the giver had a right to its return, unless a kiss had passed between them, when the half only could be recovered (336). Breach of the contract without good cause, such as lewd conduct, diversity of religion, etc., previously unknown to the other, at one time involved a penalty of fourfold (i.e. the earnest and threefold its value), but in the fourth century this was remitted altogether, if the father or other ascendant of a girl, betrothed before she was ten years old, renounced the marriage, and in the fifth century (472) it was reduced generally to twofold. Delay for two years to fulfill the promise was a sufficient justification for the girl’s marrying another.

Marriage in Roman Law is the union of life of man and woman for the purpose of having children as members of a family in the Roman Commonwealth. Both must be citizens of Rome or of a nation recognized for this status by the Romans; they must be of the age of puberty; if independent, must give their own consent, if not, their father must consent. Nuptias non concubitus sed consensus facit was the dominant rule of Roman Law. It was the avowed purpose of such a union and public recognition that distinguished marriage from concubinage. In earlier times the woman passed by one of several forms with all her property into the power (manus) of her husband and occupied the position of a daughter. Gradually a freer marriage was developed, by which the woman did not become part of her husband’s family, but remained either under her father's power, or independent, and controlled, with the aid of a guardian for a time, her own property, except so far as she had given part as dowry. The ceremonials, which accompanied the old forms of marriage, gradually went out of use and had apparently ceased in or by the third century. The only external mark of marriage was then the woman's being led into her husband's house, and thus the paradoxical statement could be made that a woman could be married in the absence of her husband, but a husband could not be married in the absence of his wife. The settlement of a dowry grew to be, and was made by Justinian, a decisive characteristic of marriage, though its absence did not prevent a union otherwise legal and formed with the affection and intention of marriage from being such in the eye of the law.

Marriage, and of course also betrothal, could take place only between free persons, not of the same family, and not otherwise closely connected. The old law was reaffirmed by a constitution of Diocletian (295), which expressly forbade marriage of a man with his ascendants or descendants or aunt or sister or their descendants or with step-daughter, step-mother, daughter-in-law, mother-in-law or others forbidden by the law of old. A woman was forbidden to marry the corresponding relatives. Such marriage were incestuous. Relationship formed when one or both parties were slaves was equally a bar. Constantius (342) also forbade marriages with brother's daughter or grand-daughter and (in 355) marriage with brother’s widow or wife’s sister a prohibition repeated in 415. The marriage of first cousins, forbidden with the approval of St Ambrose by Theodosius about 385, was relieved from extreme penalty (of fine) by his sons in 396, and expressly permitted in 405. Justinian (530) forbade marriage with a god-daughter. No change was made in the old law which permitted a step-son of one parent to marry a Prohibited marriages. Dowry step-daughter of the other, and forbade the marriage of brothers and sisters by adoption so long only as they remained in the same family. Marriage with the daughter of a sister by adoption was legal.

Other prohibitions were based on considerations outside of the family tie. A guardian or curator was prohibited by Severus and later Emperors from marrying his ward, if under twenty-six years of age, either to himself or his son, unless special permission was obtained. Provincials were forbidden by Valentinian (c. 373) to marry barbarians under threat of capital punishment. Jews and Christians were forbidden by Theodosius (388) to intermarry, the act being punished as adultery. Justinian (530) following the sacred canon forbade presbyters, deacons, and sub-deacons to marry at all; if they did, their children were to be treated as born of incestuous connection.

Senators and their descendants were forbidden by Augustus and by Marcus Aurelius to marry freed persons or actors or actresses or their children. Constantine (336) forbade any person of high rank or official position in towns to marry, whether after concubinage or not, freed women or actresses or stall-keepers or their daughters or others of low condition, mere poverty not being regarded as such (Valentinian 454). Justin, in consequence of his nephew Justinian’s marriage with Theodora, removed this prohibition, if the woman had ceased to practice her profession, and gave to his law retrospective effect from his accession. Justinian relaxed the rule still further, and eventually (542) enabled all persons to marry any free woman, but in the case of dignitaries only by regular marriage settlement: others could marry either by settlement or by marital affection without settlement.

Forbidden marriages were declared to be no marriages, dowry and marriage gift were forfeited to the Crown, the children were not even to be deemed natural children; the parties were incapable of giving by will to any outsiders or to each other. Incestuous marriage, by Justinian’s latest law (535), was punished by exile and forfeiture of all property, and in the case of persons of low rank by personal chastisement. Any children by a previous lawful marriage became independent, took their father's property, and had to support him.

Dowry

A woman’s dowry was a contribution from herself or her relatives or others to the expenses of the married life, placed under the charge and at the disposal of the husband, and, although theoretically his property, to be accounted for by him on the dissolution of the marriage to the donor or the wife. It presumed a lawful marriage: it could be given either before or after, but if given before it took effect only on marriage. It was governed by customary rules and often by special agreements consistent with its general principles. From the time of Constantine a betrothed husband's or wife’s gift made in view of an intended marriage was revocable by the donor, if the donee or the wife’s father was the cause of the marriage not taking place. And a gift from the husband, which was now a usual incident, was treated as balancing the dowry and gradually subjected to like treatment (468). As the dowry could be increased by the wife or others during the marriage (notwithstanding the rule against gifts between husband and wife), so also could the husband’s ante nuptial gift, and, if none such had been made, he was allowed to make one not exceeding the value of the dowry, and any agreements which had been made for a marriage settlement could be modified accordingly. The amount of the settlement could be reduced by mutual consent, unless there were children of the marriage, for which the settlement was made (527). Justinian enacted (529) that all agreements for the share to be taken by the wife in her husband’s gift after his death were to apply to the share to be taken by the husband in the wife’s dowry on her death, the larger share to be reduced to the smaller, and altered the phrase ante nuptias donatio to propter nuptias donatio, that it might fit the extended character (531). In 539 he enacted that the dowry and the marriage gift should be equal, and that in all cases of dissolution of the marriage, whether either party married again or not, the amount coming to him or her from the settlements of the marriage or former marriage should pass as property to the children of the marriage and only the usufruct to the parent; and that was to be subject to the support of the children. In 548 he enacted that either party abstaining from a second marriage should as a reward share with the children in the property of the dowry or nuptial gift, besides enjoying the usufruct of the whole: and further he required that the husband or his friends should (as in other cases of gift) record in court the amount of his marriage gift if over 500 solidi (about equal to 500) under penalty for omission of losing all share in the dowry.

A woman’s claim for her dowry had since 529 (and still more since 539) precedence of almost all other claims on her husband's property; and if her husband was insolvent she could maintain her claim on the settled property even during his life against his creditors, and against her father or mother or other donor unless they had expressly stipulated for its return. Any money or securities or other property which the wife had beside her dowry (parapherna) were not touched by any of these agreements or statutes, but remained entirely the property of the wife and subject to her claim and disposition. The fact was sometimes mentioned in the dowry deed, and the husband and his property were answerable for the parapherna so far as they were under his care. Justinian (530) allowed him to sue for them on his wife's behalf, and to use the interest for their joint purposes, but the capital he was to deal with according to her wish.

Second Marriages

SECOND MARRIAGES were the subject of much change of opinion, in the minds of the Emperors at least, between Augustus and Justinian. Under the former celibacy was not merely discouraged, but visited with the penalty of incapacity to take an inheritance or legacy, if the man was under sixty or the woman under fifty years of age. Constantine appears to have been the first to modify this legislation. No doubt the declension of the Roman population had ceased to have the importance which led to Augustus’ stringent enactments, now that the Empire contained a wider field for supplying recruits for the army. And the Christian Church, coming by the fourth century to count the single life nobler than the married, and encouraging anchorite and monastic asceticism, looked on second marriages with increasing dislike and reprobation. The Emperors in the fourth century, though requiring the father's consent to the re-marriage of a woman under twenty-five years of age, and severe in condemnation and punishment of any woman who married again within ten months (in 381 extended to one year) from the death of her husband, in other cases interfered only to secure the interest of the children of the former marriage. Justinian dealt with the subject in 536 and 539. As regards any property derived from the former husband or wife the party marrying again, as already mentioned, retained only the usufruct, the children of the former marriage being entitled to the property in equal shares. As regards property not derived from the former partner, the party re-marrying was disabled from giving by dowry or otherwise or leaving to the second wife or husband more than the smallest share of it which any child of the former marriage would get. Under the law any excess was to be divided equally between the said children if not “ungrateful”.

If property was left to a person on condition of his or her not marrying again, it used to be the practice to require an oath for the observance of the condition before the property was transferred. Justinian, in order to prevent frequent perjury and secure the execution of testator’s intention, allowed the legatee, after a year for reflexion, to have a transfer of the bequest, or, if it be money, the payment of interest on it. Security had to be given, or at least an oath to be taken, by the recipient that he would, if the condition were broken, restore the property transferred with the profits or interest. His or her own property was tacitly pledged by the statute (536). By second marriage a mother lost the right, which the law usual gave her, of educating her former children, and the guardianship, if she had it, and lost all dignities and privileges derived from her former husband.

Divorce. Repudium

Until the year 542 marriage could be dissolved in the life of the parties by mutual consent without special cause and with only such consequences as were agreed between them. In that year Justinian forbade any such divorce except in order to lead a life of chastity. For breach of this law he enacted in 556 that both parties were to be sent into a monastery for the rest of their lives; of their property one-third was to be given to the monastery and two-thirds to their children: if there were no children, two-thirds to the monastery and one-third to their parents; if they had no ascendants alive, all to the monastery. If however husband and wife agreed to come together again, the penalties were not enforced: if one only was willing, he or she was freed.

Justinian’s son, Justin, in 566 yielded to persistent complaints and restored the old law permitting divorce by mutual consent. Divorce at the instance of one party only, called repudium, in old times was subject to no restraint, but in Augustus' time required seven witnesses to the declaration, which was made orally or in writing and delivered to the other party by declarant’s freedman.

Under the Emperors dissolution of marriage without good ground was visited with penalties. Good ground was either incapacity on the part of the husband for a period of three years from marriage, or desire to lead a life of chastity, or captivity, combined with the other's ignorance for five years of the captive’s being alive. In these cases, called by Justinian divortium bona gratia, the dowry is given back to the wife and the marriage gift to the husband, but no penalty is incurred. On the other hand for grave crime or offence either party may repudiate the other and gain both dowry and marriage gift. The offences as specified by Valentinian (449) were in the main the same in both cases, adultery, murder, enchantments, treason, sacrilege, grave-robbery, kidnapping, forgery, attacks on the other's life, or blows: also in the case of the man, cattle-lifting, brigandage or brigand-harboring, associating with immodest women in presence of his wife: in the case of the woman, reveling with other men not belonging to her, without her husband’s knowledge or consent, or against his will going to theatres or amphitheatres or horse races, or without good cause absenting herself from his bed. Justinian (535) added to the wife's offences willful abortion, bathing with other men, and arranging a future marriage while still married.

By a later law (542) Justinian reduced the number of offences which would justify repudiation to six on the part of the wife, viz., conspiracy against the Empire or concealing such from her husband, proved adultery, attempt on the husband's life, banqueting or bathing with strange men without his consent, staying out of her own house except at her parents’ house or with her husband's consent, visiting circus shows or theatres or amphitheatres without his knowledge and approval. On the part of the husband five offences only are to count: conspiracy against the Empire, attempt on his wife’s life or neglect to avenge her, conniving at others' attempts on her chastity, charging her with adultery and failing to prove it, associating with other women in the house where his wife dwells or frequently consorting with another woman in the same town and persisting after several admonitions by his wife's parents or others. The regular penalty for the guilty person in such a case and Concubinage for repudiation on other grounds than those sanctioned by the law was forfeiture of all the settled property to the innocent person, if there were no children, and if there were children, the innocent person was to have the usufruct and the children the property in remainder. In graver cases an additional amount from the other property of the delinquent equal to one-third of the dowry or nuptial gift forfeited, was to be so treated. Where the marriage was not accompanied by a settlement, the guilty party was to forfeit one-fourth of his or her property to the other. By the latest legislation (556) the penalty was to be as for dissolution merely by mutual consent.

If a husband beat his wife with whip or stick, the marriage was not dissoluble on that account, but he was to forfeit to her of his own property as much as was equal to one-third of the marriage gift.

As regards persons in military or other imperial service, Justinian eventually enacted (549) that death should not be presumed from absence of news however long, but if the wife hear of her husband's death she must enquire, and, if the authorities of the regiment swear to his death, she must wait a year before marrying again. Otherwise both husband and wife will be punished as adulterers.

Legitimation of natural children

CONCUBINAGE was a connection not merely transitory or occasional but continuous, for the gratification of passion, not for the founding of a family of citizens. The children, if any, had no legal relation to their father any more than their mother had. And thus, the economical relations between the man and woman being in law those of independent persons, gifts were not barred in concubinage as they were in marriage.

Such a connection was a matter of social depreciation, but not subject to moral disapprobation if the man was unmarried. Foreigners and soldiers in the early Empire were rarely capable of contracting a regular Roman marriage (matrimonium justum), and a looser connection became almost inevitable. By Romans in a higher class it was rarely formed except with a woman of inferior position, a slave or a freedwoman, and in such cases was thought more seemly than marriage. With freeborn women it was unusual, unless they followed some ignoble trade or profession or had otherwise lost esteem. Constantine and other Christian Emperors viewed it with strong disfavor, and discouraged it by refusing legal validity to all gifts and testamentary dispositions by the man in favor of the children of the connection. On the other hand the conversion of concubinage into marriage and consequent legitimation of the children was encouraged, at first under Constantine, only when there were no legitimate children already and when the concubine was a freeborn woman. Marriage settlements having been executed, the children born before as well as any born after became legitimate, and (if they consented) subject to their father's power and alike eligible to his succession. After varied legislation eventually Justinian enacted in 539 that this should apply to freedwomen also and apply whether there were children before, legitimate or not, and whether others were born after or not. In the previous year he had provided that, where by the death of the mother or for other cause marriage was not feasible, the children might be legitimated on the father’s application or in accordance with his will; and that a woman who, trusting to a man's oath on the Gospels or in church that he would regard her as his wife, had lived long with him and perhaps had children, could on proving the fact maintain her position against him and be entitled to the usufruct of a fourth of his estate, the children having the property; if there were three children she had the usufruct of a child's share. In 542 he provided that if a man in a public deed, or his own writing duly witnessed, or in his will called a child by a free woman his son without adding the epithet “natural”, this sufficed to make him and his brothers legitimate and their mother a legitimate wife without further evidence.

As regards connections with slave women Justinian in 539 enacted that they might be legitimatized by enfranchisement and marriage settlement, and the children of the connection though born in slavery would thereby become free and legitimate. He had already in 531 provided that if a man having no wife has formed such a connection and maintained it till his death, the woman and her children should become free after his death, if he did not make other disposition by his will.

Theodosius in 443 had introduced another mode of improving the condition of natural children. He authorized a father either in his life or by his will to present one or more of his natural children to the municipal council of his town to become a member of their body, and further authorized him to give or leave such children any amount of his property to support their rank and position; and similarly to give his natural daughters in marriage to members of the council. Those so presented were not allowed to decline the position, burdensome though it was. They succeeded to their father's intestate inheritance just as if they were legitimate, but had no claim to the inheritance of their father's relatives. Theodosius restricted this right to a father who had no legitimate children. Justinian (539) in confirming the law removed this restriction but limited such a natural son's share of the inheritance to the smallest amount which fell to any legitimate son.

The jus liberorum exempting from the disabilities imposed by the Papian law was acquired by natural as well as by legitimate children, and so also the reciprocal rights between mother and children of intestate inheritance given by the Tertullian and Orfitian Senates' decrees. The Papian law was abolished by Constantine (320).

Incestuous connection was not tolerated as concubinage any more than as marriage. Children of such or other prohibited connection were not capable of legitimation or of any claim on their parents, even for aliment.

Will-making

A will in Roman law was not a mere distribution of testator's property: it was the formal nomination of one or more persons to continue as it were his personality and succeed to the whole of his rights and obligations to men and gods. In early times the heir had to perform the sacred rites of the family and to pay the debts, and if testator's property was not sufficient, he was still liable himself in full.

The power of making a will belonged to all free persons who were sui juris (i.e. not under the power of their father or other ascendant), of the age of puberty, not mad at the time and not naturally quite deaf and dumb. Spendthrifts and persons in the enemy's power could not make a will, but a will made before interdiction or capture was good. The procedure was simplified by Justinian, partly indeed by previous Emperors. Seven witnesses were required, all present at the same time and subscribing and sealing the written document containing the will.

Neither woman nor child nor anyone in the power of testator nor slave nor deaf nor dumb nor mad nor spendthrift nor the heir named nor anyone in the heir's power nor one in whose power the heir was, is a good witness. There was no objection to legatees as witnesses. The testator must sign the will and acknowledge it as his will to the witnesses, but need not disclose its contents. If he cannot write, an eighth person must subscribe for him. If he is blind, there must be a notary (tabellarius) to write and subscribe the will, or at least an additional witness.

If the will be written entirely by testator and he states this fact in the document, five witnesses suffice. Valentinian III (446) had allowed a holographic will to be valid even without witnesses. The will might be written on boards or paper or parchment : the material was unimportant. Nor need the will be written at all. An oral declaration by the testator of his will in the presence of seven witnesses was enough without further formality.

Justinian made a concession to country people in places where literates (i.e. persons able to read and write) were scarce. There must be at least five witnesses, literates if possible, one or two of whom if necessary might subscribe for the rest. In such wills the witnesses must however be informed who are appointed heirs, and must depose this on oath after testator’s death.

Soldiers although in the power of their fathers were competent to make a will dealing with their separate estate (castrense peculium). If they were in actual service in camp or had not retired more than a year, their will was exempted from all formalities. This concession was begun by Julius Caesar and made permanent by Trajan in the most general terms: “Let my fellow soldiers make their testaments as they will and as they can, and let the bare will of the testator suffice for the division of his goods”. It must however be definitely made and understood as a will and not be a mere casual remark in conversation. Such a will ceased to be valid after testator had left the service for a year; he must then make his will in the ordinary form. Words written on his shield scabbard with his blood or scratched in the dust with his sword at the time of death in battle were allowed by Constantine as a soldier’s will.

A will might be revoked not only by a second will duly made, but by cutting the threads which fastened the tablets or breaking the seals with that intention. If ten years have elapsed, a verbal declaration of revocation proved by three witnesses or made in court is enough. If a second will not duly made gave the inheritance to the persons who would be entitled on intestacy and the first will gave it to others not so entitled, the second will, if witnessed by five persons on oath, is to prevail (439).

Codicils

An informal disposition of property was sometimes made by a testator's writing his desire in a note-book (codicilli). The practice was introduced with Augustus' approval and was confirmed by the great lawyer Labeo, in that he followed it himself. It was originally connected with fideicommissa. Codicils presupposed a will appointing an heir, and might be made more than once, before or after the will, but should be confirmed expressly or impliedly by the will, subsequently or by anticipatory clause. Even if no will followed, codicils were held good, if there was evidence of testator's not having retracted his intention, testator in such a case being deemed to have addressed his request to the heir ab intestato. Only by way of trust could an heir be appointed in codicils. Codicils required five witnesses who should subscribe the written document. Testator's subscription was not necessary if he had written the codicils himself. Oral codicils are mentioned.

It became a practice for a testator in making a formal will to insert a clause declaring that if for any cause the will should be found invalid as a will, e.g. by the heir's non-acceptance, he desired that it should pass as codicils. Any person claiming under the will had to elect whether he claimed as under a will or under codicils, and to declare his intention at the first. Parents however and children within the fourth degree were allowed after suing on it as a will and being unsuccessful to apply as for a trust, for they are regarded as claiming what is due, whereas outsiders are trying to secure a gain (424).

A testator could appoint as many heirs as he pleased. If no shares are mentioned, all take equally. If some heirs accept and others do not, those who accept take the whole among them, the shares being in the original proportions to each other. A testator may also provide for the contingency of the heir or heirs named not accepting, or dying, or otherwise failing to take, and substitute another or others on this contingency. And he could also appoint a substitute for a child in his power becoming heir but dying before he came of age (puberty).

Slave Heirs on condition.

Slave heirs such a case the substitute becomes heir to the father, if the son does not become heir, and heir to the son, if the son has become heir but dies before puberty. Nor was a testator bound to appoint his son heir; he might disinherit him and yet appoint an heir to any property which came to his son from inheritance or gift from others. Justinian allowed a father to make a similar will for a son of full age who was demented.

If an heir is appointed on a condition, which at the time of testator's death it is impossible to fulfill, the condition goes for nothing and the appointment is absolute. But if the appointed heir is a son, the appointment is treated as bad, and the son being thus passed over, the will is null, and the son becomes heir on an intestacy. A condition which could be fulfilled but involved an illegal or immoral action was treated as impossible, Papinian laying down the principle that acts should be deemed impossible which do violence to dutiful affection, to fair repute, to respectful modesty, and generally which are opposed to good conduct.

A testator could make one of his slaves heir, if he also gave him his freedom. The slave then became heir of necessity, and this plan was sometimes adopted by a testator who was insolvent, in order that the disgrace of the estate being sold in bankruptcy might fall on him rather than on the testator. As compensation for this misfortune, the creditors were not allowed any right to be paid out of acquisitions made by him since testator's death.

Madmen, dumb, infants, posthumous, children under power, others' slaves, were capable of being heirs.

Inheritance

The position of an heir as a representative of the deceased was in many cases attended with much uncertainty and serious risk. His own estate was liable, if testator’s was not sufficient, to pay the creditors. If more than one person was appointed heir, each was liable in proportion to his share as specified by testator, or, if no share was named, then in equal shares. Testator might give away from his heirs such parts of his property as he chose, and these legacies, unlike the heir ship, carried no unexpressed burden with them: a legatee was a mere recipient of bounty, unless some condition was attached: he was a successor to testator’s rights in a particular thing only.

In such circumstances the appointed heir or heirs could not prudently accept the inheritance until after careful inquiry into the solvency of the estate, and even then the emergence of some previously undiscovered debts might upset all his calculations and ruin him. Further, besides testator’s debts, the heir is liable also to pay the legacies, and cannot prevent the loss to the estate of the slaves to whom testator may have given freedom by his will. Hence there might be further ground for hesitation in accepting the inheritance, and yet if no heir named accepts, the will becomes a dead letter, intestacy results, and the legacies and freedom fall to the ground.

Benefit of inventory. Lex Falcidia

The first-named difficulty was met very imperfectly by testator’s axing a period for the heir to make his decision (cretio); afterwards by statute (529) allowing an heir a year for deliberation without his losing the right, if he died before decision, of transmitting to his child or other successor his claim to the inheritance. But a still more effective remedy was enacted in 531. The heir was empowered, under suitable precautions for accuracy and after inviting the presence of creditors and legatees, to make an inventory and valuation of the assets of the deceased, and was then not bound to discharge debts and legacies beyond that total amount. He need not distribute the value of the estate pro rata to the claimants, but (unless fully aware of the insufficiency of the estate) could pay them in the order of their application. Then creditors who had any right or priority could proceed against any posterior to themselves who had received payment, or against holders of any property specifically pledged to them, and all creditors not satisfied could proceed against legatees who had been paid out of what turned out to be insufficient to cover the debts. This provision for limiting the heir's liability was called “the benefit of an inventory”, and heirs were thus no longer prevented from promptly accepting an inheritance which might turn out to be ruinous.

Further difficulty arose from legacies and freedoms left in the will. Testator’s estate might be able to meet the debts, but if there were many or heavy charges for bequests, there might be nothing left to make it worthwhile for the heir to accept the inheritance, and the will might therefore be nullified. Several attempts to meet this difficulty were made, but nothing effectual, until a Lex Falcidia was passed c. BC 40. This law, as interpreted by the lawyers, allowed the heir or heirs, if necessary, to reduce the amount of each legacy by so much as would leave the heir or heirs collectively one-fourth of the inheritance in value, the value being taken as at the time of death after deducting the value of slaves freed, the debts, and funeral expenses. If any legacies lapsed or other gain accrued to the heirs from the estate, this would be counted towards the Falcidian fourth (as it was called). By this arrangement the heir was sure of getting something, if he accepted a solvent inheritance. And as, if he refused, the will would drop and the legacies be lost, the legatees might be willing to accept possibly a further deduction to prevent intestacy. The application of the Falcidian law had been so thoroughly worked out by the lawyers that Justinian seems to have found little occasion for further enactment, except (535) to provide for the presence of the legatees or their agents at taking the inventory, with power to put the heir on his oath and to examine the slaves by torture for the purpose of getting full information. An heir neglecting to make an inventory was liable to creditors in full and could not use the Falcidian against the legatees. In 544 Justinian directed that the Falcidian should not apply to any immovable which testator had expressly desired should not be alienated from his family, otherwise it might have now to be sold. In 535 he had directed the Falcidian not to be used, if testator had expressly so willed.

Differences in the form of legacies led to many legal discussions which Justinian settled by treating all the forms as having the same effect, and giving the legatee both a direct claim to the thing bequeathed and also a personal claim on the heir to transfer it.

Trusts. Fideicommissa

TRUSTS (Fideicommissa) were another subject of complication. In or before the time of Augustus attempts were made by testators to leave their estates, or a legacy, to persons legally disqualified to take them (e.g. foreigners, Latins, unmarried persons, women in some cases). In a trust the heir was not directed to transfer the estate or legacies but simply requested to do so. There was no legal compulsion, the heir could fulfill the testator's desire or not as he chose ; if the property was transferred, it was as the act of the living heir and not therefore hampered by restrictions which affected gifts from the dead. Augustus, after much hesitation, treated such a desire as obligatory on the heir. Gradually such appeals to the honor and good faith of the heir became frequent and obtained full recognition and use. Advantage was eagerly taken of this untechnical language to get round many of the limitations of ordinary testamentary law; and if only an heir was duly appointed and entered on the inheritance, almost any dispositions, direct or contingent, present or future, might be made of the estate or part of it through him as a channel. Thus testator might secure the transfer of his estate or of a legacy in certain events from the person first made heir or legatee to another person. Or he might prevent his estate from being alienated from his family by requesting the successive holders to pass it on at their deaths to other members. And trusts might be imposed not on only named persons, but on the heir or heirs by intestacy, in case the will should not have regular validity. The Courts strove to give effect to the intentions of a testator however mildly or informally expressed, and to protect the trust against the heir. But the old difficulties then recurred: the heir might as easily be overburdened with trusts as with legacies, and if he did not think it worthwhile to enter on the inheritance, the will failed and the trust with it. It was thus found necessary (c. AD 70) to ensure that any heir burdened with a trust should get some advantage out of it; and accordingly he was empowered, if he entered and accepted the habilities, to retain one-fourth as by the Falcidian statute. Or if he suspected the estate to be insolvent, he might restore, as the phrase went, the inheritance altogether to the person favored by the trust and be free from both risk and advantage. Otherwise he might indeed take his fourth, but would, as partial heir, be liable for his share of the heir’s obligations. If however testator had directed him to retain a certain thing or a certain amount, which was equal in value at least to one fourth of the inheritance, and restore the rest, he was regarded as a legatee and not in any way liable to the creditors of deceased's estate. The risk and difficulty attending heirs did not arise where a trust was imposed on a legatee; he was liable for no more than he received; and as the validity of the will was not at stake, there was no necessity for the law to bribe him to accept by a share of the gift.

Justinian swept away a mass of distinctions and perplexities by putting trusts and legacies in other respects on the same footing, giving legacies the flexibility of trusts and fortifying trusts with the legal character and effective suits belonging to legacies. The phraseology was held to be unimportant, the intention was to prevail. Not only the trust but the will and legacies might now be written in Greek. When an oral trust was added to a written will, or the will itself was oral and contained a trust, and the regular number of witnesses had not been present on the occasion, Justinian enacted that if the heir denied the trust, the person claiming under it should, having first sworn to his own good faith, put the heir on his oath whether he had not heard the testator declare the trust: the heir's answer on oath was then decisive.

Children’s right

The Statute of the XII Tables authorized, according to tradition, full effect to be given to a Roman’s will for the disposal of his estate at his death. But a paterfamilias was expected to show in the will that he had duly considered the claims of his children in his power, and especially of his sons, they being his natural representatives. He must either appoint them heirs or expressly disinherit them, whether they were sons by birth or by adoption and even if posthumous. In default of such express notice, the will was set aside. Others in his family, whether daughters or grandchildren by his sons, had either to be appointed heirs or to be disinherited, but general terms were sufficient, e.g. “all others are disinherited”. If no notice was taken of them, the will was partly broken, for the daughters and grandchildren were admitted to share with the appointed heirs. Justinian in 531 abolished the distinction in these matters between sons and daughters and between those in testator’s power and those emancipated, and required express notice for all. The praetor had already in practice made the like amendments of the old civil law.

Plaint of unduteous will

But disinheritance, as well as disregard, of his children imperiled the will. As next heirs on an intestacy they could complain to the Court that the will failed in the due regard which a sane man would show to his children. This was the “plaint of an unduteous will”. If complainant established his case, the will with all its legacies and gifts of freedom drops and intestacy results. To establish his case he has to prove three things: that his conduct did not justify disinheritance, that he did not get under the will (e.g. by legacy) at least one-fourth of the share of the inheritance to which he would have been entitled under an intestacy, and that he had not in any way shown an acceptance of the will as valid. Parents could in the same way complain of their children's wills, and brothers and sisters of the testator could complain of his will, if the heirs appointed were disreputable. An illegitimate child could complain of his mother's will. If complainant had judgment given against him, he lost anything given him by the will. An analogous complaint was allowed against excessive donations which unfairly diminished a child's or parent's claim.

The value of the estate is taken for this purpose as for the Falcidian fourth. Justinian in 528 enacted that if complainants had been left something but not enough, the deficiency could be supplied without otherwise upsetting the will, provided testator had not justly charged them with ingratitude. In 536 Justinian raised the share of the inheritance which would exclude the plaint to one-third, if there were four or fewer children, and to one-half if there were more than four, i.e. to one-third or one-half of what would be claimant's share on an intestacy. Thus supposing two children, each would now be entitled to one-sixth (instead of one-eighth) of the estate: if three children, to one-ninth: if five, to one-tenth, and so on. Such share is called “statutory portion” (portio legitima) and could be made up either by an adequate share of the inheritance, or by legacy, or through a trust, or by gift intended for the purpose or by dowry or nuptial gift or purchasable office in the imperial service (militia), or a combination of such.

In 542 Justinian put the matter on a new footing by requiring children to be actually named as heirs in their father’s or mother’s or other ascendant’s will, unless the will alleged as the cause of disherison “ingratitude” on one at least of certain grounds, and the heirs prove the charge to be true. These grounds are: laying hands on parents, gravel insulting them, accusation of crimes (other than crimes against the Emperor or the State), associating with practisers of evil acts, attempting parent's life by poison or otherwise, lying with step-mother or father’s concubine, informing against parents to their serious cost, refusing, if a son, to be surety for an imprisoned parent, hindering his parents from making a will, associating with gladiators or actors against his parent's wish (unless his parent was such himself), refusing (if a daughter under twenty-five years of age) a marriage and dowry proposed by her parent and preferring a shameful life, neglecting to free a parent from captivity neglecting him if insane, refusing the Catholic faith. If ingratitude is charged and established, the will is good: if it is not established, the appointment of heirs made in the will is null, and all the children share the inheritance equally (subject to bringing any marriage settlement into hotchpotch), but legacies, trusts, freedoms, and guardianships remain valid (subject of course to the Falcidian deduction).

Justinian’s final legislation

Those who have no children are required to name their parents as heirs, unless on similar grounds (a reduced list is given) they can be justly omitted.

Having left to children (or parents) the due amount, a testator or testatrix can dispose of the residue at his or her pleasure, and a mother can even exclude the father from any management of the property left to the son, and, if the son is under age, appoint another manager. Justinian further enacted that none but orthodox should take any part of an inheritance, and that, if all entitled under a will or on intestacy were heterodox, in the case of clerics the Church, in the case of laymen the Crown, should inherit.

Members of a town council (decuriones) had since 535 been obliged if without any children, to leave three-fourths of their estate to the council: if they had children, legitimate or illegitimate, three-fourths or the whole according to circumstances were to go to such of them as were or became members or wives of members of the council. The law imposing disability for ingratitude applied here also.

A patron, if passed over in his freedman's will, could claim a third (free from legacies and trusts) if there were no children except such as were justly disinherited.

Succession to an intestate

In default of a will duly made and duly accepted by the heirs named or one of them the law provided heirs. The statutable heirs were testator's lawful children (sui heredes), and failing these (in old times), his agnates, failing these, the clan (gens). Gradually by the praetor's action cognates were also admitted, emancipated children and women other than sisters were no longer excluded, other disabilities were removed, and mother and children obtained by statute reciprocal rights of inheritance. The husband or wife claimed only after all blood-relations. This system is found in the Digest, Code, and Institutes. But in 543 and 548 Justinian superseded this system with its multifarious technicalities and ambiguities, and established (but for the orthodox only) a simpler order of succession, which is the more interesting because it largely supplied the frame for the English Statute of Distributions for intestate personalty.

Justinian disregarded distinctions of sex, of inclusion in or emancipation from the family, of agnates and cognates, and allowed in certain Succession to an intestate cases the share which would have fallen to a deceased person to be taken by his children collectively.

The first claim to succeed was for descendants. Children (and, in default of them, grandchildren) excluded all ascendants and collaterals and took equal shares, whether they sprang from the same marriage or more than one, and whether the marriage was formed by regular settlements or not. A deceased child's children took his or her share among them. Any child who had had from his or her parents dowry o nuptial gift had to bring it into account as part of his or her share. If a parent was alive and had a right of usufruct in the property or part of it, that right remained.

In the next class, that is, when there is no living descendant, come the father and mother and whole brothers and sisters of the deceased. In this case the father does not retain any right of usufruct he may have. If ascendants, not excluded by nearer ascendants, as well as brothers and sisters of the whole blood are found, they all share alike (per capita). If a brother or sister has predeceased the intestate, his or her children take collectively his or her share. Of ascendants the nearer is preferred. If there are only ascendants in the same degree, the estate is divided in halves between those on the father's side and those on the mother's.

If there are neither descendants nor ascendants, brothers and sisters are preferred, the whole blood excluding the half-blood, even though the latter be nearer in degree; therefore a nephew or niece of the whole blood excludes brothers and sisters of the half-blood. If there are no brothers or sisters or children of such, either of the whole blood, or half-blood, other relations succeed according to their degree, the nearer excluding the remoter, and those of the same degree sharing per capita.

Degrees of relationship were reckoned by the number births from the one person to the common ancestor added to the number from him to the other person. Thus a nephew or uncle is in the third degree of relationship to me, a second cousin is in the sixth, there being three births from my great-grandfather to me and three also from him to my second cousin.

After all blood-relations are exhausted, the husband or wife would presumably inherit as under the old law before Justinian. A poor widow without dowry was entitled to a fourth of her husband's estate, such fourth not exceeding 100 lbs. gold.

In the case of freedmen dying intestate, children and other descendants have first claim: if there are none, then the patron and his children (531).

If presbyters, deacons, monks, or nuns, die without making a will or leaving relatives, their goods pass to the church or monastery to which they are attached, unless they are freedmen or serfs or decurions, in which cases they pass to the patron or lord or council respectively (434).

In default of any legal claimant the Crown took a deceased's estate. 

Gifts

GIFTS were viewed by Roman Law with considerable suspicion, partly as often made on the spur of the moment without due reflection, partly as liable to exert an improper influence on the donee. In BC 204 a law (Lex Cincia) was passed which forbad all gifts exceeding a certain value, and required formal execution of gifts within that value, land to be mancipated, goods to be delivered, investments duly transferred, etc. Any gifts contravening the law were revocable by the donor during his life or by will. Gifts between near relatives, either by blood or marriage, were however excepted from the prohibition of the law.

Constantine appears to have repealed this law, and, leaving gifts under 300 solidi free, required all gifts above that amount to be described in a written document and recorded in court, and possession to be given publicly before witnesses. In 529-531 Justinian further facilitated gifts. A mere agreement was enough without any stipulation, the presence of witnesses ceased to be necessary, and the fact of the gift was alone required to be recorded in court and that only when its value exceeded 500 solidi. Delivery of the object given was, according to Justinian, not so much a confirmation as a necessary consequence of the gift, and was incumbent on the donor and his heirs, especially if it were a gift for charitable purposes. A gift duly made could be revoked by the donor only on clear proof of donee’s ingratitude, such as is shown by insults or attacks on the person or property of the donor, or on non-fulfillment of the conditions of the gift. Remuneration for a service rendered is not a gift within the meaning of these rules.

Gifts between husband and wife, with trifling exceptions, were absolutely void until AD 206, and the same rule applied to gifts to either from anyone under the same fatherly power, or from those in whose power they respectively were. But Caracalla by a decree of the Senate made them only voidable. If the donor predeceased the donee and did not repent of the gift, the donee became fully entitled. Gifts from either to increase the marriage settlement were allowable (see above).

Gifts mortis causa are only to take effect if the donor die before the donee, and are epigrammatically characterized as something which the donor prefers himself to enjoy rather than the donee, and the done rather than his heir. Such gifts were valid if made in presence of five witnesses orally or in writing, without any formality and with the effect of a legacy. The Lex Falcidia was applied to such gifts by Severus, if the heir had not had his due out of the rest of donor's estate. Gifts for charitable purposes (piae causae) were encouraged by Justinian who (c. 530 and 545) directed that the bishops, whether requested or not or even forbidden by testator, should see that any disposition by will for such purposes was duly carried into effect; the erection of a church should be completed within three years from the time when the inheritance or legacy was available, a house for strangers within a year unless one was hired until the house was built. If Charitable gifts (Piae causae) this was not done the bishops should take the matter in hand by appointing administrators, the heirs or legatees after such default not being allowed to interfere. The other charitable purposes specially mentioned are houses for aged persons or infants, orphanages, poor hospitals, and redemption of captives. The bishops are to inspect and if necessary discharge the administrators, bearing in mind the fear of the great God and the fearful day of eternal judgment. All profits, from the endowment belong from the first to the charity. Delay after admonition by the bishops made the heirs or legatees who were charged with the charity, liable for double the endowment. Annuities for clergy, monks, nuns, or other charitable bodies were not to be commuted for a single sum, lest it should be spent and the claims of the future be disregarded. The property of the testator was mortgaged for the annuity, unless an agreement was made in writing and duly recorded for setting aside an inalienable rent, larger than the annuity by at least one-fourth and not subject to heavy public dues. If the bishops were slack, possibly being corrupted by the heirs, or others, the metropolitan or archbishop was authorized to interfere, or any citizen might bring an action on the statute and demand the fulfillment of the charity.

If, in order to avoid the Falcidian Law, a testator leaving all his property for the redemption of captives, appoints captives to be his heirs, Justinian (531) directed such an appointment to be good and not void for uncertainty. The bishop and church-manager (oeconomus) of the testator's domicile had to take up the inheritance without any gain for themselves or the Church. Similar appointments of poor as heirs are valid, and fall, if left uncertain by testator, to the poor-house of the place, or if there are several such to the poorest, or if there be none such, the funds are to be distributed to poor beggars or others in the place.

PROPERTY.

The distinctions, which existed under the early Roman Law between land in Italy and land in the provinces with a form of conveyance (mancipatio) applicable to the former and not to the latter, disappeared before Justinian. Under him full ownership in all land, wherever situate, was conveyed by delivery actual or symbolical, in accordance with agreement, or at least with the transferor's intention to part with the property. And the same applied to all other corporal objects. Such a distinction between real and personal property, between Property. Servitudes. Emphyteusis land and chattels, as is found in English law, never existed with the Romans either as to transfer of ownership between the living or in succession to the dead. A distinction between movables and immovables is found in some matters, e.g. a title to the former being secured by acquisition on lawful grounds in good faith and uninterrupted possession by the holder and his predecessor in title for three years, whereas title to the latter required like acquisition and ten years' uninterrupted possession if claimant lived in the same province as the possessor, or twenty years when he lived in a different province. Further protection in some cases was given by an additional twenty years’ possession: and claims of the Church were by a law' of 535 good against one hundred years’ adverse possession; but in 541 the period was reduced to forty years.

Rights in things, as distinguished from ownership, were called SERVITUDES and were of two classes, according as the benefit of them was attached to persons or to immovables. The principal case of the former was usufruct, i.e. the right of use and enjoyment of profits, corresponding in its main incidents to life tenure. A man might have a usufruct in lands or houses or slaves or herds and even in consumables. Security had to be given to the owner for reasonable treatment and restoration in specie or equivalent at the expiry of the usufruct, which was lost not only by death but also by loss of civic status : it could not be transferred to another person. Minor rights of similar character are bare use and habitation.

The second class of servitudes corresponds to English “easements”. They were limited rights, appurtenant to certain praedia whether farms in the country or houses in towns. They secured to the occupier a limited control over neighboring houses or lands, which was necessary or at least suitable for the proper use of the dominant farm or house to which they were servient. Rights of way, of leading water, of pasturing cattle, are instances of country servitudes: rights of light and prospect and carrying off water are instances of urban servitudes. They were created usually by grant and were lost by non-user for a period of two years, which was raised by Justinian to ten or twenty years.

EMPHYTEUSIS, i.e. plantation. The practice grew up in imperial times of tracts of country, in many cases waste land, being held by tenants at a fixed rent (usually called canon, vectigal, pensio) on the terms that so long as the rent was duly paid the tenant should not be disturbed and could transmit the land to his heirs or sell or pledge it. The owners were usually the State or the Emperor (who had a private domain) or country towns in Italy or in the provinces. The lawyers doubted whether to treat this contract as sale or lease. Zeno, about 480, decreed that it should be regarded as distinct from both, and rest upon the written agreement between lord and tenant. By Justinian’s edicts the tenant had to pay without demand the public taxes and produce the receipts and pay the canon to the lord, who for three (or in Obligations the case of church land, two) years’ default could eject him. If rent and receipts were offered and not accepted, the tenant could seal them up and deposit them with the public authority and so be safe against eviction. If eventually the lord did not take them, the tenant could keep them, and pay no more rent till the landlord demanded it, and then be liable only for future rents. As regards improvements, in the absence of express stipulations, the tenant could not sell them to outsiders, until he had offered them to the lord at the price he could get from another, and two months had passed without the lord’s accepting. Nor could he alienate the farm to any but suitable persons, i.e. such as were allowed generally to hold on this tenure. The lord had to give admission to the transferee and certify it by letter in his own hand or by declaration before the governor or other public authority, a fee of two per cent, of the price being demandable for such consent.

Edicts of the Emperors were not uncommon, which granted secure possession on some such terms to anyone who cultivated waste lands and was thus in a position to pay the tax upon them. If the lands had been deserted by the owner, he could claim them back only on paying the cultivator his expenses after two years his right was gone.

OBLIGATIONS.

Besides rights which are good against all the world, such as ownership and other rights to particular things, rights good only against particular persons form a most important and perhaps the most notable part of Roman Law. Such are called obligations and arise either from contract or from delict (in English usually called "tort"). The detailed classification of these given in the Institutes is in many respects artificial and is not found in the other books of Justinian.

CONTRACTS are voluntary agreements between two or more persons. The Romans required for an agreement which should be enforceable by law some clear basis or ground of obligation. There must be either a transfer of something from one of the parties to the other, or a strict form of words accompanying the agreement, or there must be agreed services of one party, usually of both. As the Romans said, the contract must be formed aut re aut verbis aut consensu. Otherwise it was a bare agreement (nudum pactum), and, though available for defense against a claim, it was not enforceable by suit, except so far as it set forth the details of one of the regular contracts and was concluded in close connection therewith, or it reaffirmed, by a definite engagement to pay, an already existing debt of promiser’s or another (pecunia constituta).

Verbal obligations. Mutuum

It may be convenient to treat first of the most general form. The contract made verbis was called “stipulation” and was made by oral procedure between the parties present at the same place. The matter and details of the agreement being stated, the party intending to acquire right said, according to the original practice, Spondesne? “Do you promise?” to which the other replied, Spondeo, “I promise”. But in later time any other suitable words might be used, e.g. Dabisne? “Will you give?” Dabo, “I will give”. The essential was that the answer should not add to or vary the scope and conditions contained in the questions: the agreement had to be precise. A record in writing was very usual, but not necessary, provided the stipulation could be proved by witnesses. The drawback in stipulation, viz., that it required the stipulator and promiser to meet, was to some extent removed by the use of slaves or children, for they could stipulate (though not promise) on behalf of their master or father, and the fact that they were under his power made the contract at once his contract. A free person sui juris could only stipulate for himself, and thus could not act as a mere channel pipe for another. Stipulation however had this great convenience that it was applicable to any kind of agreement, and at once elevated a mere pactum into a strict, valid contract. The pactum was usually put in writing and the fact of its having been confirmed by a stipulation was added to the record. If a promise was stated, the law presumed it to be in reply to an appropriate question: where consent was recorded, no special form of words was necessary (472). A law of Justinian (531) enacted that such record should not be disputable, whether the stipulation was effected through a slave or by both parties themselves: if it stated that the slave had done it, he should be deemed to have belonged to the party and to have been present : if it stated the latter, the parties should be deemed to have been present in person, unless it was proved by the very clearest evidence (Justinian delights in superlatives) that one of the parties was not in the town on the day named.

A very important contract, resting on a transfer of ownership, was MUTUUM, i.e. loan of money or of corn or any other matters (often called "fungibles") in which quantity and not identity is regarded, one sum of money being as good as any other equal sum. The lender was entitled to recover the same quantity at the agreed time, but had no implied right to interest unless the debtor made delay. A loan was therefore usually accompanied by a stipulation for interest. Justinian however in 536 enacted that a mere agreement was enough to secure interest to bankers. If no day for payment of a loan was named, the debtor might await creditor's application. Part payment could not be refused. Justinian (531) gave to a debtor on loan as in other cases a right to set off against a creditor's claim any debt clearly due from him.

The rate of INTEREST was limited by law. In Cicero's time and afterwards it was not to exceed 12 per cent, per annum. Justinian forbad illustres to ask more than 4 per cent, per annum. Traders were limited to 8 per cent.; other persons to 6 per cent. But interest on bottomry might go up to 12 or 12’5 per cent. Any excess paid was to be reckoned against the principal debt. Compound interest was forbidden altogether by Justinian, and in connection with this the conversion of unpaid interest into principal was forbidden. And even simple interest ceased so soon as the amount paid equaled the amount of the principal (so Justinian 535). In loans of corn, wine, oil, etc., to farmers, Constantine allowed 50 per cent, interest; Justinian only 12’5 per cent., and for money lent to farmers only 4’6. He also forbad the land to be pledged to the lender. In action on a judgment four months were allowed for payment; after that simple interest at 12 per cent, was allowed.

Any son under his father’s power was by a senate’s decree of the Early Empire disabled from borrowing money. Repayment of any money so borrowed could not be enforced against either his father or his surety or against himself (if he became independent), unless he had recognized the debt by part payment. But the decree did not apply, where the creditor had no ground for knowing the debtor to be under power, or where a daughter required a dowry, or where a student was away from home and borrowed to cover usual or necessary expenses. The fact that the borrower was grown up and even perhaps in high public office did not prevent the decree's applying.

Other contracts made re, involved a transference not of property but of possession. Such are COMMODATUM, gratuitous loan of something which is to be returned in specie, and DEPOSITUM, transfer of something for safekeeping and return on demand or according to agreement. A third contract under this head was pignus, which calls for fuller notice.

SECURITY FOR DEBT, etc. In order to secure a person's performance of an bligation, two means are commonly in use: (1) giving the promise hold over some property of the promiser’s; (2) getting a confirmatory promise from another person: in other words, pledge and surety.

The Romans had three forms of PLEDGE : fiducia, pignus, hypotheca. Fiducia was an old form by which the creditor was made owner (for the time) of the property: by pignus he is made possessor; by hypotheca he is given simply a power of sale in case of default. Fiducia went out of use about the fourth century; it was analogous to and probably the origin of, our mortgage, the property being duly conveyed to the promiser, who could, subject to account, take the profits and on default of payment as agreed, could sell and thus reimburse himself. A power of sale was usually made by agreement to accompany pignus and hypotheca. In pignus it formed an additional mode of compulsion on the debtor besides the temporary deprivation of the use of his property: in hypotheca it constituted the essence of the security. Pignus was a very old form and always continued in use: hypotheca was no doubt borrowed from the Greeks, and we first hear of it in Cicero’s time. It had the great convenience for the debtor that he could remain in possession of the object pledged, and as no physical transfer was required, it could be applied to all kinds of property, movable and immovable, near or distant, specific or general, corporal or incoporeal (such as investments). And the creditor was not responsible, as he was in the case of pignus, for the care and safekeeping of the object. In other respects the law which applied to the one applied to the other. A written contract was not necessary, if the contract could be proved otherwise.

Tacit pledges were recognised in some cases. Thus the law treated as pledged to the lessor for the rent, without any distinct agreement, whatever was brought into a house by the lessee with the intention of its staying there. A lodger's things were deemed to be pledged only for his own rent. In farms the fruits were held to be pledged, but not other things except by agreement. One who supplied money for reconstructing a house in Rome had the house thereby pledged to him; and for taxes or any debt to the Crown (fiscus) a person's whole property was so treated: guardians’ and curators’ property is in the same position as security to their wards; husband's as security to the wife for her dowry (531); and what an heir gets from testator is security to the legatees and trust-heirs; what a fiduciary legatee gets is security to the legatee by trust.

Any clause in a pledge-agreement which provided for forfeiture of the pledged property in default of due payment of the loan (Lex commissoria) was forbidden by Constantine. But the right of sale for non-payment of was, in the absence of contrary agreement, deemed inherent in pledge. It had however to be exercised with due formality after public notice and the lapse of two years from the time when formal application had been made to the debtor or from the judgment of the Court. Then no sale was effected, the creditor could after further time and fresh notice petition the Emperor for permission to retain the thing as his own. If the value of the pledge did not equal the amount of the debt, the creditor could proceed against the debtor for the balance; if its value was more, the debtor was entitled to the surplus. Where the creditor was allowed to retain the thing as his own, Justinian allowed a still further period of two years in which the debtor could claim it back on payment of the debt and all creditor's expenses (530)

SURETIES (fidejussores) were frequently given and were applicable to any contract, formal or informal, and even to enforce a merely natural obligation, as a debt due from a slave to his master. Sureties were bound by stipulation. If there were more than one, each was liable for the whole for which the debtor was liable, but Hadrian decided that a surety making application for the concession should be sued only for his share, provided another surety was solvent. The creditor had the option of suing the debtor or one of the sureties, and, if not satisfied, then the other; but this was modified by Justinian (535), who enacted that the debtor should be first sued if he were there, and that if he were not, time should be given to the sureties to fetch him; if he could not be produced, then the sureties might be sued, and after that, recourse should be had to the debtor’s property. If sureties paid, they had a claim on the debtor for reimbursement and for the transfer to them of any pledge he had given, but could not retain the pledge if debtor offered them the amount of debt and interest. A surety’s obligation passed to his heirs.

If a woman gave a guaranty for another person, even for her husband or son or father, so as to make her liable for them, the obligation was invalid. But she was not protected, if the obligation was really for herself, or if she had deceived the creditor or received compensation for her guaranty, or had after two years’ interval given a bond or pledge or surety for it. This rule, which dates from the Early Empire (senates consultum Velleianum), was based on the theory that a woman might easily be persuaded to give a promise, when she would not make present sacrifice. Accordingly she was not prohibited from making gifts. Justinian confirmed and amended the law in 530 by requiring for any valid guaranty by a woman a public document with three witnesses, and in 556 enacted that no woman be put in prison for debt.

The class of contracts which arise CONSENSU, i.e. by the agreement of the parties, without special formalities or transfer of a thing from one to the other, is constituted by Purchase and sale, Hire and lease, Partnership, Mandate.

 

PURCHASE AND SALE (one thing under two names) is complete when the parties have agreed on the object and the price, or at least agreed to the mode of fixing the price. The agreement may be oral or in writing: if the latter, it must be written or subscribed by the parties and till that is done, neither party is bound. Whether the contract is oral or written, the intended buyer, if he does not buy (in the absence of any special agreement on the point), forfeits any earnest money he may have given, and the vendor, if he refuses to complete, has to repay the earnest twofold. (So Justinian 528.) The vendor is bound by the completed contract to warrant to the purchaser quiet and lawful possession but is not bound to make him owner. He must, however, unless otherwise agreed, deliver the thing to the purchaser, where it is, and thereby transfer all his own right. From the date of completion of the contract, though delivery has not taken place, the risk and gain pass to the purchaser, but he is not owner until he has paid the price and got delivery, and then only if the vendor was owner, or possession for the due time has perfected the purchaser's title. The vendor is liable to the purchaser on his covenants (e.g. in case of buyer's eviction, for double the value), and also for any serious defects which he has not declared and of which the purchaser was reasonably ignorant. In case of sale of an immovable Diocletian admitted rescission when the price was much under the value (285) . It was probably Justinian who gave generally a claim for rescission whenever the price was less than half the real value. This ground of rescission was later called laesio enormis, and many attempts were made to extend its application.

The contract of LEASE AND HIRE is similar in many respects to that of purchase and sale. But the lessee, if evicted, has only his claim against the lessor on his covenant to guaranty quiet possession, and has no hold over the land, if sold by his lessor to another. In letting a farm the lessor was bound to put it in good repair and supply necessary stabling and plant: and, if landslip or earthquake or an army of locusts or other irresistible force does damage, the lessor has to remit proportionably the current rent. The like rules held of letting houses, except that plant was not provided. The lessee had a good claim on the lessor for any necessary or useful additions or improvements, and usually could recover his expenditure or remove them. He was bound to maintain the leased property whether farm or house, and to treat it in a proper manner, cultivating the farm in the usual way. He could underlet within the limits of his term; and the law of the fifth century allowed either lessor or lessee to throw up the contract within the first year, without any penalty, unless such had been agreed on. The usual term of lease was five years, at least in Italy and Africa; in Egypt one or three years.

Contracts for building a house, carriage of goods, training of a slave, etc., come under this head, where the locator supplied the site or other material. The conductor, who performed the service, was liable for negligence.

PARTNERSHIP is another contract founded on simple agreement, but also characterized, like the two last mentioned, by reciprocal services. It was in fact an agreement between two or more persons to carry on some business together for common account. The contributions of the members and their shares in the result were settled by agreement, and they were accountable to each other for gains and losses. Like other contracts it concerned only the partners: outsiders need know nothing of it; in any business with them only the acting partner or partners were responsible. A partner’s heir did not become a partner, except by a new contract with common consent. A partnership came to an end by the death of a partner, or his retirement after due notice, or when the business or time agreed came to an end.

There was no free development of association into larger companies, without the express approval of the State. A company continues to exist irrespectively of the change or decease of the members, regulates its own membership and proceedings, has a common chest and a common representative, holds, acquires, and alienates its property as an individual. In Rome such corporate character and rights were only gradually granted and recognized, each particular privilege being conceded to this or that institution or class of institutions as occasion required.

Towns and other civil communities had common property and a Companies. Mandate common chest, could manumit their slaves and take legacies and inheritances. They usually acted through a manager; their resolutions required a majority of the quorum, which was two-thirds of the whole number of councilors (decuriones) . They are said corpus habere, “to be a body corporate”.

Other associations for burials or for religious or charitable purposes, often combined with social festivities, were allowed to exist with statutes of their own making, if not contrary to the general law. But without express permission they could not have full corporate rights. Guilds or unions of the members of a trade, as bakers, are found with various privileges. Such authorized societies or clubs were often called collegia or sodalitates. They were modelled more or less on civic corporations: Marcus Aurelius first granted them permission to manumit there slaves.

The large companies for farming the taxes (publicani) or working gold or silver mines had the rights of a corporation, but probably not so far as to exclude individual liability for the debts, if the common chest did not suffice.

MANDATE differs from the three other contracts, which are based on simple agreement. There are no reciprocal services and no remuneration or common profits. It is gratuitous agency: not the agency of a paid man of business; that would come under the head of hiring. Nor is it like the agency of a slave; that is the use of a chattel by its owner. It is the agency of a friend whose good faith, as well as his credit, is at stake in the matter. The mandatee is liable to the mandator for due performance of the commission he had undertaken, and the mandatory is liable to him only for the reimbursement of his expenses in the conduct of the matter.

Similar agency but unauthorized, without any contract, was not uncommon at Rome, when a friend took it upon himself to manage some business for another in the latter's absence and thereby saved him from some loss or even gained him some advantage. The swift process of the law courts in early days seems to have produced and justified friendly interference by third parties, which required and received legal recognition. The person whose affairs had thus been handled had a claim upon the interferer for anything thereby gained, and for compensation for any loss occasioned by such perhaps really ill-advised action or for negligence in the conduct of the business, and was liable to reimburse him for expenses, and relieve him of other burdens he might have incurred on the absentee's behalf. Such actions were said to be negotiorum gestorum, “for business done”.

But in Rome the usual agent was a slave; for anything acquired by him was thereby ipso facto acquired for his master, and for any debt incurred by him his master was liable up to the amount of his slave’s peculium; and if the business in question was really for the master’s account or done on his order the master was liable in full. And though in general when the master was sued on account of his slave (de peculio) he had a right to deduct from the peculium the amount of any debt due to himself, he had no such right when he was cognizant of the slave's action and had not forbidden it; he could then only claim rateably with other creditors. A son or daughter under power was for these purposes in the same position as a slave.

It was rarely that the Romans allowed a third party who was a freeman and independent to be privy to a contract. The freeman acquired and became liable for himself, and the principals to the contract in case of such an agent had to obtain transfers from him of the rights acquired: they could not themselves sue or be sued on the agent's contract. But two cases were regarded by Roman Law as exceptional. When a person provided a ship and appointed a skipper in charge of it, he was held liable in full for the skipper's contracts in connection with it, if the person contracting chose to sue him instead of the skipper. And the like liability was enforced, if a man had taken a shop and appointed a manager over it. In both cases the rule held, whether the person appointing or appointed was man or woman, slave or free, of age or under age. The restriction of the owner's liability to the amount of the slave's peculium disappeared, and the privity of contract was recognized against the appointer, although the skipper or manager who actually made the contract was a free person acting as mediary. But this recognition was one-sided: the principal did not acquire the right of suing on the skipper's or manager's contract, if the latter were free; he must, usually at least, obtain a transfer of the right of suit from him, the transfer being enforced by suing the skipper or manager as an employee or mandatee.

Agency. Equitable interpretation

At one time there was a marked difference between the consensual contract along with most of those arising re on the one hand, and on the other hand stipulation and cash-loan (mutuum). In actions to enforce the former the judge had a large discretion, and the standard by which he had to guide his decisions or findings was what was fairly to be expected from business men dealing with one another in good faith. In actions to enforce the latter the terms of the bargain were to be observed strictly: the contract was regulated by the words used: the loan was to be repaid punctually in full. Gradually these latter contracts came to be treated similarly to the former so far as their nature permitted, and by Justinian's time the prevalence of equity was assured: the intention of the parties was the universal rule for interpretation of all contracts, and reasonable allowance was made for accidental difficulties in their execution, when there was no evidence of fraud.

Two modes were adopted in classical times for dealing with the engagements or position of parties where the terms and characteristics of a proper contract in due form were not found. One was to treat the matter on the analogy of some contract the incidents of which it appeared to resemble. Thus money paid on the supposition of a debt, which however proved not to have existed, was recoverable, as if it had been a loan. Money or anything transferred to another in view of some event which did not take place was recoverable, as if paid on a conditional contract, the condition of which had not been fulfilled.

Another mode was for the complainant, instead of pleading a contract, to set forth the facts of the case and invite judgment on the defendant according to the judge's view of what the equity of the case required. Thus barter was not within the legal conception of purchase and sale, for that must always imply a price in money, but it had all other characteristics of a valid contract and was enforced accordingly on a statement of the facts. If a work had to be executed for payment but the amount of payment was left to be settled afterwards, this was not ordinary hire, which is for a definite remuneration, but might well be enforced on reasonable terms.

TRANSFER OF OBLIGATIONS.

Before leaving contracts, which are the largest and most important branch of obligations, it is as well to point out that the transfer of an obligation, whether an active obligation, i.e. the right to demand, or a passive obligation, i.e. the duty to pay or perform, is attended with difficulties not found in the transfer of a physical object, whether land or chattels. An obligation being a relation of two parties with one another only, it seems contrary to its nature for A, who has a claim on B, to insist on payment from C instead; or for D to claim for himself B's payment due to A. With the consent of all parties, the substitution is possible and reasonable, but the arrangement for transfer must be such as to secure D in the payment by B, and to release B from the payment to A. Two methods were in use. At A’s bidding D stipulates from B for the debt due to A: B is thereby freed from the debt due to A and becomes bound to D. This was called by the Romans a novation, i.e. a renewal of the old debt in another form. Similarly A would stipulate from C for the debt owed by B to A. This being expressly in lieu of the former debt frees B and binds C. These transfers being made by stipulation require the parties to meet. The other method was for A to appoint D to collect the debt from B and keep the proceeds, the suit being carried on in A's name, and the form of the judgment naming D as the person entitled to receive instead of A. Similarly in the other case C would make A his representative to get in B's debt. In practice no doubt matters would rarely come to an actual suit. The method by representation was till 1873 familiar enough in England, a debt being a chose in action and recoverable by transferee only by a suit in the name of the transferor.

Gradually from about the third century it became allowable for the agent in such cases to bring an analogous action in his own name.

Delicts. Lex Aquilia

The other important class of obligations besides contracts are delicts or torts. They arise from acts which without legal justification injure another's person or family or property or reputation. Such acts, if regarded as likely to be injurious not only to the individual but to the community, become subjects for criminal law: if not so regarded, are subject for private prosecution and compensation. In many cases the injured person had a choice of proceeding against the offender criminally or for private compensation. The tendency in imperial times was to treat criminally the graver cases, especially when accompanied with violence or sacrilege.

The principal classes of delicts were: theft, wrongful damage, and insult (injuriarum). Theft is taking or handling with a gainful intention any movable belonging to another without the owner's consent actual or honestly presumed. Usually the theft is secret: if done with violence it is treated with greater severity as robbery (rapina). Any use of another's thing other than he has authorized comes under this tort, and not only the thief but anyone giving aid or counsel for a theft, is liable for the same. Not only the owner, but anyone responsible for safekeeping can sue as well as the owner. The penalty was ordinarily twofold the value of the thing stolen, but, if the thief was caught on the spot, fourfold the value. If the offence was committed by a slave the master could avoid the penalty by surrendering the slave to the plaintiff. In early days such a surrender of a son or daughter in their father's power was possible, but probably rare. Robbery was subjected to a penalty of fourfold the value. Cattle-driving was usually punished criminally. Theft from a man by a son or slave under his power was a matter of domestic discipline, not of legal process. Theft by a wife was treated as theft, but the name of the suit was softened into an action for making away with things (rerum amotarum).

Wrongful damage rested even till Justinian’s time on a statute (Lex Aquilia) of early republican date which received characteristic treatment from lawyers' interpretations extending and narrowing its scope. It embraced damage done whether intentionally or accidentally to any slave or animal belonging to another, or indeed to anything, crops, wine, nets, dress, etc., belonging to another, provided it was done by direct physical touch, not in self-defense nor under irresistible force. If the damage was caused by defendant but not by corporal touch, the Romans resorted to the device of allowing an analogous action by setting forth the facts of the case, or by express statement of the analogy. The penalty was in case of death assessed at the highest value which the slave or animal had within a year preceding the death; in case of damage only, the value to the plaintiff within the preceding thirty days. But condemnations under this head of wrongful damage did not involve the infamy which belonged to theft; that was purposed, this was often the result of mere misfortune. Surrender of a slave who had caused the damage was allowed to free the defendant as in the case of theft. Damage done to a freeman's own body was hardly within the words of the statute; and compensation could be obtained only by an analogous action.

The third class was confined to cases of malicious insult but had a very wide range. It included blows or any violence to plaintiff or his family, abusive language, libelous or scandalous words, indecent soliciting, interference with his public or private rights. Not only the actual perpetrator of the insult, but anyone who procured its doing, was liable. The character of the insult was differently estimated according to the rank of the person insulted and the circumstances of the action. The damages on conviction were, under a law of Sulla which in principle remained till Justinian, assessable by plaintiff subject to the check of the judge. Many of these acts, especially when of an aggravated character, were punished criminally, even by banishment or death.

A fourth class of torts (sometimes called quasi ex delicto) makes defendant liable not for his own act but for injury caused by anything being thrown or falling from a room occupied by him near a right of way, or for theft or injury perpetrated in a shop or tavern or stable under his control. The penalty is put at double the estimated damage, except that, if a freeman is hurt, no estimate of damage to a free body was held possible, and the penalty was therefore the amount of medical expenses and loss of work: if he was killed, it was put at fifty guineas (aurei).

PROCEDURE.

In classical times the parties after summons approached the praetor and asked for the appointment of a judex to hear and decide the suit. Instructions proposed by plaintiff and sometimes modified by the praetor at the request of the defendant were agreed to by the parties, who then joined issue, and the formula containing these instructions was sent to the judex named. The judex heard and decided the case, and, if he found against the defendant, condemned him in a certain sum as damages. But in some few matters the praetor, instead of appointing a judex in the ordinary course, kept the whole matter in his own hands. This extraordinary procedure became in Diocletian’s time the ordinary procedure, and the praefect or the governor of a province or the judex appointed by them heard the case from the first without any special instructions. In the fourth century the case was initiated by a formal notice (litis denuntiatio) to the defendant; but in Justinian's time by plaintiff's presenting to the Court a petition (libellus) containing his claims on the defendant, who was then summoned by the judge to answer it. If he did not appear, the judex after further summons examined and decided the matter in his absence.

Either party before joinder of issue had the right of refusing the judex proposed by the governor, etc. Three days were then allowed them to choose an arbitrator, and in case of disagreement the governor or other authority appointed. Jews' suits whether relating to their own superstition or not could be heard by the ordinary tribunals, but by consent they might have the case heard by an arbitrator who was a Jew.

Soldiers and officials were not exempt from being sued before the civil tribunals on ordinary matters. Constantine in a constitution of 333 (if genuine) gave either party the right even against the will of the other to have the case transferred to the bishop at any stage before final judgment. But Arcadius in 398 repealed this and required the consent of both parties, so that the bishop was only an arbitrator and his judgment was executed by the ordinary lay officers.

The judices were to act on the general law, said Justinian (541), and during their task were not to expect or accept any special instruction for deciding the case. If any application were made to the Emperor, he would decide the matter himself and not refer it to any other judex. A judex was authorized, if in doubt about the interpretation of a law, to apply to the Emperor.

No suits excepting those touching the Crown (fiscus), or public trials were to be extended beyond three years from the commencement of the hearing. When only six months remained of this period, the judex was to summon either party, if absent, three times at intervals of ten days, and then to examine and decide the matter, the costs being thrown on the absentee (531).

The courts were open all the year, with the exception of harvest and wine-gathering (sometimes defined as 24 June to 1 August, and 23 August to 15 October), also seven days before and after Easter, also Sundays, Kalends of January, birthdays of Rome and Constantinople, birthday and accession of Emperor, Christmas, Epiphany, and time of commemoration of the “Apostolical passion” (Pentecost). Neither law proceedings nor theatrical shows were allowed on Sundays; but Constantine exempted farmers from observance of Sundays. No criminal trials were held in Lent.

Private suits and questions of freedom were to be tried at defendant’s place of residence, or of his residence at the date of the contract. So Diocletian, (293) following the old rule, actor rei forum sequatur. Suits in rem, or for a fideicommissum, or respecting possession should be brought where the thing or inheritance is.

Justin (526) forbade any interference with a burial on the ground of a debt due from deceased; and invalidated all payments, pledges, and sureties obtained in these circumstances. Justinian (542) forbade anyone within nine days of a person’s death to sue or otherwise molest any of his relatives. Any promise or security obtained during this period was invalid.

PROOF.

The person who puts forth a claim or plea has to prove it. The possessor has not to prove his right to possess, but to await proof to the contrary. Thus one who is possessed of freedom can await proof by a claimant of his being his slave. But one who has forcibly carried off or imprisoned another, whom he claims to be his slave, cannot on the ground of this forcible possession throw the burden of proof on his opponent. To prove a purchase it is not enough to produce a document describing the fact, but. there must be shown by witnesses the fact of purchase, the price paid, and possession of the object formally given.

To prove relationship, the fact of birth and the parents’ marriage, or adoption by them must be shown: letters between the parties or application for an arbiter to divide the family inheritance are not sufficient.

Persons who have admitted a debt in writing cannot prove payment without a written receipt, unless they produce five unimpeachable witnesses to the payment in their presence. But as a general rule they are not bound by a statement in the document of debt of their having originally received the money, wholly or partly, if they can prove within 30 days after the production of the document that the stated money had not been paid them.

All witnesses must be sworn. One suspected of giving false evidence can be put to the question at once, and, if convicted, can be subjected by the judge hearing the case to the penalty to which the defendant was liable against whom he had given the false evidence. A single witness without other evidence proves nothing, and Constantine enacted (334) that he should not be heard in any suit. All persons (enacted Justinian 527) with like exceptions as in criminal cases are compellable to give evidence. Slaves were sometimes examined under torture.

No judge was to commence the hearing until he had the Scriptures placed before the tribunal, and they were to remain there until judgment. All advocates had to take an oath, touching the Gospels, that they would do what they could for their clients in truth and justice, and resign their case if they found it dishonest (530). Both plaintiff and defendant had to take an oath to their belief in the goodness of their cause (531).

Justinian among other rules respecting documents enacted these: All persons are compellable to produce documents who are compellable to give evidence. The production is to be in the court, at the expense of the person requiring it. Anyone declining to produce on the ground that he will be injured thereby, must, if this is contested by the other party, make oath of his belief and also that it is not any bribe or fear or favor of someone else that deters him.

All documents were to be headed with year of Emperor, consul, indiction, month and day.

Contracts of sale, exchange, and gift (if not such as must be officially recorded), of earnest and compromise and any others arranged to be in writing, were not valid, unless written out fair and subscribed by the parties; if written by a notary, he must complete and sign them and be present himself at their execution by the parties (528 and 536). In 538 it was directed that contracts of loan or deposit or other should, even when written, have at least three witnesses to their completion, and when produced for proof be confirmed by oath of the producer.

In lieu of proof by witnesses or documents, oaths were sometimes resorted to. The judge might propose to one of the parties to support his allegation by an oath, and, if the oath was taken, the judge would naturally decide that point in his favor. But either party might challenge the other, either before trial or in the course of it, to swear to some particular matter, and if the party so challenged swore in the terms of the challenge, the matter would be held to be decided as much as by a judgment, and in any further dispute between the parties or their sureties or persons joined with them the oath if relevant could be pleaded or acted on as decisive. And the same result ensues, if the party to whom the oath is tendered declares his readiness to swear and the other then waives the demand. The party called on to swear may instead of taking the oath retort the demand, and the other party is then in the same position as if the oath had been originally tendered to him. In earlier times probably such tender of oath could be declined in most cases without prejudice, but Justinian apparently makes no restriction, and a defendant for instance to an action for money lent, if plaintiff tendered him an oath whether it was due or not, had no choice except either to take the oath or admit the debt, unless indeed he retorted the tender. Plaintiff, if he accepted the retort, would have first to swear to his own good faith and then could establish his claim by the oath. In all cases the oath, if it is to carry the consequence stated, must not be volunteered, but taken in reply to the challenge and must conform precisely to the terms.

The requirement of an oath was also resorted to in some cases by the judge in order to compel obedience, wrongly refused, to an interlocutory decision. The plaintiff was allowed to fix the damages himself, by an oath of the amount due. This was called in litem jurare, “to swear to the disputed aim”.

CRIMINAL LAW.

The criminal law was put in force either on the magistrate’s own initiative or by private persons. Women and soldiers were not admitted as accusers, unless the crime was against themselves, or their near relatives. Anyone desiring to bring an accusation had to specify the date and place of the crime and to give a surety for due prosecution. Laws of Constantine, and Arcadius, retained by Justinian, directed that any servant (familiaris) or slave bringing an accusation against his master should be at once put to death before any inquiry into the case or production of witnesses. And the like was enacted (423) in the case of a freedman accusing his patron. Excepted from this rule were cases of adultery, high treason, and fraud in the tax-return (census). An accuser not proving his case was (373) made subject to the penalty belonging to the crime charged. A like rule of talion was prescribed in some other cases.

A law of 320 prescribed that in all cases, whether a private person or an official was prosecuting, the trial should take place immediately. If accuser were not present or the accused’s accomplices were required, they should be sent for at once, and meantime any chains that were put on the accused should be long ones, not close-fitting handcuffs; nor should he be confined in the inmost and darkest prison but enjoy light, and at night, when the guard is doubled, be allowed in the vestibules and more healthy parts of the prison. The judge should take care that the accusers do not bribe the gaolers to keep the accused back from a hearing and starve them: if they do, the officers should be capitally punished. The sexes were to be kept apart (340). Justinian in 529 forbade anyone being imprisoned without an order from the higher magistrates, and directed the bishops to examine once a week into the cause of imprisonment, and to ascertain whether the prisoners were slave or free and whether imprisoned for debt or crime. Debtors were to be let out on bail: if they had no bail they were to have a hearing and be let out on oath, their property being forfeited if they fled. Freemen charged with lesser crimes to be let out on bail, but if the charge were capital and no bail was allowed, imprisonment was not to extend beyond one year. Slaves to be tried within 20 days. The bishops, as ordered by Honorius, had to report any remissness in the magistrates. Private prisons were forbidden altogether by Justinian (529).

The accused was examined by the judge. If a slave was accused, torture was sometimes applied to elicit a confession. In republican times a freeman was not liable to this. Under the Empire the rule was broken, but persons of high rank were exempt, except where the charge was treason (majestas) or magical arts.

The judge could compel anyone to give evidence except bishops and high officers and old and sick persons or soldiers or attendants on magistrates at a distance. A private accuser had similar powers, but for a limited number. Defendant could call witnesses, but had no power of compulsion.

Parents and children were not admissible as witnesses against one another, nor were other near relatives; nor freedmen against their patron. Slaves were not admissible to give evidence against their master, except in cases of treason, adultery or fraud on the revenue.

As a rule slaves were used as witnesses only in default of others. They were examined, and if their statements were not satisfactory, torture was applied.

If after trial the accused was acquitted, the old practice (retained by Justinian) was for the judge to examine into the conduct of the accuser, and, if he found no reasonable ground for the accusation, to hold him guilty of calumny. For collusion with the accused he might be held guilty of prevarication. Nor was an accuser allowed to withdraw from an accusation once undertaken, especially if the accused had been long in prison or had been subjected to blows or chains. But if the accused consented or had not been harshly treated, withdrawal (abolitio) was generally permitted, except on charges of treason or other grave crimes.

An accuser, once desisting, could not take the charge up again. A general indulgence, by which all persons accused (with certain exceptions) were released, was decreed by Constantine in 322 on account of the birth of a son to Crispus. In later years the like indulgence was granted at Easter, and apparently in 385 it was made a standing rule.

Persons charged with poisoning, murder, adultery, evil magic, sacrilege, or treason, and sometimes other offenders, were excepted.

Most of the legislation on crime goes back to the Republic or to Augustus. The law of treason (majestas) is based on a law of the latter. Treason consists in doing anything against the Roman people and includes all assistance to the enemy, attacks on Roman magistrates, intentional injury to the Emperor's statues, collecting for seditious purposes armed men in the city, refusal to leave a province on the appointment of a successor, making false entries in public documents, etc. Abuse or other insult to the Emperor required careful inquiry as to the motive and sanity of the accused; punishment was to await a report to the Emperor. If an accuser failed to establish his charge, he was liable to be examined by torture himself, notwithstanding any privilege from military service, birth, or dignity. The punishment for treason was death and forfeiture of property. Conspiracy to compass the death of the Emperor's councilors subjected even the sons of the criminal to incapacity for succession to any inheritance or legacy, and to be reduced to such want that “death would be a comfo

By a law of Sulla, maintained and developed by the Emperors, murder, magical arts, nocturnal incantations or rites to exert unholy influence over persons, desertion to the enemy, stirring up seditions or tumult, bribing witnesses or judges to act falsely, were punished with death in the case of all but the privileged class. So also consulting soothsayers (haruspices) or mathematicians respecting the health of the Emperor, introduction of new sects or unknown religions to excite men’s minds, forgery or suppression of wills, forgery of seals, coining, melting or mutilating coinage were sometimes punished capitally. Coining was regarded as treason (326).

Constantine (318) forbade under pain of burning any soothsayer from crossing the threshold of another person, even though an old friend, but in the case of magical arts distinguished between those directed against another's safety or chastity, and remedies for disease or country spells against heat or rain upon the crops. Constantius (358) was also severe against all divination, etc. Valentinian (364) forbade all nocturnal religious rites, but relaxed this prohibition on the proconsul of Greece representing that life then would be intolerable.

Adultery

Adultery could be charged only by the nearest relatives: husband, father, brother, uncle, first cousin. The husband had precedence for sixty days, then the father having the woman in his power, then after the like time outsiders, who however could not accuse her while married, unless the adulterer had first been convicted.

A father was justified in killing his daughter (if in his power) if he caught her in adultery at his or his son-in-law’s house, and in killing the adulterer also, but if he killed one and spared the other, he was liable for murder. A husband was justified in killing his wife so caught, but the adulterer only if he was a slave or freedman or pander or player or a condemned criminal. The husband was otherwise bound to repudiate his wife at once. Justinian (542) justified a husband's killing anyone suspected of illicit intercourse with his wife, if, after sending her three warnings supported by evidence of trustworthy persons, he found her conversing with the adulterer in his own or her house or in taverns or suburban places. For making assignations in church the husband after like warnings could send both the wife and man to the bishop for punishment as adulterers according to the laws.

A husband who retained a wife detected in adultery, or compounded for her release, was guilty of pandering. So also was anyone who married a woman convicted of adultery. One accused of adultery and escaping, if he consorted with the woman again, was to be seized by any judge and without further trial to be tortured and killed.

By a law of Augustus (Lex Julia) the punishment for adultery was banishment, and for the man, forfeiture of half his property, for the woman, forfeiture of half her dowry and a third of her property. Constantine and Justinian made the punishment death by the sword for the man. Justinian (556) sent the woman into a monastery after being flogged. The like punishments were ordained for stuprum, i.e. intercourse with an unmarried woman or widow, who was neither in the relation of concubine nor a person of disreputable life.

Anyone who without agreement with her parents carried off a girl was to be punished capitally, and the girl herself if she consented. A nurse who persuaded her to do so was to have her throat and mouth filled with molten lead. If the girl did not consent, she was still deprived of right of succession to her parents for not having kept within doors or raised the neighbors by her cries. The parents, if they overlooked the matter, were to be banished: other assistants to be punished capitally, slaves to be burnt. So Constantine in 320. Constantius limited the penalty of free persons to death (349). Eventually Justinian punished ravishers and their aiders with death and confiscated their property for the benefit of the injured woman.

PUNISHMENTS were not the same for all persons. Three classes of persons were recognized in Justinian's Digest : honestiores, humiliores or tenuiores, servi.

I. The first class contained the imperial senators and their agnatic descendants to the third degree; knights with public horses; soldiers and veterans and their children; decurions. They were not liable to the penalty of death except for parricide or treason or except by an imperial order, nor to the mines or compulsory work or beating. The usual malty was deportation to an island, in some cases combined with confiscation of part of their property. Deportation involved loss of citizenship.

II. The second class were punished for grave offences by death, more frequently by condemnation to the mines preceded by beating and accompanied with chains. This punishment was usually for life and involved loss of citizenship and property. It formerly involved loss of freedom, but this was abolished by Justinian in 542. Banishment (relegatio) might be for life or for a time, and citizenship was not lost.

The death penalty for free persons was usually beheading, in and after second century by sword, not axe; rarely, and only for the gravest offences, crucifying or burning. Beating or torturing to death, strangling and poisoning, were forbidden.

Justinian in 556 enacted that for crimes involving death or banishment the property of the criminals should not be confiscated either to the judges or officials, or, as according to the old law, to the fisc, but should pass to their descendants, or, if there were none, to the ascendants up to the third degree. He also enacted that where the law ordered both hands or both feet to be cut off, one only should be cut, and that joints should not be dislocated. No limb should be cut off for theft, if without violence.

Constantine (318) re-enacted the punishment assigned by old practice to parricide, viz., the criminal to be beaten with rods, sewn up in a sack with a dog, cock, viper and ape, and thrown into a deep sea, if near, or into a river. Justinian retained the law, but confined it to murderers of father, mother, and grandfather and grandmother, whereas it had previously been applicable to many other relatives.

III. Slaves were punished for grave crime by beheading, sometimes by crucifying or burning or exposure to wild beasts: for lesser crimes by work in the mines. Flogging was usual in many cases, and regularly preceded capital punishment. Imprisonment was not used as a punishment, but only as security for trial.

Heretics were deprived by Constantine (326) of all privileges given on the ground of religion and were forbidden (396) to occupy any place for worship. In 407 Manichaeans and Donatists were ordered to be treated as criminals; they forfeited all their property to their next of kin (if free from heresy) and were incapable of succession, of giving, of buying and selling, of contracting, of making a will; their slaves were to be held guiltless only if they deserted their masters and served the Catholic Church.

In 428 Manichaeans were to be expelled from their towns, and given over to extreme punishment, and a long list of heretics was forbidden to meet and pray anywhere on Roman soil. In 435 Nestorians, in 455 the followers of Eutyches and Apollinarius were to have their books burnt, and were forbidden to meet and pray. In 527 heretics, Greeks, Jews, and Samaritans were rendered incapable of serving in the army, of holding civil office except in the lower ranks and then without a chance of promotion; and were disabled from suing orthodox Christians for private or public debts. Children of heretics, if themselves free from the disease, might take their legal share of their father's property, and their fathers were to support them and to give dowries to their daughters.

In 530 Montanists like other heretics were forbidden to assemble, to baptize, to have Communion, and to receive charitable alms from law courts or churches.

In suits against orthodox, whether both parties or only one be orthodox, heretics and Jews were not good witnesses, but only in suits among themselves. Even this was not applicable to Manichaeans, Montanists, pagans, Samaritans, and some others; for they being criminals were incapable of bearing witness in judicial matters; they were however allowed as witnesses to wills and contracts, lest proof should be difficult.

A law of Augustus, confirming analogous republican practice, forbade any Roman citizen who appealed to the Emperor being killed, tortured, beaten, or put into chains even by the governor or other high magistrate. This is retained in Justinian's Digest.

Several constitutions at the end of the fourth century (398) were directed against attempts of clergy or monks to prevent due execution of sentences on criminals or debtors.