H|3, QJornell Ham &rl(onl Kibrarg Cornell University Library KJA 147.H13 1874 Introduction to Roman law, In twelve acad 3 1924 021 184 548 LIBRARY OF A. THOMAS NAFZiNGER WEST LIBERTY, OHIO NO. ' il 8 14 5 DATE Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021184548 Enteeed, according to Act of Congress, in the year 18TS, by D. APPLETON & CO., In tlie Office of the Librarian of Congress, at Wasbington. LIBRARY OF A. THOMAS NAFZINGER WEST UBERTY. OHIO 18 145 DATE NO, PEEFAOE, The late Professor Hadley held a very high place in the judgment of American scholars. As a Greek scholar, and as a student of comparative philology, no one was more respected. But he was a man who did not confine himself closely to one line of study, and quite a numher of years ago he conceived a desire to make himself acquainted with Eoman law. For some time he had classes in the Institutions of Justinian, and in the progress of his study was led into the deep- er recesses of his subject. "When he began to prepare the lectures which are herewith given to the public, I am unable to determine with accuracy ; but he must have put them into some form as many as ten years since. These lectures, or a part of them, were several times read to the senior undergraduates of Tale Col- lege, a short time before their examination for the de- gree of Bachelor of Arts ; they were also more than IV PREFACE. once delivered to tlie students in the law department ; and once they formed a part of the graduate course at Harvard, where, I am assured, they were exceedingly well received. The success which these lectures met with seems to have suggested to Professor Hadley their publication. At least after his death, November 14, 1872, his man- uscript gave indications of such a plan. It was writ- ten out in that very minute, yet clear and beautiful, handwriting of his, the very sight of which gave pleas- ure, with scarcely an erasure or interlineation. The whole subject lay as in sunlight before his mind, as he began to write, and, having probably made more than one copy of his lectures, he had almost nothing in style, method, or choice of material, to alter. Proiessor Hadley had qualities of mind remark- ably well fitted for such an exposition of Roman law as these lectures contain. In all his work as a college man and as a writer, in his conversation even, he ever showed uncommon clearness, beauty of method, power of expressing the exact idea in appropriate words, a certain joyousness in communicating knowledge, and a simplicity of purpose, which looked away from him- self. No man I have known was more adapted by Na- ture to be an instructor ; he excelled in the mathfemati- PREFACE. V eal sciences, so that at one time lie was urged to take a professorship of them, wJhile his Greek studies added elegance to his style of exposition. The author of this preface was intrusted with the office of carrying these lectures through the press. They were so completely ready, that hardly an expreS' sion or even a word needed correction, and so plainly written that the printer could have no excuse for mis- taking a letter. As calculated to initiate young stu- dents into the mysteries of Koman law, to diffuse a just idea of its preciseness of definition, and to hroaden the foundation of legal study, they seem to me to pos- sess peculiar merit. The index to this volume was prepared by Prof. Albert S. Wheeler, late of Cornell University. Theodoee D. "Woolsey. New Hayen, May 1, 1873. CONTENTS. PAGB I. — The Cobpus Jueis Citilis . . .1 IT. — The Roman Law since Justinian ... 25 III. — The Eoman Law before Jostinian . . . 51 IV. — ^Pkogeess op the Eoman Law dueing the Kepublican Period 77 V. — Law of Status and Family Relations . . . 104 "VL — Law of Family Relations {continued) . . 129 Vll. — Law of Pkopeety . . . . .154 Vni. — Rights in the Property op Others . . 180 IX. — ^Law op Obligations ..... 207 X. — Law op Obligations {contimted) . , , 234 XI. — ^Law of Inheritance ..... 262 Xn. — Law op Inheritance (continued) . . , 294 LIBRARY OF A. THOHAS NAFZIlMGt. WEST UBERTY. OHIO *^-^ 18 14: DATE THE EOMAN LAW. LEGTTJEE I. THE COEPUS JHEIS CIVILIS. The Cobfits Juris Civius represents the Roman law iu the form which it assumed at the close of the ancient period (a thousand years after the deoemviral legislation of the Twelve Tables), and through which mainly it has acted upon modem times. It was compiled in the Eastern Eoman Empire (the Western ceased in 476 a. d.), under the Emperor Justinian (controversies as to his character), who reigned 527-565 a. d. The plan of the work, as laid out by Tribonian, included two principal parts, to be made from the constitutions of the Roman emperors, and from the treatises of the Eoman lawyers. The constitutionea (law-utter- ances) of the emperors consisted of — 1. Orationes, proposals of law, sub- mitted to and adopted by the Senate ; 2. JEdieia, laws issued directly by the emperor as head of the state ; 3. Mandata, instructions addressed by the emperor to high officers of law and justice ; 4. Decreta, decisions given by the emperor in cases brought before him by appeal or other- wise ; 6. Hescripta, answers returned by the emperor when consulted on questions of law by parties in a suit or by magistrates. Codes made up of imperial constitutions, selected and arranged, had been produced be- fore, especially the Theodosian Code in the fifth century. The new Codex CoNSTiTtriiONtrM, prepared in little more than a year, was published in April, 529. The next work was to digest the treatises of the most eminent law writers. Thirty-nine were selected, nearly all of whom lived between 100 B. C. and 250 A. D. Their books (2,000 in number) were divided among a body of collaborators (sixteen besides Tribonian), each of whom from the books assigned to him extracted what he thought proper, making the necessary changes (as to which Justinian had issued a number of decisiones 2 THE EOMAK LAW. for their guidance), and putting the extracts (9,000 in all) under an arranged series of heads. The Digest (or Pandects), thus produced by three years' labor, was issued in November, 633. It was divided into fifty books, and each book into several titles. About a third part comes froru the jurist Ulpian (died 228), a sixth from his contemporary Julius Paulus, a twelfth from Papinian (died 212), etc. The Digest is the long- est component of the Corpus Juris, and much the most important, from the nature and variety of its contents, showing the spirit of the law, and giving illustrations of juristic reasonings and methods. To bring the Codex Consiitutionum into better conformity with the Digest, it was revised in 634, and issued as we now have it in November ■ of that year. It was divided into twelve books, and these into titles, with the same general arrangement as the Digest. Yet it contains some topics which do not appear in the Digest, especially all those connected with Christianity and the church. In general, it contains much more of public law than the Digest ; and the superior importance of the latter is partly due to this fact, it being the private, not the public, law of Rome which has obtained currency in modem Europe. The Corpus Juris includes also an elementary text-book, the Institu- TiONES (founded on the insUtuiiones of Gains, who flourished about 160, and whose works furnished many extracts to the Digest). It was pre- pared by Tribonian, Theophilus, and Dorotheus, and was issued with the Digest in 633. Subjects of its four books. The Institutes, Digest, and Codex, were given, as a complete body of law, to the law-schools at Constantinople, Kome, B.erytus, Alexandria, Ca;sarea, to be studied in their five years' curriculum. In the courts it was to supersede all earlier authorities. No abbreviations were to be used in copying it. No commentaries were to be written on it (only transla- tions into Greek, and summaries of its contents), lest they should give rise to controversies : futility of the prohibition. Later statutes of Justinian, arranged in order of time, form the Novels (novellae conelitutiones, most of them in Greek), the last compo- nent of the Corpus Juris. The whole Corpus Juris too good for the age in which it appeared. Superseded in the Eastern Empire by paraphrases, abridgments, and later compilations. Its influence for several centuries confined to some parts and cities of Italy. The subject, on which I am to give you a few lec- tures, is the Civil Law — ^the Koman Law — its History THE CORPUS JURIS CIVILIS. 3 and System. My desire, of course, is to give you all the information I can, in the very scanty time allowed to us. But I shall try to remember that you are hear- ers only, not readers ; and that I must not pack the matter too closely ; that I must avoid at once a brevity of statement which you would find unintelligible, and a multiplicity of details which you would find confus- ing and wearisome. The subject involves, almost of necessity, a good deal that is technical and dry: I could hardly expect that my lectures would receive place in a " Library of Entertaining Knowledge." My reliance must be on the interest and importance of the theme itself, rather than on any attraction which I can hope to give it by my mode of treatment. That it has importance and interest, to the student of his- tory and the man of liberal culture as well as to the expectant lawyer, will, I hope, be apparent as we pro- ceed ; I shall not try to prove it now. The first object to which I call your attention is the great law-book, the " Corpus Juris Civilis," in which the Eoman law was embodied at the close of the ancient period, and through which mainly it has exercised its influence upon later ages. The Roman law has, indeed, a previous history of great length and great importance ; it can be traced with more or less distinctness from the decemviral code of the Twelve Tables, four centuries and a half before Christ, to the compilation of the Corpus Juris in the reign of the 4 THE ROMAN LAW. Emperor Justinian, more tlian five centuries after Christ. Througli this long period of nearly a thousand years, the Eoman law was in a constant process of cliange and deyelopment. The alterations it underwent were never violent or revolutionary ; they proceeded from point to point, with a slow, natural, and steady prog- ress ; but they amounted, in the course of centuries, to extensive and radical transformations of the system. The Corpus Juris Civilis represents only one phase, the latest phase, of this long development. It has, how- ever, a preeminent importance, because the rules and principles of the law were then reduced to the form of a system, condensed, digested, and complete, in which they were best fitted to influence the mind and mould the institutions of modern Europe. The Corpus Juris is a product of the Eastern Eoman Empire : the West- ern had ceased to exist, even in name, a half-century before the accession of Justinian. Germanic tribes were established as conquerors and sovereigns.in all the provinces of the "West : the Angles and Saxons in Brit- ain, the Franks and Burgundians in Gaul, the Yisigoths in Spain, the Ostrogoths in Italy, the Yandals in North- ern Africa. Justinian, afterward, by the arms of his great generals, Belisarius and Narses, crushed the power of the Yandals and the Ostrogoths, and brought Africa and Italy into a precarious and transient connection with his empire. But Justinian himself was a bar- barian ; a man of Slavonic birth, he reigned over a THE CORPUS JURIS CIVILIS. 5 people wKo spoke Greek and called themselves Eomans, to wliom he issued a Latin law-book which few of them could either read or understand. The character of Justinian has been the subject of earnest controversy. lie has been extolled as a model of excellence, a prince of extraordinary justice, knowledge, and sagacity ; and he has been decried as a prodigy of baseness, as weak, ignorant, covetous, corrupt, and profligate. It is curi- ous that both these views have come down to us from one author, the historian Procopius, a contemporary of Justinian, the principal authority for the events of his life and reign. His histories of the Persian "War, the war with the Yandals, the Gothic War, etc., are full of the praises of the emperor. But in another work, known by the name of " Historia Arcana," and con- taining a scandalous record of the court of Constanti- nople, he paints both Justinian himself and his empress Theodora in the blackest colors. A more remarkable ease of blowing hot and cold from the same mouth, at the same object, it would be hard to find in the annals of literature. It is probable that both representations, the panegyrical and the vituperative, are caricatures of the real man. It is clear that Justinian had his faults, conspicuous among which were vanity, jealousy, and greed ; but he was not worse than the majority of those who preceded and followed him on tlie Byzantine throne. As to his talents, it is evident that he had the capacity of conceiving large things, of planning and 6 THE EOMAN LAW. undertaking " enterprises of great pith and moment ; " and he had also the art, which many princes equally ambitious do not have, of finding the ablest men of hi« time to serve in carrying out his enterprises. Of his generals, Belisarins and Parses, we have just spoken ; but he was no less fortunate in his great law-minister, Tribonian. The Corpus Juris is an enduring monu- ment of the capacity and energy of the great lawyer who bore the foremost part in its construction. Justinian came to the imperial throne at the mature age of forty-five, in the year 527. A few months later, in the year 528, he entered upon the work of collecting, re- vising, and systematizing, the whole body of the Koman law. This work, under the guidance of Tribonian, was divided into two principal parts, according to the ma- terials of which the new book was to be composed. These were, first, the constitutions of the Eoman em- perors ; and, second, the treatises of the E,oman lawyers. The name constitutiones, applied to the law-making utterances of the Koman emperors, had a very different meaning from our word " constitution," used to denote the fundamental, organic law of the state. Every offi- cial public document issuing from the emperor, and creating, declaring, or modifying law, was a constiiutio. Xt is a general term including documents of several dif- ferent kinds : thus — 1. Orationes, or proposals of laws submitted to the Senate for their action, the submission being a mere form, as the Senate, of course, ratified THE CORPUS JURIS CIVILIS. 7 wliat the emperor proposed ; 2. Edicta, laws wbich tlie emperor himself put forth, in his character as high- est magistrate, without invoking the authority of the Senate ; 3. Mandata, directions addressed by the em- peror to the prefect of the city, or the prefect of the praetorium, or to his legates in the provinces, or to oth- er officers invested with jurisdiction, instructing them in reference to the administration of law and justice; 4r. Decreta, decisions given by the emperor in law-cases which were brought before him, by appeal or by peti- tion, for his investigation and judgment ; and — 5. Se- soripta, answers returned by the emperor, when con- sulted on questions of law, either by the parties in some controversy, or, more commonly, by officers charged with the administration of justice in Italy or the prov- inces. All these various utterances are included in the term constitutiones / and it is hardly necessary to say that, although professing to come from the person of the emperor, they were actually composed by jurists, and usually by those who stood first in their profession. Of course, the number issued during five centuries of imperial dominion must have been very large. Three or four collections had already been made, in which the most important constitutions were selected from the mass, presented in a condensed form, and arranged according to their subjects. The last and most elab- orate of these collections was the Theodosian Code, compiled about a century before the accession of Jus- 8 THE ROMAN LAW. tinian j it is still iu great part extant, and, next to the Corpus Juris Civilis {th.ov.gh. proximus longo intervallo), is the most extensive monument of the Eoman law. It was the first object of Tribonian, in carrying out the proposed reconstruction of the law, to prepare a new collection of imperial constitutions, selected, abridged, revised, and systematized, on the same general plan as the Theodosian Code : this latter code and the others which preceded it, were freely used in making the new compilation. By these helps, in addition to their own energy, the compilers were able to push on their task with such rapidity, that the work was completed and issued with imperial sanction in April, 629, a little more than a year from the time of its inception. But the second task, which they had yet to accom- plish, was one of much greater difficulty — to prepare a digest of the treatises of the most distinguished writers on law. The literature which they had to examine was of very considerable extent. The works to be digested were by thirty-nine authors, and con- sisted of about 2,000 books, in the Eoman sense, according to which Caesar's " Gallic "War " would be reckoned, not as one book, but as eight books. It was, moreover, even in the time of Justinian, an an- cient literature. Of the thirty-nine authors, the most important belonged to a period from three to four centuries before Justinian ; only two of them were more recent than three centuries before; while the THE CORPUS JURIS CIVILIS. 9 earliest of the number, Q. Mucins Scaevola, an older contemporary of Cicero, flourislied fully six centuries before Justinian. In this long interval, the Eoman law had undergone extensiye changes, so that much of the contents of these works had become obsolete, and only by considerable alteration could be adapted to the present condition of the law. To guide the compilers in mating the required alterations, a series of imperial ordinances was put forth, under the name of deoisiones, making out the precise features of the new law, in dis- tinction from the antiquated elements of the earlier sys- tem. In these preliminary labors, some time was con- sumed, and it was not until the close of the year 630, that the preparation of the digest itself was entered on. In this work, Tribonian had the aid of sixteen associates, among whom were four law-professors from the law- schools of Constantinople and Berytus. The books to be examined were divided up among the collaborators. Each one, as he read those assigned to him, was to ex- cerpt such passages as seemed to him deserving of insertion, making the necessary alterations in them, and arranging them under a prescribed series of titles. When this process was finished, the collections were to be brought together, and incorporated into one work, with such further rejections, additions, and alterations, as should reduce them to a harmonious system. The plan was accomplished in about three years, a space of time surprisingly small, when we consider the amount 10 THE ROMAN LAW. of work to be done, and the general thorongliness witli ■vchicli it appears to have been executed. There are found, indeed, a number of oversights : a few passages occur in places where they could only have been put by mistake ; a few are inserted in more than one place, without occasion for the repetition ; a few are in irrec- oncilable conflict with one another. The wonder, how- ever, is, not that such blemishes should occur, but that there are not more of them. The Digest — or Pandects (all-receiving), as it is also called from the multiplicity of its sources — was issued with authority of law, in December, 533. It is divided into fifty books, and each book is divided into a num- ber of titles (Hiult), each with its appropriate heading. Under these titles stand the extracts, each one pre- ceded by the name of the author and of the treatise from which it was taken. The aggregate number of extracts is about 9,000. Many of them are very short, consisting of one or two lines, and, in some instances, containing only part of a sentence ; while others would fill several octavo pages of average size. About a third of the collection is taken from one author, Ulpian, the most prolific of Roman law-writers, who was prefect of the praetorium, in the reign of Alexander Severus, and lost his life in an insurrection of the soldiers. Julius Paulus, a contemporary of Ulpian, stands next to him in the amount of material furnished to the col- lection : to Ulpian and Paulus, taken together, belongs THE CORPUS JURIS CIVILIS. H half tie Digest. Next to these in the amount taken from his writings, but perhaps superior to all others in the intrinsic merit of his contributions, is Papinian, the faultless model of a Roman jurist, -who was regarded by his contemporaries with a veneration which has been sustained by the judgment of succeeding ages. When the tyrant Caracalla murdered his brother Geta, he called upon Papinian to prepare an address to the Senate, in vindiction of the act, promising, if he would do so, to forgive him for the favor which he had shown to Geta while living. But the jurist re- fused to comply with the demand, saying that it was easier to commit an act of fratricide than to defend it; no doubt, foreseeing the fate which such an an- swer to such a prince could not fail to bring on the man who gave it. But it would lead us too far to notice in detail the other writers whose works are represented in this great collection. It concerns us more to observe that, while the Digest or Pandects forms much the largest fraction of the Corpus Juris, its relative value and importance are far more than proportionate to its extent. The Digest is, in fact, the soul of the Corpus, which, with- out it, would seem almost a cadaver, the corpse or skeleton of itself. It is the characteristic element, which distinguishes this from other codes, ancient and modern, and gives it the undeniable superiority. In most codes we have, from beginning to end, only a dry, 12 THE EOMAN LAW. categorical, imperative " thou slialt," " thou shalt not," " do this and live," " avoid that, abstain from that, or suffer the penalty." But in the Digest we have defi- nitions, maxims, principles, applications, distinctions, illustrations — all in endless abundance and variety. It is as if one should make a compend of English law by selecting the most judicious and accurate statements from treatises like those of Blackstone and Kent, and the most pithy, pointed, luminous utterances from the decisions of judges like Mansfield, Scott, Marshall, and Story ; and placing them together in an arrangement which, if not altogether scientific, should be, at least, practically convenient, natural, and easily compre- hended. A digest constructed on this plan was in the highest degree fitted to be a teacher of law to after-' times ; for it shows the spirit of the law, the principles of equity on which it is founded, the reasonings and method by which it is built up as a rational, intelli- gible, orderly system. No other code has been so well adapted to stimulate, develop, and discipline the ju- ristic sense ; the great office which the Corpus Juris, operating mainly through this part of its contents, has discharged for mediaeval and modern Europe. "We have seen that the other leading component of the Corpus Juris — the Codex Constitutionum — was prepared in the year 528 and the first part of 529. It was only natural that the time and labor bestowed on the preparation of the Digest should have brought to THE CORPUS JTJEIS CIVILIS. 13 light numerous incongruitiea and imperfections in the earlier work. In many points, the compilers had come to have a more distinct and a more advanced concep- tion of the modifications which it was desirable to make in the older system. Hence, the Oodex appeared, in the light of these altered views and this added experi- ence, to be, as it were, already obsolete, not to be in, harmony with the Digest, or worthy to have a place in the final and authoritative Corpus Juris. It was re- solved to subject it to a thorough revision, or redac- tion. This task occupied another year ; and in JSTovem- ber, 534, the new Oodex Oonstitutionum, the Codex repetitae praeleationis, was published, to take effect on the 29th of December, the former Codex being then repealed. It is in this latter form only that the Codex has come down to us. It is divided into twelve books, and these again into titles, with headings to indicate the subject of each one, under which the constitutions pertaining to that subject are arranged in chrono- logical order, with a statement, for each, of the em- peror by whom, and the year in which, it was issued. The arrangement of subjects, as might be expected, is in general the same with that of the Digest. An ab- solute agreement in this respect was not regarded as necessary, especially as the Codex embraced a number of topics which, by the nature of the case, could not appear in the Digest. The latter was of course silent on all matters and relations which had risen into being 14 THE EOMAK LAW. or importance during the two or three centuries before Justinian, as all the writers represented in it were of older date than two', nearly aU of older date than three centuries before. Thus, the church, the clergy, the monastic orders, and other matters pertaining to the Christian religion, so far as they could come within the cognizance of civil law, figure largely in the Codex, as they were among the most frequent subjects of legis- lation for Constantino and his successors. But the series of great law-writers had come to an end some time before Christianity ascended the imperial throne ; the Digest, therefore, has nothing to say of its officers and institutions. In general, it may be said that the Codex consists, to a much greater extent than the Digest, of jpubUo law, in all its departments ; that is, the law which pre- scribes and regulates the organism of the state, with all state institutions, whether civil or ecclesiastical. Here belongs all that relates to forms of government, modes of administration, duties of public officers, and the like. Under public law is included also criminal law, the law of crime and punishment — a crime being a wrong action viewed as affecting the rights, not of individuals, but of society, as a violation of public peace and order, as an offence against the state. On the other hand, pri/oate law is occupied with the rights of individuals, with the modes by which individuals may acquire such rights, or transfer them to others, and tlie THE CORPUS JUEIS CIVILIS. 15 ways in whicli individaals may ottain personal redress when these rights are impaired by fraud or violence. Now the fact which I wish to emphasize is this, that the Digest is composed of private law in a far larger proportion than the Codex. This is a fact which gives to the Digest something of the superior interest and importance which belong to it. It is mainly by reason of the private law which it embodies, that the Corpus Juris has exerted its immense influence on jurisprudence and justice in modern Europe. The public law of the Corpus Juris was something distinctively Koman, and even Byzantine, the last result of a peculiar political development, which has occurred but once in the his- tory of the world, and can never be repeated. To modern states, founded on different principles from those of ancient Home, and seeking widely difierent ends by means that differ not less widely, the public law of the flourishing or expiring empire could have only a very limited application. . The private law of the Komans was, to a great extent, based on principles of natural equity and universal reason, which have not lost their force with the altered circumstances and ad- vanced civilization of more recent times. Hence, it has been received as fundamental law by some of the most enlightened and civilized nations of modern Eu- rope. But no modem state has received the public law of the Eomans as the foundation of its own public law. All attempts to give it this position and character have 16 THE ROMAN LAW. failed of success. Thus, when the great German princes of the Hohenstaufen dynasty, as Trederick Barbarossa and Frederict 11., were endeavoring to huild up a new Eoman Empire, a Holy Eoman Empire, in Germany and Italy, the Italian jurists of the famous school of Bologna supported the imperial pretensions with texts and rules drawn from the storehouse of the Corpus Juris. They regarded, practically at least, its puhlic and private law as parts of the same system, and there- fore equally authoritative. But the feudal lords of Germany and the free cities of Italy insisted on making a distinction between the two, and denying to the one an authority which they accorded to the other. But we have not yet considered all the component parts of the Corpus Juris. It was thought desirable that an introduction to the study of the law, an ele- mentary text-book for instruction, should be included in the plan. The work prepared for this purpose was a brief treatise, in extent but little more than a twen- tieth of the Digest, to which it stands in the place of an introduction. It bears the name of " Institutiones," i.e., instructions, viz., for the beginner; a name significant of the purpose which it was designed to serve. It was founded on a work of the same name (" Institutiones "), composed by Gains, in the time of the Antonines, about four centuries before the reign of Justinian. Gains is very often cited in the Digest ; only Ulpian, Paulus, Papinian, with a fourth writer named Pomponius, THE CORPUS JURIS CIVILIS. 17 stand before him in this respect. Yet, strangely enough, nothing whatever is known as to his personal history ; his very name is irrecoverably lost, for Gains is only a prtenomen ; it is as though Milton were only known as John, or Shakespeare as William. Perhaps nothing more was known of him in the days of Jus- tinian. It would seem, however, that his Institutiones had been, from the time of its appearance, a popular book for Ihw-students at the outset of their course, and this popularity may have served to buoy up the other compositions of its author. Of these other composi- tions, one — ^named "Kes Quotidianae" (daily cases) — was used in connection with the " Institutiones," in pre- paring the Institutiones of Justinian. The task of preparation was executed by Tribonian, with the assist- ance of the law-professors Theophilus and Dorotheus. The processes of omission, insertion, modification, were, of course, adopted here, as in other parts of the Corpus Juris, to bring about a conformity with the altered system of the law. The little treatise was finished and published at the same time with the Digest, in ISTovem- ber, 533. It consists of definitions and elementary statements, and is divided into four books. The first book treats of family relations, as the relation of mas- ter and slave, father and child, guardian and ward. The second treats of property and the modes of acquir- ing it, ending with the subject of inheritance. The third treats of obligations, i. e., relations in which one 8 18 THE EOMAN LAW. man is bound to give something to, or do something for, another man ; relations which usually arise from an express or implied contract between the two men, but sometimes from violations by the one of rights pertain- ing to the other. The fourth treats of actions, i. e., suits at law, the legal remedies by which a man whose rights have been violated may seek redress for the wrong. Thus, at the close of the year 63i, Justinian had accomplished the work of reorganization or reconstruc- tion of the law, on which he had entered seven years before, at his accession to the throne. The Institu- tiones, the Digest or Pandects, and the Codex Consti- tutionum, formed together a complete system of law and jurisprudence, which was assumed to be sufficient for all practical ends in the administration of justice. As such it was given to the law-schools as the exclusive subject of professional study. The principal law- schools of the empire were those of Constantinople, Eome, and Berytus, while institutions of inferior note were found in Alexandria, Csesarea, and other places. The course of study, as prescribed by Justinian, in an ordinance of December, 533, consisted of five years. The students of the first year had hitherto been called by the nickname of dujpondii (two-penny men) ; they were now to be designated as novi Justinimiei (Justin- ian's freshmen) ; they were to read the Institution's, and to make a beginning with the Digest. The sec- ond, third, and fourth years were also given to the THE CORPUS JURIS CIVILIS. 19 Digest, but without proceeding further than through thirty-six out of the fifty books. The instruction of these four years was carried on by lectures and recitations. In the fifth and last year, the students were left to them- selves, and read (or were supposed to read) the remain- der of the Digest, and the Codex Oonstitutionum. To the courts of justice the new Corpus was given, as superseding all former authorities. No ancient jurist must be cited, no earlier constitution appealed to, ex- cept in the words of the Corpus Juris. The exact pres- ervation and transmission of its text was an object which excited the special solicitude of the emperor. The abbreviations, which were used by ancient scribes much more than by modern, and were especially com- mon for technical phrases and formulas of frequent recurrence, often led to ■ confusion and mistake. The copyist was expressly prohibited from using them in the transcription of this venerable work. But com- mentators were more dreaded than copyists. Justinian rigorously forbade the writing of any commentary on the books of the Corpus Juris. He conceded the priv- ilege of making Greek translations, which, indeed, were almost indispensable in an empire composed in great part of Greek-speaking populations; but they must be close and literal versions, following the origi- nal faithfully from step to step (i. e., from sentence to sentence). He allowed also the formation of brief summaries, presenting the contents of a book or title 20 THE EOMAN LAW. in a compendious sliape, a syllabus or synopsis, with references to other parts of the work, and citation or collation of parallel passages. The reason for prohib- iting commentaries was the apprehension that they would suggest new controversies or revive old ones, and thus bring the law again into that unsettled, un- certain condition from which so much pains had been taken to raise it. Perhaps, also, he may have feared that some commentary might arise which would eclipse the original; as, in the literature of English law. Coke upon Littleton is much more famous than Littleton himself. In any case, the object which he aimed to accomplish was neither attainable nor desirable. To enforce any system of law, it is necessary to find out what the system is, to ascertain its meaning, to inter- pret and expound it. Ambiguities of language are unavoidable, even in the most carefully constructed documents. Even if the language is unambiguous in itself, its application to new circumstances and condi- tions will involve uncertainties and queries. To re- solve these doubts and difficulties, there must be a con- stant process of commentation, oral if not written. And if the process must go on, if commentation is un- avoidable, it is well that it should be written ; for in this form it will generally be more cautious and exact ; and the best results, when they are arrived at, will not be lost in air, but will be recorded and permanent, to the great advantage of succeeding inquirers. Contro- THE COEPUS JURIS CIVILIS. 2l versies on points of legal doctrine are, indeed, tLe in- evitable result of mental activity applied ■without re- straint to legal questions and relations. To stifle thought and to suppress freedom are the only effectual means of avoiding such controversies. But, in a com- munity where freedom is suppressed and thought is stifled, what rights can be secure ? What is the worth of law without either intelligence or liberty ? It was no easy matter for a prince who had legis- lated so long and so much, to stay his hand and rest content with the work ali'eady accomplished. The appetite for legislation, like other appetites, is apt to grow with what it feeds on. The compilers of the Corpus Juris must have felt that in the new law-sys- tem, however much improved, there were still incon- gruities and inequalities which called for further im- provement ; that there were necessities, either not provided for at all, or not in the best manner, by any rules contained in it. From many sources must have come a real or apparent demand for further law-making. Thus we flnd that Justinian, after the completion of his great legislative work, issued a large number of new constitutions, especially in the years from 535 to 545, in the last of which he lost his able and active minister Tribonian. Many of these constitutions made little alteration in the existing law ; but there were some which introduced extensive and important changes. Justinian did not think it necessary to work over the 22 THE EOMAN LAW. wliole Corpus Juris so as to bring it into tarmony with the rules and doctrines thus established. He may have dreaded the expenditure of time and toil necessary for the recasting of a law-book so voluminous : he may have shrunk from calling on his subject's to throw away the heavy and costly tomes which he had compelled them to procure in order to replace them by others equally heavy and costly : he may have felt that the revocation of a law-system so laboriously constructed and so solemnly promulgated only a few years before, would lead people to regard the entire law as some- thing uncertain, fluctuating, and transient. At all events, he contented himself with bringing these later ordinances, as fast as they were issued, into a separate collection, where they stood in chronological order, without any attempt to give them a logical arrange- ment. This collection bore the name novellae constv* tutiones (recent enactments) : in all editions of the Corpus Juris, it stands as the concluding part, and by English writers is generally called the Novels, a name identical in spelling, though any thing but identical in what it designates, with that which we use for the compositions of Bulwer, Dickens, or Trollope. In these Novels, the language generally used was the Greek; some, however, were issued in Latin, and not a few in Greek and Latin at the same time. In the last case, it is curious to note that Justinian himself declares that the Latin form must be taken as the au- THE CORPUS JtTEIS OIVILIS. 23 thentic and authoritative original, and the Greek as only its translation ; the Latin was still regarded, by the force of old tradition, as the proper oflBcial language of the empire. The actual use of Greek as the pre- vailing language of the Novels distinguishes this from the preceding portions of the Corpus Juris. In the Codex the large majority of the constitutions are in Latin, and Latin is the language of thirty-eight out of the thirty-nine writers embraced in the Digest. In regard to this whole body of law, the construc- tion and outward appearance of which have thus been described — and especially in regard to the Digest, its largest and most characteristic part — one may say, in general, that it was too good for the age in which it appeared. It was produced in a period of great and progressive decline, by men whom a study of older and better models had raised above the general level of their time. Apparently they hoped that, by bringing these same models' into a form and position in which they could be generally known and studied, it would be possible to arrest the downward tendencies in the profession and practice of the law. In the reign of Justinian, at least in its earlier part, men were hoping for a good time coming. It seemed as if the clouds which had settled down on the Koman world were beginning to break away ; as if the storm of barbarian invasion and conquest had spent its force, and the em- pire of the Caesars was to recover its ancient power 24 THE ROMAN LAW. and glory. The legislation of Justinian sliows the in- fluence of such anticipations. The old law, freed from the ohsolete elements which encumbered and concealed it, was to have the ascendency which it exercised in the prosperous times of the earlier empire. These hopes, we know, were doomed to disappointment. The an- ticipated good time of restoration and revival never came. The downward tendencies of society were too strong to be arrested. The great law-book of Justin- ian seems to have gained no very wide currency among those for whom it was intended. It was, to a great extent, superseded in practice by paraphrases and abridgments, of the whole or of particular parts. An inquirer two or three centuries later, looking at the fate of this Justinian legislation, might have sajd that it was a splendid and elaborate failure. In the reign of Leo the Isaurian {711-741), the books of the Corpus Juris were hardly used at all in their original form ; and even the paraphrases and abridgments founded on it were so ill adapted to the existing state of the law, that this emperor thought it necessary to issue a compendious code of his own. This was the state of things in the Eastern Empire. In Western Europe the Corpus Juris had never found currency, except in Italy ; and here, in some parts and cities of the peninsula, it still enjoyed an obscure and precarious influence. How it emerged from this condition to one of world-wide note and com- manding authority, will appear in the next lecture. LECTUEE II. THE EOTVfAN LAW SINCE JUSTINIAIT. The Germanic tribes which became masters of Gaul, Spain, and Italy, in the fifth century, kept their Germanic law-customs for themselves, but suffered the conquered populations to remain under the old Koman law. Hence a system of personal, rather than territorial law. Persons were sometimes allowed to choose their own law by a professio. The multi- plicity of systems was increased by the growth of an ecclesiastical law, founded on the Roman, but with features peculiar to itself, for eccle- siastical persons and relations. In Britain, on the contrary, the Saxons and Angles, driving out the native inhabitants, became sole occupants of the conquered districts, and thus had no Roman law existing with and acting upon their own. Some of the Germanic chiefs (Alaric the Visigoth, Theodoric the Ostrogoth, Sigismund the Burgundian) issued, for the use of their native subjects, summaries of the Roman law, drawn from the Theodosian code and other earlier sources. These appeared shortly before the Corpus Juris of Justinian, and were vastly inferior to it in extent and value. It was formerly believed that the knowledge of the Corpus Juris in Western Europe began with the discovery of a copy (the Florentine MS. of the Digest, said to have been found by the Emperor Lothar II. at the taking of Amalfi in 1136. But Savigny has shown that the Corpus Juris, introduced into Italy during the reign of Justinian, never ceased to be known and used in parts of that country. But about 1100 (opening era of the Crusades) we find a greatly revived and extended study of the Roman law, carried on especially at Bologna, by a series of acute and profound law teachers, called glossators, from the mar^nal glosses or com- ments which they wrote on their copies of the Corpus Juris. A volu- minous collection of these glosses, made by Accursius, one of the last glossators (died 1260), is printed in old editions of the Corpus Juris. As the effect of these studies, the Corpus Juris came to be received as law, aa the main (though not exclusive) source of private law, first in 26 THE ROMAN LAW. , Italy, then in Southern France {pays de droit ecrit), and at length (from the close of the thirteenth century) In Germany. In the last, it was fa- vored by soTcreigns who claimed to be chiefs of a Boman Empire, suc- cessors of Augustus, Constantine, and Justinian. In Northern France (pays de coutume), the old customary law of the provinces — an unwritten body of Germanic usages, mixed with Roman elements and many things of later origin — maintained its leading position ; but with this, to supply its deficiencies, the Corpus Juris was received as auxiliary law. In Spain, too, it was received in much the same way. In England, the Roman law has never been received, even as auxiliary law. The common law (mainly an unwritten customary system, founded ultimately on Germanic usages) claims to supply its own needs by the extension of its own principles and analogies. Some of its expositors, as Blackstone, have shown an unreasonable jealousy of the Roman law. Tet the common law has been largely influenced by the Roman, in va- rious ways : 1. Through the ecclesiastical courts, their canon law being founded on the Roman. 2. Through the court of chancery, all the early chancellors being ecclesiastics, and therefore familiar with the canon law, if not with the Roman system. 3. Through the development of com- mercial law in its various departments. The old common law was mainly a (feudal) law of real estate. When personal property rose into greater importance, and complex relations of business and trade had to be pro- vided for, it was natural to adopt principles from the civil law as devel- oped and applied on the continent of Europe. — (Early borrowing from Roman law sources seen in Bracton.) The position of the Roman law in some countries has been lowered in appearance by the formation of new codes. A general code for the states of Prussia, projected by Frederick the Great in 1746, was prepared many years later, ITSl-'SS, and went into effect in 1794. In France, the changes caused by the Revolution seemed to call for a new code, but not much was done toward it until Napoleon became head of the state. The Code Napoleon, prepared in little more than two years, was proclaimed in 1804. It was followed in 1811 by a code for the German hereditary states of the Austrian monarchy. Yet, in all these countries, a knowledge of the Roman law is BtUl regarded as essential to a proper understanding of their legal systems, and therefore as the necessary basis of a legal education. Theee is a wide difference in the effects of a con- quest, according as the conquerors are superior in civ- THE EOMAN LAW SINCE JUSTINIAN. 27 ilization to the conquered, or inferior. "When the Eo- mans, under the lead of Csesar, had become masters of Gaul, the old Celtic language of the country soon dis- appeared, and with it the old customs, laws, and insti- tutions of the people. The language, laws, and insti- tutions of the Komans took their place. In the course of a few generations, Gaul was thoroughly Komanized. Against a superior civilization armed with the force of political and military ascendency, the inferior had no chance of maintaining itself. But when the political and military ascendency is on one side, and the superior civilization on the other, the content is more evenly balanced. When Eomanized Gaul was overrun and subjugated by Germanic tribes in the fifth centurj', the conquerors did not impose either their language or their laws on the conquered people. In communicat- ing with one another they continued for a considerable length of time to use their German mother-tongue : even Charlemagne, three centuries after Clovis, habit- ually spoke German. But in time they gave up their old language, and adopted the corrupt Eoman of the country. Their laws they retained for their own use, as might have been expected, with much greater tena- city ; but even these they did not attempt to impose upon the native population. Though naturally at- tached to their own long-established usages, and un- willing to abandon them, they seem to have felt that these usages were suited only to themselves ; that the 28 TUB ROMAN LAW. requirements of civilized society, of settled and peace- ful life, were better fulfilled by tlie highly-developed, complex jurisprudence of the Komans. Hence arose a very curious state of things, a system of personal, rath- er than territorial, law : the law to which a man was subject depended not so much on the place where he lived, as the race to which he belonged. The principle was, " German law for the Germans (i. e., the Pranks, Burgundians, etc.), and Eoman law for the Komans (i. e., the descendants of Romanized Gauls)." Thus two neighbors living side by side would be subject to wholly different systems,-because one was of Gallic origin and the other of Germanic. Indeed, the principle was carried even further. The Franks were divided into two great sections, each of which had its own system of legal rules and customs, the Salian, or "Western, and the Eipuarian, or Eastern, Franks. Now a Salian, wherever he might be, in whatever part of France, was judged by the Salic law ; and in like manner a Kipu- arian by the Eipuaric. In the case of a married wom- an, however, the law was determined, not by her na- tionality, but by her husband's, her legal existence and personality being regarded as merged in his. "Where the parties to a lawsuit were of different nationalities, the law to be applied by the court was determined, sometimes by the person of the plaintiff who could claim that rights given him by his law had not been respected by the other party, and sometimes by the THE EOMAN LAW SINCE JUSTINIAN. 29 person of the defendant wlio could maintain that in all his dealings with the other party he had only exercised rights conferred upon him hj/iis law. In some cases a person had the privilege of making a prqfessio, as it was called, i. e., of declaring publicly by what law he would live and be judged. Of the confused and motley character of such a system (if the word system, thus ap- plied is not a misnomer) it is difficult to form an adequate conception. The complication was further increased by the separate position of the clergy ; all clerical persons, of whatever nationality, being subject to an ecclesiastical law, which, though in the main de- rived from the Koman, had many elements and features peculiar to itself. The state of things here described, as subsisting in Gaul under the Franks, was not confined to that prov- ince. It prevailed with little difference in Spain under the Yisigoths, and in Italy under the Lombards. The condition of Britain was essentially different. That remote dependency of the empire, among the last to be gained, among the first to be abandoned, had never been but very partially Eomanized. And its conquest by the Germanic invaders, unlike that of the conti- nental provinces, was a very slow and gradual one, proceeding from step to step for a hundred and fifty years. As one district after another became untenable, it was deserted by the old inhabitants, who by a jour- ney of one or two days could escape from the detested 30 THE EOMAN LAW. presence and power of the conquerors. Hence tlie Angles and Saxons became to a great extent sole ten- ants of tlie regions whicli they held in their possession. They were not settled — as were the contemporary Franks, Goths, and Lombards, and as the JSTormans of a later day in Britain — ^in the midst of a large native population, who by force of superior numbers, if not of superior ciyilization, must exert an immense influ- ence on political and social relations. While in the continental provinces the dominant races gradually lost their old Germanic idioms, the Saxons and Angles in Britain preserved theirs with very little mixture either of Koman or of Celtic elements. While in the former the great body of the people had a law-system of their own, which could not fail in time greatly to affect and modify that of the conquerors, in Britain the old Germanic maxims and usages of law were exposed to no such modifying influence. I call particular at- tention to this peculiarity in the Anglo-Saxon conquest of Britain — the absence of any numerous conquered people, more or less imbued with Eoman civilization, to react on the language and institutions of the con- querors — because it lies at the foundation of that wide difference which even now separates the common law of England and our own country from the other law- systems of Western Europe. We have now to ask what was the Eoman law which remained as a rule of action for the great mass THE EOMAN LAW SINCE JUSTINIAN. 31 of people in Gaul, Spain, and Italy, after the barbarian conquests of the fifth century. It was the current Eo- man law of the time when those conquests were made, that is, of the centary before Justinian and his great work of legislation. Its written sources were — 1. The compositions of the ancient jurists, such as Ulpian, Paulus, Papinian, Gains, etc., who have been men- tioned already as having furnished the materials of Justinian's Digest ; and — 3, The constitutions of the emperors, especially as collected and abridged in the Theodosian and other earlier codes. For the conven- ience of their subjects, several of the barbarian princes issued summaries, breviaries, or brief expositions of this Eoman law, drawn from the sources just described, and adapted to the altered practice of the time. That is to say, they attempted to do, on a very small scale and with very indifferent results, the work so comprehensive- ly, and, on the whole, so successfully accomplished in the Corpus Juris, Thus Alaric, king of the Yisigoths, who reigned from 484 to 507, set forth in 506 a collec- tion which is sometimes called Lex Homana Visi- gothorum, and sometimes, from the name of the king, Sreviarium Alaricianum. Almost at the same time, the able and powerful Theodoric, king of the Ostro- goths in Italy, promulgated his so-called Edictum Theo- derici, as an authoritative exposition of the Eoman law. And a work of similar design appeared only a few years later, about 517, in the kingdom of the Bur- 32 THE ROMAN LAW. gundians, under the authority of their ruler Sigismund. These books were compiled in an unintelligent and bungling manner, and it is well that we are not obliged to depend on them for a knowledge of the Koman law. "What is important to understand and remember in con- nection with them is the fact that, in Gaul, Spain, and Italy, during the early centuries of the middle ages, the great body of the people were subject to the Koman law, and that the books in which they had it were a little prior in date of compilation, and immeasurably inferior in value, to the Corpus Juris. But was the Corpus Juris during all this time un- known in Western Europe ? This question used to be answered in the affirmative. It was supposed that the knowledge and study of the Justinian books among the "Western nations had its beginning in the twelfth cen- tury, and was occasioned by a happy accident. The oft-repeated story was, that the German Emperor Lothaire II., in 1136, while carrying on a war in South- ern Italy, having besieged and taken the old city of Amalfi, near Naples, discovered in the booty of the captured place an ancient manuscript of the Digest or Pandects — some accounts declared it to be the copy which Justinian himself had for his own private use — which manuscript the captor gave to the people of Pisa, his allies in the war, who treasured it with reli- gious care, accounting it one of the chief glories of their city ; and that the jurists of Italy were thus led to a THE ROMAN LAW SINCE JUSTINIAN. 33 study of the Justinian system, which this manuscript brought to their knowledge. There is no doubt that a very ancient manuscript of the Digest, written prob- ably in the century after Justinian, was for a long time preserved in Pisa, and, on the conquest of Pisa by Florence in 1406, was transferred to the latter city, where it remains to this day, and is known as the Flor- entine, the oldest and the most valuable manuscript of the Digest. This is true : but the story of its discov- ery, as just related, by the Emperor Lothaire in Amalfi, appeal's to be a myth, and was perhaps occa- sioned by the preeminence and uniqueness of the man- uscript. At all events, it is certain that the Corpus Juris was not unknown in Italy during the five hun- dred years which separated the sixth from the twelfth century. Savigny, the great German jurist of the last generation, has investigated this subject in his master- ly work, entitled " History of the Poman Law in the Middle Ages," and has proved, by incontestable evi- dence, that the books of the Corpus Juris, from the time of their promulgation, never ceased to be known and used in Italy. Justinian was still engaged in his work of law-reform when he began to assail the Ostro- gothic power, an arduous undertaking, which required the efibrts of many years, but, through the splendid military talents of Eelisarius and Narses, was at length crowned with complete success. The success, how- ever, though complete, was not lasting : three years 34 THE ROMAN LAW. after the death of Justinian, the Lombards, the rudest and fiercest of the Germanic invaders, established themselves in Northern Italy, and gradually extended their dominion to the middle and southern parts of the peninsula. The Greek power in the North was soon confined to Eavenna, on the Adriatic, and tlie region just about it, and there it contrived to maintain itself, hanging on the verge of Italy, for some two hundred years. But, if the Greek ascendency was short-lived, it was fortunately long enough to introduce the Jus- tinian law-books, and to give them such a hold on the courts and practitioners of law, that they were able to survive the power that introduced them. It is known that Justinian established in Kome a school of law, similar to those of Constantinople and Berytus. When Home ceased to be subject to Byzantine rule, this law- school seems to have been transferred to Kavenna, where it continued to keep alive the knowledge of the Justinian system. That system continued to be known and used, from century to century, in a tradi- tion never wholly interrupted, especially in the free cities of Northern Italy. It seems even to have pene- trated beyond Italy into Southern France. But it was destined to have, at the beginning of the twelfth century, a very extraordinary revival. 'This revival was part of a general movement of the European mind which makes its appearance at that epoch. The darkness which settled down on the THE ROMAN LAW SINCE JTrSTINIAN. 35 world, at the time of the barbarian invasions, had its midnight in the ninth and tenth centuries. In the eleventh, signs of progress and improvement begin to show themselves, becoming more distinct toward its close, when the period of the Crusades was opening upon Europe. Just at this time we find a famous school of law established in Bologna, and frequented by multitudes of pupils, not only from all parts of It- aly, but from Germany, France, and other countries. The basis of all its instruction was the Corpus Juris Civilis. Its teachers, who constitute a series of distin- gushed jurists extending over a century and a half, devoted themselves to the work of expounding the text and elucidating the principles of the Corpus Juris, and especially the Digest. From the form in which they recorded and handed down the results of their studies, they have obtained the name of glossators. On their copies of the Corpus Juris they were accus- tomed to write glosses, i.e., brief marginal explana- tions and remarks. These glosses came at length to be an immense literature. One of the last glossators, Accursius by name, made a condensed selection from the whole mass of notes, those of his predecessors and his own ; but this selection, which was several times printed in early editions of the Corpus Juris, is itself a voluminous work. It is acknowledged on all hands that the explication by the glossators of the Corpus Juris, and the system of law embodied in it, was, for 36 THE EOMAN LAW. the time in which it appeared, a very remarkable pro- duction, an enduring monument of the industry and ingenuity of its authors. Their knowledge of collat- eral matters was, of course, very limited ; their concep- tions of the ancient world- were, in many respects, crude, and almost childish ; wherever historical or antiquarian learning was necessary, they were pretty sure to go astray. Eut, whatever could be accom- plished by studying the Corpus Juris alone, and the comparison of its different parts with each other, of all that they left little for their successors to accom- plish. Their complete mastery of the text, in all its extent and variety, and their ability to bring together, from every part of it, all that could throw light on any given point, have never been siirpassed, and seldom equalled, by later interpreters. Here, then, in this school of the glossators, at Bo- logna, in the twelfth and thirteenth centuries, the awakened mind of Europe was brought to recognize the value of the Corpus Juris, the almost inexhaustible treas- ure of juristic principles, precepts, conceptions, reason- ings, stored up in it. We do not propose to trace the scientific study of the Eoman law as carried forward by successive generations of zealous and able scholars from that time to the present. "We will only attend to some statements designed to show the effects of this study on the systems of law and justice established and administered among the nations of modern Europe. THE EOMAN LAW SINCE JUSTINIAK. 37 In Italy, tlie native seat of this study, the Corpus Juris soon came to be regarded, in all cities and re- gions of the peninsula, as having the character and authority of fundamental law. By this it is not meant that every thing contained in it was held ta be bind- ing, or was enforced as law, by the courts. On the contrary, many things were recognized as being wholly without legal force, because they were inconsistent either with legislative enactments or with customs so long established and so deeply rooted as to have the force of law. But, when we say that the Corpus Juris was regarded as fundamental law, the meaning is that its texts could be cited in the courts with the presump- tion that they were binding, so that any one who dis- puted their binding force would have to prove his neg- ative. The burden of proof would rest upon the party who sought to invalidate them. He would have to establish the existence of some authoritative legisla- tion, or some equally authoritative custom, which con- flicted with them, and rendered them inoperative. In Southern France, also, the Corpus Juris speed- ily acquired the same commanding position. This result was favored, not only by the proximity to Italy, but still more by the previous familiarity of the people with the Homan law, in a form differing indeed, as we have seen, from that of the Justinian books, yet closely akin to it. At the time of the barbarian conquest, tlie proportion of Germanic settlers in Southern France 38 THE ROMAK LAW. was much smaller than in Northern ; so that the Eo- man law, as that of the native Gallic population, had much fuller possession of the ground, much greater weight and influence, as against the Germanic law, in the South than in the North. It is not surprising, therefore, that, in Southern France, the preyailing Ko- man law should soon give place to the more developed and perfect system of the Corpus Juris, and that this should hecome at length the established law for all classes, without distinction of birth or race. It is more remarkable that this revived Justinian law should find a similar reception in Germany. In the states of that country, the whole population was of Germanic origin, unmixed with Koman or Eomanized elements. They had never been accustomed to see a Koman law administered in the midst of them, side by side with their own Germanic usages. We might have expected that the introduction of an alien system would have been offensive to national feeling, and would have encountered determined opposition. Such opposition we know was made even in Northern France, with a considerable degree of success ; it was made with still greater success in England. Nor, in- deed, was a like opposition wanting in Germany. The feudal nobility and gentry strove to maintain the old national law against the encroachments of the new system. They had sufficient strength to preserve in- tact those feudal principles relating chiefly to tenure THE EOHAK LAW SINCE JUSTINIAN. 39 of laud and inheritance, in wliich they were most deeply interested. But, on almost all other subjects of private law, the Corpus Juris came at length to be recognized as the great fountain of legal principles and rules. From about the close of the thirteenth century, it was received throughout Germany as authoritative law. The principal authors of this change were the educated lawyers. The men of thorough juristic train- ing felt the vast superiority of the Corpus Juris as a source and teacher of jurisprudence over the rude, scanty, and conflicting law-systems of their Germanic fatherland. They were desirous to extend its applica- tion and influence as widely as they could. In such an extension they saw this great advantage, that the law would become in the main uniform and consistent through all districts and territories of their country, while the previously-existing systems were local and particular, varying endlessly from district to district and from city to city. If in our ISTew-England States the systems of law were widely different from one an- other, there would obviously be a great convenience in the adoption of some one system which should be rec- ognized in all as authoritative, especiallyif it was far more fully developed than those which it supplanted, and far more readily applicable to the shifting rela- tions of society. The efforts of the German jurists to extend the autliority of the Eoman law were aided by the influence of the imperial government. It must be 40 THE ROMAN LAW. remembered that the Kings of Germany were acting for a series of centuries under a strange but powerful illusion. They called themselves (Kaisers) Cassars, successors of Julius, Augustus, Tiberius, and the rest. They styled themselves eniperors — emperors, not of Germany (they were only Kings of Germany), but of the Holy Koman Empire, the empire of Trajan, and the Antonines, of Constantino and Theodosius and Justinian. Their efforts to give reality to this illusion by an effective conquest of Italy, and the resistance to their projects offered by the free Italian cities and the Papal power, were for a long time the central move- ments of European history. How these efforts failed of success — ^how, like the dog in the fable, the German chiefs lost their real crown in trying to seize the shad- owy one — ^how they squandered their resources in Ger- many to procure the means, always insufficient, for the subjugation of Italy, and thus in the end lost both Italy and Germany — this is not the place to relate. But it is easy to understand how princes who were accustomed to think of themselves as heads of a Ro- man Empire, as successors of Roman law-givers, would favor the establishment of a Roman law-system in all parts of their dominions. We find the two greatest of the German emperors, Erederick Barbarossa and Fred- erick II., in close relations with the famous civilians, the glossators of Bologna. Frederick Barbarossa, as was stated in the first lecture, sought and obtained THE ROMAN LAW SINCE JUSTINIAN. 41 their aid in support of his pretensions as an Italian sovereign. He induced them to append some of his ordinances to their copies of the Corpus Juris, and to include them in their lectures and annotations. But the most effective service rendered by the imperial government toward the reception of the Koman law in Germany, was by ordaining that none but jurists, regu- larly trained and thoroughly accomplished, should pre- side in the higher courts of justice. Such judges had both the disposition and the ability to give effect to the principles of the Eoman law in the tribunals over which they presided. The inferior courts could not easily hold out against the pressure brought to bear upon them from above. Thus through the whole sys- tem of courts, lower and higher, the Corpus Juris was recognized as the authoritative basis of private law. In what has been already said of Southern France, it was implied that the state of things was different in the provinces of the North. It is true that here, too, the educated jurists made the same efforts to give cur- rency and paramount force to the teachings of the Jus- tinian books. But law-customs of Germanic origin were more deeply rooted here, and more tenacious of life, than in Southern France, and there was not the aame disposition, as in Germany, among the political chiefs of the state, to favor the introduction of the new system. Hence it never gained the same commanding position as in the countries already mentioned. While 42 THE ROMAN LAW. the southern part of France was wont to be spoken of as the country of the written law, i, e., of the Corpu8 Juris, the northern part was designated by a corre- sponding name aa the country of the customary law. Its fundamental law, which varied in the different provinces (Normandy, Anjou, Touraine, etc.), consisted everywhere of the so-called customs of the provinces (customs of Normandy, customs of Anjou, etc.). Bj the name " customs " here is meant a body of tradi- tional law, formed by a fusion of materials derived partly from the old Franks, partly from the conquered Gauls, with others of later origin, and handed down for a considerable time without being written out as a code, though usually collected sooner or later in a written system. From the formation of these cus- toms it is apparent that there were Iloman-law ele- ments in them, mixed up with very much of a differ- ent character. Now, along with these customs which constituted the fundamental law of the province, the Corpus Juris had a recognized and authoritative but subordinate position as auxiliary law. Where the cus- tomary law had no rule applicable to the case in hand, such a rule might be cited from the Corpus Juris, and would then be binding on the court. The burden of proof here lay upon the party that invoked the Eoman rule ; he must show that the case was not provided for in the customary law, and that the way was thus open for an appeal to the Corpus Juris. THE ROMAN LAW SINCE JUSTINIAN. 43 In Spain the Justinian books were received and treated in a manner substantially tbe same as in North- ern France. At the basis lay a customary law, writ- ten or unwritten, wbich was of Spanish, origin, but contained many Eoman-law elements; while, along with this, the Corpus Juris was referred to in the courts, and respected by them as a body of auxiliary law, invested with binding authority so far as it sup- plied the deficiencies of the native system. If now we quit the European maia-land, and cross over to the island-realm of our own ancestors, we seem at first view to have parted company with the Eoman law. The fundamental law of England is the so-called common law — common (that is) to all parts of the kingdom, in distinction from the local usages, which in former times were very numerous, usages peculiar to one or another district of the country. This common law is in the main an unwritten law; that is, the most of it never appeared in written, statutory form, as enactments of a legislative authority, a legislator, or a legislature. It is in the main a customary law, a body of traditional usages, some of them handed down from Anglo-Saxon times, some introduced by the Normans, but most of them evolved spontaneously, as it were, in the practice of the courts, without legisla- tive interference or action. To the Justinian books it concedes no binding authority, even as auxiliary or supplementary law. It professes to supply its own 44 THE EOMJlN LAW. deficiencies by extending its own principles and analo- gies to new cases as ttey arise. Its courts never recognize the Koman law as having the force of law, except in those mixed cases which, from the foreign citizenship of a party or from some other cause, belong in part to an alien jurisdiction. It must be said even that, by many practitioners and professors of the com- mon law, the civil law has been regarded with a feel- ing less favorable than mere indifference, with a tinge of jealousy or repugnance. Blackstone, the great ex- positor of the common law, seldom speaks of the civil law except in terms of disparagement. In general, he refers to it only to point out its inferiority to the com- mon law ; much like the Trenchman who avowed that he learned English in order to see how far inferior Shakespeare was to the great Comeille. He is fond of contrasting the free spirit of the common law with the despotic tendencies of the civil — a distinction un- questionably just as regards public law : that law, which defines the form and powere of the govern- ment, must of course be despotic if the government is a despotism, and liberal if the government is a com- monwealth. But the public law of the Justinian books (including the criminal as well as the constitu- tional law) has never been adopted in the states of modem Europe. When the civil law is referred to as having a practical interest for modern times, it is a system of private law that we are to think of, and it THE ROMAN LAW SINCE JUSTINIAN. 45 would be hard to prove that this is less liberal, less equitable, or more oppressive in the Corpus Juris, tlian in the common law of England. Blackstone repeatedly alludes to efforts made in the time of the early Norman kings to introduce the civil law into England, and represents them as made by popish ecclesiastics in the interest of the papacy. It is probably true that, among the English of those times, a knowledge of the civil law was pretty much confined to ecclesiastics : but, if they esteemed the finished results of a long-cultivated and highly-developed jurisprudence more than the native customs of a semi-civilized people, one can imagine other reasons than prejudice, bigotry, and self- interest, for the preference. But, though the efforts of these ecclesiastical civilians were imsuccessful, though they failed to secure for their favorite system any defi- nite and recognized authority as law, fundamental or auxiliary, it would be a mistake to conclude that the civil law has been without influence on the theory and practice of law in England. On the contrary, its in- fluence has been felt in many ways and to a very great extent. Thus, in the first place, through the ecclesiastical courts. To these we have referred already. The Church at an early period claimed and secured the right of jurisdiction in cases where her own interests were involved, or those of her ministers. The eccle- siastical courts had cognizance of offences committed 46 THE ROMAN LAW. against clergymen, and offences committed (or alleged to have been committed) by clergymen, and of all en- croachments, real or supposed, on the property rights of the Church. But their jurisdiction took a wider range. On the ground that marriage was a sacrament, it was extended to matrimonial law, to cases of divorce, separation, alimony, and the like. From the connec- tion of. wills or testaments with death, the solemn transition to a spiritual world, it was extended to cases of testamentary law, to the proof and execution of wills, and even to the administration of properties whose owners died without will. To all these cases the ecclesiastical courts applied their own ecclesiastical or canon law ; but this, as we have seen, was to a great extent founded on the civil law ; so that through this avenue much of the procedure and principles of the civil law found admission into the English system. So, again, through the court of chanceiy. All are aware that this court is distinguished as being (in name at least) a court of equity. Its powers for a long time past have been pretty definitely fixed, but in earlier times they were large and vague. One leading object of the court was to exercise an equitable jurisdiction, to afford relief in many cases where the operation of the strict rules and forms of law was oppressive and unjust. IsTow the court of chancery was not an eccle- siastical court; but its presiding officer, the king's chancellor (the keeper of the royal conscience), was THE ROMAN LAW SINCE JUSTINIAN. 47 for a long time always an ecclesiastic. Hence it was only natural that the doctrines and methods of the civil law should find entrance largely into this branch of the English system. Tet again, through the development of commercial law in its various departments. The early English law (the private-law part of it) was almost exclusively a law of real estate. It was a feudal law, and the whole feudal system rested on land. Tenures of land, the modes of creating or transferring them, the rights and duties connected with them, and the like — these are the great subjects of the early English law, while other species of property receive scarcely any atten- tion. Hence, as personal property rose into greater relative importance, as trade became more developed, and business relations more complicated, cases were continually arising for which the English law had no rule or principle adapted to their nature. Doubtless, if there had been no other or better source to draw upon, the English judges could have made shift to en- large the scope of old principles or to devise new ones, so as to meet the deoiands of each case as it arose. But in the civil law, they found ready to their hand a store of such principles, carefully worked out and copiously illustrated ; these principles, too, being recog- nized and acted on by the nations with which England was most closely connected in commercial intercourse. It is not surprising that the English judges should 48 THE KOMAN LAW. hare adopted them in their decisions, and so incorpo- rated them into the English law. They have not al- ways, perhaps not usually, taken them directly from the Corpus Juris ; but from the writings of foreign civilians, especially the French, and the judgments of foreign tribunals. It is acknowledged, however, that for her commercial and maritime law, England is largely indebted to the civil law, as set forth in its ancient standards or by its modern expositors. Even in its own proper domain of real estate, property in land and buildings, the common law is not without ob- ligation to the civil. The earliest writers on the Eng- lish law — GlanviUe in the twelfth century, Bracton, and the unknown author of a work called " Eleta," in the thirteenth — show many traces of the knowledge and influence of the civil law. This is especially con- spicuous in Bracton, the most important of the three, of whose work nearly a third part consists of quota- tions (unacknowledged quotations) from the Corpus Juris and from commentators on it. I have thus endeavored to give you some deficite conceptions of the influence exerted by the Roman law, embodied in the Corpus Juris, on the law and jurisprudence of the leading nations of modern Eu- rope. It ought, however, to be added that in some of these countries the position of the Justinian books has been altered, at least in appearance, by the codes adopted in them within the last three-quarters of a THE ROMAN LAW SINCE JUSTINIAN. 49 century. A general code for all the states of Prussia was designed by Frederick the Great as early as 1746, but the work remained for many years unexecuted. After the death of Frederick it was taken up again ; the preparation occupied four years, from 1Y84 to 1788, but it was not until 1794 that the new code went into effect. It was soon followed by the more celebrated Code Napoleon in France. The sweeping changes brought about by the Kevolution, the destruc- tion of the old feudal order and the old ecclesiastical system, the equalization of civil rights for all classes of the peopfe, naturally suggested, and indeed seemed to require, a remodelling of the law. Owing, however, to the agitations of the revolutionary period, the first attempts at such a work had little result. But when Napoleon, after giving a settled order to the state, turned his energetic will to this undertaking, its prog- ress was rapid. The new Code Civil, prepared in little more than two years, was proclaimed in 1804, and soon received the name of Code Napoleon. The emperor always regarded it as the chief glory of his reign ; he said, " I shall go down to posterity with the code in my hand." It was partly, no doubt, the influ- ence of the French Code that induced the preparation of a similar work for the German hereditary states of the Austrian monarchy. The Austrian Code was promulgated in 1811. Thus in three great countries, Prussia, France, Austria, new codes have come in to 50 THK EOMAN LAW. take the place before held by the Corpus Juris. But it does not follow that the Corpus Juris has lost its in- fluence in these countries. It may have disappeared in name, but it survives in reality. The new systems ia the main embody, with more or less change of form, the law before recognized and applied in the same countries. The elements of Koman law before re- ceived, in France, Austria, and Prussia, have passed into these codes. Indeed, it is impossible to understand them thoroughly or to interpret them properly with- out a knowledge of the Eoman law. To know what their makers had in mind and sought t5 express, to determine the real meaning of their utterances, it is often necessary to consider the principles and con- ceptions which their training in the Roman law had planted in their minds. Hence a study of the Roman law is considered no less necessary now than it was a century ago for the thoronghly accomplished Frencli or German jurist. This study forms a leading part in the course of law instruction as now pursued in the universities of those countries. The subject of the next lecture will be the history of the Roman law prior to the time of Justinian. LECTUEE III. THE ROMAN LAW BEFOEE JUSTINIAN. No law-system can be understood thoroughly without some knowl- edge of its history and development. The history of the Eoman law from the Twelve Tables to Justinian falls naturally into three almost equal periods, coinciding nearly with the times of the republic, the heathen emperors, and the Christian emper- ors. 1. From 450 to 100 B. c, marked by a progressive liberalization of the law. 2. From 100 B. c. to 250 A. d., marked by the creation of a scientific law-literature. 3. From 250 to 550 A. d. (toward the close of Justinian's reign), marked by the codification of the law. Third Period. — Its codes were the Gregorian and Hermogeniau in the fourth century, the Theodosian in the fifth, and the Justinian in the sixth. Its character as a time of dechne, without originality or inde- pendence, is shown in a law of the fifth century, which, after designating certain earlier law-writers as authoritative, directed the judge, when these differed, to follow the majority, only exercising his own judgment when the numbers were equal, and not always then. Second Period. — Its scientific law-literature was produced by a class of men called jurisconsulti {jurisprudenies, jurisperiti), distinct from pleaders (praiores), judges {judices), and magistrates (chiefly praetores). The orator had to maintain his client's cause before the judex ; the judex (very different from our judges) had to investigate and decide an issue presented to him in a formvla from the prastor ; the prcetor (who held the middle step in a course of political honors) had to construct from allegations of the parties such a formula, or precise statement of the issue. All these depended on the jurisconsults for legal knowledge and counsel. The first jurisconsults were in general elderly men (as Cato the Censor, in his old age), whose lives had been passed in political and 52 THE EOMAN LAW. military service ; but afterward they were men who (like Cato's son) de- voted their whole lives to this profession. The law-writings of the Catos, and all others before 100 b. c, were of a merely technical character. The first scientific law-writers were Q. Mucins Scaevola and his scholar Servius Sulpicius Eufiis. For about two hundred years, from Augustus to the Antonines, the jurists were divided into two schools, founded by Ateius Oapito and Antistius Labeo, but named from later chiefs Sabinians and ProcuHans. Tet their numer- ous dliferenoes of opinion seem not to have depended on any general principles or tendencies. The authority of the jurisconsults was for a long time only moral. But by an arrangement commencing under Augustus, certain of the num- ber received a jus respondendi, by which the response of such a jurist on any law-question, when properly brought before a judex, had the full force of law ; though if opposite opinions were brought from jurists thus privileged, the judex could decide for himself. These responsa pruden- tium contributed much to develop the Eoman law-system. The same force of law belonged also to the treatises composed by these jurists, except in cases where they were found to conflict with one another. Opposite tendency in English law to undervalue the works of systematic writers. This juristic literature is known to us chiefly by the extracts in Jus- tinian's Digest, which appears to be in extent about a twentieth part of the works used in compiling it. But many law-books were not so used ; many, perhaps, had perished before the time of Justinian. And the ex- tracts taken for the Digest were all subjected to a process of revision and alteration. Outside of the Corpus Juris, we have a number of frao-- ments, but only two works of mucl^ extent, viz. : 1. The Sentential Ee- ceptae of Julius Paulus, abridged but not otherwise altered, which has come down in the Lex Rnmana Vmgothorum ; and 2. The Jnstituiiones of Gains, discovered in 1816 by Niebuhr in a palimpsest MS. of St. Jerome at "Verona : some leaves were wanting, some undecipherable, but about nine-tenths of this most important work have been recovered. First Period. — This begins (450 B. c.) with the code of the Twelve Tables. The plebeians had complained that the laws, being unwritten, were administered by the patricians in the interest of their own order • and gained the appointment of a commission of ten {decemviri) to draw up a written code. This was m most respects a statement of the law already existing : the changes seem to have related chiefly to public law. That the laws of Athens and Sparta had much influence on this code is THE EOMAN LAW BEFORE JUSTINIAN. 53 not probable. In the times of Cicero and Gaius, the actual law had become widely different from that of the Twelve Tables ; yet this code remained the formal basis of Roman law, until superseded by Justinian's legislation. It has been observed already that the Eoman law is not to be thought of as having had through the his- tory of the republic and the empire the same form, or even a form nearly the same, as that which we find in the books of Justinian. On the contrary, the Justin- ian books only represent one stage — ^the last attained in ancient times — of a long process of change and de- velopment. This previous history of the Eoman law now demands our attention. No system of law can be thoroughly understood without some knowledge of its earlier forms and states. To comprehend clearly what it is, you must see how it came to be so. The princi- ple applies not less to English law than to Eoman. An able English writer declares that " even now a common purchase-deed of a piece of freehold land cannot be explained without going back to the reign of Henry yilL, or an ordinary settlement of land without re- course to the law of Edward I." There are many who regard this state of things as not only undesirable but unnecessary. They would break loose from the past, expunge all archaic ideas and elements from the law, and construct it anew with exclusive reference to the actual conditions of the present time. Bat to do this completely is a simple impossibility. The new B4 THE EOMAN LAW. code for which such persons are sighing — the code which shall deal with present things as if there were no past, or as if the past had always been just like the present — if constructed at all, must be constructed by -jurists, by men educated in the law ; for only such men have the technical knowledge and the experience which such a task requires. But every educated law- yer is trained in a system which has come down from earlier ages, and bears the impress of the ages from which it has come. His mind is jilled with precedents, models, conceptions, ftrms of thought and action, which had their origin in other times, and are not wholly adjusted to our own. His work must show the influence of these forces existing in his mind. He may strive against it as much as he pleases ; he may cut and change to the utmost of his power ; he cannot escape from himself, from the ideas and methods which education has made part of his mental nature. He cannot produce a work which is not shaped and deter- mined in its essential features by his own previous training. But I need not argue further to show that such a law-system, independent of the past, so as to be explainable in all its elements and features with- out recurring to the past, is something not to be at- tained. Though longed for and looked for by many people, it is a mere chimera. The Eomans certainly never aimed at constructing such a system. They never thought of discarding the body of law received THE ROMAN LAW BEFORE JUSTINIAN. 55 from tlieir fathers, and framing another with new ma- terials and new foundations. Both in the code of the Twelve Tables, and in the Corpus Juris Civilis, the leading object was to represent and perpetuate the preexisting law. It is true that the systems set forth in these two coUectiouB differ very widely from each other. But the changes which made them differ were slow and gradual, the product of slowly changing cir- cumstances : in general, they went no further than to meet some particular want of which men had become sensible ; in no one age did they bear more than a very small ratio to the whole law-system. The history of the ancient Eoman law has its alpha and omega in the code of the Twelve Tables and of the Corpus Juris Civilis. It must end with the latter, be- cause all further progress lies in the domain of mediae- val or modern history. It must begin with the for- mer, because for earher times there are no suflScient materials for its construction. Of the Twelve Tables themselves we have only fragments. The previous forms and changes of the law are matters for conject- ure rather than history. The historical interval of almost ten centuries which separates the Twelve Tables from the Corpus Juris divides itself naturally into three periods of nearly equal extent. They cor- respond in general to the three periods most prominent in the political history of Kome — the period of the republic, that of the heathen emperors, and that of 56 THE EOMAN LAW. the Christian emperors. The first period for the his- tory of the law begins with the decemviral legislation (of the Twelve Tables) in 450 b. c, a half-century after the expulsion of the kings, and conies down to 100 B. 0., a half-century before the dictatorship of Caesar and overthrow of the republic (i. e., it begins about half a century later, and ^ds about as much earlier, than the republic — from 460 to 100, a period of 350 years). Its distinguishing feature is the liber- alization of the law, its transformation from a system of arbitrary rules and forms to a system of reason and equity. The second period, beginning at 100 b. c, comes down to 250 a. d., a half-century before the accession of Constantine, the first Christian emperor (from 100 B. 0., to 250 a. d., another period of 350 years). Its distinguishing feature is the development of a scientific law-literature. The third period, begin- ning at 250 A. D. may be made to close at 550 A. d., in the latter part of Justinian's reign, after all but a few of his novels had been promulgated (a period of 300 years, from 250 to 550). Its distinguishing feat- ure is the formation of great law-codes, the codifica- tion of the law. Of this last period nearly enough has been said already. "We have alluded to the Gre- gorian and Hermogenian codes compiled in the fourth century ; we have spoken of the Theodosian code com- piled in the fifth, and, above all, of the Justinian code in the sixth century. It was a period of general and THE KOMAN LAW BEFORE JUSTINIAN. 57 great decline. Original genius is no longer to be found among those devoted to the law. The power of striking out new paths of investigation, of bringing forward novel and profound views of legal truth, has taken its place among the lost arts. It is now the highest attainment of the legal mind to comprehend the things written by the great men of former times. No one thinks of making anew treatise on law, unless it be by excerpting or combining old ones. Compilation is the prevailing form of literary activity. The Cor- pus Juris, by far the highest product of this period, owes nearly all its value to material produced in the period preceding it. The unscientific spirit of the time, its incapacity for independent thought, are well illustrated by a statute issued in the "Western Empire about a hundred years before the reign of Justinian. This statute begins by naming five of the older jurists — ^Papinian, Paulus, Gains, Ulpian, and Modestinus — whose writings are to have the authority of law ; it then gives the same authority to other older jurists whose writings are quoted as authoritative by any of those five. But there were many points on which the writers thus recognized differed naore or less wide- ly in their opinions — many points on which the parties to a suit might quote confiicting passages from this wide range of jm-istic literature. How should the judge proceed in such a case ? Who should decide when doctors disagreed ? The special object of the 58 THE ROMAN LAW. statute was to meet and relieve tins difficulty. It directed the judge in any ease of this kind to count the jurists quoted on one side and those quoted on the other, and to be governed by the majority. He was not allowed to consider the reasons for the two opin- ions, to weigh them against each other, and to decide accordingly. It was a mere question of numbers. It might be that one writer had given a careful study to some point on which two others had expressed them- selves with little reflection ; it might be that one of the two merely copied from the other : the judge must close his mind to all such considerations, and go with the majority. It might, however, happen that the jurists quoted on one side and the other were equal in number. Even in this case the judge was not always left to his own discretion ; if Papinian was among the writers quoted, his opinion must be preferred ; so that Papinian weighed more than any one jurist, yet less than any two, while all the rest weighed just alike. Only where the numbers brought forward on botli sides were the same, and Papinian was not among them, was the judge allowed to think for himself. A procedure so mechanical could not have been thought of in the better days of Koman jurisprudence. Let us now go back to the second period — ^from 100 B. c. to 250 A. D. — marked by the development of a scientific law-literature. We have seen that near- ly all the writers represented in Justinian's Digest — THE EOMAN LAW BEFORE JUSTINIAN. 59 thirty-nine in number — ^belonged to this period : other names of law-writers — some of them highly distin- guished — have come down to us from this time. It is natural to ask, What was the general position and of- fice of the men — called ^'mw consulti, juris prudentes, juris periti — who produced this body of literature ? They were not advocates ; they did not appear in the tribunals to plead the causes of their clients. They were not judges, set to try causes, to hear the testi- mony offeree^ by the parties, to listen to the speeches of the advocates, and to give their decision or verdict. In the forensic system of the Eomans, as it was during this period, neither advocates nor judges had in gen- eral much knowledge of the law. Cicero, the most famous of advocates, repeatedly acknowledges his own want of legal learning, and intimates that a very moderate acquaintance with the law was sufficient for the purposes of his profession ; if any thing more was needed, it could be obtained for each case as it arose, by applying to the jurisconsults. In regard to the judges, their character and functions were very differ- ent from those of our judges. The Koman judges were not, as with us, the presiding officers in the ad- ministration of law and justice. This was the position of the magistrate, the prjBtor. When a suit at law was commenced, the parties appeared before the prae- tor, who made a preliminary examination, not to ascer- tain the merits of the case, but to find the precise 60 THE ROMAN LAW. points ia controversy. He heard the statements of the plaintiff and the counter-statements of the defend- ant, and from the two he constructed a formula (as it was called), a brief technical expression of the dis- puted issues. He then appointed a jvdex — in cases of private law there was usually but one judex — ^to try the case; into whose hands he put the formula, in- structing him to investigate the matter, and if he found the facts to be so and so, as recited in the for- mula, then to condemn the accused party,, but, if he did not find them so, to acquit him. With this formula as his guide, the judex proceeded to his work, to receive the evidence of the witnesses, to hear the arguments of the advocates, and finally to return his verdict or decisive judgment to the praetor who had appointed him. It will be seen at once that the office and duty of such a judex were of a subordinate nature, much inferior to those exercised by our judges, and not re- quiring, as these do, a thorough knowledge of the law. Even the magistrate, the prsetor himself, though he had more need of law-knowledge than the judex, was not ordinarily a jurist, a lawyer by profession and training. The prsetorship was not a permanent office ; the incumbent held it for a year, and then gave place to his elected successor. It was one stage in. the decwr- sus Jionorum, or course of political advancement ; it was the middle step in the ladder, between the quses- torship and tribuneship below it, and the consulship THE KOMAN LAW BEFORE JUSTINIAN. 61 and censorship above it. Thus, in general, the prater was not an elderly lawyer, but a middle-aged politi- cian. In matters of delicacy or difficulty he was nat- urally dependent on the advice of the jurisconsults. They were the experts in law, respected and resorted to as such by all concerned in the administration of justice, by the praetor, the judex, the orator or advo- cate, as well as by private persons who wanted to know their legal rights or the means of asserting and secur- ing them. Often, especially in earlier times, they were elderly men who, after passing through the whole series of political distinctions, found an agreeable occupation for their advanced years in giving to their fellow-citi- zens the beneiit of their knowledge and experience. Cicero, in more than one passage, shows us attractive pictures of Koman statesmen passing a serene, useful, and honored old age in such employments. But as time went on, and the law became more extended and complex, the jurisconsults were usually men who de- voted their lives to the study and exposition of the law ; that is, they were professional lawyers and counsellors. Aa example of the former class is the elder Oato — Cato the Censor — who died at an advanced age in the year 149 B. 0. ; among his prodigious and multifarious activi- ties, he is said to have composed, apparently in his later years, several boots on law. His son of the same name, who died in middle life a few years before the father, would be an example of the latter class. He 62 THE ROMAN LAW. gave his strength to the law, made it the main busi- ness of his life, and wrote books upon it more numer- ous than his father's* "We have placed the beginning of a scientific law- literature at about 100 b. o. There was an earlier law- literature, to which these books of the Catos belonged, and were by no means its first productions. -We hear of a law-book written as early as 300 b. o. But for a long time these books of law had no claim to a scien- tific character. They were mere collections of forms and rules, without any attempt to trace the principles involved in them, or to arrange the materials accord- ing to a logical system. The first jurisconsult who applied a scientific method to the treatment of the law was Q. Mucius Scaevola, whose old age coincided with the early youth of Cicero. He was, as we have al- ready seen, the earliest writer cited in the Digest ; four passages from a book of definitions written by him are found in the collection. He was followed by a scholar of no less ability and fame, Servius Sulpicius Kufus, of about the same age with Cicero, who praises him in high terms as the greatest of all jurists. As an orator he was surpassed only by Cicero himself. And now tlie number of jurisconsults who wrote treatises on law, begins to be large. It would not be worth while to enumerate here even the more distinguished names in the series. It may be curious, however, to notice a division into opposing schools or sects which arose THE EOMAN LAW BEFOEE JUSTINIAN. 63 among tliem and continued for nearly two centuries. This division commenced in the reign of Augustus, witK two jurists of strongly-contrasted characters and tendencies, Ateius Capito, a warm supporter of the imperial despotism, and Antistius Labeo, a man of in- dependent spirit and strong leanings toward the old republicanism. The schools, however, were named from later chiefs. The followers of Capito were usu- ally called Sabinians, from liis scholar Masurius Sabi- nus; those of Labeo were called Proculians, from Julius Proeulus, a scholar, not of Labeo himself, but of his follower Nerva, grandfather of the Emperor Nerva. It is remarkable that for a series of genera- tions, from the days of Augustus to those of the An- tonines, every jurist enrolled himself under one flag oi the other, and was known as a Sabinian or a Proculian. The student followed the juristic faith of the master under whom he studied; if the teacher was a Sabinian, all his pupils were Sabinians, and all their pupils like- wise. There may have been cases of conversion from one denomination to the other, but we hear nothing of them. It does not appear that the controversies of the two schools were conducted with bitterness or ex- asperation ; yet the party lines were drawn with much distinctness. The two schools differed on many single points of opinion and doctrine. It is remarkable, how- ever, that these differences do not appear to depend on any general principle, or mode of thought, or method 64 THE EOMAN LAW. of investigation, characteristic of either party. Ke- peated attempts have been made to trace some such general ground of separation. Thus the differences have been referred by some to the influence of the Stoic or the Epicurean philosophies ; by others, to an historical or an unhistorical method in the interpreta- tion of the old law ; by others, to innovating or con- servative tendencies ; by others, to a recognition of reason or of authority as the supreme guide. But none of these solutions will explain more than a pairt of the facts. From what we know of the personal characters of Labeo and Capito, it is likely enough that the origi- nal differences may have been of the kind last men- tioned — that Capito may have been more inclined to follow established rules without thinking or judging for himself; Labeo more disposed to break over estab- lished rules, in reliance on his own thinking and judg- ment. But, as the schools passed down from one gen- eration to another, new questions and controversies were continually added to the old ones ; and if the differences had at first a common character, such as the one just supposed, this soon ceased to be the case. In fact, it was this multipHcation of unconnected con- troversies that led eventually to the dissolution of the schools. Men must arise sooner or later who would be unable to agree with either school on all the points of distinction, who would recognize the Sabinians as right on some, the Proculians on others, and on others, THE EOMAN LAW BEFORE JTJSTINIAK. 65 perhaps, would be inclined to dissent from both, pre- ferring some third view of their own. The jurist Gaius, in the time of the Antonines, often speaks of himself as a Sabinian ; perhaps he was the last who gave himself that name. Certain it is that the later jurists included in the Digest — ^Papinian, TJlpian, Paulus, and others — do not refer themselves to either school, but hold themselves free to exercise an inde- pendent judgment on all points of legal controversy. A few words now as to the authority attached to this juristic literature. We have seen that the juris- consults were the great expositors and interpreters of the law, and that courts and magistrates, as well as private parties, relied on them for legal information and counsel. Tet for a long time — ^through the whole period of the republic — their influence was only mor- al. Their counsel was received because they were be- lieved to be able, learned, and honest ; but nobody was legally bound to receive it. The prsetor and the judex might act upon their own opinions of the law against the concurrent judgment of the jurisconsults. !N"o doubt they did so very rarely, if ever ; but there was no law to prevent them from doing so. But under the imperial regime there was a change in this respect. Augustus gave to certain jurists a privilege called jus res^pondendi : they could not only give answers when consulted on points of law (that right they had always enjoyed), but their answers were now to have the force - 4 66 THE EOMAN LAW. of law. The opinion of a jurist tliiis distinguistied, when placed in a properly-authenticated form before a judex conducting a trial, had all the obligation of a statute : if the judge disregarded it, he did so at his peril. The opinion, of course, had reference, not to the facts of the case — which the judge himself had to determine — ^but to some point of law submitted to the jurisconsult ; and even on this his opinion might be neutralized by a conflicting one from another per- son invested with the same jv^s respondendi. "Where opposite opinions from authorized jurisconsults were laid before the court — and we may presume that this would seldom fail to be done in cases where there was any real doubt — the judge was at liberty to make his choice between them. The cases submitted to these privileged jurists were not always those which had come up in actual experience. It appears that ficti- tious or imaginary cases were also presented for their judgment : under such and such a possible or conceiv- able combination of circumstances, what would the law require ? A recent able lecturer on ancient law, Mr. Mainej finds in this fact an explanation of the more thorough scientific development which distin- guishes the Eoman law from the English. The Eng- lish law is made up chiefly from the decisions of the judges, as given in the published reports. But the judge confines himself as closely as he can to the facts of the case before him. Statements as to what THE BOMAN LAW BEFORE JUSTINIAN. 6Y the law would be, in other cases diifering more or less from the one in hand, are looked upon with disfavor : obiter dicta they are called, extra-jadicial statements, both of which terms carry with them a shade of cen- sure. Bat the Eoman jurisconsult was liable to be called upon for his opinion on cases differing in every imaginable way from those which had occurred in prac- tice, and was thus led to take into account and make provision for a multitude of relations which the Eng- lish judge would leave untouched because they do not happen to be involved in the cases actually presented for his consideration. The authority thus conferred on certain jurists by the jus resjpondendi would naturally extend itself to the books of which they were authors. If their writ- ten opinions on particular points submitted to their judgment had the force of law, there could be no reason for giving less weight to their written opinions when embodied in systematic treatises. They were not likely to express themselves less carefully or dis- tinctly in writing for public or permanent use than in writing for immediate and individual occasions. It is quite certain that a large part of this juristic litera- ture — all that was produced after the time of Augus- tus by jurists invested with the jus res^ondendi — was recognized at once as having the authority of law. Here, also, if different writers equally authoritative were in conflict on any point, as we know them to have 68 THE ROMAN LAW. been on very many points, the magistrate or judge was free to follow Ms own convictions. The fact that these books, or most of them, had the force of law from the time of their production, will serve to explain the procedure of Justinian, when he gave the largest and highest place in his system to a digest of their contents. In English law there ha& been a pretty decided ten- dency in the opposite direction, a tendency to under- value the authority of systematic writers. Even such works as those of Blackstone, Chitty, Sugden, and others of like merit, are, it is said, seldom referred to in the English courts. The dicta oi a third-rate judge are deemed worthy of more attention than the care- fully-reasoned opinions of a learned and thoughtful writer. Even Judge Kent, in his " Commentaries," speaks of the precise and well-weighed language of the judges on the one hand, and the loose expressions of the systematic writers on the other, as if this was the usual and natural relation. I know it will be said that the decision of a judge is the law for his successor, and therefore demands attention beyond the measure of its intrinsic merit. But in strictness the decision of a judge is not law for succeeding cases : it is only evidence of the law. It is the testimony of a witness, who is presumed to be learned and capable, explaining what the law actually is on the point in question. It decides the particular case, but it does not of necessity decide the similar ones that follow it. The succeeding THE EOMAN LAW BEFOEE JUSTINIAN. 69 judge may reject the testimony of his predecessor as erroneous : he may find that the law was not in. fact what his predecessor declared it to he ; he may there- fore overrule (that is the technical word for it) — he may overrule the prior decision. That judges should hesi- tate to exercise this liberty of varying from a previous ruling is natural and proper : it tends to diminish those uncertainties of the law which are so loudly complained of. Still it may perhaps be doubted whether the feel- ing is not carried too far, so as to result sometimes in the establishment of inequitable and oppressive rules. The consequences, indeed, would be worse if there were not an escape in practice. Such an escape is given in the fact that no two cases are altogether alike, so that a judge, who does not wish to follow what he regards as an inequitable decision, is generally able to find some distinction which will serve as an excuse for doing so. Is it said that the Koman system, when it gave to the utterances of certain jurists the binding authority of law, subjected itself to a danger and dif- ficulty equally serious ? I do not deny it ; but the Koman system provided a more direct and honest es- cape by allowing those who had the jus resjpondendi full liberty to express opposite opinions, the court be- ing then free to choose the one that seemed most rea- sonable ; while the uncertainty that might arise from this conflict of opinions could always be removed, if necessary, by legislative interposition. 70 THE ROMAN LAW. Of the juristic literature which we have been con- sidering only a small part has come down to us. It is represented mainly by the extracts in Justinian's Digest. But we know that many works, many au- thors even, are not represented in that collection. It is probable that many works, especially of the ear- lier jurists, had already disappeared, so that the com- pilers of the Digest could not have used them if they had so wished. Of the works which they used, it appears from their own statements that they took about a twentieth part ; of course, a larger proportion from some and a smaller from others, but a twentieth of the entire mass. It must be remembered, however, that we do not have these extracts in their original form. They were subjected to a systematic process of alteration, retrenchment, interpolation, to bring them into harmony with the condition of the law as it had come to be in the time of Justinian, or as he chose to make it by his legislation. Outside of the Corpus Juris, we have, besides a number of fragments, two works of considerable extent, the SententioB (or Senten- ticB SeoeptcB) of Julius Paulus, and the Institutiones of Gains. The former has come down in the collection of Eoman law which the Yisigothic King Alaric caused to be made for the native inhabitants of his kingdom, the Lex Homana VisigotTwrum. It is evi- dently the epitome of a much larger work, but appears to have undergone little change beyond abridgment. THE EOMAN LAW BEFOKE JUSTINIAN. 71 Much more important, however, is the other work, the Institutiones of Gains. On this, as we have seen, was founded the Institutiones of Justinian, the little out- line or elementary text-book of law prefixed to the Digest. The original work of Gains was until re- cently supposed to have sh"ared in the general wreck which has overtaken the body of literature to which it belonged. But about fifty years ago it was discov- ered under circumstances so remarkable as to deserve a somewhat particular statement. The manuscript which contains it is of the class called palimpsest or rescript — palimpsest, i. e., " rubbed again," " scraped again," so as to efiface the text first written on them and make clear space {carte Manche) for a new text ; or rescript, i. e., " written over again " with a new text after the first had been cancelled. The old world suf- fered sorely for want of something to write on, some- thing abundant, easily procured, and inexpensive, such as the later world has learned to manufacture from its rags. If the ancients had possessed paper like ours, they would hardly have failed to invent printing, which, indeed, as it was, they narrowly missed doing. Parchment, the best material which they had, was never abundant, and of course always costly. Hence it was a very common practice, especial- ly with the monkish scribes of the early middle ages, to write on parchment that had been written on be- fore. If the owner cared little for the old text, or if he 72 THE KOMAN LAW. had it in some other copy, he would wipe it out with a sponge, often scraping the surface to make the oblit- eration more complete, and would then write the new text in its place. Rescripts have been found in which parts of the Bible have thus been blotted out to make way for scholastic divinity or monkish legends. In many cases the old letters are still traceable under the new : in others they can be made traceable by apply- ing a solution of nutgalls, or some other chemical re- agent, to freshen up the ink with which they were written. By such processes a good deal that is valu- able has been read out, since the beginning of this cen- tury, from palimpsest manuscripts, especially by Car- dinal Mai, the late keeper of the Vatican Library. But the recovered Institutes of Gaius is perhaps worth all the rest put together. The discovery was made by the historian Niebuhr. In 1816 he was sent by the Prussian Government as minister to Rome, in order to pursue there the researches necessary for his Eoman History. On the way he stopped at several cities to examine palimpsest manuscripts preserved in tlieir li- braries. Among the rest he looked into the Chapter library at Verona, spending parts of two days in the place ; and there he discovered a palimpsest of con- siderable extent, which a hasty examination showed him to contain in its original text the work of some Eoman jurist. Savigny, to whom he wrote an account of his discovery, recognized the work as being the lost THE ROMAN LAW BEFORE JUSTINIAN. 73 Institutes of Gaius. The Prussian Government being called upon for aid, sent immediately to Verona two men, one eminent as a jurist, the other distinguished for his knowledge of ancient manuscripts, who spent several months in deciphering the text, and made out nearly every thing which diligence and skill could accomplish. The task was difficult thi-oughout and in some parts utterly desperate. About a quarter of the parchment had twice gone through the process of ob- literation and rewriting, so that the clearly legible text was the third which had been written upon it. It should seem that some old monk, wishing to copy cer- tain works of St. Jerome, cast his eyes upon this parchment of Gaius, and thought it well fitted for his purpose. A book of law, and especially obsolete law, would not be of much value in his eyes. Having erased the old text by rubbing and scraping, he began to copy his St. Jerome, but, for some reason unknown to us, gave up his work when he had used only a quarter of the writing-material thus obtained. The parchment must have fallen afterward into the hands of some other person, perhaps a brother of the same convent, who also wished to make a copy of St. Jerome, but was not satisfied with the beginnings of his predecessor. He therefore erased what tlie latter had written, and used the whole, or nearly the whole, parchment for his own manuscript. In these processes the leaves were ar- ranged without reference to the original order, but 74 THE ROMAN LAW. only three leaves were wholly lost. "Wlieu these are added to tlie parts which, after all use of glasses, re- agjents, and guessing, were found entirely undecipher- able, it appears that about a tenth part of the origi- nal work is gone. The nine-tenths that remain have thrown great light on the condition of the Koman law in its best period, and have given a new impulse to the Btudy of its history. It is a noticeable fact that the letters of the recovered text show by their forms that they must have been written before the time of Jus- tinian. It may be doubted indeed whether the work was ever copied after Justinian's legislation had given it a new form, and made the old one obsolete and in- valid. Let us take up now, for the short remainder of the hour, the first period, which I have designated as that of the liberalization of the Eoman law, extending from 450 to 100 b. o. There will be time to glance at the Code of the Twelve Tables, the product of the de- cemviral legislation, which marks the beginning of this period. It will be remembered that the Eoman plebs, in their long struggle with the patricians for equality of rights, had for some time demanded that the laws of the state should be reduced to a written form. They complained, doubtless with good reason, that the laws, being unwritten, could be, and were habitually, so" manipulated by the patricians, who had the adminis- tration in their hands, as to be grievously unjust and THE ROMAN LAW BEFOKE JUSTINIAN. 75 oppressive to tlie plebeians. The patricians, after long opposition, were forced to yield to the demand. A commission of ten persons was appointed in 451 with full powers to draw up a ^vritten code. The next year this commission reported ten tables or chapters of laws, and added two more in the year following. The object proposed was not so much to prepare a new sys- tem, as to produce an open and exact statement of the one already existing. Changes were indeed called for by the plebeians, and some of them were introduced into the code ; but these related chiefly to public law, to political rights and obligations. It is probable that in private law the Twelve Tables did little more than give expression to the unwritten usages and rules of the preceding times. The stories of persons sent to Athens and Sparta, to get the laws of Solon and Ly- curgus for the nse of the decemvirs, are hardly en- titled to credit. There is no reason to suppose that foreign elements were admitted to any great extent into this body of law. The Twelve Tables continued to be recognized for many centuries as the fundament- al law of the Romans; they did not formally lose this character until it was taken from them by the legisla- tion of Justinian. The law had become indeed so dif- ferent in the time of Cicero or of Gaius, that the de- cemvir Appius and his colleagues would hardly have recognized it as their own system ; yet Gaius and Cicero regarded the Twelve Tables as the foundation 16 THE KOMAN LAW. of their law. Among tlie works of Gaius quoted in the Digest is a Commentary in six books on the Code of the Twelve Tables. Cicero tells us that in his youth boys were accustomed to commit them to mem- ory, but in his later years this practice had gone out of use. The copies of them must have been very abundant ; it is much to be regretted that none has been preserved to modern times. The quotations from the Twelve Tables found in extant works of ancient authors are quite numerous : the collected fragments number more than a hundred. In general, they are very short. Some of them, especially those quoted by the grammarians, preserve the antique Latin forms of the early republic; but the most are modernized in language. The general character of the law-system embodied in this code will be a subject of consideration in the next lecture. LECTUEE lY. PEOGEESS OF THE EOMAU LAW DUEING THE EEPtJBLIOAH PEEIOD. The early Koman law of the Twelve Tables was simple, but highly formal, having many forms of speech and action which were rigorously insisted on. This formalism is illustrated — 1. Inprosecutmg for a money debt, by sacramenium or judicial wager ; dangers to the plaintiff from overstating or misstating his claim. 2. In bringing an action to recover a piece of land, where, over a representative clod, the parties asserted their claims of right (vindicaiio), and challenged each other in a sacra- nwntum. 3. In buying and selling res mancipi (lands, buildings, slaves, horses, cattle), where a process called mancipaiio or mancipium must • take place, with five Koman citizens of fuU age as witnesses, and a sixth as Uhripens (balance-holder). 4. In making a valid testament, where the testator had to make a formal sale of his estate, with all the cere- monies of mancipation, to a so-called familiae emptor (purchaser of the estate). Value of such forms in authenticating legal transactions, and in making the parties sensible of the gravity and the binding force of their own acts. The Romans from an early period were led to recognize the distinc- tion between acts and relations of law which were peculiar to themselves, and those which they had in common with other nations. To the for- mer they gave the name of jus civile (in its narrower sense : not all law that belonged to Roman citizens, but law that belonged only to Roman citizens) : the latter they called jvs gentium (law of nations, but very different from our irUemational law, to which the Latin j^is feiiale, or law of heralds, made some approach). This distinction gained impor- tance for the Romans, as they came more and more into connection with foreigners. They saw too that the jm gentium, being common to all 78 THE ROMAN LAW. nations, had its foundation in a confonnity to universal reason and jus- tice. And they learned to regard such conformity, where it could be shown to exist, as proof that a rule of law belonged to the jus gentium. The liberalization of the law during the republican period was largely a progressive limitation of the jus civile and extension of the jus gentium. It was effected to a great extent by the agency of the pnetor, and through the actions or legal remedies set forth in his annual edict. Here, with- out formally opposing the old law, he often modified or nullified its work- ing. Thus, when there was a testament suitably authenticated, but made without the formalities above mentioned, the praetor allowed the successor named in it to receive the estate, not as Jieres (heir), but as bonorum pos- sessor (actual holder of the property) with the same practical rights as if he was an heir. So, where a person had bought a horse or a house without the ceremonies of mancipation, he was only bonorum possessor, not domirms (owner), until undisputed possession for one or two years had made him owner by usucapion ; but in the mean time the prsetor allowed him to sue and be sued, as if by usucapion he had become owner. » We see here the use of legal fictions, which are found to an equal or greater extent in English law : most remarkably in the fictitious col- lusive procedure of a common recovery, by which the judges nullified a statute which Parliament had refused to . repeal. Such cases make it evident that the law-making power, which resides in the people, is not always exercised in the way of direct le^slation, but to an important extent through the action of the courts. There is in every country a great deal of law, recognized and enforced, which never came from a legis- lator or a legislature, but has grown up in the practice of the courts. This law may even run counter to the legislative ; but in such cases it does not usually maintain a direct opposition: it rather seeks its end by some indirection, fiction, or evasion. In this country it has a means of attack, more open and effective, in the power of pronouncing on the con- etitutionality of any statute. The Eoman law in the time immediately succeed- ing the" legislation of the Twelve Tables was of a very- simple character. This is only what we should expect to find. The complexity of a law-system must depend on the complexity of the relations which are to be PEOGEESS OF THE EOMAN LAW, ETC. 79 regulated by it. In a petty republic, having all its territory within a day's march of the capital, among a population of primitive life and manners, confined to a few branches of industry, and holding little inter- course with outside peoples, the law must have been very different from the highly-developed system of the later republic, whose dominion extended over a large part of the world's area, and included nearly all of the world's civilization. But you may be less prepared to hear that this simple law of the early Komans was of a very formal character. Almost all actions which the law recognized as valid, as creating rights and ob- ligations among men, had to be performed in a certain fixed way, with prescribed words and ceremonies ; and a deviation in any particular from the established form destroyed the validity of the whole transaction. Let us look at some examples illustrating this marked feature of the early Eoman law. And, first, let us suppose that a man wishes to re- cover a money debt of ten thousand pounds, which he claims to be due to him. Under the later law, as briefly described in the last lecture, the creditor would bring his debtor into the pragtor's presence ; and the prastor, after hearing the allegations of the two parties, would make out a formula, or written statement of the claim, something in this style: "Let Titius be judge. If it appear that Numerius is bound to pay ten thousand pounds to Aulus, then condemn Nume- 80 THE ROMAN LAW. rius in the sum of ten thousand pounds ; if not, acquit him." This formula he would then place in the hands of Titius, the appointed judge, for investigation and decision. But in the early period of which we are now speaking, in the first centuries of the republic, the procedure was quite diflferent. "When the parties came before the prsetor, the plaintiff set forth his claim in these prescribed words : Aio te mihi x milUa mris dare oportere (I affirm that you are bound to pay me ten thousand pounds) ; to which the defendant replied in similar terms : Nego me tibi x iniUia ceris dare oportere (I deny that I am bound to pay you ten thou- sand pounds). The plaintiff then said : Quando ne- gas, te sacramento quingenario jtrovoeo (since you deny the claim, I challenge you in a wager of five hundred pounds) ; and the defendant again responded : Quando ais neque negas, te sacramento quingenario provoeo (since you affirm the claim, and do not deny it, I chal- lenge you in a wager of five hundred pounds). Each party then deposited the five hundred pounds, the amount of the sacrcmientum, or wager ; or, if it was not deposited, gave security for its payment. The two parties then summoned each other in terms which are not reported by our authorities, but were doubtless fixed and constant, to appear on a certain day before the standing court often judges (the decemviral court), to try the issue thus joined between them. You will observe the very singular shape wliich is here given to PROGRESS OF THE ROMAN LAW, ETC. 81 the controversy. It is reduced to a wager, a judicial bet. The plaintiff bets five hundred pounds that his claim is a just one, and the defendant bets five hun- dred pounds that it is not just. And the question, as it comes before the decemviral court, is simply this, which of the two parties ought to win and which to lose in the wager ? To decide that question, they are obliged to determine the justice of the claim ; but this, though in reality the main point, is in form secondary and subordinate. The formal judgment is, that this party or that is winner of the bet. If it is the defend- ant, he receives the five hundred pounds staked by his adversary. If it is the plaintiff, he receives, besides the five hundred staked by defendant, the sum of ten thousand, which the court incidentally decides to be due to him. It is important to notice a very serious danger to the plaintiff which was involved in this procedure. He has claimed that the defendant owes him ten thou- sand pounds, and has staked five hundred pounds on the justice of his claim. Suppose, now, that the court, on a full examination of the case, are satisfied that the defendant is indebted to the plaintiff, but that the amount of the debt is nine thousand nine hundred instead of ten thousand pounds. Plainly the court must give judgment against the plaintiff. The ques- tion for them to decide is, whether he has won his bet or lost it. His bet was, that the defendant owed him 82 THE EOMAN LAW. ten thousand. 'Now, a man who o\ye3 only nine thou- sand nine hundred cannot he truly said to owe ten thousand. The plaintiff, therefore, has lost his bet, and, consequently, his cause. But can he not pay the sacramentum which he has forfeited in this suit, and then bring a new suit for nine thousand nine hundred? No, the law will not allow him this sec- ond chance. He has exhausted his right in the suit already decided: he has subjected all his money- claims against the defendant to the ordeal of a judicial examination ; and the law will not permit him to repeat the process. A man is bound to know his own rights, and to respect the rights of others. If I over-estimate my own rights by demanding what is not really due to me ; if I invade my neighbor's rights by suing him for what he does not really owe me ; I am justly punished by losing the right which, through my exaggeration of it, I have turned into a wrong. So, doubtless, the old Romans were accustomed to reason. Another circumstance may be mentioned which illustrates the rigorous formality of this early law: In the formal statement of his complaint, it was necessary for the plaintiff to take care that he stated something which was not only true in itself, but was distinctly recognized in the Twelve Tables as ground for an action. Thus we are told by Gaius that a man who brought a suit de vitibus succisis (for vines cut down) against somebody whom he charged with cut- PROGRESS OF THE ROMAN LAW, ETC. 83 ting down the vines in his yard, was non-suited at tlie outset : he ought to have made it de arboribus succi- sis: the Twelve Tables authorized suits de a/rborihus succuis, which would include vines, but said nothing as to a suit de vitibus succisis. If the object of the plaintiff's suit was to recover a piece of ground, which he claimed as his own, the procedure was still more elaborate. The parties hav- ing come before the praetor, the plaintiff began : Fun- dus qui est m agro qui Sabinus vocatur, eum ego ex jure Quiritium meum esse aio : inde ibi ego te ex jwre momu consertum voce (the piece of ground lying in what is called the Sabine land, that j)iece of ground I aflarm to be mine by law of the Quirites : for which cause I summon you there to join hands in process of law). This joining hands in legal process refers to a joint seizure of the same object at the same time by both parties, each declaring himself the owner. The defendant replied in similar terms: Unde tu me ex jure manu cormertmfn vocasti, inde ibi ego te revoco (as you have summoned me to join hands in process of law, for the same cause do I again summon you to the same place). Whereupon the prsetor said : Suis utrisque superstitibus praesenttbus, istam viam dice : i/nite viam (having each one of you his own witnesses present, I bid you take your way thither : enter upon your way). It would seem that, in the earliest times, the parties, on receiving this mandate of the praetor, 64 THE ROMAN LAW. actually repaired to the disputed ground, and there, in the presence of witnesses, solemnly asserted their claims of ownership. But, after a time, they contrived to manage matters in a more convenient, though not less forrfial, way. By previous concert, before coming to the praetor, they took a clod, or lump, of earth, from the disputed ground, of which it was to serve as a rep- resentative — somewhat like the brick which the old Greek Scholasticus carried about as a specimen of the house that he wanted to sell. The clod was deposited somewhere in the neighborhood of the tribunal, so that, when the inite viam was heard, a few steps suf- ficed to reach it; and presently, at the words redite viam (take your way back), uttered by the prsetor, the parties returned, bringing the representative clod with them. The plaintiff then said : Hunc ego fundum ex jure QuiriUum meum esse aio, secundum suam causa/m sicut dixi : ecce tihi vindictam imjposui (this piece of ground I affirm to be mine by law of the Quirites, in accordance with its title as I have stated : take notice, that I have laid upon it the sign of power). This vin- dicta, or sign of power, was a rod, or wand, symboli- zing the owner's power, which, as he spoke, he laid upon the clod. The defendant then followed, uttering the same words, and accompanying them with the same significant action. The prsetor now interposed to prevent a seemingly imminent personal collision : dis- cedite ambo (stand apart, both of you). The plaintiff PEOGRESS OP THE ROMAN LAW, ETC. 86 obeyed, but, as be did so, addressed the defendant: Postulo anne dicas qua ex causa, vindioaveris (I ask wbetber you can show cause for your assertion of power) : to which the latter replied : Jus peregi sicut vindiotam imposui (I have exercised a legal right in laying on, as I did, the sign of power). The plaintiff then said : Quando tu injuria vindicavisti, quinge- nario te aeris saoramento te ^rovooo (since you have made a wrongful claim of ownership, I challenge you in a wager of five hundred pounds) ; and the defendant rejoined : /Similiter ego te (in the same way I challenge you). The parties then, having deposited, or given security, for the five hundred pounds, summoned each other to appear, on a fixed day, before the decemviral court for the trial of their judicial wager ; the prastor, at the same time, requiring the defendant dare praSdes litis et vindiciarum, i. e., to give security that, if the decision should be against him, he would deliver up the ground, of which, for the present, he retained pos- session, without injury to its value, together with all profits which might accrue from it in the mean time. "We will add one or two other examples of elabo- rate ceremonial required by this early Koman law. There were certain species of property which could not be effectually sold without the observance of a formal proceeding called, mancipatio. These were lands, buildings, slaves, horses, cattle; that is, real estate, and the' persons or animals used in cultivating 66 THE ROMAN LAW. it : these were the species of property most used and most dealt in by the early Komans, who (as Niebuhr says) are to be thought of, not as a nation of warriors, but a nation of farmers. If a man wished to purchase another man's horse, there must be present at the transaction, besides the buyer, seller, and horse, not less than six Roman citizens of fall age, five to. serve as witnesses, while the sixth held a pair of brazen scales, and was called libripens (weigher, weigher in a balance). Before this assemblage the buyer, taking hold of the animal, said : Huno ego equum ex jure Quiriiium meum esse aio, isque mihi em/ptus est hoe aere aeneaque libra (this horse I affirm to be mine by law of the Quirites, and he is purchased by me with this piece of brass and brazen balance). He then struck the scales with a piece of brass (i. e., a copper coin), and handed it to the seller. Of course, this copper piece was only a representative, or symbol, of the purchase- money, which could be paid at any time, or in any way, agreed upon between the parties, though, doubt- less, in the primitive period, when this usage had its origin, the money-piece was actually weighed in the scales, and paid over on the spot. The name manci- jpium, or manoipatio, applied to the transaction, signi- fies taking with the hand, and refei^ to the act of the buyer laying hold of the object which he declared to be his purchased property. The kinds of property (lands, buildings, slaves, horses, cattle) for which this PEOGEESS OF THE EOMAN LAW, ETC. 87 transaction "was required, were called res mancvpi (things of Tncmcipium, tilings subject to mancipium) : all other kinds were called res nee mancipi (tlungs not subject to mancipiwm). If a man bought a sword, or a spade, paid the price, and took the article, he became absolute owner, always supposing that the seller really owned it before him. But not so, if he bought a horse, an ox, a slave, a farm : though he had paid the price, and received possession, he did not become owner, un- less he went through the formal mandjpatio. He had the thing in lonis (among his effects), but he had no dommium (or ownership) : in view of the law, the seller was still the real dominus (or owner). I hope you will bear in mind this practice of mancipatio, and its ne- cessity in the transfer of res Tnancipi, for we shall be obliged to refer to them more than once as we proceed. Again, if a man wished to make a will, or testa- ment, which should be recognized as valid, he had to go through with a ceremony closely resembling the one just described. He had to make what was in form a sale of his estate by mancipation. Five men must be present as witnesses, with a sixth man as Uhripens (or balance-holder), all Eoman citizens of full age. Then, too, there must be a familiae emptor (i. e., purchaser of the estate), corresponding to the buyer in an ordi- nary mancipation. But, instead of the words before given (this horse, or this ground, I aflSrm to be mine by law of the Quirites, etc.), he used the following 88 THE ROMAN LAW. form, addressing himself to the testator : Familia pe- cuniaque tua endo mcmdatelam, tutela/m, custodelam/- que mea/m, quo tu jv/re testcmientum facere jpossis se- cundum, legem pubUcam, hoc aere [aeneaque liira] esto mihi empta (in so far as you by public law have the right to make a will, let your estate and money be brought into my charge, guardianship, and custody, being purchased by me with this piece of brass [and brazen balance]). He then struck the scales with the piece of brass, and handed it to the testator; where- upon the testator, holding in his hands the written will, said : Saec ita ut in Ms tabulis cerisque scrijpta sunt ita do, ita lego, ita tester, itaque vos Quirites tes- timonium mihi perhihetote (these things, as they stand written in these waxen tablets, I so grant, so leave, so bequeath, and so do you, Quirites, bear me witness). There can be no doubt that, in the primitive time, when this mode of making wills had its origin, it was intended and understood as an actual sale. The per- son fixed upon as heir was the purchaser, the familiae emptor : he bought the estate, of course, for a mere nominal price, and thus became owner, not immedi- ately, but eventually, on the death of the testator. His right of ownership, however, was limited by the obligation, assumed in the very act of purchase, to fulfil the directions of the testator, as set forth at the time in the tables of the will ; but afterward the trans- action ceased to have this literal character : it was no PEOGEESS OP THE EOMAN LAW, ETC. 89 longer regarded as an actual sale, conferring on tlie purchaser a title to tlie estate. It was not necessary, then, that the destined heir should serve as familiae em^ptoT : any other citizen could act this part in the performance. Thus the whole ceremony came to be only a means for the solemn authentication of a last will or testament. If a man made a will without any formalities, or if the formalities used were defective in any particular — if there were only four witnesses in- stead of five, if any of the witnesses were under age, and the like — the will had no legal validity. The person named in it as heir was not heres in view of the law : even if the estate came into his hands, he was only ionorum possessor (actual holder of the es- tate) : he had no dominium (ownership) over it, as he would have had if, by a properly authenticated will, he had been made heres (heir). It must not be supposed that formalities such as those now described were wholly useless. They se- cured a considerable number of competent witnesses for every legal transaction — a point of especial impor- tance before writing became common. They made it a matter of some little difficulty for a man to subject himself to a legal obligation. The necessity of bring- ing so many persons together, and of calling up to mind all these precise forms of speech and action, in- vested the business with a character of gravity: it gave a man time to reflect, and suggested that he 5 90 THE EOMAN LAW. ought to reflect, on what he was doing. One must have at least a pretty definite intent to lay himself under obligation, if he took so much pains to do it. "We are now prepared to appreciate a distinction which figures largely in the law-writers of Eome, as it is one of much importance in the history of Koman law — the distinction between rules and usages of law which were peculiar to themselves, and those which they had in common with other states and peoples. The former they called jus ci/vile (the special law of Roman citizens) : the latter, jus gienfimn (the general law, recognized and used by other nations as well as themselves). By " law of nations " we generally un- derstand " international law ; " but the Latin jus gen- tium had no such meaning. It can hardly be said that the Romans had the idea of international law : if in their jus fetiale (or law of heralds, as agents of communication between different states), they make some approach to it, it is only a distant approach. By jus gentium, they always intend those principles and practices of law which are found in all communities, or at least in all not utterly barbarous. The term jus civile is not used with the same uniformity. It some- times denotes the whole law to which Roman citizens are subject, whether peculiar to them or not. But as opposed to the jus gentium, it has the restricted sense just given, the law peculiar to Roman citizens. Thus buying and selling with payment of price and transfer PROGRESS OF THE ROMAN LAW, ETC. 91 of ownership belong to the jus gentium. But manci- ^atio, buying and selling with- the formalities implied in that term, belongs to the jus civile. So the making of a will, loj which a person appoints a successor to his estate, belongs to the jus gentium. But the mak- ing of a will with five witnesses, lihr^ens, fcumiUae emptor, etc., belongs to the jus cvoile. It is easy to see how this idea of a jus gentium should have been more and more impressed upon the Eonians with the progress of their state. As their power extended, they were brought more into contact with other races and nations. Many Koman citizens were dispersed in alien lands and cities : aliens in still larger numbers crowded into Itome itself, or into other places which had Eoman citizenship. It became a constantly-growing neces- sity for Eoman magistrates to take cognizance of law- cases where one or both parties were aliens, where consequently alien law had to be considered. As early as the year 247 b. c, a. prcetor peregrinus was appoint- ed in Home, to administer law in such disputes. These peregrini (or aliens) could neither own any thing nor do any thing ex jure Quiritium (by law of the Quiri- tes) : from the whole jus civile, in the narrow sense of the term, they were necessarily excluded: they could not sue nor be sued, they could not sell a horse nor buy one, they could not make a will nor take an in- heritance, according to the forms which have been de- scribed. In administering justice among them in their 92 THE EOMAN LAW. relations with one another, or between them and Roman citizens, it was constantly necessary to con- sider what was peculiar to the Roman law, and what was common to it with other systems. Now these lat- ter elements, common to all systems of law, must be founded on universal reasons of justice and necessity. If the effect is universal, the cause must be so likewise. If certain principles and rules are found in the law- systems of all nations, it can only be because they commend themselves as just and necessary to the rea- son of all men. Hence the Romans soon came to re- gard this consonance with universal reason as the char- acteristic, the criterion, of the jus gentium. K the question arose whether any principle or rule belonged to the jus gentium, ■ they did not think it necessary to examine the laws of all nations known to them, to see if they could actually find it everywhere. They considered whether, on the one hand, it was conven- tional and arbitrary, or, on the other, essentially reasonable and equitable. They thus identified the jus gentium with the jus naturale, that law which springs from the universal nature of man and the conditions of human life and society, instead of being the product of local, temporary, accidental, and varia- ble causes. Let me remind you here that when the period ex- tending from the Twelve Tables to the commencement of a scientific law-literature was first mentioned, it PROGRESS OF THE ROMAN LAW, ETC. 93 was said to be marked by the liberalization of tbe Koman law. The meaning of tliis expression will now be apparent. In the Eoman law as it was con- stituted by the Twelve Tables, the jus civile was the predominant element : in the Roman law as it was found by Q. Mucius Scsevola, about 100 b. c, the jus gentium was getting to be the predominant element. Principles and usages peculiar to the citizens of Eome had been falling into the background: principles and usages, founded in the nature of things and agreeable to the reason of all men, had been rising into greater prominence. The system had been throwing off the narrowness of its beginnings as the local law of a petty state, and assuming a liberal and universal character suited to the law of a vast empire. There is some- thing remarkable in the frankness with which the Eomans recognized the defects of their peculiar law, and conceded its inferiority to a broader and freer system. There is something remai'kable also in the cautious, conservative manner by which, without any •direct attack on the old system, they contrived to un- dermine and destroy its validity. The law of the Twelve Tables, in the time of Cicero or Gains, was in much the same condition as the king or queen in Eng- land now — greatly venerated in appearance, but al- most powerless in reality. The change of which we are speaking — the liberal- ization of the Eoman law — was effected chiefly through 94 THE ROMAN LAW. the agency of the prseton The custom arose at an early period — just how early it is impossible to say — for the praetor at the outset of his year of office to put forth an edict, or public statement, as to the way in which justice would be administered during his offi- cial term. The praetor's edict was not a law or a body of laws : it had no pretension to that character : it was a body of information, designed especially for the benefit of suitors, of persons wishing to obtain the help of the law, showing them by what means and under what conditions they could obtain the remedies desired. It is probable that the edict soon came to have a somewhat uniform character : each praetor would naturally follow in the main the track of his predecessor, adopting in most points the edict of the preceding year, only making here and there such changes as seemed to him expedient. But how could the praetor with his edict exert any influence to change the existing law ? One or two illustrations will serve as an answer to the query. We have seen that if a will was not executed with the precise formalities' already described, it had by the law of the Twelve Tables no validity whatever. But the praetor in his edict said : " If by a will made without any formalities, but sealed by seven competent Witnesses, a person is appointed heir, I will give him possession of the es- tate after the death of the testator, and will allow him to sue and to be sued as if he were an heir." The PROGEESS OF THE ROMAN LAW, ETC. 95 prsetor does not set himself against the Twelve Tables : he does not call the document a valid will : he does not give "the na.me'heres to the person designated in it : he does not confer on him the hereditas or even the ownership of the estate. He only makes him lo- norum possessor (holder of the property) ; yet while he denies him the name heres, he gives him in fact the powers and rights of an heir. In form, he does not break with the old law ; but he completely changes its practical working. Again, if a man had bought a horse and paid for him, without the ceremony of mancipation, he gained under the Twelve Tables no right of property, at least not until he had had the animal in his possession for an entire year. For in such cases even the Twelve Tables allowed an un- disputed possession of one year to cure the defective title : the man acquired ownership by usucapion, as it was called, by taking and using for a complete year. But, before that time was out, the old law gave him no protection. Here again the prjgtor interposed to aiford relief. If, after a shorter time, as three months, the sel- ler attempted to take back the horse, the buyer was assured, by the praetor's edict, that he might sue as if he had become owner by usucapion. He does not rec- ognize, him as owner {domvnus): that would be con- trary to the Twelve Tables. He only treats him as if he were owner : permits him to exercise the rights which he woidd have if he were owner. Here, too, without 86 THE KOMAN LAW. formal contradiction of the old law, there is an essen- tial change in its practical working. I giv^e these as specimens to slfow how it was pos- sible for the praetor to act upon the law, to mitigate its harshness, to break down the barriers of its exclusive- ness, to liberalize it in principle and practice. The examples illustrate also the use of legal fictions. The person named in the informal will is not an heir, but for practical purposes \s feigned or supposed to be one, is treated as if he were one. The person who bought the horse by an informal purchase and has had him for only three months, has not acquired ownership by usucapion — that would take a twelvemonth — ^but is treated as if he had acquired it : the procedure is based on the fiction, the supposition (admitted not to be a fact), that he has become owner. It must not be supposed that these processes are peculiar to the Eoman law. Legal fictions of a much grosser kind abound in the procedure of the English law. Several of the most common actions (suits at law) proceed upon fictions, fictitious allegations of the plain- tiif which the defendant is not permitted to dispute. Thus, the action of trover and conversion, the action of trespass vi et armis, and above all the action of ejectment, where John Doe, a fictitious plaintifi", brings a fictitious suit against Kichard Roe, a fictitious de- fendant. These fictions have often served to remove difficulties and inequalities in the working of the ex- PKOGEESS OF THE ROMAN LAW, ETC. 9Y isting law. A remarkable instance is found in the old procedure of a commoii recovery, as it is called, ty which the English judges contrived to defeat the op- eration of an act of Parliament, the repeal of which it had been found impossible to obtain. By a statute enacted in the reign of Edward I. (1284), the holder of an entailed estate was restrained from alienating it. The grant of land which created an entailed estate was made to the person named (say "William Stiles) and the heirs of his body. It was this last expression — to "William Stiles omd the heirs of his 'body — which gave to the estate its peculiar character. And the statute just referred to did nothing more than require that this language of the grant should be strictly con- strued and literally complied with. William Stiles then was not at liberty to sell the land so granted or to give it away; he must keep it while he lived, and at his death leave it to a child of his, an heir of his body. This heir, again, was under similar restrictions ; he could not alienate the land ; he must let it pass at his death to a chUd of his, or at any rate to a descend- ant of "William Stiles. And so on, from one successor to another. The estate was confined to actual de- scendants of the original grantee, the person who first received it as an entailed estate for himself and the heirs of his body. If now the issue of William Stiles failed, either at his death or after any number of suc- cessors, so that there was no longer a descendant of 08 THE ROMAN LAW. his who could claim the succession, the entail was then extinguished, the estate must revert, fall back in to. the hands of the grantor, the person who created it by his gift as an entailed estate, or to his heirs, his represent- atives living at the time of such reversion. Now, this tying up of entailed estates was found to be a serious inconvenience — aii inconvenience to . the holders, who for one reason or another often wanted to sell them ; an inconvenience to other. people, who often wanted to buy them ; an inconvenience especially to creditors, who could not use an entailed estate of the debtor as a means for obtaining the payment of their claims. The Commons, therefore, made repeated efforts to re- peal the statute ; but they were always defeated by the Lords, who are generally the creators of these en- tailed estates, and did not wish to lose the advantage of their eventual reversion. The.stati^te continued in force for about two hundred years. But, in the reign of Edward IV., the judges allowed the introduction of a fictitious procedure, a collusive procedure, by which the alienation of an entailed estate could be effected. To describe, this procedure, let us suppose that A is the holder of an entailed estate which he wishes to sell, an.d B is a buyer who wishes to purchase it. B now commences a suit (of course a collusive suit) against A, alleging that A has no title to the estate which he holds ; that he, B himself, is the person really PKOGRESS OF THE ROMAN LAW, ETC. 99 entitled to it. To defend Ms title, A brings into tlie court a person wliom we will call 0, a man of low birth and no property,, usually tbe crier of tbe court, and says tbat he got the estate from C, that C was the grantor of the estate, and that when he granted it he warranted the title, that is, he engaged to defend it, to prove its soundness against any one who might hereafter claim the land as his own. He therefore falls back upon C as his warrantor. On being ques- tioned by the court, C acknowledges that the state- ment is a true one, that he did grant the estate to A, and did warrant the title, and is therefore under obli- gation to maintain it now. But, when called upon to do so, he has nothing to say ; he allows judgment to go against himself by default. Judgment then is given in f^yor of B, sustaining his claim, and author- izing him to enter on the land in question. As for A, who is thusunfortunately dispossessed through the de- fault of C his warrantor, the court decrees him a com- pensation from in lands of equal value — which, of course, he has the legal right to take if he can find them. It may. have occurred to you, in hearing this de- scription, to ask how so shallow a trick could be coun- tenanced by the highest judges of the land; or how the judges could be permitted to nullify an act of Par- liament, ,a law of the land, by so transparent an eva- sion. The most obvious answer would be that the 100 THE ROMAN LAW. people were too well pleased with the result to be very critical as to the means by which it was accomplished. If the judges had taken this course to defeat a law which was dear to the people, they would certainly have roused a storm of indignant opposition. In this matter they were doing the will of the people, acting as the servants of the people, and hence it was that their proceedings were received with general acquiescence, and became part of the English law. It may throw light on the point, if we inquire what it is that gives force to an act of the legislature ; how is it that the doings of a few score of men in one or two chambers are binding on millions of their fellows. The answer given by all republican thinkers, and by many who are not republican, is, that it is ultimately the will of the people which gives force to an act of the legisla- ture ; the people have willed that an assemblage of men organized in such and such a way shall make laws for the entire community ; or, rather, the people have chosen to exercise the law-making power through the agency of such an assemblage specially intrusted with the work. But the question then presents itself : Does a people exercise the law-making power only in this way ; or has it other means and agencies for making laws ? We have already spoken of the English law as being to a great extent unwritten, that is, never em- bodied in written statutes. And there is no nation that has not a great deal of this unwritten law. No PROGRESS OF THE ROMAN LAW, ETC. id code was ever so complete as to embrace all the law of a people, all that in the courts was recognized and enforced as binding. !N"o legislature was ever so ac- tive as to make its statutes cover the entire field of admitted legal obligation. What is it that gives author- ity to all this unwritten (unstatutory, unlegislative) law ? Many say, it is the tacit consent of the legisla- ture, the implied or presumed consent of the legisla- ture. Eut a legislature is chosen for positive action : its mere silence carries no binding authority. It is the agent of the people for the laws which it actually makes, not for the laws which it suffers to be made elsewhere. If in all nations a great deal of law has sprung up and found recognition in the practice of the courts, without the intervention of a legislature, this fact alone is enough to prove that a people has other means of law-making besides the action of a legislative body. It seems to me impossible to frame a theory of this subject which shall be in harmony with all the facts, unless by recognizing in the courts, in judicial practice, a means by which the law-making power of a people is to some extent exercised. It is clear that the English people exercised such a power through the judges in the instance just given ; and that the Eoman people exercised such a power through the prtetor in cases like those before described. It must be observed, however, that this agency of the courts never sets itself in direct opposition to a 102 THE EOMAN LAW. written, statutory law. If it sets aside or does away with sucli a law, it accomplishes its end by indirect means, by fictions or evasions.of different kinds. In this country ij; has a peculiar weapon so effective as almost to supersede the use of any other. Our States, as separate governments and as a united government, have written constitutions, which, while they subsist, are binding on legislatures as much as on courts of law or on private individuals. If a legislature passes a law which conflicts with the constitution, it transcends its powers, and so accomplishes nothing. The uncon- stitutional law is an unlawful law, that is, it is no law at all. Nobody has a right to make it, and nobody has a right to enforce it. A court therefore is, and from the nature of. our government must be, author- ized to ignore, refuse to recognize, and thus practically to set aside, any legislative act which is inconsistent with the constitution. Now, if a constitution is in- terpreted with pome latitude, and particularly if the spirit of a constitution is . regarded as binding not less than the letter, almost any thing unjust or bad may be represented as uncgnstitutional. And we find in fact that those who for any reason dislike a law, almost always represent it, and doubtless generally believe it, to be unconstitutional. "We may presume, therefore, that in easels where the English judges or the Eoman praetors, under the influence of a similar feeling, would have defeated a law bj fiction or eva- PROGRESS OF TSE ROMAN LAW, ETC. 103 sion, our American courts would set it aside as uncon- stitutional. Yet with us a popular feeling which is permanent and decided enough to operate through the courts woiild be pretty sure to find an easier organ in the legislature : the obnoxious law would be repealed by legislative act. The statute law would thus be brought into conformity with the settled will and convictions of the people ; and there would be no necessity for a conflict, which is always undesirable, between the law as enacted by the legislature and the law as enforced by the courts. In the next lecture we shall take up the system of the Koman law, beginning with the doctrine of status. LECTUEE Y. LAW OF STATTJ3 AND FAMTLY EELATIONS. Thkeefold division of status (capacity for legal rights : 1. As to libertas : all men were liberi or servi ; 2. As to civitas : all freemen were cives OT peregrini / 3. As to familia: aM citizens ■weve sui Juris (a,s paires- familias, with or without wife and children) or alieiii juris (as JUiifamu lias, subject to a life-long patria potestas). In each case the change to a lower position was called deminutio capitis (diminution of the law-per- son), which was minima when it was only loss or change of family rela- tion ; media, loss of citizenship ; maxima, loss of personal liberty. I. Slatekt was referred by Roman jurists to the jus ffentium, but not to the jus naturale. — Usually it began from captivity in war ; but by its own nature was hereditary, being inherited from the mother {partus sequiiur ventrem). The rule pater est quern nuptice demonsirani was in- applicable to slaves, who could have contvhernium, but no legal matri- monium. — The slave might become free by the testament of his master, or by census when the master had him enrolled on the list of citizens. But the usual form of manumission was a fictitious suit between a vindex of the slave, claiming him as free man, and the master, who allowed judgment to go against himself: a form greatly simplified as time went on. The slave had no rights recognized by the law, though certain laws (having the .nature of police regulations) restrained excessive cruelty to slaves. The slave might, however, receive a legacy or an obligatory promise, acquiring them for his master. He might even enter into con- tracts binding on his master, as where the master had intrusted him with some business, or had given him a peculium to manage, or had de- rived any actual advantage from his contract. LAW OF STATUS AND FAMILY RELATIONS. 105 The manumitted slave was called lihertinus, and his status was in some respects inferior to that of the ingenui or freebom. II. EoMAN CITIZENS, besides the rights of the jns gentium, which be- longed also to aliens, bad those of the ju^ civile (in its narrower sense). These last were divided into — 1. Those of connvbium, pertaining to mar- riage and its incidents, and 2. Those of commercium, pertaining to busi- ness relations. The people of the Latin cities long enjoyed the commer- cium without the connubium ; and this condition (^jus Lalii) was afterward extended to other communities, who then received the law-name of ZcUini. After Caracalla {211-21'7) gave citizenship to the free people of the prov- inces, the peregrini were either persons bom outside the empire, or those who had forfeited citizenship by some offence ; while the Zaiini were chiefly freedmen manumitted without due regard to legal requirements. III. The PATEIA POTESTAS lasted through the life of the paterfamilias, and for a long time was almost unlimited. The father was entitled to the entire services and acquisitions of the chad ; he could inflict on him any punishment, could sell him into a kind of slavery called mancipivm, and had over him even the jus vitae et necis. This, however, did not affect the pubhc rights and duties of the son, who could hold any office, civil or military. The pairia potestas (like the husband's power over his wife in English law) had its root in the sense of family unity, the family appearing as one in the father, its single representative and ex- ecutive. Under the emperors it began to be limited, both as to personal inflictions and property rights. From Augustus on, the son could ac- quire a peculium, eastreme ; later, a. peculium, quasi castrense. By Jus- tinian's legislation, what the son acquired in public service was wholly the son's ; what he acquired with the father's capital or instruments was wholly the father's ; what he acquired in any other way was the son's, but subject to a life-long usufruct of the father. A new patria potestas might be created by adoptio. This was also called arrogatio, when appUed to a person sui juris : it then required the express assent of the people, later that of the emperor. The adoption of a person alieni juris was accomplished by a fictitious suit, in which the natural father forbore to defend his right against the claim of the adoptive father. The effect on the adopted person (at least during the earlier period) was to put him in the same relations to his old family and his new one as if he had been bom in the latter. The patria potestas might be terminated by a process, called emanci- patio, because it involved a sale (which in the case of a son must be thrice repeated) into the j^osi-slavcry of the mandpium and a release 106 THE ROMAN LAW. from that condition. Both emancipation and adoption inTolved a minima capitis demirmtio. We have now reviewed the history of the Eoman law, both before and after the formation of the Corpus Juris Civilis-r— both in ancient and in raodem times. We proceed to look at the Koman law in its substance, to notice in a brief and rapid survey the leading points of the system, the history of which has thus far occu- pied our attention. In this survey we begin, as the Institutes or text-books of Gaius and Justinian do, with the subject of status. By the status (or standing) of a person is meant the position that he holds with reference to the rights, which are recognized and main- tained by the law — ^in other words, his capacity for the exercise and enjoyment of legal rights. This capacity the Koman jurists, who had a highly developed doc- trine of status, represented as depending on three con- ditions, libertas (or personal freedom), cwitas (or citi- zenship), xaAfamilia (or family relation). Accordingly, they distinguished three kinds of status : 1. In respect to libertas: all men were free or unfree. As to the unfree (the slaves), it can hardly be said that they had any status : they had no rights of their own recog- nized by the law, no rights which they could assert or vindicate by legal processes. But all freemen did not stand on the same footing before the law : some had a more advantageous position than others, according as they differed. 2. In respect to civitas. All freemen LAW OF STATUS AND FAMILY RELATIONS. 107 were citizens or non-citizens. The rights which per- tained to mere personal freedom belonged alike to citi- zens and aliens. But there were other rights, belong- ing to the jus civile in its narrower sense, as explained in the liast lecture, which were open to citizens only, while aliens living under the jus gentium (or common law of all nations) were excluded from them. But even among Koman citizens there was a wide differ- ence in capacity for legal rights, according as they dif- fered. 3. In respect to faTnilia. All citizens were either sui juris (men of their own right), acting for themselves independent of family control, or alieni juris (subject to another man's right), subject to the control of one who stood as head of the family. Both enjoyed alike the rights of freemen and of citizens ; but there was a great difference between those who were sui jpatria poiestaie (under the power of a father) and those who either had no father living, or had been emancipated from his power. The former were ^Zii- famiHas, children of a family and dependent in their property relations on the head of the family, \h& pater- familias I while the latter were themselves patresfa- tnilias, or heads of families. A man in this position was a paterfamilias in the law-sense of the term, though he had neither wife nor children, though his family consisted of himself alone ; as, on the other hand, a man with a wife and ten children was only a f-Uiisfdmilias, if he was subject to the family control 108 THE EOMAN LAW. of a living father. You will have observed that, in this threefold division of status, the highest class in each division includes all classes of the division follow- ing it. The first division is into Uberi and servi (free people and. slaves) ; in the second, the Uberi are di- vided into ewes and jperegrini (citizens and aliens) ; in the third, the cives are divided into homines sui jv/ris and Twmmes alieni juris (independent and dependent persons). If a man lost the position of advantage which belonged to him in any of these divisions, he was said to suffer a capitis deminutio (a diminution of the caput), a phrase of frequent use and great importance in the Eoman law. The word caput in this phrase denotes the law-person, the person as invested with all legal rights and powers which belong to him. K the change of status was only a change of family relation, the deminutio capitis was comparatively small ; it was the minima capitis deminutio ; the subject of it still retained the rights of a freeman and a citizen. If the change of status involved a loss of citizenship, this was a much more serious privation ; yet it was not the worst which a man could suffer; he still retained the rights of a freeman'. Hence the loss of citizenship was designated as media capitis deminutio. But a change of status in which a man lost his personal liberty was the greatest and sorest of all: it was the Tnamm.a capitis deminutio : his legal personality was swept away: no rights, no status remained to LAW OF STATUS AND FAMILY RELATIONS. 109 him. (The loss of freedom then is the max. cap. dem. • the loss of citizenship, the media cap. dem. / and the loss or change of family relation, the minima cap. dem.) But we must attend more particularly to these three kinds of status ; and first, to that in which free- men are distinguished from slares. The condition of freedom requires no special explanations. But some- thing must be said about slavery as it existed under the Eoman law. The subject, happily, is not so inter- esting for us now as it was a few years ago, when a system of slavery much resembling that of the Eo- mans covered more than half the area of the United States, and seemed likely to extend its power over the West India Islands, over Mexico and Central America, and perhaps even beyond the Isthmus. Yet an insti- tution which cast so terrible a shadow over our re^nt past, and still so strongly affects the present of our country, can be no matter of indifference to us : it lends an interest, more than the merely historical or antiquarian, to the similar institution of the Romans. The Homan jurists recognized slavery as belonging to the jus gentium, for they found it among all nations of which they had any knowledge. But they did not in this case, as in most others, identify the Jus gentivm, with ih.QJus naturale. They acknowledged in explicit terms that slavery was an arbitrary institution, the creature of force and not of right, that it had no foun- 110 THE ROMAN LAW. dation ia reason and equity, and therefore formed no part of the jus ■ natv/rale. They did not hold that a Buperiority of birth or race, of intelligence or civili- zation, gave any right, gave any thing but the mere actual power, to deprive the inferior of what they re- garded as his natural condition of freedom. As for the idea that slavery was a real advantage to the enslaved, something which they ought to accept with gi-atitnde and dread to lose, it seems never to have occurred to any Eoman jurist. Perhaps masters then were differ- ent from the patient and placable patriarchs of recent times. How did slavery arise? As to the origin of 'sla- very, where it was not an inherited condition, it was most frequently the result of war. According to the ancient theory of war, the captor in his treatment of th^captive was not bound by any rule of right: the relation between them was one of mere force ; if that force was used to take his life, the captive could not complain of a rigor which in the opposite case he' might himself have exercised. If he receivied life even under the conditions of slavery, it was more than, he was entitled to claim. But Eoman citizens made prisoners by their fellow-citizens in civil war, were not reduced to slavery; this treatment was reserved for alien enemies. It was a natural consequence of the theory of slavery that the condition should be heredi- tary. If the slave exists only for the master, if all LAW OF STATUS AND FAMILY RELATIONS. m products of natural powers or activities belonging to the slave are the absolute property of the master, the master's right of ownership must extend to the chil- dren of the slave, the fruit of his body. Inherited slavery was a maternal inheritance. The famous maxim part/us sequiiur vent/rem (the child follows the mother's condition), of which we used to hear so much, was a maxim of the Boman law. The child of a female slave had lio father recognizable by the law, any more than the child of a public prostitute. For the other law-maxim pater est quern nupUae demonst/rant (he is father whom a lawful marriage points out as such ; that is, the mother's lawful husband is the presumed father of her child) — this maxim could have no appli- cation to the slave. No such thing as marriage among slaves was, or could be, recognized by the law. As slaves were wholly subject to the disposal of their masters, no unions having the character of permanence or sacredness could exist among them : such a union, if it existed, would abridge the master's power of abso- lute control. Among slaves there could only be con- tubernium, cohabitation of the sexes for a longer or shorter time, but no legal matrimonium. How could slavery 7>e terminated? There were differeiat modes of manumission, as by census, when the master caused his slave to be enrolled as a freeman on the list of citizens made out by the censors ; and by testament, when the master in his will gave direc- 112 THE ROMAN LAW. tions blading on his heir that the slave should be made free. But the most common way, and the one which gave occasion to the name of manumission, was, in its origin at least, a pretended or collusive suit. The plaintiff in tliis suit was a Roman citizen who main- tained the cause of the slave, asserting him to be of right a freeman; he was called the vindex of the slave: the master himself was the defendant. The proceedings were much like those described in the last lecture, as used under the earlier law when the plain- tiff claimed for his own a horse or other piece of prop- erty which was in possession of the defendant. The parties having appeared at the tribunal of the praetor, the vindex laid a rod on the head of the slave ; but in- stead of saying, " This man is mine by law of the Quirites," he said in formal terms, " This man is free by law of the Quirites." The master, then, who in a real suit would have said, " This man is mine by law of the Quirites," pronounced the words, " huno homi- nem Itberum volo" (I wish this man to be free), at the same time seizing the man, whirling him round and letting him go with a push out of his hand. This last movement, it is said, gave rise to the name mcMiumis- sio (sending from the hand). The prsetor, of course, as the defendant had failed to maintain his right, must give judgment in favor of the plaintiff, that is, in favor of freedom. The proceedings were afterward made more and more informal. First, the praetor's lictor LAW OF STATUS AND FAMILY RELATIONS. 113 took the place of the vindex : then the lictor was dis- pensed with ; and, finally, it was enough for the mas- ter to come with his slave before the prsetor wherever he could find him, at his private house, or even in the street, and the' praetor having heard the master's wish would declare the slave a freeman. The power of the master to manumit his slaves was originally unlimited ; but in the times of the empire it was restricted by sev- eral laws founded on political or economical reasons ; yet the manumission of a slave was^ not always invalid when inconsistent with these laws : in some instances the only effect was to make his condition as a freeman less advantageous than it would otherwise have been. What was the working of slavery on the legal rights of the person enslaved ? It was, as we have already seen, to destroy them altogether. . Practically it re- duced him to a chattel, the property of his owner, sub- ject like a horse or a dog to his master's absolute will and disposal. It used often to be said, by apologists for American slavery, that it did not divest the slave of personality or reduce him to a chattel : it only gave the master a title to all the labor of the slave and of his offspring : this title it was, and not the man him- self, which could be disposed of as property. No doubt, the Southern laws recognized the moral per- sonality of the slave, for they punished him for his crimes. Eut we are speaking of legal personality, pe^•- Bonality invested with legal rights, which can be as- 114 THE ROHAN LAW. serted and maintained by process of law. No such personality was allowed to the slave, either by Koman or American law. It is no answer to say that the mas- ter was restrained by law from extreme maltreatment of his slave. There were such laws among the Ko- mans and in our Southern States ; but they were police regulations, designed to secure the community from the dangers of a sei-vile insurrection or from brutaliz- ing exhibitions of cruelty : they no more recognized legal rights in the object protected, than do similar regulations for the prevention of cruelty to animals. It is further true that, among the Romans, the slave was allowed a certain agency in legal transactions ; but it was only as his master's instrument. He could take a legacy which some one had beqiieathed to him ; but he acquired it for his master, not for himself. He could enter into a contract by which the other party was bound to give or to do something ; but the obliga- tion was to give it to, or do it for, the master. In certain cases he could even enter into a contract by which his master was bound to give something to, or do something for, the other party. Thus, if his master had expressly authorized him to conclude a certain contract, he could always do so with binding force. If his master had a trading-vessel and appointed him supercargo, his contracts made in that capacity were binding on the master. If his master, having any business to be carried on, gave him the charge of it, LAW OP STATUS AND FAMILY RELATIONS. lig his contracts anade iu carrying on that business were binding on the master. The master was always bound by a contract of the slave, in so far as he had reaped an actual advantage from it. It was not uncommon for a master to put into the hands of his slave a cer- tain amount of capital (called a pecuUurri), which the latter was to use in his own way and make what he could from it : in that case the master, who, if there were any profits, had the legal title to them, was also liable for any debts that might be incurred, but only to the extent of the peculium which he himself had advanced : he was considered as having authorized his slave to hazard that amount of capital, to incur that amount of indebtedness, but nothing more. We have thus glanced at some prominent points in the legal condition of the Roman slave. It ought to be added that, among freemen, a distinction was made between the ingenui or freeborn, and the libertini or born slaves who had been made free by manumission. The libertinus (the freedman) was subject to various political disabilities; he was also bound by special private obligations to the person and family of the manumissor or (as he was also called) patranus ; so that his position was in a marked degree inferior to that of the mgenuus or freeborn person. We pass on to the second species of status, that in which freemen are distinguished as cives or peregrmi (citizens or aliens). The difference in public or politi- 116 THE ROMAN LAW. cal riglits between citizens and aliens was very impor- tant in the times of tlae republic, but became insignifi- cant under tbe empire. It is a matter of public law, and therefore does not concern us here ; what we have to consider is the difference between the two classes in respect to private law. The general distinction has been already stated : the jperegrini or aliens had only the rights which belonged to the jus gentium, the rights which are recognized and maintained in the laws of all nations. They were debarred from ail rights which were peculiar to the jus civile, in its restricted sense, those rights which in form or character were distinctively Roman. These latter rights the Eoman ju- rists were accustomed to group under the two heads of connuMum and commercium. The word connubium denotes properly the right to intermarry with Homan citizens; and hence to contract a Koman marriage, according to the peculiar forms and with the peculiar incidents and effects of marriage between Eoman citi- zens. Chief among these incidents or effects was the joatria potestas, or life-long control of the father over his children, which, as we shall soon see, was among the most remarkable peculiarities of the Eoman sys- tem. In general, the connubium embraces the peculiar rights of Eoman citizens, so far as they pertain to family relations. The commercium, on the other hand, embraces all those which pertain to business relations : thus the right to sue in cases where the plaintiff had LAW OF STATUS AND PAMILY RELATIONS. 117 to claim sometMng as his ex jure Quiritium, the right to buy or sell with mancipation (as described in the last lecture), the right to engage in certain other con- tracts of peculiar form, the right to make a valid Eoman will, to appoint an heir, to be appointed heir in the will of another, and even to act as witness to a will. There was a practical reason for making this twofold classification of rights, into those of connubium and those of commercium, because they were often separated in fact. "While the citizen enjoyed both kinds alike, and the alien in general was excluded from both alikej there was a favored class of aliens who had received one of them without receiving the other, who, though excluded from the connubium, were permitted to enjoy the commercium. These privileged aliens, who had the commercium without the connubium, were called Latins (Latini) : their condition before the law was called Latin ity {Latinitas, or jus Latii). The name arose from the fact tliat for a long time the peo- ple of the Latin cities and the Latin colonies held this position with reference to the Eomans. At the close of the Social "War, 90 b. c, the Latins, properly so called, were admitted to full citizenship ; but the jua Zatii, as it was named, the privileges which the Latins had enjoyed over other aliens, were conferred about the same time on the Italians north of the Po (the Trans- padani), and were afterward extended as a favor to par- ticular communities in the provinces. The communi- 118 THE EOMAN LAW. ties thus favored were called Latmi, the word being used as a law-term without reference to the place or race of those who bore it. So, when Yespasian bestowed the jus Lati% on the whole province of Spain, the Span- iards became Latins in this use of the term. After the time of the Emperor Caracalla, who bestowed Ko- man citizenship on all the provinces, a little more than two centuries after Christ, the names both of Latini and jperegrini had a greatly restricted application. The name peregrini thenceforth denoted chieflj per- sons born outside the limits of the Koman Empire, but included also those who having once been (Citizens had in one way or another, usually as a punishment for Bome offence, lost their right of citizenship. The name Latins was from this time forward nearly confined to certain classes of freedmen — those, namely, who had been manumitted without the proper formalities or in disregard of some legal requirement. The great ex- tension of Koman citizenship made by Caracalla has often been spoken of by historians in slighting terms, as if Koman citizenship had then ceased to have any real value. But this is because they have thought only of the suffrage, or other forms of public activity, and have failed to consider the private-law incidents of citizenship. The disabilities and disadvantages of the jperegrinus at private law must have been felt by him constantly and in a great variety of ways. There can be little question that Caracalla, worthless as he LAW OF STATUS AND FAMILY RELATIONS. 119 was, a profligate and a fratricide, was blessed as a benefactor by millions of his subjects, whom he had relieved from the continual and vexatious burdeps of their alien condition. "We come now to the third species of status, that in which citizens are distinguished as sui juris or alieni juris (the former independent of family control, the latter dependent upon it). The former were j?a^res- familias, or heads of families, a name which included even the cases where the man himself constituted the whole family. The latter were filiifamilias, depend- ent members of a family, subject to the pat^ia potestas (paternal power) of its head. This power of the father continued ordinarily to the close of his life, and in- cluded not only his own children, but also the children of his sons, and those of his sons' sons, if any such were born during his lifetime. It did not, however, include the children of a daughter : these belonged to a different family, the family of their own father, and were subject to his power. Originally and for a long time the patria potestas had a terribly despotic char- acter. l!^ot only was the father entitled to all the ser- vice and all the acquisitions of his child, as much as to those of a slave, but he had the same absolute con- trol over his person. He could inflict upon him any punishment however severe. He could sell him with the same formalities of mancipation which were used in Belling a slave. The child thus sold was reduced to a 120 THE ROMAN LAW. peculiar status called mancipium, analogous to slavery, but distinguished, from it by some differences, the pre- cise nature of which is unknown to us. More than this, the father had the Jws vitae eb necis, the right rec- ognized by law to take the life of his child. Even at the close of the republic, the lex Pompeia de ^arrici- diis, a comprehensive statute on the murder of rela- tives by relatives, was silent as to the killing of a child by his father. Such killing was not a murder ; it was not a crime ; it was the exercise of a legal right, re- garded as belonging to the father. Consider now that \hQ jpatria j>otestas had this character and extent down to the Christian era : that, in general, every citizen of the republic who had a living father was in this condi- tion, unable to hold property, unable to acquire any thing for himself, wholly dependent on his father in property and person, liable to be chastised, to be sold into a kind of slavery, to be put to death without help or vindication from the law. It was no uncommon thing for men to have passed through every grade in the public service, to have been tribunes and praetors and consuls, to have reached an honored old age, without ever having owned or been able to own a pennyworth of property ! It must doubtless have happened at times that the son as imperator in war exercised command over a father on whom he was absolutely dependent for his daily sustenance. It is remarkable that the son's position as a citizen was not in the least affected LAW OF STATUS AND FAMILY RELATIONS. 121 by his subjection to this despotic control : in all his relations to the state, in all his political rights and powers, the fiUusfamilias stood on the same footing with the folerfmnilias. The legal relation between them was one of private, and not of public, law. Tou may naturally inquire, how it was possible for the Komans, with their clear practical sense and their strong feeling for equity, to invest ^q paterfami- lias with such extensive and dangerous powers. There can be little doubt, I think, as to the answer. The reason which caused the Eomans to accept and uphold the patria potestMS, to maintain it with singular te- nacity against the influence of other systems with which they came in contact, must have been the profound impression of family unity, the conviction that every family was, and of right ought to be, one body, with one will and one executive. The paterfamilias was not regarded as separate from the other members of the family, as having rights or powers against them ; he was regarded as the representative of the family, as the embodiment of its interests and the organ of its activity. Even in his chastisements he was supposed to be acting for the common good. It was precisely the sound sense of the Romans and their feeling of equity that sustained the patria potestas ; because they furnished the best guarantee that the potestas would be sensibly and equitably used. If it had been generally abused, it must have been soon discarded. 122 THE. ROMAN LAW. As for an occasional abuse, the Komans doubtless thought it better to endure such than to incur the risk of disturbing what they regarded as the natural and normal relations of the family. The English common law, if it has not given to the father such power over his children, has given to the husband a power not much less over his wife, a power founded on the simi- lar idea of a natural normal unity of the married pair. It has been presumed that such power, though always liable to abuse, would in fact seldom be abused ; that conjugal affection would cause the husband to use it justly and kindly ; or if this motive should be insuffi- cient, that other motives — such as a perception that their interests were really one, or the wish to escape domestic discord, or the salutary fear of public opinion — would be effectual with him. And if, in spite of all these influences, he should occasionally abuse his power, the evil thus done has seemed less formidable than the evil likely to arise if the proper relations of married life were disturbed by a general abolition of this pow- er. I do not say that the old English judged wisely in relation to husbands and wives, or that the old Ro- mans judged wisely in relation to fathers and children. My object is simply to show you the real fundamental reasons of the law in both cases, to point out their es- sential analogy, and to let you see that this power of the husband or father is not, as many assume, the pro- duct of arbitrary or despotic tendencies, but has sprung LAW or STATUS AND FAMILY EELATIONS. 123 from a liigh conception of tlie family, as indivisibly and indissolubly one. But in the period of the Koman Empire, this abso- lute power of the father was limited by various restric- tions: perhaps they were rendered uecessary by the growing corruption of the times. The jus vitas et necis could only be exercised with the concurrence of the government ; and the same was true of all bodily in- flictions that went beyond the measure of ordinary chastisement. The selling of a child remained in use only as a form in certain legal transactions. We are told that a creditor who knowingly received a child in pledge for a debt due from the father was visited with severe punishment. At the same time a right to hold property of his own began to be conceded to the filiusfamilias in certain exceptional cases. The first exception of this kind seems to have been made in the time of Augustus, and was intended as a favor to the soldiers. All that a filiusfamilias acquired a^ a sol- dier of the army, the pay he earned, the equipments he received, the share of plunder allotted to him, and the like, he was allowed to acquire for himself, 'with full right of ownership, as if he were a paterfamilias. This kind of property was called peculiium castrense (pecuUum, the peculiar, separate property of the son, and castrense, belonging to the camp, from its military origin). The next step was taken two or three cen- turies later, and consisted in putting acquisitions made 124 THE ROMAN LAW. in the civil service of the state on the same footing with those of the soldiers, and giving them the name of ■peouUum quasi castrense (a jpecuUum analogous to the military one). Afterward it was enacted that, if a mother died without a will, her property should go to her children and should become their property, though the father was to have the enjoyment of it during his life. And, finally, Justinian put many other acquisi- tions on the same footing as property inherited from a mother. The principles laid down by Justinian were these : 1. "What the son acquired in the civil or mili- tary service of the state belonged wholly to the son. 2. "What the son acquired by means of capital or in- struments furnished by the father belonged wholly to the father. 3. What the son acquired in any other way than the two now mentioned belonged indeed to the son, but the father had the right to use and enjoy it during his life. Tou will easily see that these changes did not very greatly affect the property relations of a son under the father's power. Aside from acquisi- tions made in public service, civil or military (which, of ccfiirse, would fall to comparatively. few), all other acquisitions of the son came into the hands of the fa- ther, either as his property or for his life-long use and enjoyment. Such tenacity of life had this institute of law, which the Eomans justly regarded as the most peculiar feature in their system. The subjection of a person to a father's power, LAW OF STATUS AND FAMILY RELATIONS. 125 wliicli usually began with the birth of the subject per- son, might also be brought about by processes of law, called adoption and arrogation. When a person who was sui juris placed himself under the jpatria poUstas of another, the process was called arrogation. In ear- lier times it took place before an assembly of the peo- ple : afterward it was effected by a written order of the emperor. As all property of the arrogated person be- came at once the property of his new father, the latter was required to show, in a previous examination, that he was not. influenced by sinister motives, and to give security that he would not abuse the power he was ac- quiring. "When, on the other hand, a person already under a father's power was transferred to the pat/ria potestas of another, the process was called adoption, though this term was also used in a wider sense, so as to include arrogation. Adoption in the narrower sense required only the assent of the two fathers, the natural and the adoptive father. The proceedings took flace before the praetor, and ended in a collusive suit. The adoptive father as plaintiff claimed the child as his under the law of the Quirites ; the natural father, instead of resisting the claim, acquiesced in it ; and it was of course sustained by the praetor's judgment. The effect on the adopted person was to sever all legal ties which bound him to his original family. He was not only released from the former patria potestas, but he lost all rights of inheritance which before belonged to him. By the 126 THE ROMAN LAW. law lie was regarded and treated exactly as if lie had always been a member of the family into which he had come by adoption. The ^at/ria ^otestas was so mo- mentous a thing, it affected so long and so deeply the interests of the person subject to it, that adoption, the creation of a new patria potestas, could not fail to be an important institute of Koman law. In English law it is quite the contrary. Indeed, it can hardly be. called an institute of English law. If a man undertakes to rear a child not his own, the law will hold him to his undertaking; it will compel him while he keeps the child to make decent provision for his wants ; this is the sum and substance of what we have on this head. But if the ipairia poUstas could be created, it could also be terminated, by an artificial process. This process, however, illustrates very strikingly the feeling of the Romans as to the patria jpotestas, showing how deeply founded they held it to be in the natural rela- tion of father and son. The father could not by a sim- ple act of his own will release the son from his con- trol. For this purpose he must sell him out of his own hands into that state of mancvpium or qualified sla- very of which we have spoken. Even then the father's power was not destroyed : it was suspended during the existence of the mcmcipium j but if the mancipium ceased, if the son was set free by the person who held him in that condition, the father's right revived. If he sold him again into the same state, and he was LAW OP STATUS AND FAMILY RELATIONS. 127 again set free from it, tlie father's right revived again. It was not until he had sold him three times over, that he used up his right of control beyond the possibility of a revival. This, then, was the form by which the son was liberated from the patria jpotestas. He was sold by the father to a friend, who at once manumitted him. He was then sold a second time, and a sec- ond time manumitted. But, when he was sold the third time, it was with a pledge that the buyer, instead of manumitting him, should sell him back to the father ; and the father finished the ceremony by manumitting him, as he was now able to do, the pai/ria potestas having been extinguished by the thrice-repeated sale. This process was called emancipatio, because it was e mancvpio, from the formal condition of mancipium, tliat the son passed into his final condition of a man sui Juris. The changes here described — adoption, arrogation, emancipation — all involve a deminutio capitis, the minima capitis deminutio. This seems only natural in the case of arrogation, for there a person who be- fore was his own master pui;s himself under the abso- lute control of another person. But it does not seem so clear in the case of adoption, where a man simply passes from the control of one person to the similar control of another. And as to emancipation, where a man escapes from the control of another and becomes his own master, we might expect that this would be re- 128 THE ROMAN LAW. garded as au amplifioatio capitis rather than a demvnit- tio. It must be dhserved, however, that by adoption and by emancipation a man lost all rights which belonged to him as a member of his qriginal family, especially his right of inheritance as a member of that family. And it was doubtless this loss of previously-existing rights that led the Koman jurists to regard every change of family as a capitis deminutio. It should seem, too, that emancipation was looked upon with some disfavor by the Eomans, that it was not regarded as generally desirable, and was not generally practised. There was a stigma in the very form : the emancipated person must fall three times into the quasi-slavery of the mancipium before he could be free from the fa- ther's power. In the next lecture we shall finish the law of family relations, discussing the agnate family, the law of marriage, and the law of guardianship. LEOTUEE YI. LAW OF FAMILY EELATIONS (cONTnnjED). The agnate family consisted of such cognates (blood-relations) aa could trace their lineage through males alone (father, grandfather, etc.) up to a common male ancestor, whose family-name they all bore, and to ■whose patria potestas they would have been subject had he lived to their time. But persons brought into a family by adoption became agnates ; and those who passed out of it either by adoption or emancipation ceased to be agnates (though still cognates). By the earlier law intestate in- heritance was confined to the agnate family. Gradually, however, cog- nates who were not agnates (emancipated persons, mothers under the freer marriage, etc.) were admitted to certain rights of inheritance. And finally in Novel 118, Justinian set up cognation, in place of agnation, as the basis of intestate inheritance. [Maine's opinion that agnation as a legal institute, wherever found (among Hindoos, early Germans, etc.), implies the former existence of a patria potestas like the Koman ; and that both institutes belonged to the primitive or patriarchal constitution of society.] Marriage required no ceremony to make it valid ; but in early Rome it usually began with confarreatio, a religious rite, or with coemptio, a formal purchase of the wife (by a kind oi mancipaiid). These brought the wife in manum viri, so that she stood to her husband in loco filiae, with dependence in person and property much the same as by the old common law. If married without them, she did not come into the agnate family or under the control of her husband, until brought there by a usus of one year ; but this itms might be defeated by an absence of three nights in the year from her husband's residence. In the time of Cicero the stricter marriage had ceased to be the prevailing one : in that of Gaiua it could only be secured by coemptio. In the Justinian law we find only the freer marriage : the wife remains an agnate of her old 130 THE ROMAN LAW. family, and keeps her own property, with full right to increase it by ac- quisitions of her own. This change was connected with a growing facility and frequency of diTorce, which could he effected by the express will of either party : the party that made it without juat cause might be punished, but the divorce was valid. The Christian Church, contending for the sanctity of marriage against this freedom of divorce — ^with little effect until after the barbarian conquest — found help in Germanic usages which merged the wife's per- sonality in the husband's. Marriage with complete legal dependence of the wife was thus established by canon law, acting with Germanic, against the Roman. Latterly there has been an opposite movement, which is likely to go further, uidess again discredited by undue freedom of divorce. A donation between husband and wife was not valid, but became so, if not recalled, at the death of the giver ; and it was always valid, if made by its own terms to take effect at the giver's death, or a,fter a di- vorce mutually agreed on. But it was common, at marriage, for the wife (if she had property) or her family friends, to make a sort of donation, called dos (dowry), to the ■ husband, which became his property, to be used in the support of the family, and restored when the marriage ended. And under the Christian emperors there sprung up a donatio ante (or propter) nuptias, set apart by the husband to become his wife's, if she survived him, as a help in maintaining their children. GuAEDiANSHiP (tutela) was required for a child left sni juris. The tutor might be a person designated by the law, or appointed by the fa- ther's will, or by a magistrate. The boy under seven full years was an infans, unable to speak or act for himself in any matter of law or busi- ness. From seven to fourteen, he was an impuhes qui fari potest, and could perform many legal acts, but for any that might cause him disad- vantage (as the incurring of a debt, or the release of a debtor) he must have the presence and aucloritas of the tutor. At fourteen completed, he ceased to have a tutor, and could do all things for himself. Yet while he was still a minor (under twenty-five), the praetor was ready by a re- stitutio in integrum to annul any disadvantageous obligation he might have incurred. But a lex Plaetoria (about 200 b. c.) allowed him to have a curator ; whose approval {consensui) of any act removed this liability to future annulment. Difference between the ofSces of tutor and curator. Anothee remarkable institute, connected with the jpatria potestas, and dependent upon it, is the agnate LAW OF FAMILY RELATIONS. 131 family. Like the patria potestas, it was peculiar to the jus civile in its restricted sense, and belonged only to Roman citizens. The agnate family consisted of all persons, living at the same time, who would have been subject to the pai/ria potestas of a common ancestor, if his life had been continued to their time. We have seen that a man's patria potestas comprehended not only his own children, but the children of his sons and the children of his sons' sons, if any such were born in his lifetime ; but that it did not extend to the children of his daughter, these being members of another fam- ily, and subject to another patria potestas, exercised by the daughter's husband. And the same would ob- viously be true as to the children of any female de- scendant. If a man lived to an advanced age, his patria potestas would extend to all his descendants in the first generation, that is, to all his own children, but not generally to all those in the second or third gen- eration : thus in tlie second generation it would extend only to those who were connected with him through males in the first ; in the third, only to those who were connected with him through males in the first and sec- ond. All his descendants would be cognate to him and to each other : there would be a cognation, a nat- ural kinship, a connection of blood between them ; but only those who were either his own children, or con- nected with him through males, would be subject to his patria potestas, and therefore agnates of him and 132 THE ROMAN LAW. of eacli other. So too, if the common ancestor had been dead for two hundred years : all his living de- scendants were cognates of each other, there was a natural relationship, a blood relationship, subsisting among them ; but only those who were connected with this common ancestor through -an unbroken series of male persons, would have been subject to his jpain-ia potestas if his life had continued to their time : only these, therefore, were agnates of each other. The dis- tinction is so important, that you will excuse me if I dwell upon it a little longer, and endeavor to give some farther illustration. Suppose that some person now living of the name of Winthrop, descended through father, grandfather, great-grandfather, etc., from old Governor "Winthrop of Massachusetts, who died in 1649, should . make out a complete genealogical table including all the descendants of that remote ancestor, lie would give first all his children ; then all his grand- children, the children of his daughters as well as of his sons ; then all his great-grandchildren, the children of granddaughters as well as of grandsons ; and so for each generation, giving the descendants of females equally with those of males. The list would naturally include many persons of other names than Winthrop ; and all these persons would be cognates of each, other. But suppose, now, that he should make another and more restricted list, containing only those whose con- nection with the common ancestor could be traced LAW OF FAMILY RELATIONS. 133 tlirough males alone. He would first give all his chil- dren, as before, daughters as well as sons. He would give next the children of his sons ; but would exclude the descendants of his daughters. He would then give the children of his sons' sons ; but would exclude all descendants of his sons' daughters. And so on. Such a list would include only persons of the name of Win- throp. It would include females who had that as their native name, but would not include their descendants, born in other families and with different names. The persons in this second list would have what the Ro- mans called an agnate relationship. But a Roman list of agnates was liable to be affected by two circum- stances which have no existence in our days, by adop- tion and by emancipation. An emancipated son was not only discharged from the f atria potestas of his father : he was cat off from the agnate family to which he had belonged. He was not even tlie agnate of his own children, if any had been born to him before his emancipation : they were not under his pai/ria potes- tas, but under his father's. If he had one child born before and another born after his emancipation, the two children were under different /poUstates, and were not agnates to each other. So if a person was adopted from one family into another, he lost all the agnates whom he had as a member of the first family; but then, as an offset for this, the agnates of his new family became his as much as if he had been born in it. His 1P,4 THE EOMAN LAW. cognates, depending on natural relationship, could not be affected by his adoption ; but in his agnates there was a total change. When, therefore, we speak of the agnate family as consisting of descendants from a com- mon ancestor and connected with him by descent through males alone, we must add those who may have come in by adoption from another family, and we must subtract those who may have gone out either by adoption into another family or by emancipation. The legal importance of the agnate family lay mainly in its relation to inheritance. By the early Eoman law, cognates as such had no rights of inheri- tance whatever. If a man died without will, his prop- erty went to his sui heredes (own heirs, direct heirs), that is, to the persons who were previously under his potestas, but were released from it by his death. If he had adopted as son a person not connected with him by birth, that person was included among the sui here- des ; on the other hand, a son by birth whom he had emancipated was not only excluded from the sui heredes, but could not in any case inherit from his father. If there were no sui heredes, the property went to the collateral agnates who stood nearest of kin to the de- ceased, his brothers or sisters, his brothers' children, his father's brothers or sisters, his father's brothers' children, etc. His mother's brother, his sister's child, and other such relatives, who were cognates but not agnates, could not inherit from him in any case ; nor LAW OF FAMILY RELATIONS. 135 could even Lis own brother inherit, if by emancipation he had been cut off from the agnate family. If there were no agnates to be found, in any degree of kinship, or if the nearest agnate refused the inheritance, his property, according to the Twelve Tables, went to the gens, or extended group of families, to which he be- longed. With such rigor did the early law confine the rights of inheritance to agnates only. It was modified, to some extent, by the prsetor's edict, and by statutes of the imperial time. Thus children were allowed to inherit froni their mother, and a mother to inherit from her children, and children of the same mother but dif- ferent fathers to inherit from one another, and so on. Still, even in the Justinian books, intestate inheritance depended to a great degree on agnate relationship. But in one of his novels Justinian took up this subject anew, and made a pretty complete revolution in it, discarding agnation almost wholly (except as to adopt- ed persons) and putting cognation in its place as a ground of inheritance. The jpatria potestas of the Eomans appears to be without a parallel in the law-systems of other nations. But as to the agnate family, Mr. Maine, in his " Lect- ures on Ancient Law," says that " there are few indi- genous bodies of law belonging to communities of Indo-European stock, which do not exhibit peculiari- ties in the most ancient part of their structure which are clearly referable to agnation. In Hindoo law for 130 THE ROMAN LAW. example, which is saturated with the primitive notions of family dependency, kinship is entirely agnatic, and I am informed that in Hindoo genealogies the names of women are generally omitted altogether. The same view of relationship pervades so much of the law bf the races who overran the Koman Empire, as appears to have really formed part of their primitive usage. . . The exclusion of females and their children from gov- ernmental functions, commonly attributed to the usage of the Salian Franks, has certainly an agnatic origin, being descended from the ancient German rule of succession to allodial property " (i. e., property not held of a feudal superior). " In agnation, too," he con- tinues, " is to be sought the explanation of that ex- traordinary rule of English law, only recently repealed, which prohibited brothers of the half-blood- from suc- ceeding to one another's lands. In the Customs of Normandy, the rule applies to uterine brothers only, that is, brothers by the same mother but not by the same father; and limited in this way it is a "strict deduction from the system of agnation, under which uterine brothers are no relation at all to oue another. "When it was transplanted to England, the English judges, who had no clew to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to consanguineous broth- ers, that is, to sons of the same father by different wives. In all the literature which enshrines the pre- LAW OP FAMILY RELATIONS. 137 tended philosophy of law, there is nothing more cu- rious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclu- sion of the half-blood." I may add that Mv. Maine, the eminent writer from whom I have quoted this pas- sage, regards the institute of agnation, wherever found, as resting on a previously existing j)atria potestas. He concludes therefore, that the Hindoos, who have a fully developed system of agnate inheritance, must at some time or other have had an institute like the Koman patria potestas. Indeed, he considers the peculiarity of the Komans in respect to this institute as due sim- ply to the fact that they have preserved what other nations have generally abandoned. This absolute and life-long power of the father was, he thinks, a general feature of primitive communities. Human society everywhere consisted originally of families, each di- rected and represented by a living head. It was, in fact, the patriarchal organization, in which the com- munity was an aggregate, not of individuals, but of families, the family being the true social unit, and manifesting its unity in the undisputed supremacy of the patriarch or oldest living ancestor. In the early communities this organization seems to have been connected with a nomadic life, the life of wandering herdsmen, such as were Abraham, Isaac, Jacob, and his sons. With settled life, especially in towns or cit- ies, with advancing civilization (which means literally 1 138 THE KOMAN LAW. "making men citizen- like, making them like citj- •dwellers "), the patriarchal organization of the family was generally abandoned. Only in Home, if the Eo- man ^abria potestas was -really a genuine tradition from the old days of Indo-European nomadism, was it maintained with extraordinary tenacity through a long career of national growth, power, and culture, to the latest period of national existence. Our next subject is the law of marriage, the legal relations of husband and wife. Among the Romans no special ceremony was required to establish the re- lation. It was enough that a man and woman, to whose union there was no legal impediment, from nearness of kin or from any other cause, lived together as husband and wife, giving themselves out as such : the law recognized the consent of the parties thus ex- pressed as sufficient to constitute the legal obligations of matrimony. There were, however, ceremonies specially designed and used for this object. Thus, the confarreatio, a religious rite, solemnized in the pres- ence of the Pontifex Haximus or the Flamen Dialis (priest of Jove) and ten witnesses : certain customary forms of words were uttered, and a cake of ineal or flour wa,s presented as an offering; from this the ceremony had its name, confarreatio irorafarreus (i. e. farreus panis, cake of meal or flour). Then there was the coernptio (joint purchase), with at least five citizens present as witnesses, and a sixth as Udripens LAW OF FAMILY RELATIONS. 138 or balance-holder, just as in the form of sale called Tnanoijpatio. The precise words and actions used in the coemptio are not known ; but doubtless they bore a considerable resemblance to those used in the manci- patio. The coemptio was in form a purchase of the wife by the husband from the family to which she had belonged. The effect of both forms {confdrreatio and coemptid) was that the woman came, according to the technical phrase of the lawyers, in manum vi/ri (into the hand or power of the husband); and this they explain by saying that she stood to her husband m loco JiZiae (in place of a daughter) : she was subject to much the same control in person and property as the daughter under the patria potestas of her father. If she had any property at the time of marriage, it be- came her husband's. Whatever she could acquire after marriage was acquired not for herself but for her hus- band. It does not appear, however, that the husband ever had over his wife the unrestricted jus vitae et necis which the father had over his child. The position of the woman in manu viri was not widely different from that of married women under the English common law. Blackstone, in his chapter on " Husband and Wife," where he shows not only that " the very being or legal existence of the wife is sus- pended during marriage," but that she is liable flctgel- lis et fustibus aarit&r verbera/ri (with whips and sticks to be sharply chastised), winds up with these remark- 140 THE ROMAN LAW. able words : so great a fomorite is the female sex of the laws of England. A commentator illustrates this special favor for the female sex by showing that while a man who killed his wife could only be hanged for it, a woman who killed her husband had the gracious privilege of being disembowelled and burned alive ! In regard, however, to the merging of the wife's legal personality in that of the husband, under the English and the early Roman law, I remarked in the last lect- ure that it had its origin in a profound conviction of the natural, normal unity between the married pair, a unity which the law must not compromise by giving any opportunity for a divided will or conflicting ac- tion ; in all legal matters the two must act as one, and of that joint action the husband is naturally taken as the agent or executive. Whatever we may think of the wisdom or expediency of this course, whatever we may think even as to its practical equity, we must not fail to recognize and respect the feeling out of which it sprung. I have said that this subjection to the husband's legal power was the immediate result of marriage in the two forms mentioned, confarreatio and coemptio. A marriage which commenced without these forms did not at the outset confer any such power on the hus- band. The wife entered her husband's household, but did not in a legal point of view become a member of his family. If she was under the power of a father. LAW OF FAMILY EELATIONS. 141 she continued to be so still. She retained her connec- tion with the agnate family of which she was before a member ; and with it retained her former rights of in- heritance. If she was sui juris and had property of her own, she did not lose her separate ownership and control of it, nor was she prevented from making fur- ther acquisitions for herself. Still the Komans held, in the early time of which we are now speaking, that the natural effect of marriage, if long enough continued, was to bring the woman into the family and into the hand (the power) of her, husband. As in reference to lands, houses, etc., a possession long enough continued might cure a defective title, so it was in reference to marriage. The uninterrupted possession of a wife for one year gave the husband all the rights which he would have acquired at the outset if married with con- farreatio or coemptio. The husband's power of control was then said to be acquired by usus. If, however, the wife wished to preserve her freedom from the con- trol of her husband, she was allowed to interrupt the usus by absenting herself three nights in the year from her husband's residence. This privilege of de- feating the usus and avoiding the husband's power by a three nights' absence in each year was granted in an express provision of the Twelve Tables. It was prob- ably at first a device of the patricians to uphold their special interests : women of their order would occa- sionally marry plebeians, of whom, indeed, many were 142 THE KOMAN LAW. not less wealthy or long-descended than the patricians ; and by this contrivance the patrician wife could be prevented from becoming a plebeian lite her husband, and her property, if she had any, could be kept out of his control, so as to come after her death into the hands of her patrician agnates. However this may be, it certainly became more and more common to con- tract this freer kind of marriage, and to guard it from passing by usus into the stricter kind. Before the close of the republic, the freer. marriage had come to be the prevailing type. The usus, from being con- stantly evaded, went at length out of use. Cicero al- ludes to it as something still subsisting in his day ; but Gains, two centuries later, describes it as obsolete. The confarreatio in the time of Gaius had become rare, and no longer brought the wife in manum viri. The only way left to accomplish this effect — to place the wife under her husband's power — was by the co- emptio. And this, too, disappeared before the time of Justinian, probably long before it. The Justinian books represent to us only the freer kind of marriage : the wife had her separate estate, exempt from the con- trol of her husband, with the right of increasing it by her own acquisitions. If we ask why the stricter marriage of earlier times was thus gradually, and in the end completely, sup- planted by the freer, it must be admitted, I think, that the frequency of divorces and the ease of obtaining L'Sw OF FAMILY RELATIONS. 143 them had mucli to do with the change. It did not seem equitable or endurable that the wife's estate should become the property of a husband who might at any time, or for any cause, or without any cause, put an end to the connection between them. The Koman principle was that the consent of the parties was required, not only for contracting marriage, but for maintaining it when contracted. Any act of either party by which this consent was explicitly withdrawn was suflScient to terminate the relation. The confar- reatio, indeed, being a religious rite, a corresponding religious rite, called diffarreaiio, was necessary to dis- solve the obligation. But, with this exception, a mar- riage could be terminated without any specific form, without the cooperation of any public authority, by the simple announcement of either party that it was terminated. The party that put an end to a marriage without sufficient ground for doing so might be pun- ished by law for his misconduct ; but the divorce did not thereby lose its effect. Here, then, we find two very conspicuous features of the Koman law, especially in later times — the legal independence of the wife, and the extreme freedom of divorce. If, now, we turn to mediaeval Europe, we find in both respects an extraordinary difference, a differ- ence which in the main continues even to the present day. How is this difference to be accounted for ? By the joint operation of two factors, the Church and the 144 THE ROMAN LAW. barbarians. To the legal independence of the wife, if it had stood by itself, unconnected with the facility and frequency of divorce, the Church might have had little objection. But in the prevailing system of di- vorce it was impossible that the Church should acqui- esce without a protest. That system, in its extreme laxity, was opposed not more plainly to the teachings of the New Testament than to the interests of a sound morality. The legislation of the Christian emperors, from Constantine to Justinian, shows tendencies tow- ard a reaction on this subject, tendencies which we may safely ascribe to the influence of Christianity. Still the old system was so deeply rooted in the imperial traditions, and so strongly favored by the corruption of the imperial court, that imperial legislation was not likely to be wielded very effectively against it. But in the wreck of the "Western Empire, when the politi- cal forces of the state were shattered, the Church, pre- serving her organism through the shock, obtained a more independent position and a more commanding influence. She was then able to give effect to the teachings of Christianity and pure morality on the sub- ject of divorce. She could do this the more readily, as the fiery trials of that fearful period developed a new spirit of asceticism, of rigorous self-denial, and abstinence from earthly pleasure. To attain her ob- ject, she would naturally lay hold of every element which seemed to favor the indissoluble unity and sane- LAW OF FAMILY GELATIONS. 145 tity of the marriage relation. And here she found help in the ideas and usages of the barbarians. ISTot that the barbarians had any special tendencies toward purity of life, or any objection to divorce, as a means, along with polygamy and concubinage, for the gratifi- cation of lawless desires. On this point the Church had to contend long and suffer much before she could bring her new subjects into any tolerable order. But as to the rights of married women, the law-customs of the barbarians were much like those which prevailed in Kome herself during the earliest and least civilized part of her history. The married woman was scarcely allowed to have any separate legal activity, her legal personality being absorbed and lost in that of her hus- band. This principle the Church adopted from the barbarians and incorporated into its canon law, be- cause it seemed to harmonize with and give support to that indissoluble unity of married life which the Church was interested in maintaining. In general, the canon law was founded on the Eoman : here, how- ever, we find an exception, and a remarkable though by no means an inexplicable one. The Koman law, where it -was opposed to Germanic customs, had in most cases the countenance of the Church ; but here, in regard to the legal independence of married women, it had to contend single-handed against the united forces of Germanic custom and ecclesiastical law. It was almost everywhere unsuccessful in the contest. 146 THE ROMAN LAW. Of late, however, a reactionary movement has ap- peared. The tendency of legislation in France, in England, and in our own country, is more and more to give married women the power of acquiring, holding, and managing property of their own. That this move- ment will be carried still further can hardly be doubt- ed, even by those who oppose and deplore it. In my view, the grea.t danger, is, that it may be accompanied, as in ancient times, by, a facility of divorce that threat- ens the sacredness of marriage and the permanence of family relations; and that it may in consequence be exposed, as it then was, to an odium and opposition which it did not deserve on its own account. There are one or two points which require; to be noticed in order to complete our view of marriage law. The Eomans did not allow donations between hus- band and wife. If the wife made a donation to the husband, or the husband to the wife, the gift was not regarded as valid, and the giver could recall it at pleas- ure. There was danger that if gifts were allowed, they might be extorted by violence and menace, or gained by craft and deception. The less generous or the less scrupulous party would be sure to -have the advantage. And besides, such was the freedom of di- vorce, that the person who made a large grant of prop- erty to-day, might be driven from the house to-morrow. But if a gift was made by either party to the other, and the giver died without having actually i-ecalled it, LAW OF FAMILY RELATIONS. Wj the law regarded it as valid. So, too, if the gift by ita own terms was not to take effect until after the death of the giver ; or not to take effect until after a divorce agreed upon by both parties. In all these cases the gift is recognized as an accomplished fact, not during the marriage, not while the parties are husband and wife, but after death or divorce has put an end to the relation. It was customary, however, at the commence- ment of married life, for the woman (if she had prop- erty), or her father, or other family friends, to make a kind of donation to the husband. This donation was called dos (dowry), and was a contribution on the woman's part toward the expenses of the new family. It became the property of the husband, to be used by him for the maintenance of the family, but with this condition that his right of ownership was to continue only during the marriage. When the marriage ended, whether by death or by divorce, the dowry must be restored. If it ended by the death of the husband, his heirs must restore it ; if by the death of the wife, her family friends must receive back what they gave. If the divorce was occasioned by the fault of the wife, she was punished by a partial forfeiture of the dowry. Another donation, similar in nature to the dowry, and similarly permitted and encouraged by the law, was •called donatio ante mtptias or donatio propter nujptias, according as it was made before or after the wedding. It seems to have sprung up as a customary thing in the 148 THE RO^AN LAW. time of the Christian emperors. It was substantially a provision made by the husband to enable the wife, in case she survived him, to support the children who might be left upon her hands. Though it was thus set apart for the wife's future use, the husband in the mean time had the right to use and enjoy it ; and if the wife died before him, or if there was a divorce without fault on his part, the donation was extinguished. There remains one more relation of family law — that of guardian and ward. How did the Koman law provide for persons who were deprived of a father's care while too young to act for themselves, or to act with due intelligence and safety. Take the case of a son left fatherless in the first year of his life. If the father when he died was sui Juris, the child, young as he was, became sui juris also ; for he was no longer subject to a patria potestas. It was necessary that he should be placed at once under the charge of a guar- dian. If in the father's will a person had been named to act in this capacity, the guardianship was put into his hands. If there was no will, or if the will con- tained no appointment, the guardianship was given by the early law to the nearest agnate. If no agnate could be found suitable for the trust, it was the duty of some magistrate to appoint the guardian. For the first few years, until he reached the age of seven, the child was incapable of any legal action. All that needed to be done in managing his estate was LAW OF FAMILY RELATIONS. 14 9 done by the sole act of the guardian. Persons under seven were designated in law by the name of infantes, or by the fuller phrase qui fari non possunt. This, of course, does not imply that Koman children were so backward as not to begin talking before that age. The meaning was, that children so young could not speak the language of law and business ; they could not pro- nounce, with the necessary comprehension of their meaning, the forms of expression used in legal trans- actions. "Why was the age of seven fixed upon as the limit of this period of total incapacity ? In fixing on fourteen as the age of puberty, the law-makers prob- ably conformed to a prevailing fact of physical devel- opment as seen in the warm countries of Southern Europe. And as the objects of the law required that a division should be made in this period of fourteen years preceding puberty, the seven was chosen as mak- ing an equal division. Perhaps both denominations, the seven for infancy ended, and the fourteen for pu- berty attained, may have been made under the influ- ence of that famous theory of ancient physicists, which regarded human life as a series of seven-year periods, each having its distinct characteristics. Our own twenty-one years, as the age of legal majority, was probably assigned imder a similar influence. During the second seven years of life, from the end of the seventh to the end of the fourteenth, children were called impuberes qui fa/ri possunt. On entering 150 THE ROMAN hAW. tliis period tlie boy came into a new relation to his guardian. He was now able to use for himself the words and forms required in the ordinary transaction of business. He was supposed now to have that tol- erable understanding of their sense, without which his use of them would be a farce, a mere mockery of the law. But he was not supposed to have such knowledge and judgment that his use of them without the guid- ance of an older head would be at all safe for himself. Hence this principle was adopted, that, in cases involv- ing any danger to the child, any possible disadvantage to his interests, his words alone were not valid. To make them valid, it was necessary to have also the presence and authority of the guardian. This author- ity {cmctoritas, authorization) might be given in any form. If the guardian was present and heard the words of the child without opposition or protest, he was considered as giving his auotpritas\ov sanction. Eut his presence and his expressed or implied approval were necessary to give validity to the words of the child — ^if, as before said, the transaction was one that might be at all detrimental to the latter. Thus, the child acting without his guardian could take a receipt discharging him ffom a debt ; he could impose an obligation, that is, could lay another person under ob- ligation to him; he could accept a promise so as to make it binding on the promiser. But he could not bind himself; he could not lay himself under obliga- LAW OF FAMILY RELATIONS. 151 tion to another ; he could not pay out money ; he could not alienate any of his property — without the concur- rence of his guardian. He could receive money in payment of a debt, but he could not give a valid re- ceipt, because his claim on the debtor was a part of his property, which would be alienated if discharged by a receipt. He could not accept an inheritance', because the heir was laid under obligation to pay the debts of the estate which he inherited. In general, if he acted by himself in any business which could subject him to possible loss or damage, his action was wholly invalid. But with the age of fourteen, that is, with the com- pletion of the fourteenth year, there came a mighty change. He was no longer subject to a guardian. He was at liberty to marry, and was a paterfamilias whether he married or not. He had entire control of his own property, and could alienate it by sale or gift at his sole pleasure. He could make a valid will, appointing an heir to his estate. It is curious to com- pare this extreme freedom of action conferred on the boy of fourteen whose father was dead, with the ex- treme disabilities imposed on the mature man of forty whose father was living. And it is certain that such freedom would not have been allowed at such an age, if the number to be affected by it had been very large. The great majority of boys at the age of fourteen were under the patria potestas of a father or grandfather. Of those who were not so, it is safe to say — as wealth 152 THE ROMAN LAW. is everywhere an exceptional thing — that the great majority were poor, without any estate to be wasted by their indiscretion. It was only here and there one ■who was liable to be ruined for want of the guardian- ship which was withdrawn before he was old enough to do without it. But, as the Komans increased in wealth, there was an increasing number of persons ex- posed to this danger. At length, the prsetors thought it necessary to interpose for their relief. If any person between the ages of fourteen and twenty-five had suf- fered actual disadvantage from some business trans- action, the praetor on application would set aside the transaction. By a restitutio in integrum (as the pro- cess was named — a restoration to the former state), he put the parties back into the same relations as they had prior to the transaction. If the Romans appeared to us before as having much more confidence than we in juvenile discretion, they now show decidedly less than we do. They fix a term four years later than ours for full majority, assuming that until that time (until the completion of his twenty-fifth year) the young man needs to be protected by law from the con- sequences of his unripe judgment. But this interfer- ence of the praetor in behalf of the minor (the person under twenty-five), to annul the disadvantageous trans- actions in which he had engaged, was not without its inconvenience for the minor himself. It made people shy of dealing with him, for they could not be sure' LAW OP FAMILY RELATIONS. 153 that their dealings would not be set aside. To remove this difficulty, it was provided by an early statute (the Lex Plaetoria, passed about 200 b. c.) that any youth who had completed his fourteenth but not his twenty- iifth year might have a curator ; and that the consent of the curator given to any act of the minor should secure it from this danger of subsequent reversal. This curatorship of minors, of youths under twenty- five, though somewhat resembling the guardianship before described of children under fourteen, was yet clearly distinguished from it. The child inust have a guardian : the minor Tnight, if he chose, have a cura- tor. The action of a child without his guardian was usually invalid from the outset : the action of the minor without his curator was in itself always perfectly valid, though liable to be invalidated at some future time. "When the child acted, the guardian must be present and give his auotoritas or authoritative sanction, on the spot. "When the minor acted, the curator's pres- ence was not required : his consensus or approval of the act, whenever or wherever given, was sufficient for all purposes. "We have now considered all the relations of family law, and shall proceed at our next meeting to take up the la/w of property. LEGTUKE VII. LAW OF PEOPEKTT. Pbopektt was divided by Eoman jurists in various ways ; thus into — 1. Res divini juris (for pious uses), including (a) res sacrae (for the service of the gods), and (i) res religiosae (for the burial of the dead) ; 2. Bes humani juris (for secular uses), divided again into (a) res privatae (belonging to individuals and subject to traffic), and (6) res publicae, in- cluding res fisci or aerarii (pertaining to the treasury of a state or city), res sanctae (as city walls and gates, analogous to things divini juris"), and res communes omnium (the air, the running river, the sea, the shore be- low high-water mark, etc.). Another division was into res corporales and incorporales. To the latter, apprehensible not by the senses but the mind only, belong rights and claims. So also do the shares (ideal parts) of A and B in any un- divided property common to both. In the total estate of a living person and the Iiereditas of a deceased one, the parts might be all corporeal, but the whole was incorporeal. So, even in a flock of sheep, if permanently kept up. A third division was into res mobiles and immobilcs. To the latter belong land and buildings (solum and res soli). In the Roman system, this division was less important than (owing to feudal relations) it has been in the modern civil law, and very much less than in the English, where it still severs the whole private law into two great sections. Property rights (dominium, ownership) might originate — 1. By ocm- patio, a taking possession of what never had an owner, or has ceased to have one ; thus things abandoned by the owner ; things of an alien en- emy at breaking out of war (all previous rights destroyed, or at least suspended, by capture in war) ; undomesticated animals, while in a state of freedom ; discovered treasures, of unascertainable ownership ; new LAW OF PKOPBRTT. 156 land formed by alluvial action ; 2. By specificalio, where one makes from property of another some different species of product (not restorable to the former condition) ; S. By mixture, where one unites another's prop- erty with his own in an inseparable union (as two kinds of wiue ; not so, two heaps of grain). But if one thing becomes u. mere accession (sub- ordinate) to the other, the new whole belongs to the owner of the princi- pal thing : the written letters were an accession to the parchment, but not so the painting to the canvas. The building (if designed to be per- manent) was always an accession to the soil. Property rights (not derived from a previous owner) might also arise by usucapio, undisputed possession for a certain time. For this, the possessor must have bona fides, real belief that he is owner, founded on a jusia caiisa possessionis, as sale, gift, inheritance, etc., which usually gives full legal title. In the case of property which had been stolen, even these were insufficient. By usucapion, the bonorum possessor, who had bought res mancipi without the form of mancipation, or who was allowed by the praetor to inherit under an informal testament {see Lecture IT.), became dominus (owner) ; but these uses ceased under Justinian. The time for usucapion, one year for movable things and two for immov- able, was extended by Justinian to three years for movable and ten years (or against claimants in another province, twenty) for immovable. There must be actual possession for so long a time ; and possession was held to be suspended while an adverse claim was under trial. Possession without bona fides and justa causa could never give title against an actual owner, but was maintainable by law against any person whose right was no better than the possessor's. For such purposes, the Roman jurists, analyzing possession, distinguished in it a corpus (actual control over the object), and an animus (disposition to treat it as one's own). Kemarkable development of this institute explainable from — 1. The frequency of the precarium, where a debtor, who had given up some property as security for his debt, was allowed to have possession of it at the creditor's pleasure ; 2. The necessity, in every trial of disputed ownerslup, to determine who should have possession until the case was decided ; 3. The immense tracts of public domain land, held in posses- sion by individuals, but remaining still in the ownership of the state. The Koman jurists were accustomed to classify property iu several ways, according to various differ- ences in its nature and relations. Thus they distin- 156 THE ROMAN LAW. guislied res divmi juris (things consecrated to pious uses) from res liumcmi juris (things used for secular purposes and wants). The former, the res dvomijv/ris were withdrawn from human traffic. They included res sacrae (sacred things), consecrated to the service of the gods, as temples, altars, and the like ; and res reli- giosae (religious things), consecrated to the interment of the dead. If a man selected a spot, on ground be- longing to himself, for a place of burial, and actually used it as such, the spot so used became a locus religio- sus. The will of the individual was here sufficient to give the character of res divini juris to the ground selected and to any tomb or other structure built upon it. The res sacrae, on the other hand, derived their character from the authority of the people. Any res dimni juris (whether sacra or religiosa) could only cease to be such by public authority. If, however, it was taken by an enemy in war, the effect was the same : the legal status of an object, the rights apper- taining to it, including even the jus divinum, were always obliterated by such capture. The res humani juris are also divided into two classes, res privatae and jpublioae, according as they do or do not belong to private persons. The res ^rivatae are subject to traf- fic, to be sold for money, bartered for other articles, pledged for debts, bestowed as free gifts, and disposed of in other ways. Even the res publicae are not alto- gether excluded from traffic. The public treasury of a LAW OF PROPERTY. 157 city or country enters into all business relations, buy- ing, selling, exchanging, etc., like the estate of an in- dividual. The public treasury had, indeed, by Koman laws certain advantages in its business operations, in acquiring, maintaining, and enforcing its property rights ; but in their nature these operations were not essentially different from those of private persons. But there are things of public use which could not thus be dealt in. Some were even placed under reli- gious sanctions, and were regarded as analogous in character to the res divini juris. Such things were called res sanctae. Whoever injured them was subject to the guilt and penalty of sacrilege. The walls and gates of a city are mentioned as examples of this class. Placed with religious ceremonies under the special care of tutelary deities, they were not indeed appro- priated to divine service, and were therefore not divini juris, and yet they had a peculiar and inviolable sanc- tity. Other things again could not be dealt in, be- cause they were communia omnium, the common property of all men, not subject to the special control of individuals or communities. So the air, the run- ning river, the sea and with it the sea-shore, as far in as the water reaches at high tide — over these things nobody can exert an exclusive power. One may in- deed isolate certain portions of them, so as to acquire a separate ownership. One may use the water of a river to supply a pond in his own grounds, and thus 158 THE ROMAN LAW, become o"WTier of so much of it as he appropriates in this way. But he canuot own the stream as a whole, nor even any section of a mile or a rod in length, so as to prevent others from using it for washiag, swim- ming, boating, and the like. One may construct an enclosure of some kind by the sea, lower down than high-water mark, or even than low-water mark. He thus becomes owner of the ground within the limits of this enclosure, because he is able to exercise an exclu- sive control over it ; but if the water sweeps away his enclosure, his exclusive control is lost, and with it all his rights of ownership. This, then, is the first divis- ion of things — into res divini Juris on the one hand, including res sacrae and res religiosae/ and, on the other, hand, res humani juris, including res privatae and puMicae, while among the puhlicae we distinguish especially the res fisci or aerarii (belonging to the treasury), the res sanctae, and the res commv/nes om- nium. Another division is into res corporales and incor- porales (corporeal and incorpbrea,l things). The for- mer are apprehensible by the senses, the latter by the mind only. Of the former kind are lands, buildings, cattle, gold, silver, etc. : it is unnecessary to multiply instances. Of the latter kind are rights and claims. If I have a right of way over my neighbor's land, this right is a piece of property, it has a money value ; but it is not a thing that can be touched or felt, it is a res LAW OP PEOPERTT. 159 mcorporalis. So if I have a claim against my neigh- bor for a hundred pounds, if he is bound to pay me that sum, the obligation has a substantive value, depending on the means and character of the debtor ; but it is not a palpable, tangible thing : it is a res incorj>oralis. The money, when it is paid (if it is money, if it is specie), ■w:ill be a corporeal thing ; but the obligation to pay is incorporeal. If the payment is not in money, but in a bank-bill or a treasury greenback, it will be only the substitution of one incorporeal thing for another : instead of the obligation of my neighbor, I shall have the obligation of the bank or of the govern- ment, the value of which will depend on tlie means and character of the banking company or of the govern- ing people : the new obligation may be worth as much as the money, that is, the amount of gold or silver named in it, and it may not be worth a half, or a tenth, or a ten-thousandth of that amount. In these cases the ideal, incorporeal character of the property is plain. In others it may require some reflection to recognize it. Thus if two men, A and B, hold a piece of ground, say a ten-acre lot, in common, as joint owners of the undivided land, the whole lot is a corporeal thing ; but A's part and B's part, according to the theory of the jurists, are incorporeal. Each of them, it is evi- dent, owns the half, not the whole, of the ten acres. But if you attempt to point out each one's half, so that it can be seen or touched, you will find yourself 160 THE ROMAN LAW. baffled. There is no visible part, no square foot or square incb of surface that does not belong to A as much as to B, and to B as much as to A. The parts, in fact, have as yet no separate existence ; they are not cognizable by the senses, they are ideal, incorporeal. The Eomans had a process of law, the actio communi dividundo (the action for dividing property held in common), by which either of the joint owners might cause his part to be set off with definite boundaries. When this was done, the parts became corporeal things ; but then there was no longer a joint ownership ; each man became separate and sole owner of the part as- signed to him. In the case just supposed, the parts were incorporeal while the whole was corporeal. But the opposite case is frequent, where the parts are cor- poreal but the whole incorporeal. You will probably think me paradoxical if I give as example a flock of ■ sheep. For this seems at first view to differ only in number from the single objects that compose it, and to be like them corporeal. And this view would be a correct one, if the flock was only a collection, brought together by accident, and having no permanent char- acter. But it is otherwise with a flock which is kept up for a length of time, so as to have a continued ex- istence, an identity, independent of the particular in- dividuals belonging to it, and remaining the same while these undergo a complete change. A whole which remains the same while the material parts that LAW OF PROPERTY. 161 compose it are all changed, cannot be entirely mate- rial ; it must have an ideal element which continues through all changes and maintains the identity of the whole. This reasoning may seem rather subtile, but the correctness of the conclusion is generally admitted. So a man's estate, the total of his property relations, the aggregate of money, lands, chattels, rights, claims, and liabilities, belonging to him, was regarded by the Komans as a res incorporalis. Even if it happened to ■consist only of material things, money, lands, chattels, without any immaterial rights, claims, or liabilities, this was a mere accident, and the estate, as such, was stiU regarded as a res inoorjooralis. And so was the hereditas, the estate of a deceased person, the total of his property relations, which, by will of the deceased, or by course of law, became vested in the person of his heir. A third division of property is into res mobiles and immdbUes (movable and immovable propertj^). Immovable, in the fullest sense, is land alone ; but buildings or structures of a permanent character erect- ed upon it, share in this quality. The solum and res soli constitute the class of res immobiles. They are in their nature so peculiar that no law-system can fail to recognize the peculiarity. A popular writer says : " ISTo man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be eject- ed, but the land remains where it was ; and he wl^o '162 THE ROMAN LAW. has been wrongfully turned out of possession may be reinstated into the identical portion of land from which he had been removed. Not so with movable property ; the thief may be discovered and punished ; but if he has made away -with the goods, no power on earth can restore them to the owner. All he can hope to obtain is a compensation in money, or in some other article of equal value." In the Roman law, however, this distinction between land with its fixed appurte- nances and all other kinds of property was not made very prominent. So far as its nature admitted, land was put an the same footing and treated in the same way with movable property. In English law, on the other hand, this distinction is of overshadowing im- portance. Landed property is peculiar in the modes of creating and transferring it, in the processes for defending and reclaiming it, and indeed in the most of its incidents and relations. It is true that there has been a progressive assimilation : the difFerences are not so great now as they were in former centuries ; but they are still so great as to demand separate treatment in the English books of law. These books all divide property law into two great departments, the law of real property and the law of personal property. They do not, like the Eoman writers, give a body of princi- ples and rules applicable to all kinds of property, and point out in connection with this the peculiarities which distinguish land and buildings. They give a LAW OF PEOPERTT. 163 complete law of real property, and a complete law of personal property, as if they were two radically dis- tinct systems. The fact here stated finds its explana- tion in the feudal system, as having land for its basis and regulator. The feudal nobility was not merely a landed aristocracy, a body of large land-owners ; but their relations to one another, to the common sovereign above them, and to the popular mass below them, were determined by the land. Each member of the body had his rank, his privileges, his rights, his duties, affixed to and dependent upon the land which he held as liegeman of a feudal superior, or granted as liege- lord to feudal inferiors. Hence grants of land and tenures of land assumed a great variety of forms, con- ditions, and incidents. They were the main subjects of the early English law, in which, as already re- marked, personal property, movable property, passed almost unnoticed. Personal property has since at- tained an importance not inferior to real ; and the latter has lost many of the peculiarities which once belonged to it ; but the separation between them is still much wider in Englisli than in Roman law. Even the countries of the European Continent which have more or less fully adopted the Roman law, have been subject to the influence of feudalism, and their law-systems are in this respect less simple than the Roman. We have»next to consider the ways in which prop- erty rights are created, the modes of acquiring prop- 164 THE ROMAN LAW. erty. Of course, the most frequent way is that of transfer by sale or gift from some previous owner. The right of the new owner is in such cases founded upon and derived from that of his predecessor ; it is essen- tially the same right, only transferred to a new person. But it is not this derived ownership that we are to consider now. It is, rather, the origination of property rights which do not depend on a predecessor, the modes of original acquisition. First, then, if a thing is without owner, any one i§ at liberty to take and keep it : he makes it his own by the very, act of taking possession. To this mode of acquisition the Romans gave the name of ocou^atio, which indeed signified " taking possession." A thing might be without owner, because somebody who be- fore owned it had voluntarily relinquished or aban- doned it, had thrown it away or had given up exercis- ing the rights of an owner. The person taking posses- sion must be able to show by some such act or fact that the previous owner really intended to divest him- self of his ownership. Again, in case of war, if,- at the commencement of hostilities any Koman citizen had in his hands property belonging to a member of the hostile nation, he was entitled to keep it as his own. In an alien enemy the law recognized no right of ownership. Whatever right he before had was ex- tinguished by the breaking out of war. The property which before belonged to him was left without owner. LAW OF PROPEKTY. ' 165 and could therefore be acquired by any one who had possession of it. But things taken from the enemy during the prosecution of a war were differently treat- ed : they became the property, not of individual cap- tors, but of the state, which might indeed distribute them among the captors, but might and often did, dis- pose of them in other ways. The theory that preexist- ing rights were destroyed by capture in war, was ap- plied even to the property of Romans. If the flock of a Eoman citizen was driven off, or the furniture of his house carried away, by the enemy, he lost not only his possession, but even his right of ownership, so that if the things taken were afterward recaptured from the enemy, he could not reclaim them as his own. This rule, howcTer, which seems a harsh one, had some im- portant exceptions : if lands or slaves or horses were captured, the owner's right was not destroyed by the capture, but only suspended during its continuance : it revived when the things were recovered from the enemy's power. Again, un domesticated animals, as long as they have their natural freedom, are consid- ered as without an owner. If the caged bird escapes from its confinement, the owner's right ceases, until he can catch and confine it again. If anybody else catches it while free, he is, entitled to keep it as his own : the previous owner cannot take it from him. The man who can catch a hare, may keep it and cook it if he will. And this, even if he caught it in his 166 THE ROMAN LAW. neighbor's woods, wliere lie had no right to go. In that case he was liable to punishment for his poaching, but was not required to restore his game. Yet, again, treasures or valuables which had been concealed so long that none could tell to whom they belonged, were considered as being without owner. K a man found such treasures on his own ground, whether accidentally or by searching for them, he was entitled to make them his own. He was not, however, allowed to search for them on his neighbor's ground ; that would have in- volved too gross a violation of his neighbor's rights. If he explored the grounds of another for this pur- pose, he could not lay claim to any thing that he found. But if he was in anybody's ground for other purposes, and chanced while there to come upon such a hidden treasure, he could keep half of it for himself, the other half going to the owner of the ground. . At least, these were the rules generally followed ; for un- der the emperors there were repeated attempts to bring such findings into the public treasury. But this always proved to be impracticable : the effect was that men concealed their discoveries ; and the government had to return to the old principle. Once more, if new land was formed by alluvial action, by soil carried down a stream and deposited on its banks or at its mouth, this new land became the property of him whose land it joined. If a new island was formed in the middle of a river, it belonged to the owners of the LAW OF PROPEETY. 167 banks between wMcli it lay, their portions being deter- mined by a line drawn in the direction of the stream midway between the banks. If a river changed its course, its former channel, now converted to dry land, was divided on the same principle between the oppo- site owners of the old river-banks. In the cases thus far considered, the right of prop- erty was acquired in something which was previously without owner. But there were cases in which a thing that had an owner passed without his consent into the ownership of another person. Thus, where a man working on material that belonged to some one else made a new thing out of it, the new thing became the property of the maker, who in this way acquired own- ership of the material. This was called specification, the making of a new species or kind of product : thus, where a man made cloth from another man's wool, or bread from another man's grain. It seems that on this point there was a difference of opinion be- tween the two great schools of jurists. The Sabinians maintained that the owner of the material was entitled to the product : qwd ex re nostra fit nostrum est. The Proculians maintained that the product belonged to the fabricator ; and this view was adopted in the Jus- tinian system. Perhaps a desire to favor productive industry may have had something to do with the pref- erence. It was probably defended by arguing that the material in its old form had ceased to exist, that 168 THE ROMAN LAW. the product was a new thing which, had no previous owner, and therefore belonged naturally to hiin who made it with intent to have it as his own. For this effect it was necessary that the product should he es- sentially a new thing. If a man took a piece of white cloth belonging to another, and merely dyed it red or black, the change was not sufficient to maintain a claim of ownership. Even if a man took a mass of silver belonging to another and made a cup of it, he did not become owner of the cup : the change was not sufficient ; a few blows of the hammer would reduce the cup to its former condition of a shapeless mass of metal. The principle was expressly recognized, that if the product could be reconverted to the old form of the material, there was no change of ownership. It ought, perhaps, to be added that the use of material belonging to another did not necessarily imply dishon- esty in the person using it. It might be the result of a mistake ; or, if there was fault, it might be the fault of some one else. Thus, the maker of the new thing might have purchased the material in good faith from some one who had obtained it through violence or fraud. And the owner of the material, though un- able to recover the identical substance taken from him, was not left vnthout remedy. He could bring an ac- tion against the person, whoever he was, that took away his property, whether the user of the material, or some one from whom he got it, and could thus ob- LAW OF PEOPERTT. 169 tain compsnsation in money for the loss wliicli he had suffered. A similar transfer of ownership was sometimes oc- casioned by a union or mixture of things which be- longed to two different persons. In order to this effect, it was necessary that the things should be brought into a very close and intimate connection. And here, again, the test-question was, whether.it was possible to restore the former condition, to separate the things which had become united, so that they should be as they were before the union. If a carnelian seal belonging to Aulus was set without his consent in a gold ring be- longing to Titius, Aulus was still in law owner of the seal, and Titius owner of the ring. If pieces of metal belonging to Aulus and to Titius were soldered to- gether, each one remained owner of his own piece : the solder could be softened by heat and the pieces de- tached from each other. If two flocks of sheep, the property of different owners, became mixed together, there was no change of ownership : each man could pick out his own sheep, and have them separate as be- fore. It might, perhaps, be difficult for him to recog- nize them, but this made no difference as to his right. And the same was true, even if two measures of wheat were mixed together : to separate the grains was not in itself impossible ; and here again the fact that each man would find it difficult or impracticable to recog- nize his own made no difference as to his right. But 170 THE EOMAN LAW. if two kinds of wine -were mixed together, the case was different : the union here was indissoluble ; to separate the two so as to restore the former condition was an absolute physical impossibility. If Titius mixed his own wine with, that of Aulus, he became exclusive owner of the whole ; while Aulus had his remedy in a suit to- recover, not the identical thing which he had lost, but a compensation or equivalent in money. This was especially true, if along with the mixture there was a specification or creation of a new species of thing, distinct from either of the two that were united : as, when Titius made bread from his own flour mixed with that of Aulus, or cloth from his own wool mixed with that of Aulus, Titius was sole owner of the bread and of the cloth. It often happened, however, that of the two things united, one was a mere accession to the other, a mere secondary or subordinate part; and here a different principle prevailed. ]^o matter which party made the union, the previous owner of the principal thing became owner of the new whole, while the owner of the accession lost his right of property, and could only claim a compensation for his loss. Thus, if Titius took a piece of cloth belong- ing to Aulus, and embroidered it with purple of his own, he not only gained no right to the cloth, but even lost his right to the thread. The embroidery was a mere accession to the cloth, and Aulus, who before owned it without the embroidery, owned it now with . LAW or PEOPEETT. iVl the embroidery. Similarly, if Titius took a piece of parchment belonging to Aulus, and wrote a book or part of one upon it, the manuscript belonged to Aulus, not to Titius ; the parchment could exist without the letters, but. not the letters without the parchment. The parchment was regarded therefore as principal, and the letters as accessory. To us moderns this seems a per- verse decision : we think of the literary contents of the manuscript as the important thing, and the writ- ing-materials as comparatively insignificant. To re- verse this relation appears to us hardly less unreason- able than the judge's decision in Cowper's poem that spectacles belonged to ]!f ose, not Eyes, and " that when the said Nose put his spectacles on, by daylight or can- dle-light. Eyes should be shut." It must be remem- bered, however, that in ancient times writing-materials were relatively much dearer, and labor in copying much cheaper, than now. And, in fact, when it came to painting, the ancients themselves shrunk from the conclusion to which consistency would have brought them. It appears that some jurists (as Paulus) were disposed to treat painting like writing, to hold that the canvas was the principal thing, and the lines and colors laid upon it merely accessory. But here the disproportion of value was so great as to make the conclusion appear unnatural and arbitrary. The pre- vailing opinion was, that if a painter used a piece of canvas which was not his own, the picture belonged to 172 THE ROMAN LAW. the painter, not to tlie previous owner of the canvas. The most important case of accession was that in which a man erected a building on another man's ground. It might be that the builder acted in good faith, believing the ground to be his own. He may- have had a title which seemed to him perfect, nntil a judicial investigation proved it defective. StiU he could have no right of property in a building thus erected. The soil was the principal thing, the build- ing only an accession, a res soli. The owner of the soil was therefore owner of the building also. But for this effect the structure must be of a fixed or perma- nent kind. If it was a tent, which is a movable thing, or a booth designed to be only temporary, it had not that intimate connection with the soil which could alone effect a transfer of ownership. Even in case of a permanent building, if from any cause it came to be ruined or demolished, its materials (the stones or tim- bers of which it was composed) ceased to have any close connection with the soil : they were no longer res soli, and might be reclaimed by the original owner. There is still one mode of acquisition left to be con- sidered, the one called usuco/pio (taking by use), in which, by the possession and use of an object for a legally determined length of time, a person became owner of that object. It ought to be stated here, that possession, as a law-term, both in Latin and English is always distinguished from ownership. Possession sig- LAW OF PROPERTY. 173 nifies an actual control over some object, without im- plying whether the control is or is not a rightful one. Ownership implies a right to exercise control, .without deciding whether that right actually is or can be ex- ercised. The man whose horse is stolen retains his ownership, but loses his possession : the thief obtains possession, but does not obtain ownership. 'Now, to acquire ownership by usucapion, something more than mere possession for a certain length of time was neces- sary. There must be hona fides on the part of the possessor : he must be acting in good faith, in the be- lief that he was really entitled to the object possessed ; and this belief must be founded on a justa causa pos- sessionis (a legal ground of possession), that is, on some transaction known to the law — such as sale, gift, inheritance, and the like — by which property rights are usually established. Without hona fides and justa causa, there could be no usucapion ; if a man had not acquired his possession by some such legal transaction, or if, having acquired it in that way, he nevertheless knew that he had no sound title, he could not receive the benefit of usucapion. This institute was designed to help the cause of justice, not to be the means of de- feating it. The leading object was to relieve a man from the inconvenience and difficulty of tracing the title of every piece of property that came into his hands. If he obtained it in some regular way, and held it in good faith for a certain length of time, noth- Hi THE EOMAN LAW. ing more was necessary : he could maintain it against any claimant; lie was not obliged to trace it back from one previous holder to another, and prove that each in succession was entitled to hold and to transfer it. It was possible, indeed, that a real owner might in this way be deprived of his property. But the theory of . the law was, that the period of time required for usu- capion was all that a real owner needed for the prose- cution of his claims ; that if he allowed this time to pass without the assertion of his rights, he could not justly complain if the power of asserting them was taken from him. In case of theft, indeed, the owner might be unable to find the object taken, and therefore unable to claim it, within the time allowed for usuca- pion. But this case was met by special laws, which ex- empted things taken by theft or robbery from the op- eration of usucapion, l^ot only was the thief or robber incapable of acquiring them, but even persons who re- ceived them in good faith, not knowing that they had been wrongfully taken from a previous owner. One object of usucapion, especially in the earlier time, was to supply a remedy for mere formal defects in the pos sessor's title, where its substantial justice was unques- tioned. We saw, in a former lecture, that there were certain things, called res mancvpi (lands, houses, slaves, horses, and cattle), the ownership of which could only be transferred by the ceremony of mancipation : with- out this ceremony, one might have them as possessor in LAW OF PROPEKTY. 175 ionis (among Ms effects), he could not own them ex jure Quiritium / but after a possession of one or two years he became owner by usucapion. So, if a man received the estate of a deceased person under a will which had not been executed with all the prescribed formalities, he did not become owner of the estate ex jure Quiritium, as if he had been heir ; he only had it m "bonis as 'bonorum possessor ^ but here, again, after a possession of one or two years, he became owner by usucapion. Justinian, however, abolished the distinc- tion between res manoipi and res nea mancipi, as well as the distinction between hereditas (inheritance, strict- ly so called) and the bonorum possessio (mere posses- sion of a deceased person's estate), so that the institute of usucapion lost a large part of the uses which had formerly been served by it. Justinian, at the same time, extended the period required for usucapion. This under the old law had been surprisingly short, one year for movable things, two years for immovable : a rule which might be well enough adapted to the con- ditions of a petty state, where a man could easily keep track of his property, and defend it promptly if in- vaded by others, but must often have caused incon- venience in a great empire. According to the new rule set up by Justinian, three years were required for movable things and ten or twenty years for immov- able : ten years' possession was an effectual barrier against claimants living in the same province as the 11 Q THE EOMAJSr LAW. possessor, twenty years against claimants living in any other province of the empire. It was necessary to make out so many years of actual possession. If a man, some time after coming into possession, was dis- possessed for a year, he could not claim a ten years' usucapion until the end of the eleventh year. And if any man asserted a claim of ownership against the possessor, the possession was held to be suspended as soon as the legal proceedings commenced, so that the claimant was in no danger of losing his right by a usu- capion completed during the course of the proceedings. The possession thus far described, as requisite to usucapion, had l>ona fides and justa causa as indis- pensable conditions. But possession without these conditions was also recognized as a foundation for legal rights. Indeed, we may reckon among the most remarkable features of the Eoman law, the explicit- ness with which it acknowledged, and the elaborate machinery with which it defended, the possible rights connected even with a wrongful possession. Posses- sion, to be effectual against a real owner, to give rights against an owner, must be accompanied by iona fides and justa causa. But possession which lacked one or both these elements might give rights against other would-be possessors. The principle was that an actual possessor, without reference to the' ground or origin of his possession, should be defended by law against all persons whose title was no better than his own. If LAW OF PROPEETY, 177 Aulus liad settled down upon a piece of land, knowing that lie had no claim to it whatever, and when he had occupied it for a time, Titius stepped in without any- better claim and drove him from the place, Aulus could invoke the help of the law, stating merely the facts of his possession and his forcible ejectment from it, and could thus obtain restoration to the ground on which he had squatted. The case would have been very different, if Titius had been the real owner of the land, or if he had been even a former possessor, whom Aulus without legal right had deprived of his posses- sion : Aulus then could have found no assistance or protection in the law. Again, let us suppose that Aulus had received a horse as a precarium, or tempo- rary gift to be recalled at pleasure of the giver. In this case, there is nothing wrong in the possession of Aulus, but it is a possession which could never lead to usucapion, for he does not believe himself to be owner, and he has no cause to believe it. It is a possession of which the owner can rightly deprive him at any moment. But if Titius, a third party, attempts to do so, the law will interpose in behalf of Aulus, to main- tain his right, precarious as it is. In treating of possession, as it appears in such cases, the Koman jurists distinguished a corjous and an cmimus (a body and a spirit). The corpus (or body) of possession consisted in the physical power to exer- cise control over the object, to treat it as one's prop- 178 THE KOHAN LAW. erty. The animus (or spirit) consisted in tlie disposi- tion to do so, to treat it as one's property. Both were alike essential to real possession. If a man borrowed a horse, he had the physical power to treat it as his own property ; but while he regarded himself as a bor- rower, lie could have no idea of treating it thus, and therefore had no possession in the sense we are now considering. If he was deprived of the horse, he could not obtain redress on the ground that he was a pos- sessor : he must plead the right of keeping and using, which he had derived from the owner. His right was founded on an agreement with the owner, and not on a possession vested in himself. There are many interesting points connected with this subject of possession (i. e., possession without Txma fides ovjusta causa) ; but to point them out and make them clear would lead into too much detail. I will only add a word as to the causes by which the Romans were led to make so much of this doctrine, and to give it so full a development. One of these is to be found in the custom of \h.e preoarium, just adverted to. In early times, when a piece of property belonging to a debtor was pledged as a security for the debt, it usu- ally passed at once into the ownership of the creditor, and remained his property until the debt was to be paid. Meantime, however, it was often suffered to remain in the possession and use of the debtor, as a preoarium, or temporary concession, which the credi- LAW OF PROPEETT. 1^9 tor (the present owner) could recall wheneYer he chose. The frequency of this procedure made it necessary to recognize and protect the possession allowed in it. Again, when an action (or suit) was commenced to determine who was owner of a piece of property, the first question was, who should have possession of the property while the suit was pending, of course with the obligation of surrendering it if the suit should go against him. Thus every suit that turned on a dis- puted title furnished a case of temporary possession which required to be recognized and protected. Still again, the occupants of the public lands, the domain of the state, were not owners but possessors of their holdings. These lands, chiefly acquired by conquest in war, were sometimes divided among the citizens, and then became the property of individuals. More commonly, they remained the property of the state, but were occupied and enjoyed with public permission, by members of the ruling aristocracy. This occu- pancy or possession could never give rise to usucapion : it was always subject to the superior claims of the state. Though strong enough to maintain itself against the assaults of the Gracchi, and other popular leaders, it was in theory like a precarium, a temporary conces' sion, which the state could recall whensver it chose. Here, then, possession had the widest field for legal as well as economical and political development. The subject of the next lecture will be Rights in the proj>erty of others. LEOTUEE VIII. EIGHTS m THE PEOPEETT OF OTHEES. Jura in ke (sc. aliend) were rights naturally included in the domini- um of the owner, but cut off and given to some one else. One property might be so related to another, that the first was subject to some power or control of any person who owned the second : such relations were called servUuies praediorum ruslicorum or urhanorum^ according as they pertained to lands or to buildings. Among the former were three rights of way, viz., iter (of simple passing), actus (of driving animals), via (of keep- ing up a road), across the ground of another ; also servituies aguaeduclvs, aquaehaitstus^ pasceiidij arenae fodi&ndae^ lapides eximendij calcis coquendae^ etc. Among the latter were servitutes oneris ferendi, tigni immisd, projici- endi or protegendi, stiUieidii, jluminis, cloacae, luminum, dliius non toUendi, ne luminibus (or prospectui) qfficiatur. General principles : 1. The two es- tates must generally (not always) be contiguous ; 2. The right secured must be an advantage to the ruling estate, not to its owner merely ; 3. The advantage to the ruling estate was a measure of the right ; 4, The servitus could never consist in faciendo (by owner of subject estate), but usually in paiiendo, sometimes iu non faciendo. Besides the praedial, there were personal servitutes, pertaining to the person, and hence limited to the life, of an individual. The most impor- tant was the v,susfrucius, full right to use and enjoy some property of another. The property, however, must be put to its natural use ; and must be so used as to suffer no substantial injury. Hence, in articles of food there could be no usufruct ; and none in money (juasj-usufruct). The usufruct might be created for a term of years, and must then cease at the end of the term. It might always be transferred from one person to another. But in no case could it survive the original usufructuary. And if by any transfer it came back to the owner of the property, it RIGHTS m THE PROPERTY OP OTHERS. 181 ceased at once. It might also cease by non-user (the opposite of usu- capion). There was a more restricted usufruct, called tisiis : the usuary could not transfer hia right to a third party ; and he could only use the prop- erty for immediate personal wants of himself and his family; all further use and profit belonged to the owner. To the servituies praedial and personal of the jus civile, the praetors added other jura in re. Thus — 1. Superficies, a. right (resembling usu- fruct, but of longer duration) in some building erected on the (surface) ground of another. TJsuaUy it was perpetual, and subject to transfer or inheritance without limit. If conditioned, as it commonly was, on a ground-rent, it ceased upon non-payment of the rent. 2. JEmphyteitsis, a similarly perpetual transferable and inheritable right in the land of another ; developed in the later empire, and named from the planting of waste tracts which it was designed to promote. If the emphyteuta wished to sell his right, he must first ofifer it to the owner, who might buy it for the proposed price, or, if another bought it, might claim a fee. It always ceased upon non-payment of the rent. 3. In early Rome, property used to secure a debt came into the owner- ship of the creditor (who often allowed the debtor to keep it as a pre- carium), and was called fiduda, as a trust committed to his faith for the restoration on due payment of the debt. But with this kind of security there was another, which finally supplanted it, by which the ownership remained with the debtor, and the creditor had a jus in re entitling him to sell the property in case of non-payment. A pledge of this kind was called pignus, and might be deposited with the creditor, or kept in the hands of the debtor. In the latter case it was a Tiypotheca. Any kind of property, present or prospective, might be hypothecated, and that over and over again, until its credit was exhausted. Unfortunately, there were no sufficient means for ascertaining previous hypothecations (though the debtor who failed to state them was liable to severe punishment) ; and the evil was aggravated by the admission of various tacit pledges (as of a tenant's furniture, for payment of the house-rent, etc.), as well as by giving preference to certain privileged debts (especially those to the treasury for public dues) without reference to the time when they were contracted. Such' deficiencies in the Roman law of pledge must have added much to the difficulty of obtaining credit. We have thus far considered property in its com- pleteness, as including all the rights and privileges 182 THE EOMAN LAW. connected witli ownership. In this fulness of meaning it implies absolute and exclusive control over its ob- ject. It is the owner's right to do every thing which can lawfully be done with the object, and to keep all other persons from doing any thing whatsoever with it. This personal dominion, sole, entire, unre- stricted, of the owner over the thing owned, belongs to the normal idea of property, and was emphasized by Roman, even more strongly than by modern, ju- rists. Yet they did not fail to recognize the existence of cases — exceptional cases — where property had less than this, its full extent; where the fulness of the owner's right, was limited by some right of a non-own- er in the same object. Their theory of law admitted and provided for rights in the property of others, jura in re aliena, or, as they were usually called, jura in re, the word aliena being omitted as unnecessary. The oldest of these rights were mentioned in the Code of the Twelve Tables, and have a peculiar interest, from their connection with the simple agricultural life of •the early Romans. They were called by the quaint name of s'ervitutes (servitudes, or subjections). The subjection referred to in this case is of things, not per- sons : it is the subjection of one estate to another — the liability of one estate to be used for the advantage of another. It is easy to trace the conception which gave rise to the term. A country is free when it is subject only to its own legitimate ruler : if it is sub- RIGHTS IN THE PROPERTY OF OTHERS. 183 ject to another country, or to the ruler of another country, then it is in a condition of servitude. So an estate may be looked upon as free when it is subject only to its lawful owner; if it is subject in any respect to another estate, or to the owner of another estate, it may be regarded as being so far forth in a condi- tion of servitude. And as one of the two estates was then said to be subject or serving, so the other was called the ruling estate. The relation, once created between the two estates, was permanent, and was not affected by a change of owners in one or both of them. Among the earliest and most important of these servitutes were four which are often named together — iter, actus, via, aquaechiotus (way, drive, road, water- drawing). The first three of these were rights of way. The owner of the ruling estate was entiiled to pass over the ground of the subject estate, and the owner of the latter had no right to prevent him from doing so. It was this limitation of the power, that naturally belonged to him as owner, to exclude everybody from his grounds, which formed the essence of the servitus. And it was this privilege which did not naturally be- long to the non-owner, of using another man's ground for purposes of transit, that constituted the Jus in re aliena (or jus in re). But how do these three rights {iter, actus, via) differ from each other? The man who had the iter was entitled -to go through his neigh- 184 THE ROMAN LAW. bor's ground on foot, or even on horseback, and to have his slaves or his hired laborers go through. But there was one curious restriction, belonging evidently to the very earliest period, that no one in passing through should carry an upright pole (Jiastam rectam ferre), for fear of doing harm to the fruit trees. The man who had the actus was entitled to the privileges just described; but with them he had others which were not included in the iter. He could drive horses, oxen, or other beasts of burden, he could drive carts or wagons, over his neighbor's ground. But he was not allowed to drag heavy timbers or large masses of stone (la^dem awt tignum trahere), by which the surface would be broken up and disfigured. The man who had the via was entitled to all privileges included in the iter and aotus / but he . had one more which did not appertain to \hose servitutes : he could lay out and keep up a permanent track, a road, across his neigh- bor's ground — only just wide enough, however, for his own use; in the absence of any express agreement, the breadth of the track must not exceed eight feet, except at a bend or angle, where a breadth of sixteen feet was allowed. In this case he was not restrained from dragging heavy stones or timbers ; if by doing so he injured his own track, he was himself the only sufferer. !N"or was he restrained from carrying an up- right pole, if, in laying out the way, care had been taken to avoid any fruit trees which might receive EIGHTS IN THE PKOPEKTY OF OTHERS. 185 injury from it. The three servitutes now described {iter, actus, via) were designed to meet a necessity which must have been of frequent occurrence in a population of peasant proprietors. The country about Eome, when she was only the chief city of Latium, was divided up into a large number of small farms or holdings, which were cultivated by the personal labor of the men who held them. It would often happen that a man had pieces of ground which were separated from each other by the land of a neighbor, so that to pass from one to another without going through the neighbor's land would Require a long circuit with much loss of time and labor. In such a case it would be desirable for him to obtain more than the mere con- sent of the present owner to such a transit. He would wish to have an obligation imposed upon the land it- self, so that the new owner, should such a one come in and be indisposed to concede the privilege, might be compelled to submit to it. This ready access to a field which would otherwise be more or less difficult to reach, was looked upon as an advantage to the field itself; being rendered more accessible, it would be more likely to receive due care and culture. And the business was viewed by the ancient Komans as a rela- tion between the two fields or pieces of ground, one of which was constrained for the advantage of the other to endure the interference and use of a person not its owner. 186 THE EOMAN LAW. But there were other advantages which an estate, might receive from a neighboring estate, and accord- ingly other serviiutes. Thus it might be desirable to irrigate one estate by caiTying a stream of water across the ground of another — ^whence a servii/us aquaed/wc- tus / or by drawing water from a spring or well upon the other estate — whence a servitus aquaehaustus. And it might be desirable to meet various wants of one estate by pasturing cattle on the other, or by dig- ging for sand, by quarrying stone, hj burning lime, etc., on the other— whence a servitus pascendi, servitus arenae fodiendae, servitus lapides exvmendi, servitus Calais coquendaeyAnd the like. These are, all of them, servitutes jpraediorum rusticorum (servitudes pertain- ing to rural estates) ; they were evidently designed to satisfy the demands of country life and labor among an agricultural people ; though some of them might occasionally find application in towns, where pieces of ground owned by private persons and unoccupied by buildings were contained within the enclosure of the walls. But there were rights of a similar kind which related to buildings, and were therefore adapted chiefly to the wants of city life, though not .without application to buildings in the country. These bore the corresponding name of servitutes praediorum ur- hanorum (servitudes pertaining to urban estates, that is, to buildings, these being usually the important thing in urban estates). Thus the proprietor of a EIGHTS IN THE PROPERTY OF OTHERS. I8Y building might gaia a right to rest his wall, or part of it, upon a wall or column belonging to his neigh- bor ; this was the servitus oneris ferendi. The neigh- bor's wall or column was to this extent subject to the use and control of one who was not its owner ; it must bear the burden of an alien proprietor. And the lat- ter had a right to this service from his neighbor's prop- erty. It was not a right simply against the present owner. It could be maintained with equal force against any future owner. It was a right in the thing itself, a jus m re aliena. Similar to this was the right to have a timber of one's house inserted into the house or wall of a neighbor, the serviius tigni immissi / and the right to have a projection of one's building extend out over the ground of a neighbor, the servitus projioiendi, ox protegendi. Closely connected with the latter was a right to have the drip of one's eaves fall upon a neigh- bor's ground, the servitus stilliaidii/ or, if the water from the roof was gathered by a gutter, to let the col- lected stream i^flumen) fall upon the neighbor's ground, the servitus fluminis / or to have a sewer discharging in a neighbor's ground, the servitus cloacae. There were other servitutes designed to secure for buildings the advantages of light and air : thus a servitus lumvnum, which gave the right to keep windows in a neighhbor's wall ; a servitus altius non tollendi, which restrained a neighbor from raising a wall, or any other structure, higher than he had when the servitus began ; and a 188 THE ROMAJST LAW. yet more general serviius ne luminibus offioiatur, or servitus ne prospectui offioiatur, wliicli preveated him from doing any thing which would be an injury to the existing light or prospect. It is not necessary to mul- tiply examples : those already described will be suffi- cient to give clear ideas as to the scope and character of these praedial servitudes both of lands and buildings {servitutes praediorum rustioorum et urbanorum). But there are some important remarks of a general na- ture to be made concerning them — remarks which, with these examples in mind, you will be prepared to appreciate. Fiest, the two estates between which the relation exists must, in general, be contiguous to each other. This results from the nature of the services themselves. In some — as the servitus projioiendi, the servitus stillioidii, etc. — contiguity is evidently indis- pensable. And, in all, the advantages aimed at are such as would usually be sought from contiguous es- tates. But this was not a matter of universal require- ment. Thus where the servitus consisted in a right of way, the estates might be separated by a public road, or a river, or a piece of common ground, which any man could cross at his pleasure. Or the two estates might be separated by a third, if this also was subject to a similar right of way. The servitutes, which were designed to secure window light and prospect, might be imposed on a distant estate, even if intervening ones were not subject to it, so long as these interven- EI GETS IN THE PEOPERTY OF OTHERS. 189 ing estates had no buildings on them, or none high enough to give annoyance. Second, the right secured by the servitus must be an advantage to the ruling estate — ^to the estate itself, not to its owner merely. Thus if A, being a carpenter, obtained the privilege of storing lumber on ground that belonged to B, this was no more a servitude of the kind we are now consider- ing, than if A had obtained from B the privilege of walking in his garden. There would be an advantage to A personally, but none to the estate, the land, or house, of which he was the owner. Thied, the advan- tage of the ruling estate is also a measure of the right. One who had the servitus Iwpides emmendi could take from his neighbor's estate all the stone that was needed for fences and walls upon his own ; but this was the extent of his privilege. He could not take out stone and sell it for his own personal profit. Foueth, the essence of the servitits could never consist in some- thing to be done by the owner of the subject estate. There could be no servitus in faciendo. Most of the serwMtes consisted injpatiendo : the owner of the sub- ject estate must submit to something — as another man's passing over his ground, the drip of another man's eaves, etc. — which an ordinary owner could pre- vent. And a few — as the servitus altius non toUendi — consisted in a non faciendo : the owner of the subject estate must not do, he must abstain from doing, some- thing which an ordinary owner could do. But no such 190 THE ROMAN LAW. thing as a s&rvitus in faciendo was recognized by Eo- man law. It is true that when there was a right of way, the owner of the subject estate was required to remove any obstruction which might hinder the exer- cise of tbe right. But this was a mere incident : it was not the essence of the serviius. There was no servitus by which the owner of the subject estate could be compelled to mate a road across his ground, or to draw water from his spring, or to take out sand from his bank, for the benefit of the adjoining farm. Such a requirement the Eomans would have regarded as encroaching too deeply on that independence which is the natural condition of ownership. And, besides, it was excluded by their theory. According to the fun- damental conception of the servitus, it was the thing itself, the estate, and not the personal activity of its owner, which was subject in part to another person's will or use. The right c"Onferred was a jus in eb ali- ena, not a jus in peesona aliena, or in opeee, la^oee alieno. In the servituies thus far considered, the praedial servitudes, the right of use which was secured did not attach to an individual person ; it belonged to an es- tate, or, more correctly, it belonged to any person who might chance to be owner of that particular estate. But there were other servituies which had a strictly personal character — ^the personal servitudes, as they were called — where the right of use vested in a par- EIGHTS IN THE PEOPEKTT OF OTHERS. 191 ticular individual, and of course terminated witli his life. Though of later developijient, probably, than the praedial servitudes, they vrere both early and im- portant. The most frequent and prominent among them was the ususfructus or usufruct, the life-long right to use and enjoy some property of another. The usufruct might be created by a contract between the owner of the property and the usufructuary, that is, the person who was to have it for his own use and enjoy- ment. But it was much more commonly established by a will or testament. It would often be the wish of a testator to provide for the wants of some person who was not his heir, and to do this without making a per- manent division of his estate, or taking from the heir his eventual possession of the whole. This was readily accomplished by leaving to the person whom he wished to favor the usufruct of his property, or of some part of it — a farm, a house, a slave, a pair of oxen, or any thing else — while the ownership was vested in the heir. It was a bare ownership — in Eoman phrase a nuda jprojyrietas — so long as the usufruct subsisted. The usufructuary received possession of it, with full con- trol, to make any use which he pleased, to gain any profit or advantage which he could. If it was a farm, he might cultivate it for himself, either consuming the products for his own wants, or selling them if he pre- ferred to do so. Or, if he chose, he might lease it to another, receiving the rent as his own. He could even 192 THE EOMAIJ^ LAW. transfer his right to somebody else, who would then have the same usufruct, the same extended privileges of use and enjoyment. Of course, he could transfer no more than what belonged to him : his right was a personal one, confined to his own life ; if he died the day after having made the transfer, the person who received it from him had but one day's tenure ; the usufruct expired with the usufructuary, and the owner obtained his full rights of ownership. I have said that the usufructuary could make any use of the object which suited his interest or pleasure. The statement requires some qualification. He must put the object to its natural and proper use. If he receives the usu- fruct of a pleasure-garden, he must not malie it a vege- table-garden to raise cabbages for the market. And, what is more important, he must not use up the object. An owner may do so, if he likes, but not a usufructu- ary. He must use it as not abusing it ; he must see that it receives no injury, suffers no deterioration, at his hands. This belongs, in fact, to the Eoman law definition of the right : ususfructus est jus alienis rebus utendi fruendi salva keeum stibstantia (the substance of the thing being unimpaired — without in- jury to its substantial value). It is worthy of remark that, according to the letter of this definition, a good many things are incapable of a usufruct. Thus, all articles of food : they do not admit of the utendi fru- endi salva rerwm substantia. A bushel of wheat or a EIGHTS m THE PROPEKTY OF OTHEES. 193 barrel of apples cannot be used without being used up. Here, use and consumption are the same thing. And this is also true, though it is not quite so obvious, in regard to money. It is among the things which perish in the using. If we use it at all, it must be in buying, lending, giving ; and in all these cases we lose it. "We may get something in place of it, which is of equal or greater value ; but the things themselves, the substantia rerwn, the metallic masses that we parted with, do not come back to us — unless they chance to be bad pennies, and these of course are not money. The Roman jurists, therefore, would not acknowledge a usufruct of money ; though, in their desire to carry out the wishes of testators, they came at length to rec- ognize a quasi-usufruct.- For testators, being seldom learned in the law, would often set forth as legacies in their wills the usufruct of a designated sum, as a hun- dred or a thousand pounds. In such a case the person named as legatee was allowed to receive the amount of the bequest, on giving security that when he died' the same amount should be paid out of his own estate to the heres, the heir of the testator. The relation here, though bearing some resemblance to the usufruct, was really quite different; the person who received the money became absolute owner of it ; the heir had no ownership, nothing but the assurance of receiving an equal amount at some future time. I have spoken of the usufruct as a life-long privi- 194 THE ROJIAN LAW. lege ; and such it usually was. It might, however, be created for a term of years ; and, in such cases, ceased on the expiration of the term. If the usufructuary died before that time, the right, being a strictly per- sonal one, did not survive him. It always ceased with his death. Yet it might cease before his death, even ■when it was originally bestowed for life. It could be transferred, as we have seen, by the usufructuary to some one else ; and by him to some one else ; and so on without limit. But if by any of these transfers the usufruct came into the hands of the owner, it was im- mediately and finally extinguished. Uniting with the nuda prqprietas, or bare ownership, which he before • had, it lost its separate existence. He might, if he chose, create a new usufruct .in the same object and for the same person ; but it would be wholly distinct from the old one, which no power could bring to life again. And there was still another way by which a usufruct, and indeed any other servitude, might be ter- minated, namely, by non-user. If the usufructuary made no use of the object, if he did not derive or seek to derive any service or advantage from it, and if he persisted in this non-user for a certain length of time, he was considered as having abandoned his right, as having relinquished and thus lost all claim upon it. The effect was as if he had freely and formally surren- dered his right to the owner of the property. So with praedial servitudes : a right of way, of water-drawing, EIGHTS m THE PKOPEKTT OF OTHEES. 195 of burning lime, and the like, if it remained a certain length of time unexercised, became extinct. A servitus non altius tollendi was exercised so long as the neigh- bor's wall or house stood at the same height ; if he undertook to build it higher, the owner of the servitus might compel him to take it down again ; but if he acquiesced without legal opposition, this was a non- exercise of his right, which after a certain length of time became extinct. This forfeiture of a right by non-use is evidently analogous to that acquirement of a right by use (by usucapion) which we considered in the last lecture. And the time required to produce the effect was the same in both cases. By the earlier law it was one year or two, according as the object was a piece of movable or of immovable property : the usufruct of a horse was lost by a year of non-use, that of an orchard by two years. But Justinian changed these times (as he did for usucapion) into three years for movable proj)erty, and ten years (or, where the parties lived in different provinces, twenty years) for immovable. Besides the usufruct, there was another and less frequent personal servitude, known as the usus, which may be described as a restricted usufruct. The usuary, that is, the man who has the usus of a thing, could only use it to satisfy the immediate personal wants of himself or his family : this was usus in the strict sense of the term. "Whatever else'could be made out of the 190 THE EOilAN LAW. tiling in the way of profit or adyantage came under the designation of fructus, and was not included in this right. The usuary of a house could occupy it with his family, but he could not rent it to another person. If there were any months in the year when he did not care to occupy, the owner had the disposal of the house during such times. The usuary of an orchard could take as much of the fruit as he wanted for the consumption of himself and his family ; that was the proper usus of the fruit. But he could not seek his profit by disposing of any part to others ; that would have been, in the law-sense, /i'wc^s of the fruit. If there was more than the usuary wanted for family consumption, that was at the disposal of the owner. The usufruct, as we have seen, was a transferable right ; the usus, on the contrary, could not be sold, or given away, to any one except the owner of the prop- erty. The usufruct, while it .existed, withdrew the object altogether from the service of the owner, giving all its capabilities and products to another person ; the VjSus, on the other hand, left to the owner a chance at least of sharing with the usuary in the service and ad- vantage to be got from his property. The serviiutes, praedial and personal, were the only jura in re (rights in the property of others) which were recognized and maintained by the earlier Eoman law, the jus cwile strictly so called. Eut the class of jura in re was afterward increased by two or three EIGHTS m THE PROPERTY 0? OTHERS. 197 institutes, -which ought not to be passed over without notice. One of these was called superficies. The word properly denotes the surface of the ground ; hut the reference in this term is to that which stands on the surface, the building which rises from and is sup- ported by the surface. We saw in the last lecture that the building was regarded as a mere accession of the soil. The owner of the ground was owner of any building erected upon it. There was no possible way in which a man could become owner of a building without being also owner of the ground on which it stood. But the developed Eoman law allowed a man who was not owner of the ground to have a right in the building, a jus in re aUena, which was not widely different from ownership. This right was called superficies. The person to whom it belonged (the superficiary) had all the privileges of the usufructuary ; he had the entire control and profit of the building while he lived. But he had more than these. His right was not confined to his own life. When he died, it passed to his heirs ; and, if they kept it till death, to their heirs ; and so on. K he chose, the superficiary might lease his right ; he might pledge it for a debt ; he might sell it, and the buyer could do all the same things with it, either - disposing of it to others, or keeping it till his death and leaviiig it to his heirs. This right could be cre- ated in several different ways : the most common was by a contract with the owner of the ground, who in 193 THE ROMAN LAW. consideration of a fixed annual payment, a ground- rent, granted the right of awperfioies with all the inci- dents belonging to it. The contract might be made for a definite time, but only for a very long one : the right then ceased when the time had elapsed. Other- wise, it was a perpetual right ; there was no reason in the nature of the case why it should not continue forever. Of course, however, a failure in the payment of the ground-rent worked a forfeiture of the right. If the building was burned down or otherwise de- stroyed, the right naturally ceased, the object to which it attached being no longer in existence ; but the super- ficiary was allowed to replace it by another building with the same right. The right might also cease by voluntary renunciation of the superficiary, or in a se- ries of transfers it might come into the hands of the owner, and thus be merged in full ownership. In cases where there was no ground-rent, the chance of some such termination of the superficies was the only valu- able interest which remained to the owner. The right of superficies had its sphere of application in cities, where it would often be an object with owners of the ground to obtain an assured and constanfre'venue from their property, without the trouble of insuring build- ings, keeping them in repair, paying public charges on - the ground or buildings, etc., which ordinai-y owners of property were subject to. There was another right, similar in nature and ex- EIGHTS IN THE PKOPERTT OF OTHEES. 199 tent to the foregoing, but adapted to estates in tlie country and to the cultivation of the soil. It was a perpetual lease of land for a fixed annual payment. For a long time it was confined to public lands, the property of the Eoman Government or of a municipal corporation ; but eventually it was extended to lands owned by individuals. In the Corpus Juris it has the name of emphyteusis, a Greek word which signifies " planting," and in this nse points clearly to unfortu- nate circumstances of the declining empire. Owing to the constant and harassing inroads of the barbarians, immense tracts of land were made desolate. In the perils and anxieties of those times, there was little in- ducement to reclaim these desolate lands. It was a common thing for men even to abandon their own lands, in order to escape the burdensome taxes which they had to pay upon them. In opposition to these tendencies, it was a leading object with the govern- ment to promote the planting and cultivation of wasted and forsaken lands. And it was mainly to encourage this kind of planting {envphytexisis), that the right of which we speak was recognized and protected during the two centuries before Justinian. The person who received the right was called empTiyteuta (planter) or errvphyteuticarius. By contract with the owner of the ground, he obtained a certain piece of land with the obligation of a certain annual payment agreed upon between the two. He could then treat the ground 200 THE ROMAN LAW. obtained almost exactly as if he were an owner. He could keep it through life and leave it to his heirs. He could lease it to a tenant, or pledge it to a creditor. He could sell it to a buyer, who would gain the same extended rights, but with the same obligation of an- nual rent-payment. In case of a sale, however, he must first offer it to the owner at the same price ; and the owner, if he did not take it, was entitled to a fee for his acceptance of the new occupant. As the powers and privileges of the einphyteuta were much like those of the superficiary, so the right of emjjhyteusis terminated, under much the same condition as that of superficies, and the chance of such a termination was nearly the only interest (aside from his rent) which was left to the owner of the property. As the emphyteusis is essentially a perpetual lease of land, it may occur to you to inquire whether an or- dinary lease for a limited time is not also a jus in re. I answer, " 'So : " an ordinary lease was regarded as a mere personal contract, imposing obligations on the two parties, but conveying no title to the land itself. If an ordinary lessee was disturbed in his possession by some third party, if he was ejected from the land which he had leased, he could not bring an action in his own name against the intruder ; he could not claim that any right which he himself had in the thing was violated. He could only fall back upon the lessor, claiming that by his contract the lessor had engaged EIGHTS IN THE PROPERTY OF OTHERS. 201 to secure Mm in the possession of the land, and insist- ing that he should now fulfil that obligation. But the emphyteuta, if similarly disturbed, was not obliged to fall back upon the owner of the ground ; he could bring an action in his own name against the invading party ; he could plead his right in the land, his emphy- teusis, showing that it had been unlawfully invaded, and demanding compensation and redress for the inva- sion. The reason for making such a distinction in favor of the emphyteusis and the superficies, was evi- dently the perpetuity of these rights and the full con- trol which they gave over their objects, two qualities which invested them with a character not widely dif- ferent from ownership. There remains to be noticed only one more jus in re, that which the law accorded to a creditor in the property of his debtor when pledged for the payment of the debt. This, however, was not a feature of the earliest Eoman law. Under the earliest law the credit- or obtained the ownership of the pledge. The debtor by a formal act of sale transferred to his creditor the field, or horse, or plough, or whatever other piece of property was to serve as a security for the debt. The creditor bound himself at the same time, and as part of the same legal transaction, to restore the property to the debtor by a similar act of sale, in case the debt should be discharged when it became due. This con- ditional engagement of the creditor to restore the thing 202 THE ROMAN LAW. received on payment of the debt was called JidMcia (or trust). The same name {fiduoia) was applied to the article itself, the piece of property, which passed in this way and for this purpose from the debtor to the creditor. As the creditor was owner of the article, he could make any use of it that he pleased, provided that use was not inconsistent with his obligation to re- store it when the debt was paid. It was a very com- mon thing to leave it in the hands of the debtor as a precariwm, or temporary gift, to be recalled at pleas- ure of the giver. Such indulgence the creditor could show to the debtor without endangering his own inter- ests ; but he was in no way bound to show it. If the debt was not paid when it fell due, he could sell the article as it was his own property, and use the pro- ceeds for the satisfaction of his claim. If they were more than sufficient for this purpose, he must give the excess to the debtor : this was an obligation imposed upon him in connection with the fiducia. The pro- cess here described seems to have been the earliest method known to the Koman law of providing secu- rity for the payment of a debt. It was still used in the time of Gains, but has no place in the Justinian sys- tem. With it we find another method, doubtless very ancient, which, from its greater pliancy and conven- ience came to be the prevailing one, until at length the former disappeared altogether. By this the ownership of the article which was used as a pledge for the debt EIGHTS m THE PROPERTY OF OTHERS. 203 remained with the debtor. "What the creditor received was merelj a, jus in re ; it was the conditional right of selling the article in case the debt should not be paid. The debtor's right of ownership was subject to •this limitation. He must do nothing with the prop- erty which would interfere with the eventual right of the creditor, and in case of non-payment of the debt he must submit to the creditor's exercise of his right — he must allow his property to be taken and sold by, and for the benefit of, another. The property thus made subject to the creditor's Jus in re, was called ^2^- nus. It might be placed in the hands of the creditor as a pignus de^ositum. But it might also remain in the hands of the debtor ; and this came to be more and more the prevailing practice. For such a pignus which continued in possession of the debtor till occa- sion might arise to sell it for the creditor, the jurists had a special law-term hypotheca, borrowed from the Greek : our English verb hypothecate is formed from this term, and signifies " to make a pledge of this kind, to pledge a thing without giving up possession of it." The hypotheoa lent itself readily to a wide range of application, and received in Koman law a very extend- ed, and indeed excessive, development. First, as to the things pledged. "Whatever had a money value, what- ever could be sold for money, might be pledged in this way. Not only corporeal things, but also incorporeal, such as claims and rights, claims for money or labor 204 THE ROMAN LAW. from other persons, rights in the property of others, a right of way over a neighbor's ground, a usufruct in a slave, a right of superficies or emphyteusis. Not only things present, but also things to come, things expect- ed in the future ; the growth of wool to be taken from one's flock next year, the produce of his wheat-field five years hence. One might even pledge something which belonged to another person, the pledge being conditioned on a future acquisition of that thing by the pledger. One might pledge an inheritance which he looked for, of course on condition that the expect- ed inheritance should actually come to him. One might pledge his whole estate, the aggregate of all his property relations (which, as we have seen, was an incor- poreal thing), for the payment of a single debt. Next, as to repeated pledging of the same object. It was a dis- advantage of the old fiducia that a piece of property could only be pledged for one debt at a time. The value of the property might be tenfold greater than the amount of the debt ; yet the debtor could not use that excess of value to obtain any further credit, un- less it were from the creditor into whose ownership the thing had passed. But the same piece of property might be hypothecated over and over again, to any number of persons, until its credit was exhausted, un- til the aggregate amount of the claims to be secured by it was equal to the probable value of the property. But if this was an advantage, it was also a danger of RIGHTS m THE PROPERTY OF OTHERS. 205 the hypotheca. The creditor must always fear that the security offered him had been impaired by pre- vious hypothecation. There was no requirement of a prescribed form or of a public record to authenticate the existence of a hypotheoa. The creditor had to de- pend very much on the representations of his debtor. It was the duty of the latter, whenever he pledged the property, to make known the existence and extent of previous pledges, and he was threatened with severe punishment if he failed to do so. But this was only an'indirect, and often an insufficient help to the cred- itor. The difficulty was greatly aggravated by the admis- sion of tacit pledges for particular kinds of claims or obligations, pledges which required no express agree- ment, as they were established and enforced by law. Thus, if a man lived in a hired house, his furniture was subject to a tacit pledge for the payment of the rent. If the owner of a ruined building borrowed money for its restoration, the new building was sub- ject to a tacit pledge for the payment of the loan. The inheritance which came to an heir was subject to a similar pledge for the payment of any legacies en- joined in the will of the testator. The whole prop- erty of a guardian was subject to a similar pledge for any claims against him arising from the administration of his guardianship. And from the time of Oaracalla, the whole property of everybody was similarly pledged for public dues and taxes. But there was still another 206 THE EOMAN LAW. aggravation of the diflSculty. "When a piece of prop- erty was sold for the benefit of several creditors to •whom it had been successively pledged, the regular course of things was, that the one to whom it was first pledged should be first satisfied from the proceeds, and then the others in the order of time. If this course had been invariable, much complication might have been avoided. But there were numerous exceptions to it : particular claims, as those of the treasury for pub- lic dues, were specially favored, being allowed to take precedence of those that were earlier in time. Amid all these sources of confusion and uncertainty, it must have been excessively difficult to ascertain the real worth of any proposed security ; and, as a necessary consequence, it must have been much more difficult than it would otherwise have been, for those who were, in want of credit to obtain what they needed. The Eoman law of pledge appears to me the weakest part of their system ; the only part, perhaps, of which one could say that it was really ill adapted to the ends for which it was created. The subject of the next lecture will be the law of obligations. LECTUEE IX. LAW OF OBLIG ATIONS. No other part of the law so thoroughly worked out by Roman juris ta, or so influential on modern systems. We first describe the particular obligations, then state general principles which apply to all of them or to certain classes. I. Vekbal Conteact. — Instead of written notes, the Eomans used the verbal stipidaiio, consisting of a formal question (JDo you promise, etc. ; will you give, etc.), with corresponding answer. If spondeo was used by stipulator and promissor, it was a eponmo, and was confined to Roman citizens. If the two parties had different things in mind, the stipulation was invalid. If they lived in different places, an agent might be used ; who, however, could not say. Will you give Aulusfive hundred aurei, nor WiU you give me as agent of Aulus, neither form being generally valid. But he might say. Will yvu give me five hundred aurei, and afterward transfer {cede) his claim to Aulus ; or else, Will you give Aulus five hundred, or, failing that, give me one thoueaiid. II. Literal conteact (with written letters as formal basis of the ob- ligation) : none such in the Justinian law, the old use of codices or ac- count-books for this purpose (retained longest by the argeniarii, brokers) having become obsolete. III. Real conteacts (where the formal basis of obligation was a thing delivered or rendered) : such were the mutuum, commodatum, de- posiium, jngnus. (o) Mutuum, a loan, usually of money, which, to be of use to the re- ceiver, must become his property, but with the obligation of equivalent 208 THE ROMAN LAW. return. There could also be a muluum of other fimglUe things (oon- Bisting in number, weight, and measure). Interest was promised by a separate contract : the maximum rate varied at different times, but never exceeded twelve per cent., except in the nauiicum fentts, which was a kind of insurance, as the debt ceased if ship or cargo was lost without fault of the borrower. (6) Commodaium, a loan of movable property, to be used (not owned) by the receiver, and returned without compensation. — (c) Depositum, re- sembling the commodaium, but not to be used by the receiver. — ^In the m,utuum, the receiver must bear all loss or injury of the thing received : in the commodaium, only what strict care might have prevented ; in the depositum, only what came from his own dolits (fraud) or lata culpa (gross negligence). Further, any nameless agreement to mutual services became a real contract, with binding force, as soon as either party had rendered his promised service. IV. CoNSENSTTAL CONIEACTS (in which, contrary to the general rule, the mere agreement of the parties was a ground of obligation) : (o) Emptio vendiiio (buying and selling). Payment must be in money ; otherwise the business was a permuiaiio rerum. Until iraditio (transfer of possession, delivery), the ownership remained with the seller ; but (except in fungible things) any loss which strict care could not have pre- vented fell upon the buyer. The seller, if he acted bona fide, was not responsible for a defect of title, until actual eviction of the buyer. For defects in the article, unless they were obvious, he was always respon- sible. (6) Locatio eonductio (letting and hiring). Payment must be in money. The locator retained his ownership, and could at any time sell the prop- erty, only with a liability in damages to the conductor. — Under this head came also the hiring of labor (locatio operarum by the laborer). (c) Sodetas (partnership), agreement ,to hold certain property in com- mon, for the common gain of the parties. Lucrative use essential. So- detas totorum bonorum, or alicujus negotiations. The ratio of contribu- tions might be any whatever ; and any shares of loss or gain might be fixed in the contract ; but no party could be wholly excluded from the gain (sodetas leonina). (d) Mdndatum (commission) agreement to fulfil some order without compensation (but the, mandator must pay all reasonable expenses of the mandatarius) : it was much used by the Bomans. Thus, a procurator to conduct one's case in court was appointed by mandate ; and, if appointed LAW OF OBLIGATIONS. 209 procurator in rem suam, received the case with all its liabilities a3 his own. Any claim, or right of action, could thus be transferred {ceded) to another. No other part of the law-system was so thoroughly worked out by the Eoman jurists as the law of obli- gations. No other part has been so fully taken up into the juristic systems of the modern world. It is highly complex ; for it embraces a great variety of transac- tions and relations. There are, indeed, certain general facts and principles which apply to all obligations or to large classes of them. These, if we pursued a phil- osophic order, should be set forth at the outset. But, without knowing what they apply to, you would per- haps fail to understand them readily or perfectly. It seems better to begin with the single obligations, and to form a distinct conception of each, before looking at their common features and characters. Among us, if a person wishes to lay himself under a definite and formal obligation, the most common way is to give his note, his wriiten promise to pay a certain sum of money to a certain person. It is re- markable that this form of contracting obligations, which seems to us so simple and natural, was unknown to the Homan law. But it must be remembered that the law-forms used by the Komans had their origin in times when writing was neither easy nor common. It is not surprising, therefore, that among them a form of spoken words, a verbal contract, should hold the place 10 210 THE EOMAII LAW. which among us is occupied by -written notes. This form — called by a name of uncertain derivation, stipulatio — was of a very simple character, consisting only of a question asked by one party, and an answer returned by the other. The questioner or demandant, the stipu- lator (as he was called), designating in his question the money to be given him or the service to be done him, asked the other party whether he would give it or do it ; to which the respondent, the jpromissor (as he was called), made answer that he would. In the phrase- ology used there was a good deal of variety. Of fre- quent occurrence was the verb spondeo, but only among Homan citizens : no alien could use it either in the question or the answer of a stipulation. Such forms as Spondesne mihi deoem aureos dare (do you engage to give me ten aurei, or gold-pieces) : answer, Spondeo (I engage) ; or Spondesne mihi Stichum servum da/re (do you engage to give me Stichus as slave) : answer, Sjpondeo / or Spondes quinque dies in horto meo labo- rare (do you engage to work five days in iny garden) : answer, Sjpondeo ; all such forms had the special name of sjponsiones, and belonged only to the jus civile in its narrower sense. But other forms of stipulation — ^uch as Promittis mihi decern aureos dare (do you promise, etc.), or Dabis mihi Stichum servum, (will you give, etc.), or Quvngue dies in horto m^o Idbordbis (will you work, etc.) — belonged to the jus gentium, and were open to aliens not less than to citizens. It LAW OF OBLIGATIONS. 211 was required, however, until a late period that the binding word in the answer should be the same that had been used in the question. To the question, Pro- inittis mihi decern aureos dare, the answer must have the -wovdi: Promitto ; to the question Ddbis mihi Sti- churn servum, it must have Pabo ; to the question Quinque dus in horto m.eo laborabis, it must have La- iorabo. But this requirement 'was given up before the time of Justinian : the Corpus Juris requires' only that there should be a real agreement in meaning and pur- pose between the utterances of the two parties. This agreement was absolutely essential to the validity of the stipulation. If the promiser who had agreed to give Stamphilus as slave could show that he meant Patichus, though by mistake of name he had called him Stamphilus, the stipulation was invalid : the promiser was free from any obligation. So, if tlie stipiilator said, " Will you give me ten aurei on the calends of next January," and the promiser replied, "I will give them to-day," the stipulation was invalid. If the stipulator said, " Will you give me ten aurei in case Titius shall marry my daughter," and the prom- iser replied, " I will give them without condition," the stipulation was invalid. In both cases the promiser undertook more than the stipulator asked : to pay now is more of an undertaking than to pay next ISTew- Year's day : to pay at any rate is more than to pay on the ful- filment of a yet doubtful condition. Yet though he 212 THE EOMAN LAW. had promised more than was asked of him, he was not bound to do even what was asked : the parties had had different things in mind, and there was no bargain between them. So, if he promised ten aurei when the stipulator said five, or promised five when the stipu- lator said ten. In this case it appears that some jurists recognized an obligation for five aurei, arguing that to this extent there was a coincidence of will between the two parties ; but the prevailing opinion was, that the parties had different objects in mind, so that no contract, no obligation, existed between them. By written notes, such as we use, a man can lay himself under obligation to any person, however far away. The nature of the stipulation as a verbal con- tract rendered this impossible. The parties must be in presence ; they must be mthin speaking and hearing distance of each other. Such a requirement seems hardly consistent with the demands of an extended business. In commercial affairs it must often have been necessary to create obligations between persons who were hundreds of miles apart. How could this be accomplished ? How could !N"umerius in Naples assume a debt of five hundred aurei to Aulus in Alex- andria ? For Aulus and JSTumerius to come together face to face, so as to go through with a direct stipu- lation, would perhaps be impossible, or, if possible, not worth the time and trouble it would cost. If Aulus had a son under his potestas, or a slave, whom LAW OF OBLIGATIONS. 213 he could send to Numerius, the business was easily managed ; the son or slave could act as stipulator, ac- quiring the obligation, not for himself, but for his fa- ther or master. But if Aulus could do this by a son or a slave, could he not do it by some independent person ? Could he not employ Titius, living in Naples, to stipulate in his name ? Such a procedure seems to us obvious enough, but there was a difficulty in the way of it. If Titius, as stipulator, put the question, " Do you promise to give Aulus five hundred aurei ? " and Numerius answered, " I promise," the transaction was generally invalid. Titius could not stipulate thus for another, without prospect of advantage to himself. To make the contract binding, the stipulator must have an interest of his own in its fulfilment. If Titius, being in debt to Aulus, put the question, " Do you promise to give Aulus the five hundred aurei which I owe him ? " then if Numerius answered, " I promise," it was a binding engagement : the stipulator was of coiTrse interested in the fulfilment which was to release him from his own debt. That the stipulator must have a personal interest in the contract, was not an arbitrary rule : it was founded in the nature of the case. If the promiser did not fulfil his undertaking, the right of action, of prosecution for the breach of contract, be- longed to the stipulator, the other contracting party. It was a means of redress for any injury that came to him through the failure of the promiser. But if he 214 THE KOJIAN LA"W. suffered no injury, he could claim no redress. If Titius obtained a promise for Aulus without interest of his own, then if the promise was not kept, Titius could not sue, for he suffered nothing ; and Aulus, who did suffer, could not sue, for he was not a party to the con- tract. But why, it may be asked, could not Aulus appoint Titius as his representative, so tha,t the acts and utter- ances of Titius in the business of Aulus should be con- sidered as proceeding from Aulus himself? The an- swer can only be, that such was not the custom of the Eomans. The principle of representation was not, in- deed, unknown to the Roman law. If a slave, as stipu- lator, put the question, " "Will you give me five hundred aurei ? " it was the master's voice that spoke through him ; he was his master's representative, whether he wished it or not. In like manner, the son under his father's power was often the necessary, involuntary representative of the father. Kepresentation by free persons — that is, persons not dependent as sons or slaves on those for whom they acted — was frequent in suits at law, where either party might appoint a cognitor or procurator to take his place, to appear as his repre- sentative, in the conduct of the suit. "Whether it was allowed at all in obligations — whether Aulus could assume or acquire any obligation by a free person act- ing in his name — is a disputed question; but it cer- tainly was not allowed in stipulations. Perhaps this LAW OF OBLIGATIONS. 215 was a defect in the law-system of tlie Eomans. By the admission of free representatives, they might have avoided some difficulties in widely-extended business relations, difficulties which they found other means of avoiding, but means less simple and convenient than this principle would have given them. How, then, was the difficulty avoided in this case ? How was the obligation for five hundred aurei estab- lished between iN'umerius and Aulus living in Naples and Alexandria ? There were two ways of doing so. Titius, the intermediate actor employed by Aulus, might first stipulate in his own name (" Do you, Nu- juerius, promise to give me five hundred aurei ? ") ; and then, by a simple process, he might cede to Aulus, turn over or transfer to Aulus, the right of action which this contract gave him against Numerius. Titius here was not a simple representative, he did not gain the claim immediately for Aulus : he gained it first for himself, and afterward transferred it to Aulus. Or, again, Titius could put the stipulation in this form : " Do you promise to give Aulus five hundred aurei, and, if you fail in that, do you promise to give me a thousand % " This, when answered in the affirmative, made a valid contract ; for Titius evidently was inter- ested in the fulfilment. True, it did not absolutely bind the promiser to Aulus ; it only brought upon him an alternative obligation to Aulus or to Titius : it gave him his option between a debt of five hundred to 216 THE EOMAN LAW. Aulus or a debt of one thousand to Titius, but there could hardly be any practical uncertainty as to his preference. A stipulation might be reduced to writing and at- tested by the signatures of the contracting parties, or by that of the promiser only. In such cases, however, it must not be supposed that the obligation was in any way founded on the writing. It was founded wholly on the spoken words of the stipulation ; and the writ- ing was of use only as a proof that a stipulation for- mal and binding had actually passed between the par- ties. But in the times of Cicero and Gains, there were contracts in which the writing itself was recognized as, the formal ground of obligation. It seems to have been an early and general custom of the Koman house- holders to keep codices, or books of accounts, with sep- arate columns for debit and credit. If Titius, then, proposed to bind himself to pay Aulus a hundred aarei, it could be done by means of these account- books. If, by concerted action of the parties, Aulus entered one hundred aurei in the credit column of his book as advanced to Titius, and Titius under the same date entered one hundred aurei in the debit column of his book as due to Aulus, the effect was the same as if a stipulation hadpassed between them. These literal contracts (as they were called) — the obligation being created by written letters and not by spoken words — seem never to have had any great importance. They LAW OP OBLIGATIONS. 217 remained in use for the mutual transactions of the ar- genta/rii (or brokers), long after they had become obso- lete for other persons. But before the time of Jus- tinian they had disappeared altogether. In the Corpus Juris there is no literal contract, properly so called, no use of writing as the formal ground of an obligation. That some formal ground was necessary, that a mere informal agreement of two persons was not sufficient to establish a full legal obligation, was the general principle of the Eoman law, though subject (as we shall soon see) to some ancient and important exceptions. But we have not yet exhausted the contracts which had a formal basis. This might consist, not in words spoken or written, bat in some thing, some object, whether money or other property, delivered by one party to the other. These were the real contracts, so named from the res (or thing delivered) which was the formal basis of their obligation. They were four in number, the mutuum, the commodatum, the depositum, and the pignus / of which the first three require a few words of description. The mutuuin was a loan, most commonly a loan of money. The ^obligation took its rise from the de- livery of the money, its passage from the hands of the lender into those of the borrower. It not only passed into the hands of the borrower ; it became his prop- erty. Such was the Homan theory of the transaction. There was a transfer of ownership from one party to 218 THE EOMAN LAW. the other. Without this it seemed to the Eomans im- possible for the receiver, to make use of what he re- ceived. If the lender retained his ownership iu the money, he was entitled to demand again that very money, the same identical pieces of gold or silver that he had advanced. But with such a requirement the loan would be practically worthless. ' The borrower,, if he used the pieces, must throw them into the ever- flowing channels of business, where they could never again be identified or recovered. It was necessary, then, according to Koman ideas, that the borrower should become owner of the money ; but at the same time and by the same act he came under an obligation ; he was bound to return an equivalent amount of money to the lender. Now, there are other things, besides, money which disappear and are lost with the using. Such are grain, wine, oil, dye-stuffs, and the like. Of all these things the Eoman writers say that "they consist in number, weight, and measure." If a man was entitled to ten aurei, and had to take them from a pile of those coins lying before him, it was a matter of perfect indifference what particular ones he took ; he thought only of the number : any one set of ten would do as weU as any other. If a man wanted a quart of wine, of a designated kind and quality (as best Faler- nian of ten years' standing), and had to take it from a cask that stood before him, it was matter of indiffer- ence what particular quart he took, whether it came LAW OF OBLIGATIONS. 219 from the top of tlie cask or froiii the bottom : it was only the measure that he thought of. For this impor- tant class of things— in which, if the kind and quality be determined, the individual substances are no longer of account, but only the amount or quantity — the Ko- mans hati no single name ; modern writers haye called them fungible things (from fungor, to discharge an office), because a given amount, a pound, for instance, will do duty for, will perform the part of, any other pound. It was necessary to describe them here, be- cause all. fungible things, and only such, could be ob- jects of a mntuum. There could be a mutuum of wheat, of wine, of oil, etc., as well as of money ; but not of a piece of ground, a slave, a horse, a plough, a book, and the like. The obligation imposed by this contract, was only that of equivalent return. The bor- rower of money, if he was bound only hj., the mutuum, was simply required to pay back' the principal. If the lender wanted interest — and Roman lenders wanted it not less than those of modem times, and were accus- tomed to have it too — it must be promised by a special contract, connected with the mutuum, yet distinct from it. When the money was delivered, and the mutuum thereby consummated, the borrower bound himself by a verbal contract, by a formal stipulation, to pay inter- est upon it. The rate of interest could be fixed by agreement of the parties, and expressed in the words of the stipulation. Only it must in no case exceed the 220 THE ROMAN LAW. maximum allowed by law, which varied with the legis- lation of different periods, hut never rose above the so-called oeniesimco usura, that is, one per cent, a month, or twelve per cent, a year. Yet there was one species of mntuum, of a quite peculiar character, in which, prior to the time of Justinian, there was no restriction on the rate of interest. This was the nomticum fenus (or shipper's loan), which had the form of a loan, but served the purposes of insurance. The owner of a merchant-vessel could borrow money on his equipment and cargo, with the express agreement that, if the ves- sel should be lost or the goods destroyed by any acci- dent of the sea, without fault on the owner's part, then the obligation of the mutuum should cease, the money lent should never be repaid, the borrower should have it to cover the loss he had sustained. The risks of the sea being thus thrown upon the lender, he was allowed in his agreement to name a rate of interest beyond the limit fixed by law for ordinary lenders. This higher interest continued as long as the peculiar risks con- tinued, that is, until the vessel reached her port : if the loan was not paid then, the interest accruing from that time on was reckoned according to the legal maxi- mum. Next, the commodatum. This also was a loan. It was a loan of some object, some article of movable property, to be "used by the borrower and to be re- turned to the lender, without compensation, at a time LAW OF OBLIGATIONS. 221 fixed ia the agreement. The object of the commoda- tum must be movable property : if a field or a build- ing was given up to another, to be held and used for a designated time, the result, by the Koman law, was a jus in re, a right of usus. The ownership of the com- modated object did not pass to the receiver j it re- mained with the lender ; and to him must be returned the same object, the same individual thing or things, that he gave : in these points the commodatum difiered from the mutuum. The object was to be used by the receiver for his own service and convenience, and was thus distinguished from the object of -the depositum, to be noticed presently. The kind of use, if not specified when the contract was made, must be that which natu- rally belonged to the object : a horse trained for the saddle must not be set to ploughing or carting. The use conceded in the commodatum was a gratuitous use : if any compensation was required, the transac- tion had a dififerent character : it was a locatio et con- cluctio (letting and hiring). And, lastly, the object could be kept throughout the designated time : in this re- spect the commodatum differed from the precarium, the mere permission to keep and use an object until the owner saw fit to reclaim it. The precarium (as we have seen) was a thing of frequent occurrence among the Eomans ; but as it rested merely on the sufferance of the owner, and was terminable at his sole pleasure, it was not reckoned among contracts or obligations. 222 TEE EOMAK LAW. Next, the depositum : the name explains itself and hardly calls for definition. Like the commodatura, it was confined to movable property. If a person had in his charge the land or house of another, without the right of using them, he was looked upon as a manda- tarius (or agent) of the proprietor rather than as holder of a deposit. It was matter of course that the depositary (the keeper of the deposit), having no right to use the object kept, paid nothing for it ; but neither could he demand pay for keeping it. Or rather, if he demanded pay, he ceased to be a depositary : the con- tract was no longer called a depositum : it was a cov- enant which the law would recognize and enjforce, but for which it had no special name. There was an inter- esting difference between the mutuum, the commoda- tum, and the depositum, as regards the risk of, loss or injury to the object received. The receiver of the mutuum became owner of the object, and with this ownership took the entire risk upon his shoulders. If the purse of gold was torn from him by robbers, if the heap of grain was burned by enemies in the barn that held it, this made no jot of difference in his obliga- tion : he must return a fuU equivalent in kind, quality, and quantity, to the lender. In the commodatum, the ownership remained with the lender : the receiver was only responsible for careful use and keeping. If the object was injured or destroyed by any accident which he had not the power of preventing, the loss, fell upon LAW OF OBLIGATIONS. 223 the lender. Tlie lender must bear even the gradual deterioration caused by using the object, so long as it was used in a natural and proper way. And yet, as the receiver obtained from the contract an advantage for which lie was to make no compensation, he was bound to exercise the strictest care. It was not enough that he treated the object with tHe same care as he was wont to exercise for his own property. The utmost possible care was exacted of hira : if any attention, any vigilance, any effort on his part, could have prevented the loss, then the loss must fall upon him. But the receiver of a deposit obtained no advantage from the object ; he simply rendered an uncompensated service. Hence he was not bound to exercise any special care, not even so much care as he was in the habit of using for his own property. He was responsible, of course, for any dolus, any fraud or sinister intention of his own ; for any harm that might come to the object with his knowledge and consent. He was responsible also for what was called lata culpa, that gross negligence, that extreme recklessness, which implies a kind of de- pravity, and is not always distinguishable from dolus. But for any ordinary negligence he was not held ac- countable. It was considered rather as the fault of the depositor, if he intrusted his property to a slack and shiftless keeper. Of pignus (or pledge) we spoke in the last lecture. Deposited in the hands of the creditor as security for 224 THE EOMAN LAW. a debt, it was subject to bis jus in re, bis rigbt, if be was not paid in time, to sell it and obtain bis satisfac- tion from tbe proceeds. But witb tbis rigbt went an obligation on bis part to restore tbe tbing unbarmed in case tbe debt was paid according to its terms. Tbe mutuum, commodatum, depositum, and pig- nus, were tbe most important of tbe so-called real con- tracts. Tbey were tbe only ones tbat bad specific names. But tbey did not by any means constitute tbe wbole class. Every nameless agreement, of wbatever kind, by wbicb two parties engaged tbemselves to mutual services of giving or doing, was brougbt under this bead as soon as eitber party performed tbe service wbicb be bad promised. If Aulus engaged to give a borse to Titius, and Titius to build a barn for Aulus, eacb service being in consideration of tbe otber, it was not at first a binding contract ; tbe mere agreement of tbe parties did not suffice to make it so : Aulus was not bound to give tbe borse, nor Titius to build tbe bam. But if eitber of tbe two fulfilled bis promise, tbe case was altered : it was no longer a mere agree- ment : tbere was a res, a tbing given or done, by one party to tbe otber, wbicb cbanged tbe agreement into a real contract, and tbe remaining party was now bound to perform bis part. If Aulus bad given tbe borse, Titius could not refuse to build tbe barn, and vice versa. The principle of tbe Eoman law, to wbicb we have LAW OP OBLIGATIONS. 225 now several times alluded, that tlie mere agreement of two parties did not make a binding contract, must not be taken for a universal principle. It had very impor- tant exceptions, which the Komans were brought by the necessities of business to recognize and admit from the earliest period. The foiir contracts which were called consensual, because the mere consensus of the parties made them binding, were of constant and indis- pensable use. They were — 1. Buying and selling ; 2. Letting and hiring ; 3. Society ; and 4. Mandate. Let us look at these in order. Eirst, then, the emptio venditio (buying and sell- ing). The seller agreed to bring ' a piece of his own property into the possession and ownership of the buy- er ; in return for which the buyer agreed to give the seller as price a definite amount of money. I^othing more than this was necessary to impose upon each party a full legal obligation to perform his part of the agreement. But was it necessary that the equivalent promised by the buyer should be in money ? Might not Titius agree to pay in a hundred bushels of wheat for the plough which Aulus was ready to sell him? He could do so, unquestionably ; but the transaction then assumed a different character. It was not an emptio vgndiUo ; it was a jpermutatio rerwm (an ex- change of wares, a barter). It was not a consensual contract : the mere agreement did not make it obliga- tory. It fell under the class of nameless engagements 226 THE ROMAN LAW. just now described, engagements ■which were not ob- ligatory until one of the parties had performed his promised service. The contract ' of sale (that is, the agreement to sell) made no immediate change in the ownership of the thing sold. As long as it remained in the hands of the seller, it continued to be his prop- erty. It was only when the seller fulfilled £is engage- ment by the tradition of the thing, its delivery to the buyer, that the latter became owner. In other words, the ownership passed with the possession. Eufc sup- pose that the thing was injured, or destroyed, or stolen, before it came into the possession of the buyer, on whom must the loss fall ? Tou would probably say at once, on the seller. The law threw it in many cases on the buyer. The governing principle was this, that if one party did every thing in his power to fulfil the contract, he was entitled to claim fulfilment from the other. If the injury was due to any dolus or culpa (any fraud or negligence) of the seller, it could not be said that he had done all in his power to carry out the engagement : the loss must faU upon him. But if it was brought about by unavoidable accident or violence, if it was the result of causes which he could not foresee or prevent, then he had done his best, he had done all that could be required of him : he was entitled to claim fulfilment of the other party, to demand the payment agreed on from the buyer. If, however, it was a fun- gible thing — as a bushel of wheat or a barrel of wine — LAW OF OBLIGATIONS. 22Y that he agreed to sell, the loss, even if wholly unavoid- able, fell upon the seller. The contract in this case did not relate to' the particular grains of wheat or drops of viine that chanced to be in his possession. It related to certain kinds and quantities of things, which he could still obtain from other sources, and was bound to obtain so as to fulfil his engagement. There were cases in which a thing passed by delivery into the pos- session of the buyer, without thereby passing into his ownership. If the seller himself was not owner, if his title was a defective one, the title of the buyer must be defective also. Suppose that Titius, having bought a horse from Aulus, and having kept it for a time in his possession, finds that it had been stolen, not perhaps by Aulus himself, but by somebody else, from a former owner. If Aulus, when he sold the animal, acted in bad faith, knowing that it was stolen, he was liable to an immediate prosecution by Titius, who could recover, not simply what he paid for the horse, but whatever value from any special circumstances the horse might have for him. But if Aulus had acted in good faith, believing the animal to be his, then Titius, so long as his own possession was undisturbed, had no ground of complaint against Aulus, The latter, being personally free from blame, could not justly be required to remedy a merely apprehended evil, a liability to inconvenience which might never actually be felt. But if the real owner brought an action against Titius, if Titius suf- 228 THE EOMAN LAW. fered an eviction (as it was called), a loss of possession by legal process, then lie could fall back upon Aulus as seller, and Aulus of course had a similar right against the person from whom he derived possession. Again, if the buyer needed to be secured from a defec- tive title, he might equally need to be secured from a defective article. And this security the law accorded to him. The general principle was, that the seller guaranteed the thing sold, unless he expressly refused to do so. He was not responsible, indeed, for obvious defects, which the buyer might have seen, and ought to have seen, when he was making the purchase. But for other defects the seller was responsible, even if he was not aware of them himself. The buyer was en- titled to have an article as good as he supposed, and might reasonably suppose, that he was getting when he bought. If he failed of this, and the defects were so great as to make the article practically worthless for him, he could claim the annulment of the bargain. If the defects were less serious, he could insist on a diminution of the price, or, if he had paid, on the re- turn to him of part of the purchase-money. Second, loeatio conduetio (letting and hiring). Here the locator (the letter) agreed to put a piece of his own property into the hands of the other party, the conductor (or hirer), to be used by him ; and in return for this use the conductor agreed to pay a definite amount of money to the locator. In the commodatum LAW OF OBLIGATIONS. 229 also, the receiver obtained the use of what came to him ; hut he obtained it as a gratuity, while the con- ductor had to pay for it. As regards a money pay- ment, the transaction resembled the emptio venditio / but, unlike the buyer, the conductor (or hirer) did not obtain the ownership of what came to him. Strictly speaking, he did not even obtain possession ; the thing came into his hands, and he exercised a possession over it, but it was the locator's possession, not his own. If wrongfully dispossessed, he could not bring a prosecu- tion in his own name against the wrong-doer, on the ground that any right of his had been infringed. He could only fall back upon the locator, insisting that he should secure for him the use promised in the contract, or pay him damages for the loss of it. If the wrong- ful dispossessor was prosecuted at all, it must be in the name of the locator, who still remained in law the rightful possessor. I have spoken of a wrongful dis- possessor ; but the dispossession might be a rightful one. There was nothing to prevent the locator from selling the property at any time. He would of course be lia- ble to the conductor for breach of contract ; but this made no difference in the validity of the sale : the buyer might enter at once upon the property, turning out the conductor from a possession to which he had now no legal right. It was usual, however, to prevent such hardship by making it a condition in the con- tract of sale that the buyer should maintain the exist- 230 THE EOMAIT LAW. ing looaiio ; the locatio should still continue, but with the buyer as locator in place of the seller. An impor- tant variety of the locatio con&actio was the hiring of labor. Instead of a house or a horse, a workman might give his own body, his physical powers, to be used by one who agreed to pay him for the use. To tliis head was referred, not only what we are wont to speak of as hired service, but also the job-work of arti- sans. If Titius, being a jeweller, received gold from Aulus, wljich, for a payment agreed on between them, he was tp fashion into a ring, this was a locatio operis (letting of work). If, however, the material, the gold, was furnished by the jeweller, the contract was not regarded as one of letting and hiring, but as one of buying and selling ; Aulus in that case bought the ring from Titius. Third, societas (or partnership). This was an agree- ment between two or more persons, whereby they en^ gaged that such and such property, specified in the transaction, should be held by them in common, and used for their common gain and profit. This last idea, of a lucrative use, as the aim of the societas, was an essential element in the contract. Without it there might be a communio ionorum, a joint ownership of undivided property, such as often arose without any contract, by gift, or legacy, or inheritance, etc. ; but there could not be a societas in the law-sense of the term. For this lucrative use the sooii (or partners) LAW OF OBLIGATIONS. 231 might agree to have all their property, with all their acquisitions and liabilities, in common : that was a so- cietas totorum lonorum. Or they might contribute only certain parts of their property to the common stock ; and they might limit their common operations to some particular kind or kinds of business ; that was a soeietas aUcujus negotiationis. The contributions of the parties to the common stock might be very un- equal : it might even be that a party contributed noth- ing, the others being perhaps induced to receive him by the expectation of valuable services. But whatever the ratio of their contributions, it was always assumed in law, unless otherwise expressed in the contract, that the parties were all equally interested in the soeietas, all entitled to equal shares in its gains if it was suc- cessful, or bound to equal shares in its losses if it was unsuccessful. Tet by express statement in the con- tract, any proportions of gain or loss might be estab- lished among the parties. Thus, it might be arranged that one party should have three-fourths of the gain, but only one-fourth of the loss ; or even that one should have three-fourths of the gain, but none of the loss. But an arrangement by which one party should have all the gain was not recognized as binding ; it was considered as contrary to the nature and purposes of the soeietas, the aim of which was gain for all the par- ties concerned. Such an arrangement the lawyers called soeietas leonina, a partnership like that which 232 THEKOMAN LAW. the lion in the fable imposed upon the cow, the sheep, and the she-goat, his associates in the chase. Fourth, mcmdaiAim (commission). This was an agreement by which one party engaged to fulfil with- out compensation some mandate or order given to him by the other party. I say, " without compensation." It will be understood, of course, that the giver of the mandate could make any return he pleased for the ser- vice rendered him. He might even bind himself in other ways, as by a formal stipulation, to make some return. Eut he could not bind himself to this in the contract of mandate ; or rather the contract, if it con- tained such an engagement, was a mandate no longer : it might be a case of looatio conductio (a ease of hired labor), or it might be one of those real contracts with- oiit special name which became binding only by the fulfilment of one party. The mandatary (as he was called), the receiver of the order, was bound of course to execute the service which he promised ; and on the other hand, the irnandator (the giver of the order) was bound to pay all expenses necessarily and properly in- curred by the mandatary in the discharge of his trust. The mandate was employed among the Eomans for a great variety of business purposes. In law-proceed- ings especially its employment was very extensive. If Aulus had a suit at law, whether as plaintiff or defend- ant, and was unable to conduct it in person, from necessary absence, or pressure of occupation, or lack LAW OF OBLIGATIONS. 233 of legal knowledge, or from any other cause, he could give Titius a mandate to conduct the case as procura- tor : security was then offered to the court that Aulus would accept and ratify the acts of his procurator Ti- tius. And Titius might also be appointed by mandate procurator in, rem suam (manager for his own inter- est) ; and by accepting such appointment he made the case his own, with all its chances of gain or loss. If Aulus had a claim against Seius, even though he had never brought it to a prosecution, he could transfer it to Titius by a mandate of this kind, appointing him procurator in rem suam ; and Titius then had all the same rights and liabilities in the matter that Aulus had had before. K Aulus had obtained by stiiJulation from Seius the promise of a hundfed aurei, he could by such a mandate transfer or cede the obligation, make it over to Titius, £0 that practically Titius instead of Aulus should become creditor by the stipulation. This, in fact, was the process already alluded to, as the one of- tenest used for escaping the difficulty, which the re- quirement of personal presence in stipulations occa- sioned in business affairs. The most important obligations have now been enumerated and described. The few which remain must be taken up in the next lecture, after which we shall attend to the general nature of obligations, and to some special classes which need to be distinguished among them. LECTURE X. LAW OF OBLIGATIONS (oONTmUEI)). As in the four consensual contracts the mere agreement of parties created a perfect obligation, so also it did in •pacla adjeda, subordinate agreements annexed to any binding contract (never to stipulation or mu- tuum) ; so also in mnsiitutum, agreement to fulfil a, previous (even im- perfect) obligation. Obligations quasi ex contractu arose from various ca.uses, as guardian- ship ; joint ownership of undivided property ; solutio indebUi (payment of a mistalienly supposed debt) ; iKgotiorum gestio (service rendered in a sudden emergency, which forbade waiting for a mandate), etc. Obligations from delict. Besides the punishment of his crime, the wrong-doer was liable to the injured party in damages, which might ex- ceed the amount of injury, and thus be a poena (private-law penalty). — (a) Furtum: the thief "must restore the property stolen or an equivalent, and pay as poena its quadruple or double value, according as the furtum was manifestum or nee manifcsium (reason for the diiferenee). — (J) Ka- pina: the robber must pay fourfold, which included the value of the property talien and a threefold poena. — (c) Damnum injuria datum (wrongful injury to property) : the offender, by the Zex Aqnilia, must pay the highest price which the injured property would have brought within thirty days before the act ; or if a slave was killed, or a domestic quad- ruped, the highest within twelve months before. Same liability for cul- pable carelessness as for design. — {d) Injuria (outrage to one's person) might consist in violence (to man himself or members of his household), or in slander, or in mere insult. Eoman sensitiveness to ridicule. Master liable, by actio noxalis, for delict of slave : might escape by giving up slave. Compare actio de pauperie against owner of vicious animal. — Obligation ^uaH ex deUdo, on a judex for unjust decision, etc. LAW OF OBLIGATIONS. 235 General Pkinoiples. — The obligation was a personal relation between two parties, a deitor bound to render some service, a creditor to receive it (though in some contracts, especially the consensual, there were mu- tual services). The debt was a binding {oUigatio), the payment a releas- ing {solutio), of the person. The creditor's hold was on the person (only later on the property) of his debtor. The nexmn of early Roman law was in form a conditional sale by the debtor of his oivu person, which thus became liable to summary and severe treatment by the creditor. The service required by the obligation did not encroach far on indi- vidual freedom, as it related to only one, or at most a few definite acts ; and was thus unlike the extensive and undefined service due from son to father, wife to husband, citizen to state. — It must have a money value, making larger the creditor's estate. But some valuable services it seemed wrong to degrade by putting a price on them. Hence a promise of pro- fessional services was not enforceable as an obligation ; so too in Koman (not Latin) law, a promise of marriage. The law recognized an imperfect obligalio (naiuralis), which could not, like the perfect {civilis), be enforced by a direct action, but might have force in indirect ways, as ground for a soluti reientio^ a consiituium^ a Twvalio, a pignus, a compensaiio. The natural obligations arose in gen- eral from transactions which would huve created civil ones, but for some defect in form or in legal capacity. Loan contrary to senalus camultum Macedonianum. Civil obligations were divided into those siricii juris (stipulation, mu- tuum, delict obligations), subject to a literal and rigorous construction, and those bo7iae firlei (as most real, and all consensual contracts), in which the judge must consider the aims of the parties and the demands of reason and equity. Where several debtors bound themselves to one creditor, or several creditors accepted one debtor, there was often a plurality of obligations, each debtor being liable for, each creditor entitled to, his own part mere- ly. But there might be only one obligation, called correal, each debtor being liable for the whole, but released If one of them paid, and each creditor entitled to the whole, but satisfied if one was paid. Usually this was created by a common stipulation, but it could arise in any way by which several persons were made to owe an indivisible service. Th"e four consensual contracts — of buying and sell- ing, letting and hiring, society and mandate — were 236 THE ROMAN LAW. the only independent engagenients in whicli the Ko- mans allowed the mere agreement of the parties to create a binding obligation. Independent engagem ents, I say, in contrast to the so-called _pacto adjecta (or add- ed engagements). If Aulus sold a horse to Titius, or if Titius hired the horse from Aulus, or received the free use of it by commodatum, or if the two by soci- etas agreed to have the horse as common property — in all siich cases the parties could add to the contract any special engagements they pleased, as to time of pay- ing, as to manner of using, and any like points : these pacta adjecta required no formal ground (in words or things) to make them binding. It was enough that the principal contract was binding ; they were looked upon as parts of that principal contract, and so, as sharing in its obligation. But there were two con- tracts, the stijpulatio and the mutuum, which were never allowed to give support and effect to such pacta adjecta. These two were so formal and definite in their character that it seemed an incongruity to suffer them to be limited or modified by any mere under- standing of the parties. Different from the pacta ad- jecta was the so-called constitnitum, or agreement to fulfil some previously incurred obligation. Such an agreement, however informal, was always binding: the preexisting obligation was a sufficient basis for it. The preexisting obligation might be an imperfect one : it might be nothing more than the natural obligation LAW OF OBLIGATIONS. 237 arising from the mere agreement of the parties. Though in such a case the law would not enforce the first agree- ment, the second one, founded upon that, recognizing and confirming it, seemed to have a stronger claim, and could be enforced by process of law. The obligations thus far described have all arisen from a contract or covenant made with consenting will between the two parties. There was another class of obligations, to be looked at presently, which had their origin in a delictum (a delict or delinquency), a wrong, unlawful act done by one party to the other. The Eoman jurists divided obligations into those arising from contract and those arising from delict. But in doing so they found that there were some obligations which could not properly be referred to either head. The guardian, who had to administer the estate of an infant, came of course under obligations to his ward ; obligations which did not arise from any contract be- tween them, for the child had no option in the matter ; and just as little from any delict or wrong act of the guardian. Such obligations the Komans, having no proper name for the class, spoke of as arising quasi ex contractu (as if from a contract) : their incidents and effects were the same as if they had arisen from a con- tract. An obligation of this quasi-contractual kind subsisted between joint owners of undivided property, where they had become such, not by a contract con- cluded between them, but by gift from a third party, 238 THE EOMAN LAW. or by inheritance, or in some similar way. Again, if Aulus by any mistake paid Titius wliat he did not owe him — and such things could not fail to occur, though doubtless the opposite error, of not paying what one owed, must have been much more common — Titius, even though he had acted in good faith, was under legal obligation to give back what he had received : this was the solutio indebiti (payment of something not due, payment of a mistakenly supposed debt), and was another case of quasi-contract. Tet again, if Aulus, living in Eome, had some property or interest in Naples, which through unexpected circumstances was threatened with loss, unless something was imme- diately done ; then if Titius at Naples interposed at once and did what was required, Aulus was brought under obligation to compensate him for any expense whi'Uh he had necessarily and properly incurred in do- ing so. Perhaps a house belonging to Aulus had been shaken by an earthquake, and was in immediate dan- ger of falling, when it was propped up and repaired by Titius. Here the negotiorum gestor (manager of the business), for so Titius was called in the case supposed, though he had made no contract with Aulus, for whom he acted, was treated just as if he had received a man- date from the latter. Here, then, in the so-called ne- gotioruyri gestio, we find another case of quasi-contract. It only remains now to describe, very •briefly, the obligations arising from delict. TJiese delicts (or wrong LAW OF OBLIGATIONS. 239 actions) were, in general, violations of law, and there- fore offences against the state ; they were crimes, pun- ishable as such by the processes of criminal law, a branch of public law, which does not come within our view in these lectures. But besides his liabilities j;o the state, the wrong-doer came under private-law obli- gations to the person wronged. He was, always and of course, bound to repair the damage which he had caused to that person, to make his condition as good as it would have been if the wrong act had not been done. But in many cases he was bound to do more than this. Thus a thief discovered in the act had to restore tie thing taken, but he could also be compelled to pay the owner fourfold the value of that thing. This fourfold payment was poena (or penalty), a pri- vate-law penalty, quite distinct from the public poena (or punishment), which the state inflicted for the opme. Where the wrong act was the killing of a horse, the owner could demand the highest price that the horse would have brought within the preceding twelve- month : it might be much more than the owner could have got for him on the day of the killing, more there- fore than a compensation for the actual value de- stroyed ; and all the difference, all that went beyond a simple compensation, was poena in this sense of pri- vate-law penalty. There were four kinds of delict obligations, arising from theft, from robbery, from damage to one's prop- 240 THE EOMAN LAW. ertj, and from outrage to one's person. Furtum (or theft) was differently treated, according as it was mcmi- festum or neo manifestum (according as it was or was not detected wliile in process of commission). In both, of course, the thief was hound to restore the property stolen. But besides this, the furtum Tnanifesium (as we just now saw) was visited with a fourfold penalty, while for the furtum neo manifestum the penalty was only twofold. The theft was considered as manifest if detected before its completion ; and it was not regard- ed as complete until the thing taken was conveyed to some place of deposit. If, after he had seized his prey, the thief was found out before leaving the spot where he took it, or before reaching a spot where he could keep it, the case was one oi furtum manifestum^ and subject to the fourfold penalty. "Why this distinction was^ade between the two kinds of theft, why one was visited with a larger penalty than the other, is a curi- ous and perplexing question. It is not easy to see that the guilt of the wrong-doer, or the suffering of the in- jured party, was greater in one case than in the other. Or if a difference was to be made, plausible reasons might be found for making it in the opposite direction. It might be argued that he who could carry off his booty without being observed must generally be the more crafty and dangerous villain of the two. In ex- planation of the difficulty, it has been suggested that these private-law penalties were originally designed to LAW OF OBLIGATIONS, 241 prevent attempts at self-redress ; that they were a kind of legal commutation for punishments which the in- jured party would be disposed to inflict with his own hand on the wrong-doer. Now, against a thief caught jlagrante delicto, the sudden wrath of one whose prop- erty was being carried off before his eyes would prompt him to seyerer inflictions than he might care for when his anger had time to cool. This natural effect of sud- den and strong excitement we may suppose to be al- lowed for, and represented in the heavier penalty of \he furhom manifestum. The explanation is ingen- ious and interesting ; and if it is not certain, I have none more certain to offer. Theft might be committed against a person who was not owner of the thing ta- ken : it was enough that he had some valuable right in the thing. In fact, a man might commit theft by ta- king a piece of his own property. If Aulus, being own- er of a horse, had granted the usufruct of it to Titius, and afterward took the horse secretly away from Ti- tius, he could be punished as a thief. His ownership did not justify the act ; for it was limited by a right of using and enjoying which belonged to Titius ; and, in depriving Titius of this right, he has made himself guilty of theft. ■ Different from theft, which always implied an at- tempted concealment, was rapina (robbery) committed by open force. The robber also could be made to pay fourfold the value of what he had taken. But when 242 THE ROMAN LAW. he had doue this, he was not bound, like the author of a furtum manifestum, to a further restoration of the thing itself. One-quarter of his fourfold payment was a simple compensation for the injury done ; the re- maining three-quarters was a penalty, but it was a threefold (not a fourfold) penalty for the offence. The treatment of damage to one's property {dam- nvrni injuria datum, damage wrongly given) was regu- lated by the Aquilian law, a statute earlier than the time of Cicero. In general, the owner of the injured property could demand the highest price it would have brought within thirty days preceding the injury. K, however, the injury consisted in the killing of a slave, a horse, or any domestic quadruped, the owner could demand the highest price it would have brought with- in the' preceding twelvemonths. In either case if the wrong-doer refused to pay, stood trial, and was con- victed, his liability was doubled. "Whether the injury was done by design, or through culpable carelessness, made no difference in the legal infliction. But what was to be regarded as culpable carelessness depended a good deal on the relations of the parties and the cir- cumstances of the ease. Thus, if a soldier practising with the lance in his accustomed place of exercise chanced to hit and kill a passing slave, he was consid- ered without fault ; but if the thrower of the lance was anybody but a soldier, or if he was a soldier practising anywhere but in his accustomed place of LAW OF OBLIGATIONS. 243 exercise, it was considered his duty to see that he injured no one ; if he neglected this, it was a culpa- ble negligence, and he was responsible for the conse- quences. By injuria (or outrage), as the fourth ground of delict obligation, is meant some affronting wrong, cal- culated to wound the self-respect and touch the honor of the person injured, to humiliate or degrade him in the view of others. It might consist in yiolence to the person himself, or to some member of his household. But it might be a mere injury to feeling, caused by in- sulting words or slanderous reports or libellous writ- ings ; even an offensive song, a lampoon or pasquinade, might subject the author to this kind of delict obliga- tion. This rigor was seen even in the Code of the Twelve Tables, and the thin-skinnedness which it evinces, the extreme susceptibility to ridicule and cen- sure, was undoubtedly an element of the primitive Ko- man character. It forms a strange contrast, noticed even by Cicero, with the indulgent toleration of the Athe- nians for the unbounded personalities of their comic drama. Dr. Arnold has pointed out its unfortunate bearing on the credibility of the early Koman history, to which it has given the character of unmixed and unmeasured eulogy. In the extent to which it was carried, we must regard it as a weakness of the old Romans : but it stands closely connected with some qualities which made them masters of the world, their 244 THE ROMAN LAW. high sense of personal dignity and their intense desire of honorable reputation. For any delict committed by a slave, the master could be made responsible in a prosecution called actio noxalis (action for harm). The master might, however, if he chose, relieve himself from responsibility, by for- bearing to defend the suit, and at the same time giving over the offending slave into the ownership of the in- jured party. It is curious that a similar action at law (the actio de pa/uperie) lay against the owner of a vi- cious and ungovernable beast for any mischief done by it, and that here too the owner might escape responsi- bility by a surrender of the mischievous animal. There were some few cases of quasi-delict obliga- tion (obligation as */'from delict) : thus, where a judge by a wrong decision (the result of fraud or culpable negligence) made himself accountable in damages to the injured party ; the case where the owner or tenant of a house was held responsible for injury done by others in throwing or pouring things from the win- dows or roof of the building ; and one or two other cases wliich may be passed over without special de- scription. \ Having thus gone through with the obligations, one by one, making some slight acquaintance with each as we passed it, we are prepared to notice certain common features which belong to the whole class or to large portions of it. The term obligation, in this LAW OF OBLIGATIONS. 245 use, may be defined as a relation between two persons by wbieh one has a legal right to some valuable ser- vice of giving or doing to be rendered by the other. The persons who stand in this relation are called cred- itor and debtor, he who is to render the service being called debtor, he who is to receive it creditor. This complete antagonisin of the parties, in which one has only to render a service, the other only to receive it, may be regarded as the normal character of an obliga- tion. It isniost distinct in the stvpuldtio, in the mu- tuum, and in all the obligations arising from delict. It is less absolute in the commodatum, the depositum, the mandatum, and some others ; for, while the credit- or under these contracts has in general only to receive something, circumstances may arise in which he will be required to do something for his debtor. And some obligations are in their nature reciprocal : they always involve the necessity of mutual services. In buying and selling, if the buyer is bound to pay the price, the seller is no less bound to deliver the article. The same is evidently true of letting and hiring ; while in soci- etas (or partnership) this two-sided reciprocity of ser- vice appears in the fullest extent. The obligation, it was said, is a relation between one person and another. In property, one person stands opposed as owner to all the world besides. He has a claim upon all persons alike, though for a nega- tive service only, a non-action, a non-interference with 246 THE ROMAN LAW. his absolute control over tlie object. But the claim of the creditor for the service of his debtor is an indi- vidual one. It may pass after the decease of the debt- or to his heir, who represents and continues his legal personality ; but it does not extend to other persons, unless they have assumed it by distinct acts of their own. This feature of the obligations was very sharp and prominent in the view of the Eomans. The hold of the creditor was on the person of the debtor. The obligation of a debt was a tying up or binding, or bondage of the person : the payment was a solutio, a loosing or release of the person from that bondage. The property of the debtor was not a pledge for the debt. It could be made so by special agreement, though in the earliest law only by transferring it at once to the ownership of the creditor. Without such special agreement, the creditor whose debtor failed to pay could not touch his property. Even when the debtor had been prosecuted and condemned to pay, if he still failed, the creditor could not touch his prop- erty. He could seize his person — I speak now of the early law, in the first centuries of the republic — and after holding him in rigorous confinement for sixty days, with opportunities, however, either to pay himself or get somebody to pay for him, if payment still failed, he could sell him as a slave, or put him to death ; if there were several creditors, they could cut his body into pieces and divide it among them. This extreme LAW OF OBLIGATIONS. 24Y severity was afterward softened ; but the principle re- mained long unchanged that the hold of the creditor was on the person of his debtor. If the debtor obstinately and to the last refused to surrender his property, the creditor could not touch it. You have all heard of the nexum, as a means by which patrician capitalists in the early times of the republic oppressed the impover- ished plebeians who were constrained to borrow money from them. This nexum was simply a transaction by which the creditor was authorized, in case of non-pay- ment, to treat the debtor as if he had been prosecuted in court and condemned to pay the amount of his debt. It put the non-paying debtor at once and without trial in the position of a damnatus (a condemned person). "What I wish to point out now is the form of the nex' um : it was the same as the form of the mancipium (or mancipation), with the brazen scales, the balance- holder, and the five witnesses : the lender touched the scales with a piece of brass and handed it to the bor- rower. It was a sale ; the piece of brass was a sym- bol of the price, that is, the money lent ; and the, ob- ject purchased with it was the person of the debtor. It was in form a conditional sale by the debtor of his own person, giving it into the ownership of the credit- or, unless released by the repayment of the loan. It is highly important to understand this conception, so distinctly and vividly held by the Eoman mind, of the natural relation between debtor and creditor. 248 THE EOMAN LAW. The person who incurs an obligation loses part of his natural freedom. However free he may be in other respects, there is one act which he is no longer at lib- erty to refuse, one act which he is under a legal neces- sity of doing. I say " one act," for usually there is but one in the obligation. Often, indeed, there are more : the obligation may comprise a whole series of actions, as where a man binds himself to pay a hun- dred aurei a year, for ten years to come, or where two men unite with each other in a business partnership (a societas) of greater or less extent. Yet even in such cases the required activity is of a definite and limited character ; it is confined to certain points, to particular matters, understood in advance, and it does not admit of further extension. In this respect the obligations with which we are now occupied distinguish them- selves broad]y from those obligatory relations which arise out of the nature of family and society. The obli- gation of a son to his father, of a wife to her husband, of a citizen to the government under which he lives — these are large and vague relations, extending to a great variety of acts, and unsusceptible of precise definition. It is a serious mistake to confound them with the obli- gations now iinder discussion. To a great extent they are extra-legal, existing under the sanctions of religion and morality, but not of human law. Where they are invested with legal sanctions, they do not come under this law of obligations, but belong to public law or to LAW OF OBLIGATIONS. 249 family law : under this last head we have already con- sidered some of them. The obligations of marriage arise out of a contract ; but that contract is a very dif- ferent thing from a stipulation, a loan, a sale, or even a partnership, as described in the last lecture. Nor does it matter if the marriage ceremony takes any of these forms. The Roman marriage by coemptio, we saw, was a formal sale of the bride to her future hus- band. But the sale had only a formal character ; its effects were wholly different from those of a real sale, as different as the positions of the Koman matron, and of the slave-woman purchased for her service. The attempt sometimes made to apply to the marriage rela- tion analogies drawn from business contracts, grows out of a confusion of ideas. Its effect (so far as it has any) must be to degrade and demoralize that which it seeks to explain. The points thus far emphasized in the nature of an obligation are — that it subsists between two parties, a debtor and a creditor ; that it binds the person of the debtor, not his property ; and that the service imposed by it is of a particular and limited character. There is still another point which needs to be brought out more distinctly. The service to be rendered must be a valuable one. It must be calculated to advance the property interests of the creditor, to maintain or in- crease the total of his estate. This featxire of the ob- ligation separates it widely from the family relations, 250 THE EOMAN LAW. and brings it into a natural and close connection with the rights of property. It must have a property value, a value which could be estimated and expressed in money. If the service merely affected the feelings of a person without affecting his property, it could not be the object of an obligation. If Titius promised to salute Aulus wherever he met him, or to praise the mihtary talents of Aulus, or to receive as guest a friend of Aulus, and the like, the promise was not binding in law, not even if it was put into the form of a stipula- tion. There were cases, however, in which the service rendered was a valuable one, in which nevertheless it seemed to the Eomans an incongruity and degradation to treat it as having a price or as being a mere matter of traffic. This was the case where mental gifts of a high order were required ; thus, with intellectual and professional services, those of an author, a physician, a counsellor-at-law, an arbiter, a land-surveyor (this last being a business which demanded higher abilities and more of scientific training then than now). Such services, the Romans felt, must not be treated like those of a mechanic or an agricultural laborer. The compensation for them was not looked upon as price or hire, but as an honorarium, an honorary acknowl- edgment of respect and gratitude. The promise to render such services, even if made in the form of a stipulation, could not be enforced as an obligatory contract ; if a legal hold upon the promiser was con- LAW OF OBLIGATIONS. 251 sidered as necessary, he mast engage to pay a certain sum as penalty in case the service should not be ren- dered : this conditional promise to pay seemed to the Romans unobjectionable, and was enforced without hesitation. The Romans had a similar feeling in ref- erence to the betrothal engagement, the promise of a future marriage. They seem to have differed in this respect from their neighbors of the old Latin cities. By the early Latin law the promise of a father to give his daughter in marriage, and the promise of the in- tending husband to take her as wife, was treated as an obligatory contract, and in case of non-fulfilment, the party in fault was condemned to pay the other a sum of money, an equivalent for the estimated injury. But the Romans, while in the ceremony of espousals they used the form of a. stipulation, refused to hold it binding in law and enforce it with money-damages. Perhaps it was not so much the seeming degradation of marriage by setting a price upon it, that influenced their minds ; but rather the apparent incongruity of using force to bring about what ought to be a purely voluntary relation. And in this case they would not allow the promisor to bind himself in the way jnst described. The promise to pay a certain sum as penal- ty if one should fail to carry out the espousal engage- ment, was treated as simply invalid. It will be un- derstood that I am not passing any judgment on the Roman law as to promise of professional services and 252 THE ROMAN LAW. promise of marriage ; my object is only to represent it and account for it. I liave no disposition to challenge the justice or propriety of the different treatment "which such promises receive from our own law. It is important to notice here a distinction recog- nized in the Roman law between civil and natural ob- ligations. If Titius by a formal stipulation promised to pay Aulus five hundred aurei, this was a full civilis dbligatio : in case of non-payment, Aulus could bring an action, a suit, against Titius, and compel him to pay. But if Titius simply agreed by an informal promise to pay the five hundred aurei, his case was very different. "We have said more than once that such mere agreement did not generally create an ob- ligation. In saying this we had in mind a perfect civil obligation, which could be enforced by an action or suit at law. TTe must now qualify the statement : an agreement of this kind was sufficient to create an im- perfect obligation, a naturalis dbligatio, which might give rise to legal effects. These effects, though much more limited than those of the civilis dbligatio, are not without interest and importance. Thus, if Titius had paid the sum informally promised, and afterward sought to reclaim it, as something which he never owed, he was not allowed to do so : he had really owed it, though the obligation was an imperfect one, an dbligatio natu- ralis. Aulus could not have enforced payment ; but, when payment was made, he could not be called on to LAW OF OBLIGATIONS. 253 refund ; he had the soluti retenUo (the right of keeping what was paid). Or if Titius confirmed his first en- gagement by another to the same effect, or if with the consent of Anlus he substituted a new engagement (say, with Maevius as creditor) in place of the first, both these transactions were valid. The former (as we have seen) was called constit/idum, the confirmation of the previous engagement ; the latter was called nova- tio, the substitution of a new engagement for the previous one ; and both these in the case supposed would have full binding force, because there was an obligation, a natural obligation, in the previous en- gagement. If that had been a promise to salute Aulus or to praise his military talents, or any thing else which was wholly invalid, neither the constitutum nor the novation would have been of any avail. Again, if Titias gave a pledge {pignus), or if he offered personal security for the promised payment, then if payment failed, the pledge would be forfeited, the surety would be liable : the natural obligation was sufficient for these effects, to hold the pledge and to bind the surety. And yet again, if Titius on any ground brought a suit against Aulus, say for a thousand aurei, Aulus could ask the court to deduct the five hundred. which Titius had promised him : such a compensatio (as it was called), such a balancing or offsetting of opposite claims, required only a natural obligation. "We see, then, that a natural obligation was one in which the 254 THE ROMAN LAW. creditor was refused a direct action, but allowed every other means (every indirect and occasional means) for obtaining the recognition and satisfaction of his claini. It must not be supposed that every just and reasonable claim— for instance, that of a benefactor on the grati- tude of the person benefited — would constitute a natu- ral obligation, in this law-sense of the term. In gen- eral, these natural obligations arose out of transactions which would have constituted a perfect civil obliga- tion, but for some defect either in the form of the transaction or in the capacity of a party to it. In the case just supposed, it was a defect of form, a mere promise, when a stipulation was required. But if Ti- tius was a ward acting without authority of his guar- dian, his promise, even if made by stipulation, gave rise only to a natural obligation : the defect here was not in form, but in capacity for legal action. So, if Titius was a slave acting without his master's authority, he could not in that case lay the master under obligation ; he could only bring a natural obligation on himself, and even this could never manifest its effects unless he was afterward manumitted and became a freeman. If Titius, being a son under his father's power, ob- tained a loan without his father's approbation, the lender could not enforce payment : the act was con- trary to a special statute, the Senatus consultum Mace- doniomum, occasioned (it is said) by an unnatural son murdering his father, that he might gain the inheri- LAW OF OBLIGATIONS. 255 tance and pay off his debts to the usurers. Yet the son, who had contracted such a loan and could never be sued for it by a direct action, was subject to a natu- ral obligation for its payment. Among the civil obligations, enforceable by suits at law, we find a division into dbligationes stricti juris and tonae fidei (obligations of strict law and of good faith). To the former class (those of strict law) be- longed the stipulation and the mutuum. Here the object of the engagement was distinctly marked in the form of the business ; and the debtor was held to the exact tenor of his engagement. It might be hard for him, harder thi-ough unforeseen circumstances than he had reason to expect when he incurred the obligation. The court in acting on the case could not pay much regard to such considerations : it must apply a strict construction to the terms of tl^p contract. The delict obligations also were stricti juris. The wrong-doer must abide the full legal consequences of his action. However hard they might be, he had no claim for re- lief. The penalties prescribed by law — I am speaking of private-law penalties — must be applied to him in all their rigor. But most of the real contracts and all the consensual were honae fidei (obligations of good faith). In these, there were, or at least there might be, reciprocal services and duties. Thus, in buying and selling both parties had something to do as well as something to claim. And these services and duties 256 THE ROMAN LAW. were often of sucli a nature that they could not be distinctly foreseen or explicitly provided for in the contract. They must depend in part on custom, in part on tacit understandings, above all on the obvious requirements of fair and honorable dealing, that is, on lona fides. This l}ona fides, this subjection to equity and reason, was an actual element in such contracts ; it was binding on the parties themselves, and must be considered by the court in dealing with the transac- tion. The contract must be enforced, indeed, but not in slavish adhesion to its letter ; rather, according to its spirit and intent ; enforced with careful regard to the interests of both parties ; so enforced that both might as far as possible realize any. just advantage they had aimed at by it. From this treatment of the contract by the court, both creditor and debtor, both plaintiff and defendant„might derive advantage. But the balance of advantage, no doubt, lay on the side of the debtor or defendant : he could bring into the case a variety of modifying and mitigating circumstances which would be excluded by an obligation of strict law. It must be observed, however, that the creditor always had it in his power, when the bargain was made, to guard himself against detriment frym this cause. He might reduce his claim to the form of a stipulation : even if it arose from a commodatum, a depositum, a sale, a purchase, or any other transaction, he might put his claim into this form, and thus secure LAW OF OBLIGATIONS. 257 all advantages wMcli the stricter obligation could give tim. There is one class of obligations which calls for some special exposition — the obligations in which there was more than one creditor or more than one debtor. If Aulus, addressing Titius and Seius, said, Spondetis mihi, Titi el Sei, centum aureos dare f (Do you, Titius and Seius, engage to give me a hundred aurei?)^ and they each answered, S^ondeo, the result was, an obliga- tion for a hundred aurei, with one creditor, Aulus, and two debtors, Titius and Seius. J3y this engagement each debtor owed half, and only half, of the sum named : Aulus could demand only fifty of Titius and only fifty of Seius. The seemingly single obligation for a hundred aurei was in fact an aggregate of two sepa- rate obligations for fifty : there were really two debts, owed to the same person, yet essentially distinct from each other. So, too, if Aulus, addressing Titius, said, Spondesne, Titi, mihi el Maevio centum aureos dare ? (Do you engage to give Maevius and me a hundred au- rei ?), and the answer was, Spondeo, there was an obliga- tion with one debtor, Titius, and two creditors, Aulus and Maevius. But each creditor could only demand fifty from the common debtor ; there were really two debts owed by the same person, yet essentially distinct from each other. It was possible, however, for the parties, if they wished it, and expressed their wish with the proper distinctness, to bring about a very different re- 12 " ' " 258 THE EOMAN LAW. lation. If Aulus, having first obtained from Titius the promise of a hundred aurei, turned to Seius and said, Spondesne mihi, 8ei, eosdem centum av/reos dare ? (Do you engage, Seius, to give me the same one hun- dred aurei?), then if Seius answered, Spondeo, there was one single obligation for a hundred aurei, binding in full on each of the two debtors. Aulus could demand a hundred from Titius or a hundred from Seius, and in ease of non-payment could sue either one, taking his choice between them, for the full amount. If either paid the hundred, whether willingly or by compulsion, the other was released : for there was but one debt, and that was now discharged. This kind of obligation is called correal obligation (correal, from con, and reus or rei, connected parties, parties associated in a com- mon debt or credit). It might equally subsist with two or more creditors. Thus if Titius, after promising a hundred aurei to Aulus, promised the same hundred aurei to Maevius, either creditor, Aulus or Maevius, could demand the whole hundred from Titius; but when he had paid to one, the entire debt was dis- charged, there remained no obligation to the other. I have spoken of two persons, but there might be any number'of debtors, each liable for the whole amount, yet released as soon as any one had paid ; or any num- ber of creditors, each entitled to claim the whole amount, yet losing all claim as soon as one of them was paid. Correal obligations with two or more debt- LAW OF OBLIGATIONS. 259 ors were very common : they were 'intended as a se- curity for the creditor, who in case of non-payment could sue any one of the debtors, and would of course choose the one who seemed hest able to pay. Correal obligations with two or more creditors were much less frequent : they were designed to meet a diflSculty in the collection of debts; if circumstances made it in- convenient for one creditor to collect the debt by suit or otherwise, it might be easy for another to conduct the business and obtain the money. If two or three persons joined in committing a de- lict (for instance, a theft of the less flagrant kind), each one was liable for the penalty ; and this, as we have seen, was the double value of the thing stolen. But there was no correal obligation here : the payment by one did not release the others : the penalty might be collected as many times over as there were per- sons associated in the crime. It was otherwise with the claim for compensation of damages ; the injured party could claim full compensation from any one of the associates, but,- when once compensated, he could of course claim nothing more on this ground. This, therefore, might seem to be a case of correal obligation ; but it was not so considered. Each as- sociate in the crime was liable for his own act ; each had his obligation separate and distinct from the rest ; and it was only a kind of accident, at least it did not change the nature of the relation, that ful- 260 THE EOMAN LAW. filment made by one superseded all fulfilment by the others. But there was a case in which a relation essentially the saiae as the correal might be established without being explicitly declared, or even aimed at, by the parties. Suppose that Titius by stipulation had prom- ised Aulus that he would give him his slave Pamphi- lus, but before fulfilling the promise died, leaving two heirs of his estate. The obhgation imposed by the contract would fall with equal weight upon the two. The fulfilment, if it were divisible, would have to be divided between them. The slave might indeed be divided and given in parts : this would be physically possible, but it would be no fulfilment of the contract. The division would change the nature and uses of the thing promised. The two halves of a dead slave would not be equivalent to the whole of a living one. What was to be done under these circumstances ? The an- swer of the Roman law was that one of the two heirs must make the complete fulfilment. Aulus might de- mand the slave from either one according to his pleas- ure : if he failed to comply, Aulus might sue him and obtain the slave himself or his full value. And when the claim of Aulus had been satisfied by one of the two, the other was released from obligation — that is, from the obligation to Aulus : to his fellow-heir he was bound, by rule of law, to share in the burden of his fulfilment, to pay him half the estimated value of LAW OF OBLIGATIONS. 261 tbe slave. The same would be true if Titius liad prom- ised to make a house for Aulus. A house, like a slave, was an indivisible object : it could not be divided with- out an essential change in its nature and uses. If you take a house to pieces, the pieces are not quarters of a house, or tenths, or hundredths ; they are fragments, not fractions ; boards and bricks and stones, building- materials, things essentially different from a house. Aulus, therefore, would demand the whole service, the whole making of the house, from one of the two heirs of Titius ; and this one could then look to his fellow- heir for half the estimated cost of the edifice. The general principle was, that where two or more persons owed an indivisible service they stood in a correal rela- tion to each other : each one was liable for the whole service, and by his fulfilment discharged the obligation for the rest ; but these could be compelled to pay him their money shares of the value of his service. I am afraid that the details given in this lecture and the last may have seemed to you unimportant and tedious. But I hope they will have contributed tow- ard two objects, neither of which may be without value: to make you acquainted with the circle of business transactions and relations in the ancient Ro- man world ; and to illustrate the modes of concep- tion and reasoning among the jurists to whom we owe the scientific construction of the Koman law. LEOTUEE XI. LAW OF IITSEEITANOE. The interests of property required that one's estate (aggregate of rights and obligations) should not perish with Jum, but live on under a successor {keres) designated in his testament, or by law if he died intes- tate. Genehai. Peinciples of inheritance : 1. It was a universal succession (though family rights, and some others strictly personal, were not included in it). 2. It could not be partly testamentary, partly intestate. The testament either created a universal successor, or it had no effect at all. 3. The testamentary heir took the inheritance with obligation to pay the legacies ordered in the will. 4. The estates of the deceased and the hen: were blended into one ; whence — 5. The heir was liable in his whole property for the debts of the inheritance ; though by the henefidum in- veniarii, under Justinian, the liability might be restricted to the assets of the inheritance. 6. There were certain necessarii heredes, who, when appointed heirs by testament or law, could not refuse ; such were the sui heredes (descendants under poiestas ; to whom, however, the praetor al- lowed a jus ahstentionis), and slaves of deceased, made free and heirs by testament (often to bear infamia of expected bankruptcy). V. The in- heritance might be divided among several heirs, but only in fractional parts of the whole, the fractions being equal, unless otherwise ordered by testament. Intestate Inhekitanoe often came in where a testament had been made, this being invalid from the first, or rendered inoperative afterward (as by subsequent incapacity or death or refusal of the appointed heir, LAW OF INHERITANCE. 263 by failure of a prescribed condition, etc.). The intestate heir was the person entitled by law at testator's death, or, if failure of the testament was not then certain, at the time when it became so. But no one born (conceived) after another's death could be his heir. The early law of inheritance disregarded cognation (blood-relation ; lineal or collateral ; the degrees determined by number of steps, up, down, or both ways, necessary in tracing connection), and considered ag- nates only (Lecture VI). It offered inheritance — 1. To mi heredes : sons and daughters under poteslas shared equally ; children of a deceased son were admitted to his share. If no sui, then — 2. To nearest collateral agnate (or agnates, when there were several in the same degree). Father and mother of deceased, why excluded ; mother in stricter marriage could succeed, but only as sister. If nearest agnate refused, then (not to remoter agnates, but) — 3. To the gens, group of connected families, with common gentile name: succession of the gens very imperfectly un- derstood. Gradual changes of this system, aU in the interest of cognates. First, the prsetors allowed emancipated children to succeed (as honorum posses- sores ; compare Lecture IT.) along with sui heredes ; but not until the former had added their own acquisitions to property of deceased {collatio honorum). Again, on failure of descendants and nearest agnates, the priEtors, setting aside the gens, called in the cognates, one degree after another, until a honorum possessor was found, but not going beyond the sixth degree. A senatus consuUum OrphUianum (178 A. D.) gave the mother's estate to her surviving children as heirs (children of a deceased child being excluded until two hundred years later). And a seuattts con- sidtum TeriuUianum (158 A. D.) allowed the mother (in freer marriage) to precede the nearest collateral agnates, unless these were brothers and sisters (if there were sisters only, she shared with them) ; but the privi- lege was confined to mothers (with jns trium liherorum) who had borne children three times, or (if freedwomen) four times. Other changes in the same direction were made by Justinian, who at length in Novel 118 introduced a new system, founded on cognation. He arranged all cognates in four successive classes of heirs : 1. All descend- ants, of both sexes : sons and daughters sharing equally ; children of a deceased descendant take the share that would have come to their lost parent. 2. Ascendants, with full brothers and sisters : all sharing equal- ly ; children of deceased brother or sister taking their parent's share ; if there were only ascendants, those on father's and mother's side each take half. 3. Half brothers and sisters, with children of deceased ones: 264 THE ROMAN LAW. sharing as in Number 2. 4. Other cognates of all degrees, the nearer degree excluding the remoter, those of the same degree sharing equally. No preference of male sex or elder birth. Difference between this sys- tem and the old Germanic one of successive stocks (of deceased, of his father, of his father's father, etc.), with unlimited right of represraita- tion, as seen in English inheritance of lands. In tlie last foiir lectures we have considered the elements which make up the estate. What we call the estate is an aggregate of rights and obligations vested in the person of the owner — rights of property, rights in the property of others, rights to particular services from others with obligation on their part to render them, obligations on his part to render such services to others who have a right to demand them. "We have now to ask, What becomes of this estate, this complex of rights and obligations, when the person in whom they were vested had ceased to exist ? Do they perish with him ? Is his property left without owner, to be- come the property of any one who first takes it for his own ? Are his debtors relieved from all the payments or other services which they were bound to render him ? Are his creditor^ debarred from all hope of ob- taining those which they were entitled to claim of him ? Under such a state of things, civilization would hardly be possible. The interests of property require, above all things, stability and security. They need to be guarded from the ever-recurring shocks, the per- petual agitation and uncertainty, which death would cause, if it were the dissolution of property as well as LAW OF INHERITANCE. 265 of life. From this necessity came the principle of in- heritance, the principle (that is) of the permanence of estates. The living subject of the estate, the owner, passes away, but the estate itself lives on under anoth- er owner. What is said of the king, the great lord of the land, that he never dies, may be said in like sense of every landlord, every property-holder, nay, every bankrupt, whose debts exceed his means of paying them. The legal personality of the first owner is not extinguished at his death ; it reappears with full force in his successor. This principle was apprehended and applied with great sharpness by the Eomans from the earliest times. Every owner of an estate must have an heir, who followed him in the estate, with relations and capacities similar to his own. The owner himself was permitted during his life to designate the person whom he wished to have for his successor. The choice must be expressed and witnessed with peculiar for- malities, which made it a testamentum, an attestation of the maker's will in regard to his heir. If the man himself made no testament, no formal appointment of a successor to his estate, the law interposed after his death, and appointed one from within family connection. The inheritance was said to be testamentary in the for- mer case, and intestate or legal inheritance in the latter. There are several principles and facts, pertaining to these two kinds of inheritance, which ought to be made prominent at the. outset. 266 THE ROMAN LAW. First, inheritance is a universal succession. The heir takes the place of his deceased predecessor, repro- ducing and continuing his legal personality. All the rights of property, all the claims and liabilities which belonged to his predecessor, pass over to the heir, and become his rights, his claims and liabilities. There are, indeed, rights which do not admit of this transfer, being essentially personal in their nature ; family rights, in which the element of property, if seen at all, is only secondary ; such as the right of a husband to the society and assistance of his wife, or the right of a father to the obedience and service of his chil- dren. The obligations which correspond to these rights are equally untransferable ; we have already seen that they are not obligations at all, in the restricted legal sense of the term. Even among obligations, strictly so called, there are some of a character so pe- culiarly personal, that they do not pass to the heir. Thus in a societas (or partnership), if one member dies, the heir does not succeed to his position and du- ties as partner. Second, inheritance could not, in any particular case, be partly testamentary and partly intestate. If the testament of the deceased had any effect, it consti- tuted some person his heir ; and this heir, being uni- versal successor, took the entire estate, so that there was nothing left for intestate inheritance. If the tes- tament did not appoint any person heir, or if from any LAW OF INHERITANCE. 267 cause tlie person appointed did not actually receive the inheritance, then the testament, having failed to ac- complish the one essential ohject for which it was made, was wholly set aside ; any directions it might contain on particular points were disregarded, there being no heir created by the will on whom they could be binding ; and the transmission of the estate was determined solely by the rules of intestate inheritance. i>If the testator said in his will, " Let Aulus be my heir, but let him take only half of my property," or " Let Aulus be my heir, to receive only my lands and houses," or made any similar restriction to prevent the whole estate from devolving on his heir, the law would not enforce the restriction ; it ignored the limit- ing clause, treating it as if unwritten, and gave the whole estate to Aulus. It must not be supposed, how- ever, that no one but the heir cotild receive any thing by the will ; for — Third, in testamentary inheritance, the full right of the heir was limited by the necessity of paying the legacies. Though the whole estate came into his hands, it came with the obligation of making any par- ticular grants directed in the will. In the old form of making wills, by mancipation, or symbolical sale of the estate, these directions entered in as part of the contract, as conditions of the sale, binding on the heir, who figured as purchaser in that transaction. And through all later changes of form, the same condition 268 THE ROMAN LAW. was understood as satsisting : by Ms acceptance of the estate the heir bound himself to make out of it any grants prescribed in the testament. These grants, or alienations of property, imposed by the testator on his heir, were called legacies. They might amount to the entire value of the estate, so as to make the right of ownership vested in the heir a transient and profitless one. This was the principle of the civil law, and was long maintained in all its strictness ; though, as we* shall see farther on, it was at length so modified that the heir could always obtain a certain fraction of the value of the estate, if it had any value. Fourth, in all inheritance, by will or without one, there was a complete fusion between the estates of the deceased and of the heir, the two flowing together into one indistinguishable whole. The person of the de- ceased lived on in the heir, but not as a personality dis- tinct from the heir's. The latter, after his accession as before it, had only one estate, augmented though it was in its means and liabilities by those of the inheri- tance. There is an obvious consequence of this doc- trine, which on account of its importance may be stated as a separate head. Fifth, the heir was liable to the full extent of his property for the debts of his predecessor. In dis- charging those debts he could not stop short when he had paid out all that came to him by the inheritance. He must go on paying out of his own resources, just LAW OP mnERITANCE. 269 as if the debts were of his own contractiEg. If he was himself a creditor of the deceased, he could not reserve any thing from the assets of the inheritance to pay his own claim. In fact, the claim was extinguished by the fusion of the estates ; it was now a debt due by himself to himself, in which he was debtor and credit- or at the same time — that is to say, it was no debt at all. Ton will see that an insolvent inheritance was a negative quantity, an absolute loss, to the heir who accepted it. It might sweep away his whole property and make him a beggar ; it might load hini with the weight of obligations which he could never hope to discharge. An inheritance known to be insolvent, every one to whom it was offered as heir would, of course, make haste to decline. An inheritance which might be in this condition, no one would be willing to accept until he could satisfy himself in regard to its solvency. That the heir should wish to deliberate and examine-before accepting the offered inheritance, and that with or without deliberation he should absolutely decline the inheritance — these were facts of common occurrence, which the law had to recognize and pro- vide for. It should be said, however, that Justinian made a highly important exception to the rule of which we have been speaking. He introduced a method — the henejicium i/tiventarii (benefit of inventory), as it was called — ^by which the heir, who resorted to it, could escape any liability beyond the assets of the inheri- 270 THE KOMAN LAW. tance. To this end, he must prepare an inventory of his predecessor's estate, a full and exact statement of all effects and all indebtedness belonging to it. This work he miist enter on within thirty days after learn- ing that he was heir, and must finish it within ninety days, or, in exceptional cases, within a year from the same time. The statement must be drawn up in the presence of a notary public, with privilege of attend- ance for the creditors of the deceased, and other par- ties interested. The heir who complied with this condition, who presented such an inventory, was not subject to the fusion of estates and the conseqiiences flowing from it, as before described. He was bound to pay the creditors only what he received from the inheritance ; and if he had been a creditor himself, his claim was not extinguished : he could assert it with the same right and effect as any other creditor. Sixth, heirs in general were such only by their own consent ; but this was not the case with all. There were some persons who, if appointed heirs, whether by testament or by law, were not at liberty to refuse the inheritance : they were neoessarii heredes (neces- sary heirs). Such were the children of the deceased, who had been under his power (his pai/ria potestas) while he lived and became independent by his death. He might pass them over in his will, making some one else his heir ; but if he gave them the inheritance, or if in default of a will it was offered them by the law, LAW OP INHERITANCE. 271 they could not decline it ; they were heirs of their father, whether they wished it or not, from the very moment of his death. It should be said, however, that the prsetor mitigated the strictness of this require- ment. He conceded to such persons z,jus dbstentionis : they could abstain from all interference with the es- tate, taking nothing from it, doing nothing to it, exer- cising no powers or rights of inheritance. They would still be heirs : the law gave them this character, and the prsetor could not divest them of it ; but he would not allow them to be sued for any claims against the estate, and he thus relieved them from the hazards and burdens of their heirship. A slave, too, when ap- pointed heir by the will of his own master, was a necessarius heres ; and in his case there was no jus dbstentionis. For this, the slave must be under the master's power at his death, and receive freedom by direction of his will ; according to Justinian, the gift of freedom did not need to be expressed, being under- stood in the appointment as heir. It was a common thing for a person who thought himself insolvent to take this course, to make one of his own slaves the successor to his estate. Under the Koman law the bankrupt incurred infamy when his effects were sold for the benefit of his creditors. If the effects sold were those of a deceased person whose inheritance no one would accept, the infamy attached to the name of the deceased. But if he had obtained an heir in one 272 THE ROMAN LAW. of his own slaves, this lieirwas the bankrupt whose effects were sold and on whom the infamy fell : from this the slave appointed heir could not escape, but he was more than compensated by receiving his freedom. Seventh, the character of heir was not necessarily confined to one person ; it might be vested in two or more persons, in any number of persons, at the same time. The personality of the deceased was then di- vided among several successors, who received and shared the aggregate of rights and obligations which belonged to their predecessor at the time of his death. Each in his proportion was the representative of the deceased, so that each one had his proportionate part in all the rights and in all the obligations which he left to his successors. It was not allowed to a testator to say, " Let Aulas and Maevius be my heirs : let Mae- vius have my house and land, and let Aulns have all the rest of my property ; " or, rather, he was allowed to say it, but the law would not enforce it. In such a case, the law would recognize Aulus and Maevius as heirs, and would divide tlie estate equally between them. If the testator would attain his object, he must draw his will in a different manner : he must appoint Aulus his heir, with express dii-ection to give his house and land as a legacy to Maeyius. Aulus then will be sole heir, sole successor and representative of the tes- tator : Maevius will be a mere legatee, receiving a specific benefit from the estate, but without any fur- LAW OP INHERITANCE. 273 ther relation to it. Between heirs, the only division allowed was a fractional division ; a man could be heir to the half or third of an estate, to two-iifths, or seven- twelfths, or any other fraction ; but he conld not be heir to a house, or a farm, or a pair of oxen, or any other particular object. If the testament, while it named several persons as heirs, said nothing as to theit proportions in the inheritance, it was presumed to have been the testator's wish that they should share alike ; the law admitted them to equal portions of the estate. But it was in the power of the testator to fix any pro- portions that he pleaseid ; he had only to name them in his will, and the law would see them carried into execution. Even in rectifying his errors, it would seek to carry out his intentions. If he named two heirs, giving to one a half of his estate and to the other a quarter, the law divided the whole estate between them, giving two-thirds to the first and one-third to the second, different fractions from those named in the will, btit having the same ratio to each otlier. If he gave half to one and three-quarters to the other, the law, which could not add a quarter to the worth of the estate, changed these fractions to two-fifths and three- fifths, which have the same ratio as a half and three- quarters. It was a common practice among the Eo- mans for a testator in dividing his inheritance, to look upon it as a pound consisting of twelve ounces, and to say, for example, " Let Aulus, Maevius, and Seius be 274 TEIE ROMAN LAW. my heirs, Aulus in five ounces, Maevius in four, and Seius in three." The estate was then divided into twelfths, the heirs receiving five, four, and three, re- spectively. If he made Aulus heir in five ounces and Maevius in four, without assigning any number for Seius, Seius would still receive three, that being all that was left of the estate. If he made Aulus heir in five ounces, without assigning any number for Mae- vius or Seius, these two would share equally in the seven ounces that remained, each taking three and a half twelfths of the estate. But what if, making the same three heirs, he gave Aulus five ounces and Mae- vius eight, without any number fixed for Seius ? He was then supposed to have looked upon his estate as two pounds or twenty-four ounces ; in other words, to have divided it into twenty-fourth parts, of which Aulus would have five, Maevius eight, and Seius the remainder, that is, eleven parts. Eut we need not go at greater length into these details. [It may be well, however, before proceeding further, to recapitulate the points thus far attended to.] With these principles in mind, we proceed to take up the rules of intestate inheritance. These must, of course, always be applied where the deceased owner of an estate had never made a will. But they had to be applied also in many cases where the deceased had made a will, or had at least tried to make one. Per- haps the will was invalid from the outset. Some for- LAW OF INHERITANCE. 215 mality may have been neglected which the law re- garded as indispensable. . Or the person appointed heir may have been one to whom the law denied the right of inheriting, an alien (for instance), a person outside the pale of Roman citizenship. Perhaps the will was properly made and was valid at the outset, but after- ward, from some cause or other, had lost its force. The person appointed heir, though at the time capable of inheriting, may have come to be incapable at the death of the testator. Or he may have been appointed under some condition which was never faltilled. Or he may have died before the opportunity of taking the inheri- tance was opened to him. Or, when the opportunity was offered him, he may have declined to accept it. These are by no means all the cases in which a will, properly made and originally valid, might fail to secure its object, and might thus leave the way open for in- testate inheritance. Here, however, we must note a distinction of some practical importance. Let us sup- pose that Titius was the testator, and that at the mo- ment of his death Aulus was the person who, by the rules of intestate inheritance, would be entitled to suc- ceed him. If, now, .the will of Titius never had any force, or had lost its force at the time of his death — if at this time there are causes which make it legally certain that no one can be heir, under the will — then Aulus (the intestate successor) becomes heir the very instant that Titius expires. It might be long before 276 THE ROMAN LAW. he ascertained his rights and entered upon them ; still he would be considered as having had them from the death of Titius. Or he might survive Titius only a few hours ; still the inheritance was his of right, and, if he signified his acceptance, became fullj vested in him, so that the question now would be, not who was heir of Titius, but who of Aulus. The case was quite different, if the will of Titius had any force at the time of his death, and only failed from causes which arose afterward, as from the non-fulfilment of a con- dition which had then a chance of being fulfilled, or the non-acceptance of a testamentary heir, who had then the right to accept. In this case, Aulus had no claim whatever, until it became legally certain that there would be no heir under the will ; till then he had hopes and possibilities of inheriting, but no right of inheritance. The period of suspense might last for months or years j Aulus might die in the course of it, not having gained any such right for himself or his successors. It might even chance that when the fail- ure of the will was at last determined, the person nearest of kin to the deceased was a person who had been born after his death. I mention this last possi- bility in order to say that such a person, one born after the death of the late owner, could never be his heir. The successor, whether by testamentary or intestate inheritance, must always have had a living connection with his predecessor, that is, he must have been in ex- LAW OF INHERITANCE. 277 istence at the same time with him. If not born be- fore his death, he must at least have been conceived before that event. No one born more than ten months after the death of another — this being the full period of gestation recognized by ancient physiology and ja- risprudencc: — could succeed the deceased as heir. If, now, it is certain that a man died intestate, how is the heir to be ascertained? The Eoman law, agree- ing in this point with the law of all times and coun- tries, sought him among the family connections of the deceased. But in the law-system of the Komans, the family was founded on \he patria potestas ; it included only those persons who would have been under the power of the same common ancestor, if his life had continued to their time. We must here recall the defi- nitions and principles set forth in our sixth lecture. The name cognates, as we saw, was applied to all per- sons who were connected with each other by the ties of blood, that is, to all persons who could trace their descent to a common ancestor. Whether the common ancestor was male or female, whether any of the con- necting links were male or female, made no difference. If two persons were connected as parent and child, grandparent and grandchild, and so on — ^that is, if one was ascendant or descendant of the other — the cognation was direct, or in the direct line ; otherwise it was col- lateral. The degree of cognation between two persons was determined by the number of steps which must be 278 THE ROMAN LAW. taken in tracing tlie connection between them. From parent to child is one step ; this is the first degree'of cognation. From grandparent to grandchild are two steps ; this is the second degree. But brothers and sisters are also related in the second degree ; for start- ing from one of them, as A, a first step brings ns to the common parent, and thence a second step to B, brother or sister of A. Here, of course, the re- lationship is collateral. So uncle or aunt stands to nephew or niece in the third degree ; for here the com- mon ancestor is parent to the former and grandparent to the latter : three steps, therefore, are necessary in passing from one to the other. First cousins are in the fourth degree; the common ancestor is grand- parent to both parties, two steps removed from each of them ; four steps then must be taken in passing from one to the other. Of cognates as such the early Roman law made very little account ; its attention was mainly given to one class of cognates, the so-called agnates, persons who could trace their connection with each other through males alone, persons descended through father, grandfather, great-grandfather, etc., from a common male ancestor. Such persons would all have the family name of that ancestor ; such persons, if the life of that ancestor had continued to their time, would all have been subject to his f atria potestas. The whole number of these persons living at any one time formed the agnate family. It must be remembered, how- LAW OP INHERITANCE. 279 ever, that persous brought into a family by adoption, obtained the same rights of agnation as if they had been born in that family ; and on the other hand, that persons who passed out of a family, either by emanci- pation which made them independent, or by adoption which brought them under a new jpabria jpotestaSf lost all the rights of agnation which belonged to them by birth. An emancipated son was no longer the agnate of his own brothers. If the emancipated son had a child born before his emancipation and another born after it, the two children were not agnates of each other. A married woman, if she came under the hus- band's power, by the stricter marriage which prevailed in earlier times, was an agnate of his family, being treated as if she were his daughter. But under the freer kind of marriage, which was already prevalent at the close of the republic and ere long became uni- versal, the wife was not an agnate either of her hus- band or of her children. Now, by the early civil law, the law of the Twelve Tables, cognates as such, cognates who were not also agnates, had no rights of mutual inheritance. If a man died intestate, he was succeeded by his sui heredes (own heirs, heirs dependent on himself), that is, those who had been under his paternal power and were made independent by his death. These divided the estate equally among them, sons and daughters shar- ing alike. If there were children of a deceased son, 280 THE ROMAN LAW. they received and divided among themselves the por- tion which would have come to their father in case he had lived. Children of a deceased datighter did not come into the account, for they were not in the same agnate family, nor under the power of their mother's father. If there were no sui h^redes, no descendants under the power of the deceased, his estate went to the near- est collateral agnate. " What," you may ask, " could not his own father or mother inherit from him ? " His father could not by the strict civil law ; for either the deceased had remained under the father's power, in which case he had not been able to acquire any property of his own, or he had been emancipated, in which case there was no agnate connection between him and his father. His mother could not, under the. freer mar- riage, for the same reason : she was not his agnate. By the stricter marriage she was his agnate, being treated as if she was the daughter of her husband, or the sister of her son ; she could therefore inherit from him, if after his father's death he had come to have property of his own ; but she inherited as his sister, as a collateral agnate. I have spoken of the nearest agnate, in the singu- lar ; but it must be understood that if there were sev- eral agnates, all equally near of kin to the deceased, they would be called to the inheritance together. Thus, if there were surviving brothers and sisters, they LAW OF INHERITANCE. 201 would divide the estate equally among them. In this case chileferen of a deceased brother would have no share at all, being in a remoter degree of kinship from their uncle, viz., in the third degree, while his own brothers and sisters were in the second. "When there were no brothers and sisters, the way would be open for the third degree. Thus, if. there were three uncles or aunts on the father's side, and also five nephews or nieces, children of a deceased brother, they would all share equally, each taking an eighth part of the estate. If there were no agnates in the second and third de- grees, the way would be open for the fourth : all ag- nates of the fourth degree would receive equal shares of the inheritance. . And so on, for remoter degrees of agnate connection. But suppose that the collat- eral agnates, one or more, who stand in the nearest degree of kinship to the deceased, should see fit to re- fuse the inheritance : not being necessary heirs, they are at liberty to refuse it. Wiat, then, will become of it ? "Will it be offered to agnates of a remoter degree ? No. Tlie law of the Twelve Tables admitted only the nearest agnates. If these refused, the estate went to the gens, or extended group of families, to which the deceased belonged. Of course, too, if there were no agnates to be found, in any degree of kinship, the es- tate went to the gens. This succession of the gens is one of the quaestiones vexatissimae, the most . obscure and disputed points in the early Koman law. It seems 13 282 THE EOMAN LAW. to have found its application only to the patrician gentes : it became less and less important thJongh the whole republican period, and is spoken of by Gains as entirely obsolete. "We need not vex ourselves about it here. This, then, is the system, very brief and simple, of intestate inheritance, as fixed by the earliest Eoraan legislation : sui heredes in the first place ; nearest col- lateral agnates in the second ; cognates as such, those who are not also agnates, nowhere. Let us now trace the changes gradually introduced into this system. The tendency in all was to give more and more weight to cognation, natural kinship, in cases where by the strict law of earlier times it was shut out from all rights of inheritance. The first changes were made by the praetors, and were of two kinds : First, they • allowed emancipated children to inherit along with those who had remained under the ^atria potestas, that is, were the sui heredes. Thus, if a father left five chil- dren, two of whom he ha'd emancipated during his life, while the other three became independent by his death, they all shared alike, receiving each a fifth of his es- tate. But observe that only the last three were called heirs : they alone were made so by the laws, and the prsetor did not presume without authority of law to make anybody heir. The other two were only lono- rum jpossessores, actual holders of their shares in the estate, and allowed to sue and be sued as if they were LAW OF INHERITANCE. 283 heirs. But, in this relief afforded to emancipated chil- dren, there was a possible injustice to be guarded against. The emancipated child, from the time he passed out of the father's control, had been working for himself : the suus heres during the same time had been working for his father ; his earnings had served to swell the value of the father's estate, and thus in- creased the portion which fell to his emancipated brother. The latter, in effect, received a share in the acquisitions made by the sui heredes since his emancipation. To offset this, it was only just that he should allow them to share in his own acquisitions; and this the praetor compelled him to do. There was a collatio ionoruTn (a bringing together of goods), the property of the emancipated being brought into com- mon stock with the father's estate, to be shared among all the children. But the innovations of the praetor went further than this. In the second place, he gave to all the cognates a chance to inherit. If there were no sui heredes, no emancipated children, no collateral agnates, or if the nearest refused the inheritance, the praetor called in the cognates according to their de- gree of kinship : if the first degree failed to receive it, calling in the second ; if the second failed, then the third ; and so on, as far as the sixth degree, or that of second cousins ; beyond this the praetor did not go. The persons thus called in were not designated as heirs, any more than were the emancipated children : they had 284 THE ROMAN LAW. no hereditas (inlieritance), but only a lonorum posses- sio, with, the practical rights and privileges of heirs. You will observe, however, that the nearest cognates, the mother, the mother's brother and sister, the sister's child, etc., though no longer absolutely excluded, had yet a very poor chance for the succession. If an only child, who by his father's death had just come into a large property, died himself without a will, the nearest agnate, though he were only a fourth or fifth cousin, could shut out the widowed mother from all share in the estate which had belonged to her husband and child. So, if a woman died intestate, leaving in- fant children, her agnate ten degrees removed, if there were none nearer, could prevent her children from ob- taining the least share in any property she might have left. It is not strange that such relations as to inheri- tance between the mother and her children should come to be regarded as inequitable. Special statutes, enacted in the second century, in the times of Antoni- nus Pius and Marcus Aurelius, were designed to cor- rect the evil. By the Senatus consultum Orphitianum, of the year 178, the mother's estate was given at once to her children, to be divided equally among the sons and daughters who survived her. It was only the sur- viving children who were considered in this measure ; the issue of a deceased child, the issue sprung from a son or daughter who did not survive the mother, were LAW OF INHERITANCE. 285 not admitted to the inheritance. Nearly two centuries elapsed before these also were brought in to the suc- cession, so as to take the part which the parent bj his premature death was prevented from receiving. Again, by the Senatus consultum TertuUianum, passed in the year 158, twenty years before the Orphitianum, the mother obtained a new and better right of succession to a deceased child. She did not, indeed, obtain the first right. She was liable to be excluded by children of the deceased, if there were any living ; or by the father of the deceased, but this only in exceptional cases ; or by brothers and sisters of the deceased, if there were any from the same father : if there were only sisters the mother was allowed to share with them. Before all other agnates she had an undisputed preference. It is important, however, to observe that these privileges were not conferred upon all mothers. The Senatus consultum TertuUianum belongs to a re- markable series of laws, the object of which was to encourage and promote the increase of population, and thus to supply that dearth of men, of citizens, which was a great, growing, and threatening evil of the em- pire, and of which it died at last by a kind of starva- tion. It was only the mother who had borne three children that could claim the advantages offered by the Senatus consultum ; or (as I should rather say) the one who had borne children three times, for twins were of no more avail here than a single child. If the 286 THE ROMAN LAW. motlier was a freedwoman, more was required of her : slie must be able to count four confinements instead of three. It was not uncommon, however, for the em- perors by special act of grace to bestow the same privi- lege of succession on women who had not acquired the right given by three or four children (the Jus li- ierorum). Justinian abolished the requirement alto- gether, so that the motber of a single child had the same right of inheriting from tSat child as if she had given birth to two or three others. The Corpus Juris Civilis, as at first promulgated in the year 534, retained the alterations made by praetors and emperors in the system of intestate inheritance, and added to the number by new alterations of its own. The general effect was to increase yet more the weight given to cognation or natural kinship, as op- posed to agnation. Still agnatioh retained an impor- tance which was no longer justified by the ideas and feelings of the time. The whole system had now be- come very complex and intricate, depending as it did on two dififerent principles, one of which had been al- lowed to encroach on the other, without any real har- mony being established between them. By these con- siderations, we may presume, Justinian was led only nine years later to take up the whole subject again and to give it an entirely new shape. In the 118th of his JSTovels, he set forth a remodelled system of in- testate inheritance. As this has had an extensive in- LAW OF INHEKITANCE. 287 fluence on the laws of modern Europe, it may be well to give a brief account of it. Agnation was now wholly discarded, and replaced by cognation as' the basis of the new structure. The possible heirs were divided into four classes. The first class consisted of the descendants, chil- dren, grandchildren, great-grandchildren, etc. But grandchildren could never inherit unless the child from whom they came was already dead; great-grandchil- dren could not inherit unless the child and grandchild from whom they came were both dead, and so on. That is, no one could inherit as long as there was any living person before him in the line of descent. The principle of representation, as it is called, was ad- mitted here to the fullest extent. If any descendant had died, he was represented by his surviving issue, who succeeded to Mie right which would have been his, if he had lived. Thus suppose that the deceased had four children. A, B, C, D, that and D died be- fore him, but that of C there is surviving issue. The estate then would be divided into three equal parts, two for A and B, and one for the descendants of C. Suppose now that the living descendants of C consist of three children M, N, O, and two grandchildren X, T, by a deceased son P. The last third of the estate would then be divided into four equal parts, of which M, N, O, would receive one each, and the remaining one would be shared by X and T : X and T would 288 THE ROMAN LAW. thus obtain, each of them, a half of a fourth of a third, that is, a twenty-fourth part of the whole estate left by his great-grandfather. The second class of heirs, called on if the first was wanting, consisted of the nearest living ascendants, with the brothers and sisters of fall blood, and the children of deceased brothers and sisters. The near- est ascendants and the brothers and sisters share alike, an equal share to each person, while the children of a deceased brother or sister take the share which would have come to the parent if living. Thus suppose that the nearest ascendants are A and B the father's par- ents, C the mother's mother ; and that with these there are found -a brother M, and two children X and T of a deceased sister. Here the estate will be divided into five parts, one for each of the three grandparents A, B, 0, one for the brother M, and one for equal division between the sister's children X and T. The principle of representation was admitted here for children of brothers and sisters, i. e., for nephews and nieces of the deceased, but it was not carried any further : grand- children of brothers and sisters, grandnephews and nieces, could only come in among the fourth class of heirs. It is also to be noted that if there were only ascendants, without brothers and sisters or their is- sue, the estate would be divided equally between the father's line and the mother's : in the case supposed, A and B, the father's parents would take half the es- LAW OF INHERITANCE. 289 tate, and tlie remaining half would go to 0, the moth- er's mother. The third class of heirs, called in when the first two were wanting, consisted of brothers and sisters of the half-blood, with the children of deceased half- brothers and sisters. Here again, the principle of representation was carried no further : the grandchil- dren of deceased half brothers and sisters could not inherit in this class, but must find their place in the following one. Evidently, too, the class itself is of quite subordinate importance as compared with the other three. The fourth class, called on where the foregoing were all wanting, consisted of the nearest collateral cognates, except of course those already named, the brothers and sisters of whole or half blood and the children sprung from such. In this fourth class the principle of representation was not admitted at all. The children in no case succeeded to the right of in- heritance which the parent would have had if living. Nothing was considered except nearness of degree to the deceased owner of the estate ; and all persons in the same degree shared equally with each other. First came uncles and aunts, who were in the third degree : nephews and nieces were also in the third degree, but these belonged, as we have seen, to the second class, or, in case of the half-blood, to the third. Next came grand uncles and aunts, who were- in the fourth de- 290 THE EOMAiX LAW. gree, but along with tliem grand nephews and nieces, i. e., brothers' and sisters' grandchildren, who (as we saw) had no place in the preceding classes ; and along with these what would generally be a more numerous group, the first cousins, who were all in the fourth de- gree. AH these, great uncles and aunts, great nephews and nieces, first cousins male and female, shared equal- ly, each individual receiving the same fraction of the estate. Next came the fifth degree, including first cousins' children, father's and mother's first cousins, with several other relations whom it is not necessary to particularize. The praetor, we saw, confined the succession of cognates to the first six degrees. But the law of which we now speak had no such limitation. ]S"o matter how remote the degree : as long as there was none nearer, it was freely admitted to the inheri- tance. In this system too there was no such thing as the old ionorum possessio of the praetors, contrasted with the strict legal hereditas. All whom it admitted to succeed were alike Aeredes, civil heirs with full right in name and character. !N"o distinction was made between persons who had remained under the patria potestas of the deceased, and those who had passed out from it by emancipation or by adoption into other families. No distinction was made on the ground of sex : ■ the estates of men and women deceased were divided on the same principles, and males and females standing in the same degree of kindred to a deceased LAW OF INHERITANCE. 291 person were allowed to share alike in the inheritance. JSTor was any distinction made on the ground of age. Indeed, from first to last we find no trace of primo- geniture in the legal ideas and habits of the Eoman people. As to primogeniture in the common law of Eng- land, it seems to have sprung up with the development of the feudal system : it was favored certainly, if not absolutely required, by the conditions of feudalism. Not less favored by feudal interests was the preference of male heirs and stocks before female, which is an- other prominent feature of English inheritance ; we have reason, however, to believe that this preference for male succession, unlike primogeniture, was among the primitive usages of the Germanic tribes, before their conquest of the Koman Empire. If on these points we recognize the superiority of the Justinian system, we must admit that in another point, in the consistency with which the successive classes of intes- tate heirs are constituted, the advantage lies with the English law. And in speaking thus of the English law, it is real estate that I refer to, the inheritance of land with its appurtenances ; as to the personal pi'operty of intestates, the English rules for its distribution are comparatively recent, and are evidently founded on «ivil-law principles. But for real estate, the English law, which in this respect appears to have only kept up the primitive Germanic usage, calls first the de- 292 THE ROMAN LAW. Bcendants of tlie deceased himself; next the other de- scendants of his father, those who are not also his descendants; next the other descendants of his fa- ther's father (i. e., his paternal grandfather), those who are not also his father's descendants ; and so on, each new class bringing in descendants of an ancestor one degree more remote than the preceding. And in every class the principle of representation, by which chil- dren of a deceased parent come in as his representatives for the right which he would have had if living — this is carried out to the fullest extent, l^ow, the Justinian system agrees with this for the first class, the descend- ants of the deceased himself. It agrees also in grsat part for the second class, where it calls in the other descendants of the father, the brothers and sisters and the children of brothers and sisters. But here it stops short in the path which consistency should have caused it to pursue : it does not call in at the same time the grandchildren and remoter descendants of brothers and sisters. The same inconsistency appears again in the third class, in relation to the descendants of half broth- ers and sisters. Beyond this point, the Justinian sys- tem takes up a new principle, that of nearness in de- gree, which excludes representation, and produces a series of classes which stand in no natural or symmet- rical relation to the preceding. It may be said, how- ever, with justice, that the defect here is little more than a want of logical consistency ; there does not LAW OP INHERITANCE. 293 seem to liave been any thing unjust or oppressive in its practical working. The subject of the next lecture will be testamentary inheritance. LECTUEE XII. LAW OF INHEEITANCE (cONTmUED). Testamentary inheritance established later than intestate, yet in primitive times. Romans eminently a will-making people. First testa- ments made calalis comitiis, at semi-annual meetings of the curiae, hence confined to patricians ; and in procinetu, before army marshalled for bat- tle, where plebeians also could make them. Both these early superseded by iealamenium per aes el Itbram, in form (Lecture IV.) a sale of the es- tate by mancipation to a familiae emptor, who at first was the appointed heir : this testament might be oral, and in later times became exclusively 80. But the praetors gave force to a written testament, made without form of mancipation, only sealed by seven competent witnesses. Under Justinian this was the ordinary form, but the witnesses must also sub- scribe ; so, too, the testator. The transaction must be uninterrupted, before witnesses assembled for the purpose and free from the potestas of testator or familiae emptor (and, by Justinian law, of heres). No man wholly deaf or dumb could make a will, until Justinian's time. No alien could make one or receive by one. A slave might re- ceive by one, but only for his master : by his master's testament he might receive inheritance with freedom (Lecture XI). Unable to receive by will were also corporations (exceptions in favor of municipal bodies, some temples, Christian churches, and monasteries, etc.), and other un- certain persons ; but these last Justinian admitted, if at opening of the will they had become certain ; thus especially postumi alieni (other peo- ple's children born after date of will). Excluded fi^om Justinian's system were the lex Voconia (169 B. c), forbidding inheritance of women to large estates ; as well as the lex Jidia and lex Papia Poppaea of Augustus's time, the former forbidding unmarried persons to receive any thing by will, the latter forbidding married but childless persons to receive more than half LAW OF INHERITANCE. 295 the inheritance, unless in each case the testator was a near relative (with- ' in sixth degree). To escape the last-named law a woman must have the jus trium Uberorum (Lecture XI). A testator might appomt a succession of persons, each to be heir if the preceding ones failed to become so {substiiuiio vulgaris); and he might appoint a person to be heir of a surviTing child, if the latter should die before puberty {^i^stitutio pupiUaris). In early times a testator could disinherit his child by simple omission from his will. By later law, any descendant (including postumi sui) who by intestate inheritance would receive a share, must have express men- tion in the will. And as early as Cicero's time, such a descendant who without good ground received nothing in the will or less than his due part (fixed, at length, as the quarter of his intestate share) could over- throw the will as inofficious ; but not if he had in any way recognized its validity, nor if any other remedy was open to him. Similar right of a parent over the will of his child. Legacies. — Broad distinction between heir and legatee ; yet legatee must be a person capable of heirship. Legacies always beneficial. Must be preceded by appointment of heir. Could be created in four ways, with subtle differences of effect. Always failed if the appointed heir re- fused to serve, as he naturally would when the legacies exhausted the estate. This danger removed (after a Furian and a Voconian law) by a Faleidian (40 B. c), which limited legacies (by proportional reductions, if necessary) to three-fourths of net value of the estate, leaving at least one-fourth to the heir. Mdeicommissa, freer form of legacies, which sprung up in later re- public, originally mere recommendations to the heir (committed to his faith), but from time of Augustus enforceable by law. Free from al- most all restrictions : could be made in any part of wHl, or separate from will, or when there was no will ; in favor of any person, and in any amount consistent with claims of creditors. But afterward confined to nearly the same persons as legacies were, and limited by the Faleidian fourth of the heir. At the same time, legacies were gradually made freer, and in the Justinian system differed httle from fideicommissa. It can hardly be doubted that intestate inheritance is older than inheritance by testament. In patriarchal times, it must have been the recognized authoritative usage, that when the patriarch (the paterfamiUas) 296 THE KOMAN LAW. died, his property passed iato the hands of the chil- dren -whom he reared and ruled during his life, and who became independent by his death. In strictness, it never had belonged to him individually : it was the common property of the family, which he as head of the family had under his control ; which, after he was gone, would naturally continue to be property of the family under the control of its new heads. If there were no children, it would be hardly less natural that it should go to brothers of the deceased, who had once had a joint interest in it, when they were all under the control of their common father. To interfere with arrangements thus recommended by reason and custom would scarcely be thought of by the property-owner of primitive times. And if any one wished it, he would scarcely be allowed to alter the natural course of succession, and defeat the just claims of his family. But as regards the division of his property among the members of his family, his wishes would be respected and followed. If, in prospect of death he expressed his desire that one child should have a house, another a piece of land, another a herd of cattle, or that one child on account of greater needs should have a larger share than the rest, or that this or that gift should be made out of the estate to persons having special claims on his friendship and bounty, his children would be prevented by natural piety and by the sentiment of the community around them from neglecting such LAW OF INHEEITANCE. 297 recommendations of the father. The custom thus es- tablished would at length receive the sanction of law : the usage freely followed by most would become* a rule imperative on all. The right of the paterfamilias to regulate the dis- posal of his property by a binding will, was received in Kome long before the code of the Twelve Tables. And during the later times, when the Eomans are best known to us, they were eminently a will-making people. For a well-to-do man to omit the making of his will and leave his estate to the chances of intestacy was almost looked upon as a discreditable neglect. It should seem, however, that in the earliest period the right to make a will which the law would enforce was confined to the patricians, the primitive burghers of the city. Tor we are told that the wills were originally made in the comitia curiata, the meeting of the curiae, the general assembly of the patrician order, to whicL no plebeian had admission. This body held two ses- sions every year, for the special purpose of hearing and attesting wiUs. In the presence of the assembled or- der, the testator named the person whom he wished to liave for his heir, and stated the particular dispositions which his heir was charged to make on coming into the property. It may perhaps be assumed that wills were at first made only by persons who had no chil- dren to succeed them, that the person made heir was in fact adopted, and that the presence of the curiae 298 THE ROHAN LAW. was require i on this account ; for the earliest adop- tion, as we have reason to believe, was always made in the comitia curiata. Some have supposed that the co- mitia passed a formal vote on the will presented to them, accepting or rejecting it as they thought fit. But it is hardly probable that they exercised such a power, or did any thing more than furnish a public at- testation to the will. The impossibility of making a will except at the semi-annual meeting of the comitia must have been felt most strongly in time of war. Hence the custom arose of executing wills ^?^._p/'ocmc^M, that is, before the army drawn up and ready for action. The army here took the place of the comitia, hearing and witnessing the declaration of the testator. And now for the first time a plebeian gained the power of making a valid will ; but a power which lie could only exercise when actually serving as a soldier against the enemy. Evidently, it was important for the plebeians that there should be some form of testation which they could use in peace as well as in war ; and if the form was such that it could be resorted to on any emer- gency, it would be not unwelcome even to the patri- cians. Such a form was in fact introduced, and was in common use before the legislation of the Twelve Ta- bles. So popular was it that the two forms just de- scribed, the testamentum calatis comitiis and the testor mentum in prooinctu, 'pa.ssed speedily into disuse and LAW OF INHEIIITANOE. 299 are only spoken of as antiquities. The new testamen- tum^er aes et libram (testament by brass and balance) was in its form a sale of the estate by the testator. The ceremonial of mancipation employed for this purpose we had occasion to describe in the fourth lect- ure. As in every case of mancipation, there must be present, in addition to the parties themselves, five men as witnesses, with a sixth man as libripens (or balance- holder), all Eoman citizens of full age. The person who was to receive the inheritance appeared in this transaction with tlie name and character oi familiae emptor (purchaser of the estate). Touching the bal- ance with a piece of brass (a copper coin), the symbol of the purchase-money, he addressed himself to the testator, and claimed the testator's estate as purchased by him with this brass and brazen balance. The tes- tator then, admitting the claim, set forth the directions which he wished to have carried out in the distribution of his property. These directions were in eiiect con- ditions of the sale, and the other party, in receiving the estate as purchaser, bound himself to fulfil them. This familiae emptor made no use of his right during tTie life of the testator, whose death was in fact an im- plied condition of tlie sale ; but when the testator was dead, he became invested with the ownership, and then proceeded to discharge the trusts confided to him. In the course of time, however, it became customary to name an heir distinct from ih.e fa/milias emptor.: 300 THE ROMAN LAW. the latter was tlius reduced to a mere actor in tlie cere- mony, without any actual right or duty beyond it. The will, with its nomination of an heir and all its directions for the disposal of the property, was usually drawn up in writing ; and the testator, when the man- cipation was effected, holding up the written docu- ment, said to the witnesses : " These things, as they stand written in these waxen tablets, I so grant, so leave, so bequeath, and so do you, Eomans, bear me witness." It was never required, however, that the will should be in writing. The testator, using the form jper aes el libram, could declare orally whom he would make his heir, and what directions he would lay upon him ; and this oral will was not less valid than a written one. The testamentum ^er aes et libram was still in common use when Gains wrote, in the second century of our era. But with it there was another and less formal kind of testament, which had been introduced with the sanction of the praetors at some uncertain time in the republican period. It was a written will ; but in making it the formalities of mancipation were wholly dispensed with. The written document must be sealed with the seals of seven witnesses, a number evidently derived from the five witnesses of the man- cipation-testament with the libripens and the familiae emptor. In both forms, the testator must have present with him in the transaction seven persons who could LAW OF INHERITANCE. 301 authenticate it by theii* testimony. The seals of the witnesses were so affixed to the tablets of the will, that this could not be read without first breaking the seals. The praetor, however, did not. presume to give the name of heir to the successor appointed in such a will : only a will recognized and sanctioned by law could create an heir. The successor named in a praetorian will was a mere 'bonorum possessor (holder of the prop- erty) : the praetor gave him' the ionor^m jpossessio, and allowed him to sue and to be sued as if he was heir. The praetorian testament continued to be used till late in .the period of the empire ; and so did the testa- ment per aes et libraTn, though not without consider- able changes and simplifications.. In the time of Theo- dosius, a century before Justinian, it had given up the lihripens and familiae emptor, retaining only the five witnesses, and was employed solely for oral wills : writ- ten wills were then always executed according to the praetorian form. Theodosius himself insisted that there should always be seven witnesses ; and for the written wills he added a new requirement, which Justinian also. retained, the subscription of the witnesses. This may have been customary before, but it had not been necessary. The witnesses had been required only to set the impress of their . seals on the wax used in fast- ening up the document. ISTow they were also to write their names upon it. They must do this on the inside, on the same face which contained the writing of the 302 THE ROMAN LAW. will. K the testator -wished to keep his dispositions secret, he had only to roll up the parchment or papy- rus so as to leave nothing but blank space exposed at tlie bottom. Here the witnesses subscribed their names ; and the testator himself subscribed with them, if the will had been written by any other hand than his own. If the testator was unable to write, an eighth witness was called in to give his attestation and sub- scription. The will was then closed up, and sealed on the outside with the seals of the witnesses, who again wrote their names on the outside, each one by his own seal. The Institutes are careful to say that in the process of sealing all the witnesses might use the same seal-ring, and if this was a seal-ring which be- longed to none of them, but was borrowed for the oc- casion, it made no difference in the validity of the act. This, under the legislation of Justinian, was the estab- lished and ordinary mode of attesting wills. At the same time, however, oral wills were still allowed, the testator setting forth his wishes at length in the pres- ence of the seven witnesses convened for the purpose. There were also public wills, which, being attested by some official act, were exempt from the formalities be- fore described : thus where a will was presented to a judge and civic council, and placed upon the city records, or was submitted by petition to the emperor. In regard to the witnesses who gave their attesta- tion, it was necessary that they should be assembled LAW OF INHERITANCE. 303 for this especial purpose : if they were already brought together for some other object, they must at least have distinct notice that they were now to give themselves to the execution of a will. The transaction once com- menced must be carried through without interruption. If suspended for any other act or business, it must be- gin again de novo, as if nothing had been done before. No person under the jpatria potestas of the testator was allowed to be a witness to his will. Such a person would naturally have his own expectations of the inheritance ; and whether those expectations were or were not realized by the will, he would in either case have an interest and be subject to a temptation that might make his testimony appear less worthy of reli- ance. Similar objections would lie against persons under the patria jootestas of the heir. Hence, as the familiae emptor had originally the place and charac- ter of heir, no person under his potestas was allowed to be a witness. It is a curious circumstance, and one that shows the tenacity of forms among the Romans, that this prohibition remained when the familiae emptor, having ceased to take the inheritance, had be- come a mere figure-head, without personal interest in the will. In form, he was still a principal in the transac- tion, the purchaser in the symbolic sale of the estate. In form, the heir created by the will had no part in that transaction. Hence, not only persons under the power of the heir, but even the heir himself, might 304 THE EOMAN LAW. act as witness. The jurists felt that this was unbe- comiDg ; they advised the heir with those under his power not to exercise this right ; but they had to ac- knowledge that it was a right which nothing in the law restrained them from exercising. But Justinian, who completely discarded the old form of mancipation, swept away also this remaining effect of it : he made it the rule that neither the heir himself nor any one subject to his power should be witness to the will. Another consequence flowing from the old manci- pation process was the inability of a deaf man or a dumb man to make his will. The testator in this process must hear tbe words of the familiae emptor, and he must pronounce certain words of his own. , The deaf man could not do the iirst, the dumb man could not do the last : they were held, therefore, to' be pbysi- cally disqualified for making a will. The disability did not fall upon those who were simply hard of hear- ing or stammering in speech,- but only upon those who were wholly without the power of bearing or speak- ing. Such persons might have all the physical capa- city required for executing a written will; but for centuries tbey were not allowed to execute one. Jus- tinian at lengtb relieved them from tbis inequitable rule : it was only required that they should have the ability to understand what they were doing, the ability to make an intelligent disposal of their property. To those who were deaf-mutes by birth this' condition was LAW OF INHERITANCE. 305 wanting : the means liad not yet been found for letting in light upon their darkened minds : they were still excluded by necessity from the privilege of which we are speaking. Other incapacities call for a brief mention. Only the Koman citizen could execute a valid testament. The peregrinus (or foreigner) could neither make a will appointing an heir to his own estate, nor could he be appointed by will heir to the estate of another : he could not receive even the smallest legacy. This was one of the most serious disadvantages of his alien condition. A slave might be appointed heir, but if he remained a slave he could not accept the inheritance without his master's consent, and he acquired it then not for himself but for his master. A man might ap- point his own slave as heir, but, to make the appoint- ment eifectual, it must be accompanied by a direction that the slave should become free on the master's death : Justinian ordered that such a direction, be- stowing freedom, should always be understood when a slave was appointed heir by his own master. The slave thus appointed was a necessary heir, having no power to refuse the inheritance. "We have now to speak of those who could not be appointed heirs. How firmly the Komans held their conception of an heir as the definite personal representative of his predecessor, we have already seen. It is not surprising 14 306 THE KOMAN LAW. that they should have found something incongruous and unnatural in the idea of a man making a corpora- tion his heir. Not only did the corporation seem to them something essentially different from the individ- ual, and thus ill-fitted to represent him ; but the cor- j)oration is composed of ever-shifting elements, so that the testator in appointing it could not have that defi- nite intention as to the persons -who should succeed him, which the Eomans looked upon as indispensable. For a long time, corporations were held to be inca- pable of taking property by inheritance, or even by legacy. But, in the period of the empire, exceptions began to be allowed. The manumitted slave of a municipal body, a city corporation, might be appointed heir, and thus a right of succession acquired for the municipality itself. In regard to certain divinities, as Tarpeian Jupiter, Apollo of Didymi, Minerva of Ilium, Diana of Ephesus, etc., it was permitted to institute them as heirs, the inheritance of course going to their temples. This latter practice, however, seems not to have been carried to any great extent : from the griev- ous burden of the dead hand, of vast tracts held iii mort- main, heathen Home was always exempt. Under the Christian emperors and in the Justinian system, church- es, monasteries, pious foundations of every kind, as well as municipal bodies, received the right of inheritance. Other corporations, if they wished to have it, must ob- tain it by special concession of the government. LAW OP INHERITANCE. 307 The Eomans never required tliat the testator should be actually acquainted with the person whom he naade his successor ; but it seemed to them that he ought to have a definite conception as to that person, to know who it was that he was bringing into this intimate and coniidential relation. Hence the appointment of an uncertain person was looked upon as invalid : such an appointment as " Let him be my heir who shall come first to my funeral," or " him who shall give his daugh- ter in marriage to my son," or " those who after my death shaU first be made consuls." Even a legacy couched in such terms was invalid. Gaius, however, tells us that in his time an appointment of this kind was allowed, if the designation was of a more precise and restricted character, thus :. " Of my cognates now living, if any one shall many my daughter, let him be my heir." The tendency shown in this more lib- eral interpretation appears to have gained ground ; for Justinian set aside the rule itself. An inheritance or legacy could now be left to an uncertain person ; it was only necessary that the uncertainty which existed when the will was made should be converted afterward into a certainty, that a person should be found to whom and to whom alone would apply the indefinite descrip- tion of the will. Among uncertain persons — those of whom the tes- tator could have no definite conception — were the post- humous (Latin posiumi), in the more general sense of 308 THE EOMAN LAW. that word, the sense in which it would include all per- sons yet unborn when the will was executed. Persons who were both conceived and born after the testator's death were excluded from inheritance by another rule, already alluded to, which recLuired that the heir should be in the world, should have existed, at the same time with the testator. But persons born or conceived dur- ing the testator's life, but subsequently to the making, of his vsill, were excluded by the principle of which we now speak, as being at the time of the testament uncertain persons. Thus, the testator could not say, " If my brother Seius shall have a son born before my death or within ten months after it, let that son be my heir." The son of Seius, if any should be born, would not be allowed to inherit ; for the will was invalid from the first, and no subsequent event could give it validity. An exception, however, was made in favor of children (the postvm,i sui) who might be born to the testator himself. When the will said, " If any chil- dren shall be born of my wife Sempronia whUe I am living or within ten months after my death, let them be heirs," this was a perfectly valid appointment. In fact, such a clause, as we shall see presently, might be essential to maintain the force of the will. And as regards the posinbmi alieni, Justinian, who, as we just saw, allowed the institution of other uncertain persons, set aside the rule which forbade their institution. The Yoconian law, passed during the later repub- LAW OF INHERITANCE. £09 lie, 169 B. c, imposed a restriction on the institution of women. It applied only to large estates. A person whom the census placed in the first class, as having a rated property of at least one hundred thousand asses (i. e., one thousand dollars, which in purchasing power was worth as much as ten thousand now), such a per- son was forhidden to appoint a woman as heir. This is the law to which, in Cicero's treatise on " Old Age," the elder Oato represents himself as having given a strenuous support. " When at the age of sixty-five years^" he says, " with loud voice and good lungs I urged the passage of the Yoconian law." The alleged design of the statute is said to have been to restrain the growing luxury and extravagance of women, by withholding from them the means of being luxurious and extravagant on a large scale. It can hardly be supposed, however, that this was the principal reason for the measure. A stronger reason must have been the desire of the wealthy class to keep large estates in the families, the agnate families, to which they be- longed ; if such an estate became the inheritance of a woman, it was apt to pass by her marriage into an- other family. It would seem that under this law, while a woman could not be heir to a large estate, she might still receive a portion of it by legacy, though not to the extent of more than half the estate. The Voco- nian law had no place in the system of Justinian. The incapacity for inheritance, which during sev- 310 THE SOMAN LAW. eral centuries attaclied to unmarried and childless per- sons, was of a different character. Such persons could always inherit from the will of a near relative, of one who stood within the sixth degree of cognation, as near (that is) as second cousin. The disability which they were under related only to the wills of strangers, of those not connected with them by blood, or not so nearly as the sixth degree. Even in such a will, the unmarried or childless person could be appointed heir, and the appointment was not invalid. But if the per- son BO appointed was not married at the death of the testator, or within a hundred days after it, he could not tate any part of the inheritance. If at the death of the testator he was married but childless, he could take only half of the inheritance. The laws which es- tablished these disabilities, the Lex Julia in reference to the unmarried, and the Lex Papia Poppaea in refer- ence to the married but childless, were enacted in the reign of Augustus, and were among the most impor- tant in that series of imperial laws, to which I referred in the last lecture, as designed to promote the increase of population. It must be observed, however, that the laws of which we here speak did not apply to a man under twenty-five years of age, or a woman under twenty : persons younger than this might be married, but it could not fairly be expected or required that they should be. Nor did they apply, as originally enacted, to a man over sixty years of age or a woman LAW or INHEEITAJfOE. 3H over fifty. But a Senatus consultum in ttie reign of Tiberius ordained that those who remained unmarried to this age must be treated as celibates ever after : no subsequent repentance or amendment could save them from the penalty of their prolonged celibacy. This extreme rigor was again relaxed by a Senatus consul- tum of later date : the man of sixty years or upward might escape the disability, if he married a wife who was under fifty. A corresponding privilege for the woman of fifty years or upward who married a younger, man, the law was not gallant enough to allow. An- other distinction between the sexes, and one which bore yet harder upon women, was made by the origi- nal law. To escape the yoke of the Lex Papia Pop- paea, and enjoy full right of inheritance, it was only necessary for the married man that he should have one child, and even this might be one whom he had adopt- ed. Por the married woman it was necessary that she should have borne children three times (or, in case of a freedwoman, four times), the same condition which was required by the Senatus consultum Tertullianum in order that a mother might inherit from her child. The status which we are describing applied to legacies as well as inheritances ; and all estates or parts of es- tates which the appointed heirs or legatees were by these statutes prevented from taking, went to the fis- ous or treasury of the empire, to which they must have been the source of a not inconsiderable revenue. But 312 THE ROMAN LAW. the ascendency of Christianity was fatal to these laws. A legislation which held out prizes to marriage and childbearing was repugnant to the spirit of a religion which favored monasticism and attached the idea of peculiar sanctity to a virgin life. The century which saw the accession of Con stan tine saw the whole system of the Julian and Papian laws swept away. To a testator making his will it must always seem doubtful whether the person whom he most desired for his heir would actually receive the inheritance. If there was nothing else to throw doubt on the event, the uncertainty of life must do so, the possibility that the appointed heir might die before the opening of the will. Hence it was very common to name substitute heirs, who should take the place of the one first named, in case he failed for any reason to take the inheritance. There might even be a succession of these substitutes, one after another, to any extent. Thus, " Let Aulus be my heir ; if Aulus shall not be heir, let Maevius be heir ; if Maevius also shall not be heir, let Seius be heir," etc. Here, too, the testatpr might, if he chose, put two or more persons in any rank as joint-heirs. Thus, " Let Aulus and Decimus be my heirs ; if they shall not be heii-s, let Maevius, Publius, and Sempro- nius, be heirs ; if they also shall not be heirs, let Seius be heir," etc. Here the estate would pass first to Au- lus and Decimus ; if either failed, the otter would re- ceive the whole ; if both failed, the estate would go to LAW OF INHESITANOE. 313 Maevius, Publius, and Sempronius, each receiving a tliird ; if one failed, the other two would receive each a half; if two failed, the remaining one would take the whole ; only when all three failed, would the es- tate go to Seius. If the testator doubted the solvency of his estate, and apprehended that no one would be willing to accept it, it was common for him to close the series of substitutes with a slave of his own, who along with the inheritance would receive his own free- dom. The person so appointed had no power to re- fuse : he was a necessary heir. If the estate had to be sold for the satisfaction, of the creditors, the infamy would fall on him and not on the memory of the testa- tor ; but for this the advantage of being a freeman was an abundant compensation. To this custom we referred in the last lecture. The substitution thus far described was called vul- gar (i. e., ordinary) substitution, in order to distinguish it from another and less frequent kind of substitution by will, the so-called pupillary substitution. If a fa- ther when he died left a child in tender years, the child would be for some time a pupillus (or ward), unable to make a will, to appoint an heir, for himself. The father, therefore, was allowed in his will to appoint an heir for his child, in case the latter should die in this condition of pupillage. In this case the father made a will, not for himself only, but for the child that sur- vived him, naming a successor for the child, if he 314 THE EOMAN LAW. should die in the condition of pwpiUus (or ward). If the child lived on to the age of puberty, when he could make a will for himself, the appointment made by the father, the pupillary substitution, lost its effect. Tinder the primitive system of the Koman law, as set forth in the Twelve Tables, a testator had full power to disinherit his own children, one or all ; and he could do so, without saying any thing about them, by merely naming some one else as heir. "We must not infer from this that testators in those times were wont to set aside their children often, or for slight causes. The proper inference would be precisely the opposite. It was because the power was rarely exer- cised, or at least rarely abused, that it seemed unneces- sary to restrict it by law. At length, however, the feeling arose, and before the fall of the republic it had foimd legal expression, that a testator must at least mention his children ; that if he wished to disinherit them, he must say so in his will. The presumption always was, that he meant them to have part in the inheritance, and this presumption was only to be over- come by his own statement to the contrary, made with due formality in the will itself. The principle may be put in this shape : any descendant of the testator, who could inherit from him if he died intestate, must have part in his inheritance or be expressly excluded by the will. Let us see now how a testator in the time of Justinian must draw his wiU, in order to avoid objec- LATT OF INHERITANCE. 315 tion on this score. In the first place, he must refer by name or by clear personal description to each of his sons and daughters already born ; if not, his will would be void from the beginning. Thus, " Let Au- las be my heir : let my sons Maevius, Seius, Gaius, and my daughters Cornelia and SeroproniS, be with- out inheritance." But perhaps he has grandchildren by a deceased child ; these, if he died intestate, would be entitled to share in the succession : they must be noticed, therefore, or the will would be void : thus, "Let Sextus and Publia, children of my deceased daughter Julia, be without inheritance." But even yet the will is not perfectly guarded. Children may be born to the testator after the will is made, children who would succeed to him if he died intestate, who will therefore break the will unless they are noticed in it. Of course, he cannot refer by name to children yet unborn ; but he must come as near it as he can. He must say, " If any children shall be born to me before my death, or within ten months after it, let them be without inheritance." But there is still an- other possibility to be guarded against. If any of his children, present or future, should die before the fa- ther, their children, should they leave any, would have a right to succeed him, if intestate. Hence these also will break the will unless noticed in it. To secure himself from this, danger, he must add, " If any child of mine shall die before me, let the children of that 316 THE ROMAN LAW. cliild be without inheritance." In all these cases, the testator might appoint as heirs the persons whom we have represented him as disinheriting ; but one or the other he must do, appoint them, or disinherit them in this explicit way : otherwise the will was without ef- fect. "We tave supposed a testator drawing his will in the time of Justinian and in conformity with the rules of the Corpus Juris. Before Justinian the practice was somewhat different, and somewhat more complex, but we need not enter into particulars on this head. A distinction was made between sons on the one hand, and daughters and grandchildren (children of a de- ceased child) on the other. Sons must be treated in the manner just described, appointed heirs or expressly disinherited : if not, the will was void. In regard to daughters already born, and children of a child already deceased, it was enough to include them in a general disinherison ; thus, " Let Aulus be my heir : let all others be without inheritance." Even if he failed to disinherit them in this general way {inter ceteros, as the Romans called it), the will was not void : the ap- pointed heir took the inheritance, but the daughters and grandchildren were allowed to come in and claim for themselves a share of the estate. The prastorian law indeed made it necessary that grandsons should be treated like sons ; but it was only by the legislation of Justinian that female descendants, daughters and granddaughters, were put on the same footing. LAW OF INHERITANCE. 317 The requirement whicli we have beea describing imposed no real restriction on the power of the testa- tor : it allowed him to do as he wished, demanding only that he should state his wishes in an unequivocal manner. But the Eoman law went further than this. It recognized in certain persons a natural right to share in the inheritance, and enabled them to attack and overthrow a will in which that right was disre- garded. At what time this principle was first admitted is not known ; but it was before the fall of the repub- lic. If a son thought himself unjustly treated by his father's will, he could bring a formal complaint against it, as inofficious, that is, inconsistent with the officium, the natural affection and duty, of a parent toward his child. The theory was, that the maker of a really in- officious will had not the perfect soundness of mind required for testation. The complainant must show to the satisfaction of the judge that he had given the testator no sufficient ground for his conduct. If the complaint was sustained, the will was set aside, and the estate divided as that of an intestate person. How much the testator must give to an unoffending child, in order to be secure from the charge of inoffieiousness, was at first left to the decision of the judge. But gradually the opinion became established, that it was sufficient to give him by will a fourth part of what he would obtain by intestate inheritance. Justinian sanc- tioned this principle, and permitted the complainant 318 THE EOMAN LAW. to sue directly for tlie fourtli part of his intestate share. He also required that a parent who disinherited his child should give his reason in the will, and that this reason should be one of fourteen which he himself enumerates. A parent also who had been passed over in the will of his child could attack the will as inoffi- cious ; and here again Justinian required that the child in his will should give a reason, one of eight which he ■ himself enumerates, for passing over the parent. The complaint could also be made by brothers and sisters, but only where persons notoriously infamous were pre- ferred to them as heirs. It could not be made by any one who had acknowledged the validity of the will by accepting any thing under it ; nor could it be made by any one who had another remedy within his reach. Attacking, as it did, the character of the testator, it was only to be used as a last resort, where all other means of redress were wanting. It will be perceived that in most cases where a man had children, and in some cases where he had not, this institute withdrew a quarter of his property from his disposal by will, leav- ing him the absolute control of only three-quarters. Interference of this kind with the full right of testators is repugnant to the spirit of the English law ; while on the other hand, the French law has gone further in this direction than the Eoman. The Code l^Tapol^on leaves the testator, if he has one child, only half his property to dispose of as he pleases ; if he lias two LAW OF JNEERITANCE. 319 cliildren, only a third ; and if he lias three or more, only a quarter. It only remains now to say something as to that part of the estate to which the testator gives an excep- tional direction, withdrawing it from the dominion of the heir to bestow it upon others. I refer to the lega- cies. The Eoman law makes a yery broad distinction between the heir on the one hand (even when he is joint-heir with several others) and the legatee or re- ceiver of a legacy) on the other ; though this distinc- tion is not so strongly marked in the later law as in the earlier. The heir represents the person of the de- ceased in all his property rights and obligations : the legatee has no such character : he is merely the receiv- er of a certain piece of property left by the deceased. The legacy was always a benefit to the legatee, a pure addition to his resources ; the inheritance might be a heavy burden, a serious loss or fatal injury, to the heir. The heir might have to pay out all he received, or more than all, to the creditors of the estate and to the legateeD : the legatee was not required to pay any thing either to creditors or to other legatees. The legatees were dependent on the testamentary heir : if he could not or would not take the inheritance, the will failed as a whole, and the legacies were extinguished : no obligation to pay them or to suffer their payment could be laid on the intestate heir. Legacies could be made with effect only to persons who were capable of 320 THE ROMAN LAW. receiving by inlieritance. In the arrangement of the will, they must follow the appointment of an heir, and must be couched in certain fixed forms of expression. Thus, 1. " To Publius I give and bequeath my slave Stichus ; " or, " Let Publius have (let Publius take) my slave Stichus." By this form, Publius gained an im- mediate right of ownership in the thing bequeathed. Or, 2. " Let my heir be condemned to give (or, let him give, I order him to give) Publius my slave Stichus." Bj this form the heir was laid under obligation to Pub- lius, to give him the thing bequeathed with good title, and, if he refused, was liable in twice its value. Or, 3. " Let my heir be condemned to suffer Publius to take my slave Stichus." By this form the heir was not obliged to give the thing, but only not to hinder Pub- lius from taking it. Or, 4. " Let Aulus, Maevius, and Publius, be heirs : let Publius in preference take (Latin praecvpito) my slave Stichus." The peculiarity of this case lay in the fact that Publius, the legatee, was one of the joint-heirs, so that the burden of the legacy fell upon tlie other two, and not on all alike. These forms were four in number, and were distinguished by other differences in practical effect ; but it is not worth while to enter into the details. My principal object in de- scribing the forms themselves was to give some idea of the technical and subtle way in which the legacies were treated, a circumstance which led, as we shall presently see, to the introduction of a freer system of bequest. LAW OF INHERITANCE. 321 It is obvious that tlie legacies ordered in the "will might be so numerous or so large as to exhaust the re- sources of the estate, and leave little or nothing for the heir. In such cases it was natural that the heir should refuse what was for him a worthless inheritance. The testament then was of no efi'ect ; the estate went to the intestate heir, and the legatees received nothing at all. It was the interest of the legatees, therefore, not less than of the testamentary heir, that the estate should not be all given away in legacies. Yarious at- tempts were made to regulate the matter 1:^ law, and a Yoconian law, enacted for this purpose, was of little avail. A Furian law, of uncertain date, ordained that no person should receive by legacy more than one thousand asses: if any one took more than this, he should restore fourfold. But near kindred of the tes- tator were exempt from the limitation, all those in the first six degrees, together with children of a second cousin, who were in the seventh. The restriction im- posed by this statute was relaxed by the Yoconian law, passed in 169 b. c, at least for testators whose rated property was more than one hundred thousand asses. In this no definite sum was prescribed as a maximum ; but it was ordained that no legatee should receive more than the heir himself. Neither of these statutes was fully suited to the necessities of the case. A large number of small legacies might, under the first, leave nothing for the heir ; while, under the second, it might 322 THE ROMAN LAW. make his part so small as to seem valueless in his eyes. But a Falcidian law, passed in the year 40 b. c, put an end to the whole difficulty. This law secured to the heir a quarter of the net value of the estate ; the legatees could obtain only three-quarters : if the lega- cies named in the will amounted to more than this, they were diminished by proportional reductions. If, for instance, ten-twelfths were given by the will, there was deducted from each legacy a tenth part of itself, making the amount nine-twelfths, and leaving three- twelfths, or one-quarter, for the heir. Few measures have accomplished their purpose more satisfactorily than the Falcidian law, which remained in force through the history of the empire, and holds an im- portant place in the system of Justinian. We find in the Digest mention of a vsdll which be- gan with these words : " This testament of mine I have written without help from any one skilled in the law, following the guidance of my own reason rather than an elaborate and painful observance of forms, and if I have put any thing in a shape not altogether skilful or rulable, the intent of a man sound in mind ought to be accepted in place of strict legal correctness." There can be no doubt that in these words is expressed the feeling of many testators. While the practice of mak- ing wills was more general among the Eomaiis than with us, it was probably less common among them to seek the aid of lawyers in doing so. Testators left thus LAW OF INHEEITANCE. 323 to themselves would look with dread ou legal techni- calities : especially would the system of legacies ap- pear to them a kind of trap, abounding, as it did, in subtleties, of which they could neither understand the nature nor foresee the effect. Often, too, they would wish to make provision for persons who were pre- cluded by rules of law from receiving either an inheri- tance or a legacy. Under such circumstances they were led to throw themselves on the good feeling of the appointed heir, for making any gifts which they might desire to have made out of the inheritance. Before the time of Cicero it had become a common practice to use words of this kind : " I commit it to the faith of my heir to give Publius from my estate one thousand asses," or " my slave Stichus," or " JVCaevius as debtor " (i. e., the obligation in which Maevius was bound to the testator). Such a recommendation was called 2ifidei commissum (something committed to the faith of the heir). Originally it was a mere recom- mendation, carrying only a moral force, the heir being under no legal necessity to comply with it. But the Emperor Augustus was induced in repeated instances to interpose his authority, or rather to order the con- suls to interpose theirs, for enforcing these fidei com- TThissa ^ and it was not long before this enforcement came Jjo be a uniform practice. A new praetor spe- cially appointed for the pm'pose, a jyrastor fidei com- missarius, was charged with this duty. The fidei 324 THE EOMAN LAW. commissum was freed from all the resti'iotions whicli bound up the legacy. If made in a will, it; did not need to follow the appointment of the heir, but might stand at the beginning. It could also be made outside of the will, in a separate writing, or in an oral form, of course with proper attestation. It could be made where there was no will, the obligation being then im- posed on the intestate heir, whoever he might be. It could be made to any pei'sons, and in any amount which did not conflict with the claims of creditors upon the estate. It might include the entire estate, the heir being directed to turn it over as a whole to the person named in the fidei commissum. The latter then took upon himself the duties and liabilities which properly belonged to the heir. In time, however, it was found necessary to impose some restrictions on the fidei commissum. Thus, by several successive laws, it was confined to nearly the same persons who could receive a legacy. The principle of the Falcidian fourth was also applied to it : the heir could always demand a quarter of the net value of the estate, the fidei commissa with the legacies being reduced, if ne- cessary, so as not to exceed three-quarters. At the same time the legacies began to be treated with greater freedom, being gradually assimilated to the fidei commissa. As we find them in the Corpu^ Juris, there is little difference between them. That both are found there, was the result of conditions which had LAW OF INHERITANCE 325 ceased to exist. The legata and fidei commissa of the Justinian books are essentially the same thing, a free system of bequests, released from nearly all the tech- nicalities and restrictions of the earlier legacies. INDEX. Accession, 170. Accursius, a famous glossator, S5. Actio coTmnuni dimdujido^ 160 ; — noxa^ Us^ 244 ; — de paup&rie. 244. Actus, 18a-185. Adoption (adoption 125; conferred the rights of ^nation, 2T9. Agnate family, 131-135. Agnates, 278 ; succeeded to estate of intes- tate, in the absence of sui heredes, 280. Agreement, mere, did not make a contract binding, 225 ; exceptions to this principle, 225. Alaric, king of the Visigoths, published a collection of Boman law, 31. Alietvi jv/HSy 107, 119. Amalfl, alleged discovery of a copy of the Digest at, in the twelfui century, 32, 33. Angles and Saxons, sole tenants of the re- gions which they conquered in Britain, 30 '.influence of this iact upon character of EngUsh law, 30. ^7wmw5, as an element of possession, 177. Aquaeductus, 183, 186. Argentarid. (brokers), their use of literal contracts, 217. Arrogation (arrogatio), 125. AucUyrUae iti£tori8\ 150. B Bankrupt, incurred infamy under Soman law, m. Barter (permutatio r&rwrri)^ 225. Benejficiwn iTwentarii, 269. Blackstone, his views of Roman law, 44, Bologna, famous school of law at, 35. Monajldes, essential to usucapio^ 173 ; in the mw of obligations, 255, 256. Bononmi possessor^ 89, 95, 282. Bracton, Ms work largely of Boman ori- gin, 48. Br&tyiariv/m Ala/riGianum, 31. Britain, never but partially Eomanized, 29 ; conquest of; by German tribes un- like that of the continental provinces, 29. Baying and selling, conlract o^ 225. CapiUs denvimiUo, 108. Capito, head of a legal school, 63 . Caput, 103. Garacalla, bestowed Boman citizenship on the provinces, 113. Cato, the Censor, author of several books on law, 61. Cmtesvma tmtra^ 220. Children, how disinherited, 314, 315, Christianity, fetal to the Julian and Papian laws, 812. Cicero, his want of legal learning, 59. Gives, 108, 115-119. OimlU obligation 252. Oimtas, 106. 107. Code Napoleon, its limitation of the power of testators, 318. Codes, modem European (Prussian, French, Austrian), 48, 49 ; several codes formed in third period of Boman legal bistoiT, 56. Codex ConsMtuUonum, issued 529, A. d^ 8 ; revision o^ 13 ; replaced by the Co- dke repetitae praelectionis^ 13. Codex repetitae praelectionAs, 13, 14. Coddcea, use o^ in literal contracts, 216. Codification of the Boman law, consisted of two principal parts, 6-8. Coemption 138, 249. Cognates, 131, 277; of little account in early Boman law, 278 ; had no rights of mutual inheritance, unless they were also agnates, 279, 282 ; admitted to the inheritance by the pwetors, on failure of eui h^edes and of collateral agnates, 283 ; fevered in the Corpus Jv/Hs, 286 ; also by Novel 118 of Justinian, 287. Cognation, degrees ot, how reckoned, 277 ; made the basis of law of intestate in- heritance, by Novel 118 of Justinian, 287. Cogmior, 214. Collai/lo hoTiorvm^ 383. 328 INDEX. ComiUa ciiriata, ■vrills originally made in, 297. Commentaries, on tlie Corpus Jv/ria, pro- hibited, 19 : futility of such. proMbition, 20. Comm&rciwn^ 116. CoTmnodaiv/m. species of real contract, 220, 221. Common ^w of EnglMid, why so called, 43. Common recovery, 97. [ CorrvmimA. tUmdendo actio, 160. Commwtiio 'bononmi^ 230. Comp&iisatio^ 253. Conductor^ 228. * Confarreatio^ 138. CoTumibium., 116. Conquest, effects o^ vary according as the conquerors are superior or inferior in civilization to the conquered, 27. Consensual contracts, 225, 235, 236 ; were all bonoR f^&i^ 255. Consensus, 180, 163. Constitutionss, 6 ; what it includes, 6, 7 ; several collections o^ before Justinian, 7, 8 ; novellcB constitutiones^ 22. Contracts, not general^- binding when rest- ing on mere agreement, 225. CoT^ubenvi/mn^ 111, Corpus^ as an element of possession, 177. Corporations, capacity oi^ to take property by inheritance, 806. Corpus Juris Oi/viUs, 3 ; represents latest phase only of Roman law, 4 ; product of Eastern Emphre, 4; consists of three component parts, 8-17; exclusive sub- ject of study at law-schools, 18 ; commen- taries on, forbidden, 19 ; Greek transla- tions of, 19 ; too good for the age in which it appeared, 23; gained no very- wide currency among those for whom it was intended, 24 ; its use in the West- em Empire confined to Italy, 24; never ceased to be known and used in Italy, 83; reception of; in Western Europe, after the twelfth ceptnry, 36-40 ; in It- aly, 37 ; in Southern Prance, 37 ; in Ger- many, 88, 89 ; in Northern France, 41, 43 ; in Spam, 43 ; in England, 43. Correal obugationfl, 258-260. Creditor. 245. Criminal law, subdivision of pyMio law, 14. Culpa, in the law of depositum, 228 ; of emptio vendiiio, 226. Owrator, 153. Curatorahip, distinct I'om guardianship (Jmtda), 153. Damnatus, 247. T>ece7niTi/r% legislation o^ 75. DeciHones, issued to guide the compilers of the Digest, 9 ; decline of legal genius in the third period of EomMi legal his- tory, 57. Decvrsus Tionorwn, 60. Decreia, 7. Deaf (or dumb) man, power of; to make a wm, 804, 805. DeUciu/m, as a basis of obligations, 237. I>&po8itum, 221-223. Ihfarreatio, 148. Digest (or pandects), how prepared, 8-10 ; made up principally of extracts from thirty-nme law-writers, 8; prepared in about three years, 9 ; general thorough- ness of; 10 ; superior to other codes, an- cient and modern, 11; treats far more of private law than the Codex, 15. Disinheritance of children, 814. Distribution, En^sh rules of, 291. Divorce, in later Eoman law, 143. Dolus, in the law of depoaitmn, 223 ; in the law of emptio 'venditio, 226, Dominua, 95. Domvrdwm, 87. Donations, between husband and wife, 146, 147. Donatio ante {propter) tmptias, 14T. Dorotheus, professor of law, 17 ; aided in preparation of the Institutes, 17. Dos, 147. Dupondii (two-penny men), IB. Early Eoman law, very simple, and why, 78 ; very formal, 79, 82. Ecclesiastical law in Koman provinces, conquered by German tribes, 29, Edieta, 7. Edict of prastor, 94. Ed/icPwm Tlieoderici, 81, Emancipated children, ceased to be ag- nates, 279 ; allowed, by the prffitors, to inherit along with the sm heredes, 282 ; not called heirs, but honorv/m posses- sores, 382. " MnancipaUo, 127. EmpTvyteu^, 199, Emphyteuta, 199. EmpJvyUuticarms^ 199. Emptio -venditio, 225-228. England, influence of Koman law in, 45-43 ; through ecclesiastical courts, 45 ; througli court of chancery, 46 ; through develop- ment of commercial law, 47," 48. Errors in testaments, rectmcation o^ 273. Estate, defined, 264. Mo jure Quiritiv/m, 91, 117, 175. Falcidian law, 822. FamiUa, 106, 107. FanfdUae emptor^ 87; heir appears in this character In the testoffnentum p&r acs INDEX. 329 Feudal system, 163. Mctiona, adopted by pwetors, 96 : in Eng- lisli law, 96. Md&i eormrnssum^ 828-S25 ; substantially the same as legata. in time of Justiniou, 825. MducicL, 203, 204. MUua famdlicts, 107, 119. Maavs^ succeeded sometimes to estates, when tbe disposition of them was in- valid, 811. Fleta, work on Enfflisb law, 48. Florentine digest, 83. Formalities, early legal, not wholly use- less, 89. F&rmula, 60, 79. Franks, divided into two sections, 23. FniQtu%^ 196. Fungible things, 219. Furian law, 821. Furtum, a delict obligation, 240 ; furtwm man/ifestwn or furtum, tiec manifes- tum, 240, 241. Gaius, 16, 17; only a prsenomen, 17; his works given legal authority in the fifth century, 57 ; Inatitutiones ot, discovered by Niebuhr, 72 ; one-tenth of the work lost, 74; wrote a commentary on the Twelve Tables, 76. Gaul, effects of conquest of, by the Eo- mans, and by the Germans, 27. Gens, defined, 135 ; succession of, 2S1. German emperors favored the Komau law, and why, 16, 40, 41. Glanville, English law-writer, 48. Glossators, 85, 36. Gracchi, the, 179. Gregorian code, 7, 56. Guardian and ward, 148-153. Guardian, sanction of {auctoritas), 150. Heir, liable to the ftill extent of his prop- erty for debts of his predecessor, 26S ; generally became heir only with his own consent, 270 ; character of not necessarily confined to one person, 272; no division allowed between heirs except a fractional one, 273 ; must have been bom (or con- ceived) in lifetime of testator, 276, 277 ; four classes of heirs by 118th Novel, 287; appears as faTniliae emptor in the testa/mentimn per aes et Hbram, 299 ; afterward distinct from familiae mtyptor, 300. S&redMas^ a res inoorporaUs, 161 ; dis- tinction of, from l)(mo7'um possession abolished by Justinian, 175. Hermogenian code, 7, 56. Simoraritim, 250. HypotMca^ 203-205; extended develop- ment of, 203. Imperator^ 120, Impuberes quifari possunt, 149. In bonis, 87. In ma/mcm viri, 189. Infa/ntesj 149 ; incapable of legal action, 148. Inffenui, 115. Inheritance, either testamentary or intes- tate, 265; a universal succession, 260; could not be partly testamentary and partly intestate, 266; devolved on heir the necessity of paying the legacies, 267 ; fused estates of deceased and of heir, 268; made heir liable, to the full extent of his property, for the debts of his predecessor, 268 ; law of inheritance remodelled by Justinian, 286 ; intestate inheritance older than testamentary, 295 ; a natural right to share in, recog- nized by Roman law, 317. Injuria, a delict obHgation, 243. Inofficious wiil, 317, 318. InsUtutiones, 16; based on a similar work of Gaius, 16; prepared by whom, 17 ; pubUsbed with the digest, 17 ; con- tents of; 17, 18. Intestacy, a discreditable neglect, 297. Intestate inheritance, rules of, 274. Italy, Justinian's conouest of, 33. Iter, 183-185. Jud&B, 60. Jwra in re (aliena), 182. Jv/ris peritz, 59. Juris prudentes, 50. JwrisoonmlU, 59 ; influence of, at first, purely moral, 65. Juristic hterature of Rome, only a small portion extant, 70, Jus abst&ntion/is, 271, Jus cwile, 90; two signlflcationB oi, 90. JusfeUaU, 90. Jus gemMwm, 90, identified with 3x1s na- iurale, 92. Jus ZaUi, 117. Jus Uberorum, 286. Jus naturale, 92. Jus respondm'di, 65-69. Jus vitae et necis, 120. Juata causa posse^sionis, essential to usucapio, 173. Justinian, his character a subject of con- troversy, 5. Labeo, head of a legal sect, 63. Land, distinction of, from other property, not very important in Roman law, 162. Lands, pubhc, possessors 0^ 179. Latvm, 117. Latinitas, 117. isr 330 INDEX. Law-books, written as early as 800 b. o., 62. Law-making power,exercl8ed by eourts,101. Law-scbools, Boman^ 18 ; coui'se of study at, 18, 19 ; instruction at, given 'by lect- ures and recitatlonSf 19. liaw-writerB, thirty-nine, represented in the Digest, 8. Leaso, ordinary, not a jtia in re, 200. Leases, perpetual, 199, Legacies, 263; could be made only to per- sons capable of receiving by inheritance, 819, 320 ; Bubstantially the same aa _fidei eomnvissa in time of Justinian, 825. Legal history, necessity o:^ for comprehen- sion of any law-system, 53. Legatee, distinguished from heh:, 319 ; de- pendent on testamentary heh', 319 ; re- ceived nothing, if estate went to intes- tate heir, 821. Leo, the Isaurian, Issued a compendious code, to be used instead of the Corpus Juris, 24. Letting and hiring, a consensual contract, 225. Zex Aquilia^ 242 ; Lex FaZoid/icm, 322 ; Lex FvHa^ 321 ; Le^ JuUa^ 810-312 ; LeoB Papia Foppaea^ 310-312; L&x Pompma de parricidid8y 120 ; Lex Plaetoria. 153 ; Xcai Voemvla^ 808, 809, 821. ieas Bomana Visigotliorwm^ 81 ; contains the SentmMae of Paulus, 70. LiberaUzation of Eoman law, 93. XA.bm% 108. Libertaa, 106. LiberUni, 115. JAbripens, 86. Literal contracts, 21 G. Locaiio cotuZucUo, 221, 223-230. Locator, 228. Locus religi08iC8, 156. Lombards, their conquests in Italy, 84. Maine^s "Ancient Law," cited, 66. Male heirs and stocks, preference of, in feudal law, 291 ; in primitive Germanic usages, 291. MancipaUo (or mcmcijnti'Jn), 85 ; belongs to juBCiMle, 91. McMicipium^ peculiar status so called, 120, 126. Maiidafa, 7. Mandatary, 282, Mandate, a consensual contract, 225. Mcmdator, 282. Mdndaiitm^ 232. Mcmvmissio^ 112. Manumission of slaves, modes o^ 111-118. Manwnissor^ 115. Mcurms, 139. Marriage, 183-143; greatly changed by Christianity cooperating with Germanic usages, 148-145; later Eoman marriage, 142. Married women, conditiou of, by English conmion law, 189. Maxims : pater eat quern nupUae de- inojiatrcmtj 111 ; Pailnm seqititar ven- trem^ 111. Mc^^jma capiUa dem/lmitio, 108. Media capitiB detrmtuUo, 103. Mimmaa eapiiia dermnuUo^ I'OS. Minor, 180. Mixture, a mode of acquiring property, 169. ModesHnua, his works made a legal au- thority in the flfbh century, 57. Mortmain, heathen Bome exempt from, 306. Mutimrn^ a real contract, 217-220; not al- lowed to support ^acto ac^ecto, 236. 27aMraHa dbUgatio, 252, J/a/uMcmn fenus, 220. JTecessarU Iteredea, 270. J^effoiiorum gestor^ 238 \—gestio^ 233. 2ir&mt7/i^ 24T. Non-use (non-user), 195. novation, 253. Ifoni Jv^tm/ia/nm (Justinian''s freshmen), 18. Novellae, 22. Novels, the, 22; usually written in Greek, 22, 23; Novel 118th, 286. ]ifuda proprietas^ 191. OblJgationB, law of, more thoroughly worked out, and more influential in modem systems, than any other part of EomMi law, 209 ; arose from contract or delict, 287; quasi &b contractu, 28T; quasi && delicto, 244;. obligations eco delicto^ four kinds of, 239-244; general features of obligations, 244r-260; defini- tion of, 245; civil and natural obhga- tions, 252-354 ; obligations etrietij'wria, 255; obligations bonae ^ei, 255, 256; obUgations where there was more than one debtor or more than one creditor^ 257. OcGupatio, 164. t it - -n Occupants of public lands, not owners, 179. Orationes, 6. Ostrogoths, overthrown by Justinian, 33, Pa.cta adjeeta, 286. Palimpsest, 71. Pandects, vide "Digest." Papinian, perhaps the greatest of Eoman law-writers, 11 ; put to death by Cara- caUa, 11 ; author of about one-twelfth of the Digest, 2 ; his writings invested ^vith legal authority, 57. INDEX. S31 Parents, of intestates, excluded from snc- cesBion, 280. Pat&rfamilias^'Vn^ 119. PatHa potestas^ 107, 116; powers con- ferred by, 119-121 ; how it came to be accepted and upheld by the Eomans, 121, 122: resembled in some degrree the power oiftusband over wife in English common law, 122 ; restricted under the empire, 123 ; conferred by adoption and by arrogation, 126 ; how terminated, 126; fomadation of the femily, 2TT. Patrorvm^ 115. Paulus, author of one-sixth of the Digest, 10; his writings received the authority of law in the fifth century, 57 ; jSenten- tiae 0^ 70. Teregrini^ 91, 103; debarred from all rights peculiar to the jus cwile^ 116; status of, 115-119; could not make a will, or receive a legacy under a will, 805. Perrmitatio rerwm (barter), distinguished from &m/pUo vendttio, 225. Personal, as distingnished from territorial, law, 28. Peeuliuniy 115 ; peouUimi eastrense, 123 ; peevZiv/m quasi-caatreTise, 124. Pzgnus^ 203; distingmshed from 7bj/- potheca, 203; a real contract, 223, 224. Pledge {pignu8\ 201, 203. Po&na (private law penalty), 239 ; as a punishment for a crime, 239. Possession, distinguished from ownership, 172 ; gives rise to 'usucapion^ if accom- panied by hona fides and justa causa possessioTvis^ 178; mere possession, as a foundation of legal rights, 176. Poesessor vn l}oni8^ 174. Postwmi^ 307; postv/mi sm, 808; posttimi Preca/i'iunu, 17T, 178, 202; distinguished from coTrnnodatwrn, 221. Praetor, 59, 60 ; edict ot 94. PrcRtor p®rvmts^ 91; prastor fidei coTnmAssarius, 323. Praetorian wills, 300, 301. Primogeniture, no trace ot, in Eoman law, 291 ; in English law, 291. Private law, 14; univeraal appUcability o^ Koman private law, 15. Proculians, a legal sect, 63. Procopius, principal authority for life and reign of Justin^n, 5. Procairator^ 214, 232 ; procurator in rrni suam, 238. Promissory 210. Property, variously classifled, 155, 158; modes of acquiring, 164; property tak- en from an enemy went to the state, 165. Pubhc law, 14; Public law of Corpits Juris distinctively Roman, and even Byzantine in character, 15. Quasi-usufruct, 103. B Sapina, a deUet obligation, 2il, 242. Eeal contracts, 217; did not all have spe- cific names, 224; were, mostly; bonce fid&l, 255. Pes, divisions oi; 156-163. Pes communes omnium^ 157; res cor- porales, 157; res d/i/ami jyHs^ 156; res TmmaTvi juris, 156 ; res invmoMles, 161 ; res i/ncorporales, 157 ; res man- cipiy 87 ; distinction between res man- dpi and res nee mancipi^ abolished by Justiuian, 175; res m,dbUes, 161; res nee mandpi, 87, 175; rea privatae, 156 ; res puhlicae^ 156 ; res religiosae, 156; res eaorae, 156; res gareoiae, 156; res soli, 173. Ees Quotidianae (of Gains), 17. Eescript, species of manuscript, 71. PescHpta, 7. Pesponsa prudenfktm, 52, 65, PesiUutio in integrum, 152. Ridicule, Eoman susceptibility to, 243, Eipuflrian Franks, 28. Eoman law, history o^ divided into throe periods, 55; prevailed in "Western Eu- rope after the barbarian conquests, 31 ; revival in the study of, at the beginning of the twelfth century, 34. . s Sabinians, a legal spct, 63. iSacra/mentiim,, use of, in prosecutions for money, 80 ; in action to recover land, 85. Salian Franks, 28. Savigny, proved the continued use of the Corpus Juris in Italy, during the middle ages, 33. Saxons, mde "Angles and Saxons." Bcaevola, Q. Mucins, 9 ; the first to treat law scientifically, 62, 93. Schools (or sects) of law in the reign of Augustus, 62, 63 ; nature of differences between, 63, 64. /^matits conmltwm Macedandum, 254; S. c. OrpMtianum, 284; S. c. Tertal- Uanum, 285, 311. SentenUae Peceptae (of Paulus), 70. Servi, 108. Servitutes,^82-196 ; praedial, or personal, 180 ; ser'oitvs praed/ionmi rusticomim, 186; servitus praeddorimi'wrba/riormn, 186, 187; serviiua infaci&ndo could not exist, 189, 190; personal, 190-196. Sigismund, the Burgundian, published a collection of Eoman law,, 32. Slavery, 109 ; belonged to the^'ws gentiwm^ 109 ; origin of, 110. Slaves, had no legal personality, 113 ; their agency in legal transactions, as master's Instruments, 114; if appointed heu-s, 332 INDEX. ■were neeessarii Jieredes, 271 ; frequent- ly appomted heira, wben testator doubt- ed Bolvency of Jiis estate, 313. Social War, 11 T. Soci&tas (partnerBWp), a consenmal con- tract, 225, 230-282; societas totormn l>onorumy 281 ; eodetas aUcfugua nego- MatkmiSi ^^^i sodetas leoniTia, 281; heir did not succeed to the position and duties of deceased partner, 266. Society — Vide " Sooietae.^'' iSodi (partners), 230. Sol/uM ret&nMo^ 258. SohiMo, 246 ; eoluUo indeMU, 238. Speci^iaUo, 167; diflferent views on, en- tertained hj tlie Sabinians and Frocu- lians, 167. i^ondes, employment of, in obligations, 210. ^oneio^ species of obligations, 207, 210. Status, three kinds of, 106. JStlpucaUo, 210 ; required parties to be in presence of each other, 212 ; might be reduced to writing, 216 ; not oUowed to support pacto a(^ecta, 286. Stipulator, 210. Suoaiitutio vulgaris, 295, 813 ; subatitutio papillaris, 295, 818. Substitution, mde " Sub^itutioy Succession, universal, 266. Sm heredes, 184; succeeded to estate in case of Intestacy, 279. JSui jwris, 107, 119. Bulpicius, pupil of Scaevola, 62. Superficiary, 197, 198. mp&rficies, 197, 198. Testament (iesiamentwn), origlnany a formal sale, 87: nature of, 265; errors in, how rectified, 273; testamentum ca- latis comiMis, 298; testam.&ntwm i/n procinctu^ 298; iestamentum per aes et librae 299. Testators, more restricted under Eoman than English law, 818. Theodoric, the Ostrogoth, published a col- lection of Eoman law, 81. Theodosian Code, 7, 8. Theophilus, professor of law, aided in pre- paring the ^^ Institutionea^'' 17. Trihonian, law minister of Justinian, 6 9,17. Tutela, 180. Tutor, 130 ; distinguished fi-om (yurator, 153. Twelve Tables, Code o^ 74; little more than a statement of previously-existing law, 75; howrfej extant, 76r Ulpian, the most prolific of Eoman law- writers, 10 ; author of one-third of the Digest, 10 ; his works made a legal au- thority in the fifth century, 67. Uncertain person, appointment o^ as heir, not vahd, 807. TJneonstitutionahty of statutes in Ameri- can law, 102. Universal succession, 266. Usuary, 195. TJsucapion {iisueapioX 95, 172; period re- quired for, extended by Justinian, 175. tTsufructuaiy, 191. Tj6ufiTict(«*w/W«;^««), 191-195; of money, not recoguized, 198. UkuA, marriage by, 141, Dsws, spedes of usufruct, ISl, 195. Via, 183-185, Vindex, 112. Yindicaiio, 77. Vmdieta, 84. Toconian law, 308, 309, 321. W Way, rights o^ 183. Wills, invalid in certain cases, 274, 275; power of paterfamilias to make a will recognized in Eome long before the Twelve Tables, 297 ; originally made in cormUa curiata, 297; first plebeian wills, 298 ; written (praetorian) wills, 800, 801; public wills, 802 ; in time of Justin- ian, 302; witnesses to, 802; inofficious wills, 317; wills made in procinctu^ 298. Witnesses, to wills, 802. opinions of tfie Press on the ^^International Scientific Series." Tyndall's Forms of Water. I vol., l2mo. Cloth. Illustrated, ..,,.♦; Price, $1.50. " In the vqlume now published, Professor Tyndall has presented a noble illustration of the acuteness and subtlety of his intellectual powers, the scope and insight of his scientific vision, his singular command of the appropriate language of exposidon, and the peculiar vivacity and grace with which he imfolds the results of intricate scientific research." — N. V. Tribune. " The 'Forms of Water,' by Professor Tyndall, is an interesting and instructive little volume, admirably printed ^d illustrated. Prepared expressly for this series, it is in some measure a guarantee of the excellence of the volumes that will follow, and an indication that the publishers will spare no pains to include in the series the freshest in- vestigations of the best scientific thidAb,*'— Boston youmal. " This series is admirably commenced by this litde volume from the pen of Prof. Tyndall. A perfect master of his subject, he presents in a style easy and attractive his methods of investi^tion, and the results obtained, and gives to the reader a clear con- ception of al?the wondrous transformations to which water is subjected." — Churchman, 11. Bagehot's Physics and Politics. I vol., i2mo. Price, $1.50. " If the * International Scientific Series ' proceeds as it has begun, it will more than fulfil the promise given to the reading public in its prospectus. The first volume, by Professor Tyndall, was a model of lucid and attractive scientific exposition ; and now we have a second, by Mr. Walter Bagehot, which is not only very lucid and charming, but also original and suggestive in the highest degree. Nowhere since the publication of Sir Henry Maine's 'Ancient Law,' have we seen so many fruitful thoughts sug- gested in the course of a couple of hundred pages. ... To do justice to Mr. Bage- hot's fertile book, would require a long article. With the best of intentions, we are conscious of having given but a sorry account of it in these brief paragraphs. But we hope we have said enough to commend it to the attention of the thoughtful reader."— Prof. John Fiske, in the A tlantic Monthly. " Mr. Bagehot's style is clear and vigorous. We refrain firom giving a fuller ac- count of these suggestive essays, only because we are sure that our readers will find it worth their while to peruse the book for themselves; and we sincerely hope that the forthcoming parts of the 'International Scientific Series' will be as interesting." — A theneeum. " Mr. Bagehot discusses an immense variety of topics connected with the progress of societies and nations, and the development of their distinctive pecuHarities; and his book shows an abundance of ingenious and original thought." — Alfred P^us^kll Wallace, in Nature. D. APPLETON & CO., Publishers, 549 & 55^ Broadway, N. Y. opinions of the Press on the '" Liternational Scientific Series.''* III. Foods. By Dr. EDWARD SMITH. I vol., i2ino. Cloth. Illustrated Price, $1.75. In making up The International Scientific Series, Dr. Edward Smith was se- lected as the ablest man in England to treat the important subject of Foods. His services were secured for the undertaking, and the little treatise he has produced shows that tlie choice of a writer on this subject was most fortunate, as the hook is unquestionably the clearest and best-digested compend of the Science 9f Foods that has appeared in our language. " The book contains a series of diagrams, displaying the effects of sleep and meals on pulsation and respiration, and of various kinds of food on respiration, which, as the results of Dr. Smith's own experiments, possess a very high value. We have not far to go in this work for occasions of favorable criticism ; they occur throughout, but are perhaps most apparent in those parts of the subject with which Dr. Smith's name is es- pecially linked." — London Examiner. "The union of scientific and popular treatment in the composition of this work will afford an attraction to many readers who would have been indifferent to purely theoreti- cal details. . . . Still his work abounds in information, much of which is of great value, and a part of which could not easily be obtained from other sources. Its interest is de, cidedly enhanced for students who demand both clearness and exactness of statement, by the profusion of well-executed woodcuts, diagrams, and tables, which accompany th^ volume. . . . The suggestions of the author on the use of tea and coffee, and of the va, rious forms of alcohol, although perhaps not strictly of a novel character, are highly in- structive, and form an interesting portion of the volume.*'— iV. K Tribune, IV. Body and Mind. THE THEORIES OF THEIR RELATION. By ALEXANDER BAIN, LL. D. I vol., i2mo. Cloth Price, $1.50. Pbofessor Bain is the author of two well-known standard works upon the Science of Mind — "The Senses and the Intellect," and "The Emotions and the Will." He is one of the highest living authorities in the school which holds that there can be no sound or valid psychology unless the mind and the body are studied, as they exist, together. " It contains a forcible statement of the connection between mind and body, study- ing their subtile interworkings by the light of the most recent physiological investiga- tions. • The summary in Chapter V., of the investigations of Dr. Lionel Beale of the embodiment of the mtellectual functions in the cerebral system, will be found the freshest and most interesting part of his book. Prof. Bain's own theory of the connec- tion between the mental and uie bodily part in man is stated by himself to be as follows : There is * one substance, with two sets of properties, two sides, the physical and the mental — a double-faced unity,* While, in the strongest manner, asserting the union of mind with brain, he yet denies *the association of union in placed but asserts the union of close succession in time,' holding that ' the same being is, by alternate fits, un- der extended and under unextended consciousness." ' — Christian Register, D. APPLETON & CO., Publishers, 549 & 551 Broadway, N. Y. opinions of the Press on the ^^International Scientific Series," The Study of Sociology. By HERBERT SPENCER. i2mo. Cloth fc . . Price, $1.50. " The Study of Sociology " was written for the purpose of conveying to the reading public more definite ideas concerning the nature, claims, scope, limits, and difficulties, of the Science of Sociology. It is intended to prepare the way for the author's great work on the ** Principles of Sociology," which is to follow the '* Principles of Psychol- ogy." But, while serving thus as an introduction to the larger work, the present vol- ume is complete in itself. Its style is exceedingly clear and vigorous, and the book abounds with a wealth of illustration. " The philosopher whose distinguished name gives weight and influence to this vol- ume, has given in its pages some of the finest specimens of reasoning in all its forms and departments. There is a fascination in his array of facts, incidents, and opinions, which draws on the reader to ascertmn his conclusions. The coolness and calmness of his treatment of acknowledged difficulties and grave objections to his theories win for him a close attention and sustained effort, on the part of the reader, to comprehend, fol- low, grasp, and appropriate his principles. This book, independently of its bearing upon sociology, is valuable as lucidly showing what those essential characteristics are which entitle any arrangement and connection of facts and deductions to he called a science." —Episcopalian. "To those who are already acquainted with Mr. Spencer's writing, there is no need of recommending the work ; to those who are not, we would say, that by reading ' The Study of Sociology* they will gain the acquaintance of an author who, for knowledge, depth of thought, skill in elucidation, and originality of ideas, stands prominently for- ward in the front rank of the glorious army of modem thinkers. ' The Study of Soci- ology ' is the fifth of ' The International Scientific Series,' and for beauty of t3rpe and elegant appearance is worthy of the great publishing-house of Messrs. Appleton & Co." — Boston Gazette. "This volume belongs to 'The International Scientific Series,* which was projected with so high a standard and which is being so successfully carried out. The value and character of the whole may fairly be judged by this and the preceding volumes. The principle of the enterprise is that each subject shall be treated by the writer of greatest eminence in that department of inquiry, and it is well illustrated in the present work. Herbert Spencer is unquestionably the foremost living thinker in the psychological and sociological fields, and this volume is an important contribution to the science of which it treats It will prove more popular than any of its author's other creations, for it is more plainly addressed to the people and has a more practical and less speculative cast. It will require tliought, butitis well worth thinking about." — Albany Evening- yournal. "Whether the reader agrees with the author or not, he will be delighted with the work, not only for the beauty and purity of its style, and breadth and cyclopedic char- acter of Mr. Spencer's mind, but also for its freedom from prejudice and kindred imper- fections." — Norwich Bulletin. " This work compels admiration by the evidence which it gives of immense re- search, study, and observation, and is withal written in a popular and very pleasing style. 1 1 is a fascinating work, as well as one of deep practical thought.' '—Boston Post, D. APPLETON & CO., Publishers, 549 & 551 Broadway, N. Y. opinions of the Press on the ^^ Inter Jtational Scientific SeriesJ^ VI. The New Chemistry. By JOSIAH P. COOKE, Jr., Erving Professor of Chemistry and Mineralogy in Harvard University. I vol., i2mo. Cloth Pfice, $2.00. " The book of Prof. Cooke is a model of the modem popular science work. It has just the due proportion of fact, philosophy, and true romance, to make it a fascmating companion, either for the voyage or the study.** — Daily Craphic. " This admirable monograph, by the distinguished Erving Professor of Chemistry in Harvard University, is the first American contribution to 'The International Scien- tific Series,* and a more attractive piece of work in the way of popular exposition upon a difficult subject has not appeared in a long time. It not only well sustains the char- acter of the volumes with which it is associated, but its reproduction in European coun- tries will be an honor to American science. It is, moreover, in an eminent degree, timely, for, between the abandonment of its old views and the bewilderment caused by the new, chemical science was getting into a demoralized condition. A work was greatly needed that should relieve the discomfort of transition, and bridge over the gulf between the old order of ideas and those which are to succeed them. Professor Cooke's compendious contribution to the present exigencies of chemical literature will give the students of the science exactly the help they need, and pass them over by an easy and pleasant route into the new realm of chemical pl^losophy." — New York Tribune. " All the chemists in the country will enjoy its perusal, and many will seize upon it as a thing longed for. For, to those advanced students who have kept well abreast of the chemical tide, it offers a calm philosophy. To those others, youngest of the class, who have emerged from the schools since new methods have prevailed, it presents a generalization, drawing to its use all the data, the relations of which the newly-fledged fact-seeker may but ditfily perceive without its aid. •.-.'. To the old chemists. Prof. Cooke's treatise is like a message from beyond the mountain. They have heard of changes in the science ; the clash of the battle of old andnew theories has stirred them from afar. The tidings, too, had come that the old had given way ; and little more than this they knew. . . . Prof Cooke's 'New Chemistry' must do wide service in bringing to close sight the little known and the longed for. ... As a philosophy it is elemen- tary, but, as a book of spience, ordinary readers will find it sufficiently advanced."— Uiica Morning Herald, ** A book of much higher rank than most publications of its class. It treats only of modem chemical theories~-relating to molecules, combining proportions, reactions, atomic weights, isomerism, and the synthesis of organic compounds — taking one into the very arcana of chemical mysteries. Though there are no more recondite branches of the science than those here explained and illustrated, such is Professor Cooke's clearness that he may be said to make every thing plain to the average reader, who will but take pains with his lessons. Professor Cooke reminds us, in his simplicity and lucidity of statement, of Professor Tyndall, than which there can be no higher praise." — New York Journal of Commerce. ** The Mm of the work is to furnish a hand-book of a symmetrical science, resting fundamentally upon the law of Avogadro that * equal volumes of all substances, when in the state of gas and under like conditions, contain the same number of molecules,' It is to a rigid adherence to this law and the deductions which flow from it that chem- istry, as now taught, owes the marked difference which separates it from the chemistry taught a few years ago. The original lectures of Professor Cooke, enlarged and somewhat modified, present in their present form a clear and full exposition of the sci- ence, and will form a useful text-book as well as a volume of unusual interest to the lovers of physical science.** — New York World, D. APPLETON & CO., Publishers, 549 & 551 Broadway, N. Y. opinions of tJte Press on the ^^ International Scientific SeriesJ*^ VII. The Conservation of Energy. By BALFOUR STEWART, LL. D. With an Appendix, treating of the Vital and Mental Applications of the Doctrinei, I vol., i2mo. Cloth Price, $1.50. Note to the A merican Edition. " The great prominence which the modern doctrine of the Conservalion of Energy or Correlation of Forces has lately assumed in the world of thought, has made a simple and popular explanation of the subject very desirable. The present work of Dr. Bal- four Stewart, contributed to the 'International Scientific Series,' fully meets this re- quirement, as it is probably the clearest and most elementary statement of the question that has yet been attempted. Simple in language, copious and familiar in illustration, and remarkably lucid in the presentation of facts and principles, his little treatise forms just the introduction to the great problem of the interaction of natural forces that is re- quired by general readers. But Prof. Stewart having confined himself mainly to the physical aspects'of the subject, it was desirable that his views should be supplemented by a statement of the operadon of the principle in the spheres of life and mind, ^n Appendix has, accordmgly, been added to the American edition of Dr. Stewart's work, in which these applications of the law are considered. " Prof. Joseph Le Conte published a very able essay fourteen years ago on the * Correlation of the Physical and Vital Forces,' which was extensively reprinted abroad, and placed the name of the author among the leading interpreters of the subject. His mode of presenting it was regarded as peculiarly happy, and was widely adopted by other vmters. After further investigations and more mature reflection, he has recently re- stated his vie\re, and has kindly furnished therevised essay for insertion in this volume. ** Prof. A. Bain, the celebrated Psychologist of Aberdeen, who has done so much to advance the study ofmind in its physiological relations, prepared an interesting lec- ture not long ago on the 'Correlation of the Nervous and Mental Forces,' which was read with much interest at the time of its publication, and is now reprinted as a suitable exposition of that branch of the subject. These two essays, by carrying out the prin- ciple in the field of vital and mental phen omena, will serve to give completeness and much greater value to the present volume." " The great physical generalization called ' The Conservation of Energy* is in an intermediate state. It is so nev^that all kinds of false ideas are prevalent about it; it is so exact that these cannot be tolerated ; and thus its circumstances are such as to make so thorough and simple a treatise as this, by Prof. Balfour Stewart, a boon to science and the world at large. *' The scheme of the book is simple, as is naturally the case when the subject-mat- ter comprehends but one single law of Nature and its manifestations. ^ The first two chapters are devoted to the consideration of mechanical energy and its change into heat. Prof. Stewart rightly devoting special attention to these two forms of ener^, compared with which all others are insignificant in practical, if not in theoretical, im- portance. The remaining forms of energy are then explained, and the law of its con- servation is stated, and its operation traced through all varieties of transmutations. An historical sketch of the progress of the science and an examination of Prof. Thomson's correlative theory of the 'Dissipation of Energy ' follow ; and the work concludes with a chapter on the 'Position of Life,' which is closely connected with a well-known essay written some years ago by Prof Stewart and Mr. Lockyer. _ -The style is all that it should be; it is difficult to understand how so much information can be contained in so few words. Prof, Stewart could not have been nearly so successful in this respect had he been in any degree a pedant No such writer would permit himself to use the quaint language and still quainter similes and and illustrations that make the book so readable, and yet there is scarcely one that is out of place, or illegitimately used, or likely to mislead." — Satu7-day Review. D. APPLETON & CO., Publishers, 549 & 551 Broadway, N. Y. A thoughtful and valuable contribution to the lest religious literature of the day, RELIGION AND SCIENCE. A Series of Sunday Lectures on the Relation of Natural and Revealed Religion, or the Truths revealed in Nature and Scripture. By JOSEPH LE CONTE, PEOFE330K OF GEOLOGY AND HATtTEAL mSTOKY IH THE UNIVEESITY OF CALIFOENIA. \2mo, cloth. Price, $1.50. OPINIONS OF THE PRESS. " This work is chiefly remarkable as a conscientious effort to reconcile the revelations of Science with those of Scripture, and will be very use- ful to teachers of the different Sunday-schools." — Detroit Union. "It will be seen, by this risumi of the topics, that Prof. Le Conte grapples with some of the gravest questions which agitate the thinking world. He treats of them all with dignity and fairness, and in a man- ner so clear, persuasive, and eloquent, as to engage the undivided at- tention of the reader. We commend the book cordially to the regard of all who are interested in whatever pertains to the discussion of these grave questions, and especially to those who desire to examine closely the strong foundations on which the Christian faith is reared." — Boston youmal. "A reverent student of Nature and religion is the best-qualified man to instruct others in their harmony. The author at first intended his work for a Bible-class, but, as it grew under his hands, it seemed well to give it form in a neat volume. The lecture^ are from a decidedly re- ligious stand-point, and as such present a new method of treatment." — Philadelphia Age. " This volume is made up of lectures delivered to his pupils, and is written with much clearness of thought and unusual clearness of ex- pression, although the author's English is not always above reproach. It is partly a treatise on natural theology and partly a defense of the Bible against the assaults of modern science. In the latter aspect the author's method is an eminently wise one. He accepts whatever sci- ence has proved, and he also accepts the divine origin of the Bible. Where the two seem to conflict he prefers to await the reconciliation, which is inevitable if both are true, rather than to waste time and words in inventing ingenious and doubtful theories to force them into seeming accord. Both as a theologian and a man of science. Prof. Le Conte's opinions are entitled to respectful attention, and there are few who will not recognize his book as a thoughtful and valuable contribution to the best religious literature of the day." — JVew York World. D. APPLETON & CO., Publishers, 549 S: 551 Broadway, N. Y. DESCHANEL'S NATUEAL PHILOSOPHY. Natural Philosophy: AJir ELEMENTARY TREATISE. By PROFESSOR DESCHANEL, of Paris. Translated, with Extensive Additions, By J. D. Eterett, D. C. L., F. E. S., FBOFESSOS OF NATITBAL FHILOSOPHY IS THE QtTEEH^S COLLEGE, BELFAST.' 1 vol., medimn 8vo. Illustrated by 760 Wood Engravings and 8 Colored Plates. Glotb, $6.B0. Published, also, separately, in Four Parts. lamp cloth, each $1.15. Parti. MECHAinCB, HTDEOSTATICS, and PNETIMA.TIOS. Part II. HEAT. Part III. EI^CTKICITT and MAGNETISM. Part IT. SOUND and LIGHT. Saturday Eeview. " Systematically arranged, clearly ■written, and admirably illustrated, showing no less than than 760 engravings on wood and three colored plates, it forms a model work for a class of experimental physics. Far from losing in its Enghsh dress any of tho qnahties of matter or style which distinguished it in its original form, it may be said to have gained in the able hands of Professor Everett, both by way of arrangement and of incorporation of fresh matter, without parting in the translation with any of th» freshness or force of the author^s text." Athenceum. " A good working class-book for students in experhnental physics." Westminater Eeview. "An excellent handbook of physics, especially suitable for self-instruction. . . . ^Tho work is published in a magnificent style; the woodcuts especially are admirable." Quarterly Jowrnal of Science. " We have no work in our own scientific literature to be compared with it, and wo are glad (hat the translation has fallen into such good hands as those of Professor Everett. ... It will form an admirable text-book." Nature. "The engravings with which the work is illustrated are especially good, a point in which most of our Enghsh scientific works are lamentably deficient. The clearness of Deschaners explanations is admirably preserved in the translation, while the value of the treatise is considerably enhanced by some important additions. . . . We believe the book will be found to supply a real need." D. APPLETON & CO., New York. DESCRIPTIVE SOCIOLOGY. Mr. Heebeet Spenoek has been for several years engaged, with the aid of three educated gentlemen in his employ, in collecting and organizing the facts concerning all orders of human societies, which must constitute the data of a true Social Science. He tabulates these facta so as conveniently to admit of ex- tensive comparison, and gives the authorities separately. He divides the races of mankind into three great groups : the savage races, the existing civilizations, and the extinct civilizations, and to each he devotes a series of works, x'he first installment, THE SOCIOLOGICAL HISTORY OF ENGLAHD, in seven continuous tables, folio, with seventy pages of verifying text, is now ready. This work will be a perfect Cyclopaedia of the facts of Social Science, independent of all theories, and will be invaluable to all interested in social problems. Price, five dollars. This great work is spoken of as follows : From the British Quarterly Beview. "No words are needed to indicate the immense labor here bestowed, or the great sociological benefit which such a mass of tabulated matter done nnder such competent direction will confer. The work will constitute an epoch in the science of comparative sociology." From the Saturday JReview. " The plan of the ' Descriptive Sociology ' Is new, and the task is one eminently fitted to bo dealt with by Mr. Herbert Spencer's faculty of scientific organizing. His object is to examine the natural laws which govern the development of societies, as he has ex- amined in formei parts of Ills system those which govern the development of individual life. Now, it is obvious that the development of societies can be studied only in their history, and that general conclusions which shall hold good beyond the limits of particu- lar societies cannot be safely drawn except from a very wide range of facts. Mr. Spen- cer has therefore conceived the plan of making a preliminary collection, or perhaps we should rather say abstract, of materials which when complete will be a classified epi- tome of nnive. sal history." From th£ London Examiner. " Of the treatment, in the main, we cannot speak too highly; and we must accept It as a wonderfully saccessfnl first attempt to famish the student of social science with data standing toward his conclusions in a relation like that in which accounts of the structures and functions of different types of animals stand to the conclusions of the biologist."