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 http://www.archive.org/details/cu31924021169259 
 
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 PRINTED BY WILLIAM BLACKWOOD ASD SONS, EDINBURGH. 
 
PEEFACE. 
 
 DuEiJTG the last fifty years the study of Roman law has 
 made great progress on the Continent of Europe, and 
 especially in Germany and France. The discovery of 
 ancient works long buried in oblivion, and the researches 
 of some eminent historians and civilians, have thrown new 
 light on this department of jurisprudence, and materially 
 modified its general aspect. In this country we have cer- 
 tainly not kept pace with our Continental neighbours ; but 
 it is gratifying to observe that a strong desire has been 
 recently manifested in professional circles to raise the 
 standard of legal education by devoting more attention to 
 Roman law and general jurisprudence. This has led to the 
 establishment of new chairs in some of our Universities, and 
 of readerships by the Inns of Court in London ; while it 
 has called forth from English writers a considerable number 
 of works on Roman law of various degrees of merit, but cal- 
 culated on the whole to enrich our legal literature. 
 
 Without trenching on the ground already occupied by 
 these authors, a good elementary book in English is still 
 much wanted, giving a clear, simple, and accurate view of 
 the general principles of the Roman law, with so much of its 
 history as is necessary for a correct knowledge of the system. 
 
 In the present work I have endeavoured to give a concise 
 exposition of the leading doctrines of the Roman law as it 
 
vi PREFACE. 
 
 existed when it reached its highest development in the age 
 of Justinian ; and great pains have been taken to simplify 
 the subject as much as possible, by a systematic arrange- 
 ment, by avoiding all abstruse inquiries of an antiquarian 
 character, and by confining myself to such matters as ap- 
 peared to be useful and instructive. 
 
 At the outset I have introduced an historical sketch of 
 the sources of the Roman law and the political changes in 
 the government, from the foundation of Eome to the acces- 
 sion of Justinian, — of the legislative works of that emperor 
 in the middle of the sixth century, when aU the existing laws 
 and imperial constitutions were revised and consolidated, — 
 of the fate of Justinian's legislation in the East and West, 
 — and, lastly, of the revival of the study of the Roman law 
 in Europe in the twelfth century, and the progress of this 
 department of knowledge from that epoch down to the 
 present time. Then, after a prehminary chapter devoted 
 to a cursory glance at jurispnidence and the principal divi- 
 sions of law, I have given a general exposition of the Roman 
 law, divided into Six Parts, and based principally on Justin- 
 ian's Institutes, but -leaving out some titles which appear to 
 be obsolete or useless, and adding supplementary chapters 
 on various important matters drawn from the Pandects, the 
 Code, and the Novels, as well as from the writings of Gains 
 and other sources. These chapters will be found through- 
 out the book, but chiefly under the Fifth and Sixth Parts. 
 
 To this exposition, which is my chief design, I have 
 added a subordinate one, by drawing some comparisons 
 more or less important between the Roman system and the 
 laws of France, England, and Scotland ; and although these 
 illustrations are imperfect, and compressed within narrow 
 limits, it is hoped they will prove more interesting to the 
 general reader, than if I had followed the example of many 
 previous writers on Roman law, by entering into minute 
 
PREFACE. Vll 
 
 technical details regarding ancient institutions and usages 
 ■which have little or no bearing on modern jurisprudence. 
 
 As to the arrangement of the subjects, a short explana- 
 tion will suflSce. Under Part First, which treats of the 
 Law of Persons, are considered political rights so far as they 
 bear on private law, the legal capacity of individuals for 
 acquiring and disposing of property, the rights which con- 
 cern status and the relations of family, and artificial persons 
 called corporations. 
 
 Patrimonial Eights, sometimes called the Law of Things, 
 are naturally divided into three classes — 1st, What are 
 called by modern jurists Real Rights ; 2d, Rights arising 
 from Obligations ; and, 3d, Rights arising from Succession. 
 These three classes of Rights are successively treated under 
 the Second, Third, and Fourth Parts. 
 
 Actions and Civil Procedure, being the means which the 
 law affords to enforce our rights, are treated under the 
 Fifth Part ; while Criminal Law and Procedure are treated 
 under the Sixth Part ; the concluding chapter being devoted 
 to a short account of the Roman Bar. 
 
 Of the best works on Roman law within my reach I have 
 freely availed myself In Dr Smith's ' Dictionary of Greek 
 and Roman Antiquities' there is a useful series of articles 
 on Roman law, contributed by that accomplished scholar, 
 Mr George Long, to which I am indebted for valuable hints. 
 Among modern foreign jurists, my special acknowledgments 
 are due to MarezoU, Mackeldey, Warnkoenig, Ortolan, De 
 Fresquet, and Charles Maynz — all writers who have earned 
 a high reputation on the Continent, though some of them 
 are less known in this country than they deserve to be. 
 
 On French law, my information has been derived chiefly 
 from the admirable works of Pothier, the modern French 
 Codes, and the Commentaries published thereon, including 
 Pailliet's celebrated ' Manuel du Droit Frangais.' 
 
VIU PREFACE. 
 
 As to English and Scottish law, I hare been guided by 
 those writers who are generally regarded by the legal pro- 
 fession as standard authorities. One book, Mr Paterson s 
 'Compendium of English and Scotch Law,' I found ex- 
 tremely useful in suggesting interesting comparisons between 
 the juridical systems of England and Scotland. 
 
 Notwithstanding the extent and variety of the subjects 
 discussed, I have condensed my materials, so as not to ex- 
 ceed the limits of a moderate octavo volume. This plan, 
 no doubt, has its drawbacks, and precludes the possibility 
 of entering into a multitude of details which will be found 
 in works of higher pretensions ; but the summary I have 
 attempted will probably be better relished by those for 
 whose use it is intended than a bulkier book. For the 
 errors and imperfections which, notwithstanding every an- 
 xiety to prevent them, must inevitably occur in a work of 
 this description, I must throw myself on the indulgence of 
 the reader ; while I venture to express a hope that, with all 
 its defects, the present volume may be found to combine a 
 comprehensive general view of Roman law, with some in- 
 teresting contributions to the difficult science of comparative 
 jurisprudence. 
 
 NOTE TO THE SECOND EDITION. 
 
 A Second Edition of this work having been called for, 
 the Author has taken the opportunity of making some cor- 
 rections, and of introducing some additional matter, chiefly 
 in the Historical Sketch and Preliminary Chapter. He has 
 at the same time to acknowledge his obligations to his 
 friend George Monro, Esquire, Advocate, for his kindness 
 in superintending the revisal of this Edition, and seeing it 
 through the press. 
 
PREFACE. IX 
 
 NOTE TO THE THIED EDITION. 
 
 When the preparation of this Edition was commenced, 
 the learned Author was still in life, but in a state of 
 health which precluded him from taking any share in 
 that labour. In these circumstances, the task of super- 
 intending this Edition was committed to me, I having had 
 charge of the previous Edition. In the discharge of that 
 duty I have received, in the department of French law, 
 the assistance of Mr Patrick Eraser, SheriiF of Renfrew- 
 shire, author of several learned works on Scottish law. 
 In Enghsh law, the notes added in the present Edition 
 have been revised by the Author's brother-in-law, Mr J. 
 0. Jones, Solicitor, Liverpool, who gave valuable aid in 
 the former Editions. 
 
 The Second Edition, although it did not receive Lord 
 Mackenzie's superintendence while passing through the 
 press, was entirely printed, both text and notes, from his 
 own carefuUy - completed manuscript. In the present 
 Edition the whole text and notes of the Second Edition 
 have been exactly reproduced, and the new matter has been 
 introduced in the form of additional notes, distinguished 
 by asterisks, while Lord Mackenzie's own notes are marked 
 by numerals. By those notes the statements as to the 
 laws of France, England, and Scotland have been brought 
 down to the present time. Care has been taken to pre- 
 serve the paging of this Edition almost exactly the same 
 with that of the Second Edition. 
 
 The First Edition of this work was published in 1862, 
 
 and the Second in 1865. The Author died in September 
 
 1869. 
 
 GEOEGE MONEO, Advocate, 
 
 Sheriff of Linlithgow, Clackmannan, and Kinross. 
 Edinbukgh, February 1870. 
 
COJ^TEJ^TS. 
 
 HISTOEICAL SKETCH OF THE EOMAN LAW. 
 
 CHAPTER I. 
 
 HISTOEY OF THE EOMAN LAW DOWN TO JUSTINIAN. 
 
 INTBODUCTION. 
 
 Superiority of Romans in law, 
 Legal history before Justinian, 
 Division into three periods, . 
 
 PAGE 
 I 
 
 2 
 2 
 
 FIEST PEEIOD. 
 PROM THE FOUNDATION OE ROME TO THE TWELVE TABLES. 
 
 Political constitution of Rome, ..... .3 
 
 The law under the kings, ...... 4 
 
 The foundation of the republic, ..... 4 
 
 The law of the Twelve Tables, ..... 5 
 
 SECOND PERIOD. 
 FROM THE TWELVE TABLES TO AUGUSTUS. 
 
 Progress of the plebeians, 
 
 Sources of law during the republic, . 
 
 Laws of the people — leges — plebiscita, 
 
 Decrees of the senate — senatus-consulta, 
 
 Edicts of the magistrates, 
 
 Customary law. 
 
 Responses of jurisconsults, . 
 
 Fall of the republic, . 
 
 7 
 
 7 
 
 7,8 
 
 8 
 
 9 
 
 10 
 
 10 
 
 11 
 
CONTENTS. 
 
 XI 
 
 THIRD PERIOD. 
 FROM AUGUSTUS TO THE ACCESSION OF JUSTINIAN, A.D. 627. 
 
 Transition to absolute monarchy, ..... 12 
 
 New character of Responsa Prudentum, .... 13 
 
 Schools of law after Augustus, ..... 13 
 
 Perpetual Edict, a.d. 131, ...... 14 
 
 Imperial constitutions, ...... 14 
 
 Celebrated jurisconsults after Hadrian, .... 15 
 
 Writings of the jurisconsults, ..... 15 
 
 Institutes of Gains, . . . . . . .15 
 
 Ulpian's Fragments, . . . . . . .16 
 
 Eeceptie Sententise of Paulus, ..... 16 
 
 School of law at Berytus, ...... 16 
 
 Decline of law after Alexander Severus, .... 16 
 
 Political changes under Constantine, . . . .17 
 
 New titles of nobility introduced, ..... 18 
 
 Ordinances on the works of certain jurists, .... 18 
 
 Division of Roman empire, A. D. 395, . . . .19 
 
 Gregorian and Hermogenian Codes, ..... 19 
 
 Theodosian Code, a.d. 438, . . . . . .19 
 
 Fall of the Western empire, A.D. 476, .... 20 
 
 CHAPTER II. 
 
 CONSOLIDATION OF THE ROMAN LAW UNDER JUSTINIAN. 
 
 Justinian's reform of jurisprudence, ..... 22 
 
 Code of imperial constitutions, ..... 22 
 
 The Pandects, A. D. 533, ...... 23 
 
 Composed of extracts from thirty-nine jurists, ... 24 
 
 Divisions of books and titles, ..... 24 
 
 Arrangement defective, ...... 25 
 
 The Institutes, A.D. 53.3, ...... 25 
 
 Novels of Justinian, A. D. 535 to 565, .... 26 
 
 Corpus Juris Civilis, ....... 27 
 
 Antinomies or contradictions, ..... 28 
 
 Mode of citing Roman law, ...... 28 
 
 Opinions on Justinian's works, ..... 29 
 
 CHAPTER III. 
 
 FATE OF THE ROMAN LAW AFTER JUSTINIAN, AND REVIVAL OF 
 THE STUDY IN EUROPE. 
 
 Destiny in the East, ....... 30 
 
 Greek translations, 
 
 Basilica, 
 
 Works of Byzantine jurists, 
 Destiny in the West, 
 Legal codes in the West, . 
 Roman law never wholly unknown, 
 
 30 
 30 
 31 
 31 
 31 
 32 
 
Xll 
 
 CONTENTS. 
 
 Revival of Roman law in Europe, 
 School of Bologna, . 
 Scholastic jurists, . 
 French school in sixteenth century, 
 Anti-Tribonianus of Hotman,' 
 School of the Netherlands, 
 Heinecoius and Bach, 
 Pothier's Pandects, 
 Civilians in Britain, 
 Historical school of Germany, 
 
 P4GE 
 
 33 
 33 
 34 
 34 
 35 
 36 
 36 
 37 
 39 
 41 
 
 PEELIMII^ARY CHAPTER. 
 
 ON JDRISPBUDENCE AND THE PRINCIPAL DIVISIONS OF LAW. 
 
 Jurisprudence defined, ...... 
 
 44 
 
 Justice natural and legal, ...... 
 
 45 
 
 Relations of positive law and morality, . . . . 
 
 45 
 
 Principal divisions of law, ...... 
 
 46 
 
 I.— Divine positive law, ...... 
 
 46 
 
 II. — Natural law, ....... 
 
 47 
 
 Roman notions of natural law, . . . . 
 
 47 
 
 Opinions of Grotius and other writers. 
 
 47 
 
 Modern theories of German writers. 
 
 49 
 
 III. — Positive law of different states. 
 
 50 
 
 Diversities of law in different states. 
 
 50 
 
 Many positive rules arbitrary, 
 
 50 
 
 Moral obligation of positive law, . 
 
 51 
 
 Imperfections in all legal systems, . 
 
 51 
 
 Positive law written and unwritten. 
 
 52 
 
 Public and private law, .... 
 
 53 
 
 Division of private law according to subjects. 
 
 54 
 
 English system of equity, .... 
 
 55 
 
 IV. — International law, ..... 
 
 56 
 
 Private international law, .... 
 
 57 
 
 Public international law, .... 
 
 58 
 
 Pacific rights of nations, .... 
 
 59 
 
 Bights of war, ..... 
 
 60 
 
 Civil war, ...... 
 
 61 
 
 Rules of war, ..... 
 
 61 
 
 Maritime rights, ..... 
 
 63 
 
 Declaration of Paris, 16th April 1856, 
 
 64 
 
 Law of blockade, . . 
 
 66 
 
 Law of contraband, .... 
 
 67 
 
 Affair of the Trent, .... 
 
 68 
 
 Neutral territory, ..... 
 
 70 
 
 PubUo treaties, ..... 
 
 70 
 
 Classification of diplomatic agents. 
 
 71 
 
COISTTENTS. 
 
 xm 
 
 EXPOSITION OF THE EOMAN LAW; 
 
 WITH 
 
 COMPAEATIVE VIEWS OF THE LAWS OF FRANCE, 
 ENGLAXD, AND SCOTLAND. 
 
 PAET I. 
 OF THE LAW OP PEESONS. 
 
 CHAPTER I. 
 
 OF PERSONS IN GENERAL. 
 
 Persons and status, 
 Juridical persons, 
 
 PAGE 
 
 75 
 76 
 
 CHAPTEB II. 
 
 OP THE CIVIL CAPACITY OF PERSONS. 
 Differences in legal capacity, 
 Civil status in its different aspects, . 
 Loss of status — capitis diminutio. 
 
 77 
 79 
 80 
 
 CHAPTER III. 
 
 OP CITIZENS AND FOREIGNERS. 
 
 I. — KOMAN LAW, 
 
 Roman citizens. 
 
 Position of foreigners. 
 
 Citizenship made general under Caracalla, 
 
 How citizenship acquired and lost, , 
 
 Personal distinctions — nobles, 
 
 Civil honour, .... 
 
 Religion as affecting civil rights. 
 
 n. — rHENCH LAW OF CIVIL EIGHTS. 
 
 Before 1789 no equality of civil rights. 
 
 Equality of civil rights under Code, 
 
 Who are held French subjects, .... 
 
 Rights of foreigners in France, .... 
 
 in. — BBITISH LAW ON SUBJECTS AND ALIENS. 
 
 Who are held British subjects. 
 Rights of foreigners in Britain, 
 
 81 
 82 
 83 
 84 
 84 
 85 
 86 
 
 87 
 87 
 88 
 
 89 
 89 
 
XIV 
 
 CONTENTS. 
 
 Naturalisation, how obtained, 
 Discordant views as to allegiance, 
 
 PAGE 
 
 89 
 90 
 
 CHAPTER IV. 
 
 OF SLAVERr. 
 
 How slavery arose. 
 Condition of slaves at Rome, 
 Coloni or serfs, 
 Enfranchisement, 
 Slavery in modern ^mes. 
 
 91 
 92 
 93 
 94 
 96 
 
 CHAPTER V. 
 
 OF MARRIAGE. 
 I. — ROMAN LAW. 
 
 Nature of marriage, . 
 
 Marriage with or without manits, 
 
 Three ancient forms, 
 
 Sponsalia, 
 
 How marriage contracted, 
 
 Impediments to marriage, 
 
 Father's consent, when necessary. 
 
 Celibacy and concubinage, 
 
 Effects of Boman marriage, . 
 
 Dos and Donatio propter nuptias. 
 
 Donations between husband and wife. 
 
 How far marriage a religious ceremony. 
 
 II. — FRENCH LAW OF MARRIAGE. 
 
 How marriage contracted in France, 
 
 Marriage contracts, ..... 
 
 Rules affecting marriage in Civil Code, 
 
 III. — ENGLISH LAW OF MARRIAGE. 
 
 After Council of Trent, presence of clergyman required, 
 
 English Marriage Acts, 
 
 Where marriage must be celebrated. 
 
 Ceremony of marriage. 
 
 Marriage of minors, . 
 
 Marriages out of England, 
 
 Wife's power to sue. 
 
 Effects of marriage on property of spouses. 
 
 Rights of wife on husband's death, . 
 
 IV.— SCOTTISH LAW OF MARRIAGE. 
 
 Marriage contracted by mutual consent. 
 
 Regular marriage, ..... 
 
 Irregular marriages, ..... 
 
 97 
 
 98 
 
 98 
 
 99 
 
 99 
 
 99 
 
 101 
 
 101 
 
 102 
 
 103 
 
 104 
 
 104 
 
 105 
 106 
 107 
 
 107 
 107 
 108 
 108 
 108 
 109 
 110 
 110 
 110 
 
 111 
 112 
 112 
 
CONTENTS. 
 
 XV 
 
 Gretna Green marriages, 
 
 Declarator of putting to silence, 
 
 Powers of married women, 
 
 Effect of marriage on property of spouses, 
 
 Conjugal Eights Act of 1861, 
 
 Bights of wife on husband's death, . 
 
 Proprietary powers of married women in Britain, 
 
 PAQB 
 
 114 
 114 
 115 
 115 
 116 
 118 
 118 
 
 CHAPTER VI. 
 
 OP DIVORCE. 
 1. — ROMAN LAW. 
 
 Divorce always existed at Eome, 
 Imperial laws to restrain practice. 
 No judicial sentence required. 
 
 IT. — ^FRENCH LAW. 
 
 Divorce allowed after Revolution, 
 Grounds of divorce under Code Civil, 
 Divorce abolished in 1816, 
 
 III. — ENGLISH LAW. 
 
 Prior to 1858 no divorce allowed. 
 Divorce now sanctioned under statute. 
 Judicial separation, a mensa et ton, . 
 
 IV. — SCOTTISH LAW. 
 
 Divorce for adultery and wilful desertion for four years. 
 
 Husband and wife have equal rights. 
 
 Effects of divorce, ..... 
 
 119 
 120 
 120 
 
 121 
 121 
 121 
 
 122 
 122 
 123 
 
 124 
 124 
 125 
 
 CHAPTER Vn. 
 
 OF THE LEGITIMATION OF NATUBAL CHILDEEN. 
 Legitimation by subsequent marriage. 
 Applied only to children of concubines, 
 Two other kinds of legitimation, 
 Extended to bastards by canon law, . 
 No legitimation by English law. 
 Admitted by French and Scottish law. 
 
 126 
 127 
 127 
 127 
 127 
 128 
 
 Adoption of two kinds, 
 Conditions of adoption, 
 Effects of adoption, . 
 Adoption in France, . 
 No adoption in Britain, 
 
 CHAPTER VIII. 
 
 OF ADOPTION. 
 
 130 
 
 130 
 132 
 133 
 
 134 
 
XVI 
 
 CONTENTS. 
 
 CHAPTER IX. 
 
 OF PATERNAL POWEB. 
 
 I. — KOMAN LAW. 
 
 Nature of paternal power, 
 
 Effects on person and property of children, 
 
 Different kinds of peculium, . 
 
 Public -rights not affected by paternal powerj 
 
 Notion of the Boman family. 
 
 Agnates and cognates. 
 
 How paternal power ceased. 
 
 II. — FKENCH LAW. 
 
 Beciprocal obligations to support, 
 
 Powers of father till majority or emancipation, 
 
 PAGE 
 
 135 
 136 
 137 
 138 
 138 
 138 
 139 
 
 140 
 141 
 
 III. — ENGLISH LAW. 
 
 Eather guardian tominor children, . 
 His power to appoint guardian, 
 Testamentary power of the father, . 
 Illegitimate children, 
 
 IV. — soottAh law. 
 
 Father administrator-in-law to minor children, 
 Power of father over minor pubes, . 
 Beciprocal obligations to support. 
 Illegitimate children, 
 
 141 
 142 
 142 
 143 
 
 143 
 144 
 145 
 145 
 
 OHAPTEE X 
 
 OF TUTORS AND CURATORS. 
 I. — KOMAN LAW. 
 
 Guardianship defined, .... 
 
 Ancient tutory of women, .... 
 Tutory of pupils, ..... 
 Three kinds of tutors — testamentary, at law, and dative. 
 Powers and duties of tutors. 
 
 Termination of tutory, .... 
 
 Curators to minors, to insane persons, and ad litem, 
 Bestitution of minors, .... 
 
 Guardians in Prance, 
 
 Guardians in England, 
 
 IL — FRENCH LAW. 
 
 III.— ENGLISH LAW. 
 
 146 
 
 146 
 147 
 148 
 148 
 149 
 150 
 151 
 
 162 
 
 153 
 
CONTENTS. 
 
 XVll 
 
 IV. — SCOTTISH LAW. 
 
 Gruardians named by father, . 
 Curators chosen by minors, . 
 Powers and duties of guardians, 
 
 PAGE 
 
 153 
 154 
 154 
 
 CHAPTER XI. 
 
 OF COKPOEATIONS 
 
 -ROMAN LAW. 
 
 Nature of corporations, 
 Corporate powers and privileges, 
 How corporation may terminate. 
 Special corporate bodies, 
 Public treasury or fisc, 
 
 II. — ENGLISH AND SCOTTISH LAW. 
 
 English corporations aggregate or sole. 
 
 Corporation creditor cannot sue individuals. 
 
 Seals of cause in Scotland, .... 
 
 155 
 155 
 157 
 157 
 157 
 
 158 
 158 
 159 
 
 PAET II. 
 OF THE LAW RELATING TO EEAL EIGHTS. 
 
 CHAPTER I. 
 
 
 OF THE DIVISION OF THINGS. 
 
 
 Things corporeal and incorporeal, .... 
 
 161 
 
 Things hot in commerce, ..... 
 
 161 
 
 Things common and public, ..... 
 
 162 
 
 Corporation property, ..... 
 
 163 
 
 Things sacred, religious, and holy, .... 
 
 163 
 
 Things movable and immovable, .... 
 
 163 
 
 Description of real rights, ..... 
 
 164 
 
 CHAPTER IL 
 
 
 OF PROPERTY IN GENERAL. 
 
 
 Nature of property, ....•• 
 
 165 
 
 Jus in re and jus ad rem, ..... 
 
 165 
 
 Res mancipi and res nee mancipi, .... 
 
 166 
 
 Jus Italicum, ...-.•• 
 
 167 
 
 CHAPTER III. 
 
 OF THE DIFFERENT MODES OF ACQUIRING PROPERTY. 
 Acquisition by occupancy, ..... 
 Wild animals, ...••• 
 
 b 
 
 168 
 16S 
 
xvm 
 
 CONTENTS. 
 
 Inanimate objects ;— treasure-trove, 
 
 Prize of war, . 
 
 Acquisition by accession. 
 
 Specification, . 
 
 Commixtion, . 
 
 Tradition, 
 
 CHAPTER IV. 
 
 OF POSSESSION. 
 
 Legal effects of possession, 
 
 When bona fide possessor entitled to fruits. 
 
 PAGB 
 
 170 
 170 
 171 
 172 
 173 
 173 
 
 175 
 175 
 
 CHAPTER V. 
 
 OF PREDIAL SERVITUDES. 
 
 General character of servitudes. 
 Servitudes rural and urban, . 
 How acquired and lost. 
 
 177 
 178 
 179 
 
 CHAPTER VI. 
 
 OP USUFRUCT, USB, AND HABITATION. 
 Nature of usufruct, . 
 Rights and obligations of usufructuary, 
 Usus defined, 
 
 Habitatio, .... 
 Operae servorum et animalium. 
 
 181 
 181 
 182 
 183 
 183 
 
 CHAPTER VII. 
 
 OF EMPHYTEUSIS AND SUPERFICIES. 
 Nature of emphyteusis, .... 
 
 Nature of superficies, .... 
 
 184 
 185 
 
 CHAPTER VIII. 
 
 t)F PRESCRIPTION. 
 I. — KOMAN LAW. 
 
 General nature of prescription, 
 Prescription in Justinian's time, 
 Prescription of 30 and 40 years. 
 Effect of interruptions, 
 Suspended during minority, . 
 
 II. — MODEBN LAW. 
 
 French law of prescription, . 
 
 English law of prescription or limitation, 
 
 Scottish law of prescription. 
 
 Conflict of laws as regards prescription, 
 
 186 
 186 
 187 
 187 
 188 
 
 188 
 189 
 191 
 192 
 
CONTENTS. 
 
 XIX 
 
 PAET III. 
 OF THE LAW OF OBLIGATIONS. 
 
 CHAPTER I. 
 
 OF OBLIGATIONS IN GENERAL. 
 
 I. — KOMAN LAW. 
 
 Nature of obligations, 
 Natural and civil, 
 Contracts, 
 Nudum pactum, 
 Bequisites of obligations, 
 Obligations pure or conditional. 
 Material contents of obligations, 
 Theory of responsibility for fault, 
 Sources of obligations, 
 Different classes of contracts, 
 
 n. — ENGLISH LAW. 
 
 Peculiarities of Englisb system, 
 
 Judgment debts. 
 
 Contracts under seal. 
 
 Simple contracts, 
 
 Simple contract requires consideration, 
 
 in. — INTEBNATIONAL LAW. 
 
 Lex loci contractus, and lex loci solutionis, . 
 Negotiable instruments. 
 
 PAGE 
 
 194 
 194 
 195 
 195 
 195 
 196 
 197 
 197 
 200 
 200 
 
 200 
 201 
 201 
 201 
 201 
 
 202 
 202 
 
 CHAPTER II. 
 
 
 OF EBAl CONTRACTS. 
 
 
 Sect. 1. — Loan. 
 
 
 Commodate — loan for use, .... 
 
 204 
 
 Gratuitous contract, ..... 
 
 204 
 
 Obligations of borrower, .... 
 
 205 
 
 Mutuum — loan for consumption. 
 
 205 
 
 Obligation to pay interest at Rome, 
 
 206 
 
 Interest in tbis country, .... 
 
 207 
 
 Sect. 2.— Deposit. 
 
 
 Nature and effects of deposit. 
 
 209 
 
 Necessary deposit, ..... 
 
 209 
 
 Sequestration, ..... 
 
 209 
 
 Responsibility under edict Nautae Caupones, 
 
 210 
 
 Sect. 3.— Pledge. 
 
 
 Nature of pledge, ..... 
 
 212 
 
 Pledge covers debt, interest, and costs, 
 
 213 
 
XX 
 
 CONTENTS. 
 
 Power of sale, 
 Expiry of pledge, 
 Tacit hypothecs, 
 
 Their different kinds. 
 
 Sect. 4. — Innominate Contracts. 
 
 PAOB 
 
 213 
 214 
 214 
 
 214 
 
 CHAPTER III. 
 
 
 or OBLIGATIONS CONTRACTED BT WORDS OR WRITING. 
 
 
 Stipulations, ....... 
 
 216 
 
 Cautionary obligations, ..... 
 
 216 
 
 Obligations in writing, ..... 
 
 217 
 
 English doctrine as to consideration. 
 
 218 
 
 Does not hold in Scotland, .... 
 
 218 
 
 CHAPTER IV. 
 
 OF CONTRACTS PERFECTED BY CONSENT ALONE. 
 
 Sect. I.— Sale. 
 
 L — KOMAN LAW. 
 
 Nature and form of contract, 
 What may be sold, . 
 Price, ... 
 
 Lsesio ultra dimidium. 
 Vendor's warranty against faults. 
 Obligation of delivery. 
 Bisk of things sold, . 
 Special conditions in sale. 
 Warranty against eviction, . 
 How sale rescinded, . 
 
 n. — ENGLISH AND SCOTTISH LAW. 
 
 Statute of Frauds, ..... 
 Rules as to the passing of property, . 
 Warranty against defects, .... 
 Stolen goods, ...... 
 
 Sect. 2. — Contract of Hiring. 
 Nature of contract, . 
 Hiring of things, , 
 
 Leases of lands and houses, 
 
 Obligations of lessor. 
 
 Obligations of lessee. 
 
 Tacit relocation, 
 Hiring of work or services, . 
 
 Sect. 3. — Partnership. 
 
 L — ROMAN LAW. 
 
 How partnership constituted. 
 Rights of partners. 
 
 219 
 219 
 220 
 220 
 220 
 221 
 221 
 222 
 222 
 222 
 
 223 
 223 
 224 
 
 224 
 
 225 
 225 
 225 
 225 
 225 
 226 
 227 
 
 228 
 228 
 
COKTENTS. 
 
 XXI 
 
 Liabilities of partners, .... 
 
 Dissolution, ...... 
 
 II. — FRENCH LAW. 
 
 Different kinds of partnership in France, 
 
 ni.— ENGLISH AND SCOTTISH LAW. 
 
 In England company not a separate person, 
 
 In Scotland rule different, .... 
 
 Joint-stock companies, .... 
 
 Sect. 4. — Mandate. 
 
 K'ature of mandate, . 
 Powers of mandatary. 
 How mandate terminated. 
 Case of Cogga v. Bernard, 
 
 PAGK 
 
 228 
 229 
 
 229 
 
 230 
 230 
 231 
 
 232 
 232 
 233 
 233 
 
 CHAPTER V. 
 
 OF DONATIONS. 
 1. — ROMAN LAW. 
 
 Nature of donation, . 
 Cincian law, . 
 Eegistered donations, 
 Eevocable for ingratitude. 
 Donatio mortis causa, 
 
 French rules as to donations, 
 
 II. — FRENCH LAW. 
 
 234 
 234 
 2.35 
 235 
 236 
 
 236 
 
 CHAPTER VI. 
 
 OF OBLIGATIONS ARISING FROM QUASI CONTRACTS. 
 Nature of quasi contracts, 
 Negotiorum gestio defined, . 
 
 Obligations of the agent, . 
 
 Obligations of the principal, 
 Indebiti solutio defined, 
 
 Conditions required for restitution. 
 
 Does error in law entitle to restitution ? 
 
 Controversy among civilians, 
 
 French law on this point, . 
 
 English and Scottish law, . 
 Lex Bhodia de Jactu, 
 
 237 
 237 
 237 
 238 
 238 
 238 
 238 
 238 
 239 
 240 
 240 
 
 CHAPTER VII. 
 
 OF OBLIGATIONS EX DELICTO AND QUASI EX DELICTO. 
 
 Rights from delicts. 
 Theft and robbery, 
 
 242 
 242 
 
xxu 
 
 CONTENTS. 
 
 Damnnin et injuria, ..... 
 Damage done by slaves and animals, 
 
 CHAPTER VIII. 
 
 OF THE TRANSFER OF OBLIGATIONS. 
 Form and effects of transfer, .... 
 
 PAET IV. 
 OF THE LA.WS OP SUCCESSION. 
 
 PAOE 
 
 243 
 244 
 
 246 
 
 Anastasian law, 
 
 
 
 
 247 
 
 CHAPTER IX. 
 
 EXTINCTION OF OBLIGATIONS. 
 
 Payment or prestation, 
 [ndeiinite payments, . 
 Performance sometimes impossible, . 
 
 
 
 
 248 
 249 
 249 
 
 Nature and requisites of compensation. 
 Novation and delegation. 
 Extinction by confusion. 
 Nature of acoeptilation, 
 Pactum de non petendo. 
 Discharges, .... 
 
 
 
 
 249 
 251 
 251 
 252 
 252 
 252 
 
 CHAPTER I. 
 
 OF SUCCESSION IN GENERAL. 
 
 Succession, testamentary and legal, . 
 Hereditas denotes the whole succession, 
 Bonorum possessio, .... 
 Classes of heirs, .... 
 
 Time for deliberation, and benefit of inventory. 
 
 253 
 253 
 254 
 254 
 255 
 
 CHAPTER II. 
 
 OF SUCCESSION BY TESTAMENT. 
 I.— EOMAN LAW. 
 
 Persons capable of making a wiU, 
 Ancient forms, 
 
 Wills in writing, and nuncupative, 
 Privileged wills. 
 Law as to disherison. 
 Institution of heirs, . 
 Accretion among co-heirs, 
 Komau substitutions, . 
 
 257 
 257 
 258 
 258 
 259 
 260 
 261 
 261 
 
CONTENTS. 
 
 XXllX 
 
 II. — PEBNOH LAW. 
 
 Forma of wills in France, 
 
 III. — ENGLISH AND SCOTTISH LAW. 
 
 Sect. 1. — English Statute of Wilh. 
 
 English will carries real and personal estates. 
 Form of execution, ..... 
 Holograph wills unattested not valid. 
 No will by minor eflFectual, .... 
 Will revoked by marriage, .... 
 
 Sect. 2. — How Testamentary Deeds executed in Scotland. 
 A Scottish win carries only personal estate, 
 Form of executing testamentary deeds, 
 A minor or married woman can make a will, 
 
 Sect. 3. — Recent Ads as to Wills by British Subjects- 
 Act as to wills by British subjects, abroad or in this country. 
 Prospective Act to regulate domicile, 
 
 FAOE 
 
 262 
 
 263 
 263 
 263 
 
 264 
 264 
 
 264 
 264 
 264 
 
 264 
 266 
 
 CHAPTER III. 
 
 OF LIMITATIONS OF TESTAMENTARY POWEBS. 
 
 L — ROMAN LAW. 
 
 By Twelve Tables testamentary powers unlimited, 
 Falcidian portion, or one-fourth reserved to heir, 
 Legitim to children and parents, 
 Legitim increased by Justinian, 
 Challenge of testament as undutiful, 
 When challenge excluded, . 
 
 n. — PEBNCH LAW. 
 
 Limits of testamentary power. 
 
 IIL — ENGLISH AND SCOTTISH LAW. 
 
 In England testamentary power unlimited, . 
 In Scotland same, if no wife or issue. 
 The widow of Scotsman entitled to jus relictse, 
 And his chUdreu entitled to legitim, 
 
 267 
 267 
 267 
 268 
 269 
 270 
 
 270 
 
 270 
 270 
 270 
 270 
 
 CHAPTER IV. 
 
 OF i'lDEI-COMMISSA OR BEQUESTS IN TRUST. 
 
 Trusts at first precarious. 
 Obligations of trustee, 
 Fegasian portion, 
 Trust of a particular thing. 
 
 272 
 273 
 273 
 
 274 
 
XXIV 
 
 CONTENTS. 
 
 CHAPTER V. 
 
 HOW TESTAMENTS ARE REVOKED OR ANNULLED. 
 I. — ROMAN LAW. 
 
 Will null ab initio, ...... 
 
 Win revocable by testator, . ... 
 
 How wills annulled, .... 
 
 IL — MODERN LAW. 
 
 How wills revoked in France, 
 How wiUs revoked in Britain, 
 
 PAGE 
 
 275 
 275 
 275 
 
 276 
 276 
 
 CHAPTER VI. 
 
 OF LEGACIES. 
 
 L^ — ROMAN LAW. 
 Nature of legacy. 
 What may be bequeathed, . 
 General bequest and specific legacy, . 
 Accretion among legatees. 
 Errors in name or description, 
 Legacy falls by predecease of legatee. 
 Legacies pure and conditional. 
 Revocation of legacies, 
 
 n. — ENGLISH LAW. 
 
 Direction in Statute of WiUs as to provisions in favour of issue, 
 
 in. — SCOTTISH LAW. 
 
 Rules as to vesting and lapsing of legacies, . 
 
 277 
 277 
 278 
 279 
 280 
 280 
 280 
 281 
 
 281 
 
 282 
 
 CHAPTER VII. 
 
 OF ROMAN INTESTATE SUCCESSION. 
 
 Intestacy defined, 
 
 Relationship, .... 
 
 Full blood and half blood, . 
 
 Intestate succession by Twelve Tables, 
 
 Harshness of these rules, 
 
 Changes under Pnetorian law, 
 
 Collatio bonorum, 
 
 intestate succession under Justinian, 
 
 (Jeneral rules established by the 118th and 127th Novels, 
 
 No distinction between real and personal estates. 
 
 No preference of males over females. 
 
 Agnates and cognates called equally, 
 First class, — descendants. 
 
 Among descendants representation in infinitum, 
 
 Case where grandchildren take alone. 
 
 283 
 283 
 284 
 284 
 285 
 285 
 285 
 286 
 286 
 286 
 286 
 286 
 287 
 287 
 287 
 
CONTENTS. 
 
 XXV 
 
 Second class, — ascendants with or without collaterals, 
 
 Ascendants alone, . . . . 
 
 Ascendants along with brothers and sisters. 
 
 And also with children of deceased brother or sister, 
 Succession of collaterals. 
 
 Brothers and sisters german. 
 
 Nephews, . 
 
 Half brothers and sisters, . 
 
 Other relations nearest in degree, 
 Special cases of succession, . 
 
 Husband and wife, . 
 
 Natural children, . 
 
 Treasury ultimus haeres, . 
 
 PAGE 
 
 288 
 288 
 288 
 289 
 290 
 290 
 290 
 290 
 291 
 291 
 291 
 291 
 292 
 
 CHAPTER VIII. 
 
 OF INTESTATE STTCCESSION IN FKANCB, ENGLAND, AND SCOTLAND. 
 
 I. — FRENCH LAW. 
 
 No distinction between real and personal estates, . 
 
 No primogeniture, and no preference of males over females, 
 
 Rules of intestacy fixed by Civil Code, 
 
 n. — ENGLISH LAW. 
 
 Descent to lands under Inheritance Act, 
 
 Canons of descent, ..... 
 
 Distribution of personal estate in England, . 
 
 Descendants and widow, .... 
 
 Kelations on father's and mother's side share equally, 
 
 Heir has share in personal property, 
 
 Husband's rights to wife's eflfects, ... 
 
 Eights of widow, ..... 
 
 Rights of father and mother, ... 
 
 Brothers preferred to grandfather, . 
 
 Half brothers and sisters share equally with fuU blood, 
 
 m. — SCOTTISH LAW. 
 
 Succession to lands, ..... 
 Heirs of line, ...... 
 
 Descendants preferred, .... 
 
 Failing them, brothers and sisters and their descendants, 
 
 Father's rights, ..... 
 
 Mother and relations through her excluded, 
 
 Eight of representation in succession to lands, 
 Heirs of conquest, 
 
 Distribution of personal estate in Scotland, 
 State of law prior to 18 Vict. c. 23, . 
 Exclusion of relations on mother's side. 
 Rules of intestate succession now in force, 
 
 Descendants called first, . 
 
 Rights of father and mother, 
 
 293 
 293 
 293 
 
 294 
 295 
 296 
 296 
 296 
 296 
 298 
 298 
 298 
 299 
 299 
 
 299 
 299 
 300 
 300 
 300 
 300 
 301 
 301 
 301 
 301 
 302 
 302 
 302 
 302 
 
XXVI 
 
 CONTENTS. 
 
 Brothers and sisters, 
 
 Full blood excludes half, 
 
 Bights of brothers and sisters uterine. 
 Collation by heir-at-law, 
 Widow's jus relictsa and children's legitim, 
 
 PAGE 
 
 303 
 303 
 303 
 304 
 304 
 
 PAET V. 
 
 OF ACTIONS AND PBOCEDUBE. 
 
 CHAPTER I. 
 
 OF MAGISTRATES AND JUDGES IN CIVIL SUITS. 
 
 Jurisdiction and competency, ..... 306 
 
 Judges in civil causes during the republic, .... 307 
 
 Jurisdiction of the praetor, .... . . 307 
 
 Powers of Judex, Arbiter, and Becuperatores, . . . 309 
 
 Centumviral court, ....... 310 
 
 Changes in judicial system under the empire, . . . 312 
 
 Powers of the Emperors, ...... 313 
 
 Praetorian prefects and prefects of the city, .... 313 
 
 Italy and the provinces, ...... 313 
 
 Judices pedanei, ....... 314 
 
 Changes under Constantine, ...... 314 
 
 CHAPTER II. 
 
 MODE OF PROCEDURE IN CIVIL ACTIONS, 
 
 Three periods of civil procedure, 
 
 1. Actions of the law, 
 
 2. Formulary system. 
 
 Parts of formula. 
 
 Formulary system abandoned, a.d. 294, 
 
 3. Extraordinary system after Diocletian, . 
 
 315 
 315 
 317 
 317 
 319 
 319 
 
 CHAPTER III. 
 
 DIFFERENT KINDS OP ACTIONS, 
 
 Actions real and personal. 
 Civil and prsetorian, . 
 Penal actions, . 
 Bonae fidei et stricti juris, 
 Limitation of actions, 
 
 CHAPTER IV. 
 
 OF INTERDICTS. 
 
 Nature of interdict, .... 
 Effect of possession, .... 
 
 321 
 322 
 322 
 322 
 323 
 
 324 
 324 
 
CONTENTS. 
 
 XXVll 
 
 Different kinds of interdicts, 
 Uti possidetis et utrubi, 
 Unde vi, . . . 
 
 English and Scottish htw. 
 
 FAOE 
 
 324 
 325 
 325 
 326 
 
 CHAPTER V. 
 
 OF DEFENCES AND OTHER PLEADINGS. 
 Defences and exceptions, .... 
 Exceptions dilatory and peremptory, 
 Beplication and duplication, .... 
 litis-contestation, ..... 
 
 327 
 327 
 328 
 328 
 
 CHAPTER VI. 
 
 OF EVIDENCE 
 
 
 
 
 
 Onus probandi, 
 
 Proof by writing and witnesses, 
 Eecent changes in British law, 
 Reference to oath. 
 
 
 
 
 330 
 330 
 331 
 332 
 
 Adopted in France and Scotland, 
 
 
 
 
 332 
 
 Oath in litem, 
 
 Also adopted in France and Scotland, 
 
 
 
 
 333 
 333 
 
 Presumptions, 
 
 
 
 
 333 
 
 CHAPTER VII. 
 
 OF JUDGMENTS AND THEIR EXECUTION. 
 I. — ROMAN LAW. 
 
 Judgments interlocutory or final, 
 
 Execution on judgments in early times. 
 
 Execution under new law, .... 
 
 II MODERN LAW. 
 
 Execution in France, England, and Scotland, 
 
 335 
 335 
 337 
 
 337 
 
 CHAPTER VIII. 
 
 OF APPEALS. 
 
 During republic no ajjpeal in civil suits. 
 Appeals competent under empire. 
 
 339 
 339 
 
 Cessio bonorum, 
 Not a release of debts, 
 Future property attachable, . 
 Cessio in France and Scotland, 
 
 CHAPTER IX. 
 
 OF INSOLVENCY AND CESSIO BONORUM. 
 
 341 
 341 
 341 
 341 
 
XXVUl 
 
 CONTENTS. 
 
 PART VI. 
 OF CRIMINAL LAW AND PROCEDURE. 
 
 CHAPTER I. 
 
 OF CRIMINAL COURTS. 
 
 Criminal jurisdiction of kings and consuls, 
 
 Senate as a criminal court, 
 
 Criminal jurisdiction of the Comitia, . 
 
 Standing criminal commissions — q 
 Presiding judge at trial, . . . • 
 
 How jurors chosen, . . . • 
 
 Criminal jurisdiction of imperial magistrates, 
 
 CHAPTER II. 
 
 PROCEDURE IN CRIMINAL TRIALS. 
 
 Authority to prosecute, .... 
 
 Accusation, ...... 
 
 Trial, verdict, and judgment, 
 
 CHAPTER III. 
 
 OF CRIMES. 
 
 Nature of crimes, ..... 
 Crimes private and public, .... 
 Ordinary and extraordinary. 
 Character of Roman criminal system, 
 
 I. — OrrBNCBS AGAINST THE STATE. 
 
 Treason — perduellio, crimen Icesce majestatis, 
 
 Trials for treason after death. 
 
 Public and private force, .... 
 
 Extortion — crimen repetundarum, 
 
 Embezzlement of public property — pecidatus, 
 
 Bribery — ambitus, ..... 
 
 II. — OFFENCES AGAINST INDIVIDUALS. 
 
 Homicide, its different kinds. 
 
 Murder and parricide, .... 
 
 'Kidnapping— plagium, .... 
 
 Adultery, ...... 
 
 Rape — raptus muUerum, .... 
 
 Forgery and falsehood — crimen falsi, 
 
 Extinction of crimes, .... 
 
 CHAPTER IV. 
 
 PUNISHMENTS IN THE ROMAN LAW. 
 Fine and imprisonment, .... 
 
 Scourging and retaliation, .... 
 Penal servitude, ..... 
 
 riGB 
 343 
 344 
 345 
 347 
 348 
 349 
 349 
 
 351 
 351 
 352 
 
 353 
 353 
 353 
 354 
 
 354 
 355 
 357 
 357 
 358 
 359 
 
 360 
 360 
 361 
 362 
 362 
 363 
 364 
 
 365 
 366 
 367 
 
CONTENTS. 
 
 XXIX 
 
 Banishment — interdiction of fire and water, 
 
 Beportation and relegation, . 
 
 Death ; different modes of capital execution* 
 
 PAGE 
 
 367 
 368 
 368 
 
 CHAPTER V. 
 
 OF THE CRrMINAL LAW OF PRANCE AND BRITAIN. 
 I. — PKENCH CEIMINAL LAW. 
 
 Criminal system, . . . . . , .371 
 
 Trial by jury, •••.... 372 
 
 Principal punishments now in force, ..... 372 
 
 Ancient capital punishments, ..... 372 
 
 Guillotine, ........ 373 
 
 Recent improvements in penal system, .... 373 
 
 II.— BRITISH CRIMINAL LAW. 
 
 Classification of crimes, ...... 373 
 
 How prosecuted, ....... 374 
 
 Verdict of jury, ....... 375 
 
 Trials for treason, ....... 375 
 
 Principal punishments now in force, ..... 376 
 
 Ancient penal system, ...... 376 
 
 Capital offences greatly reduced, ..... 379 
 
 Penal servitude substituted for transportation, . . . 379 
 
 CHAPTER VI. 
 
 OF THE ROMAN BAB. 
 First pleaders were patrons, . 
 Advocates under empire, 
 Costume of the bar, . 
 Duration of pleadings. 
 Number of counsel in a cause, 
 Remuneration of pleaders, 
 Honoraries ultimately authorised. 
 Age of admission to bar, 
 Course of study and public examination. 
 Advocates a corporation, 
 General style of the Roman bar, 
 Orators before Cicero, 
 Crassus and Mark Antony, . 
 Orators of Cicero's age, 
 Cicero and Hortensius, 
 Calvus and Asinius Pollio, 
 Decline of eloquence after Cicero, 
 Domitius Afer, 
 Pliny the younger, 
 Apuleius, 
 Qualifications required for the bar, 
 
 381 
 381 
 382 
 382 
 383 
 384 
 385 
 387 
 387 
 387 
 388 
 388 
 388 
 389 
 389 
 392 
 393 
 393 
 394 
 395 
 395 
 
AUTHOES CITED OR CONSULTED. 
 
 Addison (C. G., Bamster-at-Law), Treatise on the Law of Contracts, 8vo, 
 5th edit., London, 1862. 
 
 Amot (Hugo), Criminal Trials in Scotland, 4to, Edinbtu^h, 1785. 
 
 Aulus Gellius, Noctes Atticae, 8vo. 
 
 Austin (John, Barrister-at-Law), The Province of Jurisprudence Deter- 
 mined, 8vo, 2d edit., London, 1860. 
 
 Outline of Lectures on General Jurisprudence, 1832. 
 
 Lectures on Jurisprudence, 3 vols., 1863. 
 
 Baniton (Lord), Institute of the Laws of Scotland in Civil Rights, 3 vols. 
 
 folio, 1751. 
 Beaufort (Louis de), Histoire de la Rdpuhlique Eomaine, ou Plan G^n^ral 
 
 de I'Ancien Gouvemement de Rome, 2 vols. 4to, Hague, 1766. 
 Becker (W. A.), GaUu?, or Roman Scenes of the Time of Augustus, with 
 
 Notes illustrative of the Manners and Customs of the Romans, translated 
 
 from the German by Metcalfe, 8vo, London, 1849. 
 Bell (Professor George Joseph), Commentaries on the Laws of Scotland, 5th 
 
 edit., 2 vols. 4to, Edinburgh, 1826. New edit, by Shaw, 1858. 
 
 Principles of the Law of Scotland, 5th edit, by Shaw, 8vo, 1860. 
 
 Bernard! (M.), De I'Origine et des Progrfes de la Legislation Fran^aise, 8vo, 
 
 Paris, 1816. 
 Blackstone (Sir WOliam), Commentaries on the Laws of England, 4 vols. 
 
 8vo, Dr Kerr's edition, London, 1862. 
 Bucking (E.), Notitia Dignitatum et Administrationuin tam Civilium quam 
 
 Militarium in Partibus Orientis et Occidentis (illustrated edition), 2 vols. 
 
 8vo, Bonn, 1839-1853. 
 Bonjean (M.), Traits des Actions, ou Exposition Historique de I'Drganisation 
 
 Judiciaire et de la Procedure Civile chez les Remains, 3d edit., 1846. 
 BouUlet (M. N.), Dictionnaire Universel des Sciences, des Lettres, et des 
 
 Arts, 4th edit., 8vo, Paris, 1859. 
 Bowyer (Sir George), Commentaries on the Modem Civil Law, royal 8vo 
 
 London, 1848. 
 
AITTHOES CITED OR CONSULTED. XXxi 
 
 Broom (Herbert), Commentaries on the Common Law, 8vo, London, 
 
 1856. 
 Brougham (Lord), British Constitution, 8vo, London, 1861. 
 Browne (Dr), Compendious View of the Civil Law, 1 vol. Svo, 1802. 
 Burge (W.), Commentaries on Colonial and Foreign Laws, 4 vols. Svo, 
 
 London, 1838. 
 
 Camus, Lettres sur la Profession d'Avocat, Paris, 1772. 4th edit, in 8vo, 
 par Dupin, Paris, 1818. 
 
 Colquhoun (Dr Patrick), Summary of the Roman Civil Law, illustrated by 
 Commentaries on, and Parallels from, the Mosaic, Canon, Mohammedan, 
 English, and Foreign Law, 4 vols. 8vo, London, 1849-1860. 
 
 Cujacius (Jac), Opera Omnia, 2 vols, folio, Venet. 1758-1783. 
 
 De Fresqnet (R., Professor of Roman Law at Aix), Traits EUmentaire de 
 
 Droit Romain, 2 vols. 8vo, Paris, 1855. 
 Dickson (W. G.), Treatise on the Law of Evidence in Scotland, 2 vols. 8vo, 
 
 Edinburgh, 1855. 
 Dirksen (Henry Ed., Professor of Law at Koenigsberg), Sketch of the Efforts 
 
 made to restore the Text of the Twelve Tables, Leipzig, 1824. 
 Domat (J.), Leg Lois Civiles dans leur Ordre Naturel, 2 vols, folio, Paris, 
 
 1689-1777. Translated into English by Dr Strahan, 2 vols, folio, London, 
 
 1722. 
 Ducange (Charles Dufresne), Glossarium Mediae et Infimae Latinitatis, 3 
 
 vols, in folio, 1678. Supplement to the above, by L. Diefenbach, Frank- 
 fort, 1857. 
 Ducaurroy (A. M., Professor of Roman Law at Paris), Les Institutes de 
 
 Justinien nouvellement expliqu^es, 3 vols. 8vo, Paris, 1822-1827. 8th 
 
 edit., 1851. 
 
 Enoyclopedie Methodique de Jurisprudence, 10 vols. 4to, Paris, 1782-1791. 
 Erskine (John, Professor of Law at Edinburgh), Institute of the Law 
 
 of Scotland, 2 vols, folio 1773. New edit., with Notes by Ivory, 
 
 1828. 
 Principles of the Law of Scotland, 8vo, 1754. New edit., by J. G. 
 
 Smith, Svo, 1860. 
 
 Falck, Cours d' Introduction Gdn&ale k I'Etude du Droit, on Encyclop^die 
 Juridique, traduite de I'Allemand par C. A. Pellat, Svo, Paris, 1841. 
 
 FobUx (M.), Traits du Droit International Priv^, ou des Conflits de Lois de 
 Diffirentes Nations en matifere de Droit Priv6, 3d edit., revue par Charles 
 Demangeat, 2 vols. Svo, Paris, 1856. 
 
 Fraser (Patrick), Treatise on the Law of Scotland, as applicable to the Per- 
 sonal and Domestic Relations, 2 vols. Svo, Edinburgh, 1846. 
 
 Gains, Institutionum Commentarii Quatuor, emendavit Eduardus Bocking, 
 4th edit , Svo, Lipsiae, 1855. 
 
XXXU AUTHORS CITED OK CONSULTED. 
 
 Gibbon (Ed.), History of the Decline and FaU of the Eoman Empire, 
 ch. 44. 
 
 Giraud (Ch.), Dissertation sur la GentUit^ Romaine. 
 
 Gneist (Dr Rud.), Institutionum et Regularum Juris Romani Syntagma ; 
 exhibens Gaii et Justiniani Institutionum Synopsin, Ulpiani Librum 
 Singularem Regularum, Pauli Senteutiarum Delectum, 8vo, Lipsise, 
 1858. 
 
 Godefroy (James), Manuals Juris seu Parva Juris Hysteria, 9th edit., 
 Genevse, 1677. 
 
 Quatuor Pontes Juris Civilis, Genevse, 1653. 
 
 Grant on Corporations, 8vo, London, 1850. 
 
 Greaves (Charles S., Q.C.), The Criminal Law Consolidation and Amend- 
 ment Acts, 24 & 26 "Vict, with Notes, 2d edit., 8vo, London, 1862. 
 
 GreUet-Dumazeau (M. Th.), Le Barreau Remain depuis son Origine jusqu'i 
 Justinien, 8vo, Paris, 1851. 
 
 Grotius (Hugo), De Jure Belli ac Pacis, 4to, Paris, 1625, translated into 
 French by Barbeyrac. 
 
 Hallifax (Dr Samuel), Analysis of the Roman CivU Law, 4th edit., 8vo. 
 Cambridge, 1795. New edit, by Geldart, 1836. 
 
 Harris (Dr George), Justinian's Institutions, translated into* English, with 
 Notes, 3d edit, 4to, Oxford, 1811. 
 
 Haubold (Ch. Got), Institutiones Juris Romani Literariae, 8vo, Lips. 1808, 
 
 Manuale Basilicorum, Lips. 1819. 
 
 Hautefeuille (L. B.), Des Droits et des Devoirs des Nations Neutres en temps 
 de Guerre Maritime, 4 vols. 8vo, 1848-1850. 
 
 Heineccius (Jo. Gott), Elementa Juris Civilis secundum ordinem Institu- 
 tionum, 8vo, Halle, 1785. 
 
 Elementa Juris Civilis secundum ordinem Pandectarum, 2 vols. 8vo, 
 
 Rotterodami, 1778. 
 
 Antiquitatum Romanarum Jurisprudentiam Illustrantium Syn- 
 
 tagma, editio nova, 2 vols. 8vo, Argentorati, 1755. 
 Homberg (And.), De Multitudine Nimia Commentatorum in Institutiones 
 
 Juris, 4to, Helmstadt, 1701. 
 Hume's Political Discourses. 
 Hume (Baron), Commentaries on the Law of Scotland respecting Crimes, 
 
 2 vols. 4to, Edinburgh, 1844. 
 Huschke (Ph. Eduardus), Jurisprudentise Antejustinianese quae supersunt, 
 
 Svo, Lipsise, 1861. 
 
 Irving (Dr David), Introduction to the Study of the Civil Law, 4th edit., 
 Svo, London, 1837. 
 
 Jones (Sir William), Essay on Law of Bailments, 4th edit, London, 1833. 
 
 Kent (James), Commentaries on American Law, 4 vols. Svo, 10th edit. 
 Boston, 1860. 
 
AUTHORS CITED OE CONSULTED. XXXUi 
 
 Laboulaye (Edouard), Essai sur les Lois Criminelles des Bomains, concemant 
 la Eesponsibilite des Magistrats, 8vo, Paris, 1845. 
 
 Leapingwell (Dr George), Manual of the Eoman Law, arranged after the 
 Analysis of Dr Hallifax, 8vo, Cambridge, 1859. 
 
 Lee (Principal), Lectures on the History of the Church of Scotland, 2 vols. 
 8vo, Edinburgh, 1860. 
 
 Lerminier (E.), Introduction Gte^rale k THistoire du Droit, 2d edit., 8vo, 
 Paris, 1835. 
 
 Lindley (Nathaniel), Barrister-.at-law, Introduction to the Study of Juris- 
 prudence, being a Translation of the general part of Thibaut's System 
 des Pandekten Rechts, with Notes, Svo, London, 1865. 
 
 Treatise on the Law of Partnership, 2 vols. 8vo, London, 1860. 
 
 Long (Professor George), Articles on Roman Lay, in Dr Smith's Dictionary 
 of Greek and Eoman Antiquities, 2d edit., Svo, London, 1856. 
 
 Mackeldey (Dr F., Professor of Law at Bonn), Lehrbuch des heutigen Eb- 
 
 mischen Eechts, Giessen, 1842 ; or, 
 Manuel de Droit Eomain, contenant la Theorie des Institutes, traduit 
 
 de I'Allemand par Beving, 8vo, Bruxelles, 1846. 
 Maine (Henry Sumner), Ancient Law, its connection with the Early History 
 
 of Society, audits relation to Modem Ideas, 8vo, London, 1861. 
 Mai (Angelo), Vaticana Juris Eomani Fragmenta, Paris, 1823. 
 Marezoll (Theodore, Professor at the University of Leipsic), Lehrbuch der 
 
 Institutionen des Eomischen Eechts, Leipzig, 1850 ; or, 
 Precis d'un Cours sur I'Ensemble du Droit Priv6 des Eomains, traduit 
 
 de I'Allemand par C. A. PeUat, 2d edit., 8vo, Paris, 1852. 
 Martens (George Frederick, Professor at Goetingen), Precis du Droit des 
 
 Gens Modeme de I'Europe, nouvelle edition, par M. Ch. Verg^, 2 vols. 
 
 Svo, Paris, 1858. 
 Maynz (Charles, Professor of Eoman Law at Brussels), Elements du Droit 
 
 Ronuiin, 2d edit, 2 vols. Svo, Paris, 1856. A third volume is promised 
 
 to complete this much-esteemed work. 
 Meerman (Gerard), Novus Thesaurus Juris Civilis et Canonici, ex CoUec- 
 
 tione et Museo Gerardi Meermanni, 7 vols, folio, Hagse, 1751-1753. 
 Supplementary volume published by Meerman's son ia 1780. 
 Montesquieu (Ch. de Secondat, Baron de). Considerations sur les Causes de 
 
 la Grandeur des Eomains et de leur Decadences, Svo, Paris, 1755. 
 CEuvres de Montesquieu, avec les Notes de tons les Commentateurs. 
 
 Edition public par L. Parrelle, 8 vols. Svo, Paris, 1826. 
 Montreuil, Histoire du Droit Byzantin, ou du Droit Romain dans I'Empire 
 
 d'Qrient, depuis la mort de Justinien jusqu'Ji la prise de Constantinople 
 
 en 1453, 3 vols. Svo, Paris, 1847. 
 Muhlenbruch (Chr. Fred.), Doctrina Pandectarum, 3 vols., editio quarta, 
 
 Halse, 1834. 
 
 Ortolan (M., Professor of Law at Paris), Explication Historique des Institutes 
 de I'Empereur Justinien ; prdced^e de i'Histoire de la Legislation Eo- 
 
XXXIV AUTHORS CITED OR CONSULTED. 
 
 ■< maine, et d'une G&^ralisation du Droit Eomain, 6th edit., 3 vols. 8vo, 
 Paris, 1857. 
 
 Ortolan (M.), Elements du Droit Penal, 8vo, Paris, 1855. 
 
 Otto (Ed. Ev., Professor of Law at Utrecht), Thesaurus Juris Komani, conti- 
 nens rariora meliorum interpretum opuscula, in quibus jus Eomanorum 
 emendatur, explicatur, Ulustratur, 5 vols, folio, Basil, 1744. 
 
 Pailliet (Jean-Baptiste-Joseph, Judge of the Court of Appeal), Manuel du 
 Droit Franfais, 8th edit., 4to, Paris, 1838. 
 Besides much useful information on other subjects, this work contains — 
 1. The History of National Institutions ; 2. The Constitutional 
 Charter of 1830, with the Laws which complete it ; 3. The Seven 
 Codes, with Notes thereon, and numerous decisions by the Court of 
 Cassation and the Royal Courts ; and, 4. The Laws and Ordinances 
 published from the Bevolutpn till the month of December 1837. 
 Paley (William, D.D.), Principles of Moral and Political Philosophy, 8vo. 
 Paterson (James, Baxrister-at-Law), Compendium of English and Scotch 
 Law, stating their differences, with a Dictionary of parallel terms and 
 phrases, 8vo, Edinburgh, 1860. 
 Paul (Father), History of the Council of Trent, translated from the Italian 
 
 into English by Nathaniel Brent, folio, London, 1620. 
 Perezius (Ant., Professor of Law at Louvaine), Prselectiones in Duodecim 
 
 Libros Codicis editio nova in 4to, Amst., 1671. 
 Phillimore (John George), Introduction to the Study and History of the 
 
 Roman Law, 8vo, London, 1848. 
 Poison (A.), Principles of the Law of Nations, 8vo, London, 1848. 
 Pothier (Robert Joseph), Pandectee Justinianse in novum ordinem digestse, 
 cum Legibus Codicis, et Novellis, quae jus Pandectarum confirmant, ex- 
 plicant, aut abrogant, 3 vols, in folio, Paris, 1748-1752 ; nova editio, 5 
 vols. 4to, Paris, 1818. 
 
 CEuvres Complfetes de Pothier, prdced^es d'une Dissertation sur sa 
 
 Vie et ses Ecrits, par MM. Eogron et Firbach, Avocats a la Cour de 
 Cassation, 2 vols. 8vo, Paris, 1835. 
 
 Rogron, Code Civil Expliqu6, Bruxelles, 1838. 
 
 Roscoe (Henry, Barrister-at-Law), Digest of the Law of Evidence, 8vo, 10th 
 
 edit., London, 1861. 
 Rutherforth (T., D.D.), Institutes of Natural Law, being the substance of 
 
 a Course of Lectures on Grotius de Jure BeUi et Pacis, 2 vols. 8vo 
 
 Cambridge, 1756. 
 
 Sandars, Translation of Justinian's Institutes, with Notes, 8vo, 2d edit. 
 
 London, 1859. 
 Savigny (Frederick Charles), Geschichte des Rom. Rechts im Mittelalter, 6 
 
 vols., Heidelberg, 1815-1831 ; or, 
 Histoire du Droit Romain au Moyen Age, traduit de I'Allemand par 
 
 M. Charles Quenoux, 8 vols. 8vo, Paris, 1840-1851. 
 
AUTHORS CITED OR CONSULTED. XXXV 
 
 Savigny (Frederick Charles), System des heutigea Romischen Kechts, 
 
 9 vols., Berlin, 1840-1850 ; Traits de Droit Romain, traduit par Guenoux, 
 
 8 vols., 1840-1851. 
 Treatise on Private International Law, translated by Guthrie, 
 
 Edinburgh, 1869. 
 Schnltingius <Ant.), Jurisprudentia Vetus aute-Justinianea, ex recensions 
 
 et cum Notia Schultingii, Lugd. 1717. 
 Serrigny, Traitfi du Droit Public des Pran^ais, 2 vols. 8vo, 1846. 
 Sigonius, De Judiciis Romanorum libri tres, in 4to, 1674. 
 Smith (John William, Barrister-at-Law), Compendium of Mercantile Law, 
 
 6th edit., by G. M. Dowdeswell, 8vo, London, 1859. 
 Stair (Lord, President of the Court of Session), Institutions of the Law of 
 
 Scotland, 1661. New edition, with Notes and Illustrations, by John 
 
 S. More, Professor of Law, 2 vols. 4to, Edinburgh, 1832. 
 Stephen (Henry John, Sergeant-at-Law), New Commentaries on the Laws of 
 
 England, 4th edit., 4 vols. 8vo, London, 1858. 
 St Leonards (Lord), Practical Treatise on New Statutes relating to Property, 
 
 2d edit., 8vo, London, 1862. 
 Story (Dr Joseph), Commentaries on the Conflict of Laws, Foreign and 
 
 Domestic, in regard to Contracts, Rights, and Remedies, 5th edit., 
 
 8vo, Boston, 1857. 
 Commentaries on the Law of Bailments, 8vo, Boston, 1846. 
 
 Taylor (John, LL.D.), Elements of the Civil Law, 2d edit., 4to, London, 
 
 1755. 
 Troplong (R. Theodore, First President of the Court of Cassation), De I'ln- 
 
 fluence de Christianisme but le Droit Civil des Remains, 2d edit., 8vo, 
 
 Paris, 1855. 
 
 Vangerow (Ch. Adolphus, Professor of Law at Heidelberg), Lehrbuch der 
 Pandecten (Treatise on the Pandects), 6th edit., 3 vols., Marbourg, 
 1855. 
 
 Vattel, Le Droit des Gens, on Principes de la Loi Naturelle appliqufe k la 
 Conduite et aux Affaires des Nations et des Souverains, 2 vols, in 4to, 
 1758 ; English Translation, 2 vols. 4to, London, 1759 ; another Transla- 
 tion, by Chitty, London, 1834 
 
 Vinnius (Arnold, Professor of Law at Leyden), Commentarius in Quatuor 
 Libros Institutionem, editio secunda, 4to, Amstel., Elzevir, 1655. 
 
 Voet (John, Professor of Law at Leyden), Commentarius ad Pandectaa, 2 
 vols, in folio. Colonise Allobrogum, 1757. 
 
 Walter (Ferdinand, Professor at Bonn), Histoire de la ProcMure Civile chez 
 les Remains, traduit de TAllemand par Edouard Laboulaye, 8vo, Paris, 
 1841. 
 
 Warnkoenig (Leopold Augustus, Professor of Law at Tubingen), Institu- 
 tiones Juris Privati Romani, editio quarta, 8vo, Bonnse, 1860. 
 
 Commentarii Juris Romani Privati, 3 vols. 8vo, Leodi, 1825. 
 
XXXVl 
 
 AUTHORS CITED OB CONSULTED. 
 
 Westlake (John, Barrister-at-Law), Private Intemational Law, or the Conflict 
 
 of Laws, with Principal reference to English Practice, 8vo, London, 1858. 
 Wheaton. (Henry), Elements of International Law, 2 vols. 8vo, London, 
 
 1836 ; 3d edit., 8vo, Philadelphia, 1846. 
 Williams (Edward Vaughan, Judge ia the Court of Common Pleas), Treatise 
 
 on the Law of Executors and Administrators, 5th edit., 2 Tola. Svo, 
 
 London, 1856. 
 
 Zimmem, Traits des Actions, ou TWorie de la Procedure Civile Privte 
 chez les fiomains, traduit de I'AUemand par M. Etienne, 1843. 
 
 Zouch (Dr Richard, Regius Professor of Civil Law at Oxford), Elementa 
 Jurisprudentiffl, Definitionibus, RegnUs, et Sententiis Seleotioribus Juris 
 Civilis Ulustrata, Svo, Oxford, 1629. Reprinted by the Elzevirs at 
 Leyden, 24mo, 1652. 
 
 EXPLANATION OF REFERENCES. 
 
 I. 2. 3. 4. Justinian's Institutes, book 2, title 3, paragraph 4 
 
 D. 1. 4. 15. 2. Digest or Pandects, book 1, title 4, fragment 15, paragraph 2. 
 
 C. 2. 6. 7. Justinian's Code, book 2, title 6, constitution 7. 
 
 N. 118, ch. 1. Novellas Constitutiones, number 118, chapter 1. 
 
 Cod. Theod. Theodosian Code. 
 
 Gai. 1. 200. Institutes of Gaius, book 1, paragraph 200. 
 
 Ulp. 3. 3. Fragments of Ulpian, title 3, paragraph 3. 
 
 Paul. 5. 6. 3. Receptse Sententise of Paulus, book 5, title 6, paragraph 3. • 
 
 Marezoll, § 30. MarezoU, Institutes, paragraph 30. 
 
 Mackeldey, § 64. Mackeldey, Institutes, paragraph 64. 
 
 Warn. Inst. § 85. Warnkoenig, Institutes, paragraph 85. 
 
 Maynz, § 87. Maynz, Elements of Roman Law, paragraph 87. 
 
 De Fresquet. De Fresquet, Elementary Treatise on Roman Law. 
 
 Ortolan. Ortolan, Institutes. 
 
STUDIES IN ROMAN LAW. 
 
 HISTOEICAL SKETCH OF THE EOMAN LAW. 
 
 CHAPTER I. 
 
 HISTOEY OF THE BOMAN LAW DOWN TO JUSTINIAN. 
 
 INTRODUCTION. 
 
 In various departments of intellectual exertion — in philo- Superiority 
 sophy, poetry, oratory, and the fine arts — the Greeks have "„ la^*"" 
 never heen surpassed. But they contributed almost nothing 
 to the science of jurisprudence. In speculative philosophy 
 they greatly excelled the Eomans ; but in the cultivation of 
 law, the Eomans carried off the palm not only from the 
 Greeks, but from all the other nations of antiquity. The laws 
 of Lycurgus were never reduced to writing ; and although 
 the Athenians possessed a considerable body of written laws, 
 some of which appear to have been incorporated into the 
 Decemviral Code, they have been of very little use to pos- 
 terity; and Cicero can hardly be said to exaggerate when, 
 with pardonable pride, he characterises the Greek laws as 
 rude, insignificant, and almost ridiculous, when compared 
 with the enlightened system of jurisprudence which the 
 Eomans of his day inherited from the wisdom of their 
 ancestors. 
 
 A 
 
2 ROMAN LAW BEFORE JUSTINIAN. 
 
 Mere speculation found little favour among the Eomans, 
 who were eminently a practical people. No new system of 
 philosophy sprang up among them ; but we are indebted to 
 them for the iirst successful cultivation of law as a science. 
 Apart from their general ability in the business of legisla- 
 tion, their judicial system was far more favourable than that 
 of the Greeks to the improvement of jurisprudence and to 
 the gradual formation of a body of mild, wise, and equitable 
 laws. For several centuries, under the free republic and the 
 empire, the magistrates who exercised the chief civil juris- 
 diction at Eome were the praetors, who were changed annu- 
 ally; and it became the practice for every new praetor, on 
 his accession to office, to publish, in the form of edicts, the 
 rules which he intended to observe in administering justice. 
 These rules were handed down by the praetors to their suc- 
 cessors, and were modified and improved in the course of 
 time to suit the exigencies of the community. It was chiefly 
 by these edicts, by the decisions of the judges, and by the 
 scientific works of eminent lawyers, aided from time to time 
 by the direct action of the legislature, that the ancient insti- 
 tutions were softened and refined, and the general body of 
 the Eoman law was gradually, after long experience, moulded 
 into a system, and brought to that state of perfection which 
 it ultimately attained. 
 Legal his- Without detracting from the merits of the classical jurists, 
 Jiistinian? it may safely be affirmed that the Eoman law did not attain 
 its full development till it was consolidated by Justinian 
 near the middle of the sixth century. For us the collections 
 of that emperor have the most immediate interest, not only 
 from their intrinsic value, but from the great influence they 
 have exercised on the jurisprudence of modern Europe. 
 But, before giving an account of Justinian's legislation 
 and the fate which attended it, we think it necessary to 
 take a rapid survey of the history of the Eoman law pre- 
 Division vious to his rcigu. This may be conveniently considered 
 pCTiods'^^^ under three periods, all distinguished by important changes 
 in the political constitution of Eome. 1st, From the founda- 
 tion of the city to the promulgation of the Twelve Tables, 
 
HOMAN LAW BEFORE JUSTINIAN. 
 
 extending over a period of about 300 years; 2d, From the fSoL 
 Twelve Tables to the establishment of the empire under Au-I; 
 gustus in the year 722 after the foundation of Eome; 3d, From^ 
 the time of Augustus to the accession of Justinian, a.d. 527.} 
 
 FIRST PERIOD. 
 
 FROM THE FOUNDATION OF ROME TO THE TWELVE TABLES. 
 
 During the government of the kings the history of Eome political 
 is obscured by doubtful traditions and improbable fictions, of Rl'me!"" 
 Modern criticism has attacked all the commonly received 
 opinions as to the primitive state of Rome ; and this has 
 been carried so far, that some ingenious writers, such as Vico 
 at the commencement of the last century, and Niebuhr in 
 our own day, have endeavoured to construct an entirely new 
 theory of Eoman history, which, as Ortolan aptly remarks, 
 has the singular merit of having been wholly unknown to 
 the Eomans themselves. 
 
 At first the Eomans enjoyed a constitution very liberal in 
 appearance, though it contained within it the most fruitful 
 seeds of despotism. The government consisted of an elective 
 king, a senate composed originally of 100, and afterwards of 
 300 members, and a general assembly of the people. To the 
 king belonged the command of the army, the administration 
 of justice, and the general superintendence of religion. The 
 senate was an administrative and deliberative council of 
 nobles or persons distinguished by their rank, their wealth, 
 and their talents. In the general assembly the chief magis- 
 trates were elected, and the measures prepared by the senate 
 were laid before the people, who might either accept or re- 
 ject them. Political power was at first entirely confined to 
 the patricians. Under the constitution of Servius Tullius, 
 who divided the Roman people into six classes, according to 
 a valuation of their fortune, all the citizens, whether patri- 
 cians or plebeians, enjoyed the right of voting by centuries in 
 the Comitia Centuriata ; but, from the mode of collecting the 
 suffrages, the wealthy classes had an overwhelming ascend- 
 
4 EOMAN LAW BEFORE JUSTINIAN. 
 
 ency in that assembly. Ou the other hand, the taxes were 
 chiefly borne by the rich, and a very light share of the 
 burdens of the state was laid upon the lower orders, so as to 
 compensate them for the want of political influence. 
 The law In the infancy of the Eoman state, Pomponius says the 
 
 Wn^".*''^ people were governed without any regular system of positive 
 laws by the absolute authority of their kings. Customs 
 founded on general consent are the first rudiments of juris- 
 prudence, and when legislation is resorted to, it is generally 
 to confirm, add to, or modify, rather than to supersede, these 
 primitive usages. During the regal government at Kome, 
 the laws were prepared by the king with the approbation 
 of the senate, and confirmed by the people, at first in the 
 Comitia Curiata, and, after the reforms of Servius Tullius, in 
 the Comitia Centuriata. These laws were collected into a 
 body by Papirius, a Eoman lawyer, and called, after his 
 name, the Jus Civile Papirianum. Granius Flaccus wrote 
 a commentary on the royal laws in the time of Julius 
 Caesar ; but although some attempts have been made to 
 collect a few fragments of this ancient legislation, no trust- 
 worthy remains of it now exist.^ 
 
 Some historians ascribe particular laws to Eomulus, Numa, 
 Servius Tullius, and other kings ; but they relate chiefly to 
 changes in the political constitution, and little reliance can 
 be placed on such vague traditions.^ According to the 
 popular account (which, however, is open to much criti- 
 cism), the Eoman state subsisted under seven successive 
 kings, during a period of 244 years, when a revolution took 
 , place by the expulsion of Tarquin the Proud, and the royal 
 
 ' • authority was abolished. 
 
 Foundation To supply the place of the king, two consuls were chosen 
 pubiit."" ^J tlie people from the order of patricians : these magistrates 
 were to remain in office for a year, and exercise most of the 
 powers previously intrusted to royalty. Each of them had 
 equal authority, so as to act as a check upon the other, and 
 they were changed annually to prevent them from abusino- 
 their powers. 
 
 1 D. 1. 2. 2. Pomponius. 2 Tao. Ann., iii. c. 26. 
 
ROMAN LAW BEFORE JUSTINIAN. 5 
 
 The two consuls held the highest place in the repuhlic. 
 All other magistrates and officers, except the tribunes, were 
 subordinate to them. They presided in the senate and 
 executed its decrees ; they levied the troops and enforced 
 military discipline ; and it was their duty to assemble the 
 senate and the comitia, and command the armies in time of 
 war. 
 
 As Eome was constantly engaged in war, and the consuls 
 who commanded the armies were frequently absent from the 
 city, some important duties of administration formerly in- 
 trusted to them were distributed among other magistrates. 
 Thus the prsetors were appointed to exercise jurisdiction in 
 civil causes ; the censors to take the census every five years, 
 a^d superintend the manners and morals of the people : the 
 ediles took care of the national buildings, public games, and 
 matters of police ; and the questors acted under the directions 
 of the senate, as collectors of the revenue. 
 
 In the early period of the republic, the Eoman constitution, 
 which bore the external appearance of a democracy, was in 
 reality an aristoeratical government; for although the plebeians 
 were permitted ostensibly to take a part in the deliberations 
 of the assembly of the centuries, the patricians could always ' 
 command an overwhelming majority in that assembly as well 
 as in the senate, and, with the exception of the tribunate, they 
 engrossed all the important offices of the state. AU political 
 power was thus placed substantially in the hands of the aris- 
 tocracy, who frequently abused it by oppressing the poorer 
 classes. 
 
 The earliest legislation deserving of notice during the Ee- '^^^^J^°^^ 
 public was the celebrated code of laws called the Twelve Tables. Tables, 
 According to historical tradition, three commissioners were ^'^' 
 sent from Eome to Athens and other Greek states, for the 
 purpose of inquiring into and collecting what was most useful 
 in their legal systems ; and we are told that Hermodorus, a 
 learned Ephesian, then an exile at Eome, contributed valu- 
 able aid to the work. On the return of the commissioners, 
 B.C. 452, ten magistrates, called decemvirs, were invested for 
 a year with absolute power to carry on the government, and 
 
6 ROMAN LAW BEFORE JUSTINIAN. 
 
 frame a body of laws for the republic. At first ten tables 
 were completed and made public by the decemvirs, and two 
 other tables were added the following year. These laws, 
 after being approved of by the senate and solemnly confirmed 
 in the Comitia Centuriata, were engraved on twelve tables, 
 and fixed on the most conspicuous part of the forum. 
 
 This ancient code, which is highly praised by the Eoman 
 writers,^ and was long considered as the foundation of all 
 law, has not come down to us. Our knowledge of it rests on 
 a few isolated fragments and some historical relations of what 
 has been lost. The best attempt to restore the text is that 
 by James Godefroy ; ^ and some additional light has been 
 thrown on this subject in our days by the criticism and 
 research of Haubold and Dirksen.' 
 
 Only a few provisions of the decem\dral code need be 
 noticed here. 
 
 (1.) Insolvent debtors were treated with great severity. 
 They were liable to be seized and imprisoned by their credi- 
 tors, and, after being kept loaded in chains for sixty days, 
 might be sold into foreign slavery. 
 
 (2.) The old law or custom which prohibited aU marriages 
 between patricians and plebeians was confirmed. 
 
 (3.) In bodily injuries the barbarous principle of retalia- 
 tion was sanctioned — an eye for an eye, a limb for a limb — 
 unless the injured party chose to accept of any other satis- 
 faction. 
 
 (4.) Any one who wrote lampoons or libels on his neigh- 
 bours was liable to be deprived of civil rights. 
 
 (5.) An appeal might be made to the people from the 
 sentence of every magistrate ; and no citizen was to be tried 
 for his life except before the Comitia of the Centuries. 
 
 1 Cicero de Orator., i. 34 Titus ^ Haubold, Institutiones Juris Eo- 
 Livius, iii. 34. " Eous omnis publioi mani Literariae, t. i. p. 300-306. 
 privatique juris."— Tac. Ann., iii. 27. Dirksen, Sketch of the Efforts made 
 
 2 See Quatuor Fontes Juris Civilis, for restoring the Text of the Twelve 
 Geneva, 1653. Otto's Thesaurus, t. Tables. See also Ortolan's lusti- 
 iii- p- 1. tutes, t. i. p. 98. 
 
ROMAN LAW BEFORE JUSTINIAN. 7 
 
 SECOND PERIOD. 
 
 FROM THE TWELVE TABLES TO AUGUSTUS. 
 
 By the decemviral code the plebeians gained a consider- Progre«. 
 able step towards the adjustment of their differences with pLtlan,. 
 the patricians ; but it was nearly eighty years before these 
 differences were settled by the admission of the plebeians to 
 the supreme ofiices of the state. After a long series of angry 
 contests, the popular party gradually gained ground till they 
 achieved complete political independence. The consuls and 
 higher magistrates, in place of being selected exclusively 
 from the patrician order, were thenceforward chosen from the 
 whole body of the citizens, leaving the field open for men of 
 merit wherever they were to be found. 
 
 The reconciliation of the two orders, by an equal distri- Fusion of 
 bution of political rights, was followed by two centuries of ^^l^^,° 
 national prosperity and victory. Eome was long an insig- 
 nificant state, engaged in waging petty wars with her neigh- 
 bours. Southern Italy had been peopled with colonies from 
 Greece ; the northern division, which now contains Lombardy 
 and the territories of Venice and Genoa, reaching to the Alps, 
 had been occupied by a colony of Gauls, and on that account 
 was known to the Eomans as Cisalpine GauL About the 
 close of the fifth century from the foundation of the city, and 
 250 years after the establishment of the republic, Eome had 
 conquered the whole of Italy from the Alps to its southern 
 extremity ; and, having become a powerful state, began to 
 lay the foundations of that universal dominion which at a 
 later period rendered her the mistress of the civilised world. 
 
 At the period when the constitution of the Eoman republic Sources of 
 had attained its full development, legislation emanated from ^'^' 
 three different authorities — the Comitia Centuriata, the Co- 
 mitia Tributa, and the Senate ; so that laws might be pro- 
 mulgated in the three forms of leges jpopuli, plebiscita, and 
 sen atus-consulta. 
 
 The leges, or laws properly so called, were proposed by the Laws of tho 
 consuls or other senatorial magistrates, and passed by the I^ges. 
 
8 ROMAN LAW BEFORE JUSTINIAJST. 
 
 ■whole body of Roman citizens, patricians and plebeians, m 
 the assembly of the centuries. 
 
 Piebiscita. The plebisdta were laws proposed by the tribunes and 
 passed by the assembly of the tribes, which was originally 
 composed of plebeians only. At first these acts were only 
 binding on the plebeians ; but after the Lex Hortensia, in 
 the ypar of Eome 465, both orders recognised the authority 
 of each assembly to pass general laws binding on the whole 
 state. Both the leges and the piebiscita were usually dis- 
 tinguished by the name of the magistrates who prepared 
 them — as Lex Aquilia, Lex Cincia, and the like. 
 
 After the Hortensian law the Eoman constitution pre- 
 sented the singular anomaly of having two distinct legislative 
 assemblies, each of which exercised full and absolute authority 
 within itself to make laws for the republic. In the assembly 
 of the centuries the people voted according to their fortunes, 
 as ascertained by the census ; so that when the first class 
 was unanimous, as generally happened in all party divisions, 
 though it contained only a small portion of the citizens, it 
 determined everything, and established laws with the sanc- 
 tion of the senate. In the assembly of the tribes every vote 
 was alike ; and the democracy, led by the tribunes, had un- 
 limited power to pass acts binding on the whole community, 
 without any negative being allowed either to the consuls or 
 to the senate. This political anomaly of two distinct legisla- 
 tive bodies in the Eoman republic, however objectionable in 
 theory, did not practically produce that discord and confusion 
 which might reasonably have been expected from it, mainly 
 in consequence of the prudent conduct of the senate and the 
 aristocracy, who carefully avoided any struggle with the 
 popular assembly after it had acquired authority to give laws 
 to the whole state.^ 
 
 Decrees of . Modern historians are not quite agreed as to the obligatory 
 force of the ordinances of the senate during the republic. 
 The power of the senate seems to have been different at 
 different times. At first its legislative action was limited to 
 the right, asserted from the most remote times, to grant or 
 1 Hume's Political Discourses, Essay 9— Of some Remarkable Customs. 
 
EOMAN LAW BEFORE JUSTINIAN. 9 
 
 refuse its approbation to laws voted by tlie people. During 
 the republic tbe supreme power belonged to the people ; but 
 they seldom passed acts without the authority of the senate. 
 In weighty affairs it was common for the senate to deliberate 
 and decree, and for the people to interpose their sanction. 
 But there were many things which the senate determined by 
 its own authority, even during the free republic, if not by 
 express law, at least by the custom of their ancestors. When 
 the popular cause gained ground, the tribunes assumed the 
 right of putting a negative on the decrees of the senate, which 
 rendered them of no effect ; and, on the other hand, acts were 
 passed by the people in the assembly of the tribes, which did 
 not require the concurrence or approbation of the senate. 
 Under the empire, when the comitia had disappeared, the 
 senate had, for a time, undoubted authority to make decrees, 
 which had the force of law, but subject to the veto of the 
 emperor under his tribunitian power. 
 
 Upon the edicts of the magistrates, at Eome and in the Edicts of 
 provinces, was built up a system of equity which supplied trat^."^'*' 
 the deficiencies of the common law, and exercised the most 
 beneficial influence on the development of Eoman jurispru- 
 dence. This branch of law was called the jus honorarium, 
 in -opposition to the jus civile. When the praetor entered on 
 his ofdce,' he published, as already explained, an edict estab:: — 
 lishing certain^ rules, according to which he professed_to__ 
 adrnmisrer justice for the year ; and a similar course was 
 followed by the curule ediles at Eome, and the proconsuls 
 and propraetors in the provinces. Each praetor might frame 
 j^new edict if he chose ; but it was not uncommon for him 
 to adoptlEFedi^t"of his predecessor, in whole or in part, and 
 to make such additions and changes as circumstances re- 
 quired. The principal object of the edict was to promulgate 
 the changes which custom and the practice of the courts had 
 introduced ; and, where no remedy could be obtained by the 
 i strict civU law, the praetor explained the manner in which 
 
 JS ^ 
 
 , 1 The jpr6e;o»-Mr6a»«« was first ap- Eome 508. Tlie number o£ praetors ' 
 ' pointed in the year of Rome 387, and was afterwards mcreased. 
 the prcetor peregrinus in the year of 
 
10 
 
 ROMAN LAW BEFORE JUSTINIAN. 
 
 Customary 
 law. 
 
 Besponses 
 of juriscon- 
 
 BultS, 
 
 rights might be enforced, and what actions would be allowed 
 in given cases. Strictly speaking, the prsetor was not entitled 
 to exercise legislative power ; he could not abrogate or alter 
 the laws ; but in certain instances he was permitted to tem- 
 per them with equity, to supply what was wanting to give 
 them full effect, and, in matters falling within his jurisdic- 
 tion, to apply them according to his own ideas of justice.^ 
 Though the _/«s prcetorium is supposed to bear some resem- 
 blance to equity in English practice as distinguished from 
 common law, " the equity of Rome, it should be understood, 
 even when most distinct from the civil law, was always ad- 
 ministered by the same tribunals. The prsetor was the chief 
 equity judge, as well as the great common-law magistrate." " 
 
 As regards the laws which were established by public 
 authority after the era of the Twelve Tables, in the various 
 forms of leges, plebiscita, senatus-consulta, and edicts of 
 magistrates, our knowledge of them is derived chiefly from 
 the writings of the civilians preserved in the Digest ; but 
 some special laws have been collected, by the patient indus- 
 try of scholars and antiquaries, from inscriptions on marbles 
 and tables found in various parts of Italy.^ 
 
 A great part of the Roman law was founded, not on direct 
 legislation, but on the mores maj'orum — that is, customs long 
 observed and sanctioned by the consent of the people. 
 
 The old Roman jurists gave advice to private persons ; 
 they were consulted by the judges in cases of difficulty; and 
 they acted as assessors to the magistrates to guide them in 
 their judicial determinations. In their origin the Responsa 
 Prudentum were nothing more than the private opinions of 
 particular lawyers ; but after they had been generally adopted 
 by the legal profession, and recognised by the judicial tribu- 
 nals, they were called 'sententice receptee, and acquired the 
 authority of law. 
 
 1 ".Tus prsetorium est quod prse- ' De Fresquet, Droit Romain, t. 
 
 tores introduxerunt adjuvandi vel i. p. 22. Spaiigenberg, Antiqui- 
 
 supplendi, vel corrigendi juris civilis tatis Romanse MoaumeDta Legalia 
 
 gratia propter utilitatem publicam." extra libros juris sparsa ; Berlin, 
 
 —Papinian, D. 1. 1. 7. 1830. 
 
 ^ Maine's Ancient Law, p. 67 . 
 
KOMAK LAW BEFORE JUSTINIAN. 11 
 
 Two works, apparently collections of forms, the ' Jus Flavi- Writings of 
 anum,' and the ' Jus iElianum,' appeared, one in the middle S"™' 
 of the fifth century from the foundation of Eome, and the 
 other in the century following.^ But, properly speaking, the 
 scientific elaboration of law did not commence till about the 
 age of Cicero. Q. Mucins Scfevola, Consul, a.r. 657, was the 
 first who published a complete system of civil law.^ Servius 
 Sulpicius, Consul in 703, who is said to have been equally 
 eminent as an orator and a jurisconsult, wrote a commentary 
 on the edicts of the prsetors. His pupil, Ofilius, published 
 a work on the same subject. Alfenus Varus, another of his 
 pupils, acquired celebrity by a book written upon a more 
 extensive plan, called 'Digesta.'^ 
 
 The free republic which succeeded the kings, endured, ac- Fail of the 
 cording to common reckoning, 478 years, during which the '^^^^ "'' 
 political constitution underwent frequent changes. Montes- 
 qiiieu has pointed out with much discrimination the causes 
 which led to the overthrow of the republic. When the 
 Eoman legions crossed the Alps, or passed to distant coun- 
 tries beyond seas, and remained absent for years in the 
 conquered states, the troops lost by degrees the spirit of 
 citizens, and the generals, who disposed of armies and king- 
 doms, became so powerful that they yielded a very reluctant 
 obedience to the central authority at Eome. The fall of 
 Carthage, and the brilliant , conquests of Greece, Egypt, and 
 the Asiatic kingdoms, brought about a revolution in the 
 manners and government of the Eomans. The arts and 
 customs, and the enormous riches of the conquered nations, 
 familiarised the Eomans with luxury, which opened the way 
 to many vices. As the love of country and the zeal for 
 freedom declined, corruption obtained more pernicious in- 
 
 ' D. ]. 2. 2. § 7 and 38. Alfenus Varus and ^lius G alius, 
 2 Cicero studied the civil law un- who were both contemporariea of Ci- 
 der Mucins. He is the most ancient cero, some extracts likewise appear 
 lawyer from whose works extracts in the Digest. Maynz, Droit Komain. 
 have been taken by Justinian in the t. i. p. 103, notes. 
 Digest. There are four fragments ' D. 1. 2. 41 et seq. 
 from Muoius. From the works of 
 
12 ROMAN LAW BEFORE JUSTINIAN. 
 
 fluence; powerful and ambitious men fomented internal 
 troubles, and popular tumults were followed by an exhaust- 
 ing series of civil wars, which terminated in the ruin of 
 public liberty.^ 
 
 THIRD PERIOD. 
 
 FEOM AUGUSTUS TO THE ACCESSION OF JUSTINIAN, A.D. 527. 
 
 Transition Jq tjje yeaf \722/from the foundation of Eome, Octavius, 
 
 to absolute , ■' ff---' „ ^ , . ^ , i t i i ii t-. 
 
 monarchy, the grand-nepnew of Julius Caesar, established the Jimpire. 
 AU the powers of the state were concentrated in his person. 
 He was consul, tribune, prsetor, censor, pontifex, imperator ; 
 and, with the title of Augustus, his commands were obeyed 
 throughout the wide extent of the Roman dominions, which 
 then comprehended the most beautiful countries of Europe 
 and Asia, with Egypt and all the northern parts of Africa. 
 
 Augustus gathered round his court the wits, and poets, and 
 learned men who have made his reign illustrious. He used 
 his powers with great moderation, and preferred to govern the 
 Eoman state according to the ancient forms of the republic. 
 
 But legislation by the popular assemblies, though not 
 wholly discontinued, fell gradually into disuse ; and the or- 
 dinances of the senate were the usual form in which laws 
 were promulgated. After the experience of two centuries 
 under the empire, Ulpian was justified in declaring that the 
 decrees of the senate had the force of law,^ though under 
 Tiberius and his successors they had virtually degenerated 
 into imperial ordiuances clothed in a more popular form. 
 The power of electing magistrates was transferred by Tiberius 
 from the comitia to the senate. Under Septimus Severus 
 and Caracalla the legislative action of the senate entirely 
 disappeared. By gradual usurpations the power of the em- 
 peror became absolute, and the forms of ancient libertj'- dis- 
 appeared. Under Hadrian the organisation of the empire 
 was openly despotic ; and about the beginning of the third 
 
 1 See Montesquieu, Grandeur et "D. 1. 3. 9. " Non ambigitur aena- 
 Deoadence des Remains, ch. 9. turn jus facere posse. " — Ulpian. 
 
ROMAN LAW BEFORE JUSTINIAN. 13 
 
 century his successors frequently issued rescripts in which 
 they asserted they were not subject to the laws.i 
 
 During the republic the opinions of the great lawyers New char- 
 carried with them no higher authority than what they de- BpoDsa Pru- 
 rived from their own intrinsic merit and good sense. Under '^™'"°'- 
 Augustus some of the most distinguished jurists were autho- 
 rised to give legal opinions upon cases submitted to them, so 
 as to become the public expounders of the law ^ In the time 
 of Gains the Eesponsa Prudentum were a recognised source 
 of law, peculiar to the Eomans ; but it is evident from his 
 account that the functions of these privileged civilians were 
 limited to a declaration of their opinion of what was law in 
 a given case, and did not extend to making new rules of law, 
 which is the proper province of the supreme authority in the 
 state. To this branch of law some encouragement was given 
 by the Emperor Hadrian, who ordained that if the jurists 
 were all agreed upon any question, their opinion should be 
 considered as law by the judge; if they disagreed, the judge 
 was at liberty to follow what opinion he pleased.^ 
 
 Two rival sects or schools of law appeared in the time of Schools of 
 Augustus, the one founded by Antistius Labeo and the other Augustus, 
 by Ateius Capito. Labeo, a scholar of Trebatius, and an ardent 
 republican, was the chief of the ProcuHans or Pegasians, who 
 were so called after two of his followers. Capito, the pupil 
 of Ofilius and an adherent of the court party, was the chief of 
 the rival sect, called after two of Ms followers Sabinians or 
 Cassians. Upon various questions of law these two sects 
 differed in opinion ; but little is known regarding the char- 
 acter of their differences, beyond what we learn from Pompo- 
 nius, who says Capito firmly adhered to ancient precedents, 
 while Labeo, with more learning and ingenuity, was disposed 
 to introduce innovations. After the Antonines this division 
 among the jurisconsults disappeared, though we occasionally 
 find partisans of the ancient schools. 
 
 ^ I. 2. 17. 8. citrraut, id quod ita sentiunt, legis 
 
 ^ " Responsa Prudentum sunt sen- vicem obtinet; si vero dissentiunt, 
 tentise' et opiniones eorum, quibua judici licet quam velit sententiani 
 permissum est jura condere, quorum sequi ; idque rescripto divi Hadriani 
 omnium si in unum sententise con- significatur. " — GaL lib. 1. 7. 
 
constitu- 
 tions 
 
 14 HOMAJSr LAW BEFORE JUSTINIAN. 
 
 Perpetual Under the empire the edicts of the magistrates, and parti- 
 fii"^' ''•°- cularly of the praetors, continued for some time to exercise 
 the most important influence on the development of the law. 
 Injhe reign of Hadrian, Salvius Julianus gave a new form 
 to the"" praetorian law by the Perpetual Edict, which was 
 approved'of by the senate, a.d. 131. This was long regarded 
 "as a standard work, and was commented on by Ulpian, Paul- 
 us, and other eminent lawyers. Some modern authors have 
 endeavoured to collect the scattered fragments of the Edict, 
 and arrange them according to their primitive order.^ 
 Imperial As the imperial constitutions were the last, so they also 
 became the only source of written law, public and private. 
 The most ancient constitutions in Justinian's Code go no 
 farther back than the reign of Hadrian. But there are 
 several imperial ordinances of a prior date mentioned in 
 the Institutes and Digest.^ 
 
 The term constitution is used in a general sense to indi- 
 cate all the acts of the prince ; but in the Institutes they are 
 divided into three principal branches — edicts, rescripts, and 
 decrees.^ The edicts were general laws. The rescripts were 
 the answers of the emperor to those who consulted him, 
 either as public functionaries or as private persons. The 
 decrees were the judgments given by the emperor in lawsuits 
 brought before him as supreme magistrate, either in the first 
 instance or by way of appeal. As the rescripts and decrees 
 were from their nature confined to particular cases, they had 
 not the force of general laws ; but they were sometimes col- 
 lected by lawyers, and founded on as precedents for the 
 determination of similar questions. Some constitutions by 
 the worst emperors, such as Nero, Domitian, Commodus, and 
 Caracalla, are remarkable for their prudence and wisdom, 
 which is to be attributed solely to the laudable custom of 
 making laws with the advice of the most famous civilians in 
 the council of state, called Auditorium Principis. Whatever 
 may have been their original character, all the constitutions 
 
 ^ See Fragmenta Edicti Perpetui, * Ortolan, Hist, de la Legislation 
 in the Pandectse Justinianise, by Po- Komaine, t. i. p. 264. 
 thier, t, i. p. 176. 3 I. 1. 2. 6. 
 
ROMAN LAW BEFORE JUSTINIAN. 15 
 
 inserted in the Theodosian Code, and in the Code of Justinian, 
 became general laws for the whole empire.^ 
 
 Among the civilians who flourished between the^ rei^n of Celebrated 
 Hadrian and the death of jUexander Severus, we find theS''after 
 distinguished names of Po mponiu s, Cervidi us Scsevola, Gaius, ^^'^"'"' 
 Papiumi, Ulpian, Paulus ; and the brilliant series of classical 
 jurists ends with Modestinus. These men were " the great 
 lights of jurisprudence for all time." 
 
 During this golden age of Eoman jurisprudence, many law Writings of 
 books were written — commentaries on the Twelve Tables, on gaits?"*"'"'' 
 the Perpetual Edict, the Laws of the People, and the Decrees 
 of the Senate ; elaborate works on the general body of the 
 law called Digests, or Libri Juris CivUis ; elementary books, 
 under such titles as Institutiones, Eeguls, Sententiae, and the 
 like ; notes or commentaries on the writings of the earlier 
 lawyers ; and a great mass of treatises on special subjects in 
 every department of the law. Some idea may be formed of 
 the extent and variety of these works from their titles, as 
 given in the Pandects. Time has robbed us of these valuable 
 contributions to legal science, with the exception of a few 
 isolated works and the fragments which have been preserved 
 by the compilers of the Digest. 
 
 Some legal treatises which have reached us nearly in their Institutes of 
 original form, have acquired great celebrity, and are regarded 
 as classics by those engaged in the study of the Eoman law. 
 Of these the most precious are the I^sti±utBS_of_^Gams, who 
 flourished under Marcus Aurelius, about A.D. 169. For a 
 long-time this work was only knownTd us from an imperfect 
 epitome in the Breviarium of Alaric. But in 1816, Niebuhr 
 found in the library of Verona a palimpsest which contained 
 the Epistles of St Jerome ; and beneath the writing he dis- 
 covered the manuscript of Gaius. His discovery was verified 
 by Savigny, and the care of deciphering the palimpsest was 
 
 1 There has been much controversy expressions mean no more than the 
 
 as to the meaning of the lex regia imperial prerogatives, which were 
 
 mentioned in the Institutes as con- conferred by law on each emperor 
 
 ferring legislative power on the at his election. Ortolan, Institutes, 
 
 Roman emperors. It seems now to t. i. p. 265. De Fresquet, Droit 
 
 be generally understood that these Rom., t. i. p. 80. 
 
16 
 
 EOMAN LAW BBPOEE JUSTINIAK. 
 
 Fragmenta 
 Ulpiaui. 
 
 * Receptas 
 
 Sententiae ' 
 of Paulus. 
 
 Schoool of 
 law at 
 Berytus. 
 
 Decline of 
 law after 
 Alexander 
 Severus. 
 
 intrasted to Professor Goeschen, of Berlin, wlio was assisted 
 by Becker and Holweg. These Institutes of Gains, which 
 were published under the title ' Gaii Institutionum Com- 
 mentarii TV.,' are of inestimable value in what may be termed 
 the classical study of the Eoman law. They have thrown 
 new light on some important branches of law previously in- 
 volved in much obscurity, and particularly on the forms of 
 judicial procedure ; and they are of immense use in explain- 
 ing and illustrating the Institutes of Justinian, which are 
 mainly founded on this long-lost work of Gaius. 
 
 By the side of Gaius we may place the 'Fragments of 
 Ulpian,' which were preserved in a single manuscript, form- 
 ing part of the library of the Vatican, entitled, ' TituU ex 
 Corpore Ulpiani,' but now usually called 'Ulpiani Frag- 
 menta.' This little treatise, which was probably taken from 
 the 'Liber Singularis Eegularum,' is written with admirable 
 perspicuity, and contains valuable information upon a variety 
 of subjects. Next to Papinian, Ulpian holds the first rank 
 as a Eoman jurisconsult, and his works have contributed 
 more to the Digest than those of any other author. 
 
 Another work deserving of notice is the 'Eeceptse Senten- 
 tiae' of Julius Paulus, who was a contemporary of Ulpian. 
 In the Breviarium of Alaric we find an extract from this 
 valuable work, 'Pauli Sententiarum Libri quinque;' but 
 doubts exist as to the purity of the text transmitted to us.^ 
 Some r other works of less importance will be found in the 
 edition of the 'Corpus Juris Eomani Antejustinianei,' lately 
 published at Bonn. 
 
 Towards the beginning of the third century, we find a 
 special school of law established at Berytus, in Phoenicia, 
 which acquired great celebrity, and was long a distinguished 
 rival of two other schools afterwards formed at Eome and 
 Constantinople. 
 
 After the death of Alexander Severus, a.d. 235, the Eoman 
 
 ^ Reference may here be made to 
 a useful work by Dr Gneist, entitled 
 'Institutionum et Eegularum Juris 
 Komani Syntagma, exhibens Gai et 
 
 Justiniani Institutionum synopain, 
 Ulpiaui librum singularem regula- 
 rum, Pauli sententiarum deleotum,' 
 8vo, Lips., 1858. 
 
EOMAN LAW BEFORE JUSTINIAN. l7 
 
 empire, formerly so powerful, but already much enfeebled, 
 showed manifest symptoms of rapid decay. Ulpian had lost 
 his life in a vain endeavour to restrain the unbridled licence 
 of the praetorian guards, who had usurped the power of elect- 
 ing and dethroning emperors at their pleasure. Government 
 was transformed into a military despotism; confusion and 
 anarchy prevailed everywhere ; property was not secure, and 
 life was of no value. Amid the distractions of the succeed- 
 ing times, jurisprudence, like every other branch of know- 
 ledge, declined ; and the organisation of Eoman government, 
 being left to depend on the accidental character of one man, 
 could never be relied on even to secure the first necessities of 
 civilised life. 
 
 When Christianity first appeared in the Eoman world, the Political 
 law could not fail to be affected by the struggle which was for Sfcon- 
 some time maintained between the Pagan element and the «'*'"™^- 
 Christian element. In 300 years after the death of Christ, 
 we come to the reign of Constantine, which was signalised 
 by the establishment of Christianity as the religion of the 
 state ; the removal of the seat of government from Eome to 
 Constantinople ; and a new organisation of the empire by the 
 separation of the civil administration from the military power 
 which had formerly been united. 
 
 At this epoch a great change is perceptible in Eoman law. 
 If the emperor was Christian, the empire was still half Pagan. 
 Neglected in worship. Paganism long pervaded society, and 
 lived in the manners of the people. The development of Chris- 
 tianity in Eoman life led to great ameliorations in the law, 
 and brought it more into harmony with modern civilisation ; 
 but it is much to be regretted that the intolerant spirit of some 
 of the Christian emperors led to many ordinances, as absurd 
 as they were cruel, against heretics, apostates, and all those 
 who did not belong to the orthodox church. 
 
 After Constantine there were two senates, one at Eome and 
 the other at Constantinople, both without any real power. 
 They were municipal councils rather than political bodies. 
 Despotism was established without disguise; and the ancient 
 magistrates were replaced by imperial functionaries. 
 
 B 
 
18 ROMAN LAW BEFORE JUSTINIAN. 
 
 New titles The Simplicity of the early Eoman titles was no longer 
 "ntroS. suitable for the state and splendour of the Byzantine Court. 
 Already Diocletian had assumed the diadem and robed him- 
 self in purple and gold ; and Cons'tantine, following out the 
 same policy, established a titled nobility, who were to stand 
 between the throne and the people. A few of the most inti- 
 mate councillors of the sovereign were called Patricians ; and 
 the titles Count and Duke, which became so common in later 
 ages, now appeared for the first time in the Eoman world. 
 The diversity of these honorary distinctions was very great. 
 The princes of the imperial family were Nohilisdmi. The 
 principal officers and magistrates were divided into five classes, 
 according to a regular gradation of rank and office : — 1. The 
 Jllustres; 2. The Spectabiles; 3. The Clarissimi; 4. The 
 Perfectissimi ; and, 5. The Egregii. On this subject some 
 curious information will be found in a sort of almanac or 
 court guide of the fifth century, under the title ' Notitia Dig- 
 nitatum Orientis et Oecidentis,' which contains a descrip- 
 tion of all the territories of the Eoman empire, and all the 
 public functionaries employed in every department of the 
 administration.^ 
 Ordinances If the lawyers who flourished from Trajan to Alexander 
 work^of Severus had no successors, the elaborate works they left be- 
 certain jj^jj^ them Were of inestimable value in guiding the decisions 
 of the judges, towards the close of the period we are now con- 
 sidering. Constantine ordained the works of Papinian and 
 the Sentences of Paul to be received as authorities in the legal 
 tribunals ; but he declared the notes which Paul and Ulpian 
 had written iipon Papinian to be of no value. By a remark- 
 able ordinance of Tlieodosius II. and Valentinian III., in the 
 year 426, the works of five civilians, Gaius, Papinian, Paul, 
 Ulpian, and Modestinus, were established as standard autho- 
 rities in the courts of law ; if they differed, a majority was 
 decisive, but if their opinions were equally divided, a casting 
 vote was given to Papinian, who was considered the first juris- 
 consult of antiquity, and of whom Cujas has said — " There 
 never was so great a lawyer before, nor ever will be after 
 ' See the edition published by Rocking, at Bonn, in 1839. 
 
ROMAN LA.W BEFORE jtJSTlNIAN. 19 
 
 him." The notes of Paul and Ulpian on Papinian were again 
 declared to he of no weight, there heing strong reasons for 
 helieving that his commentators affected to differ from him 
 in order to disparage his memory and gain the favour of 
 Caracalla, who had put him to death. However distinguished 
 these selected jurists might be in their own age, they soon 
 fell two or three centuries behind the times ; and at a later 
 period, Justinian repealed the law of citations, by restoring 
 to the judges the full liberty of deciding suits according 
 to their own judgment, without being trammelled by the 
 opinions of any lawyers, however eminent. 
 
 On the death of the first Theodosius, a.d. 395, the Eoman Division of 
 empire was divided between his two sons, — the provinces of empire, 
 the East being allotted to Arcadius, those of the West to '^•"' ^*''' 
 Honorius ; and the two parts were never reunited, except for 
 a short time under Justinian. Notwithstanding this division, 
 however, the two parts were still considered as forming one 
 empire ; the laws were promulgated in the names of the two 
 emperors, and frequently it is only by the town from which 
 they are dated that we can discover the emperor from whom 
 they emanated.^ 
 
 As the constitutions of the emperors became numerous, Gregorian 
 they were collected in two works called the Gregorian and mogenian 
 Hermogenian Codes. These codes were framed by private ^'"^^''■ 
 individuals, probably under Constantine; but considerable 
 obscurity hangs over their date and contents, as a few frag- 
 ments only have reached us, which will be found in the 
 'Corpus Juris Antejustinianeum ' of Haenel. 
 
 A more important collection was made under the authority Theodosian 
 of Theodosius II., who ordered certain lawyers, under the 438. 
 direction of Antiochus, to collect and ai-range the constitu- 
 tions from Constantine to his own time. This new collec- 
 tion, called the Theodosian Code, was promulgated as law in 
 the Eastern empire, a.d. 438, and in the same year it was 
 adopted in the Western empire by Valentinian III. It 
 embraces a selection of the edicts and rescripts from A.D. 312 
 to 438, a period of 126 years, during which sixteen emperors 
 1 Maynz, Droit Eomain, t. i. p. 149. 
 
20 EOMAN LlW BEFORE JUSTINIAN. 
 
 succeeded to the throne. The work is divided into sixteen 
 books, and the laws which compose each title are arranged in 
 chronological order. Unfortunately, the first five books and 
 the beginning of the sixth have reached us only in a muti- 
 lated shape, as epitomised in the ' Breviarium' of Alaric ; but 
 some parts of the lost books have been recently recovered by 
 Clossius at Milan, and the AhU Peyron at Turin.^ 
 
 The Theodosian Code had much more success in the West 
 than the East, where it was soon superseded by Justinian's 
 legislation. In the West it was held in high esteem by the 
 various tribes who overran the Eoman empire. 
 
 In the seventeenth century the Theodosian Code was 
 enriched by the valuable commentary of James Godefroy, a 
 civilian of great learning and research, who devoted thirty 
 years of his life to this immense work, which was published 
 after his death in 1665.^ 
 
 Gibbon the historian says : " Among the books which I 
 purchased, the Theodosian Code, with the commentary of 
 James Godefroy, must be gratefully remembered. I used it 
 (and much I used it) as a work of history rather than of 
 jurisprudence ; but in every light it may be considered as 
 a full and capacious repository of the political state of the 
 empire in the fourth and fifth centuries."' 
 
 From the Theodosian Code to the time of Justinian we 
 
 find only a few novels or new constitutions by Theodosius, 
 
 Valentinian, Marcian, Majorianus, and Anthemius. These 
 
 are usually printed as a sort of supplement at the end of the 
 
 Theodosian Code. 
 
 Fall of After having been repeatedly invaded by the barbarians, 
 
 ^pfjg™ the Western empire was at last destroyed by Odoacer, king 
 
 A.D. 476, ^f the Heruli, in the year 476. This event marks the fall of 
 
 the Eoman empire of the West. Odoacer, in his turn, was 
 
 dethroned by Theodoric, the founder of the kingdom of the 
 
 Ostrogoths in Italy. 
 
 ^ Codicis Theodosiani Fragmenta Bor of law at Geneva, died there on 
 
 inedita, ab Amadeo Peyron. Turin, 24th June 1652. 
 
 1824. 5 Gibbon's Memoirs, p. 213, 8vo. 
 
 ^ James Godefroy, who was profes- 
 
BOMAN LAW BEFORE JUSTINIAN. 21 
 
 According to tlie common reckoning, the reigns of the 
 ancient kings extended to 244 years, the republic endured 
 478 years, and the Eoman empire of the West 507 years ; 
 making altogether a period of 1229 years from the founda- 
 tion of Eome.-^ 
 
 ' The Graeco-Eoman empire of the tinople was captured by the Turks in 
 East continued to subsist for nearly 1453. 
 a thousand years longer, tiU Constan- 
 
CHAPTEE II. 
 
 CONSOLIDATION OF THE EOMAN LAW UNDER JUSTINUN. 
 
 Jnstinian's The reign of Justinian, whicli extended from a.d. 527 to 565, 
 jmU^"-* though not unimportant in other respects, is chiefly remark- 
 (lence. q^Iq ^qj. jj^g great reform of jurisprudence. " In the space of 
 ten centuries," says Gibbon, " the infinite variety of laws and 
 legal opinions had filled many thousand volumes, which no 
 fortune could purchase and no capacity could digest. Books 
 could not easily be found ; and the judges, poor in the midst 
 of riches, were reduced to the exercise of their illiterate dis- 
 cretion."^ Justinian resolved to remedy this state of things, 
 and he conceived the happy idea of recasting the ancient 
 legislation and making it the basis of his own, by uniting 
 into one body all the rules of law, • whatever might have 
 been their origin. 
 
 In the year 528 Justinian appointed ten jurisconsults, 
 among whom was Tribonian, to select and arrange the im- 
 perial constitutions that were still in force, with large dis- 
 cretionary powers to retrench what was obsolete or objec- 
 tionable, and to make such changes as might appear to them 
 to be necessary to adapt these laws to the existing state of 
 society. The first edition of the Code was completed in 
 fourteen months, and published in April 529. 
 
 This Code, however, did not remain long in iise. After 
 
 the publication of the Pandects, Justinian in 534 appointed 
 
 a new commission of four jurists, under the direction of 
 
 Tribonian, to revise the Code and place it more in harmony 
 
 ^ Gibbon's History, ch. 44. 
 
 Code of 
 imperial 
 constitu- 
 tions. 
 
JiUMAJN LiAW UJNDEK JUSTINIAN. 23 
 
 with the Digest. This was rendered necessary, chiefly in 
 consequence of numerous constitutions issued by the em- 
 peror after the year 529, the most important of which were 
 fifty remarkable decisions given by Justinian to settle a 
 series of practical controversies among the ancient lawyers, 
 which had greatly embarrassed the commissioners engaged 
 in the preparation of the Pandects. The new code, called, 
 on account of this revision, 'Codex repetitse praelectionis,' has 
 alone come down to us, and was published with the force of 
 law in the year 534. 
 
 The Code is divided into twelve books, each book into Plan of the 
 titles, and each title is composed of a number of imperial cJde! 
 constitutions, some entire, and others mutilated, arranged in 
 chronological order. Different matters are treated separately, 
 and the order observed in the successive titles corresponds 
 with the Perpetual Edict. The constitutions bear the names 
 of the emperors by whom they were made, and their dates. 
 
 As the Code comprises the constitutions of the emperors 
 from Hadrian to Justinian, its literary character is far from 
 being uniform. "While the laws of Hadrian, and his early 
 successors at Eome, are framed with elegance and precision, 
 those published by the later emperors at Constantinople are 
 often so diffuse that it is difficult to catch their true mean- 
 ing; and in point of prolixity, Justinian himself is one of the 
 greatest offenders, though the excellence of his matter gene- 
 rally makes up for his deficiencies in form. It must also be 
 observed that many of the constitutions in the Code have 
 been altered by the compilers, so as to discredit it in a 
 historical point of view. This appears from a comparison 
 of Justinian's collection with the Theodosian Code, and is 
 strongly animadverted upon in the commentary of Godefroy. 
 
 After the publication of the first edition of the Code, Jus- The Pau-^ 
 tinian, in December 530, authorised Tribonian, with the aid of 533. ' 
 sixteen commissioners, to prepare a collection of extracts from 
 the writings of the most eminent Eoman jurists, so as to form 
 a body of law for the government of the empire, suited to the 
 wants of the age. Full power was given to this legislative 
 commission to select what only was useful, to omit what was 
 
24 EOMAJ!^ LAW UNDER JUSTINIAK. 
 
 antiquated or superfluous, to avoid contradictions, and to 
 make such alterations or corrections on the original works as 
 they might think expedient. Ten years were allowed by the 
 emperor for this immense work ; but it was completed in 
 three years. It was published, under the title of Digest or 
 Pandects, on the 16th December 533, and declared to have 
 the force of law from the 30th of that month. 
 Extracts All the juridical literature of former times was laid under 
 nhie jSs! contribution by Tribonian and his colleagues. Selections 
 from the works of thirty-nine of the ablest lawyers, scattered 
 over two thousand separate treatises, were collected in one 
 volume ; and care has been taken to inform posterity, that 
 three millions of lines were abridged and reduced, in these 
 extracts, to the modest number of one hundred and fifty 
 thousand. Among the selected jurists, only three names be- 
 longed to the age of the republic ; the civilians who flourished 
 under the first emperors are seldom appealed to; so that most 
 of the writers whose works have contributed to the Pandects 
 A.D. 131 to lived within a period of about a hundred years, from the 
 f^-.£:_ _ . • Perpetual Edict of Hadrian to the death of Alexander Severus. 
 More than a third of the whole Pandects is from Ulpian, who 
 is the largest contributor; next to him, the principal writers, 
 grouped according to the extent of the extracts taken from 
 their works, are Paulus, Papinian, Salvius Julianus, Pom- 
 ponius, Q. Cervidius Scaevola, and Gains. 
 
 Great liberties were used with the original works by the 
 compilers of the Pandects. This was a necessary consequence 
 of the instructions given to them by Justinian, to make the 
 collection consistent and suited to the new system of man- 
 ners, religion, and government. So the extracts are not 
 always trustworthy ; much has been retrenched on purpose, 
 much added, much changed, in order to produce a harmo- 
 nious whole. These interpolations are usually ascribed to 
 Tribonian, who presided over the commission, and are called 
 Emllemata Triboniani. 
 Division of According to the plan which Justinian prescribed, the 
 books and j)iggg^; js divided into fifty books. Each book, with the ex- 
 ception of the 30th, 31st, and 32d, is divided into titles, the 
 
KOMAN LAW UNDEK JUSTINIAN. 25 
 
 total number of which differs in various editions from 427 to 
 440. ^ Each title, bearing a rubric to indicate its contents, is 
 subdivided into sections, consisting of extracts from differ- 
 ent works relating to the matter speciiied in the title. The 
 articles so collected are sometimes termed laws ; but as that 
 expression is not quite accurate, they are now generally called 
 fragments. Each fragment bears the name of the author and 
 the title of the work from which it is taken, and is usually 
 divided into paragraphs, which are all numbered except the 
 first one called principium. The Digest contains at the close 
 two instructive titles, one " De verborum significatione," and 
 the other " De regulis juris." 
 
 The method which the compilers of the Pandects followed 
 in arranging the fragments under each title, is the subject of 
 a learned essay by Bluhme, an ingenious German civilian.^ 
 
 The order of the Digest has been often severely criticised, 
 and not without reason. Fault has been found with the form 
 of the extracts, and the mode in which they are ranged under 
 the different titles. A great number of the laws appear to 
 be misplaced, and to this disorder is attributed the difficulty 
 of understanding them. Though the variety of subjects em- 
 braced by the Digest is immense, it has no pretensioDS to 
 scientific arrangement. It is a vast cyclopedia of heterogene- 
 ous law badly arranged ; everything is there, but everything 
 is not in its proper place. Yet, with aU its imperfections, the 
 Digest is the collection in which the principles of the Koman 
 law are most fully developed ; and it has been justly de- 
 scribed by Sir William Jones as " a most valuable mine of 
 judicial knowledge." 
 
 When Justinian published the Digest, he prohibited the 
 works of the ancient jurists from being used for the future, 
 either in the academies or in courts of law ; and, in order to 
 prevent new controversies, all commentaries on the Pandects 
 were strictly forbidden. 
 
 By order of Justinian, an elementary work on law, called The insti- 
 the Institutes, was composed by two professors, Theophilus 533. ' 
 
 1 On this point see Zeitschrift of p. 278; De Fresquet, Droit Rom., 
 Savigny, t. iv. p. 257 ; Themis, t. iii. t. i. p. 28. 
 
26 EOMAN LAW UNDEE JUSTINIAN. 
 
 and Dorotheus, under the direction of Tribonian. It was 
 published at the close of the year 533, and received the force 
 of law at the same time as the Pandects. This work, which 
 was intended for the use of students, was chiefly founded on 
 the Institutes of Gaius, but the topics were retouched, so as 
 to place them in harmony with the changes which the law 
 had undergone. 
 
 The Institutes of Justinian consist of four books, each of 
 which is divided into titles ; and the total number of titles is 
 ninety-nine. This abridgment is limited almost exclusively 
 to matters of private law, which is considered under the 
 three-fold division of persons, things, and actions ; but at 
 the close of the fourth hook there is a title on "judicia 
 publica," a subject omitted by Gaius. Theophilus, one of the 
 compilers of the Institutes, wrote a Greek paraphrase upon 
 them. 
 
 No law-book has been so much admired for its method 
 and elegant precision, and none has been so frequently 
 printed, translated, imitated, and commented on, as the 
 Institutes of Justinian. In 1701 a work was published by a 
 learned professor with this remarkable title, ' On the deplor- 
 able multitude of commentaries on the Institutes.'^ And 
 even in our day the tide has not yet turned, for hardly 
 a year passes without adding some volumes to the camel's 
 load. 2 
 Novels of Justinian's legislation did not terminate with the publica- 
 tion of the Revised Code in 534. In the subsequent years 
 of his reign, from A.D. 535 to 565, the emperor issued many 
 ordinances, which made important changes on the law, 
 
 1 And. Homberg, De nmltitudine serve the attention of the student 
 uimia commentatonim in instituti- — Les Institutes nouvellement ex- 
 ones juris. Helmstadt, 1701, in 4to. pliqudes, by M. Ducarroy, 3 vols. 
 
 2 Vinnius, who -was professor at 8vo, 1822 - 27 ; Explication Histo- 
 Leyden about the middle of the rique des Institutes, by M. Ortolan 
 seventeenth century, published an 3 vols. 8vo, 6th edition, 1857 ; and 
 excellent commentary on the In- the Translation of Justinian's Insti- 
 stitutes, which was a favourite book tutes, with Notes, by Sandars, 1 
 of Pothier. Among recent works, vol. Svo, 1853. 
 
 three may be mentioned which de- 
 
ROMAN LAW UNDER JUSTINIAN. 27 
 
 though their number became less after the death of Tri- 
 bonian in 545. These new constitutions are written partly 
 in Greek and partly in Latin, in a style somewhat obscure. 
 They are called Novelise Constitutiones, or, more shortly, 
 Novels. They were officially published some time after 
 Justinian's death ; the whole number of Novellee is 16g, of 
 which 154 are ascribed to that emp eror, and the rest to his 
 successors, or to praetorian prefects. 
 
 A considerable part of this collection relates to matters of 
 private law; and the 118th and 127thNovels merit particu- 
 lar attention, as containing the admirable rules of intestate 
 succession devised by Justinian. — — — 
 
 Shortly after Justinian's death, Julian, a professor of law 
 at Constantinople, published a Latin abridgment of 125 
 Novels, under the title 'Epitome Novellarum.' Another 
 Latin translation of the Novels afterwards appeared, called 
 'Corpus Authenticum;' and this was the collection which 
 the Glossatores adopted, as having the authority of law. 
 
 It was the object of Justinian to comprise in the Code and 
 the Pandects a complete body of law ; and Savigny has re- 
 marked that these two works "ought properly to be con- 
 sidered as the completion of Justinian's design. The Insti- 
 tutes cannot be viewed as a third work independent of both ; 
 it serves as a sort of introduction to them, or as a manual. 
 Lastly, the Novelise are single and subsequent additions and 
 alterations ; and it is merely an accidental circumstance that 
 a third edition of the Code was not made at the end of 
 Justinian's reign, which would have comprised the Novelise 
 that had a permanent application." ^ 
 
 The Eoman law, as received in Europe, consists only of CorpuB 
 what is called the Corpus Juris Civilis — that is, according to cwiis. 
 the modern arrangement, of the Institutes, the Pandects, the 
 Code, and the Novels — and that in the form which was given 
 to this body of law in the celebrated school of Bologna. 
 According to Savigny, " It was in that form that the Eoman 
 law became the common law of Europe; and when, four 
 
 ' Savigny, Geschiohte des Kom. Rechta in Mittelalter, vol. i. p. 14 
 
28 EOMAN LAW UNDER JUSTINIAN. 
 
 centuries later, other sources came to be added to it, the 
 Corpus Juris of the school of Bologna had been so universally 
 received, and so long established as the basis of practice, that 
 the new discoveries remained in the domain of science, and 
 served only for the theory of law. For the same reason the 
 Antejustinian law is excluded from practice." Besides, even 
 with reference to the sources generally recognised, it is con- 
 ceded that the public law has no application in our days, 
 and that there are many matters of private law, such as 
 those relating to slavery and stipidation, which are entirely 
 rejected in modern times. ^ 
 Antinomies Where Contradictions occur in different parts .of the 
 dlctioM™ Corpus Juris, we must bear in mind that the new law 
 takes precedence of the more ancient. The Novels have 
 higher authority than the Institutes, the Pandects, and the 
 Code ; and among the Novels themselves the last in date are 
 preferred to the earlier ones. The Eevised Code prevails 
 over the Institutes and the Pandects, because it is more 
 recent. If there be a discrepancy between the Institutes 
 and the Pandects, it is not easy to solve the difficulty, as 
 they both received the force of law on the same day. No 
 general rule can be laid down ; each case must be considered 
 with reference to its own particular circumstances; and a 
 similar course must be followed when contradictions are 
 found between passages occurring in the same part of Jus- 
 tinian's Collection.^ 
 Mode of The mode of citing the Institutes, the Pandects, and the 
 
 Romin law. Code, anciently in use, consisted of reciting the first words 
 of the rubric of the title, as well as of the law and the 
 paragraph. This rendered it necessary to consult the index 
 to Justinian's Collection, which comprehends upwards of 
 twelve hundred titles. In modern times, the manners 
 of citing are very various ; but in this country we generally 
 adopt what Gibbon calls " the simple and rational method 
 of numberiug the book, the title, and the law." Instead of 
 the term law, some writers think it more correct to use the 
 
 1 Savigny, Droit Eomain, vol. i. ^ Maokeldey, § 77, p. 47. Maynz, 
 p. 68. vol. L p. 176, note. 
 
EOMAN LAW UNDER JUSTINIAN. 29 
 
 wovi fragment in reference to the Pandects, and constitution 
 in reference to the Code. 
 
 As to the Novels, they were cited by the Glossatores 
 Tinder the name of Anthenticse, or by the abbreviation Auth. 
 In modern times they are usually distinguished by their 
 number and chapter, thus, — Nov. 118, ch. 1. 
 
 On the merits of Justinian's Collection the most opposite Opinions on 
 opinions have been expressed. By some it has been de- JJrks.'*" * 
 nounced as a vast unshapely mass of legal lumber, which 
 has long ceased to have any practical utility. By others it 
 is extolled as the most beautiful monument raised by the 
 genius of man. One enthusiast has carried his idolatry so 
 far as to declare that, with the single exception of the Holy 
 Scriptures, there is no work comparable to the Corpus 
 Juris. On both sides of this controversy there has been 
 much exaggeration, and the truth will probably be found to 
 lie between these two extremes. Even the most ardent 
 admirers of Justinian's compilation admit its great faults 
 and imperfections ; and, after the lapse of thirteen centuries, 
 it can excite no surprise that a large portion of it is now 
 wholly inapplicable to the exigencies of modern society. 
 But, with all these drawbacks, this great body of jurispru- 
 dence, viewed as a system of private law, has unquestion- 
 ably exercised the most beneficial influence, both on moral 
 and political science, and has introduced more just and 
 liberal ideas concerning the nature of civil government, 
 and the administration of justice, in all the nations of 
 modern Europe, which rose on the ruins of the Eoman 
 empire. 
 
CHAPTEK III. 
 
 FATE OF THE ROMAN LAW AFTEK JUSTINIAN, AND REVITAL 
 OF THE STUDY IN EUROPE. 
 
 Destiny in the Hast. 
 
 Greek In the Eastern empire the Institutes, Pandects, and Code of 
 ■ Justinian, were translated into Greek. Most of the Novels 
 had been originally issued in that language. These transla- 
 tions, with abridgments and commentaries in Greek, were 
 soon preferred in the East to the originals. 
 
 The emperors of Constantinople published a great number 
 of ordinances which modified the law of Justinian ; and then 
 a series of of&cial works appeared in the Greek language, 
 which, without formally abrogating the authority of the 
 Corpus Juris, gradually led to its disuse. 
 
 TheBasi- In 867 the Emperor Basilius the Macedonian began to 
 form a new collection in Greek, containing extracts from the 
 Institutes, the Digest, the Code, and the Novels of Justinian, 
 arranged consecutively according to the subjects discussed, 
 with the imperial constitutions of later date, and even upon 
 some points drawing back upon the earlier and purer sources 
 of the Eoman law. This work, which consisted of sixty books, 
 divided into titles, was completed by his son Leo the Philo- 
 sopher, who reigned from A.D. 886 to 911, and was published 
 by him under the title of 'Basilica.' A new edition was 
 issued by Constantine Porphyrogenitus, about A.D. 945. 
 
 The 'Basilica,' which maintained their authority tiU the 
 overthrow of the Eastern empire, have not reached us entire. 
 In 1647 Fabrot published them at Paris, with a Latin version 
 
 lica. 
 
KOMAN LAW AFTER JUSTINIAN. 31 
 
 Thirty-six books are given complete, and seven incomplete, 
 with some extracts from the remaining books. Four of the 
 deficient books were afterwards discovered and published, 
 with a translation, in Meerman's ' Thesaurus Juris Civilis et 
 Canonici.' 
 
 The ' Basilica,' written in Greek, and the works of the By- Works of 
 zantine jurists, among which may be mentioned the 'Promp- junsts.'"* 
 tuarium' of Constantino Harmenopulus, a judge of Thessal- 
 onica, who died at Constantinople in 1382, are of great use 
 in explaining the books of Justinian ; for which purpose they 
 have been largely drawn upon by the famous Cujas, who was 
 the founder of the historical school of Roman jurisprudence 
 in France in the sixteenth century.^ 
 
 Destiny in the West. 
 
 The Western empire had been dismembered before the 
 reign of Justinian, and his law-books were at first only des- 
 tined for his subjects in the East. They were published when 
 the dominion of the Goths continued in Italy. 
 
 From A.D. 415, the Visigoths founded a kingdom in South- ^^^\^^ 
 ern Gaul. About the middle of the same century, the Bur- the West. 
 gundians formed a kingdom on the banks of the Ehone. 
 Odoacer, after having overturned the Empire of the West in 
 476, was himself defeated in 493 by the Ostrogoths, who 
 became masters of Italy. 
 
 For these three kingdoms three legal codes appeared First 
 in date was the Edict of Theodoric (' Edictum Theodorici'), 
 published in 500 for the kingdom of the Ostrogoths. It con- 
 tains extracts from the sources of the Eoman law, very freely 
 handled ; it is short and very incomplete. After Narses had 
 reconquered Italy in 553, the Edict of Theodoric was replaced 
 by Justinian's legislation. 
 
 The ' Lex Eomana Visigothorura,' commonly called ' Brevi- 
 arium Alaricianum,' which Alaric II. composed in 506 for 
 the Romans of the kingdom of the Visigoths, contains extracts 
 
 1 Haubold, Manuale Basilicorum, t, 9, p. 321. Mortreuil, Histoire du 
 Lips. 1819. Themis, t. 7, p. 165, and Droit Byzantin, 3 vols., 1847. 
 
32 ROMAN LAW AFTER JUSTINIAN. 
 
 from the Theodosian Code, and the Novels annexed to it ; 
 from the two works of Gains and Paulus ; from the Gregorian 
 and Hermogeniah Codes ; and from the Responses of Papin- 
 ian. Alaric's code was in force in Spain till the middle of 
 the seventh century. In France the same laws were followed 
 under the kings of the first race, in the provinces conquered 
 from the Visigoths. 
 
 Of these collections the shortest and most insignificant is 
 that which was compiled for the Burgundians, after the year 
 517, ' Lex Eomana Burgundiorum,' long known by the name 
 of 'Papianus.' This name was given to it by an error of 
 Cujas, which he afterwards corrected, Papianus being a con- 
 traction for Papiniamis, some of whose responses are given in 
 the collection. After the fall of the kingdom of the Burgun- 
 dians in 536, the Breviarium came into use.^ 
 
 By the victories of Belisarius and Narses, Justinian re- 
 covered, for a time, Italy and Africa; and, by an edict in 554, 
 he ordered his laws to be observed in the conquered terri- 
 tories. But these laws did not then penetrate beyond Italy 
 into Gaul or Spain, where such of the inhabitants as lived 
 under Eoman law were governed by the codes of the Germanic 
 conquerors, who had adopted a considerable part of the Theo- 
 dosian Code, and other sources of Eoman law, such as they 
 subsisted in the Western empire at the time of its dissolution. 
 After a short interval, the Lombards obtained possession of 
 the greater part of Italy : and the emperors of the East lost 
 what remained to them — the Exarchate of Ravenna — in 752. 
 Eoman The researches of Savigny have disproved the popular story, 
 
 whoiiy™n- which had already been discredited by Muratori and other 
 known. writers, that the Roman law had remained for centuries buried 
 in oblivion, tUl it was suddenly revived, and spread over 
 Europe, by the discovery of the Florentine copy of the Pan- 
 dects, at the sack of Amalfi, in 1135. There can be no doubt 
 that the Roman law, such as it subsisted in the Western em- 
 pire at the time of its dismemberment, never lost its autho- 
 rity, but was received in the new Gothic, Lombard, and Car- 
 lovingian kingdoms as the rule of those who by birth and 
 ^ Maynz, § 85. 
 
JtUMAK LAW — ITALIAN" SCHOOLS. 33 
 
 choice submitted to it. Besides, the works of Justinian, and 
 particularly the Pandects, were known and studied in diifer- 
 ent parts of Europe long before the siege of Amalfi. In the 
 countries of the West, Justinian's compilation seems to have 
 superseded the Theodosian Code, at some period not quite 
 fixed between the ninth and the eleventh century; and Peter 
 of Valence, in a law-book published by him in the eleventh 
 century, made use of the Institutes, the Pandects, the Code, 
 and the Translation of the Novels by Julian.^ 
 
 Revival of Roman Law in Europe. 
 
 The revival of the Roman law as a science in Europe, cor- School of 
 responded with the rise of the Italian cities. " To Italy, the a.'u?Ti*20. 
 cradle of the Eoman law," says Lerminier, "was reserved the 
 honour of being the theatre of its scientific revival."^ Irne- 
 rius was the founder of the school of law at Bologna, where 
 he gave lectures about the year 1120. The early jurists of 
 Bologna chiefly confined themselves to writing glosses, which 
 were short notes explaining what was ambiguous or obscure 
 in the original texts. These glosses were collected and recast 
 by Accursius of Florence, whose work has been severely cri- 
 ticised by some authors, who do not make sufBcient allowance 
 for the ignorance inevitable to the age in which he wrote. 
 
 From the famous school of Bologna, the knowledge of 
 Eoman law spread rapidly over Europe. The absurdities 
 which prevailed at that time in the administration of justice, 
 may be conceived from the authentic monuments which re- 
 main of the ancient barbarian laws ; and nothing tended 
 more to recommend the study of the Roman law, than the 
 extreme imperfection of that jurisprudence which preceded 
 it among all the European nations.* Vacarius, a Lombard, 
 went to England, and delivered a course of lectures at 
 Oxford, so early as 1149. He wrote a work intended for 
 poor students, consisting of extracts literally taken from the 
 
 1 Lerminier, Histoire du Droit, ' See Hume's History of England, 
 p. 462. vol. iil p. 300. 
 
 2 Ibid., p. 33. 
 
 C 
 
34 
 
 EOMAN LAW — FRENCH SCHOOL. 
 
 Scholastic 
 jurists. 
 
 French 
 school in 
 sixteenth 
 century. 
 
 Pandects and parts of the Code, with this title: 'Liber ex 
 universo enucleato jure exeerptus, et pauperibus prsesertim 
 destinatus.' King Stephen interdicted Vacarius from teach- 
 ing the Eoman law in England, and ordained all manuscripts 
 on that subject to be destroyed; but this edict had little effect, 
 and the study of the civil law was promoted by the clergy, 
 who engrossed all the learning of the times, and fiUed the most 
 important offices in the kingdom. 
 
 To the Glossatores succeeded the Scholastic lawyers, who 
 figured from the thirteenth to the ebd of the fifteenth century, 
 and among whom Odofredus, Bartolus, and Baldus are con- 
 spicuous. They are sometimes called Bartolists, and are 
 charged with sacrificing the authority of the original texts of 
 the Eoman law to the private opinions of the commentators ; 
 their tiresome prolixity, idle subtleties, and barbarous style, 
 have now almost condemned their works to total oblivion. 
 
 During four centuries the cultivation of the science of law 
 in Europe was chiefly confined to the schools of Italy, where 
 jurisprudence flourished by the side of literature and poetry. 
 Dante was born five years after the death of Accursius ; Pet- 
 rarch and Boccaccio were contemporaries of Bartolus ; and 
 when the Greeks were driven from Constantinople, some 
 noble exiles repaired to Italy, where they diffused a taste for 
 polite literature as well as for history and antiquities, and, by 
 raising the standard of learning, greatly improved jurispru- 
 dence. Angelus Politanus, who died in 1494, takes high 
 rank as one who powerfully contributed to unite classical 
 literature with the study of law. 
 
 In the sixteenth century, the science of theoretical law 
 passed from Italy to Prance. On the invifation of Francis I., 
 Andrew Alciat of Milan went to Boiirges, where he delivered 
 lectures on Eoman law, and attracted great crowds of stu- 
 dents. He was one of the first who combined the study of 
 law with polite learning and the knowledge of antiquities. 
 Bayle describes Alciat as a tall burly man, of a restless dis- 
 position, very fond of money and good living, and says he 
 died of a surfeit at Pavia in 1550.* 
 
 ^ See Bayle'a Diet. Hist., voce Alciat. 
 
ROMAN LAW — PEENCH SCHOOL. 35 
 
 About tlie year 1650, Cujas, better known, perhaps, under 
 his Latin name Cajacius, became professor at Bourges, the 
 principal scene of his labours, -where he acquired great 
 renown and founded the historical school of jurisprudence. 
 Though his writings are voluminous from the great variety 
 of subjects embraced by them, they are not diffuse ; on the 
 contrary, he combined the art of lucid explanation with 
 great brevity. His famous Paratitla on the Digest contains 
 a brief exposition of every title in order, with little additional 
 matter ; and his great rival, Hotman, prized this little book 
 so highly, that he advised his son to carry it constantly about 
 with him. Among all the interpreters of Eoman law who 
 have appeared in modern Europe, Cujas is generally acknow- 
 ledged to hold the first rank. His works make an epoch in 
 jurisprudence ; and we are told that, in the public schools 
 of Germany, such was his renown, that when his name was 
 mentioned every one took off his hat.^ Cujas, who was a 
 native of Toulouse, died at Bourges in 1590.^ 
 
 Doneau, a professor of Bourges, who was strongly opposed 
 to Cujas, wrote independent treatises on Eoman law in vigor- 
 ous Latin. In 1567, Francis Hotman published his 'Anti- lAuti-Tri- 
 Tribonianus,' to mortify Cujas, and please the Chancellor de gotmTn.' "^ 
 rH6pital. In this work Hotman declares war against the 
 whole Eoman law. Not only does he malign Justinian and 
 Tribonian, but he has no admiration to spare even for the 
 classical jurists, such as Papinian, Paul, and Ulpian. The 
 learned and acute author of this curious book is the father of 
 the Anti-Romanists. He recommended that a new code of 
 laws should be framed, taking whatever was valuable in the 
 Eoman system, and adding whatever from other sources might 
 appear worthy of adoption. These opinions were favourably 
 received by many lawyers in France ; and this party had so 
 much influence, that, by the ordinance of Blois in 1579, the 
 University of Paris was forbidden to give lectures on civil 
 law. This was not strictly regarded ; and, in a century after- 
 
 1 Biog. Univ. Hallam's Litera- see Lerminier, Hist, du Droit, p. 48, 
 ture of Europe, voL iL p. 72. note. 
 
 2 Por a list of his principal works. 
 
36 ROMAN LAW — SPAIN AND NETHEELANDS. 
 
 wards, the lectures were resumed, on account of the uncer- 
 tainty which the neglect of the Eoman law was said to have 
 occasioned.^ 
 
 In order that the French law might receive in the sixteenth 
 century the same impulse as the Koman law did from Cujas, 
 Charles Dumoulin appeared. He was an advocate of the 
 Parliament of Paris, and was esteemed, at his death in 1566, 
 the most learned man of his time in the civil and customary 
 law of France. In his commentaries on the customs of Paris, 
 Dumoulin combined so admirably the Eoman law with that 
 of France, that all who have come after him have followed 
 him as their master ; he paved the way for the works of 
 Pothier ; and he may be said to hold the same place as a 
 jurist in France, as Sir Edward Coke does in England, and 
 Lord Stair in Scotland. 
 School of In Spain and the Netherlands, the Eoman law was culti- 
 limds. °' ^' vated with great success, particularly after the sixteenth cen- 
 tury. A school was formed in the Netherlands, which, if it 
 did not surpass, at least deserves to be placed alongside of the 
 French school of the sixteenth and seventeenth centuries. 
 Among other able civilians, Holland may be justly proud of 
 such men as Grotius, Van Leeuwen, Vinnius, Huber, Voet, 
 Schulting, ISToodt, and Bynkershoek ; and so high was the 
 reputation of her professors, that for a considerable time they 
 acquired pre-eminence over the French, and attracted large 
 crowds of students to Leyden and Utrecht, in place of Bourges 
 and Toulouse. 
 
 In the seventeenth and eighteenth centuries, the Eoman 
 law was discussed, improved, and illustrated by many able 
 writers besides those already mentioned, such as the Gode- 
 froys, Domat, Gravina, Heineccius, Bach, and Pothier. 
 Heinecciua In threading his way through the labyrinths of Eoman 
 law. Gibbon acknowledges that he found an able guide in 
 Heineccius, a German professor, who died at Halle in 1741. 
 Heineccius enjoyed great authority as an elegant writer on all 
 that was known on this subject in his time ; he wrote a his- 
 tory of Eoman law and German law. His Eoman Antiquities, 
 1 Hallam's Literature, vol. ii. p. 75. 
 
 and Bach. 
 
ROMAN LAW — 17TH AOT) 18TH CENTURIES. 37 
 
 particularly in the new edition brought out by Haubold.have 
 been much admired, and are considered by many as his best 
 work. As to his elementary treatises on the Institutes and 
 the Pandects, they are written in a concise and perspicuous 
 style, and were long adopted as text-books in some of the 
 principal universities of Europe; but they have now lost 
 much of their value by the labours and discoveries of the 
 historical school. Bach, another German civilian, who died 
 in 1758, was, before the advent of the historical school, the 
 best historian of the Eoman law. 
 
 Eapid and imperfect as this sketch must necessarily be, it 
 would be unpardonable to pass over Pothier. He died in 
 1772, before the French Eevolution, after writing those cele- 
 brated works on French jurisprudence which brought it to 
 the highest perfection it ever attained before the formation of 
 the Codes. But his laurels were not confined to one field of 
 glory. For it was reserved to Pothier to realise the magni- 
 ficent project of Leibnitz, which was to reform the Eoman 
 law of Justinian, by reducing it to systematic order, without 
 destroying the purity of the original texts.^ 
 
 About the middle of the eighteenth century Pothier pub- PotWei's 
 lished his great work, entitled ' Pandectse Justinianese in 
 novum ordinem digestte.' Sensible of the great imperfections 
 of Justinian's collection in point of arrangement, Pothier 
 resolved to throw light over this chaos of Eoman law, and to 
 do for it what Tribonian and his associates ought to have 
 done — that is to say, to collect together the texts which were 
 scattered through these immense books, to elucidate these 
 texts one by the other, and that solely by the manner in 
 which they were placed and connected ; in a word, by sub- 
 stituting order for confusion, to render almost useless the 
 innumerable commentaries under which the buried texts had 
 groaned for ages. Nothing could exceed the boldness of this 
 
 ^ This merit has been erroneously day, particularly in France. But it 
 ascribed by Mr Hallam (Literature did not carry into eflfect the project 
 of Europe, vol. iii. p. 447) to Domat, of Leibnitz, being a systematic trea- 
 ■vcho published in 1689 his ' Loix tise in the French language, and not 
 Civiles dans leur Ordre Naturel,'— a a rearrangement of the laws of Jus- 
 book which had great success in its tinian. 
 
38 ROMAN LAW — 17TH AND 18TH CENTUEIES. 
 
 design; it seemed to surpass the resources of any single 
 man, and to require time exceeding the ordinary duration of 
 human life. And how was this herculean task accomplished? 
 After twelve years of continuous lahour, Pothier produced a 
 work written in Latin, in which he preserved the ancient 
 division of the books and titles of the Pandects, but re- 
 arranged the texts under each title according to their natural 
 order, so that each title forms a complete treatise on the sub- 
 ject indicated in the rubric. Immediately after the exposition 
 of the subject are placed the texts containing definitions and 
 general principles. Methodical divisions and subdivisions 
 facilitate the classification and understanding of the other 
 texts. The ancient law is explained and illustrated, and great 
 care is taken to show how far its provisions have been con- 
 firmed, interpreted, modified, or repealed by the Institutes, 
 the Code, and the Novels. Antinomies are either reconciled 
 or explained, and obscure texts are elucidated in notes of 
 remarkable clearness and brevity. Whatever is the work of 
 the author, the transitions by which he has so skilfully con- 
 nected the laws so as to show their relation to each other, the 
 notes, equally learned and concise, with which he has illus- 
 trated them, are all clearly distinguished by being printed in 
 italics, and by this ingenious device the texts are presented 
 in their original purity. ' 
 
 Of the utility of this work of Pothier to the students of 
 Eoman law it is impossible to speak too highly, though the 
 method followed is diametrically opposed to that of his coun- 
 tryman Cujas. In explaining the Eoman law to his scholars, 
 Cujas, like a literary antiquarian, reunited all the extracts 
 from the same jurisconsult which are scattered in the Digest; 
 it was not, properly speaking, the Pandects he made them 
 read — it was Ulpian, Paul, Papinian. On the other hand, 
 Pothier in his Pandects has dealt with his subject Hke a 
 practical lawyer — ^he has preserved the same distribution and 
 the same sequence of books and of titles; but he has changed 
 the order of the laws ranged under these titles, and combined 
 in one view all that relates to the same matter. Por this 
 reason, whoever wishes thoroughly to understand the topic 
 
ROMAN LAW — BRITAIN, 39 
 
 discussed under any particular title of the Digest, should 
 carefully peruse all the texts under that head in Pothier's 
 Pandects, where he will find brought together in one view, 
 not only what is scattered under different titles of the Digest, 
 but what relates to the same matter in the Institutes, the 
 Code, and the Novels. 
 
 To Eoman jurisprudence, it must be confessed, Britain Civilians 
 has contributed very little. Arthur Duck, an Englishman, ' 
 acquired some reputation for a succinct treatise in Latin, on 
 the use and authority of the civO. law in different countries 
 in Europe. The ' Elementa Jurisprudentiae ' of Dr Eichard 
 Zouch, published at Oxford in 1629, and reprinted by the 
 Elzevirs at Leyden, is an excellent epitome of the leading 
 doctrines of the Eoman law. ' Wood's Institutes ' have long 
 been thought antiquated. Without undervaluing the learn- 
 ing and research of Dr Taylor, his ' Elements of the Civil Law' 
 are very imperfect, the subjects disci^ssed being of very 
 limited extent, while the bulk of the book is swelled by 
 numerous digressions and long quotations from Greek and 
 Eoman authors. Dr Browne's 'View of the Civil Law' con- 
 tains some interesting comparisons between the Eoman system 
 and the English law, and, though not free from inaccuracies, 
 is a work of considerable merit. In the 44th chapter of his 
 History, Gibbon has given a rapid and masterly sketch of 
 the Eoman jurisprudence — a wonderful effort of genius, to 
 which it would be difficult to find a parallel in the writings 
 of the professed civilians. Hugo translated this celebrated 
 chapter into German in 1789, and Warnkoenig published a 
 French version of it, with notes, in 1821. Within the last 
 few years a considerable number of works on Eoman law 
 have issued from the English press. Of these the most 
 remarkable is an elaborate treatise in four volumes published 
 by Dr Colquhoun, formerly a pupil of Thibaut, and now a 
 judge in the Ionian Islands. 
 
 That the Eoman law exercised considerable influence on 
 the law of England cannot be doubted; for Bracton, and 
 other early writers, who contributed much to the formation 
 of the English law, borrowed many rules and principles from 
 
40 EOMAN LAW — BKITAIN. 
 
 the civilians. Though the old English conamon lawyers 
 showed great aversion to the Eoman law, the Crown and the 
 Church were generally arrayed in its favour. Everywhere 
 the churchmen combined the study of the civil law with 
 their own canons, and degrees in both laws were given in 
 the universities. The EngUsh system of equity and the eccle- 
 siastical law have been formed more or less extensively on 
 the Eoman law, or on the Eoman through the Canon law. On 
 the other hand, the English people, jealous of their national 
 freedom, had a rooted dislike to the public law of the Eomans, 
 which set no limits to the royal prerogative, and placed the 
 prince beyond the control of any other power ; and therefore, 
 when at various times attempts were made in Parliament to 
 introduce changes founded on the Eoman law, these innova- 
 tions were strenuously resisted by the English barons, from 
 a natural apprehension that they might prove injurious to 
 the liberties of the subject.^ In every free country there are 
 good grounds for rejecting the public law of the Eomans, as 
 being suitable only for an absolute government ; but this 
 circumstance does not derogate from the excellence of their 
 private law, the value of which is acknowledged by the most 
 eminent English jurists. Mr Austin observes : " The im- 
 portance of securing the existence of a body of lawyers with 
 a somewhat extensive knowledge of the civil law is not to 
 be disputed. Questions arise incidentally in all our tribunals 
 on systems of foreign law, which are mainly founded on the 
 civil. The law obtaining in some of our colonies is prin- 
 cipally derived from the same original; and questions arising 
 directly out of colonial law are brought before the Privy 
 Council by way of appeal." ^ 
 
 In Scotland the Eoman law was much more favourably 
 received than it was in England. From the close alliance 
 that so long subsisted with France, Scotland borrowed many 
 of its institutions from that country, besides importing a 
 large portion of Eoman jurisprudence to make up the defici- 
 encies of a municipal law, long crude and imperfect, and which 
 
 1 Dr Kurd's Moral and Political ' Austin's Lectures on Jurispru- 
 
 Dialogues, vol. ii. p. 194-209. dence, vol. iii. p. 367. 
 
EOMAN LAW — GERMAN SCHOOL, 41 
 
 had made little progress as a national system till some time 
 after the establishment of the Court of Session in 1532. 
 King James V. instituted that court, as Sir George Macken- 
 zie informs us, after the model of the Parliament of Paris ; 
 and, by its original constitution, the ordinary judges were 
 composed of seven churchmen and seven laymen, with a pre- 
 sident. Properly speaking, the teaching of the civil law com- 
 menced in Scotland at the Eeformation, in 1560. Previous 
 to that era, it was a common practice for young men destined 
 for the legal profession, upon finishing their course of educa- 
 tion in Scotland, to go abroad and prosecute their studies in 
 civil law at one or more of the universities on the Continent; 
 and this practice continued to a considerable extent with 
 those who wished to attain proficiency in this department 
 of jurisprudence, long after chairs for teaching it had been 
 established in the Scottish universities. In Scotland a know- 
 ledge of the Roman law has always been regarded as the best 
 introduction to the study of the municipal law. No person 
 can be admitted a member of the Faculty of Advocates with- 
 out undergoing an examination in both laws. The judges of 
 the Supreme Court are usually selected from that body ; and 
 by an express article of the Treaty of Union, no one, not an 
 advocate, can be appointed a judge of the Court of Session 
 without passing an examination in Roman law. All the 
 best writers on the law of Scotland, such as Stair, Bankton, 
 Erskine, and Bell, were able civilians ; and though they have 
 not produced separate treatises on the subject, their works 
 abound with admirable illustrations of the Roman law, evinc- 
 ing great learning and research, and a familiar acquaintance 
 with the writings of the Continental jurists. 
 
 Since the close of the eighteenth century a new historical Historical 
 school has sprung up in Germany, where the study of Roman gemany. 
 jurisprudence has been prosecuted with extraordinary ardour 
 and success. By the discovery of some ancient works, dis- 
 closing new sources of information, something like the en- 
 thusiasm of the sixteenth century has been rekindled. The 
 Institutes of Gains, the new constitutions of the Theodosian 
 Code, the ' Fragmenta Yaticana,' the 'Republic ' of Cicero, the 
 
42 EOMAN LAW — GERMAN SCHOOL, 
 
 Letters of Pronto and Marcus Aurelius, the 'Ehetoric' of 
 Julius Victor, the fragments of Symmachus, of Dionysius of 
 Halicamassus, of Lydus on Magistrates, have opened up a 
 rich mine for the investigation of the modern German jurists. 
 Facts formerly unknown have been revealed ; ancient errors 
 traditionally received have been exploded ; and Eoman law, 
 as a science, has in many respects assumed a new aspect. 
 To this department of knowledge the writings of Hugo, Hau- 
 bold, Thibaut, Niebuhr, and Savigny have given a wonderful 
 impulse. In 1811 M. Niebuhr published the first edition 
 of his ' Eoman History ; ' but he afterwards saw reason to 
 modify many of his views. Frederick Charles von Savigny, 
 professor of law at Berlin, who died in October 1861, in the 
 83d year of his age, stood at the head of the historical school 
 of Germany. Besides a treatise on Possession, published in 
 1803, he is the author of two celebrated works — ^first, the 
 ' History of the Eoman Law during the Middle Ages,' and, 
 secondly, the ' System of actual Eoman Law,' both being dis- 
 tinguished by great erudition and learning. To Charles de 
 Vangerow, professor of Eoman law at Heidelberg, we are 
 indebted for an admirable treatise on the Pandects (' Lehrbuch 
 der Pandecten,' 3 vols., 6th edition, 1855) ; this contains a 
 clear exposition and probably the best solutions of the con- 
 troversies on the civil law which have engaged the attention 
 of modem jurists. Nor, among other eminent German civil- 
 ians in our day, must we omit to mention Mackeldey, Mare- 
 zoU, and Warnkoenig, who are the authors of excellent ele- 
 mentary works on Eoman law, which we have found extremely 
 useful in guiding our researches. 
 
 In some countries of Europe, and particularly in France 
 and Germany, the publication of new civil codes has super- 
 seded to a considerable exteiit the practical application of the 
 Eoman law ; but this circumstance has not proved so injuri- 
 ous to the study of that law as was often predicted by the 
 adversaries of the historical school. For, as MarezoU has 
 justly remarked, the Eoman law not only possesses a univer- 
 sal scientific value, which it can never lose, but preserves 
 also indirectly a practical value, in this sense, that it forms 
 
ROMAN LAW — GERMAN SCHOOL. 43 
 
 the tasis of the new civil codes of different states, besides 
 furnishing an inexhaustible store of general principles for the 
 decision of questions constantly occurring in daily practice 
 which are not settled by statute, precedent, or usage. In 
 giving judgment in Acton v. BlundeU, Chief-Justice Tindal 
 observed : " The Eoman law forms no rule binding in itself 
 on the subjects of those realms ; but in deciding a case upon 
 principle, where no direct authority can be cited from our 
 books, it affords no small evidence of the soundness of the 
 conclusion at which we have arrived, if it prove to be sup- 
 ported by that law — the fruit of the researches of the most 
 learned men, the collective wisdom of ages, and the ground- 
 work of the municipal law of most of the countries of 
 Europe." ^ 
 
 1 12 Meeson and Welsby, p. 324. 
 
PRELIMINAEY CHAPTER. 
 
 ON JUEISPEUDENCE AND THE PEINCIPAL DIVISIONS OF LAW. 
 
 The object of this chapter is to take a cursory glance at juris- 
 prudence as a science, and to make some general observations 
 on the principal divisions of law which form the subject of a 
 course of legal education. In some Continental universities, 
 chairs are set apart for this general instruction, as forming 
 the best introduction to the studj' of law in any of its special 
 departments. 
 
 Jurispru- Jurisprudence, in its literal sense, means knowledge of law. 
 
 defined. Ulpian, who entertained very lofty ideas of his favourite 
 study, defined jurisprudence to be the knowledge of things 
 divine and hiiman, and the science of right and wrong.^ 
 According to modern notions, jurisprudence is the science 
 or philosophy of positive law — that is, law established in 
 an independent political community by the authority of its 
 supreme government. By positive law jurists understand a 
 collection of rules, to which men living in civil society are 
 subjected in such a manner that they may, in case of need, 
 be constrained to observe them by the application of force. 
 General jurisprudence investigates the principles which are 
 common to various systems of positive law, apart from the 
 local, partial, and accidental peculiarities of each ; while par- 
 ticular jurisprudence treats of the law of a determinate nation, 
 such as France or England.^ By French writers, jurispru- 
 dence is sometimes used in a technical sense to denote law 
 
 1 " Jurisprudentia est divinarum ^ Austin, Lectures on Jurispru- 
 atquehumanarumrerumnotitia, justi dence, vol. iii. p. 349 et seq. 
 atque injueti scientia." — I. 1. 1. 1. 
 
GENERAL PRINCIPLES OF LAW. 45 
 
 founded on judicial decisions, or on the writings of lawyers ; 
 and in popular language it is frequently employed with us 
 as synonymous with law. 
 
 Natural justice or equity consists in doing what is right justice 
 in the circumstances of each particular case. Legal justice fe*'"'*^ """^ 
 means acting in conformity with positive law. 
 
 Justice was defined by Ulpian to be a constant and uniform 
 disposition of mind to render to every one his due.^ Judicial 
 tribunals, liowever, without diving into the motives of men, 
 only take cognisance of their external actions, which in a 
 legal sense are accounted just or unjust, according as they 
 are or are not in conformity with positive law. 
 
 As the science of ethics embraces the whole range of moral Relations 
 duties, its province is evidently much wider than that of "^'^°^fj'™ 
 jurisprudence, which treats only of those duties that can be "<>raiity. 
 enforced by external law. To explain these distinctions, 
 writers on ethics affirm that what is enjoined by jurispru- 
 dence is of perfect obligation, and what is enjoined by mo- 
 rality is of imperfect obligation — that is, that we may or may 
 not do what our conscience dictates, but that we can be com- 
 pelled to do what positive law directs. 
 
 Experience shows that the number of actions which are 
 commonly withdrawn from the free will of the individual, 
 and regulated by state legislation, is exceedingly various, 
 being sometimes more and sometimes less, so that no limits 
 can be assigned to the domain of law. Of positive moral 
 rules, some are laws properly so called, being transcribed 
 into the civil law, and adopted by it; while others are 
 merely rules imposed by opinion, and not imperative, the 
 obligation to observe them resting only upon the conscience. 
 
 The divine law, morality, and positive law, are related to 
 each other in various ways ; and it has been observed, that 
 " there are cases wherein they agree, wherein they disagree 
 without conflicting, and wherein they disagree and conflict."^ 
 
 When Hobbes affirms that "no law can be unjust" — an 
 
 ^ " Justitia eat constana et perpe- ^ Austin, Province of Juriepru- 
 tua voluntas jua suum cuique tribu- denoe Determined, p. 17. 
 endi."— I. 1. 1. pr. 
 
46 DIVINE LAW. 
 
 assertion which may appear to many a startling paradox — ^he 
 means, that no positive law is legally unjust; and this is 
 quite correct. For, according to the explanation already 
 given, the measure or test of legal justice and injustice is 
 positive law. But, although an act may he just, as tried by a 
 given law, the law itself may be unjust, as measured by a dif- 
 ferent standard, such as the divine law, or positive morality. 
 " Though it signifies conformity or nonconformity to any 
 determinate law, the term justice or injustice sometimes de- 
 notes emphatically conformity or nonconformity to the ulti- 
 mate measure or test — namely, the Law of God. This is 
 the meaning annexed to justice, when law and justice are 
 opposed."^ 
 Principal Before entering upon the special subject of Eoman law, it 
 ofTaw!'" m^'y be useful to give a short explanation of the principal 
 divisions of law. These may be considered under the follow- 
 ing heads : 1. The Divine Positive Law ; 2. Natural Law ; 
 3. The Positive Law of Independent States; and, 4. The 
 Law of Nations, or International Law. The divine law, 
 though of vast importance to all men, is the province of the 
 theologian ; natural law is a branch of practical morality ; 
 the positive law of different states is the proper study of pro- 
 fessional lawyers ; and the modern law of nations, which 
 regulates their mutual relations, is an object of the most 
 lively interest, not only to jurists and publicists, but to 
 statesmen and politicians of every class throughout the 
 world, 
 
 I. — OP DIVINE POSITIVE LAW. 
 
 Divine The positive law of God is that which concerns the duties 
 
 Lw'."™ of religion, being the principles regarding faith and manners 
 
 revealed in the Holy Scriptures. The precepts derived from 
 
 revelation are called the divine positive law, as distinguished 
 
 from the divine natural law, which is composed of principles 
 
 recognised by reason alone, without the aid of revelation. 
 
 Though it may be possible for us, by the use of our reason 
 
 ^ Austin, note, p. 276 et seq. 
 
NATURAL LAW. 47 
 
 to discover the natural difference between good and bad 
 actions, or between virtue and vice, divine revelation is of in- 
 finitely more value than any moral system framed by ethical 
 ■writers, not 6nly in making known to us the rule of duty, 
 but in establishing our obligations to observe it. For the 
 voice of revelation is the most authoritative and authentic 
 declaration of the wiU of God. Besides instructing the 
 ignorant and the careless, it will help " to teach the rule of 
 duty even to those who are the most diligent inquirers ; be- 
 cause, as the knowledge of God is infinitely superior to our 
 own. His declarations about the nature and consequence of 
 our actions wiU be a surer guide to us than our own experi- 
 ence and reasonings can be."^ 
 
 II. — OF NATURAL LAW. 
 
 Natural law, the existence of which has sometimes been Roman 
 contested, has been a fertile subject of controversy. The idea "atoai iL. 
 which the Eomans attached to the jus naturale is singularly 
 vague and uncertain. By Ulpian it is described as the law 
 which nature has taught all living creatures, so as to be com- 
 mon to men and beasts ;" but this notion has been generally 
 condemned, the law of nature in a proper sense being peculiar 
 to rational beings. Sometimes it is used as equivalent to 
 equity, and sometimes it is represented as synonymous with 
 the jm gentium.^ In a very striking passage of his work, 
 ' De Eepublica,' Cicero has given us his views of natural law, 
 declaring God* to be its author, and its duties to be of un- 
 changeable obligation. " It is not," therefore," says he, " one 
 law in Eome and another in Athens, one to-day, and another 
 to-morrow ; but it is ever the same, exerting its obligatory 
 force over aU nations and throughout aU ages."* 
 
 There is some difference in the theories of writers on the Opinions 
 law of nature. Chancellor Kent, following very nearly the "^d otw 
 
 ■writers. 
 
 1 Rutherforth, Institutes of Natu- " Gains, D. 1. 1. 9. I. 1. 2. 1. 
 ral Law, voL i. p. 21. * Cicero de Republica, lib. iii. 2.3. 
 
 2 D. 1. 1> 3. 
 
48 NATURAL LAW. 
 
 definition of Grotius, says: "By the law of nature, I under- 
 stand those fit and just rules of conduct which the Creator 
 has prescribed to man as a dependent and social being, and 
 which are to be ascertained from the deductions of right 
 reason, though they may be more precisely known and more 
 explicitly declared by divine revelation."^ This law is said 
 to be written on the heart of every man by the finger of God, 
 so that no one can pretend ignorance of it, and being essen- 
 tially just, its authority is the- same at all times and in all 
 places. 
 
 Many writers, like Dr Paley, consider natural law as equi- 
 valent to moral science, which embraces our duties to God, 
 to our neighbours, and to ourselves.^ Others apply the term 
 natural law exclusively to the rules prescribed to man by 
 right reason in his conduct to his fellow-men.' A third class 
 use this term in a still more restricted sense, to denote the 
 theory of that part of our duties to our fellow-men which is 
 capable of being enforced. 
 
 In discussing the question whether natural law is the same 
 as the moral law, or, if they differ, in what the difference con- 
 sists, M. Serrigny observes : " The moral law, taken in a large 
 sense, appears to me to embrace all the rules of conduct pre- 
 scribed to man by his reason either towards himself or to- 
 wards God. Natural law, equally in a large sense, is often 
 taken for the collection of the rules of conduct prescribed to 
 man by right reason ; but, in a restricted sense, it relates 
 exclusively to that branch of the same rules of conduct by 
 man to his fellow-creatures, which oblige him in a stricter 
 manner, and which may furnish matter for an actual law in 
 favour of others against him. In other words, natural law 
 embraces that part of the duties of man towards his fellow- 
 creatures which may be sanctioned by written law ; while 
 the moral law, besides the duties of man towards himself 
 
 1 Wightman, i Johns, Ch. E., 343. de la morale qui embrasse tous les 
 Cited in Story's Conflict of Laws, p. devoirs des hommes les xms envers 
 208, note. les autres." — De Presquet, Traitg 
 
 2 Paley's Moral Philosophy, book Elementaire de Droit Romain, t. i. 
 i. chap. i. p. 1. p. 11. 
 
 ' " Le droit naturel, c'est la partie 
 
NATUEAL LAW. 49 
 
 and towards God, comprehends that part of his duties to- 
 wards others, which do not oblige him in a legal sense, and 
 do not become matter for the sanction of the civil law." ^ 
 
 Among early writers, natural law was more a system Modem 
 of morals than a theory of law. It is only recently that an German 
 attempt has been made, chiefly by German philosophers, to ™"'®'''' 
 separate natural law from morality, by distinguishing human 
 duties into those the performance of which may be compelled 
 by external force, and those which must be left entirely to 
 the conscience of the individual. On the relation of natural 
 law to positive there is great want of precision among the 
 German writers, and they leave undecided the question, 
 whether the law of nature should be regarded merely as a 
 branch of morality, or whether its principles should be prac- 
 tically applied in judicial tribunals.^ As moral law leaves 
 everything to conscience, it is generally considered that a 
 judge can only enforce moral duties when they are also re- 
 cognised by positive law.^ 
 
 There are common rules of justice dictated by reason and 
 founded on the rational nature of man, which are not pecu - 
 liar to any one nation, but are universally recognised ; and 
 although these rules would be morally binding on men liv- 
 ing in a social state independently of human institutions, 
 yet a great part of the civil law is taken up in confirming 
 and enforcing them. Where the law of nature absolutely 
 commands or forbids, it is immutable and of universal obli- 
 gation, so that, although it may be confirmed, it cannot be 
 controlled by human laws without a manifest violation of 
 the divine will. There are many things, however, which, as 
 moral agents, we are at perfect liberty to do or not to do, 
 without infringing our moral duties ; so that a wide field is 
 • left open for the operation of what is called the law of the 
 land. 
 
 1 Serrigny, Traitg du Droit Pub- PeUat, p. 113. 
 
 lie des Franjais, t. i. p. 92. - ' Lindley's Introduction to Study 
 
 2 Falck, Enoyclop^die Juridique, of Jurisprudence, p. 9. 
 traduite de I'Allemand par C. A. 
 
50 
 
 POSITIVE LAW 
 
 Diversities 
 of law in 
 different 
 states. 
 
 Many 
 positive 
 rules 
 arbitrary. 
 
 III. OF THE POSITIVE LAW OP INDEPENDENT STATES. 
 
 Positive law, "wlien applied to a determinate nation, such 
 as France, Spain, or England, is the collection of rules of 
 civil conduct prescribed and enforced by the supreme power 
 in the state. Differences in climate, locality, wealth, com- 
 merce, civilisation, manners and customs, and an infinite 
 variety of external circumstances and relations, lead to an 
 endless diversity of laws among different nations.^ 
 
 For the same reasons the law of the same people under- 
 goes constant changes, independently of the action of the 
 legislative power. Nor can this instability be justly re- 
 garded as a reproach. For it is impossible to imagine a 
 body of positive law equally fitted for all times and circum- 
 stances ; and experience shows that the symmetry of a sound 
 philosophical system of jurisprudence can only be maintained 
 by adapting it from time to time to the progress and com- 
 mon feelings of the people. 
 
 In every civilised state there are numerous rules of positive 
 law which are purely arbitrary, and admit of being repealed 
 or altered without doing injustice to any one. Thus the 
 form of solemnising marriage, the number of witnesses re- 
 quired for a testament, the proper age for legal majority, the 
 term of years necessary for prescription, the procedure to be 
 observed in courts of law, and a multitude of other things, 
 are all left indifferent by the law of nature, and are fixed by 
 mere arbitrary regulations, which are different in different 
 states, and may be changed at any time on grounds of public 
 convenience. 
 
 Nothing, however, is indifferent, when positive law has 
 once enjoined or prohibited it. If the authority of the law- 
 giver be sufficient, the law must be respected in small things 
 as well as in great, without regard to its wisdom or import- 
 ance ; and, if required, the whole power of the state may be 
 
 ^ Pascal has expressed himself ou ime montagne borne : veritfi en 
 
 with bitter irony on the diversities deja des Pyrenges, erreur au dela. " 
 
 of law in different countries : — — PensSes, part i. art. vi. § 8. 
 "Plaisante justice qu'uue rivifere 
 
OF VARIOUS STATES. 51 
 
 employed to enforce obedience. For " laws are mere nullities 
 without the force necessary to support them ; " and if the 
 breach of any one law, however trivial, were tolerated, it 
 would demoralise the people, by diminishing the habit of 
 respect for other laws of vital importance to the public 
 welfare. 
 
 Apart from the element of force, obedience to the just Moral 
 laws of our country is generally acknowledged to be a moral of positWe 
 duty binding on the conscience. This conclusion is rested '*""' 
 not only on the deductions of reason, but on Scriptural 
 grounds ; and Jeremy Taylor, in a learned dissertation on the 
 subject, declares this doctrine to be " certain as an article 
 of faith, and as necessary as any rule of manners." No 
 doubt, if the laws of man are directly at variance with the 
 declared will of God, the last must be obeyed as of paramount 
 authority, whatever penalty may thereby be incurred. But 
 no man is wiser than the law, and it must always be pre- 
 sumed, tin. the contrary be proved, that the human law is 
 just, and not opposed to the divine law ; so that disobed- 
 ience is presumptively wrong in morals, and the responsi- 
 bility, in case of error, lies on him who disobeys.^ 
 
 The best contrived laws being intended for general use, it imperfec- 
 
 " ° tions m 
 
 is impossible to shape them so correctly as to suit all the all legal 
 variety of cases that may happen ; and there are many ways *^° ™^' 
 in which men may injure one another without the civil law 
 affording any means of redress. So imperfect, indeed, is the 
 civil law, that, in attempting to do justice, it sometimes puts 
 it in the power of a man to take exorbitant advantages con- 
 trary to conscience. 
 
 Against these imperfections there is no appeal except to 
 the conscience. And here we are reminded of the three 
 general precepts mentioned by Justinian— to live uprightly 
 to hurt nobody, and to render to every one his due.^ These 
 maxims breathe a fine spirit of morality, and are evidently for 
 the common advantage of men in their social relations ; yet 
 
 1 See Black. Com., vol. i. p. 58, este vivere, alteram non Isedere, 
 Coleridge's Kote. suum cuique tribuere. "— I. 1. 1. 1. 
 
 2 " Juris prsecepta sunt lijec : hon- 
 
52 POSITIVE LAW 
 
 with all their excellence, they fall greatly short of the golden 
 rule of the Gospel: " All things whatsoever ye would that 
 men should do to you, do ye even so to them " (Mat. vii. 12). 
 The general security of private rights and of civil life, 
 requires adherence to fixed rules and prior decisions by 
 courts of law, and this occasionally leads to hardship in 
 particular cases ; but this particular hardship, after all, is a 
 lesser evil than the general uncertainty and confusion that 
 would spring up everywhere, were the discretion of judges 
 left entirely unfettered by positive rules.^ 
 Positive The positive law of every country may be divided, after 
 
 ind™-"™ *^^ example of the Eomans, into written and unwritten, 
 written. "Written or statutory law is enacted by the express authority 
 of the supreme power, and is always reduced into writing. 
 Unwritten or customary law is that which has not been pro- 
 mulgated by the legislature in a written form, but derives 
 its binding power from long usage.^ 
 
 All laws may be abrogated in whole or in part by other 
 laws, and this may be done either expressly, by the repeal of 
 the old law, or tacitly, when the new law contains provisions 
 contrary to those of the former one ; for, whenever a contra- 
 diction arises between a new and an old law, the new one 
 has the preference : Jus posterius derogat priori. 
 
 Unwritten laws, though at first established by usage, may 
 be repealed or altered by an express act of the legislature. 
 They may likewise be abrogated by long disuse ; for as they 
 are founded merely on custom, long and uninterrupted dis- 
 use affords evidence that they are no longer in force. 
 
 Sometimes written laws are said to become obsolete, if 
 they have not for any considerable time been put in execu- 
 tion, so that what they enjoin has been long neglected, or 
 
 ^ Lord Camden has drawn a very tiou, temper, passion. In the best, 
 alanning picture of the dangers that it is oftentimes caprice ; in the 
 would result from allowing too great worst, it is every vice, folly, and 
 scope to judicial discretion. "The passion to which human nature is 
 discretion of a judge is the law of liable." See also Lord Eldin's re- 
 tyrants ; it is always unknown ; it marks, in 1 Bligh, 23, 24. 
 is different in different men; it is ^ I. 1. 2. 9. 
 casual, and depends upon constitu- 
 
OF VARIOUS STATES. 53 
 
 •what they forbid has heen long practised with impunity. 
 But, in principle, no written law can be abrogated by disuse. 
 Nevertheless it was a maxim of the Eoman jurists, that as 
 laws may be established by long custom, so they may like- 
 wise be abrogated by desuetude or contrary usage.' In 
 Scotland this doctrine has been adopted and applied even 
 to statutes. For it has been determined that Scotch Acts of 
 Parliament passed before the Union in 1707, may lose their 
 force and become ineffectual by contrary practice, without 
 any express repeal. The law of England follows a different 
 rule, which is, that every statute, however ancient, continues 
 in force till repealed by another statute. A striking illus- 
 tration of the application of this rule occurred in the well- 
 known case of Ashford v. Thornton, in 1818, where the Court 
 of King's Bench, in an appeal of murder, sustained trial by 
 battle.^ After this decision, which sanctioned judicial com- 
 bat in the nineteenth century, an Act was passed repealing 
 the law respecting appeals of murder and wager of battle. 
 
 Another distinction originated with the Eoman jurists. Public and 
 who divided positive law into public and private. Public ^"™ 
 law is that which treats of the constitution of the state, and 
 the relations existing between the government and the indi- 
 vidual members of the community. Private law (some- 
 times called civil law) is that which treats of the relations 
 of these individual members inter se!' 
 
 Public law is sometimes distinguished into political or 
 constitutional and administrative. Under the first head the 
 constitution of the state is considered. Under the second 
 the general administration is traced, including the judicial 
 organisation, military and naval establishments, finance and 
 other departments under the charge of public ofBcers em- 
 ployed by the government. By most of the modern jurists 
 criminal law is treated as a part of public law. It is an 
 
 ^ I. 1. 2. 11. D. 1. 3. 32. 1. n'est paa possible de porter plus loin 
 
 2 Barn and Aid., p. 405. Id his le respect pour les anoiens usages." 
 work on the origin and progress of « "PubUeum jus est quod ad eta- 
 
 French legislation (Paris, 1816, note, turn rei Romanse spectat ; privatum, 
 
 p. 305), M. Bernardi pointed out this quod ad singulorum utaitatem.' — 
 
 strange anomaly, and observed, "II I. 1- 1- 4. 
 
54 POSITIVE LAW 
 
 established rule, that the public law cannot be controlled or 
 altered at the will of individuals, by private agreements.^ 
 
 Though the division of law into public and private has 
 been almost universally adopted by the Continental jurists, 
 it is not to be found in the institutional treatises of English 
 law. Mr Austin contends, that the portion of law usually 
 called public law should be classed under the law of persons, 
 distinguishing between private conditions and political con- 
 ditions. This is the course followed both by Sir Matthew 
 Hale and by Blackstone. In the first book of his ' Com- 
 mentaries,' Blackstone treats of the rights and duties of 
 persons, not only as private individuals, but also in their 
 public relations, so as to comprehend a portion of what is 
 called public law. Political persons include all those who 
 share the sovereign power, ministers of state, judges, magis- 
 trates, and all other public functionaries ; while private 
 persons include chiefly the conditions of husband and wife, 
 parent and child, master and servant, guardian and ward. 
 
 As to the political constitutions of separate communities, 
 they belong to the public law of each state. This is ex- 
 clusively municipal in its character, and essentially distinct 
 from that system of jurisprudence which regulates the mutual 
 relations subsisting between independent states.^ 
 Division of Nothing has given rise to more difficulty among jurists 
 ErdlngTo than the proper division of private law with reference to its 
 subjects. subjects. Justinian, in his Institutes, has treated of the law 
 of persons, the l&vr of things, and the law of actions. This 
 system, though often criticised, has its advantages, not the 
 least of which is, that it has been so often followed that it 
 has become familiar to lawyers in all parts of the world. 
 
 1 "Jus publicum privatorumpactia the Eeform Bill of 1832; for the 
 mutari non potest." —Papinian, D. United States, the Constitution 
 2. 14. 38. See also Code Civil, art. 6. voted by Congress in 1787 ; for Ger- 
 
 2 It may not be iinin-teresting to many, the Federal Pact of 1815 ; for 
 notice here some of the most remark- Spain, the Constitution promulgated 
 able fundamental acts regarding at Madrid on 23d May 1845; and 
 constitutional law. These are, for for France, the different Constitu- 
 Great Britain, the Great Charter of tions established from 1791 till that 
 1215, the Bill of Eights of 1688, and of 14th January 1852. 
 
OF VARIOUS STATES. 55 
 
 But some jurists are of opinion that the entire body of 
 private law should be divided into two categories— the law 
 of persons, and the law of things ; actions, which are the 
 means the law affords to make our rights effectual, being 
 considered under the different matters to which they relate. 
 In his 'Analysis of the Law,' Sir Matthew Hale says, that, in 
 order to render the subject more simple and intelligible, the 
 law of things should precede the law of persons ; and this 
 plan, which is approved of by Mr Austin, has been followed 
 by some eminent jurists, and is the order of the Prussian 
 Code. On the other hand, many writers have followed in 
 the wake of Justinian, by treating the law of persons before 
 the law of things — such as Blackstone, Sir George Mac- 
 kenzie, Erskine, and Pothier in his collected works ; and 
 this is the order of the Code Napoleon. 
 
 Equity, in its true and genuine meaning, is synonymous 
 with natural justice ; and to this the judge must have re- 
 course where the laws are silent, and there is nothing else to 
 guide his decision.^ 
 
 In the English system of jurisprudence there is a division English 
 into common law and equity. But equity, as understood by ^^u™ "^ 
 English lawyers, is that portion of law which is exclusively 
 administered by the courts of Chancery, as contradistin- 
 guished from that portion of law which is exclusively ad- 
 ministered by the courts of common law. " The separation 
 of law and equity," says Lord Brougham, " is the other great 
 peculiarity of English jurisprudence. Originally it probably 
 was devised in order to mitigate the rigour of the positive law; 
 but the discretion thus vested in courts of equity has for many 
 ages been exercised according to rules as technical as those 
 of the unwritten jurisprudence which guides the common-law 
 courts. It is a more correct description of the courts of 
 equity to say that they deal with questions of law different 
 from those which the courts of common law deal with." ^ 
 
 The division of the two jurisdictions proceeds on no very 
 intelligible grounds, and leads to many anomalies. Until 
 
 ' Stair, 1. 1. 16. Portalis, Disoours ^ British Constitution, p. 353. 
 Preliminaire du Projet de Code Civil. 
 
56 LAW OF NATIONS. 
 
 recently the courts of common law could award damages, but 
 could not compel the execution of contracts ; while the courts 
 of equity could compel the execution of contracts, but could 
 not give damages for their breach. If a suitor, therefore, 
 wished to recover damages for breach of a contract, or for the 
 commission of some wrong, or for some failure of duty, he 
 had recourse to a court of common law. On the other hand, 
 if his object was to enforce specific performance of a contract, 
 or to bring a trustee to an account, or to recover a legacy 
 from an executor, or to obtain an injunction, then his recourse 
 was to a court of equity.^ By recent acts, courts of common 
 law are empowered to order delivery of specific goods con- 
 tracted to be sold, or chattels illegally detained, without giving 
 the defendant the option of retaining them on paying the 
 damages assessed ; and, in all cases of breach of contract or 
 other injury which they have jurisdiction to entertain, to 
 grant injunctions against the repetition or continuance of such 
 breach of contract or other injury ; and, on the other hand, 
 courts of equity are authorised, if they think fit, in certain 
 cases, " to award damages to the party injured, either in addi- 
 tion to, or in substitution for, such injunction or specific per- 
 foimance." ^ But, notwithstanding these improvements, many 
 evils stiU attend this double system of judicature, which 
 occasions great expense and delay to litigants, who are fre- 
 quently obliged to appeal to two tribunals to obtain redress 
 for a single wrong, or to settle one and the same dispute. 
 
 In Scotland there is no division into courts of law and 
 equity, both these jurisdictions being combined and exercised 
 by the same courts, according to the system which is under- 
 stood to be universal on the continent of Europe. 
 
 IV. OF THE LAW OF NATIONS, OR INTERNATIONAL LAW. 
 
 By the law of nations {jus inter gentes) we understand 
 those rules which define the rights and prescribe the duties 
 
 ^ Paterson's Compendium of Eng- 1854 (17 & 18 Vict., c. 125)-, s. 78, 
 lish and Scotcli Law, p. 361. 79, and 82 ; 19 & 20 Vict., c. 97, s. 
 
 2 Common Law Procedure, Act, 2 ; 21 & 22 Vict., c. 27, s. 2. 
 
PKIVATE INTERNATIONAL LAW. 57 
 
 of independent states in their intercourse with each other.i 
 Before entering upon this subject, a short explanation may 
 be given of a branch of jurisprudence sometimes called 
 private international law, which has acquired great import- 
 ance in modern times. 
 
 Private international law has for its object the conflicts Private 
 between the positive laws of different nations, and regulates JTatior.ai 
 disputes between private persons who may be members of '*''• 
 the same state or of different states. 
 
 This system of law deals with cases which come before the 
 ordinary judicial tribunals. It determines before the court 
 of what country a particular suit should be brought, and by 
 the law of what country it should be decided. Conflicts of 
 law arise not only from diversities in the jurisprudence of 
 different nations, but from different systems of law prevailing 
 in different parts of the same kingdom, of which no better 
 example can be given than the British empire, which, though 
 united under one allegiance, is governed by different laws in 
 England and Scotland, and in various colonies and depen- 
 dencies of the United Kingdom. 
 
 It is a fundamental principle that every nation possesses 
 and exercises exclusive sovereignty and jurisdiction in its 
 own territory. Hence the laws of every state affect and bind 
 all property, movable and immovable, within its territory, 
 and all persons resident within it, whether natural-born sub- 
 jects or aliens. On the other hand, no nation by its laws 
 can directly bind or affect property beyond its territory, or 
 persons not resident within it, whether they have been born 
 within it or not. Cases frequently occur, however, where, 
 by the comity of nations, one independent state will give 
 effect to the laws and judicial acts of another, so far as this 
 can be done without prejudice to its own laws and to the 
 fundamental and distinctive principles of its own internal 
 policy. A familiar example of this is afforded by contracts 
 entered into in a foreign country and intended to be per- 
 formed there, which our courts are in the practice of enforc- 
 ing according to the law of the place in which they were 
 ^ Kent's Com., vol. i. p. 1. 
 
58 LAW OF NATIONS, 
 
 made, provided that law is not repugnant to our own insti- 
 tutions or to good morals.^ 
 Public Public international law designates the true law of nations 
 
 national which govems the mutual relations of independent states in 
 '*'''■ their conduct towards each other. It is founded partly on 
 
 the principles of natural law, which are binding on nations 
 as moral persons as well as on individuals, and partly on a 
 system of positive institutions fixed by public treaties and 
 conventions, and the long-established customs of civilised 
 states. 
 
 According to Grotius, this system of law derives its autho- 
 rity from the common consent of nations, or at least of a 
 considerable number of them. Yet it may fairly be ques- 
 tioned whether the law by which nations profess to be gov- 
 erned in their mutual relations can be treated as a positive 
 law of human institution, or regarded as law otherwise than 
 in a figurative sense, because it is deficient in those sanctions 
 which are inseparable from the positive law of every distinct 
 state. First, independent states acknowledge no human su- 
 perior invested with cosmopolitan authority to make positive 
 laws between nation and nation as such; and as no nation 
 can legislate for another, so no given number of nations has 
 power to make laws to bind the rest, at least with respect to 
 things left indifferent by the law of nature. Next, as there 
 is no accepted tribunal to settle disputes between nations, the 
 rules of international law are not judicially administered, and 
 there is no supreme executive authority to enforce them. 
 
 If all the states of Europe were to concur in framing a 
 general code of international law, which should be binding 
 on them all, and form themselves into a confederacy to enforce 
 it, this might be regarded as a positive law of nations for 
 Europe. But nothing of this sort has ever been attempted. 
 The nearest approach to such international legislation is the 
 
 ^ See Dr Story's Conflict of Laws, Privg, parM. Foelix, 3d ed., re^iie par 
 
 5tli ed., Boston, 1857; Westlake's Charles Demangeat, Paris, 1856.* 
 
 Private International Law, or the * The most important work on this 
 
 Conflict of Laws, with principal re- subject is Savigny's Treatise on Pri- 
 
 ference to English practice, London, vate International Law, translated 
 
 1858 ; Traits du Droit International by Guthrie, Edinburgh, 1869. 
 
LAW OF NATIONS. 59 
 
 general regulations introduced into treaties by the great 
 powers of Europe, which are binding on the contracting 
 parties, but not on the states that decline to accede to them. 
 
 To settle disputes between nations on the principles of jus- 
 tice, rather than leave them to the blind arbitrament of war, 
 is the primary object of the European law of nations. When 
 war has broken out, it regulates the rights and duties of 
 belligerents, and the conduct of neutrals. 
 
 As the weak side of the law of nations is the want of a 
 supreme executive power to enforce it, small states are ex- 
 posed to great disadvantages in disputes with their more 
 powerful neighbours. But the modern political system of 
 Europe for the preservation of the balance of power forms a 
 strong barrier against unjust aggTCssion. When the power of 
 one great state can be balanced, or kept in check, by that of 
 another, the independence of smaller states is in some degree 
 secured against both ; for neither of the great powers will 
 allow its rival to add to its strength by the conquest of the 
 smaller states. 
 
 Between all distinct states nature has established a perfect Pacific 
 equality of rights, and they are entitled to enjoy independence nftions" 
 and security of territory. It is a consequence of the liberty 
 and independence of nations that all have a right to be gov- 
 erned as they think proper. That no state, unless authorised 
 by treaty stipulations, is entitled to interfere in the internal 
 concerns of another, is a general rule of the law of nations ; 
 but, in practice, it has been departed from in some extreme 
 cases. Contests upon the question who shall be the respon- 
 sible ministers of the Crown, and by what principles of ad- 
 ministration the country shall be governed, are questions 
 purely domestic in their bearing, with which foreign powers 
 are not entitled to interfere. For this reason the British Gov- 
 ernment protested against the intervention of France with 
 the affairs of Spain in 1822, which led to the overthrow of 
 the Spanish constitution. On the other hand, questions of 
 dispiited succession have always been deemed matters which 
 might justly be considered as involving the political interests 
 of foreign states ; and in such questions, wherever arising. 
 
war. 
 
 60 LAW OF NATIONS. 
 
 the powers of Europe have, from time to time, according as 
 their interests impelled them, held themselves at liberty to 
 take an active part. To oppose the union of the two crowns 
 of France and Spain on the same head in 1700 was considered 
 essential for the security of the other European states. So, 
 by the quadruple treaty in 1834, Britain and France united 
 with Spain and Portugal in expelling from the Peninsula the 
 two Infantes, Don Carlos and Don Miguel. " Although it is 
 .certainly laid down by writers on the law of nations that, 
 I when civil war is regularly established in a country, aud 
 when the nation is di vided int o conflicting armies and oppos- 
 ing camps, the two parties in sucn a war maybe dealt with 
 by other powers as if they were two separate communities, 
 and such other powers may take part with one side or the 
 other, according to their sympathies and interests, just as 
 they might in a war between separate and independent na- 
 tions ; yet the cases in which such interference is justifiable 
 are rare, and it is better and safer in general to leave each 
 nation to decide for itself upon questions which relate to its 
 own internal organisation and interests."^ 
 Rights of The law of nations allows independent states to vindicate 
 their rights and redress their injuries by having recourse to 
 war, when all amicable means of obtaining satisfaction have 
 failed.^ War is defined by Vattel as " that state in which we 
 prosecute our right by force."' Unfortunately too many wars 
 have been undertaken, without a shadow of right, for conquest 
 and other unwarrantable purposes. But war has been de- 
 scribed as an interruption of all pacific relations, and a general 
 contention by force authorised by sovereign powers.* It was 
 long the custom to make a declaration of war to the enemy 
 before commencing hostilities. But since the peace of Ver- 
 sailles in 1763 such declarations have been discontinued, and 
 the existing usage is for the state which commences the war 
 to publish a manifesto, announcing the fact within its own 
 territories.^ According to Dr Wheaton, the modern rule is, 
 
 ^ Lord Palmerston's Despatch, 5th ^ Yattel, t. ii. p. 1. 
 April 1847 — Parliamentary Papers. " Manning, p. 96. 
 
 2 Martens, Precis, t. ii. p, 203. = 1 Kent, 54. 
 
LAW OF NATIONS. 61 
 
 that neither the property of the enemy within the belligerent 
 state, nor the dehts due to his subjects, are confiscated on the 
 breaking out of war, though the right to enforce payment of 
 debts may be suspended till peace is declared.i 
 
 One nation may lawfully assist another in a just war; and 
 whatever makes a war just, in respect of the principal nation, 
 will make it just also in respect of its allies. 
 
 In civil war the vanquished are sometimes denied the treat- Civil war. 
 ment of lawful enemies, and punished as rebels. But this is 
 ; irregular, because all publicists are agreed that the laws of 
 I war, as they are called, are the same in civil as in foreign 
 ; warfare.^ 
 
 According to the principle laid down by Vattel, no greater Rules of 
 injuries should be inflicted upon an enemy in time of war '""' 
 than are absolutely necessary to obtain the end of the war. 
 If humanity is still shocked at the slaughter of men, the burn- 
 ing of ships, the pillage of towns, the devastation of provinces, 
 and the havoc and misery to which the people on both sides 
 are exposed, it is consoling to reflect that, great as these in- 
 evitable horrors are, the usages of modern nations have im- 
 posed restraints upon the unlimited violence which marked 
 ancient warfare. Secret assassination, the use of poison in 
 weapons, food, and wells, and all atrocities of a similar nature, 
 are now universally condemned as contrary to the law of 
 nations. Anciently prisoners became the slaves of the con- 
 querors. In the days of chivalry, it was customary to demand 
 ransom for the liberation of prisoners. Among all Christian 
 powers they are now released, either during the war, under 
 agreements, called cartels, or at the end of the war, without 
 ransom on either side.^ 
 
 ' 2 Wheaton, 18. be said of the long war carried on by 
 2 MrHallam says: "The line is Spain against the united provinces 
 not easily drawn in abstract reason- of the Netherlands from 1566 ; of the 
 ing between the treason that is justly war by Great Britain against her 
 punished, and the social schism which American colonies from 1774; and 
 is beyond the proper boundaries of of the war now pending between the 
 law ; but the civil war of England Federal Government and the Con- 
 seems fairly to fall within the latter federate States of America.* 
 description."— OoDstitutional Hist., ' Manning, p. 157. 
 voL ii. p. 82. ' The same thing may * Ended April 1865, 
 
62 LAW OF NATIONS. 
 
 Some writers have stated it to be a general rule, when hos- 
 tilities are carried on by land in the territory of the enemy, 
 that " private property is exempt from confiscation, with the 
 exception of such as may become booty in special cases when 
 taken from enemies in the field or in besieged towns, and of 
 military contributions levied upon the inhabitants of the 
 hostile territory." 1 But this practice has not been always 
 uniformly observed. When hostile armies are in an enemy's 
 country, they too frequently take everything they want, and 
 destroy what they do not want, for the mere purpose of de- 
 struction ; and in the necessary operations of war, immense 
 damage is done for which no compensation is given by the 
 depredators, to say nothing of the military contributions which 
 are raised from the inhabitants in the places occupied by force 
 of arms. Besides, even though some governments may hesi- 
 tate to adopt such a violent policy, it must not be forgotten 
 that the real ground for the general immunity now more 
 frequently accorded to private property on the enemy's soil 
 is, that it could not be touched without surrounding the in- 
 vading army with more danger than it would otherwise have 
 to encounter by humane and judicious treatment. 
 
 In modern times, old people, women, and children, and all 
 those subjects who take no part in hostilities, are generally 
 exempted from violence. Again, the commission of actual 
 hostilities, excepting in case of self-defence, is only allowed 
 to those who are authorised by the sovereign power ; and all 
 private persons who carry on war without such authority, in 
 place of being entitled to the privileges of enemies, are liable 
 to be treated as pirates or marauders. Even when a contest 
 at sea has commenced in self-defence, maritime prizes made 
 by uncommissioned captors do not belong to them, but to the 
 Crown under the droits of Admiralty .^ The case is different 
 when letters of marque are issued, commissioning the owners 
 of private vessels to seize the ships and cargoes of the enemy.' 
 
 In a report made to Geo. II. in 1753 by Sir George Lee, 
 
 ^ "Wheaton's International Law, p. ^ Manning, p. 153. 
 420. Tudor's Select Maritime Cages, ' Ibid., pp. 106, 107. 
 p. 804. 
 
LAW OF NATIONS. 63 
 
 Dr Paul, Sir Dudley Eyder, and Mr Murray (afterwards Lord 
 Mansfield), we find the following statement as to the maritime 
 rights of belligerents : — 
 
 " When two nations are at war, they have a right to make Maritime 
 prizes of the ships, goods, and effects of each other on the "^^^'' 
 high seas. Whatever is property of the enemy may be 
 acquired by capture at sea ; but the property of a friend 
 cannot be taken, provided he observes his neutrality. 
 
 " Hence the law of nations has established — 
 
 " (1.) That the goods of an enemy on board the ship of a 
 friend may be taken. 
 
 " (2.) That the lawful goods of a friend on board the ship 
 of an enemy ought to be restored. 
 
 " (3.) That contraband goods going to the enemy, though 
 the property of a friend, may be taken as prize ; because sup- 
 plying the enemy with what enables him better to carry on 
 the war is a departure from neutrality." ^ 
 
 Formerly, in the case of ships and goods taken at sea, undis- 
 puted possession for twenty-four hours was deemed sufficient 
 to constitute a prize the property of the captor. The rule 
 now firmly established in Britain, France, and the United 
 States, and generally followed elsewhere, is, that the title 
 does not pass until the validity of the capture has been 
 declared by a prize court of the state to which the captor 
 belongs.^ Under peculiar circumstances our Court of Ad- 
 miralty will condemn a prize which has been taken into a 
 neutral port, and allow it to be sold there.^ 
 
 In case of unjust decisions, the government of the injured 
 party may demand redress. The British Government paid 
 an indemnity to Prussia in 1752, for cases in which injustice 
 had been done by our tribunals.* 
 
 By the law of postliminium, persons or property revert to 
 
 1 Collectanea Juridioa, vol. i. p. Notes, p. 152. 
 
 129-66. The principles in tHs re- " Manning, p. 382. "Wheaton, vol. 
 
 port were adopted by Lord Stowell ii. p. 95-111. 4 Eob. 55. 
 
 and Sir John NichoU in a paper ' Tudor's Select Maritime Cases, 
 
 addressed by them to Mr Jay, the p. 825. 
 
 American minister in London, in * Manning, p. 383. 
 Sept. 1794. See 1 More's Stair, 
 
64 LAW OF NATIONS, 
 
 their original state when recaptured from the enemy by their 
 countrymen. In this country, property captured at sea, and 
 afterwards recaptured, is restored to the original owners, upon 
 payment of salvage, however long it may have been possessed 
 by the enemy, and whether it had been regularly condemned 
 or not. As the law oi postliminium only exists during war, 
 peace extinguishes aU right to claim captured property, 
 whether condemned in a prize court or not.^ 
 
 Though the law of nations be the general rule, yet it may 
 be varied or departed from by mutual agreement ; and where 
 an alteration or exception is introduced by convention, that 
 is the law between the parties to the treaty. So it is com- 
 petent by agreement to declare the goods of an enemy on 
 board the ship of a friend to be free. 
 
 That a belligerent is entitled to seize an enemy's goods on 
 board a neutral vessel was long an established principle of 
 the law of nations, and is said to go back as far as the middle 
 ages, though it has been repeatedly called in question in more 
 recent times.^ On this subject a dispute arose between Great 
 Britain and Prussia in 1752, when a memorial from the Prus- 
 sian minister elicited the celebrated report of the English 
 jurists already noticed. During the war which followed the 
 French Eevolution, the controversy was revived, and the 
 northern powers of Europe and the United States joined 
 Prance in maintaining that free ships make free goods, ex- 
 cepting contraband; that nothing is contraband biit arms 
 and military stores ; and that a convoy precluded neutral 
 ships from being searched.* But Britain uniformly resisted 
 these pretensions as contrary to the law of nations. 
 Declaration ^y tbc declaration of 16th April 1856, the Congress of Paris, 
 of Paris, jjg]^^ aftgj. ^ijg Crimean war, adopted four principles of inter- 
 
 16th April 
 
 1856. national law. 1. Privateering is and remains abolished. 2. 
 The neutral flag cover's the enemy's merchandise, with the 
 exception of contraband of war. 3. Neutral merchandise, 
 
 1 Manning, p. 143. " Thiers, Hist, du Consulat et de 
 
 2 Grotius, lib. iii. o. vi. § 26. I'Empire, t. ii. p. 102. North Ameri- 
 Hautefeuille, t. iii. p. 223. Martens, can Eeview, vol. xxvl. p. 211. 
 Prgcis, t. ii. p. 319. 
 
LAW OF NATIONS. 65 
 
 with the exception of contraband of war, is not liable to 
 seizure under an enemy's flag. 4. Blockades, in order to be 
 binding, must be effective ; that is to say, must be maintained 
 by a force really sufficient to prevent approach to an enemy's 
 'coast.^ This declaration was signed by the plenipotentiaries 
 of the seven powers who attended the Congress, and it was 
 accepted by nearly all the states of the world. But the 
 United States of America, Spain, and Mexico, refused their 
 assent, because they objected to the abolition of privateering.^ 
 So far as these powers are concerned, therefore, privateering 
 — ^that is, the employment of private cruisers commissioned 
 by the state — still remains a perfectly legitimate mode of 
 warfare.^ Britain and the other powers who acceded to the 
 declaration are bound to discontinue the practice in hos- 
 tilities with each other. But if we should have the misfor- 
 tune to go to war with the United States, we should not be 
 ■bound to abstain from privateering, unless the United States 
 "should enter into a similar and corresponding engagement 
 with us. 
 
 As to the other three articles in the declaration of Paris, 
 the only new point conceded by Britain was that the neutral 
 flag covers the enemy's goods, except contraband. This was 
 the doctrine of the United States and every other maritime 
 power except Britain ; and if we had persisted in maintain- 
 ing the opposite doctrine, and had gone to war, we should in- 
 evitably have run the risk of adding to our difficulties by 
 another armed neutrality, so that it was deemed good policy 
 to make that concession. On general principles the effects 
 of neutrals on board an enemy's ships are exempt from 
 seizure ;* and this principle is confirmed by the third article 
 of the declaration. With regard to the fourth article, as to 
 blockades, there is much force in the criticism of Mr Marcy, 
 the American Secretary, who says, in his despatch of 28th 
 
 1 Martens, Prgcis, t. ii. p. 269. to grant letters of marque ; but this 
 " Official Eeport to the French article was suppressed in their treaty- 
 Emperor in Moniteur of July 1858. of 1799. See Martens, Precis, t. ii. 
 
 ' Prussia and the United States p. 268, note, 
 of America engaged, in 1785, if war « 2 Wheaton, 162. 1 Kent, 120. 
 should break out between them, not 
 
 E 
 
66 LAW OF NATIONS. 
 
 July 1856, " This rule lias not for a long time been regarded 
 as uncertain," and " merely reiterates a general undisputed 
 maxim of maritime law." 
 
 To constitute a violation of blockade, according to Lord 
 StoweU, " three things must be proved : 1st, The existence of' 
 an actual blockade ; 2d, The knowledge of the person sup- 
 posed to have offended; and, 3d, Some act of violation, 
 either by going in or by coming out, with a cargo laden 
 after the commencement of blockade."^ 
 
 A neutral vessel is not permitted to trade with a port 
 blockaded by one of the belligerent powers, whatever may be 
 the nature of the trade, and although the cargo may not be 
 contraband. The object is to exclude the blockaded place 
 from all commerce, whether outwards or inwards. Hence, 
 neither the subjects nor allies of the state establishing the 
 blockade can be allowed to infringe it.^ If a vessel has 
 entered a blockaded port before the blockade, she is entitled 
 to come out again with the cargo she took in, or in ballast, 
 or with cargo loaded before notice of the blockade. A ship 
 should also be restored if the breach of blockade has 
 been occasioned by unavoidable necessity, as where she has 
 been compelled to enter the blockaded port by stress of 
 weather.' 
 Law of A mere declaration of a blockade wlQ avail nothing ; it 
 
 blockade. , ... ° ' 
 
 must be mamtamed by a naval force adequate to prevent 
 vessels from leaving or entering the port. Besides, notice 
 of the existence of the blockade should be made to neutrals ; 
 and such notice may be given on the spot, where the master 
 is ignorant of it. After a blockade is established, any attempt 
 to enter or quit the port is punished by the seizure and con- 
 demnation of the offending ship or cargo, and sometimes of 
 both ; and the offence is not considered discharged until the 
 end of the return voyage.* 
 
 The Berlin decree of November 1806, and the Milan decree 
 of December 1807, declared the whole British dominions 
 in a state of blockade, and aU vessels, of whatever country, 
 
 > 16 Rob. 93. 3 Tudor, p. 767. Fortuna, 56 Rob. 27. 
 
 2 10 Moore, p. 6. 6,37. * Manning, pp. 328, 329. 
 
LAW OF NATIONS.- 67 
 
 trading to them, liable to be captured by the ships of France. 
 There can be no question as to the invalidity of these de- 
 crees according to the law of nations. The British Govern- 
 ment retaliated by issuing Orders in Council, declaring 
 France and all its tributary states to be in a state of 
 blockade. These orders, which tried to establish a "paper- 
 blockade," whether there was a force present to support it 
 or not, were equally illegal ; because no violation of in- 
 ternational law by one belligerent power could justify the 
 other in pursuing a similar course, especially where the 
 policy adopted on both sides was a flagrant infringement 
 of the rights of neutral nations. 
 
 The freedom of commerce, to which neutral states are en- Law of 
 titled, does not extend to contraband of war ; but, according 
 to the principles laid down in the declaration of Paris, of 
 April 1856, it may now be said that " a ship at sea is part of 
 the soil of the country to which it belongs," with the single 
 exception implied in the right of a belligerent to search for 
 contraband. What constitutes contraband is not precisely 
 settled ; the limits are not absolutely the same for all powers, 
 and variations occur in particular treaties ; but, speaking 
 generally, belligerents have a right to treat as contraband, 
 and to capture, all munitions of war and other articles directly 
 auxiliary to warlike purposes.^ The neutral carrier engages 
 in a contraband trade when he conveys official despatches 
 from a person in the service of the enemy to the enemy's 
 possessions ; but it has been decided that it is not illegal for 
 a neutral vessel to carry despatches from the enemy to his 
 I ambassador or his consul in a neutral country. ^ The penalty 
 I of carrying contraband is confiscation of the illegal cargo, 
 and generally condemnation of the ship itself Even the in- 
 nocent part of the cargo will be forfeited, if it belong to the 
 same owner as the contraband. 
 
 To sell arms, military stores, or other articles of contra- 
 
 1 Martens, Prgcia, t. ii. p. 316. ^ Tlie Caroline, 6 Rob. 465. The 
 
 Hautefeuille, Droits et Devoirs des Madison, Edw. 224. Poison, Law 
 
 Nations Neutres, t. ii. p. 337. The of Nations, p. 63. 
 Jonge Margaretha, 1 Rob. 189. 
 
the Trent. 
 
 68 LAW OF NATIONS. 
 
 band, to the agents of a belligerent power in a neutral coun- 
 try, is not prohibited by international law. Transportation 
 of such goods to the enemy's country is necessary to consti- 
 tute the offence against the law of nations. This is clearly 
 explained by Chancellor Kent, and is supported by American 
 decisions as well as other authorities.^ 
 Affa^of The affair of the Trent, "West Indian mail, gave rise to 
 
 an important question of maritime law deeply affecting the 
 rights of neutrals. In E"ovember 1861, Captain Wilkes, of 
 the American war-steamer San Jacinto, after firing a round 
 shot and a shell, boarded the English mail-packet Trent, in 
 Old Bahama Channel, on its passage from Havannah to 
 Southampton, and carried off by force Messrs Mason and 
 Slidell, two commissioners from the Confederate States, who 
 were taken on board as passengers bound for England. The 
 commissioners were conveyed to America, and committed to 
 prison ; but, after a formal requisition by Britain, declaring 
 the capture to be illegal, they were surrendered by the 
 Federal Government. 
 
 The seizure of the commissioners was attempted to be 
 justified by American writers on two grounds : 1st, That the 
 commissioners were contraband of war, and that in carrying 
 them the Trent was liable to condemnation for having com- 
 mitted a breach of neutrality ; 2d, That, at all events, Cap- 
 tain Wilkes was entitled to seize the commissioners either as 
 enemies or as rebels. Both these propositions are plainly 
 untenable. 
 
 As to the first point, nothing is known to international 
 law as contraband, unless what \s _goinci to an enemy's port. 
 Unless, therefore, it could be pretended that the real destina- 
 tion of the Trent was to an enemy's port, and not to an 
 English port, the very definition of contraband precludes the 
 application of the term to any goods or passengers on board 
 that vessel. The Trent was not bound to a place belonging to 
 either of the belligerents. It was carrying its cargo and pas- 
 sengers from one neutral country to another neutral country. 
 
 > Kent's Com., vol. i. p. 142. Law, p. 312. Ortolan, Regies Inter- 
 Wheaton, Hist, of International nationales, vol. ii. p. 156-9. 
 
LAW OF NATIONS, 69 
 
 Official despatches from an enemy sent by a neutral ship 
 to a neutral country are not contraband ; and Messrs Mason 
 and Slidell could not be so considered on the pretext that 
 they were the bearers of such despatches. Neither were 
 they military men actually in the service of the enemy, so as 
 to fall under the category of persons who are sometimes 
 liable to be captured under the stipulations found in par- 
 ticular treaties. 
 
 As to the second point, the capture of the commissioners 
 by forcibly carrying them off from a neutral ship cannot be 
 justified, whether they be viewed as enemies or rebels. For 
 the seizure of the persons of_belllge ients, o n the analogy of 
 the seizure of enemy's goods, is wholly "new to i nternational 
 law, and this doctrine is not gfenctioned by any precedents. 
 !^ieutral territory must not be violated for the purposes of 
 war. A ship at sea is part of the territory of the country to 
 which it belongs ; and, setting aside contraband, the flag 
 covers both goods and passengers. According to this view, 
 which has always been most vigorously maintained by. the | 
 United States, the commissioners were under the protection ' 
 of the British flag, and the Federal Government had no 
 jurisdiction over them either as enemies or as rebels. 
 
 In an able despatch by the French Government to the 
 Cabinet of Washington, M. Thouvenel declared that the 
 seizure of the commissioners in a neutral ship, trading from 
 a neutral port to a neutral port, was not only contrary to the 
 law of nations, but a direct contravention of the principles 
 which the United States had up to that time invariably 
 avowed and acted upon. Eussia, Austria, and Prussia ofS- 
 cially intimated their concurrence in that opinion. 
 
 To argue the matter on the legal points in opposition to 
 the disinterested and weU-reasoned despatch of the French 
 minister was a hopeless task In an elaborate state-paper, 
 Mr Seward, the American Secretary of State, professed to 
 rest the surrender of the commissioners upon^a mere techm- 
 cality— that there had been no formal condemnation of the 
 Trent by a prize-court; but, apart from this point of form, 
 the seizure was indefensible on the merits as a flagrant viola- 
 
70 ItAW OF NATIONS. 
 
 tion of the law of nations ; and if the principle was not so 
 frankly acknowledged by Mr Seward as it ought to have 
 heen, some allowance mupt be made for a statesman who was 
 trammelled by the report of his colleague, Mr Welles, the 
 Secretary of the Navy, approving of Captain Wilkes's con- 
 duct, and stni more by the necessity of adopting a policy 
 directly contrary to the whole current of popular opinion in 
 the Northern States. 
 Neutral JSTo hostUe Operations can be carried on, and no capture 
 
 erritorj. ^^^ ^^ made by a belligerent, within the limits of neutral 
 territory, whether it be land or water. All acts of violence 
 are forbidden, not only in ports and harbours, but also 
 within such distance from, the shore as is acknowledged 
 by the custom of nations to be within the jurisdiction of 
 a neutral state. "Formerly a country was generally con- 
 sidered to extend from the coast for three mUes to seaward, 
 or as far as cannon-shot could reach : but as the range of 
 warlike missiles has increased, the neutral territory will pro- 
 bably be held extended. It is the duty of the government 
 whose dignity is infringed to insist that all prizes taken 
 within the prescribed limits shall be restored to their right- 
 ful owners, provided they apply, as they ought to do, for 
 immediate protection. Some neutral states have been in use 
 to issue regulations, that when a ship belonging to a belli- 
 gerent has left one of their ports, no vessel belonging to the 
 other belligerent shall be allowed to leave that port till after 
 an interval of twenty-four hours.^ 
 Pabiie Treaties between one nation and another are usually nego- 
 
 tiated and signed by plenipotentiaries ; but in modern prac- 
 tice such treaties are not held to be binding till they are 
 ratified by the signature and seal- of the sovereign of each 
 country. 
 
 When a treaty is not intended to be made public, it is 
 called a secret treaty ; and sometimes a few articles which 
 are added to the principal treaty remain secret. Besides the 
 general treaty of Paris of 30th March 1856, to which Eussia 
 was a party, a separate triple convention was entered into, 
 
 1 Manning, p. 387. ' 
 
LAW OF NATIONS. 7l 
 
 wliereby Britain, France, and Austria agreed to guarantee 
 the integrity of Turkey, and declared that any infringement 
 of its territory by Eussia. should be regarded by each and all 
 of the contracting powers as a casus lelli. This convention 
 was probably intended to be kept secret ; but, Count Orloff 
 having contrived to procure a copy of it in Paris, the British 
 Government laid it before Parliament along with the other 
 official documents. 
 
 Treaties cease to be obligatory: 1st, When the state 
 which has contracted them loses its independence, or comes 
 to be dissolved ; 2d, When it voluntarily changes its consti- 
 tution, and the treaty becomes inapplicable from altered cir- 
 cumstances ; 3d, When war has broken out between the 
 contracting powers ; but in this last instance articles framed 
 for the case of rupture are excepted.^ 
 
 Accordingly, it has been customary in treaties of peace to 
 renew and confirm prior treaties, which have manifestly been 
 broken or revoked by the recurrence of war. So the import- 
 ant treaties of Westphalia and Utrecht have been repeatedly 
 renewed or confirmed in treaties of peace or commerce sub- 
 sequently entered into between the same powers.^ 
 
 In modern times there are four classes of diplomatic ciassifica- 
 agents, who take rank in the following order : 1st, Ambas- diplomatic 
 sadors, the only ministers who are understood to represent ^s™'*' 
 the persons of their sovereigns, and are addressed by the title 
 of Excellency; 2d, Envoys and Ministers Plenipotentiary, 
 accredited to sovereigns ; 3d, Eesident Ministers ; 4th, 
 Charges d'affaires, who are merely agents accredited to the 
 Foreign Office.^ Consuls, though a most useful class of 
 public functionaries in commercial affairs, are not usually 
 classed among diplomatists. 
 
 By the Convention of Vienna of 19th March 1815, diplo- 
 matic agents rank among themselves in each class according 
 to the priority in date of the ofi&cial intimation of their arrival 
 at a particular court, reserving the precedence granted to the 
 
 1 Martens, Prdcia, Paris, 1858, t. ' Martens, Precis, t. ii. pp. 50 and 
 i. p. 167. 99- 
 
 2 Ibid., t. i. p. 181. 
 
72 LAW OF NATIONS. 
 
 Papal Nuncio in Catholic states.^ To avoid unseemly dis- 
 putes about precedence among nations, the pnnciple of alter- 
 nation has been frequently adopted. At the Congress of 
 Vienna aU treaties and public acts were signed m the alpha- 
 betical order which the French language assigns to the differ- 
 ent nations. 
 
 1 Martens, Precis, t. ii. p. 98. 
 
EXPOSITION 
 
 THE ROMAN LAW 
 
 WITH COMPAEATIYE VIEWS 
 
 LAWS OF PEAi^CE, ENGLAND, & SCOTLAND 
 
AEEANGEMENT OF THE SUBJECTS. 
 
 I. Of the Law op Persons. 
 II. Of the Law relating to Eeal Eights. 
 
 III. Of the Law of Obligations. 
 
 IV. Of the Laws op Succession. 
 V. Op Actions and Procedure. 
 
 "VI. Of Criminal Law and Procedure. 
 
PAET I. 
 
 OF THE LAW OF PEESONS. 
 
 CHAPTEE I. 
 
 OF PEESONS IN GENERAL. 
 
 While the Eoman jurists of the classical period, who were 
 deeply imbued with the Stoic philosophy, acknowledge that 
 all men are equal by the law of nature, they are careful to 
 distinguish the great differences which exist among the 
 different classes of men, both as regards social condition and 
 civil capacity. 
 
 In a strict legal sense, a person is one clothed with a Person and 
 certain status, and capable of enjoying civil rights. So a "^'"°' 
 slave, being incapable of civil rights, was accounted by the 
 Eomans not a person but a thing, though this distinction 
 was not always rigidly adhered to.-' They used the term 
 status or caput to describe civil capacity, which varied in 
 different individuals, and depended on the existence of 
 certain qualities determined partly by public and partly by 
 private law. 
 
 By the Eoman jurists men are considered under three 
 divisions : 1st, Freemen^jj id slaves ; 2d, Citizens and 
 foreigners ; 3d, Men who are ind^ependent {swi jwm), and 
 
 ' D. 1. 5. 3. Gaius. Here personce are said to be divided into freemen 
 and slaves. 
 
76 PERSONS IN GENEEAL. [pabt i. 
 
 th ose -who ^MX&alieni juris, — that is, subjected to the power 
 
 of another— such as chfldren under the power of their father, 
 
 iBnd slaves under the power of their master.^ The manus, 
 
 jhy which a married woman was subjected to the power of 
 
 J her husband, as if she had been a daughter, not a wife, and 
 
 "ithe mancipjaMq , by which a free citizen fell under the power 
 
 (of another, though of common occurrence under the ancient 
 
 (law of Eome, had entirely disappeared before the time of 
 
 Vustinian. 
 
 Marriage is considered in the Institutes in relation to the 
 paternal power, because it is from the procreation of children, 
 in a regular marriage, that the paternal power usually and 
 most naturally takes its origin. Guardianship is an institu- 
 tion for the care of those who are not under paternal power, 
 but are considered unfit to protect their own interests. 
 Hence the doctrine of tutory and curatory is dealt with as 
 an appendage to the theory of paternal power.^ 
 Juridical As the rights of natural persons may be said to die with 
 persons. them. Corporations were established by the Eomans for the 
 advancement of religion, learning, and commerce, and even 
 for social and convivial purposes, such as our English clubs, 
 when it was thought for the public advantage to have par- 
 ticular rights preserved entire for an indefinite period, in 
 place of allowing them to fall with the lives of the members 
 of which the body corporate might at any time be composed. 
 These corporations, though consisting of numerous indivi- 
 duals, are treated in law as forming a unity, or single person, 
 capable of enjoying rights. Of this description are universi- 
 ties, chapters of churches, town-councils, and a vast number 
 of societies, reHgious and secular, which constitute artificial 
 persons in law, each of them having its own proper goods, 
 rights, and immunities, and enjoying what Blackstone calls 
 " a kind of legal immortality."^ 
 
 1 I. 1. 3. D. 1. 5, De statu homi- ^ MarezoB, § 69. Maynz, Droit 
 num. Bomain, § 108. Black. Com., book 
 
 2 MarezoU, § 81. 1, ok 18. 
 
CHAPTER II. 
 
 OF THE CIVIL CAPACITY OF PEESONS. 
 
 All persons are capable of enjoying civil rights, but not all Differences 
 in the same degree. Individuals differ from each other in o°pacSy. 
 their natural and social qualities, from sex, birth, age, state 
 of mind, and a variety of other circumstances, which are 
 made the grounds of peculiar privileges or disabilities. 
 Some of the most important of these distinctions may here 
 be noticed. 
 
 The Eoman law has given more extensive privileges to Sex. 
 men than to women, not so much as encroachments on the 
 freedom, as from indulgence for the weakness, of the female 
 sex. At Eome women could not act as magistrates, judges, 
 or advocates ; they were incapable of all public civil employ- 
 ments ; ^ they were long under a kind of perpetual guardian- 
 ship; they were not permitted to be sureties for any one; 
 and it was only under the later emperors that they were 
 allowed to be guardians to their own children or grandchil- 
 dren. Sometimes the punishments inflicted upon women were 
 less severe than upon men.^ 
 
 A child is held to be born alive, if it has breathed after Birth. 
 having been separated from the body of the mother. Some 
 of the ancient lawyers insisted that it was necessary that the 
 child should have been heard to cry ; but Justinian rejected 
 that opinion in accordance with the views of the Sabinians.^ 
 By a legal fiction a child in utero, so far as regards its patri- 
 1 D. 50. 17. 2. 2 N. 134, ch. 9. 3 C. 6. 29. 3. 
 
78 CIVIL CAPACITY [paet I. 
 
 monial interests, was considered in the same light as if it had 
 been born — Nasciturus pro jam nato habetur, quanAo de ejus 
 commodo agitur} If, therefore, any one died leaving a 
 widow with child, a share was reserved in the division of 
 the succession for the coming infant. 
 
 Birth gives rise to the distinction between lawful children 
 and bastards. A lawful child is one procreated by husband 
 and wife united in lawful marriage ; a bastard was the off- 
 spring of unlawful intercourse. Strictly speaking, natural 
 children were those born of a concubine.^ As concubinage 
 was a legal institution at Eome, they were regarded with 
 more favour than other illegitimate children, called spurii or 
 vulgo qucesiti. As a general rule, lawful children follow the 
 condition of the father ; bastards follow the condition of the 
 mother. All illegitimate children are sui juris, because the 
 law admits no relationship between them and their father, 
 but it recognises them as relations of their mother. 
 Age. Age has a most important effect on legal capacity. In the 
 
 case of minors, the period of incapacity terminates at a limit 
 conventionally fixed. Full age in the Eoman law was 
 twenty-five ; all below that age were minors. There was a 
 subdivision of minors into adults, or those who had attained 
 puberty, and pupils — that is, males under fourteen, and 
 females under twelve. AU children below seven years of 
 age were called infants.^ 
 
 Pupils could not contract marriage or make a testament. 
 This double incapacity was absolute, and nothing could 
 remove it. As to other acts of civil life, pupils, though sui 
 juris, could not contract obligations or alienate property; 
 and the intervention of a tutor was required to give validity 
 to necessary acts of administration. By the ancient law of 
 Eome a minor pubes had full power to dispose of his property ; 
 but as he was liable to be imposed upon, he had the privilege 
 of restitution under the edict of the praetor, on proof of lesion, 
 
 ' D. 1. 5. 7. note the children procreated of a 
 
 ^ Though this is the correct mean- lawful marriage, in contradistinction 
 
 ing of "natural children," the ex- to adopted children. 
 
 pression is sometimes used to de- ^ C. 6. 30. 18. 
 
CHAP. 11.] OF PERSONS. 79 
 
 and a curator might be appointed to protect his interests. 
 As the legal restraints of minority were sometimes attended 
 with inconvenience, men above twenty, and women above 
 eighteen, might obtain from the emperor the privilege called 
 venia mtatis, which placed them on the same footing as if 
 they had attained majority, but subject to some restrictions 
 on the power of alienation. 
 
 Full age is iixed in France ^ and in this country at twenty- 
 one. In England children under twenty-one cannot make a 
 will of real or personal estate. In Scotland a minor puhes 
 can make a will of personal estate ; but he cannot make a 
 testamentary disposition of real estate, even with the consent 
 of his guardians. 
 
 At Eome, persons who reached an advanced age were re- 
 lieved from certain public functions and duties. Thus men 
 above seventy might decline to accept the office of tutor. 
 
 Unsoimdness of body seldom affects the legal capacity of state of 
 persons. Unsoundness of mind has more important conse- 
 quences. Absolute incapacity may arise from madness or 
 mental derangement. The law of the Twelve Tables deprived 
 insane persons of the administrati-on of their property, and 
 placed them under curatory. All such persons are consid- 
 ered to have no wiU of their own, and consequently they are 
 incapable of coming under any obligation, or doing any act 
 which can be legally binding on them. But when mental 
 derangement is of a fluctuating character, deeds done during 
 a lucid interval are sustained.^ 
 
 Apart from these peculiarities, and others of a similar civil status. 
 nature which affect the legal capacity of persons, civil status 
 among the Eomans had reference chiefly to three things- 
 liberty, citizenship, and family. The status lihertatis con- 
 sisted of being a freeman, and not a slave. If a freeman was 
 also a Eoman citizen, he enjoyed the status civitatis. Upon 
 this quality depended not only the enjoyment of political 
 rights, but the capacity of participating in the jus civile. 
 Finally, the status familice consisted in a citizen belonging 
 to a particular famdy, and being capable of enjoying certain 
 1 Code avil, art. 488. Maynz, § 106. 
 
status. 
 
 80 CIVIL CAPACITY OP PEESONS. [pabt I. 
 
 rights in which the memhers of that family, in their quality 
 of agnates, could alone take part.i 
 Loss of If an existing status came to be lost or changed, the person 
 
 suffered what was called a capitis diminutio, which extin- 
 guished either entirely or to some extent his former legal 
 capacity. There are three changes of state or condition at- 
 tended with different consequences, called maxima, media, 
 and minima. The greatest involves the loss of liberty, citi- 
 zenship, and family; and tliis happened when a Eoman citizen 
 was taken prisoner in war, or condemned to slavery for his 
 crimes. But a Citizen who was captured by the enemy, on 
 returning from captivity, was restored to aU his civil rights 
 jure postliminii. 
 
 The next change of state consisted of the loss of citizenship 
 and family rights, without any forfeiture of personal liberty ; 
 and this occurred when a citizen became a member of another 
 state, was forbidden the use of fire and water, so as to be 
 forced to quit the Eoman territory, or was sentenced to 
 deportation under the empire. 
 
 Finally, when a person ceased to belong to a particular 
 family, without losing his liberty or citizenship, he was said 
 to suffer the least change of state — as, for instance, where one 
 sui juris came under the power of another by arrogation, or 
 a son who had been under the patria potestas was legally 
 emancipated by his father.^ 
 
 1 MarezoU, § 67. 2 1. 1. 16. D. 4. 5. 
 
CHAPTEE III. 
 
 OF CITIZENS AND FOREIGNERS, 
 I. EOMAN LAW. 
 
 In the early period of the Eoman state, not only were Roman 
 foreigners not admitted to the rights of citizens, but even the "''^'™- 
 plebeians were for a considerable time deprived of many of 
 the privileges which the patricians enjoyed. Savigny^ has ob- 
 served : — " In the free republic there were two classes of Eo- 
 man citizens, one that had and another that had not a share 
 in the sovereign power. That which peculiarly distinguished 
 the higher class, was the ijght_ to vote in a tribe and th e 
 capacity of enjoying magistracies ." According to tbis view, 
 those who had the suffrage at public elections and access to 
 the honours of the state, were full citizens — cives optimo 
 jure ; while those who had the civil rights of Eomans with- 
 out enjoying those political privileges, were citizens of an 
 inferior class. 
 
 Citizenship, in its full sense, embraced both political and 
 civil rights. Under the first aspect, it comprehended particu- 
 larly the right of voting in the comitia, and the capacity of 
 enjoying magistracies, jus sufragii et honorum. Political 
 rights, however, were not held to constitute the essence of citi- 
 zenship, as these were not enjoyed by many of the free-born 
 subjects of Eome, such as the cerarii, and those who were 
 inscribed on the tables of the Cserites. What essentially dis- 
 tinguished the Eoman citizen was the enjoyment of the civil 
 ^ Gesohichte des Eom. Eechts im Mittelalter, c. 2. p. 22. 
 F 
 
82 CITIZENS AJ^TD FOREIGNERS. [paet I. 
 
 rights of connuhium and commercium. In virtue of the con- 
 nubium, the citizen could contract a valid marriage according 
 to the jus civile, and acquire the rights resulting from it, and 
 particularly the paternal power and the civil relationship 
 called agnation, which was long necessary to enable him to 
 succeed to the property of persons who died intestate. In 
 virtue of the commercium, he coiild acquire and dispose of 
 property of aU kinds, according to the forms and with the 
 peculiar privileges of the Eoman law. 
 
 Ev the Porcian law. " De capite et tergo civium," B.C. 256, 
 a Eoman citizen could not be scourged or put to death with- 
 out trial before the centuries, so that his person was in a 
 manner sacred (Li v. x. 9). Of this we have a remarkable 
 example in the history of St Paul, who asks the centurion, 
 " Is it lawful for you to scourge a man that is a Eoman, and 
 uncondemned ? When the centurion heard that, he went and 
 told the chief captain, saying. Take heed what thou doest; for 
 this man is a Eoman." — Acts, xxii. 25, 26. To evade the 
 Porcian law a subtle fiction was introduced, whereby a con- 
 demned criminal became at the moment of his sentence the 
 slave of punishment, servus ■pcenm, and so ceased to be- 
 regarded as a Eoman citizen. 
 Position of Foreigners, peregrini, had neither political nor civil rights, 
 oreigners. rpj^gy. (,q^i^ jjq(; acquire rights under the jus civile, nor invoke 
 the protection which it afforded to citizens. They were allowed 
 only the benefit of what was called the ju^ gentium, or the 
 natural principles of equity, which are common to all nations. 
 Their marriages were valid, but did not produce the same 
 effects as a Eoman marriage. They could contract obligations 
 and acquire property, but they were deprived of the absolute 
 and efficacious protection guaranteed by the jus quiritium. 
 Originally, indeed, the foreigner could obtain no protection at 
 Eome, unless he was placed under the patronage of a citizen. 
 But in proportion as the intercourse with foreigners increased, 
 a more liberal policy was adopted ; and towards the end of 
 the fifth century of Eome, a special tribunal was established 
 for administering justice to foreigners. Sometimes the con- 
 nuhium or the commercium was granted to foreigners ; but 
 
OHAP. III.] CITIZENS AND FOEEIGNEES. 83 
 
 these were exceptional measures, contrary to the common 
 law. 
 
 Originally the Eomans divided free persons into citizens 
 and foreigners, cives et peregrini ; but towards the close of 
 the republic an intermediate class of persons sprang up, with 
 limited citizenship, under the name of Latini, who enjoyed 
 the commercium without the rights resulting from connuhium. 
 
 During the flourishing period of the republic, when the citizenship 
 Roman territory had been greatly extended by conquests, toaUiuiy. 
 treaties, and alliances, a crowd of new subjects and allies 
 aspired to participate in the privileges of citizenship, to 
 which great value was attached. The refusal to concede 
 these led to the social war (b.c. 90), at the close of which the 
 Roman citizenship was conferred, not only on the inhabitants 
 of Latium, but on all Italy. After this change the term jus Jus Latii. 
 Lata was used by the jurists to describe an artificial class 
 of persons occupying an intermediate position between citi- 
 zens and foreigners, in so far as they enjoyed commercium 
 without connuhium. Hence the division into cives, Latini, 
 and jperegrini, subsisted for a long time. 
 
 When the free republic degenerated into a pure monarchy, 
 citizenship lost many of its attractions for private persons. 
 The acquisition of civil rights became more and more easy. 
 The jus Latii was given to whole countries at once, of 
 which the grant to Spain by Vespasian may be cited as an 
 instance. Even the citizenship, which had been conquered 
 by the Italian allies at the price of their blood, was lavished 
 with extreme levity. Some emperors made the concession a 
 source of revenue ; and Marcus Aurelius, it is said, granted 
 it to anv one who asked it. Finally, CaracaUa bestowed the CitizeuBhip 
 
 . _ . -r made 
 
 citizenship on all the free subjects of the Roman empire, in general 
 taking that course the emperor was not guided by liberal c^aLiia. 
 ideas, but solely by motives of avarice; for by that expedient 
 he subjected all the subjects of the empire to a tax of five 
 per cent upon succession {vicesima hcereditatum), which was 
 only exigible from Roman citizens.^ 
 
 1 CaracaUa raised this tax to 10 per rate by his successor. Dion Cassius, 
 cent ; but it was reduced to its former 77. 9. Maynz, § 54. 
 
84 CITIZENS AND FOREIGNERS. [part I. 
 
 Here we may briefly explain how the right of citizenship 
 was acquired, and how it was lost. 
 
 iio«r Citizenship was acquired— 1st, By birth. In a lawful 
 
 Kqu'red!^ marriage the child foUowed the condition of the father, and 
 became a citizen, if the father was so at the time of concep- 
 tion. If the child was not the issue of justm nuptice, it fol- 
 lowed the condition of the mother at the time of its birth. 
 2d, By manumission, according to the formalities prescribed 
 by law, the slave of a Eoman citizen became a citizen. This 
 rule was modified by the laws iEUa Sentia and Junia Nor- 
 bana, according to which, in certain cases, the freedman ac- 
 quired the status of a foreigner, peregrinus dedititius, or of 
 a Latin, Latinm Junianm. Justinian restored the ancient 
 principle, according to which every slave, regularly enfran- 
 chised, became in full right a Eoman citizen. 3d, The right 
 of citizenship was often granted as a favour, either to a whole 
 community or to an individual, by the people or the senate 
 during the republic, and by the reigning prince during the 
 empire ; and this was equivalent to what the moderns call 
 naturalisation. 
 
 How lost. Citizenship was lost — 1st, By the loss of liberty — as, for 
 insta,nce, when a Eoman became a prisoner of war ; 2d, By 
 renouncing the character of Eoman citizen, which took place 
 when any one was admitted a citizen of another state ; 3d, 
 By a sentence of deportation or exile, as a punishment for 
 crime.^ 
 
 Personal Birth and fortune are the two great sources of rank and 
 
 diBtiuctions _,.. . m, ..,., /.-r* 
 
 —nobles, personal distmction. The origmal aristocracy ot Eome were 
 the patricians, who were descended from the most ancient 
 and illustrious families. When the plebeians became eligible 
 to all the high offices of state, the two orders were put on the 
 same footing as to political capacity. Every citizen, whether 
 patrician or plebeian, who won his way to a curule magis- 
 tracy, from that of aedile upwards, acquired personal distinc- 
 tion, which was transmitted to his descendants, who formed 
 a class called nohiles, or men known, to distinguish them from 
 the igndbiles, or people who were not known. " The charac- 
 1 Marezoll, § 74, 
 
CHAP. III.] CITIZENS AND EOEEIGNERS. 85 
 
 ter of nobility," says Dr Middleton, "was wholly derived 
 from the curule magistracies which any family had borne; 
 and those which could boast of the greatest number were 
 always accounted the noblest, so that many plebeians sur- 
 passed the patricians themselves in the point of nobility."^ 
 
 As a class, the nobles had no legal privileges beyond the 
 heraldic distinction, established by usage, of setting up the 
 imagines majorum — that is, waxen masks or busts of departed 
 ancestors who had borne a curule of&ce. These imagines, 
 ' with the names and honours of the deceased inscribed, were 
 kept in the atrium. On festive days the waxen masks re- 
 ceived fresh crowns of laurel, and at great funerals were 
 brought out by men resembling the deceased in size and 
 figure, who joined in the solemn procession, and the whole 
 race of ancestors swept along in front of the corpse, represented 
 by living individuals in proper costume.^ A plebeian who 
 first attained a curule ofi&ce and became the founder of a 
 noble family, was called by the Eomans a novus homo, or new 
 man ; and we find this term applied to Cicero. Such a 
 person could have no images of himself or his ancestors, 
 because they were not made till after the death of the first 
 member of the family who had enjoyed the dignity of a 
 curule magistrate. 
 
 "We have already noticed the numerous titles of nobility Titles of 
 which sprung up during the Lower empire, and from which under Con- 
 some of the titles now in use, such as Duke and Count, were *'™''°«- 
 derived. 
 
 An unsullied reputation was necessary to enable a Eoman «vii^^ 
 citizen to exercise his rights to their full extent.^ Civil 
 honour was entirely extinguished by the loss of liberty or 
 citizenship — as, for instance, by being forbidden the use of 
 fire and water. Without losing liberty or citizenship, the 
 Eoman citizen might be deprived of particular rights for 
 
 1 Middleton's Cicero, vol. i. p. 123, status, legibus ae moribus compro- 
 jjP^g batus, qui ex delicto nostro aucto- 
 
 2 Becker's GaUus, translated by ritate legam aut minuitur, aut con- 
 Metoalfe, p. 512. suinitur."_D. 50. 13. 5. 1. 
 
 3 " jfeisimaiio est dignitatis iUajsse 
 
88 CITIZENS AND FOREIGNERS. [paet i. 
 
 ignominy. Persons convicted of certain crimes, and those 
 who followed disreputable employments, were by law declared 
 infamous, and were placed under important civU restrictions. 
 They were deprived of political rights, having neither the 
 suffrage nor access to public honours, and they laboured 
 under various incapacities even in their private rights. In- 
 famy resulted from condemnation in a judicium pvhlicwm, 
 from being convicted of certain offences, such as robbery, 
 theft, perjury, or fraud ; from appearing on a public stage as 
 an actor or gladiator ; from ignominious expulsion from the 
 army ; from gaining a living by aiding in prostitution and 
 other disreputable occupations; and from a variety of acts 
 involving gross moral turpitude.^ 
 
 It was in the power of the censors, in superintending pub- 
 lic morality, to deprive senators of their dignity, to remove 
 knights from the equestrian order, and even to strip a citizen 
 of aU his political rights by classing him among the cerarii. 
 The censors could also put a nofa censoria opposite a man's 
 name in the roll of citizens ; and this might be done upon 
 their own responsibility, without special inquiry, though they 
 generally acted in accordance with public opinion. The nota 
 censoria produced no effect except during the magistracy 
 of the censor who imposed it. In this respect it differed 
 essentially from infamy, which was perpetual, unless the 
 stigma was removed by the prerogative of the people or 
 the emperor.^ 
 Religion Originally, when the Eomans all followed the same pagan 
 
 d^\ right! worship, religioil could occasion no difference in the enjoy- 
 ment of civil rights. Under the Christian emperors, heretics 
 and apostates, as well as pagans and Jews, were subjected to 
 vexatious restrictions, particularly as regards their capacity 
 to succeed to property and to make a will Only orthodox 
 Christians, who recognised the decisions of the four cecumeni- 
 oal councils, had the full enjoyment of civU rights.* 
 
 ' D. 3. 2. C. 2. 12. 3 MarezoU, § 77. Maynz, § 106. 
 
 2 Maynz, § 105. 
 
CHAP. III.] FRENCH LAW OP CIVIL RIGHTS. 87 
 
 II. — FRENCH LAW OF CIVIL EIGHTS. 
 
 In France, prior to 1789, there were many Frenchmen who Before 
 did not enjoy civil rights, or only did so imperfectly and un- ejuaiit^of 
 equally. Serfs were numerous ; native-born Jews were con- "'"'' "s'"'- 
 sidered as foreigners ; persons devoted to a religious life were 
 supposed to he civilly dead ; Protestants were incapable of 
 holding any public office. The rights of other Frenchmen 
 varied according to the order to which they belonged— to the 
 clergy, the nobility, the army, the law, finance, or any other 
 public department whatever. That portion of the community 
 called the tiers 4tat or roturiers, supported vexatious burdens 
 from which the clergy and nobility were wholly free, without 
 participating in the prerogatives of these privileged orders. 
 To be born or domiciled in the country of the written law, 
 where the Eomau jurisprudence prevailed, or in the country 
 of customary law, in which province differed from province, 
 and county from county, in the nature of its usages, was 
 another fertile source of discord in the enjoyment of civil 
 rights. Property was governed as variously as persons. In- 
 equality ruled the soil as well as individuals, and pervaded 
 the whole operations of social life. 
 
 Privileged castes and exclusive rights received their death- 
 blow at the Eevolution. The law of 24th December 1789 
 raised all Frenchmen who were not Catholics to the rank of 
 citizens ; that of 15th March 1790 emancipated the serfs ; 
 that of 27th September 1791 nationalised the Jews. Shortly 
 afterwards persons devoted to religion as monks or nuns were 
 restored to the rights and duties of civil life.i Finally^ Equality of 
 equality of civil rights was established among all French- under Code. 
 men by the Civil Code, which declares — 1st, " The exercise 
 of civil rights is independent of the quality of citizen, which 
 can only be acquired and maintained in conformity with 
 constitutional law." 2d, '' Every Frenchman will enjoy civil 
 rights." 2 
 
 1 Pailliet, Manuel du Broit Fran- = Code Civil, art. 7, 8. 
 9ais, 8th ed., p. 8, note. 
 
88 FRENCH LAW OF CIVIL EIGHTS. [faet I. 
 
 Who are In France, lawful children, wherever born, are held to be 
 Ini^c^r"'' members of that state to which their fathers belong at the 
 time of their birth, but may choose, if they prefer it, the 
 nationality of their place of birth. A child born in France of 
 foreign parents may, within one year after he has attained 
 majority, claim to be a Frenchman; if he is not then in 
 France, he must declare his intention to reside there, and 
 he must fix his domicile there within one year after such 
 declaration.^ * 
 
 Some states have adopted the principle of complete re- 
 ciprocity, by treating foreigners in the same manner as their 
 subjects are treated in the country to which these foreigners 
 belong* Other states regard certain rights as absolutely in- 
 herent in the quality of citizens, so as to exclude foreigners 
 from their enjoyment. Thus Britain does not permit foreign- 
 ers to acquire real property for a longer term than twenty- 
 one years. 
 Rights of In France a foreigner enjoys the same civil rights as those 
 irPrance. which are allowed to Frenchmen by the treaties of the nation 
 to which the foreigner belongs. Moreover, a foreigner who 
 has obtained permission from the sovereign to establish his 
 domicile in France, will, so long as he resides there, enjoy all 
 civil rights.^ The droit d'avJbaine, or right of succeeding to 
 the effects of a deceased alien, formerly claimed by the crown 
 of France, was finally abrogated by the law of 14th July 
 1819, so that foreigners are now placed on the same footing 
 in respect to succession as native Frenchmen. A foreigner 
 
 ' Code Civil, art. 9, 10. tors to Frenchmen ; nor hold public 
 
 * The principle of reciprocity can- ofl&ces in France ; nor discharge any 
 
 not be invoked by foreigners in ecclesiastical function \vithout per- 
 
 France in criminal matters. Al- mission of the Government ; nor b^ 
 
 though a Frenchman tried in Eng- admitted to exercise the profession 
 
 land for crime may demand a jury, of advocate ; nor publish a journal in 
 
 one-half of whom are his own ooun- France ; and foreigners, whether in 
 
 trymen, an Englishman in France has France or not, cannot complain of 
 
 no such privilege, 24th April 1816. the fraudulent use by Frepchmen of 
 
 Sirey 16. 2. 144. Foreigners in their trade-marks. Les Codes An- 
 
 France have copyright in their liter- notes de Sirey, vol. 1. p. 59, seq., ed. 
 
 ary works ; they may obtain patents 1867, par P. Gilbert, 
 
 for inventions ; they cannot be tu- ' Code Civil, art. 11, 13. 
 
CHAP. III.] BRITISH LAW ON SUBJECTS AND ALIENS. 89 
 
 can buy and hold land in France without any permission 
 from the crown or legislature.^ 
 
 HI. BRITISH LAW ON SUBJECTS AND ALIENS. 
 
 By our law, all persons born in the British dominions — Who arc 
 that is, either within the United Kingdom or the territories subjects.' " 
 thereto belonging — whether their parents be natives or 
 foreigners, are held to be nfetural-born subjects of Britain. 
 Further, aU children born abroad, whose fathers or grand- 
 fathers by the father's side were natural-born subjects, are 
 now deemed to be natural-born subjects themselves, unless 
 the ancestors of such children at the time of their birth were 
 attainted of treason, or were liable for the penalties of treason. 
 Every person born of a British mother abroad may hold real 
 or personal estates in this country ; and if an alien woman 
 marry a natural-born subject, or person naturalised, she be- 
 comes ipso facto naturalised.^ 
 
 An alien who is the subject of a friendly state may take R'gh's "f 
 and hold every species of personal property, except chattels in Britain. 
 real and British shipping, as fully and effectually as natural- 
 born subjects. The subject of a friendly state may also, for 
 the purpose of residence or occupation, either by himself or 
 his servants, hold lands, houses, or tenements for any term 
 not exceeding twenty-one years.^ 
 
 The right of asylum accorded to political refugees is not 
 incompatible with the surrender of criminals. Upon this 
 principle Britain has entered into extradition treaties with 
 France and the United States of America for mutually de- 
 livering up to justice persons charged with murder, piracy, 
 arson, or forgery, committed within the jurisdiction of either 
 of the contracting states.* 
 
 Formerly naturalisation could not be obtained in this 
 
 - Pailliet, Manuel du Droit Fran- * Treaty with France, 1843, con- 
 
 gais, Sth ed., p. 10. firmed by 6 & 7 Vict. c. 75. Treaty 
 
 ^ Stephen's Com. on Laws of Eng- with United States, 1842, confirmed 
 
 land, 4th ed., vol. ii. p. 413. 7 & 8 by 6 & 7 Vict. c. 76. Phillimore, 
 
 Vict. c. 66, a. 3, 16. International Law, vol. i. p. 427. 
 
 3 7 & 8 Vict. 0. 66, a. 4, 5. 
 
90 BRITISH LAW ON SUBJECTS AND ALIENS, [paet I. 
 Naturaiisa- country except by Act of Parliament. But now, under the 
 
 lion, now A J. rr p o -TT* 
 
 obtained. Act 7 (S 8 Vict. c. 66, s. 8, naturalisation is conferred by 
 the certificate of one of the Secretaries of State, and the oath 
 of allegiance taken thereupon. The granting of this certifi- 
 cate is discretionary, and it must except the capacity of be- 
 coming a member of the Privy Council or of either House of 
 Parliament, and may except any other rights and capacities 
 belonging to a British subject. 
 
 As naturalisation involves the acquisition of a new national 
 character, it ought to be accompanied with the loss of the 
 old. In principle, no one should be a citizen of two nations, 
 at the same time, because, in the event of a war arising be- 
 tween them, he would be involved in conflicting duties by a 
 divided allegiance. Yet, with singular inconsistency, some 
 of the states which, readily admit foreigners as citizens, 
 strenuously insist on the perpetual allegiance of their own 
 subjects. 
 
 ^"to ^^ Britain, as weU as in America, allegiance is regarded 
 allegiance, as a perpetual obligation, or at least one that cannot be re- 
 nounced or dissolved without the mutual consent of sovereign 
 and subject.i We have already shown that an opposite 
 doctrine of a national character, freely chosen by the person, 
 was recognised by the Eoman law ; and the same principle 
 is adopted in the French Civil Code, which declares the 
 character of a French subject to be lost by naturahsation 
 in a foreign country, by accepting public employment from 
 a foreign government without the sanction of the sovereign 
 of France, and by every estabhshment made in a foreign 
 country without the intention of returning, in which light, 
 however, no establishments for commercial .purposes are to 
 be regarded.2 Similar regulations exist in other Continental 
 states. 
 
 ' Weetlake's Private International on American Law, 10th ed p 10 
 Law, p. 21. 2 Kent's Commentaries 2 Code Civil, art. 17. 
 
CHAPTER IV. 
 
 OF SLAVERY. 
 
 o 
 
 In this country, labour, being voluntary, rests upon contract, 
 and the master's authority over the servant extends no 
 farther than the terms of the contract permit. For this 
 reason slavery possesses for us only a sort of historical 
 interest ; but it enters so deeply into the public and private 
 life of the Eomans, that some brief notice of it may not be 
 without its use. 
 
 In principle, the Eoman jurists acknowledge that all men 
 are originally free by natural law ; and they ascribe the 
 power of masters over their slaves entirely to the law and 
 general custom of nations. Slavery is accordingly defined, ! 
 " constitutio juris gentium, qua quis, dominio alieno, contra 
 naturam, subjicitur."^ ' 
 
 Among the Eomans slavery had its origin chiefly in three How 
 ways. 1st, Prisoners of war were considered the absolute aro™!^ 
 property of the captors, and were either retained for the 
 service of the State and employed in public works, or were 
 sold by auction, sub corona, as pai-t of the plunder. 2d, All 
 the children of a female slave followed the condition of their 
 mother, and belonged to her master, according to the princi- 
 ple applicable to the offspring of the lower animals, — Partus 
 sequitur ventrem. Slaves born in the house of the master 
 were called vernce, as opposed to those acquired by purchase 
 or otherwise. 3d, By judicial sentence Eoman citizens might 
 be condemned to slavery as a punishment for heinous offences, 
 like the galley-slaves of modem times.'* 
 
 J D. 1. 5. 4. I. 1. 3. 2. ' MarezoU, § 71. 
 
92 SLAVERY. [PAET I. 
 
 According to strict rule a Roman coiild not be the slave of 
 another Roman. For, although by the Twelve Tables an 
 insolvent debtor might be made over to his creditor, the 
 law required that the debtor should be sold abroad or trans 
 Tiherim. However, if a free man above twenty allowed him- 
 self to be sold as a slave by an accomplice, in order to share 
 the price, he forfeited his liberty as a penalty for the fraud. 
 A free woman who cohabited with a slave was liable to be 
 reduced to slavery under the senatus-consultum Claudianum, 
 but this law was repealed by Justinian.' 
 Condition In the earlier ages of the republic the number of slaves 
 Eom*™" ^' was small, but after the Roman conquests had extended be- 
 yond Italy, the influx of captives became very great, and 
 slaves were sold by dealers in the public market. A large 
 portion of the wealth of the Romans consisted of slaves, 
 among whom many were artisans, whose labour yielded a 
 highly profitable return. All slaves were under the power 
 of their master. He had absolute control over their actions, 
 their industry, and their labour ; whatever they acquired 
 belonged to him ; and he could transfer them, like his goods 
 and chattels, by sale, gift, or legacy to any one he pleased. 
 They had no political or civil rights, and were in most re- 
 spects considered in law as things rather than as persons. 
 If they were sometimes allowed to retain a portion of their 
 gains as a 'peculium, this was regarded as a favour rather 
 than a right. 
 
 During the republic, and for a considerable time under the 
 empire, the master had the absolute power of life and death 
 over his slaves. Historians and poets make us acquainted 
 with the dark side of slave life, and draw a lamentable 
 picture of the cruel treatment to which this unhappy class 
 were exposed. The Roman slaves were despised by rich and 
 poor, and when they grew old, were sometimes left to die of 
 starvation. The jaded voluptuary whose property they were 
 could scourge, brand, or torture them at pleasure ; and even 
 in the Augustan age we read of Vedius PoUio having ordered 
 one of his domestics, whq had broken a crystal goblet, to be 
 
 1 C. 7. 24. 
 
CHAP. iv.J SLAVERY. 93 
 
 cast into his fish-pond to feed his lampreys. Female slaves 
 ■were often harbarously punished by their mistresses from 
 mere caprice, or for the most venial mistakes iu arranging 
 the mysteries of the toilet. Ulpian informs us that a Roman 
 damsel called Umbricia was banished for five years by the 
 Emperor Hadrian, for atrocious cruelty to her female slaves.^ 
 
 By a constitution of ji.ntoninus Pius, mentioned in the 
 Institutes, a master who wilfully put his slave to death was 
 declared to be guilty of murder. The same emperor issued a 
 rescript to protect slaves from cruelty and oppression, direct- 
 ing the governors of provinces to inquire into the complaints 
 of all slaves who took refuge in temples or at the statues of 
 the emperor, which were placed in all the principal towns, 
 and if it appeared that they had been treated with unreason- 
 able severity, to order them to be sold, so that they might 
 never return again to the same master.^ By these and 
 similar measures the condition of slaves was in some degree 
 ameliorated ; but the master still retained a power of correc- 
 tion over them, which was substantially unlimited, and led to 
 great abuses. For, even if the slave died in consequence of 
 the chastisement inflicted on him, the master had no prose- 
 cution to dread, unless it appeared that he intended to kill.^ 
 
 Between slaves and free men we find, in the Eoman em- Coioni or 
 pire, a class of persons who occupied an intermediate position ; ^^^ ^' 
 these are the coioni, sometimes called adscriptitii or servi 
 terrm — that is, serfs who were attached to the soil for the 
 purpose of cultivation, and were transferred along with the 
 land when it was sold. Some authors, such as Savigny, are 
 of opinion that this institution goes no farther back than the 
 reign of Diocletian, though they admit traces of it existed at 
 an earlier period. But other writers think serfs are of more 
 ancient origin. 
 
 These serfs could contract marriage, and were regarded in 
 law as persons capable of enjoying certain rights. But in 
 other respects their condition strongly resembled that of 
 ordinary slaves. Their master had the power of chastise- 
 ment, and they could not dispose of their effects without his 
 1 D. 1. 6. 2. ^ I. 1. 8. 2. ^ Collatio Legum Mosaicarum, tit. 3, c. 2. 
 
94 SLAVERY. [part I. 
 
 consent. Originally the colonus was so strictly attached to 
 the land that he could not be separated from it by enfran- 
 chisement ; but afterwards this rigour disappeared.^ 
 How Masters were entitled to give liberty to their slaves by 
 
 slavery was . . t ■ i_ j_- ,i ■ ■,-,-, 
 
 terminated, manumission. In ancient tmies this was usually done in 
 three ways. 1st, By the ^e.n/n/.'i. nr putting the slave's name 
 on the censor's roll. 2d, By the vindida or lictor's rod, a 
 ceremony performed in presence of the praetor. And, 3d, 
 By the master in his testament conferring freedom on his 
 slave. Some other less solemn forms of emancipation were 
 afterwards introduced by the Eoman emperors, such as jja 
 ecclesiis. inter amicos. yer eyistolam . yer convivium ? At first 
 the power of enfranchisement, being founded on the master's 
 right of property, was absolutely unlimited; it was sub- 
 sequently restrained by the laws ^lia Sentia and Puria 
 Caninia, and indirectly by the law Julia Norbana ; but, in 
 order to afford every encouragement to freedom, these laws 
 were repealed by Justinian. 
 
 Effects of Originally, all freedmen emancipated according to the nro- 
 
 sion. per torms became Eoman citizens, though they were naturally 
 
 looked down upon as inferiors by those who had no taint of 
 servile blood. Under Augustus there were three classes of 
 freedmen. 1st, Those who had the full rights of citizens. 
 2d, The Latini Juniani. who had only the privileges which 
 the Latins enjoyed before the social war. And, 3d, the 
 dedititii. who had only an inferior degree of liberty conferred 
 on them, subject to various incapacities, one of which was 
 that they were for ever debarred from attaining the rank of 
 Eoman citizens. All these distinctions among freedmen were 
 swept away by the bold innovations of Justinian. 
 
 Gold ring. The privilege of wearing a gold ring, which was at first 
 reserved to the equestrian order, was extended to all classes 
 of ingenui or free-born subjects. If any one who was free at 
 his birth was reduced to slavery and afterwards recovered his 
 liberty, he did not cease to be considered ingenum. But a 
 freedman, if born a slave, had no right to wear the gold ring, 
 
 1 De Fresquet, vol. i. p. 110-112, 2 I. 1. 5. 2. TJlu 1 7 o 
 Du Oolonat. e- ■ 1 ■ 
 
manumis- 
 ■ sion. 
 
 CHAP. IV. J SLAVERY. 95 
 
 to wliich great importance was attached, unless he obtained 
 the rank of free-born by special grant from the emperor.^ 
 At length, when all freedmen without distinction became 
 Eoman citizens, Justinian conferred on them the right of 
 wearing the gold ring, which till then had been the distin- 
 guishing symbol of a man who had been free at his birth.^ 
 
 After emancipation, the master, as patron, retained certain delations 
 rights over his freedman. The freedman was required to patron after 
 pay a certain degree of respect, and to perform certain ser- 
 vices, to his patron. Thus, if the patron was reduced to 
 poverty, the freedman was bound to support him according 
 to his abilities. On the other hand, the patron who failed to 
 support his freedman when poor, was deprived of the rights 
 of patronage. "When a freedman died intestate, without heirs, 
 his former master, as patron, succeeded to his effects. 
 
 The ancient condition of villenage in England expired 
 about the commencement of the seventeenth century, and no 
 other form of slavery was recognised by law, though a dif- 
 ferent rule prevailed in the colonies. In the case of James 
 Somerset, the negro who was brought before the Court of 
 King's Bench by habeas corpus in 1772, it was decided that 
 a slave could not be carried out of the country back to 
 the colonies by his master.* A similar question arose in 
 Scotland, in the case of Knight v. Wedderburn, in 1778, 
 where it was declared that the negro was in all respects 
 free.* Strange to say, notwithstanding these decisions, the 
 colliers an d salters in Scotland remained in_a_cqndition 
 resembling that of slaves till near the close .of the last 
 "century. They were bound to continue their service dur- 
 ^F their. liv es, were fixed to their place of employment, 
 and sol d with the works to which they belonged.^ In 1775 
 an Act was' passed for their relief; but it was found to be 
 
 1 " Ingenuus est qui statim ut auctore Pothier, vol. v. p. 18. 
 
 natus est liber est." " Libertini ^ jsT. 78, ch. 1. 
 
 sunt qui ex justa servitute manu- ^ State Trials, xx. 1. 
 
 miasi sunt."— I. lib. 1, tit. 4 and 5. - Mor. Diet., p. 14, 545. 
 
 " Aureus annulus inaigne ingenuita- = Bankton, 1. 2. 82. Cockburn's 
 
 tis. Hoc jus libertini impetrabunt Memorials, p. 76. Chambers's Do- 
 
 a prinoipe."— Pandects Juatinianece, mestic Annals of Scotland, iii. 453. 
 
modern 
 times. 
 
 96 SLAVERY, [faet I. 
 
 practically inoperative, in consequence of the ignorance and 
 degradation of this class of work-people, and because enfran- 
 chisement could only be obtained by a decree in the Sheriff 
 Court. It was not till 1799 that their freedom was estab- 
 lished, so as to relieve the soil of Britain from the reproach 
 of slavery.^ 
 Slavery in In modern times, slavery is still maintained in Asia, 
 Africa, and some parts of America. But in Europe it grad- 
 ually disappeared, in its most obnoxious form, with the pro- 
 gress of Christianity. What is called serfdom, however, 
 subsisted in the various countries of Europe, not only during 
 the middle ages, but down to a comparatively recent period ; 
 and it is only in our day that measures have been taken to 
 emancipate many millions of serfs in the Eussian dominions. 
 After the discovery of America, the Spaniards and other 
 European states revived the practice of slavery, by purchas- 
 ing and transporting African negroes to be employed in their 
 colonies. Great Britain was the first among European powers 
 to declare the slave-trade illegal, in 1807 ; and in 1834, after 
 some judicious preparatory regulations, all the slaves in her 
 colonies were declared free, while twenty millions sterling 
 were voted by Parliament as compensation to the slave- 
 owners.'' France followed the same course in regard to her 
 colonies, by a law which came into force in 1848, full in- 
 demnity having been allowed to the masters.^ 
 
 1 15 G. in. c. 28; .39 Geo. III. u. ^ « ^ct 3 & 4 WiU. IV. e. 73. 
 56. May's Constitutional History ' Bouillet, Diet, des Seienees, des 
 of England, vol. ii. p. 284, Lettres, et des Arts, voce Esclavage. 
 
CHAPTER V. 
 
 OF MAEEIAGE. 
 I. EOMAN LAW. 
 
 Beet. 1. — Constitution of Marriage. 
 
 Maeeiage is a contract by which a man and a woman enter Nature of 
 into a mutual engagement, in the form prescribed by law, to ^^™'^^^- 
 live together as husband and wife, during the remainder of 
 their lives. According to Modestinus — " Nuptise sunt con- 
 junctio maris et foeminae et consortium omnis vitse, divini et 
 humani juris communicatio."^ 
 
 The words " consortium omnis vitse " must not be extended 
 to the property of the spouses ; for each preserved his or her 
 patrimony distinct, unless where the wife was in manu of the 
 husband. 
 
 Among the Romans, marriage was distinguished into matri- Justum and 
 moniwn justum and non justum. The first occurred when 
 both parties had the capacity to enter into a lawful marriage, 
 carrying along with it the paternal power, and other civil 
 rights ; and originally this was strictly confined to Eoman 
 citizens, or those to whom the jus connubii was conceded.^ 
 The matrimonium non justum, on the other hand, in which 
 connubium was wanting, as in the case of marriage between 
 Latini, or foreigners, or between Eomans and foreigners, 
 though an equally' valid and binding marriage, did not confer 
 t\ie patria potestas, and other important civil rights. 
 * In ancient times, equality of condition was required in 
 
 1 D. 23. 2. 1. ' Ulp- 5- 4-5. 
 
 G 
 
with or 
 withouh 
 raanus. 
 
 98 MAKEIAGE. [part i. 
 
 marriage, so that both patricians and plebeians married only 
 amongst their own class, and freedmen were prohibited from 
 marrying the freeborn. By the lex Canuleia, A.U.C. 309, con- 
 nubinm was authorised between patricians and plebeians ; 
 and by the lex Jnlia, A.U.C. 757, between freedmen and the 
 freeborn, subject to certain . restrictions as regards alliances 
 with families of senatorial rank, which were afterwards re- 
 moved by Justinian, who allowed senators to marry whom 
 they pleased.1 Actual marriage was the privilege of the free 
 alone ; the union of slaves was called contuhernium. 
 MaiTiage Though Certain forms were necessary to bring the wife in 
 manu mariti, these were not essential to the validity of mar- 
 riage itself; and the wife did not pass under the power of her 
 husband, unless she expressly consented to do so. A lawful 
 marriage could, therefore, be entered into iu two ways — either 
 with conventio in manum, or without it. By the first form, 
 the wife passed out of her own family into that of her hus- 
 band, who acquired all her property, and exercised over her 
 a kind of patria potestas as if she had been his daughter. 
 According to the other form, the woman remained in the 
 power of her father or tutor, and retained the free disposition 
 of her own property. 
 Three There were three modes of contracting marriage with manus, 
 
 form™' called confarreatio, coemptio, and usus. Confarreatio was a 
 solemn religious ceremony, before ten witnesses, in which an 
 ox wais sacrificed, and a cake of wheaten bread was divided by 
 the priest between the man and woman as an emblem of the 
 consortium vitw, or life in common. Coemptio was a sort of 
 symbolical purchase of the wife by the husband, per ces et 
 libram, in presence of five witnesses and the balance-holder. 
 Usus was founded on prescription, by the woman cohabiting 
 with the man as her husband for a whole year, without having 
 been absent from his house for three whole nights following 
 each other.^ In later times the conventio in manum was found 
 inconvenient by the Eoman women, and these three ancient 
 forms of marriage feU into disuse. Confarreation shared the 
 
 ' S. 117, ci. 6. Ins, translated by Metcalfe, p. 158 
 
 2 Gai. 1. 109,- 113. Becker's Gal- et eeq. 
 
CHAP, y.] MARRIAGE. 99 
 
 fate of the old Pagan worsHp to which it belonged. Coemp- 
 tion, though more frequent, and still in use in the time of 
 Gaius, gradually disappeared. Under the new system, mar- 
 riage without manus became the ordinary rule of the common 
 law, so that married women could dispose of their property 
 without the authority of their husbands, and arrived at a 
 degree of liberty unknown to most systems of legislation, and 
 contrasting very strongly with the heavy disabilities imposed 
 on wives by the common law of England and Scotland. 
 
 At Eome, marriage was sometimes preceded by espousals, Sponsaiia. 
 sponsalia, being a mutual promise to marry at a future period ; 
 but this was not essential, and could not be enforced by one 
 of the affianced persons against the other, so as to compel 
 marriage.^ 
 
 By the Eoman law marriage was contracted by the simple How mar. 
 consent of the parties. As a general rule no writing of any contra'oted. 
 kind was necessary ; but when the spouses were of unequal 
 condition, it became customary to draw up a marriage-contract, 
 in order to rebut the presumption of concubinage. At first, 
 Justinian dispensed with any written contract as unnecessary ; 
 but he afterwards required this form to be observed in the 
 marriages of the great dignitaries of the empire and persons 
 of illustrious rank.^ 
 
 According to the general opinion, marriage is completed by 
 consent alone — consensus facit nuptias; but some writers, 
 such as Ortolan, think the marriage is not perfected tiU after 
 the wife has been delivered over to the husband, which is 
 usually manifested by the deductio in domum mariti. Ac- 
 cording to this theory, marriage is viewed as a real contract 
 completed by tradition.* 
 
 As regards physical capacity for marriage, the Eomans fixed impedi- 
 puberty at fourteen years of age for males, and twelve for marriage. 
 females. AU below these ages were pupils, and could not 
 marry. Absolute impotency was generally considered a dis- 
 qualification. Under Justinian's constitution, however, old 
 age was no bar to matrimony. Polygamy was not permitted 
 
 1 C. 5. 1. 1. ' Ortolan, Institutes, vol. ii. p. 80. 
 
 -2 N. 74, cK 4. N. 117, ch. 4. 
 
100 
 
 MARRIAGE. [part I. 
 
 by the Eomans, so that a subsisting marriage incapacitated 
 any one from entering into a second marriage. 
 Relation- Eektionship within certain degrees, either of consanguinity 
 "'"P' or affinity, rendered the parties incapable of contracting 
 
 marriage. Ascendants and descendants to the most remote 
 degree could not marry ; and this rule applied to relations by 
 adoption, even after thetie was dissolved. In the collateral 
 line, marriage was prohibited between brothers and sisters, 
 including persons so related by adoption while it subsisted, 
 and also in the special case where one of the parties stood in 
 loco parentis to the other, as uncle and niece, aunt and nephew. 
 For, although the Emperor Claudius was authorised by the 
 Senate to marry his niece Agrippina, and this example was 
 followed by some Eomans, the practice was suppressed by 
 Constantine. 1 Marriage between cousins - german, which 
 had for some time been prohibited, was declared lawful by 
 Arcadius and Honorius.^ 
 
 Degrees prohibited in consanguinity were also prohibited 
 in affinity, which is the connection arising from marriage 
 between one of the married persons and the blood relations 
 of the other. Under Constantine, who abrogated the ancient 
 law, marriage was prohibited with the widow of a deceased 
 brother and the sister of a deceased wife.^ 
 
 These rules as to forbidden degrees have been substantially 
 adopted both in England and Scotland, except that we do not 
 recognise adoption. In the Code Napoleon (articles 161, 162, 
 and 163) the prohibitions are thus expressed : — 
 
 " In the direct line marriage is prohibited between all 
 ascendants and descendants, whether lawful or natural, and 
 persons connected by affinity in the same line. 
 
 " In the collateral line marriage is prohibited between the 
 brother and sister, whether lawful or natural, and persons 
 connected by affinity in the same degree. 
 
 " Marriage is also prohibited between uncle and niece, aunt 
 and nephew." 
 
 Some marriages were prohibited by the Epmans on grounds 
 
 of public policy. So governors of provinces were not allowed 
 
 1 Cod. Theod., 3. 12. 2. " C. 5. 4. 19. s Cod. Theod., 3. 12. 2. 
 
CHAP, v.] MAERIAGE, 101 
 
 to take wives from the territory under t|Lejrxg,dniirii§^tration ; 
 guardians could not marry their wards or "^^e them in mar- 
 riage to their children ; and in the later perioct of the empire. 
 Christians were not permitted to marry Jews. 
 
 By the Eoman law the consent of the father, or paterfch Father's 
 milias, was indispensable to the marriage of children under XT*' 
 power ; but neither the consent of the mother nor that of the °«™s8ary. 
 guardian was required. Farther, the tacit consent of the 
 father was sufficient. 
 
 In early times celibacy was considered censurable by the Celibacy at 
 Eomans. This view passed away in the general degeneracy of '""^' 
 manners at Eome, especially after the civil wars at the close 
 of the republic, when the conduct of women of rank rendered 
 marriage exceedingly distasteful to the men. To counteract 
 these evils, Caesar encouraged marriage by rewards. -A;iig2£: 
 tus went still further, by passing the famous law Julia et 
 Papia Poppsea, containing some severe regulations against 
 celibacy, while solid favours were bestowed on those who had 
 a certain number of children. Little benefit resulted from 
 these laws, which operated very unequally and sometimes 
 oppressively, and they " were frequently defeated by the 
 emperors themselves, who were in use to give the jus trium 
 liberorum, to persons who had no children, and even to some 
 who were not married."^ Constantino abolished the penalties 
 of celibacy. 
 
 Under Augustus, concubinage — ^the permanent cohabita- Concubin- 
 tion of an unmarried man with an unmarried woman — was *^^' 
 authorised by law. The man who had a lawful wife could 
 not take a concubine ; neither was any man permitted to take 
 as a concubine the wife of another man, or to have more than 
 one concubine at the same time.^ A breach of these regula- 
 tions was always condemned, and fell under the head of 
 stuprum. In later times the concubine was called cimica.\ 
 Between persons of unequal rank concubinage was not un- 
 common ; and sometimes it was resorted to by widowers who 
 had already lawful children and did not wish to contract 
 
 - Becker's Gallus, translated by ^ paul. 2. 20. 
 Metcalfe, p. 177. 
 
102 
 
 ■MAKRIAGE. 
 
 [part I. 
 
 another legal marriage, as in the cases of Vespasian, Anton- 
 inus Pius, and M. Aurelius. 
 
 As regards the father, the children born in concubinage 
 were not under his power, and were not entitled to succeed 
 as children by a legal marriage ; but they had an acknow- 
 ledged father, and could demand support from him, besides 
 exercising other rights. As regards the mother, their rights 
 of succession were as extensive as those of her lawful children. 
 
 Under the Christian emperors concubinage was not fa- 
 voured ; but it subsisted as a legal institution in the time of 
 Justinian.^ At last Leo the Philosopher, Emperor of the 
 East, in a.d. 887, abrogated the laws which permitted con- 
 cubinage as being contrary to religion and public decency. 
 " Why," said he, " should you prefer a muddy pool, when" 
 you can drink at a purer fountain ?"^ The existence of this 
 custom, however, was long prolonged in the West among the 
 Franks, Lombards, and Germans ; and it is notorious that the 
 clergy for some time gave themselves up to it without re- 
 straint.^ 
 
 Effect on 
 persons of 
 
 Effect on 
 property. 
 
 Sect 2. — Effects of Roman Marriage. 
 
 As a general rule resulting from the consortium, vitce, the 
 wife followed the domicile of the husband, and was entitled 
 to protection and support from him. She took his name and 
 rank, and retained them even after his death, so long as she 
 did not enter into a second marriage.* 
 
 AU the children born of a lawful marriage fell under the 
 paternal power of the husband, who was always presumed to 
 be the father, unless the contrary was established by certain 
 proofs A child was held to be conceived during the marriage, 
 if it was born not more than ten months after its dissolution.^ 
 
 With regard to the property of the spouses, we have already 
 
 ' D. 25. 7. 0. 5. 26. 
 
 ^ Leon. Const. 91,- Ortolan, In- 
 stitutes, vol. ii. p. 102, note. 
 
 ^ Duoauge, voce Cououbina. Trop- 
 ong, De rinfluenoe du Christian- 
 
 isme sur le Droit Civil des Eomains, 
 p. 247. 
 
 « Mackeldey, § 550. 
 
 /D. 1. 6. 6. 
 
 » D. 38. 16. 3. § 11. 
 
vxi^. V.J MARRIAGE. 103 
 
 explained that, in early times, when marriage was entered 
 into with the conventio in manum, the wife became entirely 
 under the power of her husband, and all her property devolved 
 on him. But at a later period, when the conventio was aban- 
 doned, marriage had no effect in rendering the property of 
 the spouses common ;• on the contrary, each was entitled to 
 preserve what was his or her own, and to dispose of it at 
 pleasure. If, therefore, the wife was sui juris, and had a 
 private fortune, she retained it as her own property, entirely 
 separated from that of her husband. 
 
 At the celebration of the wedding a contract of marriage 
 was frequently entered into, to regulate the pecuniary rights 
 of the spouses. In early times these contracts were unknown, 
 and were unnecessary in the marriage with manus; but when 
 the manus had become obsolete, the want of such agreements 
 was felt. 
 
 It was considered to be the duty of the father to give to nos or 
 his daughter ajnarriagfr-portion or dowry, in proportion to his 
 means. Such dowry was called dos jprofectitia . When the 
 marriage-portion was given by the wife from her own pro- 
 perty, or by any third person, it was called dos adventitia. 
 However, the constitution of a dos was not essenEiarlo~tHe 
 validity of marriage ; it was one of those things which were 
 regulated by special convention. The husband had the sole 
 management of the dos, and the fruits of it, during the mar- 
 riage ; and he could even exercise over it aU acts of owner- 
 shipj so far as it consisted of movables, but he could not 
 alienate or encumber any part of it which was immovable, or 
 invested in land, even with his wife's consent. As a general 
 rule, the husband's right to the dos ceased on the dissolution 
 of the marriage. According to the last state of the Eoman 
 law, when the marriage was dissolved the marriage-portion 
 was restored to the wife or her heirs, and, exceptionally, to 
 the wife's father {pro/ectitia dos), or to the third person who 
 had made the advance, when this had been done under an 
 express reservation that it should return to him (recejptitia 
 dos). A different course might be adopted by special conven- 
 tion, as it might be stipulated in the marriage-contract that 
 
104 
 
 MARRIAGK. 
 
 [part I. 
 
 Donatio 
 propter 
 nuptlas. 
 
 Donations 
 between 
 husband 
 and wife. 
 
 How far 
 maxriagG a 
 religious 
 ceremony. 
 
 the husband should retain the dos, if the marriage was dis- 
 solved by the wife predeceasing him.^ 
 
 AU the property of the wife not comprehended in the dowry 
 was called paraphernal {parapherna) ; the wife remained pro- 
 prietor of it, and the husband had no rights over it, beyond 
 those which she might relinquish in his favour.^ 
 
 The donatio profter ntiptias was a provision made by the 
 husband for the wife, to be enjoyed by her by way of joint- 
 ure, in the event of her surviving him. While the marriage 
 subsisted the husband had the management of the whole fund, 
 and applied the funds or profits to support the burdens of 
 matrimony. If the marriage was dissolved by the death of 
 the husband, the donation propter nwptias fell to the wife ; 
 but if she predeceased him, it was retained by the husband as 
 his own. absolute property.^ 
 
 In certain circumstances marriage gave rise to reciprocal 
 rights of succession between the spouses, as will be seen when 
 we come to treat of the law of succession. 
 
 To preserve the marriage relation in its purity, neither hus- 
 band nor wife, as a general rule, could make a gift of any- 
 thing to each other during the marriage. Under Septimius 
 Severus the strictness of the law as to these donations was 
 relaxed, and they became valid if the donor died first without 
 having revoked them. There were also exceptions to the 
 general rule. Some donations between husband and wife 
 were, from their nature, valid and irrevocable, such as remu- 
 neratory grants, or those made with a view to a divorce ; and 
 a woman could make gifts to her husband in order to qualify 
 him for certain honours.* 
 
 The Abbd Fleury states that marriage was considered by 
 the earliest Fathers of the Christian Church an ecclesiastical 
 as well as a civil ceremony. But other eminent wrriters take 
 a different view, and contend that the authorities cited by 
 rieury do not support his assertion. Among the Eomans 
 marriage was purely a civil contract, and so it remained in 
 the time of Justinian. The Emperor Leo the Philosopher, 
 
 '• Marezoll, § 165. 
 " C. 5. 14, 
 
 3 I. 2. 7. 3. C. 5. 3. 
 « D. 24. 1. C. 5. 16. 
 
 Mackeldey, § 566. 
 
CHAP. V.J PEENCH LAW OF MARRIAGE. 105 
 
 fi-?jL.§§,^PP5?:?i to have teen the first who declared ecclesi- 
 astical benediction necessary to marriage ; but his constitu- 
 tion was in force only in the Eastern empire. Among the 
 early barbarian codes no mention is made of this ceremony ; 
 and in the history of Gregory of Tours marriage is treated as 
 a civil contract. 
 
 In most countries the marriage ceremony is now performed 
 in presence of a clergyman, and accompanied with the nuptial 
 benediction, or other religious observances. The religious 
 forms, however, are not essential to the validity of marriage, 
 any further than may have been rendered necessary by the 
 positive institutions of any particular State ; for it belongs to 
 the secular power alone to determine what forms, if any, 
 shall be required in addition to the consent of the parties, in :- 
 order to constitute a valid marriage. Blackstone observes, 
 " The intervention of a priest to solemnise this contract is i 
 merely juris positivi, and not juris naturalis aut divini." ^ \ 
 
 Before the decree o f_thg Council of_ Tren t, in JSTovem ber Decree of 
 1563, which declared that after that date all marriages not t^'I^'Ick^q 
 
 -... ■' .-- — — — - P . Trent, 1563, 
 
 contracte^jn presenceof a priest and two or three witnesses 
 should be void, private marriages without the intervention 
 of the clergy were recognised throughout Christendom. This 
 famous decree is stigmatised by Pothier as a clerical usurpa- 
 tion, which never had any authority in France. Fifty-six 
 prelates voted against it. Maillard, the Dean of the Sor- 
 bonne, we are told, declared that it was beyond the power of 
 the Church, as well as unsound in principle, the first mar- 
 riage between Adam and Eve, which was the pattern for all 
 others, having been contracted privately without witnesses.^ 
 
 II. — ^FRENCH LAW OP MAERIAGE. 
 
 By the Code Napoleon marriage in France requires to be How mar- 
 celebrated before a civil ofiicer of the domicile of one of the traftedTn 
 
 France. 
 
 1 Black. Com., book 1, ch. 15. On " Father Paul's History of the 
 
 this iwint see Principal Lee's Lee- Council of Trent, book 7. Pothier, 
 
 • tures on the History of the Church Traitg de Manage, part 4, c. 1, § 4. 
 of Scotland, vol. i. p. 248, note. 
 
106 FRENCH LAW OF MARRIAGE, [PAET I. 
 
 contracting parties, in presence of four witnesses, after certain 
 public notices liave been given ; and a formal instrument, 
 called acte de manage, is drawn up in evidence of the con- 
 tract.i This is usually followed by a religious ceremony to 
 consecrate the union of the spouses, but that is not req[uired 
 to validate the marriage ; and any minister of public worship 
 who proceeds to the religious seremony before the civil 
 marriage, is liable to severe punishment under the penal 
 code.^ In this country we adopt the same age of consent 
 to marriage as the Eoman law — that is, fourteen for males 
 and twelve for females ; but in France a man under eighteen 
 and a woman under fifteen cannot marry, — at least they 
 cannot do so without a dispensation from the Crown for grave 
 reasons. A son under twenty-five, and a daughter under 
 twenty-one, cannot marry without the consent of their 
 parents, or the survivor of them ; but in case of difference 
 the father's consent is sufficient. If the parents are dead, or 
 cannot consent, the grandfather and grandmother take their 
 place ; and failing all these, the consent of a family council 
 must be obtained. When the son and daughter are above 
 the ages specified, they may marry without any of the fore- 
 going consents, provided they previously make certain re- 
 spectful applications to their parents, according to prescribed 
 forms.' Children have no legal right to demand a marriage- 
 portion, or other establishment in life, from their father or 
 mother.* 
 Marriage- It is usual in France, before marriage, to make a contract 
 to regulate the respective rights and interests of the future 
 spouses ; and if such a contract exists, it requires to be men- 
 tioned in the acte de manage, under the law of 18th July 
 1850. The contract may contain special conventions, or 
 may declare in a general manner that the parties understand 
 their marriage to proceed either upon the principle of the 
 communion of goods, or upon the principle of dotation (sous 
 le regime de la communaut^, ou sous le regime dotal). In 
 the first case, under the communion of goods, the rights of 
 
 1 Code CivO, art. 75, 76, 163. ^ Code Civil, art. 144-151. 
 
 « Code Penal, art. 199, 200. « Ibid., art. 204. 
 
 contracts. 
 
CHAP, v.] ENGLISH LAW OF MAREIAGE. 107 
 
 the spouses and their heirs will be governed by the regula- 
 tions in book 3, title B, chapter 2, of the Civil Code, beginning 
 with article 1390. In the second case, under the principle 
 of dotation, their rights wUl be governed by the regulations 
 in chapter 3 of the same book and title commencing with 
 article 1540. 
 
 The rules of the French law regarding the constitution of Rules of 
 marriage will be found in the first book of the Civil Code, ^'"' '^'"'^■ 
 art. 63-76, and art. 144-228; and the legal effects of mar- 
 riage, as affecting the property of the spouses, are treated 
 very fully under the head " Contract of Marriage," in the 
 third book of the CivH Code, art. 1387-1581. 
 
 III. ENGLISH LAW OF MAERIAGE. 
 
 iieci. I.— -Constitution of Marriage in England. 
 
 In the celebrated case of Daliymple,^ Lord Stowell ex- After Coun- 
 pressed an opinion that, prior to the Marriage Act of George ^^l^^JjeTt' 
 II., marriage, by the law of England, was constituted by con- J^®^^"'^" 
 sent de prceseriti, without the presence of a clergyman, or any 
 religious ceremony. But that opinion was overruled by the 
 judgment of the House of Lords, in Queen v. Millis, in 1844, 
 where it was decided that, after the decree of the Council of 
 Trent, the ecclesiastical law of England required the presence 
 of a clergyman to marriage.^ 
 
 In England, the formalities of marriage are now regulated English 
 by the Marriage Acts, which allow marriage to be solemnised ^cTs""^'' 
 either with a religious ceremony or without it. The Act of , 
 4 Geo. IV. c. 76 adhered to the principle of the~common 
 law, that marriages taking place in England must be solem- 
 nised between all persons (whatever their religious belief) by 
 a minister in holy orders, and according to the rites of the 
 Established Church, the only exceptions being in favour of! 
 Jews and Quakers, whose usages were left undisturbed. This 
 principle having been found to operate harshly against Dis- 
 senters, the Act 6 and 7 Will. IV. c. 85 (since amended in 
 1 2 Hagg. C, R. 54, and Dodson's Report. ^ iq ci. and Fin., p. 534. 
 
108 
 
 ENGLISH LAW 
 
 [PABT I. 
 
 Where 
 marriage 
 must be 
 celebrated. 
 
 sundry points of detail) introduced new regulations, whereby 
 marriages may now be celebrated in England, after due notice 
 and certificate issued, either in a registered place of worship, 
 and in the presence of some registrar of the district and of 
 two witnesses, or at the ofifice of the su_perintendent-registrar, 
 and in his presence, and in the presence of some registrar of 
 the district and of two witnesses, upon making the declara- 
 tion and using the form of words prescribed. 
 
 By these Acts, marriage cannot be constituted, in England, 
 by mere consent alone, however clearly expressed, before 
 witnesses. There must be some previous notice, or procla- 
 mation of banns, or licence. Either a clergyman of the 
 Established Church or the registrar of the district must be 
 present, with witnesses, at the ceremony or mutual declara- 
 tion respectively ; and the marriage must be in an authorised 
 place, and at authorised hours. 
 
 It will thus be observed, that in England the marriage 
 ceremony must take place in a church, or, after due notice 
 and certificate, in a licensed chapel or building, or in the 
 registrar's ofS.ce. 
 Ceremony When the marriage takes place in a church or chapel of 
 the Church of England, the service must be performed by the 
 officiating minister, according to the rites of that Church, in 
 presence of two or more witnesses. If the marriage is solem- 
 nised in a registered dissenting chapel, there may be super- 
 added to the civil contract whatever religious ceremony the 
 parties may think fit to adopt. But if the parties contract 
 marriage in a registrar's ofi&ce, the mutual declaration and 
 exchange of matrimonial cohsent completes the civil contract, 
 and no religious ceremony is used at such marriage.-' 
 
 The Archbishop of Canterbury is authorised to grant 
 special licences to marry at any convenient time or place- 
 In all other cases, marriage in England cannot take place in 
 a private house, and must be celebrated with open doors in 
 canonical hours — that is, between 8 and 12 in the forenoon. 
 "~T[f the person proposingTd marry is a minor, and not a 
 widow or widower, the consent of the father of such person, 
 1 19 & 20 Vict. c. 119, s. 12. Paterson's Compendium, p. 287. 
 
 Marriage 
 of minorii. 
 
CHAP. V.J or MAERIAGB. 109 
 
 if living, must be obtained. If the father is dead, the con- 
 sent of a guardian is required ; and if there be no guardian, 
 the consent of the mother, if unmarried; if there be no 
 mother unmarried, then the consent of a guardian appointed 
 by the Court of Chancery ; and in some cases of disability, 
 or where consent is unreasonably withheld, relief may be 
 obtained by petition to the Lord Chancellor. Formerly a 
 marriage might be declared void by reason of the want of 
 consent by parents or guardians, but this rule was found to 
 be productive of mischief; and, under the existing law, if a 
 minor succeed in getting the marriage ceremony performed, 
 the marriage is not accounted void by reason of the non- 
 consent of parents and guardians.^ All marriages, whether 
 taking place under 4 Geo. IV. c. 76, or 6 and 7 Will. IV. 
 c. 85, are required by law to be registered. 
 
 These Acts do not extend to any marriage contracted by Marriages 
 British subjects out of England. A marriage entered into in England. 
 Scotland or in a foreign country, if made in such form as is 
 deemed sufficient in the place where it is contracted, wiU be 
 considered valid by the law of England ; and even the Gretna 
 Green marriages were recognised by the English courts, 
 though the parties eloped to Scotland on purpose to evade 
 the laws of marriage in their own country. 
 
 It is a general rule, whatever inconveniences may some- 
 times attend it, that a marriage duly solemnised in any 
 country according to its own law, ought to be recognised as 
 binding in point of form all over the world. But there is a 
 distinction between marriage rites and the legal capacity of 
 marrying ; for the form of the ceremony depends on the place 
 where the marriage is solemnised, while the legal capacity of 
 persons to marry is determined by the country of their domi- 
 cile. This principle was established by the judgment of the 
 House of Lords in Brook v. Brook. The parties were domi- 
 ciled in England, where marriage with a deceased wife's sister 
 is prohibited, and they were married at the Danish port of 
 Altona, where the law permitted them to marry. This 
 marriage was declared invalid, and the grounds of decision 
 ^ 6 & 7 "Will. IV. c. 85, 8. 25. Addison on Contracts, 5tli ed., p. 756. 
 
11 a ENGLISH LAW OF MARRIAGE. [P^BT I. 
 
 were, that all persons domiciled in England can marry only 
 those whom the law of England allows them to marry; and 
 that, by getting the ceremony performed at Altona, or else- 
 where, they might vary the form but could not enlarge the 
 capacity to marry. 
 
 Sect. 2.— Effects of English Marriage. 
 
 AVife's Generally speaking, a wife cannot sue in a court of law 
 
 LT"" without her husband being joined with her. She can sue, 
 however, as a femme sole, when judicially separated from 
 him. 
 Effects on By the common law of England, the husband accLuires all 
 properfcjf of ^^^ persoual property belonging to the wife at the time of the 
 marriage, or which may accrue to her during its subsistence, 
 except her paraphernalia, and such property as may be settled 
 for her separate use. He is also entitled to all her chattels 
 real, or leasehold interests, and to her choses in action — such 
 as debts due to the wife on bond or otherwise ; but these are 
 so far an exception that they do not in general become the 
 husband's until he reduces them Into possession. If he dies 
 before this is done, they remain to the wife ; and if she dies 
 before this is done, they form part of her estate. The hus- 
 band is also entitled to the management, and to the rents and 
 profits, of the wife's freehold estates during the marriage. 
 After his wife's death, he may enjoy for his life lands of the 
 wife of which they were seised in her right for an estate of 
 inheritance, if issue of the marriage is born capable of inherit- 
 ing the property. 
 
 When the husband requires the intervention of a court of 
 
 equity to obtain the benefit of any of his wife's property— as, 
 
 for instance, to recover a legacy left to her — aiid when no 
 
 other adequate provision has been made for her, the court 
 
 will order part of such property to be settled upon the wife 
 
 for her separate use.^ 
 
 Rights of As to the rights of property acquired by the wife on her 
 
 hulbrad's husband's death, the law of England allows them to stand on 
 
 °* ■ ^ Paterson'a Comijendium, p. 297. 
 
CHAP, v.] SCOTTISH LAW OF MARRIAGE. Ill 
 
 a very precarious footing. Dower is the widow's life-estate 
 in one-third of the husband's real estate, and was at one time 
 a very valuable provision, but it has now dwindled into in- 
 significance. Under the Act 3 and 4 Will. IV., which applies 
 to all marriages contracted after 1st January 1834, dower 
 cannot be claimed, 1st, Where the estate of jthe husband has 
 been disposed of by him eitEeFin his lifetime or by will. 2d, 
 5~srniple device of real estate subject to dower by the hus- 
 band to the wife will bar the dower, unless a contrary inten- 
 tion be expressed. And, 3d, Any declaration by the husband, 
 either by deed or will, that the wife shall not have dower, is 
 sufficient to defeat her claim. 
 
 ~ If the husband happen to die intestate, the statute of dis- 
 tributions (22 and 23 Car. II. c. 10) gives to the widow one- 
 third of his personal property when he leaves issue living, 
 and one-half when there is none ; but this is a mere chance 
 or hope of succession, which may be defeated at any time by 
 the husband's will. 
 
 IV. ^ — SCOTTISH LAW OP MAERIAGE. 
 
 Sect 1. — Constitution of Marriage in Scotland. 
 
 In Scotland marriage is a civil contract, constituted by the Marriage 
 mutual consent of the parties. The consent to marriage must by°mutuai 
 be to a present act ; a promise or engagement to marry at a ''™=™*- 
 future period, however formal, where no sexual intercourse 
 has followed upon it, may be retracted, though the person 
 retracting may be liable in damages for breach of promise. 
 To the marriage" of minors the consent of parents or guardians 
 is not necessary. 
 
 The law of Scotland recognises four different modes by 
 which marriage may be constituted. 1st, A public or regular 
 marriage celebrated by a minister after proclamation of banns. 
 2d, The deliberate exchange of matrimonial consent by words 
 de prcesenti, without the nuptial benediction or concuhitus. 
 3d, Promise of marriage followed by copula, at least wheii 
 declared a marriage by an action of declarator in the Court 
 
112 SCOTTISH LAW [part i. 
 
 of Session. 4th, Cohabitation as man and wife, and being 
 held and reputed as married persons.^ 
 Public or A public Or regular marriage is one celebrated by a clergy- 
 mlrei^e. man, in presence of two or more witnesses, after due procla- 
 mation of banns according to the rules of the Church. All 
 marriages entered into in any other form are clandestine or 
 irregular ; but if the matrimonial consent has been seriously 
 and deliberately interposed, they are equally effectual with 
 regular marriages, though they expose all concerned in them 
 to certain statutory penalties, which, however, are seldom if 
 ever enforced in modem times. 
 
 By the 4 and 5 Will. IV. c. 28, regular marriages may be 
 solemnised by the clergy of any religious persuasion, after 
 due proclamation of banns in the parish churches of both 
 parties. The privilege was previously confined to ministers 
 of the Established Church of Scotland and Episcopal clergy- 
 men who had taken the oaths to government. Among Pres- 
 byterians these regular marriages are usually solemnised, 
 not in a church, but at the private house where the woman 
 resides ; but the place of celebration is a matter of indifference 
 in point of law. The question of mutual acceptance as hus- 
 band and wife is put by the minister and answered by the 
 parties : he then declares them married persons in presence 
 of the witnesses, and the ceremony is closed by the nuptial 
 benediction. The registration of marriages in Scotland is 
 regulated chiefly by 17 and 18 Vict. c. 80, and ] 8 Vict. c. 29. 
 Irregular As to irregular marriages, and the evidence by which they 
 may be established, we cannot do better than lay before our 
 readers a short exposition of the law in the words of Lord 
 Moncreiff, whose authority in consistorial questions is justly 
 entitled to the greatest weight : — 
 
 " The governing rule of law is unquestionably that mar- 
 riage is constituted by the consent of the parties alone ; and 
 that upon legal and satisfactory evidence that such mutual 
 consent has been seriously and deliberately interposed, the 
 court win declare such marriage, though it should be clear 
 that no formal ceremony or celebration has taken place. 
 ' Eraser, Personal and Domestic Relations, vol. i. p. 112. 
 
 marriELges. 
 
>ion 
 
 OP MARBIAGE. 113 
 
 " Proof of celebration in facie ecclesice is, of coiirse, the Doclarati 
 first and best mode. Proof of a formal, serious, and deliber- nelses."^'' 
 ate declaration of consent before witnesses, if the court be 
 satisfied that such declaration was made with the true in- 
 tention of entering into marriage, is another settled mode of 
 proving the constitution of marriage, as in the cases of 
 Macadam, Dalrymple, and many other cases. Written de- written ac- 
 clarations or acknowledgments of marriage given and ac- ^e^^^^' 
 cepted, if there be no doubt of the reality of the purpose, are 
 effectual to the same end, as in the case of Edmonstone 
 against Cochrane, Honeyman, and other cases. Legal proof Promise 
 of a promise of marriage, followed by that intercourse which ™"' ""'"^ 
 gener^lyattends marriage, is held to prove the mutual con- 
 sent required, on a presumption that at the moment of con- 
 summation, that which was before a promise only, became 
 a present consent to marriage. Some lawyers have doubted 
 whether this last mode of proving marriage does not differ 
 from the others in this point, that it requires to be established 
 by declarator in the lifetime of the parties. Without at- 
 tempting to resolve this point, it is a settled rule of law that 
 the promise must be proved either by the writing or by the 
 oath of the party by whom it is said to have been given. 
 Finally, the present consent necessary to constitute marriage 
 may be effectually, and, in the Lord Ordinary's opinion, CohaWta- 
 most satisfactorily constituted by a long or continued course habit and 
 of open cohabitation of the parties in the avowed characters ''^p"*®- 
 of husband and wife, in which mode of proof regard must be 
 had in the first place to what in general constitutes the co- 
 habitation of persons bearing the relation of husband and 
 wife, and then to the habit and repute, the reputation in 
 which the parties have been held by their friends and con- 
 nections, and the community in which they live. When such 
 a cohabitation for a length of time, with the distinct charac- 
 ter affixed to it by the open acts and conduct of both parties, 
 is proved by credible and consistent evidence, no more satis- 
 factory proof can be required that the present consent to 
 marriage has been given in the face of all the- world. But it 
 is evident, from the very nature of the thing, that this mode 
 
 H 
 
114 
 
 SCOTTISH LAW 
 
 [PAHT I. 
 
 Grretna 
 Greeu 
 marriages. 
 
 Declarator 
 of putting 
 to silence. 
 
 of proving the consent necessarily supposes that there was 
 no secrecy in it ; that the parties did truly dwell together 
 in the common meaning of the term cohabitation, and that 
 they consorted with one another, not in the mode proper to 
 a state of concubinage or illicit intercourse, but in the man- 
 ner and with aU the ordinary qualities of the marriage state 
 in Christian nations.^ 
 
 It has been a question amongst lawyers in Scotland, 
 whether promise followed by copula is itself marriage, or is 
 only a ground on which marriage may be constituted by a de- 
 clarator in the Court of Session in the lifetime of the parties. 
 This point, which may come to be of great importance as 
 affecting the legitimacy of children, if raised after the death 
 of either of the parents, does not appear to have been judi- 
 cially decided. But, in a case which came before him in 
 1843, Lord Moncreiff expressed an opinion, that a promise 
 cum copula does not constitute marriage without a declarator 
 in the consistorial court ; and that if no such declarator be 
 brought in the lifetime of both parents, the marriage can 
 never be established afterwards.^ 
 
 To put an end to runaway marriages by English persons 
 at Gretna Green and elsewhere in Scotland, which had be- 
 oome very common, it was enacted, by 19 and 20 Vict. c. 96, 
 that, "after the 31st December 1856, no irregular marriage 
 contracted in Scotland by declaration, acknowledgment, or 
 ceremony shall be valid, unless one of the parties had at the 
 date thereof his or her usual place of residence there, or 
 had lived in Scotland for twenty-on e days next preceding 
 such marriage ." 
 
 . In Scotland a process called a declarator of putting to 
 silence may be brought in order to set aside a groundless 
 claim of marriage. On the other hand, where a marriage 
 which has actually taken place is denied by one of the par- 
 ties, the other, by raising an action of declarator in the Court 
 
 ^ Lord Moncreiflf, in Lowrie v. See alao, on this point, Fraser's Per- 
 
 Mercer, 28th May 1840, 2 D. and sonal and Domestic Kelations, vol. i. 
 
 B. 960, 961. p. 164. 
 
 2 Brown v. Bums, 30th June, 1843. 
 
^JiAi? V.J OF MARRIAGE. 115 
 
 of Session, may have the marriage declared, with all its con- 
 sequent rights and privileges. 
 
 Sect. 2. — Effects of Scottish Marriage, 
 
 After marriage the hushand becomes the curator or guar- Powers of ' 
 dian of his wife, and should be joined with her in deeds and ^o^en*! 
 law proceedings to which she is a party. The wife is the 
 proper agent in all that relates to her separate estate, but the 
 husband's consent is generally required to validate deeds 
 granted by her. Thus she may exercise over her heritable 
 property, with the husband's consent, all the acts of ad- 
 ministration competent to any other proprietor. Generally 
 speaking, the personal obligations of a married woman are 
 ineffectual, but they are binding if they are in rem versum 
 of the wife, or have special reference to her own property, or 
 have been granted by her while carrying on trade on her own 
 account, her husband being abroad, or when she is judicially 
 separated from her husband.^ A married woman, without 
 her husband's consent, may validly execute a settlement, or 
 dispose of her separate estate by any deed which is not to 
 take effect till her own death. 
 
 By the common law of Scotland, marriage transfers to the Effect on 
 husband all the personal property o f the wife at the time of spouBesI 
 the marriage, or which may accrue to her during its subsist- 
 ence, with the exception of personal bonds bearing interest , 
 and the paraphernalia, which are limited to her clothes, 
 jewels, and ornaments of dress. The wife remains proprietor 
 of. her lands or real estate ; but the husband is entitled to 
 the administration, and to the whole yearly rents and profits, 
 during the mamage. It is commonly said that the property 
 so acquired by the husband in right of his wife falls under 
 the communion of goods, as if there was a common fund for 
 behoof of both spouses ; but, as the husband has the absolute 
 power of use and disposal under the Jus mariti, the goods 
 
 1 Chumside, 11th July 1789, M. and D. 149. 24 & 25 Vict. c. 86, 
 6082. Orme, 30th Nov. 1833, 12 S. s. 6. 
 
116 
 
 SCOTTISH LAW [^•"'^ 
 
 nominally in communion are in reality his property.^ After 
 the wife's death, if there has been a living child born of the 
 marriage, and the wife has left no heir tp her heritage by a 
 former marriage, the surviving husband has a liferent right 
 to the rents and profits of her heritable estate, which is caUed 
 the courtesy. The rights of the spouses at common law may 
 be modified by settlements before marriage, under which the 
 husband's right of administration and jus mariti may be 
 renounced in regard to the whole or any part of the wife's 
 property ; and in any gift or bequest by a stranger to a 
 married woman, the property may be specially destined for 
 her separate use. 
 
 By the Act 24 and 25 Vict. c. 86, " to amend the law re- 
 garding conjugal rights in Scotland," some important changes 
 have been introduced as to the proprietary rights of married 
 women. 
 Equitable First, when a married woman succeeds to property , or ac- 
 tJwif^" quires right to it by any other means than the exercise of her 
 own industry, the husband, or his creditors^or any one claim- 
 ing through him, shall not be entitled to such property ex- 
 cept on the condition of making therefrom a reasonable pro- 
 vision for the support and maiatenance of the wife, if such a 
 claim be made on her behalf ; and in the event of dispute as 
 to the amount of the provision to be made, the matter shall 
 be determined by the Court of Session. The wife's claim for 
 such provision, however, must be made before the husband 
 or his assignees shall have obtained possession of the pro- 
 perty, and before his creditors shall have attached it by com- 
 pleted diligence.^ 
 After se- Sccondlv. " after a decree of separation a mensa et ton, ob- 
 wTfe'sTunds tained at the instance of the wife, all property which she mav 
 her own. acquire , or which may come to or devolve upon her, shall be 
 held and considered as property belonging to her, in refer- 
 ence to which the jus mariti and husband's right of ad- 
 ministration are excluded, and such property may be disposed 
 of by her in all respects as if she were unmarried, and on her 
 decease the same shall, in case she shall die intestate, pass to 
 1 Shearer, ISth Nov. 1842. s Sect. 16. 
 
CHAP, v.] OF MARRIAGE. Il7 
 
 her heirs and representatives in like manner as if her hus- 
 band had been then dead;" "and the wife shall, while so And may 
 separate, he capable of entering into obligations, and be liable ^ iHingie. 
 for wrongs and injuries, and be capable of suing and being 
 sued, as if she were not married." The husband is not liable 
 for the acts or obligations of the wife du ring the separation 
 under such decree ; l}ut if he has been decerned to pay ali- 
 ment to her, and has failed to do so, he will remain liable for 
 necessaries supplied for her use. -^ 
 
 Thirdly, when a wife has been deserted by her husband Deserted 
 she may apply by petition to any Lord Ordinary of the Court tiJied™' 
 of Session, or, in the time of vacation, to the Lord Ordinary "jotg^tL. 
 OQ the BUls, for an order to protect property which she has 
 acquired or may acquire by her own industry, or which she 
 has succeeded to or may succeed to after such desertion, 
 against her husband, or his creditors, or any one claiming 
 through him. If any such order of protection be made and 
 intimated, " the property of the wife as aforesaid shall belong 
 to her as if she were unmarried ; " and the order of protection 
 " shall have the effect of a decree of separation a mensa et 
 toro, va. regard to the property, rights, and obhgations of the 
 husband and of the wife, and in regard to the wife's capacity 
 to sue and be sued." This protection, however, does not ex- 
 tend to any property of which the husband or his assignees 
 shall have obtained lawful possession, or which his creditors 
 shall have attached by completed diUgence before the date 
 of the petition.^ 
 
 Before the Statute 18 Vict. c. 23, when a wife predeceased 
 her husband her next of kin or other representatives had 
 right to a share of the goods in communion, extending to 
 one-half when there was no issue, and one-third when there 
 was such issue ; but as the enforcement of that claim was 
 found to be highly injurious to the interests of the surviving 
 husband and his family, it was abrogated by the 6th section 
 of that Act, which provides that, on a wife predeceasing her 
 husband, her representatives shall have no ri ght to any share 
 of the goods in communion . 
 
 1 Sect. 6. ' Sect. 1-5. 
 
118- SCOTTISH LAW OF MARRIAGE. [paet I. 
 
 Rights of On the death of the husband, the surviYing wife, if sh e has 
 husW's no conventional provision, has a right to the ten e ^ which is a 
 death. liferent of a third of the heritable property in which the hus- 
 band died infeft, including burgage subjects.^ She is also 
 entitled to the ius relictce. which is a share of the free mov- 
 able estate, or goods in communion, amounting to one-half 
 where there are no children of the marriage, or where the 
 husband has left no children by a former marriage, and to 
 one-third only where there are children. The widow's legal 
 provisions of terce and jus relictce, unless barred by antenup- 
 tial settlements, or discharged by the acceptance of conven- 
 tional provisions in lieu of them, must receive effect, and are 
 not liable to be defeated arbitrarily at the pleasure of the 
 husband, as the correspo nding rights of the widow to dower, 
 and a share of the movables, may be in England. 
 
 Proprietary While the Eomau law allowed great freedom to married 
 married womeu as regards their proprietary powers, the law in modern 
 times lays them under severe restrictions. " The Code Napo- 
 leon," it has been observed, " is much influenced by the prin- 
 ciples of the Eoman law as regards the powers of married 
 women ; but the Scottish law goes in the very opposite 
 direction. The systems which are least indulgent to married 
 women, are invariably those which have followed the canon 
 law. The English common law, as well as the Scottish, is 
 very harsh in the proprietary incapacities it imposes on 
 married women, and the doctrines of both are largely borrowed 
 from the canonists." ^ Though recent legislation has mate- 
 rially improved the position of wives, it must still be acknow- 
 ledged that much remains to be done to soften the rigour of, 
 the common law as to conjugal relations in both ends of the 
 island, and more particularly in England. 
 
 1 1681, 0. 10. 24 & 25 Vict. c. 86, ' See H. S. Maine, Ancient Law, 
 B- 12. pp. 159, 160. 
 
 women. 
 
CHAPTER YI. 
 
 OF DIVOECE. 
 I. — KOMAN LAW. 
 
 A EOMAN marriage was dissolved by the deatli of one of the 
 spouses, and by divorce in the lifetime of the parties. 
 
 Divorce existed in all ages at Eome. In the earliest times- Divorce 
 it was probably little used ; but it is difficult to accept as eJsted at 
 true the traditional story told by Aulus Gellius, that Calvi- ^"®- 
 sius Euga was the first who divorced his wife, in the 523d^:5 
 year after the building of Eome. 
 
 Divorc^. in the Eoman law, was the dissolution of a lawful 
 marriage in the lifetime of the spou ses, by the will of both 
 or of one of them . In this matter the Eomans proceeded on 
 the notion that, as marriage was a free union founded on 
 mutual consent, it might be terminated at any time by either 
 of the parties. Even the conventio in manum, whatever 
 effect it may have had in ancient times, did not, in the age 
 of Gains, limit the wife's freedom to seek divorce.^ Under 
 the new law no such impediment could exist, so that the 
 declaration of divorce was equally competent to both spouses; 
 and originally this liberty was only restrained by sentiments 
 of morality and by public opinion, without any legal pro- 
 hibitions. 
 
 During a long period divorce was not abused by the Eo- Very com- 
 
 ° D JT mon at close 
 
 mans ; but at the close of the republic and the commence- of republic 
 ment of the empire, when the corruption of manners at 
 Eome became general, divorce prevailed to a frightful extent. 
 
 1 Gai. 1. 137. 
 
120 DIVOKCE. [I'AKT I- 
 
 Marriage was thoughtlessly entered upon and dissolved at 
 pleasure. Sylla, Caesar, Pompey, Cicero, and Antony put 
 away their wives, and Augustus and his successor did not 
 scruple to follow their example. At the same period divorces 
 on the woman's part were extremely common. Seneca notices 
 this laxity of manners; and Juvenal (6 Sat. 20) gives a 
 remarkable instance of a Eoman matron who is said to have 
 gone the round of eight husbands in five years. 
 Tmperiai To check this deplorable corruption, laws were passed in- 
 iSn flicting severe penalties on those whose bad conduct led to 
 practice, divorce ; and there are imperial constitutions pointing out 
 what should be deemed just causes of divorce. These penal- 
 ties are directed not only against the spouse whose misconduct 
 furnished a just occasion for divorce, or who spontaneously 
 repudiated without just cause, but also against both spouses, 
 when, without sufficient lawful motives, they dissolved their 
 union by common accord, hona gratia. Yet, notwithstanding 
 these penal enactments, divorce was in all cases left entirely 
 to the free-will of the spouses. 
 No judicial AmoDg the Eomaus divorce did not require the sentence 
 required, of a judgc, and no judicial pr oceedings were necessary. IF 
 was considered a private act, though some distmct notice or 
 declaration of intention was usual. At one period it became 
 the practice for one of the spouses to intimate the divorce to 
 the other in an epistolary form, by means of a freedman, in 
 presence of seven witnesses , aU. Boman citizens above the 
 age of puberty ; and this was no doubt intended to preserve 
 clear evidence of a transaction which was attended with such 
 important consequences on the civil rights of the parties 
 concerned. 
 
 When the marriage was dissolved by the death of the hus- 
 band or by divorce, the wife was bound to wait a year before 
 entering into a new marri age. In violating that prohibition 
 a woman incurred infamy, besides being subject to other 
 penalties.^ 
 
 1 C. 5. 17. 8 and 9. N. 22, ch. 16, pr. Maokeldy, § 573. Compare 
 with Code Civil, art. 228. 
 
CHAP. VI.] FRENCH LAW OF DIVORCE. 121 
 
 II. — FRENCH LAW. 
 
 In modern times there has been much difference of opinion 
 among lawyers and theologians as to the lawfulness of dissolv- 
 ing marriage by divorce. Some of the early fathers of the 
 Church allowed divorce in the case of adultery, as the Greek 
 Church does to this day ; but the Church of Eome adopted , 
 the views of St Augustine, and the Council of Trent declared 
 that marriage was a sacrament and indissoluble. Hence the 
 canonists only allowed a separation from bed and board even 
 in the case of adultery. 
 
 Before the Eevolution the law of France adopted the prin- Divorce 
 ciple which holds marriage to be indissoluble. Pothier afle^Revo- 
 says, emphatically, that " no power can break a marriage i"*'-">- 
 when it has been once validly contracted ; for God himself 
 having formed the bond of matrimony, no human power can 
 dissolve it." ^ 
 
 The law of 20th September 1792 permitted divorce in 
 France, and this was afterwards confirmed by the Civil Code 
 (art. 229-231), which authorised divorce on the following 
 grounds : 1st, Adultery by the wife, or by the husband if he Grounds 
 kept a concubine in the common dwelling-house ; 2d, Out- "n^^S 
 rageous conduct or ill-usage by either of the spouses ; 3d, Civil. 
 Condemnation to an infamous punishment ; and, 4th, In a 
 certain limited class of cases by mutual consent, but only 
 upon the conditions and under the restrictions specified, 
 which are of the most stringent character. After the restora- Divorce 
 tion of the Bourbons, divorce was abolished by the law of 8th fn^igie.'^ 
 May 1816, judicial separation for just causes assigned being 
 still retained. In 1830 and 1848 attempts were made to 
 re-establish divorce in France, but without success.^ 
 
 1 Pothier, TraitS du Contrat de 9ais, Sth ed., p. 69. Boiiillet, Diet. 
 Mariage, part 6, oh. 1, art. 3. des Soienoea, voce Divorce. 
 
 2 Pailliet, Manuel de Droit Fran- 
 
122 
 
 ENGLISH LAW OF DIVORCE. 
 
 [JAET 
 
 III. ENGLISH LAW. 
 
 Prior to 
 1868 no 
 divorce 
 allowed. 
 
 Divorce 
 
 now sanc- 
 tioned 
 under 
 
 statute. 
 
 •At the Eeformation the Protestants rejected the Popish 
 tenet that marriage was a sacrament and indissoluble. In 
 some Protestant countries, however, the ecclesiastical courts 
 clung to the old canon law of Europe ; and, down to a recent 
 period, the law of England did not allow a marriage once 
 validly contracted to he rescinded by divorce. Where there 
 was no canonical disability, nothing short of an Act of Par- 
 liament could authorise divorce a vinculo matrimonii; but 
 private Acts were occasionally obtained by persons of rank 
 and condition, who could afford the expense, to dissolve mar- 
 riages for adultery on the part of the wife, and for adultery 
 accompanied by aggravated circumstances on the part of the 
 husband.^ So deeply rooted was this principle in the law of 
 England, that in LoUy's case, where the parties were married 
 in England and divorced in Scotland, and the husband sub- 
 sequently married in England, he was tried and convicted 
 there for bigamy, the conviction being afBrmed by the 
 unanimous opinion of the common-law judges'. The English 
 courts, however, recognised separation, or (as it was termed) 
 divorce a mensa et tore, for certain conjugal wrongs, such as 
 adultery and cruelty. 
 
 Divorce is now sanctioned in England by the Act 20 and 
 21 Vict, c. 85, which came into operation in January i^oU 
 and since that time the court established for the trial of 
 matrimonial causes has not been idle. 
 
 A husband may obtain from this court a divorce on the 
 ground of adultery committed by the wife. Generally the 
 adulterer must be made a party to the suit ; and the court 
 may order him to pay damages and also the costs, or may dis- 
 miss him from the suit ; but it is no longer competent for the 
 husband to sue the adulterer in a separate action for damages.^ 
 
 Neither of the spouses can obtain a divorce on the ground 
 of mere desertion by the oth er, however long continued. 
 
 1 Dr Harris's Justinian's Institutes, « 20 & 21 Vict. c. 85 ; 21 & 22 
 p. 30, note. Vict. c. 108. 
 
CHAP. VI.] ENGLISH LAW OP DIVORCE. 123 
 
 As to the wife, a divorce cannot be obtained by her on the 
 ground of the husband's adultery alone ; but she may obtain 
 a divorce if the husband has been guilty of incestuous adnl - 
 k£I ; or of bigamy with adultery ; or of adultery coupled 
 with gross cruelty , or with other aggravated circumstances ; 
 or of adultery, coupled with desertion for two years without 
 reasonable cause.^ 
 
 If the petitioner has been accessory- to, or has connived at, 
 the adultery, or has condoned it, or if the petition is pre- 
 sented or prosecuted by collusion, no decree of divorce can 
 be granted. Tarther, the court is not bound to grant such 
 decree if the petitioner has been guilty of adultery during 
 the marriage, or guUty of unreasonable delay in the petition, 
 or of cruelty to the other party, or of desertion or wilful sepa- 
 ration from the other party before the adultery and without 
 reasonable excuse, or guilty of such wilful neglect or miscon- 
 duct as has conduced to the adultery.^ 
 
 After the decree of divorce has become final, the parties 
 are at liberty to marry again, as if the previous marriage 
 had been dissolved by death.^ * 
 
 Prom the same court, either the husband or the wife may judicial 
 obtain a judicial separation, formerly called a divorce a mensa separation. 
 et toro, on the ground of adultery, or cruelty, or desertion 
 without cause for two years and upwards.* After a decree of 
 judicial separation the wife is considered as a femme sole in 
 regard to all property she may subsequently acquire, or which 
 may come to or devolve upon her, and she can sue or be 
 sued as if she were unmarried ; and, on the other hand, the 
 husband is not liable for her debts, except for necessaries 
 supplied to her when he fails to pay the alimony decreed to 
 her by the court.^ 
 
 1 20 & 21 Vict. c. 85, s. 27. c. 77. 
 
 2 Ibid. s. 30, 31. 4 20 & 21 Vict. c. 85, s. 16. 
 
 3 Ibid. s. 57. s Ibid. b. 25, 26. 
 * See aa to Appeals, 31 & 32 Vict. 
 
righta. 
 
 124 SCOTTISH LAW OF DIVORCE. [pabt i. 
 
 IV. — SCOTTISH LAW. 
 
 °^™'=«f°'' By the law of Scotland a divorce may be obtained by the 
 and wilful busband or the wife on the ground of adultery, or of wilful 
 desertion for four years together without just cause, after 
 adopting the forms of the Act 1573, c. 55, so far as these are 
 still required.^ 
 Sd^vf^ In suing for a divorce in Scotland the wife has precisely 
 have equal the Same rights as the husband. If she can prove adultery 
 or wilful desertion for four years by the husband, that en- 
 titles her to take proceedings for a divorce, in the same man- 
 ner as adultery or wilful desertion on her part entitles him 
 to a similar remedy. 
 
 The action of divorce proceeds before the Court of Session, 
 and the right to institute it is personal to the husband or the 
 wife. As a preliminary the pursuer is required to make oath 
 that the suit is not collusive. In this and aU eonsistorial 
 actions the summons must be served upon the defender per- 
 sonally when he is not resident in Scotland ; yet, upon evi- 
 dence to the satisfaction of the Court that the defender can- 
 not be found, edictal citation will be held sufficient ; but in 
 every case where the citation is edictal the summons must 
 be served on the children of the marriage, if any, and on one 
 or more of the next of kin of the defender, exclusive of their 
 children,- when the children and next of kin are .known and 
 resident within the United Kingdom ; and such children and 
 next of kin, whether cited or so resident or not, may appear 
 and state defences to the action.^ 
 
 When the husband sues for divorce on the ground of adul- 
 tery, he may cite the alleged adulterer as a co-defender, and 
 the Court may order him to pay the whole or any part of the 
 costs, or may dismiss him from the action, as may seem just.» 
 
 1 Ersk. 1. 6. 43. Eraser, Per. and but the clause is not happUy ex- 
 
 Dom. Relations, vol. i. p. 652 et seq. pressed. 
 
 By the 24 & 25 Vict. c. 86, s. 11, " 24 & 25 Vict. c. 86, s. 10. 
 it seems to have been intended to ' Ibid. s. 7. 
 abolish the forms of the Act 1573 ; 
 
<jaa.e, vi.j SCOTTISH LAW OF DIVORCE. 125 
 
 In the case of adultery, divorce is barred by condonation 
 or forgiveness, as weU. as by coUusion or connivance. Eecri- 
 mination cannot be pleaded as a defence to exclude the suit ; 
 but it may be stated in a counter-action, as the mutual guilt 
 may affect the patrimonial interests of the parties.^ 
 
 The legal effect of divorce on the ground of wilful desertion Effects of 
 under the Act 1573, c. 55, is, that the offending husband is '''™"'^- 
 bound to restore the tocher (dos), and to pay or implement 
 to the wife all her provisions, legal or conventional ; and the 
 offending wife forfeits her terce, and all that would have come 
 to her had the marriage been dissolved by the predecease of 
 the husband. By analogy the same consequences have been 
 extended to the case of divorce for adultery, with this ex- 
 ception, that it appears to have been decided, upon very 
 questionable grounds, that the offending husband in the case 
 of adultery is not bound to restore the tocher.^ 
 
 After divorce both parties are at liberty to marry again ; 
 but the Act 1600, c. 20, annuls any marriage contracted 
 between the adulterer and the person with whom he or she 
 is declared by the sentence of divorce to have committed the 
 offence. 
 
 1 Fraser, Per. andDom. Relations, => Justice, 13tli Jan. 1761, M. p. 3.34. 
 vol. i. p. 666-672. Fraser, vi. p. 691. Ersk. 1. 6. 48. 
 
CHAPTER VII. 
 
 OF THE LEGITIMATION OF NATURAL CHILDREN. 
 
 Distinction APART froni the effect of legitimation, the Eoman law only con- 
 children " sidered those children lawful at their birth who were begotten in 
 marriage. It is a peculiarity of the English law that it does 
 not concern itself with the conception, but considers a child 
 legitimate who is born of parents married before the time of 
 his birth, though they were unmarried when he was begotten. i 
 Legitima- The legitimation of children jper sulsequens matrimonium 
 sLque/t™ 'originated in a constitution of Constantine, which has not 
 marriage, reached us, though its tenor is given in a law of the Emperor 
 Zeno, who renewed it.^ The import of it was, that persons 
 who had been living in a state of concubinage, which was 
 then a known condition of society not condemned by Eoman 
 customs, might, by entering into marriage, render the children 
 born in that state legitimate, provided the woman was irige- 
 nua, or free-born, and the man had not already children of a 
 lawfulwife. The general object of this law probably was to 
 encourage persons who had been living in concubinage to 
 enter into marriage. Justinian extended the law of Con- 
 stantine, by declaring that children born in concubinage 
 should be legitimate generally, and whether the father had 
 legitimate children by a lawful wife or not ; and he removed 
 the distinction as to the quality of the woman as being 
 ingenua or lihertina. The children so legitimated were sub- 
 jected to the paternal power, and entitled to all the rights of 
 lawful children.^ 
 
 ily'if ^y *^^ Eoman lawthe privilege of legitimation per subseqmns 
 children matrimonium was strictly confined to the children of a concu- 
 cXnage.""' l^ine, and did not extend to any other description of bastards. 
 
 ^ Stephen's Com. on the Law of '' 0. 5. 27. 5. 
 England, 4th ed., vol. ii. p. 289. » I. 1. 10. 13. C. 5. 27. 10. 
 
CHAP, vn.] LEGITIMATION. 12? 
 
 Another kind of legitimation, per oUationem curice , was Two other 
 introduced by Theodosius II., a.d. 443. As the duties of a f4°Lt 
 decurio were very onerous, and accompanied with risk, a"""- 
 natural son who undertook the office was thereby rendered 
 legitimate. A natural daughter who married a decurio had 
 the same privilege. Finally, Justinian added a third species 
 of legitimation, per rescrivtum principle, when the emperor ^ ^ 
 declared natural children legitimate upon the requisition of 
 the father in certain special circumstances ; as, for instance, 
 when marriage with the concubine had become impossible, 
 and there were no lawful children, — or when the father, who 
 had from some fortuitous cause been prevented from legiti- 
 mating his natural children in his lifetime, declared in his 
 testament that they should succeed to him as lawful children 
 and heirs ab intestato} 
 
 The doctrine of legitimation by subsequent marriage is Extended to 
 said to have been established in the canon law by two con- canm iL-f 
 stitutions of Pope Alexander III., preserved in the decretals 
 of Gregory.^ The canon law was more indulgent than the 
 Eoman law, in granting the privilege of legitimacy not merely 
 to the offspring of concubinage, but to children begotten in 
 fornication, when their parents were afterwards married, 
 provided the father and mother were capable of contracting 
 marriage at the date of the sexual intercourse. 
 
 Legitimation by subsequent marriage was never acknow- Legitima- 
 ledged by the law of England. When the clergy struggled tjV.^i^lh 
 to introduce the rule of the canon law, it was indignantly '^'^■ 
 rejected by the famous statute of Merton._t he English barons 
 declaring with one voice, " quod nolunt leges Anglise mutare 
 quae hue usque usitatae sunt et approbatse." ^ From the 
 earliest period the English law has considered a child born 
 before marriage (ante natus) as illegitimate. And it has been 
 decided, that even where the child is born and the parents 
 are subsequently married in a foreign country, the law of 
 which allows legitimation by subsequent marriage, he is 
 nevertheless incapable of inheriting land in England.* 
 
 ' If. 74, ch. 1, 2. N. 89, ch. 9, 10. Dr Harris's Justinian's Institutes, 
 
 Mackeldey, § 587. p. 31, note. 
 
 2 Decretal, 4. 17. 1 and 6. * Doe u.Vardill, 5 Bam and Cress., 
 
 3 Statute of Merton,20 Henrylll. 438. 6 Bing. N. C. 385. 
 
128 LEGITIMATION. [pakt i. 
 
 French law On the Other hand, the rule of the canon law, which 
 
 admits it. 11 J ,1 1 . . . 
 
 allowed the legitimation of all bastards, prpvided they were 
 not the offspring of an incestuous or adulterous connection, 
 has been followed both in France* and Scotland, not by au- 
 thority of the decretals, but in consequence of the equity and 
 expediency of the rule itself. By the Civil Code (art. 331-333) 
 it is declared : 1. " Children born out of wedlock, other than 
 those bom of an incestuous or adulterine intercourse, may be 
 legitimated by the subsequent marriage of their father and 
 mother, provided the children have been legally acknowledged 
 before marriage, or in the act of celebration itself. 2. Legi- 
 timation may take place even in favour of deceased children 
 who have left descendants, and in that case it operates in 
 favour of these descendants. 3. Children legitimated by 
 subsequent marriage shall liave the same rights as if they 
 had been born of that marriage." 
 
 By the law of France, marriage makes the children of an 
 illicit connection legitimate, although one of the spouses had, 
 after the connection and the birth of the children, contracted 
 a marriage with another person, and the parents had only 
 married after the dissolution of that marriage. As the child 
 legitimated is considered to be born of the mamage which has 
 made him legitimate, he cannot participate in a succession 
 
 * The French law seems to be set- 1 Rob. Ap. Ca., 492. The French 
 
 tied on a point in regard to which the law also differs from the Roman 
 
 law of Scotland is doubtful ; and even canon, and Scottish laws in reqiuring 
 
 the Roman law, as to it, is a matter that the children shaU be recognised 
 
 of controversy. By the laW of France, as children of the married parties bv 
 
 a child conceived in adultery cannot them, before the marriage or at the 
 
 be legitimated even though at its act of celebration. After the mar 
 
 ^'9^'' M ' ^T^^^rZ^"^ ^'^"■'^ "^S^' ^°y *<=k°owledgment or recog. 
 (23d May 1838 I^ Havre, Recueil nition of them is unavailing (15th 
 Genera], par MM. Villeneuve et Car- May 1816, Douai, Sirey 16 2 337) 
 rette, 40, 2, 463; Merlin Rep. ^.jLegi- This rule bars those inq'mries which 
 timation, sect. 2, § 2, Nos. 6 et 7). As have occurred in Scottish practice- 
 regards the Roman law, Voet (xxy. always difficult and expensive-asto 
 7, Ijeq. ) and others say that legiti- whether a person claiming the benefit 
 mation can take place ; while Pothier of legitimation is, de facto, the child 
 mamtams the contrary pCr. de Mar, of thetwo individuals whose childhe 
 Par 5, 2, No. 415). The views of alleges himself to be.-See Innes v. 
 Scottish lavpyers are stated by Bank- Innes, 20th Feb. 1837 2 S and M'T 
 ton, i. 5, 54, and Erskiue, 1, 6, 49 and Ap. Ca., 444. ' ' 
 52, and per Lord Chancellor in Monro, 
 
CHAP. VII.] LEGITIMATION. 129 
 
 which has opened before that maniage, though subsequent 
 to his birth. For the same reason he cannot claim any pre- 
 ference, in respect of mere priority of birth, in any question of 
 succession with the children of the intermediate marriage.^ 
 
 In Kerr v. Martin, which was elaborately discussed in the And the 
 Court of Session, the question was raised, whether a marriage Scotland, 
 by either of the parents with a third person, after the birth 
 of a natural child, formed a bar to legitimation by the sub- 
 sequent marriage of the parents. Though the judges were 
 divided in opinion, the Court, by a majority, decided that 
 the child was legitimate, and that no mid-impediment was 
 created by the intervening marriage.^ 
 
 In Scotland legitimation by subsequent marriage confers 
 upon a bastard the rights of a lawful child. Besides being 
 entitled to legitim, he succeeds under a destination to lawful 
 children. In any question with the children bom of the 
 bastard's parents in lawful wedlock, he has the same civil 
 rights, as regards succession and otherwise, as he would have 
 enjoyed had he been born in lawful marriage. But where 
 there is lawful issue of an intermediate marriage by one of 
 the parents with a third person, a child legitimated by a 
 second marriage seems only a lawful child of the family as 
 becoming so by the second marriage, and therefore it is 
 thought he can claim no preference in respect of primogeni- 
 ture or priority of birth, which would have the effect of 
 defeating or prejudicing the rights of succession of the chil- 
 dren of the first marriage arising at their birth. According 
 to this view, if the father had a natural son, and after this 
 a lawful son by a marriage with a third person, and then 
 entered into a second marriage with the mother of the bastard, 
 the lawful son by the first marriage would be entitled to the 
 Scotch heritage ab intestato, and could not be deprived of 
 that right by the legitimation of the natural son arising from 
 the second marriage.^ 
 
 1 Pailliet, Manuel de Droit Fran- Macq. App. Ca. 5,35. 
 
 fais, Sth ed., p. 84. " See Fraser, Per. and Dom. Ee- 
 
 2 Kerr v. Martin, 1840, 2 D. B. M. lations, vol. ii. p. 18. 
 p. 750. See also Shedden, 1854, 1 
 
CHAPTER VIII. 
 
 OF ADOPTION. 
 
 Among the Eomans the relation of father and child arose 
 either from marriage or from adoption. 
 Adoption of There were two kinds of sioT^tion—adoptio, strictly so 
 twoTkinds. pg^jjg^^ ^^^ adrogatio. The first was the ceremony by which 
 a person who was in the power of his parent, whether child 
 or grandchild, was transferred to the power of the person 
 adopting him. In ancient times the person to be adopted 
 was emancipated per ces et libram, and surrendered to the 
 adoptive father by the legal form called in jure cessio. 
 Afterwards adoption was effected under the authority of a 
 magistrate having jurisdiction for the purpose — such as, for 
 instance, the praetor at Eome or a governor in the provinces. 
 Adrogatio When the person to be adopted was sui juris, and not in 
 defined. ^j^^ power of his parent, the ceremony of adoption was called 
 adrogatio. Originally this could only be accomplished by a 
 vote of the people in the Oomitia curiata, but under the 
 empire the authority of an imperial rescript was required. If 
 pupils were adopted in this form, the adoptive father was 
 bound to give security to restore their property, if they died 
 within puberty, to their lawful heirs, and to make such resti- 
 tution to themselves if they were emancipated upon just 
 grounds.^ 
 Conditions Evcry man, whether married or not, could adopt, provided 
 of adoption, j^g ]^^^ ^j^g Capacity to contract marriage. In ancient times 
 this privilege was denied to women, because they could have 
 1 I. 1. IX. D. 1. 7. C. 8. 48. 
 
CHAP, vni.] ADOPTION. 131 
 
 no one under their power ; but the law was altered about 
 the period of Diocletian, and women were allowed to adopt 
 in order to console them for the loss of their children : they 
 could thus attach to themselves children who were not 
 under their power, but who acquired certain rights to their 
 succession.^ 
 
 No person could adopt one who was older than himself, 
 " for adoption imitates nature, and it seems unnatural that 
 a son should be older than his father."^ It was, therefore, 
 required that the adopter should be older than the person 
 adopted by full puberty, that is, eighteen years.^ Under the 
 republic, patricians who wished to become tribunes of the 
 people caused themselves to be adopted by plebeians ; of 
 which we have an example in the case of Clodius, the enemy 
 of Cicero, who was adopted by a plebeian younger than 
 himself, in direct violation of the law as laid down in the 
 Institutes. 
 
 A person having no child could, by the Eoman law, adopt 
 a grandchild; but one having a son was not permitted to 
 adopt a grandson without the son's consent. In common 
 adoption only one person passed under the power of the 
 adoptive father ; but if a person having children in his 
 power gave himself in arrogation, both he as a son and his 
 children as grandchildren became subject to the power of the 
 adopter. Augustus did not adopt Tiberius, who succeeded 
 him in the empire, till Tiberius had adopted his nephew 
 Germanicus ; and the effect of this was, that Tiberius became 
 the son, and Germanicus the grandson of Augustus at the 
 same time. 
 
 At the close of the republic, a usage was introduced of 
 declaring in a testament that the testator considered a certain 
 citizen as his son. The person so indicated, after obtaining a 
 confirmation of this declaration by a plebiscite, had the right 
 of succession to the deceased : this, however, was not a proper 
 case of adoption, but rather a particular mode of nominating 
 an heir. 
 
 By the ancient civil law adoption created the relation of 
 
 1 I. 1. 11. 10. " I. 1. 11. 4. D. 1. 7. 40. 1. ' Ibid. 
 
132 
 
 ADOPTION. l^^^'^ ^■ 
 
 Effects of father and son for all practical purposes, just as if the adopted 
 adoption. ^^^ ^^^g ^^^ ^j ^^g ^Jq^^j of the adoptive father in lawful 
 
 marriage. The adopted child quitted entirely his own family 
 and entered the family of his adopter, passing under the 
 paternal power of his new father, and acquiring the capacity 
 to inherit through him. An adopted child added to his own 
 name that of his adopter, modifying it by the termination 
 ianus. A Scipio adopted by Emilius was called Scipio 
 Emilianus} Public honours were not changed by adoption, 
 so that a senator adopted by a plebeian remained a senator. 
 In practice, serious inconveniences were found to arise from 
 forcing the adopted child to leave his natural family, for, if 
 he was afterwards emancipated by the adoptive father, he 
 could have no right of succession in the character of agnate 
 to either family. To obviate this difficulty, Justinian made a 
 distinction between the case of adoption by a stranger and 
 adoption by an ascendant, such as a grandfather. When the 
 father of a famUy gave his son in adoption to a stranger, 
 there was no dissolution of the paternal power, and the 
 adoptive father did not acquire it, though the adopted child 
 had a right to succeed to the adopter ah intestato ; but if the 
 child was given in adoption to its grandfather, or other direct 
 ascendant, after its father had been emancipated, the civil 
 consequences of adoption were maintained, and the child 
 passed under the power of the adopter. In the first case, the 
 adopted person remained a member of his natural family, 
 while he also acquired the rights of succession ab intestato to 
 the adopter. In the second case, it was presumed that affec^ 
 tion springing from the ties of blood would influence the as- 
 cendant to refrain from emancipating the adopted child, so as 
 to prejudice his rights of succession, apart from the protec- 
 . tion otherwise given by. the new law introduced by the 
 praetorian edicts and the constitutions of the emperors.^ 
 According to the rigour of the ancient law, a son under power 
 might be given in adoption without his consent ; but under 
 the new legislation the son had a right to object.^ 
 
 Adoption was extremely common at Eome, and was con- 
 1 De Fresquet, vol. i. p. 144. 2 i. ]. n. 2. ^ MarezoU, § 179. 
 
CHAP. VIII.] ADOPTION. 133 
 
 sidered a very useful institution. Many powerful patrician Adoption 
 families, on the verge of extinction by the failure of children, S."" "' 
 were revived by adoption; but it was always considered more 
 honourable to be the actual father of children born in lawful 
 marriage than to have recourse to fictitious paternity. Julius 
 Ctesar, by his testament, which was confirmed after his death 
 by a lex curiata, adopted his great-nephew, Octavius, who 
 assumed the name of Csesar Octavianus, and was afterwards 
 better known as the Emperor Augustus. Some of the Eoman 
 emperors, who had no male children, appointed their succes- 
 sors to the purple by adoption ; and if their choice was not 
 always fortunate, as in the instances of Tiberius and Nero, 
 yet it must be acknowledged that Eome was indebted to this 
 custom for a series of princes unequalled in history — Nerva, 
 Trajan, Hadrian, and Marcus Aurelius. 
 
 In France the usage of adoption was lost after the first Adoption 
 race of kings : it disappeared, not only in the customary pro- '° """*' 
 vinces, but also in the provinces governed by the written law. 
 Re-established in 1792, adoption is now sanctioned by the 
 Civil Code. Adoption, however, is only permitted to persons 
 of either sex above the age of fifty, having neither children 
 nor other lawful descendants, and being at least fifteen years 
 older than the individual adopted. No married person can 
 adopt without the consent of the other spouse. The privi- 
 lege can only be exercised in favour of one who has been an 
 object of the adopter's care for at least six years during 
 minority, or of one who has saved the life of the adopter in 
 battle, from fire, or from drowning. In the latter case the 
 only restriction respecting the age of the parties is, that the 
 adopter shaU be older than the adopted, and shall have at- 
 tained his majority. In no case can adoption take place 
 before the majority of the person proposed to be adopted. 
 
 The form of adoption consists of a declaration of consent by 
 the parties before a justice of the peace for the place where 
 the adopter resides, after which the transaction requires to 
 be approved of by the tribunal of first instance. After adop- 
 tion, the adopted person retains all his rights as a member of 
 his natural family. He acquires no right of succession to 
 
134 ADOPTION. [PAET I- 
 
 the property of any relation of the adopter ; but in regard to 
 the property of the adopter himself, he has precisely the, same 
 rights as a child born in marriage, even although there 
 should be other children born in marriage after his adoption. 
 The adopted takes the name of the adopter in addition to his 
 own. No marriage can take place between the adopter and 
 the adopted or his descendants, and in certain other cases 
 specified.^ 
 No adoption The practice of adoption, which is better suited to some 
 states of society than to others, still prevails among Eastern 
 nations. It has never been recognised as a legal institution 
 in England or Scotland. 
 
 1 Code Civil, art. 343-360. 
 
CHAPTER IX. 
 
 OF PATERNAL POWEK. 
 I. — ROMAN LAW. 
 
 No one acquainted with Eoman institutions can doubt the 
 truth of Justinian's observation, that " the power which we 
 have over our children is peculiar to the citizens of Eome ; 
 for there is no other people who have the same power over 
 their children which we have over ours." ^ 
 
 As developed at Eome, the patria potestas, though well 
 fitted to maintain discipline and obedience, bears the impress 
 of a rude age. " It cannot be disputed," says Becker, " that 
 the arbitrary power which the Eoman father had over his 
 children was a flagrant injustice, for the child was held in an 
 unnatural'state of dependence on his father, so as to be almost 
 entirely deprived of personal freedom. The radical error of 
 the Eoman system was, in extending the power which nature 
 imposes as a duty on a parent, of guiding and protecting a 
 child during infancy, to a most unnatural control of his per- 
 son and property, continuing during his entire existence." ^ 
 
 The patria potestas was the power which a Eoman father Nature of 
 had over his lawful children, and also over his grandchildren patemai 
 
 1 1 • T 1 power. 
 
 or other descendants by a son, who were under his depend- 
 ence. The father must be sui juris at the birth of the chil- 
 dren, in order to acquire paternal power ; for if he be under 
 the power of another, his children will fall under the depend- 
 ence of the same ascendant, and the paternal power will only 
 1 1. 1. 9. 2. " Becker's Gallua, translated by Metcalfe, p. 178. 
 
136 PATERNAL POWER. [pABT I. 
 
 accrue to the father on the ascendant's death. Grandchildren 
 horn of a daughter are in a different position from grand- 
 children horn of a son, being under the power, not of any 
 ascendant on the mother's side, but of their own father, or 
 father's father, as head of the family. 
 
 Paternal power was acquired naturally by the birth of chil- 
 dren in a lawful marriage, and civilly by legitimation and 
 adoption. 
 Effects on In aucient times the father had the power of life and death 
 property"of ovcr his children {jus vitce et necis). Plutarch says Brutus 
 children, condemned his sons to death, without judicial forms, not as 
 consul, but as father. The father could sell his children as 
 slaves under an express law of the Twelve Tables, and he 
 could change their personal condition by transferring them 
 to another family by adoption. Under the republic the 
 abuses of paternal authority were checked by the censors ; 
 and in later times the emperors interfered to reduce the 
 father's powers within reasonable limits. The power of life 
 and death was taken from the father and given to the magis- 
 trate. Alexander Severus limited the right of the father to 
 simple correction ; and Constantine declared the father who 
 should kiU his son to be guilty of murder, a.d. 318.^ 
 
 A revolting practice prevailed under the empire, of killing 
 or exposing new-born children, in consequence of the parents 
 being unable to support them. Diocletian and Maximinian 
 took away the power of selling free-born children as slaves, 
 but made an exception of newly-born infants when the pa- 
 rents were in extreme misery.^ In later times a father could 
 not give his son or daughter to another by adoption without 
 the child's consent. 
 
 By the ancient law, the son, who was in the power of his 
 father, could not acquire property for himself; aU his acqui- 
 sitions, like those of a slave, belonged to his father. As a 
 consequence of this doctrine, children under power could not 
 make a testament, as they had nothing to bequeath. In the 
 progress of Eoman civilisation this rigour was relaxed. 
 
 Frequently the father of a family gave a portion of his pro- 
 ' C. 4. 17. 2 0. i. 43. 2. 
 
CHAP. IX.] PATERNAL POWER. 137 
 
 perty to his son to administer or trade upon, and this was Different 
 called peculium. Moreover, under the new law, the son under pecuiium. 
 power might acquire property of his own in various ways, in- 
 dependently of his father. Under Augustus and his succes- 
 sors, the son acquired as his own property whatever he gained 
 in military service, including all gifts and successions from 
 his comrades in arms. This was called peculium castrense. 
 
 Under Constantino, about three centuries later, the son 
 was entitled to any property acquired by him in offices of the 
 court, in exercising the profession of an advocate, acting as 
 assessor, or discharging other civil functions. All acquisi- 
 tions of this kind were called peculium quasi castrense. 
 
 As regards the peculium castrense and quasi castrense, the 
 absolute property belonged to the son, with full power to dis- 
 pose of it by deeds inter vivos or mortis causa, without any 
 control on the part of the father. 
 
 When the son received from his father a particular fund 
 for the purposes of administration, it was called in the new 
 law peculium profectitium, and, as a general rule, this re- 
 mained the property of the father ; but the son retained this 
 fund when he ceased to be under power by his nomination 
 to a high office in the state, or when his father emancipated 
 him without withdrawing the peculium. 
 
 All property which the children inherited from the mother 
 or received from strangers, and all acquisitions not coming 
 from the father, and not falling under the description of cas- 
 trense or quasi castrense, are called peculium, adventitium. 
 By the law of Justinian, all such acquisitions belonged in 
 property to the children; but, while the paternal power 
 subsisted, the father had the enjoyment of a life interest in 
 the produce ; and, if the son was emancipated, the father 
 retained the usufruct of one-half of the peculium adventitium 
 during his life. "Even this," it has been remarked, "the 
 utmost relaxation of the Eoman patria potestas, left it far 
 ampler and severer than any analogous institution of the 
 modern world." ^ 
 
 1 Maine, Ancient Law, p. 143. See Maokeldey, § 590 ei seq., as to the 
 different kinds oi peadium. 
 
138 PATERNAL POWER. [PART I. 
 
 No one but a Roman citizen could exercise the domestic 
 despotism of the patria potestas, which affected all the rela- 
 Pubiic tions of private life. One redeeming feature of this institu- 
 afected by ^^oh, howcver, was, that it was never allowed to influence the 
 power*' public law ; for a son under power was in all public affairs 
 as independent as his father, and was equally entitled to 
 vote at the popular elections, and aspire to the honours of 
 the state, to act as a magistrate, or command an army in the 
 field. In later times, when the son was promoted to the 
 consular dignity, and other high offices of state, he ceased to 
 be under paternal power, irrespective of the will of his father, 
 but retained his rights of succession.^ 
 Notion of The Eoman family, as it existed in ancient times, was a 
 family. coUcction of individuals recognising the power of a single 
 chief "Whoever was under this power was within the family, 
 and this applied to all persons brought under power by adop- 
 tion. Whoever was freed from this power by emancipation 
 or change of status, though he might be a child or descendant 
 of the common ancestor, ceased to belong to the family. All 
 who were connected by the tie of the paternal power, or who 
 would have been so if the common author had been alive, 
 had between them the relationship called agnation, which 
 alone, by the ancient civO. law, gave the rights of family and 
 of succession. 
 Agnates and Cognates, in a general sense, are those relations who derive 
 cogna ea.^ ^-j^^^^ common descent from the same pair of married persons, 
 whether the descent be traced through males or females. 
 When opposed to agnates, the term cognates has usually a 
 more restricted signification. Agnates are the members of 
 the ancient Eoman family, such as we have described it. 
 There is agnation between two persons when one is under 
 the paternal power of the other, or both are under the same 
 power, or would have been so but for a natural cause, such 
 as the death of the father of the family. The agnates com- 
 prehend only those who trace their connection. exclusively 
 through males, leaving out the descendants of women. 
 Daughters under power are agnates of their father, and suc- 
 1 N. 81, ch. 2. Ortolan, Institutes, voL ii. p. 125, 126. 
 
CHAP. IX.] PATERNAL POWER. 139 
 
 ceed to him in the same way as sons. But when a daughter 
 married, and had issue, her children fell under the patria 
 potestas, not of her father, but of her husband, and were thus 
 lost to her family. The sister is agnate of her brother, when 
 both are born of the same father. There is no agnation 
 between a mother and her children under a marriage without 
 manus. As the paternal power was the foundation of agna- 
 tion, emancipation broke this civil relationship. When the 
 potestas ceased kinship ceased ; so that, by the ancient civil 
 law (afterwards corrected in more enlightened times), eman- 
 cipated children, though descendants in the direct line, were 
 excluded from the succession of their father.^ 
 
 Mr Erskine thus explains the meaning of the terms agnate 
 and cognate, as used in the law of Scotland : — " Agnates, in 
 the sense of the Eoman law, were persons related to each 
 other through males only. The relation of cognates was 
 connected by the interposition of one or more females. Thus, 
 a brother's son is his uncle's agnate, in the language of the 
 Eomans, because the propinquity is connected wholly by 
 males ; a sister's son is his cognate, because a female is in- 
 terposed in that relation. jBut in our law language, all kins- 
 men by the father are agnates, though females should inter- 
 vene ; and those by the mother cognates. Justinian abolished 
 so entirely the distinction of the old Eoman law between 
 agnates and cognates, that he admitted, both to the legal suc- 
 cession and to the office of tutor-at-law, not only kinsmen by 
 the father, though a female had been interposed in that rela- 
 tion, but even those by the mother.— Nov. 118, c. 4, 5."^ 
 
 Paternal power came to an end by the death of the father How 
 or the son, or when either of them suffered the capitis ^ower 
 diminutio maxima or media, the nature of which has already °^^'"^- 
 been explained. In the case of a daughter, it ceased when 
 she entered into marriage with the conventio in manum, or 
 became a vestal virgin.^ 
 
 By adoption, the paternal power might be transferred to 
 another, and it might be extinguished by emancipation. The 
 ancient form of emancipation consisted of three fictitious 
 1 Maynz, § 102. " Brsk. 1. 7. 4. ' Aldus Gellius, i. 12. Ulp. 10. 5. 
 
140 FREHrCH LAW OF PATERNAL POWER. [paet I. 
 
 sales, per ms et libram, followed by manumission. Subse- 
 quently emancipation was effected either by an imperial re- 
 script, or by a formal declaration before a magistrate, with 
 the consent of both father and child. In the time of Justinian 
 the child could not be emancipated against his will.^ 
 
 The person emancipated became sui juris ; he quitted the 
 family to which he formerly belonged, and, as a general rule, 
 he lost the rights of agnation. These rights, however, might 
 be preserved to the child by express reservation, when eman- 
 cipation was effected by an imperial rescript.^ 
 
 Lawful children, who had no separate means to supply 
 their wants, had a right to aliment from their parents. This 
 obligation was imposed in the first instance on the father and 
 mother, and, failing them, on the grandfathers. It was recip- 
 rocal, however, the children being bound to maintain their 
 parents when in want. 
 
 Illegitimate children were treated as if they had no father, 
 and originally the mother alone was bound to support them. 
 Justinian gave to natural children (liberis naturalihus) a 
 right to demand aliment from their father.^ 
 
 II. — FEENCH LAW. 
 
 In modern systems of jurisprudence the power of the father 
 over the child is recognised to a greater or less extent, but in 
 none of them is it carried so far as it was in the Roman law. 
 Reciprocal According to the French law, as laid down in the Civil Code, 
 to sr^'ort marriage imposes on the parents the obligation of maintain- 
 ing their children ; and children are bound to support their 
 father and mother, and other ascendants, when they are in 
 want.* At every age the child owes honour and respect to 
 the father and mother, and remains under their authority till 
 majority or emancipation. The father alone exercises this 
 power during the marriage. A child cannot quit the paternal 
 
 1 N. 89, ch. U. § 574, 575. 
 
 " Mackeldey, § 593-599. * Code Civil, art. 203-205. 
 
 3 N. 89, ch. 12, 13. Maokeldey 
 
CHAP. IX. J ENGLISH LAW OF PATERNAL POWER. 141 
 
 residence without the permission of the father, before major- 
 ity or emancipation, except for enrolment in the army at 
 eighteen years of age.^ 
 
 Majority is fixed at twenty-one years. A minor is eman- Powers of 
 cipated by marriage. At fifteen years of age he may be majority or 
 emancipated by his father, or, if the father be dead, by his t"^°°**' 
 mother, by a simple declaration before a magistrate. 
 
 For grave misconduct by his children, the father has strong 
 means of correction. If the child be under sixteen years of 
 age, the father may obtain a warrant to arrest and detain 
 him in prison for a period not exceeding a month. When 
 the child is above sixteen, and has not been emancipated or 
 attained majority, the father, on proper cause being shown 
 to the satisfaction of the magistrate, may obtain an order for 
 imprisoning the child for a period not exceeding six months. ^ 
 
 The father, during the marriage, and the surviving parent 
 after its dissolution, is entitled to the usufruct of any pro- 
 perty belonging to their children till they reach eighteen, or 
 are emancipated, subject to the burdens of maintenance and 
 education ; but this right does not extend to what the chil- 
 dren may acquire by their separate labour or industry, or 
 what may be gifted or bequeathed to them under an express 
 condition, excluding the interference of the parents.^ 
 
 III. — ENGLISH LAW. 
 
 By the law of England, a father is, generally speaking, Father 
 guardian to his lawful children in minority ; " and it is under- ^ miio? 
 stood that, though this right ceases, in some instances, and '''"''^™- 
 for some purposes, at fourteen, he is always entitled, in his 
 paternal capacity, to the control of their persons until the 
 age of twenty-one, or until their marriage."* It belongs to 
 the father to direct the education of his children, and he 
 has the power of moderate chastisement. When the child 
 
 1 Code Civil, art. 371-374 * Stephen's Com. on the Laws of 
 
 2 Ibid. art. 375-383. England, 4th ed., vol. ii. p. 299. 
 
 3 Ibid. art. 384-387. 
 
142 ENGLISH LAW OP PATEENAL POWER. [PAET I. 
 
 has real estate, the father, as guardian, may receive the rents, 
 subject to liability to account for them on the child attaining 
 full age. But the legal power of the father over the persons 
 or property of his children extends not, in any case, beyond 
 the age of twenty-one ; and, to some effects, marriage before 
 that age operates as a species of emancipation, at least in the 
 His power case of daughters. By deed or will the father may appoint 
 ^M^rni" a guardian to such of his children as shall be unmarried at 
 his death until they reach twenty-one. The mother has no 
 legal power over the child in the father's lifetime, and cannot, 
 like the father, appoint a guardian; but after the father's 
 death she seems entitled to stand in his place as regards the 
 right to the custody of the child. 
 
 However plain the moral duty may be, it is said that, by 
 the common law of England, there is no obligation on parents 
 to maintain their children, or on children to maintain their 
 parents. But the statute law, in its provisions relating to the 
 poor, makes it compulsory upon all parents who are able to 
 do so, to provide a maintenance for their children, of what- 
 ever age, when in poverty, and unable, through infancy, 
 disease, or accident, to support themselves ; and a reciprocal 
 obligation is imposed on children to support their indigent 
 parents who, from old age or infirmity, are disabled from 
 earning a livelihood.^ 
 Testamen- Another striking peculiarity in the law of England, which 
 ^'^tbe™^^ differs in this respect from the Eoman law, as well as from 
 father. , ^j^g ^^^ ^f Erauce and Scotland, is that, as a general rule, a 
 father can devise and bequeath his whole estate, real and per- 
 sonal, by will, to strangers, so as to exclude his wife and chil- 
 dren from succeeding to any part of the property left by him 
 .at his death. If the father die intestate, his real estate will 
 be inherited by the eldest or only son as heir, or, if there be 
 no son, by the daughters as co-heiresses ; and all the children 
 as well as the widow, if any, will take a share in the personal 
 estate, under the statute of distributions.^ 
 In the county of Kent, land descends by the custom of 
 
 ' See Stephen's Com., 4th ed., vol. p. 279, 296. 
 ii. p. 296. Paterson's Compendiuin, " Paterson's Compendium, p. 280. 
 
CHAP. IX.] SCOTTISH LAW OF PATEENAL POWER. 143 
 
 "Gavelkind" to all the sons equally. And in some places 
 the custom of " Borough English " holds, by which land de- 
 scends to the ymmgest son on the death of his father.^ 
 
 The law of England draws a distinction between the illegitimate 
 powers of a father over lawful children and his powers over 
 bastards. He is entitled to the custody of lawful children. 
 But the mother of a bastard is preferred to its custody, and 
 
 I is bound to maintain it if she has the means of doing so. If 
 the mother be not of sufficient ability, the law gives her the 
 means of compelling the father of the bastard to provide a' 
 
 ; fund for its maintenance by proceedings before the justices.^ « 
 
 IV. — SCOTTISH LAW. 
 
 In Scotland, the father, under the name of administrator- Father ad- 
 in-law, is tutor and curator of his children. The father's in-law to 
 right of administration extends over all the property belong- ^g°" " ' ' 
 ing to the children, except where an estate has been left to 
 them by a stranger, and placed by him under different 
 management. As a general rule, this right ceases on the 
 children reaching majority. According to Ersldne, the 
 father's administration is restricted to such of his children 
 as continue in family with him; and, as to this question, a 
 child is held to continue in his father's family, though he 
 should reside elsewhere, if he earns not his livelihood by his 
 own industry and labour independently of any aid from the 
 father. But it has been contended that as the marriage of 
 a son, during minority, does not infringe on the powers of 
 ordinary curators, the same principle should apply to the 
 father's powers as administrator-in-law. However this may 
 be, it is quite settled that the father's right of administration 
 comes to an end by the marriage of a daughter during 
 minority, because the husband becomes the guardian of his 
 wife.^ By the Statute 1696, c. 8, the father may, by will or 
 
 1 Black. Com., book 2, ch. 6. ' Ersk. 1. 6. 54. 55. Eraser, Per. 
 
 2 7 & 8 Vict. c. 101, amended by and Dom. Relations, vol. ii. p. 154. 
 8 & 9 Vict. 0. 10. 
 
144 SCOTTISH LAW [PART I. 
 
 deed, not executed on deathbed, appoint tutors and curators 
 to his children. 
 Power of While the children are in pupilarity, the father has a 
 roiQOT °™' general control over their persons. He may fix their place 
 pubes. of residence, direct their education, and how they are to he 
 employed, and inflict reasonable chastisement for misconduct. 
 It is difficult, however, to define with precision the limits of 
 the patria potestas in the case of children who have reached 
 puberty, and are under twenty-one years of age, and upon 
 this point the authorities are conflicting. Some writers think 
 the father may compel his child to reside with him, and to 
 labour for him, at least till majority ; while others contend 
 that a child, after pupilarity, cannot be restrained from leav- 
 ing his father's house, and living wherever he pleases.^ It 
 would be dangerous to hold that a girl at the age of twelve, 
 and a boy at fourteen, are entitled to choose their own resi- 
 dence, and do as they please, without paternal control. In 
 the recent case of Harvey, it was observed ^ — " The Court 
 have no desire to give countenance to a doctrine which 
 should enable any girl, on attaining the age of twelve, if 
 possessed of independent fortune, to desert the paternal man- 
 sion, and fix her own present residence, and thereby, pro- 
 bably, her future fate and course of life, in defiance of all 
 parental control." Still, it must be acknowledged, the father's 
 authority over the persons of children in puberty is very- 
 limited as compared with the same authority during their 
 pupilage, and, in a great variety of circumstances, it may be 
 wholly lost. According to Stair, the father's power to com- 
 pel his children to remain in his family, and employ their 
 services for his use, may be lost, not only by the children's 
 marriage, or by their being allowed to engage in an indepen- 
 dent trade or occupation, but also by the parent's dealing un- 
 reasonably with them, and refusing to maintain or settle them 
 suitably to their condition ; " or if the father countenance or 
 allow the children to live by themselves, and to manage their 
 
 1 Traser, Per. and Dom. Belationa, z Harvey, 15th June 1860 22 Sess 
 vol. ii. p. 27. More's Stair, vol. i. Ca. 1208. 
 p. 31, 32, notes. 
 
CHAP. IX.] OF PATEENAL POWER, 145 
 
 own affairs apart, from whence his tacit consent to their 
 emancipation may be inferred."^ 
 At common law the father is liable for the aliment of his Reciprocal 
 
 1 n -I i . -, ■ • obligations 
 
 lawful children, including clothing and necessaries. Failing to support, 
 the father, by death- or otherwise, the mother is next liable ; 
 then the paternal grandfather and great-grandfather in their 
 order. On the other hand, children who have the means of 
 doing so, are bound to aliment their parents when they be- 
 come unable to provide for themselves. In all cases the 
 aliment, so far as it can be enforced by law, is strictly limited 
 to what is necessary for reasonable support.^ 
 
 A bastard is not under paternal power, and a father l^Msj.''™**^ 
 cannot appoint a guardian to him by will. By the law of 
 Scotland^ both the mother and the father are liable to sup- 
 port the bastard ; so that, when the paternity is established, 
 the mother's claim agaiust the father resolves into a claim of 
 rateable contribution or relief 
 
 1 Stair, 1. 5. 13. ^ Eraser, yol. ii. p. 48, 49. 
 
 * Eraser, vol. ii. p. 34. 
 
CHAPTER X. 
 
 OF TUTORS AND CUEATOKS. 
 I. EOMAN LAW. 
 
 Full age, by the Eoman law, was twenty-five years complete, 
 both for males and females ; while the laws of France, Eng- 
 land, and Scotland all fix majority at twenty-one. Minors, in 
 an extensive sense, taclude all under age ; and their guard- 
 ians are either tutors or curators. 
 Guardian- ] Tutory is the right to govern the person, and administer 
 Sd''^" : tlie estate, of a pupQ. Curatory is the right to manage the 
 \ estate, either of a minor who has reached puberty, with his 
 , concurrence, or of a person of fall age who, from insanity or 
 ^ defect of judgment, is incapable of acting for himself. 
 
 Sect. l.—Tuiors. 
 
 Originally two classes of persons were placed under 
 tutory, — pupils, on account of their age — and women, on 
 account of their- sex. There is hardly any trace of the tutela 
 mulierum in Justinian's legislation, but the discovery of the 
 Institutes of Gaius has thrown some light on the subject.^ 
 Ancient According to the ancient Eoman law, a woman was placed 
 
 tutory of tiirough her whole life under the tutory of agnates when she 
 
 women. ^ a , 
 
 ceased to be under paternal power, and was not %n manu 
 mariti. The origin of this kind of tutory was to protect the 
 property of women, and prevent it from being withdrawn 
 from the lawful succession of agnates. For this reason the 
 1 Gai. 1. § \%.et seq. 
 
CHAP. X.] TUTORS AND CURATORS. 147 
 
 nearest male relations were appointed tutors. They had no 
 right of administration, properly so called, but only the power 
 of preventing the woman from alienating her property, or 
 undertaking any important obligation, without their au- 
 thority. 
 
 Though the tutory of women was rigidly enforced in 
 ancient times, it lost by degrees its primitive character. By 
 the law Papia Poppsea, the privilege of children released 
 many married women from this inconvenient superintend- 
 ence. A l8.w of Claudius delivered free-born women from 
 the lawful tutory of agnates ; but a tutor-dative was still re- 
 quired to validate the principal acts of women in civil life. 
 Finally, many ingenious expedients were devised to with- 
 draw women from their legal tutors who were found to be 
 troublesome, and allow them to choose more complaisant 
 guardians, who left them at liberty to do whatever they 
 liked. Vestiges of this degenerate tutory, which had become 
 an idle form, remained as late as Diocletian ; but under the 
 emperors who succeeded him it entirely disappeared.^ 
 
 Pupils who were sui juris, and no longer under the Tutory < 
 paternal power, were placed under the guardianship of a ''"'" ^' 
 tutor. No one could fill that oflice but a Eoman citizen of 
 the fuU age of twenty - five. As a general rule, females 
 could not be tutors ; but under the new law an exception 
 was made in favour of the mother and grandmother of the 
 pupil. 
 
 Guardianship was considered a munus publicum, so that 
 persons appointed tutors or curators were bound to act, uidess 
 they could plead exemption under certain excuses allowed by 
 law. Persons holding high offices in the state, clergymen 
 and professors, men employed in the army or absent on the 
 public service, those who had a certain number of lawful 
 children still living (three at Eome, four in Italy, and five 
 in the provinces), and those who were upwards of seventy 
 years of age, were, among others, excused from this duty.^ 
 Debtors and creditors of minors were prohibited from acting 
 as their tutors or curators.^ 
 
 ^ MarezoU, § 189. • ^ I. 1; 25! ' C. 5. 34. 8. N. 94. 
 
148 
 
 TUTORS AND CURATORS, 
 
 [pAET I. 
 
 Three kiuds 
 of tutors. 
 
 Testamen- 
 tary tutor. 
 
 Tutor- 
 at-law. 
 
 Tutor- 
 dative. 
 
 PoTvers and 
 duties of 
 tutors. 
 
 There are three kinds of tutors in the Koman law — a 
 testamentary tutor, a tutor-at-law, and a tutor-dative. 
 
 A testamentary tutor is one named by a father in his testa- 
 ment to his lawful children, and is preferred to every other 
 tutor. From the confidence reposed in the father's choice, 
 such a tutor is not obliged to find security for the faithful 
 discharge of his office. 
 
 If there was no nomination by the father, or if, from any 
 cause, it became inoperative, a tutor-at-law was entitled to 
 act. This sort of tutory devolved by the ancient Eoman law 
 on the nearest agnate, or agnates, where there were two or 
 more equally near to the pupil, because they were entitled to 
 the legal succession. . By the law of Justinian, the distinc- 
 tion between agnates and cognates was abolished, both as 
 regards legal succession and the ofi&ce of tutor-at-law ; and 
 the mother or grandmother of the pupil was appointed tutor- 
 at-law, even preferably to the agnates.^ 
 
 Any person who emancipated his child or other descend- 
 ant below the age of puberty became his tutor-at-law. As 
 patrons were entitled to the legal succession of their freed- 
 men who died intestate and without issue, they also became 
 tutors-at-law to children who were enfranchised in pupil- 
 arity; and those rights of patrons descended to their 
 children. 
 
 On the failure both of tutors-testamentary and tutors-at- 
 law, certain magistrates had the right to appoint a tutor- 
 dative. 
 
 The powers of the tutor extend generally over the person 
 as well as the property of the pupil. To take proper care of 
 the pupil's person and education is the tutor's first duty. 
 
 If the pupil be an infant — that is, under seven years of age 
 — ^he has in law no will of his own, and the tutor must act 
 alone without the direct intervention of the pupil. But if 
 the pupil be above seven years of age, he was considered to 
 have a will of his own, though it was imperfect ; so that, in 
 contracting obligations, it required to be completed by the 
 intervention of the tutor as a consenting party. In such 
 1 N. 118, ch. 4, 5. 
 
CHAP. X.] TUTORS AND CURATORS. 149 
 
 cases the tutor appears to have had the option either of 
 acting alone for the pupil, or of giving his consent to trans- 
 actions entered into by the pupil.^ 
 
 Pupils may better their condition, but cannot make it 
 worse, without the authority of their tutors. Where there 
 are mutual obligations arising from sales, leases, or other 
 engagements, a person of full age who transacts with a pupil 
 is bound by the contract, but the pupil is not bound unless 
 the tutor has authorised it.^ 
 
 No pupil could take up an inheritance without the au- 
 thority of his tutor ; for, although this may be profitable, it 
 is sometimes attended with loss, when the debts of the de- 
 ceased proprietor exceed the value of the inheritance.^ 
 
 A tutor must manage the estates of the pupil like a good 
 father of a family, and he wiU be liable for loss occasioned by 
 bad management. He is entitled to recover debts, levy rents 
 and interest, and he may sell the movable property, if this 
 appear to be proper or necessary ; but he cannot sell immov- 
 able subjects, such as lands or houses, except in a case of 
 necessity, and then only after full inquiry under judicial 
 authority. It is the tutor's duty to employ the pupil's funds 
 profitably ; and being a trustee, he cannot acquire any por- 
 tion of the estate, or do any act connected with it for his 
 own personal benefit.* 
 
 Tutory expires — 1st, By the pupil reaching puberty ; 2d, Tennina- 
 By the death either of the tutor or pupil ; 3d, By the pupil ^°^^_ 
 before puberty changing his condition, so as to be no longer 
 sui juris — as, for instance, from deportation or slavery, or 
 from that species of adoption called adrogatio — because no 
 one can be under tutory who is not sui juris ; and, 4th, 
 By supervening disqualification or removal of the tutor.^ 
 
 1 I. 3. 19. 9. Mackeldey, § 611. ' I. 1. 21. 
 MarezoU, § 186. * Mackeldey, § 628. 
 
 2 I. 1. 21. pr. 5 I. 1. 22. 
 
160 TUTORS AND CURATOES. [pa^T i. 
 
 Sect. 2. — Curators. 
 
 Curators of A curator is a person appointed to aid a minor pubes who 
 kinds!"' is sui juris, in the administration of his property till he 
 reaches majority. The term is also applied to the guardian 
 of a lunatic, who is necessarily intrusted with power over the 
 person as well as the property. , Generally speaking, persons 
 competent for the ofiBce of tutory may be appointed curators ; 
 but the mother and grandmother, though they might be 
 tutors, were not qualified to act as curators to their children 
 or grandchildren.^ The tutor of a pupil, on the expiry of the 
 tutory, was not bound to accept the curatory of the same 
 person.^ 
 
 minors. 
 
 . Curators to A father, in his testament, might name a curator to his 
 children, but the nomination required to be confirmed by the 
 magistrate. If no person was named in the testament, the 
 magistrate appointed the curator, having regard to the claims 
 of the nearest relations to the office.^ 
 
 A minor pubes who is sioi juris has power to administer 
 his property, and to perform many acts in civil life, without 
 requiring the consent of a curator. But when he wishes to 
 sell or burden his property, or do certain things of more than 
 ordinary importance, the deed is not valid without the cura- 
 tor's consent. Even when the curator has given his consent 
 so as to render the act binding on the minor in strict law, he 
 is entitled to be restored against it on proof of lesion or in- 
 jury. A minor, after fourteen, is himself the principal party 
 in all transactions regarding his affairs, and the curator 
 merely consents to what is done. 
 
 A curator is responsible like a tutor, being liable to render 
 an account of his management, and subjected to similar actions. 
 
 The curatory of minors expires by their arrival at legal 
 majority, being twenty-five years complete, or by their ob- 
 taining before that period a dispensation of age — venia 
 cetatis — by a rescript from the emperor.* 
 
 1 Maokeldey, § 617. ' I. 1. 23. 1. 
 
 " I. 1. 25. 18. 4 C. 2. 45. 2. I. 1. 23. pr. 
 
CHAP. X.] TUTOES AND CURATOES. 151 
 
 By the Twelve Tables the curatory of persons who were Curators 
 insane, or incapable of managing their affairs, whatever might ^elsmT 
 be their age, was devolved on the nearest agnates. If there 
 were no such relations, or if from any cause they were dis- 
 qualified, curators were appointed after due inquiry by the 
 magistrate.^ Though the guardianship of insane persons be 
 generally treated of under ciiratory, yet it seems rather to 
 correspond with tutory ; for the curator to a lunatic has the 
 charge of the person as well as of the estate of his ward ; 
 and the latter being incapable of consent, the curator must 
 transact all business in his own name. 
 
 Curators were sometimes named to a minor for a special Curators 
 purpose. Thus, if the minor was engaged in a lawsuit with ' *""■ 
 his guardians, or, having no guardians, with strangers, a cu- 
 rator ad litem was given to him by the judge, to aid in the 
 prosecution or defence.^. 
 
 A minor is indulged with four years, after he reaches ma- Restitution 
 jority, to obtain restitution against all deeds granted, either 
 by himself, if he had no curators, or if he had curators, with 
 their consent, which he can show to be prejudicial or injuri- 
 ous to him. "When loss arises from some accidental cause, 
 and is not inherent in the original transaction, no redress is 
 given. The lesion or injury must be considerable, and it is 
 estimated as at the date of the transaction itself, not of the 
 challenge. After the quadriennium utile has expired, no 
 action can be raised. Minors may bar themselves from 
 claiming restitution by confirming or homologating the deed 
 after majority, as by paying interest." 
 
 This doctrine as to the restitution of minors is followed in 
 Scotland. Mere revocation within the quadriennium utile, 
 however, is not sufficient. The deeds against which the minor 
 is entitled to be restored must also be challenged by an action 
 of reduction in the Court of Session within that term.' 
 
 - I. 1. 23. 3, 4. * Ersk. 1. 7. 34. Stewart, 20 Dec. 
 
 2 I. 1. 23. 2. 1860, 23 D. 187. 
 
 3 D. 4. 4 C. 2. 22. 
 
152 TUTOES AND CUEATOES FEENOH LAW, [part i. 
 
 II. — FRENCH LAW. 
 
 Guaidians By the French law the office of guardian to children not 
 inFi-ance. g^j^^^jipg^^g^ belongs to the father, then to the mother, if 
 she be the last survivor, and, failing them, to the male ascen- 
 .dants, calling first the paternal grandfather and then the 
 maternal grandfather. Guardians may be appointed by the 
 longest liver of the parents, whether father or mother, by 
 testament ; and the persons so chosen are preferred to ascen- 
 dants. Failing all these, a family councO. may name a per- 
 son to act as guardians to children in minority.^ Whoever is 
 chosen guardian is bound to act, unless he can plead a lawful 
 ground of exemption. The Civil Code (art. 427-449) indi- 
 cates the grounds of dispensation, incapacity, and exclusion. 
 Women are incapable of acting as guardians, except the 
 mother and ascendants. 
 Their In France the guardian takes care of the person of the 
 
 ffies!""' minor, and represents him in all civil acts. He also admin- 
 isters the property of his ward; but he has no power to 
 alienate or impledge immovables without the express autho- 
 rity of a family council, and then only on grounds of abso- 
 lute necessity or evident advantage, and after judicial sanc- 
 tion has been obtained. A guardian who has grave reasons 
 to be dissatisfied with the behaviour of the minor, may bring 
 a complaint before the family council, and obtain their au- 
 thority for procuring his detention in a house of correction.^ 
 Guardianship terminates by the majority of the minor, and 
 even before that age, by his contracting a lawful marriage, 
 which operates as emancipation, and puts an end to the 
 power both of parents and guardians.' 
 
 •■■ Code Civil, art. 389 et aeq. 5 PotMer, Traitg des Personnes, 
 
 ^ Ibid. art. 450-468. tit. 6. sec. 4, art. 5. 
 
CHAP. X.] ENGLISH AKD SCOTTISH LAW. 153 
 
 III. — ENGLISH LAW. 
 
 According to the teclinical phraseology of the law of Eng- Guardians 
 
 1 J • ? ^ . 1 ^ / o in England. 
 
 land, an iniant is a person under twenty-one years of age ; 
 in the Eoman law this term was only applied to pupils under 
 seven. In England a father is the guardian of his children 
 during minority, and he may, by deed or wUI, appoint a 
 guardian to act after his death. Failing such nomination, 
 the mother becomes guardian ; * but though she should sur- 
 vive her husband, she has no power of appointment by will 
 or otherwise. 
 
 When a minor has no guardian, the Court of Chancery has Wards of 
 the power of appointing one. If a suit be depending respect- 
 ing the minor or his estate, the minor becomes a ward of 
 Court. When this occurs, the minor is not allowed to marry 
 without the leave of the Court ; and any one marrying a 
 female ward clandestinely, may be committed to prison for 
 contempt.^ 
 
 IV. — SCOTTISH LAW. 
 
 By the law of Scotland the father can, by deed executed Guardians 
 
 . T 1 T 1 \ • 1 named by 
 
 in liege poustie (that is, not on deathbed), appoint tutors and father. 
 curators to his children. Any person who is of full age may 
 be so named, except a married woman, who, being herself 
 under the curatory of her husband, cannot act as a guardian 
 for others during the subsistence of her marriage. The 
 guardians appointed by the father have precedence over all 
 others.^ 
 
 If no tutor be nominated by the father, the next male Tntor-at- 
 agnate of twenty-five years or age, who is neir-at-law, is factor loco 
 entitled to the office of tutor- at-law for the management of "'''"^' 
 the pupil's estate ; but his person is intrusted to the mother, 
 or to the nearest cognate.* On the failure both of tutors- 
 
 * To the person only, not to pro- = Act 1696, c. 8. leaser. Per. and 
 
 pgj^y_ Dom. Eelations, p. 76 and p. 185. 
 
 1 Stephen's Com. on Laws of Eng- Ersk. 1. 7. 12. 
 
 land, 4th ed., p. 315-317. Paterson's » Erak. 1. 7. 7. 
 Compendium, p. 270. 
 
154 TUTORS AND CUKATOES. [part I. 
 
 nominate and tutors-at-law, the Court of Session may ap- 
 point a tutor-dative/ or a. factor loco tutoris. The powers of 
 a factor loco tutoris are similar to those of a tutor ; but the 
 factor may be superseded at any time by the service of a 
 tutor-at-law. 
 Curators A miuor pules, whose father has not named curators, may 
 
 SnoTs ^^ either take the management of his estate upon himself, or he 
 may put himself under the direction of curators, who are 
 chosen by him at the sight of the Court, by citing his next 
 of kin in an action, and adopting the course prescribed by the 
 Act 1555, c. 35.2 
 Powers and There is a distinction between the offices of tutor and 
 gulrdians. curator : a tutor is vested with the management both of the 
 person and the estate of his pupil; while a curator's sole 
 concern is with the estate ; and this has given rise to the 
 maxim, Tutor datur persoTwe, curator rei. The tutor acts 
 alone, the pupil having, strictly speaking, no person in law ; 
 while the minor pubes, on the other hand, is the principal 
 party in all transactions regarding his affairs, and the curator 
 merely consents along with him. A deed signed by a pupil 
 is null; and a deed signed by a curator alone would be 
 equally ineffectual against the ward. Where a minor who 
 has curators duly appointed to him acts without their con- 
 currence, his deeds are, ipso jure, null ; but where the minor 
 having no curators, or, having curators, with their consent, 
 executes deeds to his injury, these subsist, unless they are 
 reduced on the ground of minority and lesion.^ 
 Decennial By the Statute 1696, c. 9, a decennial prescription was in- 
 prescnp- Produced of all accounts between tutors and curators and 
 their wards, so that any claims competent to the one against 
 the other, if not pursued within ten years after the majority 
 of the minors, or within ten years after their death, should 
 they die in minority, are for ever excluded. 
 
 1 19 & 20 Vict. c. 56, ». 19. 3 More's Stair, vol. i. p. 46, notes. 
 
 ^ Fraser, vol. ii. p. 188. 
 
CHAPTER XI. 
 
 OF COEPOEATIONS. 
 
 I. — ROMAN LAW. 
 
 A COEPOEATION consists of a number of individuals united Nature of 
 by public autbority in sucb a manner tbat tbey and their tkSs!''' 
 successors constitute but one person in law, -with rights and 
 liabilities distinct from those of its individual members. 
 Cities, colleges, hospitals, scientific and trading associations, 
 and societies for other pubHc purposes, may be so incor- 
 porated. 
 
 Among the Romans every corporation was constituted by How con- 
 a law, by a decree of the senate, or by an imperial constitu-. 
 tion. Three members at least were necessary to form the. 
 corporation, but its existence might be continued by one ; 
 and it subsisted as an abstract legal person though all its 
 original members were changed.^ 
 
 The powers and privileges of corporations vary according; Corporate 
 to the nature of their original constitution. They are gener- privUeges. 
 ally authorised to hold property, and to sue and be sued, in 
 the corporate name ; to choose syndics or other office-bearers 
 to manage the business of the body ; to elect new members 
 from time to time ; and to make by-laws for the administra- 
 tion of their own affairs, so far as not contrary to the law of 
 the land or their own special constitution. There must al- 
 ways be some person authorised to represent the corporation 
 in its external relations.^ 
 
 1 D. 3. 4. D. 47. 22. D. 50. 16. rations will be found in Savigny, Sys- 
 gg tem des heutigen Komisohen Rechts, 
 
 2 Valuable information on corpo- vol. ii. § 86 et seq. 
 
.156 COEPORATIONS. [P'^-R'T ^• 
 
 All corporate property and effects belong to the corporate 
 body as a separate person in law, and not to the particular 
 members of which it is composed ; and the same principle 
 applies to debts due to the corporation. On the other hand, 
 the individual members are not answerable either in their 
 persons or property for the corporate debts, so that if there 
 are no corporate effects against which execution can be 
 directed, the creditors of the corporation must go unpaid : 
 "Si quid universitati debetur, singulis non debetur; nee 
 quod debet universitas, singuli debent." — D. 3. 4. 7. 1. 
 Voting at The mode of voting at general meetings of the corporate 
 meetings, ^odj depends, in the first place, on the original constitution; 
 and when it makes no provision regarding this matter, the 
 will of the majority, at a corporate assembly duly constituted, 
 is the will of the corporation, and binds the minority as well 
 as those who are absent. Some writers on the Eoman law 
 are of opinion, that when the constitution lays down no rule, 
 the decision of the majority is only binding when two-thirds 
 of the members are present at the meeting ; but the texts on 
 which they rely refer only to the curice in the Eoman muni- 
 cvpia, and are not sufficient to establish any general, rule 
 applicable to aH corporate bodies.^ The principle adopted 
 in England, when"the act of incorporation contains nothing 
 to the contrary, is, " that a corporation acts by the majority, 
 or that the will of the majority is the will of the corporation, 
 and binds the minority. Hence the act of the major part of 
 such corporators as are present at a meeting of the corpora- 
 tors corporately assembled, is, in general, the act of the whole 
 corporation."^ But if the act of incorporation, or the special 
 constitution, fix what shall be necessary to constitute a cor- 
 porate assembly, whether as regards the number of members 
 present or otherwise, this must be strictly attended to. Of 
 this we have a good illustration in the English Municipal 
 Corporations Act (5 & 6 Will. IV. c. 76, s. 69), which pro- 
 vides that all questions relating to general business shall be 
 decided by a majority of the members present at any regular 
 
 1 Mayuz, § 108. Mackeldey, § 148 ^ Grant on Corporations, p. 68. 
 and note. Atfc. Gen. v. Davy, 2 Ak. 212. 
 
CHAP. XI.J CORPOEATIONS. 157 
 
 meeting, provided the whole number present be not less than 
 one-third part of the whole council. 
 
 A corporation may come to an end by the expiry of the How a cor- 
 term fixed by the constitution, "when it is established for a may'termi- 
 limited period ; by the death of all the members, when it °°''°" 
 has for its object the personal interests of the individuals 
 composing it ; and by any act of the legislature declaring it 
 dissolved. 
 
 What becomes of the property of a dissolved corporation, 
 is a question which has led to some discussion. ISTo positive 
 rule can be laid down on this subject, and it may receive 
 different solutions according to the object for which the cor- 
 poration was established. Where it was instituted solely for 
 the piiblic benefit, such property is usually appropriated by 
 the state.^ 
 
 Besides the corporations where several individuals are Special 
 united into one body, and which in England are called cor- bocSes. 
 porations aggregate, the Eomans recognised another class of 
 artificial persons as capable of rights and obligations, bearing 
 some resemblance to the corporation sole of the English law. 
 Of this description were the state itself ; the prince, in so far 
 as he was regarded as the depositary of sovereign power ; 
 every public of&ce, considered with reference to the rights 
 and duties attached to it ; the public treasury or fisc ; and, 
 finally, the inheritance of a deceased person Quereditas 
 jacens), so long as it was not taken up by any one as heir. 
 
 The public treasury, as distinguished from the private for- The public 
 tune of the prince, was called the Jisc,^ and was always con- ' *™'^' 
 sidered in law as an ideal person. To the fisc belonged not 
 only all the ordinary and extraordinary revenues of the state, 
 including all property and effects which had no owner (bona 
 vacantia), but many other prerogatives and privileges which 
 need not be enumerated here. In disputes between the 
 subject and the fisc, it was a general rule, in all cases of 
 doubt, to decide against the fisc.^ 
 
 1 Mackeldey, § 148. the first by absorbing it. 
 
 " The treasury of the Roman peo- ^ d. 49. 14. 10. Compare, how- 
 pie was called cerarium, that of the ever, N. 161, ch. 2, and Edict. 
 prince, Jiscus, which put an end to Justin. 4, c. 2, s. 1. 
 
158 
 
 CORPORATIONS. 
 
 [part I. 
 
 II. — ENGLISH LAW. 
 
 Aggregate 
 or sole. 
 
 Common 
 seal. 
 
 Coi-poration 
 creditor 
 cannot sue 
 individuals. 
 
 In England corporations may be created by Act of Parlia- 
 ment or royal charter, and some exist by prescription. 
 
 By the law of England corporations are divided into aggre- 
 gate and sole. Corporations aggregate consist of a number oi 
 persons united into one society, so as to keep up a perpetual 
 succession of members — such as the mayor, aldermen, and 
 burgesses for the local administration of a borough, the head 
 and fellows of a college, and the dean and chapter of a 
 cathedral church. Corporations sole consist of one person 
 only, and his successors in some particular station, who are 
 incorporated by law, so as to preserve the powers and rights 
 which belong to the of&ce in perpetuity; and of this the 
 sovereign, a bishop, or a parson — each in his official capacity 
 — may be taken as an example.^ The idea of a corporation 
 sole has been claimed as peculiar to English law, but the 
 novelty consists only in the name ; and it has been justly re- 
 marked that, "as so little of the law of corporations in 
 general applies to corporations sole, it might have been 
 better to have given them some other denomination.^ 
 
 All contracts of importance entered into by English cor- 
 porations must be made under the common seal of the body 
 corporate, and in the corporate name ; but trifling matters of 
 business, and ordinary contracts of constant recurrence, such 
 as the hiring of servants and the like, are binding on the cor- 
 poration without the employment of their common seal.' 
 
 By the common law of England the creditor of a corpora- 
 tion can have no remedy except upon the funds or property 
 of the corporation, there being no right under a judgment 
 against a corporation to sue out execution against the indi- 
 viduals who are members of it. Under the Acts of Parlia- 
 ment incorporating railway companies, the capital stock and 
 
 ^ Stephen's Com., 4tli ed., vol. iii. 
 p. 125. 
 
 " Dr Wooddeson, Vm. Lect., voL 
 i p. 471, 472. 
 
 ' Addison on Contracts, Sth ed., 
 701-707. Smith's Compendium of 
 Mercantile Law, 6th ed., p. 113. 
 
CHAP. XI.] COEPORATIONS. 159 
 
 property of the corporation are alone liable for the debts and 
 engagements of the company, the personal liability of the 
 shareholders being limited to the amount of their shares not 
 paid up. Companies may be incorporated for a variety of 
 purposes under the Joint Stock Companies Act of 1862, 
 either with or without limited liability.^ Where the liability 
 of the members is unlimited, they are liable to the same 
 extent as if the company had not been incorporated. But 
 the liability of the members may be limited either to the 
 amount, if any, unpaid on the shares respectively held by 
 them., or to such amount as the members may respectively 
 undertake to contribute to the assets of the company in the 
 event of its being wound up.^ 
 
 Trading corporations may be dissolved on their bankruptcy 
 under the Joint Stock Companies Act. 
 
 III. — SCOTTISH LAW. 
 
 The corporation law of Scotland has a general resemblance 
 to that of England, both being originally derived from the 
 civil law, and modified by rules to suit the form of govern- 
 ment and state of society in each of these countries ; but in 
 some details and matters of form the law of Scotland has 
 peculiarities which distinguish it from that of England. 
 
 In Scotland the charters of most royal burghs confer upon Seals of 
 them a power of constituting subordinate corporations by a 
 seal of cause ; that is, a writ in the form of a charter issued 
 under the burgh seal. A seal of cause so issued erects the 
 grantees into a corporation, and gives them power to sue and 
 be sued, with every other privilege necessarily incident to a 
 corporate body, whether expressed in the grant or not ; such 
 as the power of electing officers, imposing fines, making by- 
 laws, and the like. Similar powers have been exercised by 
 lords of regality and barony, who had authority under their 
 rights from the crown to erect corporations within their 
 
 1 25 & 26 Viot. c. 89, s. 6.* 
 
 ' Ibid. s. 7-10. Smith's Mercantile Law, 6tli ed., p. HI. 
 
 * Amended by 30 and 31 Viot. c. 131. 
 
160 COEPOEATIONS. [P^J^T !• 
 
 Corporate Iburghs of regality and barony. Even where no charter or 
 prescript seal of cause can be produced, the prescriptive possession 
 ''™' and exercise of corporate rights has been sustained as suf- 
 
 ficient. But where no charter exists, or where it contains 
 no specific directions, the managers or of&ce-bearers should 
 obtain the sanction of a general meeting of the members be- 
 fore granting any deeds of importance, taking care to enter 
 the resolution in the minutes of the corporation.-^ 
 
 1 Ersk. 1. 7. 64. Glasgow Surgeons— House of Lords, 7th August 1840, 
 1 Rob. Ap. 307. 
 
PART II. 
 
 OF THE LAW EELATING TO REAL EIGHTS. 
 
 CHAPTEE I. 
 
 OF THE DIVISION OF THINGS. 
 
 Natueal philosophy considers things according to their Notion of 
 physical properties; law regards them as the objects of""°^' 
 rights. In legal phraseology the word res or thing compre- 
 hends not only material objects, but also the actions of man ; 
 and, in general, everything that can be the object of a right.^ 
 
 All things, whether susceptible of property by man or not. Corporeal 
 are distinguished into corporeal and incorporeal.^ Corporeal cmporeai. 
 things are those material objects which may be seen and felt 
 — as a house, a field, a horse, or the like. Incorporeal things 
 are those which cannot be handled or perceived by the senses, 
 but are created by law ; they are more properly rights en- 
 joyed in respect to things than things themselves, such as 
 rights of inheritance, servitudes, obligations. 
 
 There are certain objects over which we can exercise no Things not 
 exclusive, right ; these are called res extra commercium. For , 
 some things are naturally common to all mankind, some are 
 public, some belong to a particular city or corporation, and 
 some are the property of none ; but most things are the pri- 
 vate property of individuals, by whom they are acquired in 
 various ways.^ 
 
 1 Maynz, § 112. " I. 2. 2. » I. 2. 1. pr. 
 
 L 
 
 ^ \n com- 
 ' merce. 
 
162 DIVISION OP THINGS. [p-^RT "■ 
 
 Things Those things which are by nature incapable of appropria- 
 
 toTiT™ tion are called common— such as the air, the light, the ocean ; 
 none of which can become the property of any one, thouglk, 
 their use be common to all. So no nation has an exclusive 
 right to the open sea so as to debar others from using it for 
 navigation and fishing. But the parts of the sea near the 
 coast being, in some degree, susceptible of property, and of 
 great importance to the safety of the country, are held by the 
 modern law of nations to be comprehended within the terri- 
 tory of the state to which the coast belongs. To what dis- 
 tance a nation may extend its rights over the sea by which it 
 is surrounded is a problem which has been a fruitful source 
 of controversy, and is not easily determined. By most pub- 
 licists the whole space of sea within cannon-shot of the coast 
 is considered a part of the territory of the state ; and for that 
 reason a vessel captured within range of the cannon of a 
 neutral fortress is not a lawful prize. During the war be- 
 tween Spain and Holland, James I. caused a line to be drawn 
 as a maritime boundary at a certain distance from the British 
 coast, and declared that he would not suffer the armed vessels 
 of either of the belligerent powers to approach within these 
 limits either in pursuit of an enemy or for observing the 
 ships that might enter or sail out of British ports.^ 
 Things Things public are those which belong to the sovereign 
 
 P"'''"^' power of the state, but the use of which is common to all its 
 subjects as well as to strangers to whom the privilege may 
 be communicated, such as navigable rivers, highways, har- 
 bours, and the like. In countries where the feudal law pre- 
 vails, those things which the Eomans accounted public are 
 held to be vested, in the crown in trust for the people. The 
 shore of the sea is the tract of land covered by the greatest 
 winter flood, quatenus hibernus fluctus maximus excurrit? 
 Though the sea-shore is classed among things common by 
 Justinian,^ it belongs more properly to the state which pos- 
 sesses the coast, and this was the opinion of Celsus.* No 
 one was allowed to make any erections on the sea-shore 
 
 1 Vattel, vol. i. p. 115. ' I. 2. 1. 1. 
 
 2 1. 2. 1. 3. * D. 43. 8. 3. 
 
CHAP. I.] DIVISION OF THINGS. 163 
 
 without the authority of the prffitor, and this was refused 
 when the privilege claimed interfered with the navigation, 
 public use, or private utility.^ The public had a right to 
 use the banks of navigable rivers, so that a qualified owner- 
 ship in the soil of such banks was aU that could be acquired 
 by private persons. 
 
 When property belonged to a particular city or corporation, Corporation 
 it was distinguished as res universitatis. Of this description ''"'^°' ^' 
 were theatres, stadia, and forums. 
 
 Things sacred, religious, and holy, were exempted from Ti™gs 
 
 siicrcd or 
 
 commerce, and held to be the property of no one. Temples, religious, 
 churches, altar-pieces, communion-cups, and whatever was 
 consecrated according to the forms prescribed by law, were 
 held sacred, and could not be applied to profane uses. Ac- 
 cording to Papinian, even the ground on which a temple had 
 stood continued sacred after the edifice had been destroyed.^ 
 Among the epistles of Pliny the younger, we find one addressed 
 to the Emperor Trajan, inquiring whether an ancient temple 
 in Mcomedia, dedicated to the mother of the gods, but not 
 formally consecrated, could be removed consistently with the 
 ceremonies of religion to make way for a new forum. To this 
 Trajan replied, that the temple might be removed without 
 scruple, notwithstanding the dedication, because it had not 
 been legally consecrated, " for the ground of a foreign city is 
 not capable of receiving that kind of consecration which is 
 observed by our laws." ^ 
 
 Every place where a dead body was buried became religious, 
 and exempted from commerce ; but this exemption ceased if 
 the body was disinterred and removed to another spot. By 
 the Twelve Tables no burial was permitted within the pre- 
 cincts of Eome, and Hadrian extended this prohibition to aU 
 the cities of the empire. 
 
 The walls and gates of a city were accounted holy because 
 any one who violated them was punished with death.* 
 
 Though not made the basis of any precise classification in ™ngs^ 
 
 the Eoman law, corporeal things in most modern systems are and im- 
 movable. 
 
 1 D. 41. 1. 50. D. 43. 8. 3 and 4. - Pliny, x. Ep. 58, 59. 
 
 2 I. 2. 1. 8. * I- 1- 1- 10- 
 
164 
 
 DIVISION OF THINGS. [P^^ "• 
 
 divided into movables and immovables. Movables consist 
 of money, goods, and every kind of property except land and 
 things attached to land, whicb are caUed immovables. As 
 movables, from their nature, may be transported from one 
 place to another, they are held to follow the person of the 
 owner, and to be governed by the law of his domicile. On 
 the other hand, immovable subjects, such as land and houses, 
 being inseparably connected with a particular territory from 
 which they cannot be removed, are governed by the law of 
 the place where they happen to be situated. 
 Description The most absolute power which the law gives us over a 
 rtgta! tliiJig is called the right of property— dowimmm. This is a 
 real right in a thing which is our own— jus in re propria. 
 There are other real rights in things belonging to another, 
 which are called ywra in re aliena. Of these the Eoman law, 
 in its last stage of development, admitted four kinds : servi- 
 itudes, emphyteusis, superficies, and pledge. Among these 
 ! rights, emphyteusis and superficies, the nature of which will 
 ibe afterwards explained, bear the closest resemblance to 
 I property.^ 
 
 I Maynz, § 162. 
 
CHAPTER IT. 
 
 OF PROPEETY IN GENERAL. 
 
 Property is a right to the absolute use, enjoyment, and dis- Nature of 
 posal of a thing, «without any restraint, except what is im- P™P"'y- 
 posed on the owner by law or paction.^ Thus the unlimited 
 proprietor of a house may use it as a place of residence, or 
 let it to another and draw the rents, or dispose of it by sale, 
 or gift, or even destroy it, if he choose to do so. 
 
 Not only lands and movable goods, such as horses, plate, 
 money, and the like, but also incorporeal things, are con- 
 sidered in law as objects of property. The word bona was 
 used by the Eomans to express all kinds of property, and, 
 generally, all that a man was in any way entitled to.^ While 
 the essence of property consists in dealing with a thing as 
 one's own, the powers of the proprietor may be absolute and 
 unlimited, or may.be subject to limitations arising either from 
 the terms of his own title or from rights created in favour of 
 other persons, by mortgages, servitudes, and otherwise. 
 
 As a general rule, the property of the soil carries along 
 with it the property of everything above and below it ; cujus 
 est solum, ejus est a ccelo usque ad centrum. Sometimes, 
 however, the soil belongs to one person and the mineral 
 estate to another. 
 
 The real right which belongs to a proprietor, or to the Jus in re 
 holder of a mortgage or pledge, is called a jus in re. When rem. " 
 there is only a personal right to a thing to be enforced by an 
 action, the legal ownership belonging to another, this per- 
 sonal claim is called a jus ad rem. A jus in re implies a 
 1 Code Civil, art. 544. ^ D. 50. 16. 49. 
 
166 PEOPEETY IN GENERAL. [part II. 
 
 complete acquisition — a/ws ad rem, is a mere right to acquire 
 a thing. The difference is nearly the same as that between 
 property and obligation. These terms are not Eoman, having 
 been borrowed from the Canonists.^ To the uninitiated this 
 distinction may appear trivial; but it enters deeply into 
 legal discussions, and sometimes helps the solution of diffi- 
 cult problems. 
 
 Originally the Eomans recognised only one kind of pro- 
 perty, which was called dominium ex jure Quiritium. This 
 property could only be acquired by certain forms called ac- 
 quisitiones civiles. As to the acquisition of particular things, 
 the general rule is thus stated by Ulpian, — "Singularum 
 rerum dominium nobis adquiritur mancipatione, traditione, 
 usucapione, in jure cessione, adjudicatione, lege."^ But the 
 distinction between the civiles et naturales acquisitiones, so 
 important before Justinian, lost all practical interest under 
 the new Eoman law.^ 
 Resmancipi By the ancicnt civil law things were divided into res 
 cipT" ^^^' mancipi and res nee mancipi, and traces of this distinction 
 continued to a late period in the empire. According to 
 Ulpian, res mancipi comprehended lands or houses in Italy, 
 predial servitudes thereto attached, slaves, and ordinary 
 beasts of burden, such as horses, mules, asses, oxen, but not 
 elephants or camels ; while all other things, taken separately 
 and not as a universitas, were res nee mancipi.* The 
 property of the first class of things could only be acquired 
 by certain soleinn forms, either by mancipatio,^ which was 
 a sort of imaginary sale 'per ces et libram, in presence of 
 five witnesses and a balance-holder, or by a formal cere- 
 mony before the magistrate, called in jure cessio.^ If these 
 forms were not observed, the property of res mancipi was 
 not transferred ; they were only held to be in bonis of the 
 acquirer, tiU his possession had been continued long enough 
 to fortify his right by prescription. All other things called 
 nee mancipi admitted of being transferred by simple tradition. 
 
 1 Dr Taylor's Elements of the ' Marezoll, § 89-92. 
 
 Civil Law, p. 53. Ortolan, Insti- * XJlp. 9. 1. 
 
 tutes, vol. i. p. 458. Maynz, § 162. 6 Qai. 1. 119. 
 
 a Ulp. 19. 2. « Gai. 2. 24. 
 
CHAP. II.] PROPEKTY m GENERAL. 167 
 
 This trait of Eoman manners is brought out in some scenes 
 of the comedies of Plautus. A good-natured fellow buys 
 slaves without observing the forms of mancipatio, and thinks 
 he has made a capital bargain, when an accomplice of the 
 seller appears and claims the slaves as his own, so that the 
 buyer is cheated out of the price. To check these frauds, 
 the praetor allowed the buyer to plead the exceptio rei venditce 
 et traditce, not only against the seller, but all other persons 
 who derived right from him. These distinctions between res 
 mancipi and nee maticipi, which had fallen into disuse before 
 Justinian's time, were formally suppressed by him.i 
 
 The territory of Italy enjoyed the privilege of Eoman pro- jus itaii- 
 perty, and was free from the land-tax. This was called the ™'°' 
 JUS Italicum. In the conquered provinces the land was pos- 
 sessed by the inhabitants, subject to payment of the land-tax, 
 from which Italy remained exempt till the third century of 
 the Christian era. Under the emperors the jus Italicum was 
 given to some colonial settlements out of Italy. ^ 
 
 1 C. 7. 25. - Maynz, § 32. 
 
CHAPTER III. 
 
 OF THE DIFFERENT MODES OF ACQUIRING PROPERTY. 
 
 The acquisition of property is either original or derivative. 
 An original acquisition applies to things which have never 
 previously been the property of any one, or which, at least, 
 were not so immediately before the acquisition. A deriva- 
 tive acquisition arises when a person enters into the right of 
 property which had pre-existed in another, and derives the 
 thing from him. In this class of cases there is always a 
 loss of property by the former owner, who makes it over to 
 the new proprietor. 
 Acquisition Amoug the Original modes of acquiiing property, occu- 
 
 "bv occu- < . 
 
 pancy. pancy is the most natural. It consists of taking possession 
 of things which have no owner, with a view to their appro- 
 priation. The Eomans applied the rule res nullius cedit 
 occujpanti, not only to things which had never before been 
 appropriated, but also to those which, though previously ac- 
 quired, had ceased to belong to any one. There are differ- 
 ent kinds of occupancy, according to the different classes of 
 things without an owner. 
 
 Wild All wild animals, whether beasts, birds, or fish, fall under 
 
 this rule, so that even when they are caught by a trespasser 
 on another man's land they belong to the taker, unless they 
 are expressly declared to be forfeited by some penal law.^ 
 Deer in a forest, rabbits in a warren, fish in a pond, or other 
 wild animals in the keeping or possession of the first holder, 
 cannot be appropriated by another, unless they regain their 
 liberty, in which case they are free to be again acquired by 
 1 I. 2. 1. 12. 
 
 animals. 
 
CHAP. III.] MODES OF ACQUIRING PROPERTY. 169 
 
 occupancy. Tame or domesticated creatures, such as horses, 
 sheep, poultry, and the like, remain the property of thei^ 
 owners, though strayed or not confined. The same rule pre- 
 vails in regard to such wild animals already appropriated as 
 are in the hahit of returning to their owners, such as pigeons, 
 hawks in pursuit of game, or hees swarming while pursued 
 by their owners.-"^ 
 
 Justinian was of opinion that a wild beast does not belong 
 to the person who wounds it, and that the property cannot 
 otherwise be obtained than by actually taking it ; " because 
 many accidents frequently happen which prevent the cap- 
 ture." ' In whale-fishing particular rules are established in 
 this country. Where a fish is harpooned with the line at- 
 tached, or so entangled in the line as to continue in the 
 power or management of the striker, it is a fast fish, and 
 belongs to the striker. But where, without any interference 
 by another, the line breaks, or is not in management, the 
 fish is considered loose, and Liable to be captured by any one.^ 
 
 By the law of nature the chase is free to all men ; but the 
 civU law of most nations has imposed restrictions, more or 
 less severe, on this natural liberty. Game-laws are said to 
 be as old as the days of Solon. Among the Eomans any one 
 could kiU game on his own land or that of another ; but 
 every proprietor had the right to prevent strangers from 
 entering upon his ground for the purposes of sport. In 1789 
 the ancient game-laws of France, which were very oppressive, 
 were repealed ; and under the present system every man who 
 possesses landed property may sport on it at stated times, 
 after obtaining a licence or permis de chasse ; but no one can 
 sport on another's land without his permission, and if he does 
 so he is liable to an action for damages and to pay fines, both 
 to the proprietor and the commune. A law on the police of 
 the chase was passed on 3d May 1844, and an ordinance of 
 5th May 1845 regulates the details.* In this country the 
 
 ' I. 2. I. 14 and 15. * 2 Black. Com. p. 414, note by 
 
 ^ I. 2. 1. 13. Vinnius Com. h, t. Coleridge. BouiUet, Diet. Universel 
 
 3 Bell's Pr. 5th ed. § 1289. The des Sciences, des Lettres, et dea 
 
 King's Advocate v. Rankine, 1677, Arts, voce Chasse. 
 
 Mor. Diet. p. 11,930. 
 
170 MODES OF ACQUIRING PROPERTY. [paet ii. 
 
 game-laws are the subject of special statutes. Any person 
 who purchases a certificate or licence may kill game on his 
 own land, or on the land of any other person, with his per- 
 ihission. 
 Inanimate According to the Eoman law, inanimate objects, having no 
 "''j^"'''- owner, such as pearls, shells, or precious stones on the sea- 
 shore, belong to the finder.^ Treasure-trove is gold or silver 
 hidden in the ground, the owner being unknown. Such 
 treasure naturally belongs to the finder ; but the laws or 
 customs of any country may ordain otherwise. The Eoman 
 law on this subject varied at different periods. By Hadrian's 
 constitution, which is referred to in the Institutes, when 
 treasure was found by any one on his own ground it became 
 his property ; but if it was accidentally discovered by a per- 
 son on the ground of another, one half belonged to the finder 
 and the other half to the landowner.^ This rule is adopted 
 in the modern French Code.^ In Britain and some other 
 countries, treasure-trove belongs to the Crown. 
 
 Derelicts are things wilfully abandoned by the owner, with 
 an intention to leave them for ever, and they might be appro- 
 priated under the Eoman law by any one who found them. 
 Things lost by negligence or chance, or thrown away by 
 necessity — as, for instance, goods thrown into the sea in a 
 storm for lightening the ship — were not considered derelicts, 
 but continued the property of the owners.* 
 Prize of AmoBg the Eomans occupancy extended both to the goods 
 
 and persons of enemies captured in war. Immovable pro- 
 perty seized in war appears to have been left to the disposal 
 of the state ; and even in regard to movables captured from 
 the enemy, the rule as to their belonging to the first occupant 
 was modified by the discipline of the army, and the regula- 
 tions regarding booty taken by the troops in common.^ 
 
 In, the French Civil Code the general rule laid down is, 
 that things which have no owner belong to the state.® In 
 
 1 I. 2. 1. 18. = Ortolan, Institutes, voL ii p. 
 
 2 I. 2. 1. 39. 261. 
 
 3 Code Civil, art. 716. e Code Civil, art. 713. 
 « I. 2. 1. 46 and 47. 
 
 war. 
 
CHAP. iii.J MODES OF ACQUIRING PROPERTY. l7l 
 
 this country it is an established maxim that all lands in the 
 kingdom, to which no title can be shown by a subject, be- 
 long to the Crown. And even in regard to those things 
 already appropriated, but lost or abandoned as waif or stray 
 goods, we follow the rule, quod nullius est fit domini regis. 
 
 Another mode of acquiring property is by accession. Acquisition 
 whereby the principal thing draws after it the property of s^on.""''" 
 the accessory. Thus the natural or industrial fruits of land, 
 civil fruits — such as the rents of houses, or the interest of 
 money, and the increase of animals — all belong to the pro- 
 prietor of the principal subject by right of accession. A 
 house or other building, though erected with materials and at 
 the expense of another, belongs to the owner of the ground 
 on which it is built — solo cedit quod solo inedifioatur ; but 
 indemnity should be given for such expenditure when made 
 in good faith. On the same principle, trees and shrubs 
 taking root in your ground, though planted by a stranger, 
 become yours.^ Lands gaiaed from the sea or a river, either 
 by alluvion from the washing up of sand and earth, or by 
 the water gradually and imperceptibly receding, accrue by 
 natural accession to the owner of the estate which receives 
 the addition ; but property is not changed by a temporary 
 inundation. And when, in consequence of a sudden flood in 
 a river, a considerable portion of land clearly distinguishable 
 is forcibly carried off from one estate and added to another, 
 either on the opposite side or lower down the stream, the 
 ground so severed still remains the property of the original 
 owner, provided he asserts his right to it in proper time.^ 
 
 When a new island rises in the sea, the Eoman law gives 
 it to the first occupant,® but our law gives it to the Crown ;* 
 and the same principle applies with us to the case of an 
 island rising in a pubUc river. Labeo says, " insula quoque, 
 quae in flumine publico nata est, publica esse debet."* But 
 the Eomans established the rule, that if an island rise in 
 the middle of a river, it belongs in common to those who 
 
 - I. 2. 1. 30-32. * 2 Black. Com., book 2, ch. 16. 
 
 2 I. 2. 1. 20 and 21. ^ D. 41. 1. 65. 4. 
 
 s I. 2. 1. 22. 
 
tion 
 
 172 MODES OF ACQUIRING PROPERTY. [part II. 
 
 have lands on each side thereof; but if it be nearer to one 
 bank than the other, it belongs only to him who is proprietor 
 of the nearest shore.^ This regulation has been adopted in 
 the modern French Code, so far as regards private rivers, 
 not navigable or floatable ; but when an island springs up in 
 a public river it is held to belong to the state, if there is no 
 title or prescription to the contrary.^ 
 
 In applying the law of accession to movables, some perplex- 
 ing questions arise when the workmanship is performed by 
 one person and the materials belong to another, or when two 
 movable things, belonging to different owners, are blended 
 Specifica- or incorporated. When a new subject or species is formed 
 from materials belonging to another, as flour from corn, wine 
 from grapes, or the like, the operation is called by the com- 
 mentators specification. In such cases the general rule is, 
 that if the new species can be again reduced to the matter of 
 which it was made, as plate into bullion, the law considers 
 the former subject as still existing, so that the property may 
 be claimed by the owner in its altered state ; but when the 
 substance is wholly changed, so that it can never be restored 
 to its former condition, as in the case of bread from corn or 
 wine from grapes, the property belongs to the workman, 
 under the obligation to give satisfaction for the value of the 
 materials to the owner. A painting drawn on another man's 
 board or canvas belonged to the painter, in consideration of 
 the excellence of liis art ; " for it would be ridiculous," says 
 tlustinian, " that a work by Apelles or Parrhasius should 
 go as an accession to a miserable tablet." ^ With some incon- 
 sistency, however, this favour was not extended to what was 
 written on another man's paper or parchment, which went, 
 not to the writer, but to the owner of the materials.* It has 
 been observed that this doctrine had no reference to literary 
 property, considered as the result of study or of genius, but 
 merely to the property of the writing, as such, at a time when 
 printing was unknown.^ 
 
 1 I. 2. 1. 22. ^ " Cujus diversitatis vix idonea 
 
 * Code Civil, art. 560, 561. ratio redditur." — Gai. 2. 78. 
 
 3 I. 2. 1. 34. 6 Ortolan, Institutes, vol. ii. p. 293. 
 
CHAP. III.J MODES OF ACQUIRING PROPERTY. 173 
 
 When two things are mixed with the consent of the pro- Commix- 
 prietors, the whole becomes common property, whether a new 
 species is formed or not, and whether they admit of separa- 
 tion or not. If things of the same sort are mixed without 
 the consent of the proprietors and admit of separation, as in 
 the case of two ilocks of cattle or sheep, the property remains 
 distinct. But when the things so mixed cannot again be 
 separated, as for instance two casks of wine, the whole be- 
 comes common property, the different qualities of the wines 
 before they were blended being taken into account in the 
 division of the price. All such questions should be deter- 
 mined as far as possible upon the principles of natural 
 equity.^ 
 
 Among the derivative modes of acquiring property, are Ti^Uon. 
 gift, exchange, contract, succession, or other just title, followed 
 by possession of the thing.^ In short, it is of the essence of 
 property that the owner of a thing should have the right to 
 transfer it to another by giving up possession to him. But 
 it is an established principle of the Eoman law, which in 
 this respect differs from some modern systems, that property 
 is not transferred from one person to another by mere con- 
 vention without tradition. Two things are required for the 
 transference of property: — -Ist, The consent of the former 
 owner to transfer the thing upon some just ground — as gift, 
 sale, exchange, or the like ; and, 2dly, The actual delivery 
 of the thing, in pursuance of that intention, to the person 
 who is to acquire it ; or, if it was previously in his posses- 
 sion, it must be left with him in the view of his becoming 
 proprietor.' 
 
 The French law recognises the general doctrine that pro- 
 perty may be transferred from one person to another by the 
 sole effect of convention.* But this principle is not consist- 
 
 1 I. 2. 1. 28. Code Civil, art. 565 — Paulus, D. 41. 2. 31. pr. 
 
 f^t sea. " Traditionibus et uaucapionibus 
 
 2 I. 2. 1. 40. dominia rerum, non nudis pactis 
 ' " Nunquam nuda traditio trans- transferuntur. " — C. 2. 3. 20. Dio- 
 
 fert dominium, sed ita, si venditio, oletian. 
 
 aut aliqua justa causa praecesserit, * Code Civil, art. 711, 1138, 1583. 
 
 propter quam traditio sequeretnr." 
 
] 74 MODES OF ACQUIRING PROPERTY. [part II. , 
 
 ently carried out as regards movables. For possession of 
 movables is declared to be equivalent to a title, though, if 
 they have been lost or stolen, the owner may recover them 
 from any one in whose hands they are found within three 
 years. ^ 
 
 ' Code Civil, art. 2279. "En fait de meubles la possession vaut titre." 
 Maynz, Droit Romain, vol. i. p. 462. 
 
CHAPTER IV. 
 
 OF POSSESSION. 
 
 Possession, the badge' of property, is attended with impor- Legal effects 
 tant consequences in law. Thus, in movables the law pre- iLn".^^' 
 sumes the property to be in the possessor till positive evi- 
 dence is produced to the contrary. Again, if a person has 
 obtained possession by fair and justifiable means, he is en- 
 titled to continue it till the question of property be finally de- 
 cided ; and if he has been dispossessed by stealth or violence, 
 he has a right to be summarily restored to the possession of 
 the subject without waiting till the issue of the cause. 
 
 Possession may be taken either upon a good or a bad title, 
 and therefore it does not necessarily give a right to the fruits. 
 In this respect the law distinguishes between a bona fide 
 possessor, who, though not the true proprietor, conscientiously 
 believes himself to be so on probable grounds, and a mctla 
 fide possessor, who knows, or ought to know, that he is not 
 the rightful owner of the subject possessed by him. 
 
 By the Eoman law a hona fide possessor was entitled to When bona 
 the fruits of the subject reaped and consumed by him, while sor%u°Med 
 he had reason to think his own title good.^ It has been *° '^^"'*- 
 much debated among commentators whether, besides gather- 
 ing the fruits, they required to be consumed in order to 
 secure the lona fide possessor ; and the prevailing opinion 
 among the best authorities is, that consumption was neces- 
 sary to produce this effect, unless the possessor had acquired 
 a prescriptive right to the fruits as movables.^ By the 
 
 - L 2. 1. 35. 2 De Fresquet, vol. i. p. 261. MarezoU, § 97, p. 261, note. 
 
176 POSSESSION, LPABT n. 
 
 custom of Scotland, however, perception alone without con- 
 sumption secures the possessor. As to a maid fide possessor, 
 it has never heen doubted that he is obliged to restore to the 
 proprietor all the intermediate fruits from the time of his 
 entering into possession, whatever their nature may be, and 
 whether they have been consumed or not.i 
 
 All fruits, whether natural or industrial, might be acquired 
 by the lona fide possessor ; and civil fruits, as the rents of 
 houses, are in the same situation as the rents of lands. Some 
 WTiters, however, such as Lord Bankton, hold that" this doc- 
 trine is not to be received in regard to the interest of bonds 
 or other investments.^ But no reason has been assigned for 
 this opinion -which would not equally apply to other sub- 
 jects not yielding natural fruits ; and although the theory 
 receives some support from a text of Pomponius,^ this is 
 more than counterbalanced by the authority of Ulpian, who 
 says, " Usurse vicem fructuum obtinent et merito non debent 
 a fructibus separari." * 
 
 ^ I- 2. 1. 35. lOth July 1707, Mor. Diet., p 1768. 
 
 2 Contrast Bankton, 1. 8.' 19, with ' D. 50. 16. 121. 
 Erskine, 2. 1. 26. See also Nisbit, * D. 22. 1. 34. 
 
icJt:^ ^^<^ 
 
 / -tio^^^ 
 
 / 
 
 CHAPTER V. 
 
 OF PUEDIAL SERVITUDES. 
 
 Peopeety, though naturally unlimited, is susceptible of im- General 
 portant restrictions. By servitudes the proprietor is either servitudes" 
 restrained from the full use of his property, or is obliged to 
 suffer another to do something upon it. The Eomans divided 
 servitudes into predial and personal, according as the right 
 ■was granted in favour of an estate or a person.^ Predial ser- 
 vitudes are granted in favour of the proprietor of a particular 
 estate as such — ^rcedium servit prcedio. Personal servitudes 
 arise when the use of a thing is granted as a real right to 
 a particular individual other than the proprietor — -prcedium 
 servit personoB. 
 
 As a servitude is a sort of dismemberment of the right of 
 property, it is never presumed, and the person claiming it 
 must prove its existence and extent. No one can have a 
 servitude on his own property — nuUi res sua servit.^ The 
 object of a servitude is either to suffer something to be 
 done by another, or not to do something, and never con- 
 sists in doing anything — servitus in faciendo consistere non 
 potest.^ 
 
 The proprietor of the subject burdened can do nothing to 
 obstruct the use of the servitude, or to render it more incon- 
 venient; and, on the other hand, he who has the right of 
 servitude must exercise it in the manner least burdensome 
 to the servient tenement. 
 
 Predial servitudes were numerous. They imply the exist* 
 1 D. 8. 1. 1. " D. 8. 2. 26. ' D. 8. 1. 15. 1. 
 
 M 
 
178 PEEDIAL SEEVITUDES. [pAET ll. 
 
 ence of two immovable subjects— the' one enjoying the right 
 is called the dominant tenement ; and the other, bearing the 
 burden, is called the servient tenement. Originally predial 
 servitudes were confined to lands in Italy — a restriction 
 which disappeared imder the new Eoman law.^ 
 
 Predial servitudes are divided into rural and urban — ^the 
 former relating to lands, vineyards, gardens, or the like, wher- 
 ever situated ; and the latter to houses and buildings, whether 
 Eurai Herri- in town Or country. The chief rural servitudes of the Eo- 
 mans were iter, actus, via, aquwdtictus, agumhaustus, and jus 
 pascendi pecoris. Iter was a right to pass over the property 
 of another, either on foot or horseback, or in a litter. Actus 
 was a right to use a road for carriages, and for driving cattle 
 and other beasts of burden. Via was the most complete 
 right of passage, comprehending not only the two first, but 
 also the right of using the road for all sorts of carriages, and 
 for dragging stones, wood, and building materials. In our 
 law, and in most modem systems, the servitude of passage is 
 of three degrees ; foot-road, horse-road, and cart or carriage 
 road. This kind of servitude imposes no obligation on the 
 owner of the servient property to maintain the road ; but the 
 dominant proprietor has a right to do so at his own expense. 
 
 Aqucedvxitvs is a servitude to conduct water by canals, con- 
 duits, or pipes, through another's ground. The dominant pro- 
 prietor must maintain the aqueduct in proper order, and is 
 entitled to reasonable access for that purpose. Aqucehaustus 
 is a right to water cattle at a stream, pond, or well in an- 
 other's ground. There is also a privilege of drawing water 
 from another's fountain for domestic use; and both imply 
 a right of passage, so far as necessary to exercise the ser- 
 vitude. 
 
 Pasturage (Jus pascendi pecoris) is the right to pasture 
 cattle or sheep on another's ground, the nature and extent of 
 the burden being generally fixed either by the deed of con- 
 stitution or by usage. If there be no special agreement as 
 to the extent of the right, it can only be exercised for the 
 number of beasts attached to the dominant property.^ Finally, 
 1 MarezoU, § 105. a I. 2. 3. 2. 
 
CHAP, v.] PREDIAL SERVITUDES. 179 
 
 there are many other servitudes which give the right to take 
 from the servient property stones, lime, sand, chalk, props 
 for vines, and the like.^ 
 
 Some of the chief urhan servitudes of the Romans may now Urban 
 be noticed. The servitude of support (pneris ferendi) gives a ^"^ 
 right to rest the whole or part of a building on the house- 
 waU or property of another. It was incumbent on the owner 
 of the servient property to keep it in repair, so as to make it 
 sufficient to bear the burden.* This appears to be an excep- 
 tion to the general rule already mentioned, that servitudes 
 are purely passive as regards the servient proprietor.^ By the 
 custom of Scotland there is no such obligation to repair in a 
 servitude of support, without a special contract to that effect.* 
 The JUS tigni immittendi is the right of fixing a joist or beam 
 in a neighbour's wall. 
 
 No proprietor can build his house so as to throw the rain- 
 water falling from the roof upon another's ground, unless he 
 has the benefit of a servitude, which was called stillicidii vel 
 fluminis recvpieTidi servitus. The word stillicidium means 
 rain in drops ; when the water is collected in a fiowing body, 
 it is termed flumen. On grounds of public convenience, the 
 old Eoman law obliged proprietors in building to keep at a 
 certain distance within their own property. 
 
 By the servitudes altius non tollendi et 7wn officiendi lumi- 
 nibus vel prospectui, proprietors were restrained from raising 
 their houses or other buildings beyond a certain height, or 
 from constructing them in such a manner as to hurt the light 
 or prospect of the dominant tenement. "Where no such re- 
 strictions are constituted, a proprietor, in the common case, 
 may erect buildings on his own ground to any height he 
 pleases, whatever injury this may occasion to his neighbours.^ 
 
 Servitudes were established in the Eoman law by conven- How ac- 
 
 • • « mi i- quired and 
 
 tion, by testament, and by prescription.^ They were extm- bst. 
 guished, 1st, By renunciation ; 2d, By the dominant and ser- 
 
 1 I. 2. 3. 2. D. 8. 3. De Servitu- * Ersk. 2. 9. 8. 
 
 tibus Pradiorum Rusticorum. ' D. 8. 2. De Servitutibua Praedio- 
 
 2 j)_ 8_ 5_ g, rum Rusticorum. 
 
 3 d! 8.1.15. 1. '1.2.4.4. 
 
180 PKEDIAL SERVITUDES, [part II. 
 
 vient tenements coming to belong to the same person, whicli 
 was called consolidation or confusion ; 3d, By circumstances 
 emerging which rendered the servitude no longer available — 
 as, for instance, by the extinction either of the dominant or 
 servient tenement; but if a building to which a servitude 
 belonged was pulled down and rebuilt de recenti, the servi- 
 tude revived ; ''■ 4th, Positive servitudes were lost, non utendo, 
 by the dominant proprietor neglecting to use the right for 
 the term of the negative prescription — that is, for ten years, 
 if the parties were present in the same province, and twenty 
 years, if they were absent.^ 
 Modem The Servitudes of the French law are regulated by the 
 
 servitudes. Code Civil, book 2, title 4, "Des Servitudes ou Services 
 Fonciers," art. 637 to 710. The Scottish law of servitudes 
 is based substantially on the Roman system, with this dif- 
 ference, that the period of prescription is the fuU term of 
 forty years.^ 
 
 The easements of the English correspond in some respects 
 with the servitudes of the Roman law. By the Statute 2 & 3 
 "William IV. cap. 71, forty years' enjoyment of any way or 
 other easement, or of any watercourse, or of the use of any 
 water, and twenty years' " uninterrupted access and use of 
 any light to and for any dwelling-house " or other building, 
 now constitute an absolute right in the occupier, unless in 
 either case he enjoys "by some consent or agreement ex- 
 pressly given or made for that purpose by deed or writing."* 
 
 > D. 8. 2. 20. 2. * Lord St Leonards's Treatise on 
 
 " D. 8. 2. 6. Hein. Inst. § 413. New Statutes relating to Property, 
 3 Ersk. 2. 9. 2d ed., p. 162-165. 
 
CHAPTER VI. 
 
 OF USUFEUCr, USE, AND HABITATION. 
 
 Under personal servitudes the Eomans classed three rights 
 — usufruct, use, and hahitation. Of these usufruct is the 
 most important, the other two being of little practical value 
 in modern systems of law. 
 
 Usufruct is a right of using a thing belonging to another. Nature of 
 and enjojdng its fruits or profits, without impairing its sub- "'"f™'='- 
 stance. This right might be conferred by contract or testa- 
 ment, either for the life of the grantee or for a fixed period. 
 The objects of usufruct may be land, houses, slaves, beasts of 
 burden, and other things.^ A proper usufruct relates only 
 to such things as can be restored entire when the right ex- 
 pires, and not to such things as wine or other fungibles which 
 perish in the use. Nevertheless, by a senatus consultum, of 
 uncertain date, ascribed by Hugo to the reign of Augustus, 
 and by other writers to that of Tiberius, a quasi usufruct 
 might be estabKshed in regard to things which are consumed 
 in the use, upon security being given by the usufructuary to 
 restore, on the expiry of his right, as much in quantity and 
 value as he had received, or to pay an equivalent in money .^ 
 Nvda proprietor is the term used to denote the reserved 
 right of property in opposition to usufruct. 
 
 The usufructuary is entitled to aU the fruits of the sub- Rights and 
 ject, both natural and civil. His title to the fruits of land, of ufufruc- 
 however. does not accrue till they are _reaped ; and if he die *"*'^" 
 before this, no right passes to his representatives.' He is en- 
 1 I. 2. 4. pr. § 2. ^ D. 7. 5. 7. ' I. 2. 1. 36. 
 
182 USUFRUCT. [rABT n. 
 
 titled to the increase of animals, but not of slaves ; and for 
 this exception Ulpian assigns the reason, that slaves are given 
 in usufruct with a view to their labour alone, and not to 
 the ir offspring . Justinian accounts for this by considerations 
 drawn from the dignity of human nature — a theory evidently 
 derived from the Stoic school of philosophy, but not easily 
 reconciled with a system of law that permitted slaves to be 
 sold and bequeathed like the beasts of the field.^ 
 
 The usufructuary may either possess the subject himself, 
 or let it to another ; and he may cede the exercise of his 
 right either onerously or gratuitously. He is bound, how- 
 ever, to manage the property like a good husbandman, to 
 execute all proper and necessary repairs, and to defray 
 the ordinary annual burdens. It is his duty to replace 
 vines or fruit-trees that have fallen into decay or been 
 destroyed by accident ; and in the case of cattle or sheep 
 he should keep up the usual number of the herd or 
 flock. To guard against threatened waste or encroachment, 
 he may be compelled to give security to restore the subject 
 in the same condition in which it stood at the time of his 
 entry.2 
 Expiry of Usufruct is terminated in the Eoman law by the natural 
 "gi". or civil death of the usufructuary, or the expiry of the period 
 for which the right is granted ; by consolidation where the 
 usufruct and the property come to be united in one person ; 
 by the total destruction of the subject ; and by non-use for 
 ten years when the parties are present in the same province, 
 and twenty years when they are absent.^ 
 Usus de- Usus in the Eoman law was a right to use a thing belong- 
 
 ing to another without wasting its substance, and without 
 being entitled to the produce or fruits beyond what was t^r- 
 cessary to supply the daily wants and necessaries of the user 
 andjds family. There was thus much less benefit or emolu- 
 ment in the use of a thing than in the usufruct. Besides, 
 the user could only ex e rcise his right personally, and could 
 not let, sell, or give it away to another. 
 
 ' I- 2. 1. .3V. = Inst. 2. 4. 3. Ortolan, Institutes, 
 
 ' D. 7. 9. 1. vol. ii. p. 344. 
 
 fined. 
 
CHAP. vi.J HABITATIO. 183 
 
 Usus was constituted and terminated in the same way as 
 usufruct.^ 
 
 Habitatio was a ri^ht to reside gratuitously in a house be - Habitatio. 
 longing to another. In its origin it was probably a personal 
 privilege ; but Justinian permitted the grantee either to live 
 in the house, or to let it as a place of residence to another.? 
 
 Under this head may be noticed the oyerce .tervnrum^ which Opera 
 was a per son al right to the ser vices of slaves belo nging to _**'" 
 another.^ When such a legacy was left, the right did not 
 terminate by the death of the legatee, bilt passed to his heirs, 
 who enjoyed it during the life of the slave. Of the like nature 
 is the right to the labour of animals, operce animalium.^ 
 
 1 I. 2. 5. pr. and 1 & 2. 3 D. 7. 7. 
 
 « I. 2. 5. 5. * D. 7. 9. 5. 3. Maynz, § 217. 
 
CHAPTER VII. 
 
 OF EMPHYTEUSIS AND SUPEKFICIES. 
 
 Nature of 
 emphy- 
 teusis. 
 
 How con- 
 stituted. 
 
 Kights and 
 obligations 
 of grantee. 
 
 Emphyteusis in the Eoman law is a contract, whereby a pro- 
 prietor, without abandoning the property, gives over to an- 
 other a real right to land, generally in perpetuity, in conside- 
 ration of a certain annual return in money or produce. The 
 word emphyteusis was used from the second century of the 
 Christian era; but rights more or less analogous existed 
 from a much earlier period. In its origin this contract was 
 a sort oi perpetual lease ; in progress of time, when the rights 
 it conferred grew more important, it became a question 
 whether it should not be regarded as a sale ; and at last it 
 was declared, by a law of the Emperor Zeno, that it should 
 be considered neither a sale nor a lease, but a particular con- 
 tract to be regulated by its own provisions.' According to 
 Sir Thomas Craig and other writers, this right bore a strong 
 resemblance to the feu-right well known in the law of Scot- 
 land ; but Maynz contends that it did not confer what is 
 commonly called the dominium utile or a right of property, 
 and says the Eomans were always careful to distinguish 
 between the emphyteuta and the dominus? 
 
 Emphyteusis might be established by convention or by 
 testament. According to Maynz, there is no express autho- 
 rity for holding that this right could be acquired by pre- 
 scription,^ 
 
 Though the rights conferred by the emphyteutical grant 
 fell short in theory of absolute property, they were very 
 
 ' !• 3- 25, 3, 3 Maynz, § 236, See, however, 
 
 2 Maynz, § 232. Mackeldey, § 333. 
 
CHAP, vn.] EMPHYTEUSIS. 185 
 
 nearly the same in substance, and they were more extensive 
 than usufruct. Not only was the grantee entitled to possess 
 the lands and reap the fruits, imder the burden of the annual 
 payment, but he could make changes in the substance by 
 reclaiming waste lands, building, planting, and other opera- 
 tions, provided he did not deteriorate the subject. He could 
 sell his right, and it descended to his heirs. In case of a 
 sale the proprietor had the privilege of pre-emption, if he was 
 desirous to purchase the subject on his own account, and 
 willing to pay the price offered for it ; and for every aliena- 
 tion to a stranger he was entitled to exact a fine called laude- 
 mium, which was fixed by Justinian at the fiftieth part of 
 the price or value of the lands. The right was forfeited and 
 returned to the proprietor by the grantee deteriorating the 
 subject, or neglecting to pay the annual duty for two years in 
 the case of church property, and for three years in other 
 cases. -^ 
 
 The right might be extinguished also by consent of parties. Expiry of 
 the total destruction of the subject, the expiry of the term ^™'' 
 when the grant was constituted for a time, and by the death 
 of the grantee without leaving lawful heirs.^ 
 
 Another real right, which bears a strong analogy to emphy- Nature of 
 teusis, was called superficies. By this a landed proprietor 
 conceded to another person an area of ground for erecting a 
 building upon it, without parting with the ownership of the 
 soil. The property of the building remained with the pro- 
 prietor of the land, biit the grantee acquired a real right to 
 the full possession and enjoyment of the edifice, either for a 
 definite period or in perpetuity, and this right was transfer- 
 able during life, and descendible to heirs. It was regulated 
 by contract, and the right might be granted either for a price 
 or an annual payment.^ In many respects this /its superfi^i- 
 arium bears a strong resemblance to the long building leases 
 granted by landholders in England, in consideration of a 
 rent, and under reservation of the ownership of the soil. 
 
 ^ C. 4. 66. 2. N. 7. 3. § 2. ^ D. 43. 8. De Superficiebus. Or- 
 
 2 Ortolan, Institutes, vol. iii. p. tolan, vol. iii. p. 295. Maynz, § 
 292 et seq. Maynz, § 232-237. 238. 
 
CHAPTER VIIL 
 
 OF PEESCEIPTION. 
 I. — ROMAN LAW. 
 
 Prescription gives an unchalleiigeable title to property "by 
 continuous possession for a certain time under the conditions 
 determined Iby law. It is also a mode of extinguishing 
 claims which are not prosecuted within the time fixed 
 by law. Hence rights are both acquired and lost by pre- 
 scription. 
 General According to Modestinus, usucapio is the acquisition of 
 
 prescrip- property by continuous possession for the period defined by 
 *"'°' law.^ The prcescriptio longi temporis, on the other hand, was 
 
 an exception which barred the remedy of the former owner 
 against the possessor. When a person who had been in 
 possession for the prescriptive period afterwards lost it, he 
 was allowed by the praetorian law an actio utilis to vindicate 
 his right. In the time of Justinian the usucapio and the 
 prcescriptio longi temporis were blended, and new rules were 
 introduced. By modem jurists the term prescription is used 
 in a general sense, so as to apply either where lapse of time 
 extinguishes the right of the former owner and transfers it 
 to the possessor, or where it merely bars the remedy of the 
 former owner against the possessor. 
 Pres?r!p. jn the earliest period of the Eoman law, a prescriptive 
 Justinian's title to movables was acquired by possession for one year, 
 
 time. 
 
 ^ " Usucapio eat adjectio dominii pons lege defiuiti." — D. 41, 3. 3. 
 per cbntinuationem possessionis tem- Modestinus. 
 
ujiAf. viii.j PRESCRIPTION. 187 
 
 and to immovables by possession for two years. ^ These 
 periods were afterwards extended in the time of Justinian to 
 three years' undisturbed possession in the case of movables, 
 and in the case of immovables to ten years when the parties 
 were present, that is, domiciled in the same province, and 
 .^twenty years when they were absent, that is, living in dif- 
 ferent provinces, and this without any reference to the local 
 situation of the subject.^ But a title to the thing possessed 
 could only be acquired in this manner by one who obtained 
 possession in good faith and under a sale, gift, or other just 
 means of acquiring property. It was necessary that the 
 possession should be peaceable and uninterrupted for the 
 period required by law, and on a title as proprietor ; but in 
 order to complete prescription, any one could add to his own 
 possession that of his author. When the parties resided in 
 ^e-samej)rovince during a part of the ten years, but not for 
 the full period, the deficiency was made up by computing 
 two years' absence as equivalent to one year's presence.^ 
 
 Undisturbed possession for thirty years in general gave a Prescrip- 
 good defence by way of exception, even when the possessor and 40 
 had come in under no title, or when, having an ostensible ^^'"^' 
 title, the thing belonged to a class excepted from ordinary 
 prescription. But when both these conditions of ordinary 
 prescription were awanting, the Eoman law stni allowed 
 effect to be given to the extraordinary prescription of forty 
 years.* 
 
 Prescription may be interrupted by any deed whereby the Effect of 
 proprietor or creditor exercises his right. Natural interrup- Ifonr"^' 
 tion takes place when the possessor is deprived of the pos- 
 session of the subject by the true proprietor. Civil interrup- 
 tion arises from judicial proceedings, brought by the owner to 
 vindicate his right before the full time defined by law is 
 completed. Interruption has the effect to cut off the course 
 of prescription, so that the person prescribing cannot avail 
 himself of his previous possession, but must begin a new 
 course from the date of interruption. The operation of pre- 
 
 1I.2..6. pr. 3 N, 119, ch. 8. 
 
 ' I. 2. 6. pr. C. 7. 33. 12. * Mackeldey, § 295. Maynz, § 198. 
 
in com- 
 merce. 
 
 188 PKESCRIPTION. [part "• 
 
 Prescription scription is Suspended during the minority of the person en- 
 suspended y^j^^^ ^^ challenge ; but it is not an interruption so as to 
 minority, fcreak the course of prescription, though in computing the 
 prescriptive period the years of minority must of course be 
 deducted. 
 When pre- Prescription, as a mode of extinguishing obligations, only 
 be"-M'to begins to run from the time that the right or debt can be 
 ™°- sued on or demanded judicially, because till then there is 
 
 properly no cause of action. Therefore when a bond or other 
 debt falls due at a fixed term, prescription does not begin to 
 run till that date. When the debt depends on a condition, 
 prescription does not run till the condition is fulfilled, nor on 
 an obligation of warranty till eviction has taken place. 
 Things not Things exempted from commerce are incapable of prescrip- 
 tion. By the Eoman law things stolen or possessed by viol- 
 ence were considered so far extra commercium that they could 
 not be acquired by the ordinary prescription even by a bona 
 fide possessor; but this and all other grounds of challenge 
 seem to have been excluded by the prescription longissimi 
 temporis} 
 
 II. — FRENCH LAW. 
 
 French law ^^ the modem French code there are two general rules of 
 tfon"'™*" prescription very similar to those which prevailed in the 
 Eoman law. 1st, He who acquires in good faith and upon 
 an ostensible title an immovable subject, prescribes the pro- 
 perty of it in ten years, if the true owner live in the terri- 
 tory of the royal court within which the subject is situated, 
 and in twenty years if he is domiciled elsewhere.^ It is 
 'sufficient if good faith exist at the commencement of the 
 acquisition, and, as this is always presumed, he who alleges 
 bad faith must prove it. A title defective in form cannot 
 serve as a basis for this prescription of ten or twenty years.* 
 2d, All real and personal actions are barred by the lapse of 
 thirty years, and this prescription may be pleaded by a party 
 
 1 1. 2. 6. D. 41. 3. C. 7. 33. ' Code Civil, art. 2267-2269. 
 2 Code Civil, art. 2265. 
 
CHAP. VIII.] PRESCKIPTION. 189 
 
 ■without producing any title, and without being exposed to 
 any exception founded on bad faith.^ Shorter prescriptions 
 are established by the French law for particular claims, vary- 
 ing according to their nature from five years to six months.* 
 
 III. ENGLISH LAW. 
 
 In England the Act ^& 4 Will. IV. c. 27. introduced some English Uw 
 important changes, limiting the time within which actions ^fonrhmi- 
 can be brought concerning real property. The old statutes "'"''°* > 
 of limitation barred the remedy, but did not extinguish the 
 right; but, under the 34th section of that Act, when the 
 remedy is barred by time, the right and title of the person in 
 any land, rent, or advowson whose remedy is taken away are 
 extinguished. By the 2d section of the same statute it is Act 3 & 4 
 enacted, that no person shall bring an action to recover any 27.' 
 land or rent but within twenty years after the right to bring 
 such action has first accrued to the claimant or some person 
 through whom he claims. Thus, under ordinary circum- 
 stances, twenty years form the regular bar ; but there is an 
 exception in the case of disabilities arising from infancy or 
 minority, coverture, unsoundness of mind, or absence be- 
 yond seas. For, if any one to whom the right accrues is 
 under any of these disabilities, then such person or any one 
 claiming through him may, notwithstanding the lapse of 
 twenty years, bring an action to recover land or rent within 
 ten years after the time at which the person to whom the 
 right first accrued ceased to be under disability or died ; bu^, 
 even in the case of disability or a succession of disabilities, not 
 more than /rort^ jyears are allowed after the right first accrued. 
 Lord St Leo5Sms attempted to prevail on Parliament to 
 shorten this period of limitation, but without success.^ 
 
 It has already been explained that twenty years' enjoyment 
 
 1 Code Civil, art. 2262. ards's Practical Treatise on New 
 
 " Ibid. liv. iii. sect. 4, art. 2271 Statutes relating to Property, p. 8, 
 
 ei aeq. 17, 70, and 82. 
 3 Sec. 16, 17, 18. Lord St Leon- 
 
190 
 
 PRESCEIPTION. 
 
 [part ir. 
 
 Prescrip- 
 tion of 
 
 easements. 
 
 Limitation 
 of actions. 
 
 of light, and forty years' enjoyment in the case of other ease- 
 ments or servitudes, create an absolute right, unless there shall 
 be some consent or agreement by deed or writing.^ 
 
 The principal statutes limiting the time within which 
 actions or suits may be brought in England, are 3 & 4 Will. 
 IV. c. 27 and c. 42, and 21 Jac. I. c. 16. The most import- 
 ant statutory limitations are stated by Mr Lindley to be as 
 follows : — 
 
 " Forty years ; the extreme limit for the recovery of land 
 or rent by any person other than a corporation sole. 
 
 " Twenty years ; the limit for the same under ordinary 
 ch'cumstances ; and also for the redemption of mortgages ; 
 and for the recovery of legacies, and of rent (upon an inden- 
 ture of demise), and of money charged on land, and the limit 
 for actions and suits on specialties. 
 
 " Six years ; the limit for the recovery of arrears of dower, 
 rent, interest of money charged on land ; personal actions 
 not otherwise limited. 
 
 " Pour years ; the limit for actions of assault, battery, false 
 imprisonment. 
 
 " Two years ; the limit for actions for words of themselves 
 defamatory ; penalties, damages, or sums given by statute to 
 the party aggrieved. 
 
 " The time begins to run from the moment the right to sue 
 accrues to a person within the realm, of full age, of sound 
 mind, out of prison, and, if a woman, unmarried."^ 
 
 Formerly, absence beyond seas, or imprisonment, had the 
 effect of extending the period of limitation ; but by the 19 
 & 20 Vict. c. 97, s. 10, it is enacted that no person shall be 
 entitled to any time within which to commence an action or 
 suit beyond the period fixed by these statutes, by reason 
 only of his being absent beyond seas, or in imprisonment, at 
 the time the cause of action or suit accrued. Absence beyond 
 sea of any of several joint defendants formerly prevented the 
 
 1 2 & 3 "Will. IV. 0. 71, s. 2 and 3. 
 St Leonards's Treatise, p. 165. 
 
 '^ Lindley's Introduction to the 
 Study of Jurisprudence, 1855, App. 
 
 p. 112, 113. See also Addison on 
 Contracts, 5th ed. 1862, p. 1000 et 
 acq. 
 
CHAP. VIII.] PRESCRIPTION. 191 
 
 statutes from running as against those who were resident in 
 England. But this has been altered by the eleventh section 
 of the same statute.^ 
 
 IV. — SCOTTISH LAW. 
 
 In Scotland, the long positive prescription was introduced Long pre- 
 by the Act 1617, c. 12, for the protection of land rights. It '"*"""• 
 declares that possession for forty years, on charter and sasine, 
 or (where there is no charter) on sasines, one or more con- 
 tinued and standing together, shall render the title secure 
 against all challenge, even though it flowed a non domino. 
 By the long negative prescription, which rests on the same 
 statute and two prior acts, all real and personal claims, 
 founded on contracts, or obligations of any kind, are extin- 
 guished, unless prosecuted within forty years from the time 
 when the cause of action arises.^ 
 
 These prescriptions may be legally interrupted, and they 
 do not run against minors. Neither does the long negative 
 prescription operate against one who is under any legal in- 
 capacity to sue — cmitra non valentem agere non currit pre- 
 scriptio.^ Bona fides is not required by one who pleads 
 either the positive or negative prescription of forty years.* 
 In the negative prescription, the creditor's neglecting to insist 
 on his claim for so long a time is construed as an abandon- 
 ment of it, and is equivalent to a discharge ; so that an offer 
 to prove the subsistence of the debt by the debtor's oath 
 after the forty years, would be of no avail.^ 
 
 Besides this long prescription, there are several shorter shorter pre- 
 prescriptions applicable to mercantile and other claims, the ^°"'' ^°^' 
 effect of which generally is, not to extinguish the obligation, 
 or even to cut off the remedy by action, but to limit the 
 mode of proof, so that claims which might be proved by 
 parole, or other legal evidence, within the years of prescrip- 
 tion, can only be established, after that period has elapsed, 
 
 1 Addison, p. 1001, 1002. « Ersk. 3. 7. 15. 
 
 2 Ersk. 3. 7. 8. = Ibid. 
 
 3 Stair, 2. 12. 27. Ersk. 3. 7. 37. 
 
192 PRESCRIPTTON. [PART ll. 
 
 by the writing or oath on reference of the debtor. The dura- 
 tion of cautionary obligations, executed in a certain form, is 
 limited to seven years, by 1695, c. 5 ; but the statute does not 
 extend to a letter of guarantee in a mercantile transaction. 
 Bills of exchange and promissory-notes cannot be enforced 
 by action after six years from the time when they became 
 exigible ; but the debts they represent, if still due, may be 
 proved by the writ or oath of the debtor.^ All single trans- 
 actions regarding movables or sums of money which the law 
 allows to be proved by witnesses — such as sale, location, and 
 other contracts, to the constitution of which writing is not 
 essential — ^prescribe in five years after making the bargain, 
 unless the creditor shall prove the subsistence of the debt by 
 the writ or oath of the debtor.^ 
 
 Actions for house-rents, board, servants' wages, merchants' 
 accounts, and the like debts, prescribe in three years, un- 
 less the creditor prove the subsistence of the debt claimed 
 by the debtor's writ or oath.^ In current accounts the 
 triennial prescription runs, not upon each article separately, 
 but only from the last article. House-rents and servants' 
 wages prescribe from year to year, each year's rent or wages 
 running a separate course of prescription from the last day 
 of payment. 
 
 V. ^INTERNATIONAL LAW. 
 
 Conflict of As the rules of prescription are of an arbitrary character, 
 regards pre- and Vary very much in different countries, there has been 
 Bcnption. niuch discussiou among writers on international law upon 
 the question, Whether the prescription of the place where 
 the contract is made, or the prescription of the place where 
 the action is brought, when they happen to differ, should 
 Immovable prevail. It is settled, that all questions of prescription con- 
 property. ceming land, or other immovable property, must be govern- 
 ed by the law of the place where the property is situated. 
 And, as real actions regarding such property require gener- 
 
 1 12 Geo. III. u. 72, s. 37, made " 1669, c. 9. Ersk. 3. 7. 20. 
 perpetual by 23 Geo. III. c. 18, s. 55. 3 1579^ g 83_ i^^.^^ 3 ^ jy 
 
CHAP. VIII. J PRESCRIPTION. 193 
 
 ally to be brought in the place where it is situated, the lex 
 rei sitcB and the lex fori usually concur in this class of 
 cases.^ 
 
 As to actions founded on personal contracts or obligations, Personal 
 it has been determined that prescriptions which do not affect ° '^* """'' 
 the right or obligation, but only the mode of enforcing it by 
 limitiag the time for suing, or the kind of proof competent, 
 are governed by the lex fori. Thus, an obligation, called a 
 cash-credit bond, which had been entered into in Scotland, 
 where the plaintiffs carried on business, and the defendant 
 resided, having been sued upon in England, after six years 
 from its date, the Court of King's Bench held that the case 
 fell within the English sexennial limitation applicable to 
 simple contract, and that the obligation was not kept in force 
 for forty years, the term of prescription applying to it by 
 Scotch law.^ So when bOIs, accepted in France, were sued 
 upon in Scotland after the lapse of six years, the House of 
 Lords held that they fell within the Scotch sexennial limita- 
 tion, although judicial proceedings had been adopted in 
 France (which was the place of acceptance, and assumed 
 to be the locus solutionis) sufficient to interrupt the French 
 prescription.^ 
 
 But it is necessary carefully to distinguish between a 
 foreign prescription which extinguishes the right, and one 
 which merely strikes at the remedy. For, if the lex loci con- 
 tractus makes the obligation wholly void after a certain time, 
 and if the parties have resided within the jurisdiction during 
 the whole of that period, the right will not revive on the 
 defendant's removal to another country, where a simUar 
 prescription does not exist.* 
 
 1 Story's Conflict of Laws, § 581. ' Don v. Lippman, 1837, 1 Clark 
 
 Ersk. 3. 7. 49. and Fin., p. 1. 
 
 = British Linen Company v. Drum- « Story's Conflict of Laws, § 582. 
 
 mond, 1830, 10 Barn, and Cress., Dickson's Law of Evidence, vol. i. 
 
 903. 1>- 298. 
 
PART III. 
 
 OF THE LAW OF OBLIGATIONS. 
 
 CHAPTER L 
 
 OF OBLIGATIONS IN GENERAL. 
 I. — EOMAN LAW. 
 
 Nature of A LEGAL obligation is an engagement to make some pay- 
 igations. jjjgj^^.^ Qj. ^Q ^(j Qj, j^qj. ^q jJq g^j^g g^^^^ conferring on the per- 
 son in whose favour the engagement is made a right by law 
 to exact performance of it.^ 
 
 Natural and Obligations are sometimes divided into natural and civil. 
 A natural obligation exists, where one person is bound to 
 another by the law of nature, though he cannot be compelled 
 by a civil action to the performance ; but such an engage- 
 ment may receive effect by way of exception, for if the debtor 
 has fulfilled the obligation, he cannot demand restitution on 
 the ground that the debt was not due, or paid in error.^ In 
 this class of cases, too, a cautionary obligation may be effectu- 
 ally interposed.* CivU obligations are those which are ac- 
 counted perfect, and may be enforced by an action. There 
 are always at least two persons iaterested, one the creditor 
 and the other the debtor; and the obligation only confers on 
 
 1 I. 3. 14. pr. Code Civil, art. " D. 12. 6. 19. 
 1101. " D. 20. 1. 5. 
 
CHAP. I.] OBLIGATIONS. 195 
 
 the creditor a right purely personal against the particular 
 debtor. 
 
 By convention is meant an agreement between two or Convention 
 more persons regarding a matter in which they are interested, 
 — " Est autem pactio duorum pluriumve in idem placitum 
 consensus." ^ If the engagement be on one side the conven- 
 tion is unilateral ; it is bilateral if there be reciprocal engage- 
 ments undertaken by both parties. 
 
 Among the Eomans the term contractus was reserved for Contracts, 
 those conventions which were specially recognised as obliga- 
 tory, and fortified by action under the ancient civil law. AH 
 other conventions were called pacta, even after some of them 
 had been rendered obligatory, so as to found an action, either 
 by authority of the praetor, or under the more recent law of 
 the emperors — such as the pacta legitima, pacta prcetoria, and 
 pacta adjecta? A nudum pactum, or simple promise, was so Nudum 
 called, because it did not found an action, though it might ^"^ "*"■ 
 sometimes give rise to an exception.^ 
 
 Any one may grant an obligation, or contract for himself, Kequisites 
 if not declared incapable by law; but no man can contract tions.'^* 
 for another without power from him to do so. 
 
 Every contract must have a lawful object ; it must neither 
 be prohibited by law nor contrary to public policy or good 
 morals. No one can bind himself to do what is naturally 
 impossible. An impossible condition is not only null in 
 itself, but renders null the convention which depends upon 
 it — impossibilium nulla ohligatio est.^ Bracton holds that if 
 a man, being at Oxford, engage to pay money the same day 
 in London, he shall be discharged of his contract, as he 
 undertakes a physical impossibility; but in these days of 
 rapid transmission by railways and electric telegraphs this 
 illustration cannot be admitted, though the general doctrine 
 is sound. 
 
 As the consent of the contracting parties is indispensable, 
 
 ^ D. 2. 14. 2. parit, sed pari* exeeptionem. " — Ul- 
 
 2 Ortolan, Institutes, vol. iii. p. pian, D. 2. 14. 7. 4. 
 
 136. * D. 50. 17, 185. Code CivU, art. 
 
 ' " Nuda pactio obligationem non 1172. 
 
196 
 
 OBLIGATIONS. ^^^T III. 
 
 no contract will be effectual if it has teen made under essen- 
 tial error— woft mdentur qui errant consentire} Neither 
 wiU a contract be sustained, when it is proved to have been 
 procured..b^raud or extorted by violence. When fraud is 
 pleaded as ag&mad of nullity, it must be of such a nature as 
 to have induced the pM^V^ter into the contract— /raws 
 dans causam contractui. Lab^ describes dolus malus— 
 " omnis calliditas, fallacia, machinatio ad circuniveniendum, 
 fallendum, decipiendum alterum adhibita ; " — and this defi- 
 nition is approved of by Ulpian.^ To invalidate a contract, 
 violence must be of such a nature as to alarm a mind of 
 reasonable firmness, regard being always had to the age, sex, 
 and condition of the person. When fraud or deception is 
 combined with constraint, a less degree of violence may 
 suf&ce to show that there was no real consent to bind the 
 bargain. 
 
 In mutual contracts the engagements are reciprocal, and 
 one who fails to perform his part cannot insist on implement 
 from the other. There are contracts, however, which may be 
 declared null by one of the contracting parties, although they 
 are binding irrevocably on the other ; as, for instance, when 
 a person of full age enters into an agreement with a minor, it 
 may be annulled by the latter when it is to his disadvantage, 
 but it subsists against the person of full age when the minor 
 does not demand relief. 
 Obligations Where an obligation is entered into without a term, it must 
 co"nlitionai ^^ performed immediately, or without delay. If a day, which 
 ' must arrive, is fixed for the performance, a proper debt arises 
 from the date of the obligation, but the execution is sus- 
 pended till the term specified ; in this case the debt is due 
 but not payable, or, as it is technically expressed by the 
 civilians, dies cedit sed non venit. When an obligation is 
 entered into under a condition, the occurrence of which is 
 uncertain, there is no proper debt, but only the hope of a debt, 
 till the condition be fulfilled — dies neo cedit nee venit, nisi 
 exstiterit conditio. Where there is a proper alternative obliga- 
 tion to do one of two things, the debtor has the right of elec- 
 1 D. 50. 17. 116. 2. " D. 4. 3. 1. 2. 
 
CHAP. I.J OBLIGATIONS. 197 
 
 tion, iinless the contrary be stipulated, so that upon fulfilling 
 either alternative he will be discharged. 
 
 In treating of the general properties of conventional obli- Material 
 gations, Pothier and other jurists distinguish between the obUgTtfonl 
 essence, the nature, and the accidents of contracts. Those 
 things are of the essence of the contract without which it 
 could not subsist. For instance, there can be no sale without 
 a thing to be sold and a price ; consequently these things 
 are essential to the contract of sale. Things are of the nature 
 of the contract which are included in it by the operation of 
 law without being expressed. Thus, when a thing is sold, it 
 is at the risk of the purchaser as soon as the contract is com- 
 pleted, before delivery, so that, if it perish without the fault 
 of the seller, the loss falls on the purchaser ; and this flows 
 from the nature of the contract of sale. Those things are 
 accidental to a contract which form no part of it unless they 
 are expressed. Tor example, if the seller agrees to keep the 
 subject sold in repair for a certain time, or to accept payment 
 of the price by instalments at distant dates, such conditions 
 require to be specially expressed, seeing they do not flow from 
 the nature of the contract itself^ 
 
 In considering the doctrine of responsibility for fault or Theory of 
 neglect arising under the different contracts, a controversy b1iit™for 
 has arisen among civilians which merits notice here. Until f*""- 
 lately, the theory generally received — and adopted, among 
 others, by Sir William Jones in his ' Essay on Bailments' — 
 was that the Eoman law distinguished three degrees of fault, 
 culpa lata, levis, levissima; and the rules of responsibility 
 were determined in the following manner. In contracts ben- 
 eficial only to the owner, as mandate or deposit, good faith 
 alone being required in the custodier, he was only held liable 
 for culpa lata, or gross neglect. Next, where the benefit was 
 reciprocal to the two parties, as in sale, hiring, or partner- 
 ship, they were both held liable for culpa levis,— that is, for 
 the care of a good father of a family, so as to be responsible 
 for ordinary neglect. And, finally, where all the advantage 
 was reaped by one of the parties, as in commodate, the 
 1 PotMer, Traits des OUigations, part i. oh. i. art. 1, § 3. 
 
198 OBLiaATIONS. b^KT III. 
 
 Slightest fault, culpa levissima, was held to subject him in a 
 claim for indemnification. However plausible this theory^ 
 may appear, it is now rejected by the most eminent- Con- 
 tinental jurists, who maintain that it is not supported by the 
 original texts of the Koman law, and is a pure invention ot 
 the commentators, contrary to equity. Already m the six- 
 teenth century, Doneau had dedared that the Eoman law 
 admitted only two degrees of fault ; but his system, which 
 was defective iu other respects, found few partisans.^ Le- 
 brun, an advocate before the Parliament of Paris, broached 
 the same doctrine ; but his essay, published in 1764, besides 
 being superficial, abounded with serious errors, and was dis- 
 approved of by Pothier. To M. Hasse, who published a 
 dissertation on this subject in 1815, is ascribed the merit of 
 having established the true Eoman theory, and of having for 
 ever extinguished the system of the three degrees of fault.^ 
 The substance of his argument is shortly given by Maynz in 
 his ' Elements of Eoman Law.' It is said the term mdpa 
 levissima occurs only once in the Corpus Juris in a fragment 
 of Ulpian, and in that passage it has no technical significa- 
 tion ; in particular, it is not opposed to culpa lata or culpa 
 levis? As culpa levis imports the want of care of a goo^ 
 father of a family— that is, of a man essentially attentive and 
 careful — culpa levissima must mean the want of still greater 
 care ; but the Eoman law nowhere requires a higher degree 
 of diligence than that of a man essentially careful and atten- 
 tive ; and the original texts never mention anything but 
 culpa levis, when it is intended to indicate an intermediate 
 degree between an inevitable casualty and culpa lata, so that 
 no place is left for culpa levissima. Finally, it is said that 
 the theory of three degrees of fault is imjust in itself, as well 
 as contrary to the fundamental principles of the Eoman law, 
 which distinguishes only between two cases, — that in which 
 we derive no benefit from the contract, and that in which we 
 derive benefit from it; that in the first we are generally liable 
 
 1 Doneau, Com. Juris Civilis, lib. Eechts ; Kiel, 1815. 
 16, cap, 6, 7. 5 T>. 9. 2. 44. pr. " In lege Aquilia 
 
 ' Die Culpa des Eoemisclien et levissima culpa venit." 
 
CHAP. I.J OBLIGATIONS. 199 
 
 only for gross neglect, while in the second we are liable for 
 the care of a good father of a family.^ 
 
 . In general, fault or culpa, inferring responsibility for loss, 
 consists either in a positive act done or in simple inaction. 
 In the first place, every one is responsible for the conse- 
 quences of his own fraud, even in the case of omission — dolus 
 semper prcestatur. Next, the Eoman law distinguishes two 
 degrees of fault — culpa lata and culpa levis. For the first 
 every one is liable under all sorts of obligations, because 
 culpa lata cequiparatur dolo, so that it is placed in the same 
 category as fraud. But as regards the second, one is only 
 answerable for culpa levis sometimes, and in virtue of certain 
 obligations ; and chiefly, but not exclusively, in virtue of 
 those from which he himself derived benefit. Under culpa 
 lata is comprehended not only wrong caused wilfully and in- 
 tentionally, but also wrong caused by simple imprudence or 
 simple neglect, when it is gross. When any one is bound 
 prcestare levem or omnem culpam, he is liable for small blun- 
 ders or mistakes, and he is not exempted from all responsi- 
 bility, unless he has comported himself entirely as a good 
 father of a family, — ^that is, in the same way as a prudent, 
 careful, and attentive man is accustomed to conduct himself 
 in like cases. But, in measuring the responsibility of a par- 
 ticular person, regard is someEimes had not so much to this 
 general standard as to the habits of the individual, and there 
 is required from him not absolutely the highest degree of 
 care and attention, but only talem diligentiam, qualem in suis 
 rebviS adhibere solet? 
 
 According to the view of those writers who maintain that 
 the Eoman law recognised only two degrees of fault — cidpa 
 lata and culpa levis—" there is no culpa levissima, as opposed 
 to culpa levis; but the latter, as understood by the Eomans, 
 rather includes the former as understood by the moderns."^ 
 
 As the subject is important, it may be useful here to lay 
 before our readers the general rules of responsibility for fault 
 
 1 Maynz, vol. ii. p. 15, § 260. 1 = Lindley's Introduction to Study 
 Bell's Com. 453. of Jurisprudence, p. 131. See also 
 
 2 MarezoU, § 120. Appendix, p. 84. 
 
200 OBLIGATIONS. [pabt III, 
 
 as -given by Maynz : 1st, If the debtor can derive no profit 
 from the obligation, he is only liable for culpa lata. To this 
 rule there is an exception in the case of a mandatory or 
 neffotiorum gestor, who is answerable for culpa levis. 2d, 
 "When the debtor derives advantage from the obligation, he is 
 liable for culpa levis. To this there is an exception, where 
 one obtains the use of .a thing on a precarious title, as he is 
 then only liable for culpa lata. 3d, When the two parties 
 derive benefit from the obligation, as in sale, pledge, or part- 
 nership, they are both responsible for the conseq[uences of 
 culpa levis; and this rule is said to be without exception. 
 By special convention these general rules may, of course, be 
 modified so as to extend or diminish the responsibility of the 
 parties according to circumstances.^ 
 Sources of Viswcd with reference to their sources, obligations were 
 iga loui,. (ji^j^g^ ^y. |.]^g Eomans into those arising from, 1st, Express 
 
 contracts ; 2d, Quasi contracts ; 3d, Delicts ; and, 4th, Quasi 
 delicts. This division is imperfect ; for there are many in- 
 stances of obligations which are not derived from any of these 
 sources, being founded on the operation of a particular law, 
 or on equity alone. But although this classification is in- 
 complete, it is convenient to follow it, so far as it goes, in 
 giving a succinct exposition of the Eoman law of obligations. 
 Different Coutracts wcrc divided by the Eoman law into those which 
 
 contracts. Were perfected by the intervention of things, by solemn words, 
 by writing, and by sole consent, — re, verbis, Uteris, consensu. 
 These four kinds of contracts will be considered in the order 
 in which they are treated in Justinian's Institutes. 
 
 II. — ^ENGLISH LAW. 
 
 Modem law In the matter of contracts, the law of France, like that of 
 Scotland, is substantially based on the Eoman system. But 
 there are some peculiarities in the English law of contracts, 
 which may be here shortly noticed. 
 
 Pecuiiari- In the law of England contracts are classified under three 
 
 English heads : 1st, Contracts of record, such as judgments, cogno- 
 
 '^^^^- 1 Maynz, § 259. 
 
CHAP. I.] OBLiaATIONS. 201 
 
 vits, and recognisances ; 2d, Contracts by specialty, or under 
 seal ; 3d, Simple contracts, or contracts not under seal, which 
 may be either written or verbal.^ 
 
 A judgment obtained in one of the superior courts of com- 
 mon law now binds the land of the debtor, if registered for 
 the warning of purchasers at the office of the Court of Com- 
 mon Pleas.^* A specialty is distinguished from a simple con- 
 tract in writing by sealing and delivery. A simple contract 
 " is a contract either in writing not under seal, or verbal, or 
 implied from the acts and conduct of the parties."* 
 
 In judgment debts and contracts under seal a consideration Simple con- 
 is implied. But it is essential to the validity of a simple quTro cm- 
 contract that it should be founded on a sufficient considera- ^'ii*™''™- 
 tion. For whether the agreement be verbal or in writing, it 
 is a nudum pactum, and will not support an action, if a con- 
 sideration be wanting. "The rule that a consideration is 
 necessary to the validity of a contract applies to all contracts 
 and agreements not under seal, with the exception of bills of 
 exchange and negotiable notes, after they have been negoti- 
 ated and passed into the hands of an innocent indorsee. The 
 immediate parties to a bill or note, equally with parties to 
 other contracts, are affected by the want of consideration ; 
 and it is only as to third persons who come to the posses- 
 sion of the paper in the usual course of trade, without notice 
 of the original defect, that the want of consideration cannot 
 be alleged."* 
 
 By the Act 19 & 20 Vict. c. 97, s. 3, it is declared that no 
 promise in writing to answer for the debt, default, or mis- 
 carriage of another, shall be invalid, though the consideration 
 does not appear in writing, or by necessary inference from a 
 written document. 
 
 It has been observed that "contracts of record must be 
 
 - Broom's Com. on Common Law, delivered in execution by virtue of a 
 
 p_ 267. writ of elegit or other lawful author- 
 
 ^ 1 & 2 Vict. c. 110. Broom's ity in pursuance of such judgment; 
 
 Com. p. 268. 27 & 28 Vict. 0.112. §1. 
 
 * Such judgment does not now ' Broom's Com. p. 308. 
 
 bind the land of the debtor, until * Kent's Com. on American Law, 
 
 such land shall have been actually 10th ed., vol. ii. p. 630. 
 
202 OBLIGATIONS. [pabt III. 
 
 Distinction Considered as of a higher nature than contracts of any other 
 feTand ^'^^' ^^^ Special as superior in efficacy to simple contracts." ^ 
 equitable j^ tjje administration of the legal assets of deceased persons 
 in England, judgment creditors are ranked first, then creditors 
 by specialty, and, lastly, creditors by simple contract. But, 
 in the administration of equitable assets,^ and the distribution 
 of estates in bankruptcy, creditors have no priority or prefer- 
 ence in respect merely of their claims resting on judgments 
 and specialties, such claims being ranked in the same order 
 with simple contracts. In Scotland there is no distinction 
 between legal and equitable assets, and creditors are entitled 
 to be ranked pari pctssu on the estates of their debtors, whether 
 their claims be constituted by judgments or formal deeds, or 
 rest on simple contract.' 
 
 III. — INTERNATIONAL LAW. 
 
 Lex loci Generally speaking, the interpretation of personal contracts 
 
 contractus. ^^^ their Validity, as regards forms and solemnities, are gov- 
 erned by the law of the country where they are made, unless 
 the intention of the parties to the contrary be clearly shown — 
 locus contractus regit actum} But if a contract be made in 
 one country which is to be performed in another, parties 
 are presumed to have in view the law of the place of per- 
 formance, which in that case generally regulates the obliga- 
 tion and construction of the contract — contraxisse unusquis- 
 que in eo loco intelligitur, in quo ut soheret se dbligavit? If 
 no place of performance is mentioned, or the contract may be 
 indifferently performed anywhere, the lex loci contractus is 
 usually held to be in the contemplation of the parties.^ 
 Negotiable Very important consequences arise from the application of 
 instruments. |.|^g j^^ ^g^ contractus to biUs and other negotiable instru- 
 ments used in commercial transactions. "It may be laid 
 
 1 Broom's Com. p. 268. Mercantile Law, Com. 1855, p. 27, 
 
 ' For an explanation of the dis- and Ap. p. 13.3. 
 
 tinction between legal and equitable * Story's Conflict of Laws, § 242. 
 
 assets, see Williams's Law of Exeou- * D. 44 7. 21. Story's Conflict of 
 
 tors, 5th ed., vol. ii. p. 1519. Laws, § 280. 
 
 3 See the Second Keport of the 8 Djij g 282. 
 
CHAP. I.] OBLIGATIONS. 203 
 
 down as a general rule," says Chancellor Kent, " that negoti- 
 able paper of every kind is construed and governed, as to the 
 obligation of the drawer or maker, by the law of the country 
 where it was drawn or made ; and, as to that of the acceptor, 
 by the law of the country where he accepts ; and, as to that 
 of the indorsers, by the law of the country in which the 
 paper was indorsed." i 
 
 In illustration of this rule, two adjudged cases may be re- 
 ferred to. In England an acceptance of a bill of exchange 
 binds the acceptor to payment at all events. Not so by the 
 law of Leghorn ; for, if the acceptor has not sufficient effects 
 of the drawer in his hands at the time of acceptance, and the 
 drawer fails, the acceptance becomes void. An acceptance 
 in Leghorn in these circumstances was accordingly found to 
 import no obligation upon the acceptor.^ 
 
 Again, though a blank indorsement of a promissory-note is 
 valid by the law of England, it is not so in Erance, where 
 certain formalities are required ; and therefore such an in- 
 dorsement in Erance will not entitle the holder to recover 
 against the maker in an English court.' To some this doc- 
 trine may appear to be a departure from the rule that the 
 law of the place of payment is to govern. But it is not so. 
 For the drawer and indorsers of a bill of exchange only be- 
 come bound on the failure of the drawee to reimburse the 
 holder after due notice at the place where they entered into 
 the contract.* 
 
 It is a general rule that whatever constitutes a good defence 
 by the law of the place where the contract is made or is to 
 be performed, is equally good in every other place where the 
 question may be litigated. This proceeds upon the principle 
 that the same law which creates the charge is to be regarded 
 when it operates in discharge of the contract.^ 
 
 1 Kent's Practical Treatise on 3 Trimbey «. Vignier, 1 Bing, New 
 Commercial and Maritime Law, p. Cases, 151. Story, § 316 a. 
 
 378 note. * Story's Conflict of Laws, § 315. 
 
 2 Burrows v. Jemino, 2 Str. E. ^ ibid. § 331. 
 733. Story, § 265. 
 
CHAPTEE 11. 
 
 OF EEAL CONTEACTS. 
 
 What the Eomans described as obligations contracted re — by 
 the intervention of things — are called by the modems real 
 contracts, because they are not perfected till something has 
 passed from the one party to the other. Of this description 
 are the contracts of loan, de posit, and pledge. Till the sub- 
 ject is actually lent, deposited, or pledged, 7t does not form 
 the special contract of loan, deposit, or pledge. 
 
 Sect. 1. — Contract of Loan. 
 
 There are two sorts of loan — one of things that may be used 
 without destroying them, and the other of things which are 
 consumed by the use that is made of them. The first kind 
 was called by the Eomans commodatum . or loan for use ; the 
 second was called mutuum, or loan for consumption. 
 Commodate Commodate is a contract whereby the owner of a thing 
 
 loan for use. ■ ■ , ■ i , , , n . . 
 
 gives it in loan to another for a certain use without payment, 
 upon condition that it shall be restored after the purpose is 
 served. It is essential that the loan shall be gratuitous , for 
 if anything were paid for the use, there would be a letting 
 for hire. The lender remains proprietor of the thing lent, 
 and the borrower is obliged to return the same identical 
 thing which he has received, whether it be a horse, a car- 
 riage, or a book, and not another of the same kind.i If the 
 article perish or be lost by accident, without any blame or 
 1 I. 3. 15. 2. 
 
•jajur. 11.J LOAN. 205 
 
 neglect imputable to the borrower, the loss falls on the owner. 
 In this way the Eomans lent not only movable things, bnt 
 also immovables, such as a house to dwell in.^ 
 
 He who borrows a thing, gratuitously, for his own use, is Obligations 
 obliged to take c<ire of it, not only as he takes care of what °* ''"""'"■• 
 is his own, but with all the exactness that is usually observed 
 by a careful and diligent person. " In rebus commodatis 
 talis dihgentia prtestanda est, qualem quisque diligentissimus 
 pater familias suis rebus adhibet." ^ 
 
 The borrower can only use the thing for the purpose for 
 which it was.lent ; he cannot allow another person to use it, 
 nor keep it beyond the time agreed on, nor detain it as aXset- 
 off against any debt due to him by the lender. The l6an 
 may be either for a limited time or for a special occasion. 
 When a thing is lent during pleasiire, the loan is called Pre- 
 carium. The borrower must restore the article in the same 
 good plight in which he received it, subject only to such 
 deterioration as may arise from reasonable use. He is bound 
 to make good all injuiy which befalls the thing while it is 
 in his possession, if the injury was caused by his fault, or 
 was of such a nature that a careful person might have pre- 
 vented it. Thus, if a man borrow a horse, and so maltreat 
 the animal by over-riding it, or otherwise, as to cause its 
 death or render it useless, he will be liable for its value to 
 the owner. In some instances the borrower is held respon- 
 sible for loss by inevitable accident, as when he has impro- 
 perly detained the article boiTOwed beyond the time when 
 he ought to have returned it.; for the loss is then presumed 
 to have arisen from his breach of duty. By the French law 
 this is carried so far, that if the thing lent perish by an acci- 
 dent which the borrower could have guarded against by 
 employing a similar thing belonging to himself ; or if, not 
 being able to save but one of the two things, as in a case of 
 accidental fire, he has preferred his own, he is held respon- 
 sible for the loss of the other to the lender.^ 
 
 Mutuum is a gratuitous loan of things intended for con- Mutuum. 
 
 » I. 3. 15. 2. 5 Code Civil, art. 1882. 
 
 2 D. 13. 6. 1. pr. I. 3. 15. 2. 
 
20G LOAN. [PAET III. 
 
 sumption, which are usually estimated by number, weight, 
 or measure, such as money, corn, Vine, and the like, on con- 
 dition that the borrower shall restore, not the same identical 
 things, but as much of the same kind and quality.^ From 
 the nature of this contract, the property of the thing lent 
 passes to the borrower, and if it perish from any cause, the 
 loss falls on him. The lender becomes a mere creditor for 
 the value ; and this distinction is important in bankruptcy. 
 
 In the loan of corn, wine, and other articles of the like 
 nature, the borrower must restore as much of the same kind 
 and quality as he received, whether the price of the com- 
 modity has risen or fallen in the market. Should he fail to 
 satisfy his obligation, he wiU be responsible to the lender for 
 the value of the article, having regard to the time and place 
 when it should have been delivered. The action under which 
 the lender established his claim against the borrower was 
 called condictio certi. By the Macedonian senatus-consul- 
 tum, it was ordained, that any one who should lend money 
 to a son under the power of his father, without the father's 
 consent, should have no action for its recovery. 
 
 In a loan of money under mutuum, the borrower was not 
 obliged to pay interest on the sum received. If it was in- 
 tended that interest should be paid, a special engagement 
 to that effect by the debtor was indispensable ; and then 
 interest became exigible, not under mutuum, but in virtue of 
 express contract, by stipulation or otherwise. 
 
 Obligation By the Eomau law interest was due ex lege, or by agree- 
 interTstat ment. In contracts SowflB /iZei interest was also due «« mora, 
 ^'""°' where there was undue delay in paying the capital.^ For, 
 
 according to Ulpian, he pays less who pays late — minus 
 
 solvit qui tardive solvit? The capital sum was called sors or 
 
 caput, and the interest fcenus or usurce. 
 
 Among the Eomans the legal rate of interest varied very 
 
 much at different times. The Twelve Tables prohibited any 
 
 ' I. 3. 15. pr. D. 22. 1. 32. 2. 
 
 ^ " In bonsB iidei contractibua ex ' D. 50. 17. 12. 1. 
 mora usuraB debentur. " — Marcianus, 
 
CHAP. II.J LOAN. 207 
 
 one from exacting more than the unciarum fmnus} This 
 expression has given rise to much controversy. The Eoman 
 pound (as) was frequently used in calculations to denote a 
 unit or integral sum, and was divided into twelve parts or 
 ounces ; and it is now generally supposed that the unciarum 
 fcsnus, or uncial interest, was one-twelfth part of the capital 
 for the year, that is %\ per cent per annum. Mebuhr, how- 
 ever, is of opinion that this rate was introduced for the year 
 of ten months ; and if this theory be correct, then 8J per 
 cent for a year of ten months will be exactly 10 per cent for 
 a year of twelve months.^ Towards the close of the repub- 
 lic, the maximum rate of interest, called usurce centesimce, 
 was 1 per cent per month, or 12 per cent per annum.' After 
 many changes, Justinian at last regulated the rates of interest 
 by a scale, which varied according to the condition of the 
 creditors. Persons of illustrious rank could lend money at 4 
 per cent ; ordinary persons at 6 per cent ; merchants at 8 per 
 cent ; and for maritime risks, which were formerly unlimited, 
 the interest was not to exceed 12 per cent.* 
 
 It was uplawful to charge interest upon interest, which 
 was called anatocismus? 
 
 Pinally, if the interest was allowed to accumulate on a 
 debt till it exceeded the capital, the surplus was not allowed 
 to be charged.^ 
 
 In this country the rate of interest has been usually regu- interest 
 lated by law, and has varied at different times. A statute counky. 
 of the thirteenth year of Queen EHzabeth limited the rate of 
 interest to 10 per cent per annum ; a statute of James I. to 
 8 per cent per annum ; a statute of Charles II., in 1660, to 
 6 per cent ; and a statute of Queen Anne, in 1713, to 5 per 
 cent. Mr Bentham pointed out the impolicy of these restric- 
 tions on the trade in money in his 'Defence of Usury,' 
 published in the year 1787 ; but so deep-rooted was the pre- 
 judice against the rapacity of money-lenders, that more than 
 
 1 Tac. Ann. vi. 16. " C. 4. 32. 26. § 1. 
 
 2 Niebuhr, Rom. Gesohichte, vol. = C. 4. 32. 28. 
 
 ii. p. 431-439. " C. 4. 32. 27. § 1. Marezoll, 
 
 3 Maynz, § 266. § 121. 
 
208 LOAN. [PABT in- 
 
 half a century elapsed before the system of restriction was 
 abandoned. At length, after some experimental relaxation in 
 the case of bills of exchange, the usury laws were finally 
 repealed by the Statute 17 & 18 Vict. c. 90, passed in ,1854 
 Where interest is payable upon any debt or sum of money 
 by any rule of law, or upon any contract, express or implied, 
 it is declared that the same rate of interest shall be recover- 
 able as if the Act had not been passed.^ 
 
 By the law of England, " interest is and always was pay- 
 able where there has been a contract to that effect express or 
 to be implied from circumstances, the usage of trade, or the 
 mode of dealing between the parties, and also upon a bond, 
 bUl, or promissory note. In most other cases there was a 
 considerable dispute upon the question of interest, and the 
 leaning of the courts seemed, on the whole, against allowing 
 it. However, by Statute 3 & 4 WiU. IV. cap. 42, it is enacted, 
 that upon all debts, or sums certain payable at a certain time 
 or otherwise, the jury, on the trial of any issue or inquisition 
 of damages, may, if they think fit, allow interest for the 
 creditor at a rate not exceeding the current rate of interest 
 from the time when such debts or sums certain were payable, 
 if such debts or sums be payable by virtue of some written 
 instrument at a certain time ; or, if payable otherwise, then 
 from the time when the demand of 'payment shall have been 
 made in writing, so as such demand shall give notice to the 
 debtor that interest wiH be claimed from the date of such 
 demand until the time of payment ; provided that interest 
 shall be payable in all cases in which it is now payable by 
 law." 2 
 
 In Scotland, interest is due tx mora as well as ex pacta. 
 So, in many cases, an implied agi'eement to pay interest is 
 held to arise from any undue delay in paying the principal 
 sum ; but in regard to all claims or accounts upon which in- 
 terest is not due, either by law or agreement, it has been 
 said, no demand for interest can be made, till after they have 
 been duly rendered and payment has been required.* 
 
 1 Stat. s. 3. p. 545, 546. 
 
 ^ Smitli's Mer. Law, 6th edition, * More's Stair, vol. i. p. 78, notes. 
 
uaruaiT, 209 
 
 Sect. 2. — Deposit. 
 
 Deposit is a contract by whicli the owner places a thing Nature and 
 in charge of another to keep it gratuitously and restore it on tl^^".' 
 demand. The property and the risk remain with the deposi- 
 tor, so that if the subject perish accidentally the loss falls on 
 him. The depositary is bound to preserve the subject with 
 reasonable care, and to exercise the same vigilance as he does 
 in his own affairs. He is not entitled to make any use of 
 the deposit, unless expressly or tacitly authorised to do so. 
 As a general rule, he is liable only for gross neglect, because 
 he derives no benefit from the transaction.^ But he will be 
 held responsible for ordinary neglect, if he come under a 
 special undertaking for safe custody, or officiously propose 
 to keep the subject without being asked to do so, or if he 
 receive compensation for the deposit. In this last case 
 the contract ceases to be a gratuitous deposit, and resolves 
 into locatio ojperarum. The depositary is bound to restore 
 the subject, with all its fruits and accessories. On the 
 other hand, he is entitled to be reimbursed of all necessary 
 charges. From the exuberant trust implied in deposit, 
 the subject deposited cannot be retained as a set-off for 
 any separate debt or claim due to the depositary by the 
 owner. 
 
 Sufferers from fire, shipwreck, or other calamity, might be NeceFsary 
 compelled by circumstances to leave their goods in the hands '^^'"'"' 
 of persons wholly unknown to them, and this was called by 
 the Eomans depositum miserahile. In that class of cases the 
 depositary who proved unfaithful to his trust was liable to 
 be sued under a praetorian action for double the value of the 
 articles embezzled.^ 
 
 When a subject was placed in neutral custody to abide the Sequestra- 
 issue of a lawsuit or reference for determining the right, this 
 kind of deposit was called by the Eomans sequestration. It 
 might be either voluntary or judicial, and the condition of 
 every such deposit was, that the subject should be delivered 
 
 1 D. 13. 6. 5. 2. TJlpian. ^^ D. 4. 9. 1. § 1 and 3. 
 
210 DEPOSIT. [^^^'^ "^• 
 
 to the person wlio should he found to have the best right 
 to it. 
 
 Edict By an edict of the Eoman pr^tor, the policy of which has 
 
 Caupoies. heen generally adopted in modern Europe, as well as by the 
 North American States, shipmasters, innkeepers, and stablers, 
 are responsible for the luggage and effects of travellers in- 
 trusted to their care, or brought into the ship, inn, or stable. 
 The edict is in these words ;—" Nautse, caupones, stabularii, 
 quod cuj usque salvum fore receperint, nisi restituent, in eos 
 judicium dabo." ^ Under nautce are comprehended carriers 
 by water ; but the principle has been extended in this coun- 
 try to land-carriers, whose responsibility is in some respects 
 more stringent than it appears to have been by the Eoman 
 law. Caupones are the keepers of inns, where travellers are 
 accommodated with food and lodging. These inns abounded 
 at Eome, and along all the great roads of Italy, as appears 
 from Horace's description of his journey from Eome to 
 Brundusium (Sat. i. 5); and the persons who kept "such 
 places of public entertainment were held in low estimation 
 among the Eomans. " It is necessary," says Ulpian, in com- 
 menting on the edict, " to confide largely in the honesty of 
 such men ; and if they were not held very strictly to their 
 duty, they might yield to the temptation to commit a breach 
 of trust, and even enter into secret leagues with thieves." ^ 
 Rules of re- On grouuds of public policy, therefore, innkeepers were 
 unTerS. ^^eld responsible for the loss or damage of goods deposited 
 with them by their guests, whether arising from the acts of 
 the servants of the inn or of strangers. When the goods are 
 stolen, either by one connected with the inn, or by some 
 other person who obtains access to the premises, the loss 
 must be made good to the owner ; for theft is no excuse, the 
 edict being intended to protect travellers both against negli- 
 gence and dishonesty. But the innkeeper is not bound to 
 repair loss or damage occasioned by inevitable accident or 
 superior force, such as lightning, tempest, popular tumult, 
 piracy, robbery, or the like. An innkeeper was held not 
 ' D. 4. 9. 1. pr. and § 1. ' Ibid. 
 
CHAP. II.] DEPOSIT. 
 
 211 
 
 liable for the value of horses placed in his stables, which 
 were destroyed by an accidental fire ; this, in the absence of 
 any proof of negligence, being regarded as a damnum fatale} 
 The same principle seems to have been applied to a loss 
 occasioned by robbers or housebreakers, who were convicted 
 and transported.^ It was never doubted in Scotland, any 
 more than in England, that the responsibility of innkeepers 
 under the edict extends to theft.^ Professor Bell thinks they 
 are also liable for robbery * ; but this seems questionable, as 
 the Eoman law makes a clear distinction between the case 
 where goods are stolen clandestinely and where they are ab- 
 stracted by overwhelming force.^ According to the French 
 law, innkeepers are not responsible where the goods belong- 
 ing to their guests are feloniou^yabstracted, either by an 
 armed force, or any other superior force ; but they are 
 answerable, as in this country, for theft or damage, whether 
 committed by the servants of the inn or by strangers.^ 
 
 By the Act 26 & 27 Vict. c. 41, an innkeeper is not 
 liable for loss or injury to goods or property brought by any 
 guest to his inn beyond £30, except in the following cases : 
 — 1. Where the property consists of a horse or other live 
 animal, or gear belonging thereto, or a carriage. 2. Where 
 the property has been stolen, lost, or injured through the 
 wilful act or neglect of the innkeeper or his servant. 3. 
 Where the property has been expressly deposited for safe 
 custody with such innkeeper. To entitle an innkeeper to the 
 benefit of the Act, two things are required : 1st, He must not 
 refuse to receive goods for safe custody ; 2d, He must exhibit 
 in the hall or entrance to his inn a printed copy of the first 
 section of the Act. 
 
 A lodging-house keeper makes a contract with every man 
 that comes, and stands in a different situation from an inn- 
 keeper, who is bound, without making any special contract, 
 to provide lodging and entertainment at a reasonable price 
 
 1 Macdonell, 15th Dec. 1809, F. C. « 1 Bell's Com., p. 469. 
 
 2 Watling, lOth June 1825. « D. 4. 9. 3. 1. Kent's Com., 10th 
 
 3 Eichmond v. Smith, 8 Barn. & ed., vol. ii. p. 819. 
 Ores., 9. Kent v. Shuckard, 2 B. & ' Code CivU, art. 1953. 
 Ad., 803. 1 Bell's Com., 470. 
 
212 
 
 PLEDGE. 
 
 [PABT III. 
 
 to all comers, so far as his means of accommodation extend. 
 The edict, therefore, has been held not to extend to lodging- 
 house keepers.^ 
 
 Sect. Z.— Pledge. 
 
 Nature of 
 pledge. 
 
 Pactum 
 antichrpsis. 
 
 Lex com- 
 
 missoria 
 
 abolished. 
 
 Pledge is the delivery of a thing to a creditor as a security 
 for money due, on condition of his restoring it to the owner 
 after payment of the debt, and with a power of sale if the 
 debt should not be paid. Hypothec is a security established 
 by law to the creditor upon a subject which continues in the 
 debtor's possession.^ 
 
 Immovables, such as lands and houses, as well as corporeal 
 movables and other things, might be the subject of pledge by 
 the Eoman law. As the contract is for the benefit of both 
 parties, the creditor is bound to bestow ordinary care and 
 diligence in the preservation of the subject. He is respon- 
 sible for culpa levis. As the pledge continues the debtor's 
 property, if it be lost from unavoidable accident, or perish 
 from intrinsic defect, the creditor is not answerable, and may, 
 notwithstanding, enforce payment of his debt. But in such 
 a case it is not sufficient for the creditor to allege that the 
 pledge is lost ; he must show how the loss occurred, and that 
 it was not in his power to prevent it. 
 
 The creditor, though in possession of the pledge, could not 
 use it, or take the profits of it, without a contract to that 
 effect. He was bound to account for these profits, but he was 
 entitled to an allowance for all necessary expenses laid out 
 on the subject. By the pactum antichresis the creditor was 
 allowed to take the profits in lieu of the interest on his debt. 
 It might be made a condition of the contract, by the lex com- 
 missoria, that the thing pledged should become the absolute 
 property of the creditor if the debt was not paid at the time 
 agreed on. But as this condition was found to be a source of 
 great oppression and injustice, it was prohibited by a law of 
 Constantine, a.d. 326.^ 
 
 1 1 Bell's Com., 469. Thompson 
 V. Lacy, 1819, .3 Bam. & Aid., 283. 
 
 2 D. 20. 1. C. 8. 14. 
 s C. 7. 35. 
 
CHAP. II.] PLEDGE, 213 
 
 A thing might be pledged to several persons in succession, 
 ■whose claims were to be satisfied according to their priority 
 in time. To this rule there were some exceptions ; for in- 
 stance, where a subsequent creditor advanced money, which 
 was applied to the preservation of the thing pledged, such as 
 a ship, he was allowed a preference.^ A similar principle is 
 recognised in our law as to money lent on bottomry bonds. 
 
 The pledge covers the debt and interest, and all necessary Pledge 
 expenses. When these are paid, the debtor is entitled to tnlSL^^^' 
 have the pledge restored to him. By the French Code the """^ ""'''• 
 holder of a pledge has a right of retention for other debts due 
 to him from the pledger, though not specifically charged on the 
 subject pledged.^ In England the creditor is not allowed to 
 retain the pledge for any other debt than that for which it 
 was given ; and although it has been said that a different 
 rule prevails in Scotland, this seems questionable under 
 recent decisions.^ 
 
 After the term of payment is passed the creditor has a Power of 
 right to sell the pledge, and retain his debt out of the produce ** ^' 
 of the sale. If there be a deficiency, he has a personal action 
 to recover the balance from the debtor, and if there be a 
 surplus the debtor is entitled to it. By the Eoman law the 
 power of sale was to be exercised pursuant to the terms of 
 the contract, and this might be done without judicial autho- 
 rity. If there was no special agreement to regulate the 
 matter, it was declared, by a constitution of Justinian, that 
 the sale should not proceed tiU two years had elapsed from 
 the date of the notice given to the debtor, or of a judicial 
 sentence obtained against him.* In England, after default 
 by the debtor in complying with his engagement, the creditor 
 may sell without judicial process, upon giving reasonable 
 
 ' D. 20. 4. 5. ing delivery of the subject is paid. 
 
 ^ Code Civil, art. 2082. If his title be limited, he can retain 
 
 'National Bank «. Forbes, 3d Deo. only for the payment of that parti- 
 
 1858, 21 Sess. Ca., 79 — Observed: oular debt which is secured by his 
 
 "If the title of possession be un- possession." — Loi-d Justice - Clerk 
 
 limited as a title of property, the Inglis. 
 
 party is entitled to retain tiU every * C. 8. 34. 3. Justinian. 
 
 debt due to him by the party demand- 
 
214 
 
 PLEDGE. 
 
 [past III. 
 
 Expiry of 
 pledge. 
 
 Tacit 
 hypothecs. 
 
 notice to the debtor to redeem.^ A judicial sentence is re- 
 quired to warrant the sale in Scotland, and the same rule is 
 followed in Prance.^ 
 
 A pledge is determined by the destruction of the subject, 
 by the payment of the debt, by the creditor releasing the 
 debtor, and in various other ways. 
 
 In connection with this subject, it may be observed that 
 the business of pawnbroking, one species of pledge, is in this 
 country placed lender special regulations by the Acts 39 & 
 40 Geo. III. c. 99, and 9 & 10 Vict. c. 98.* 
 
 Tacit hypothecs were recognised by the Eoman law to a 
 much greater extent than in modem times. Among other 
 instances the following may be mentioned : — 1. The public 
 treasury had a preference by tacit hypothec over all the pro- 
 perty of a person indebted to the Fisc. 2. If money was 
 lent for the repair of a house, the building was hypothecated 
 to the creditor for the debt. 3. The proprietor of a rural 
 subject had a tacit hypothec for his rent over the fruits be- 
 longing to the tenant : the landlord of a house or shop or 
 warehouse had a similar hypothec over the movables brought 
 into them by the tenant.^ 
 
 Sect 4. — Innominate Contracts. 
 
 Their diffe- Before leaving the subject of real contracts, we require to 
 notice those called by modem jurists innominate, because 
 they have no special names. They are classed by Paulus 
 under four general heads: Do ut des; do ut facias; facia 
 ut des; facio ut facias. It was essential that something 
 should be actually given or performed by one of the parties 
 in order to constitute an obligation against the other. 
 
 Exchange. One of the most important of these innominate contracts is 
 exchange {permutatio), which is perfected when one of the 
 
 ^ Story's Com. on the Law of Bail- 
 ments, p. 206. 
 
 ^ 2 BeU's Com., 22. Code Civil, 
 art. 2078. 
 
 * See also 25 and 26 "Vict. c. 101 
 s. 311 et seq. 
 
 5 C. 20. 2. § 3, 4, 7. 
 
CHAP. II.] INNOMINATE CONTRACTS. 215 
 
 parties has given a tiling, in order that he who receives it 
 may give another thing : — Bo ut des. In all such cases the 
 person who performed his part had an option either to sue 
 the other party for performance by an action jorosscWgto 
 verbis, or to renounce the convention and recover back the 
 thing given by him by the Gondidio causa data causa non 
 secuta} 
 
 - D. 19. 5. 5. § 1 and 2. 
 
CHAPTER III. 
 
 OF OBLIGATIONS CONTEACTED BY WOKDS OE WKITmG. 
 I. — ROMAN LAW. 
 
 stipuia- The verborum dbUgatio of the Eomans was contracted by 
 """■ uttering certain formal words of style, an interrogation being 
 put by the one party and an answer being given by the other. 
 These obligations were caUed stipulations, and were binding 
 although without consideration. But a mere promise given 
 without an interrogation was invalid as a nudum pactum. 
 In stipulations the question and answer must exactly cor- 
 respond, thus : — " Quinque aureos mihi dare spondes ? " — 
 "Spondee." "Promittis?"— "Promitto." "Dabis?"— "Dabo." 
 " Fades ?"—" Faciam." 
 
 A stipulation might be absolute or conditional, and two or 
 more persons might be concerned on either side of the con- 
 tract. Where several persons bound themselves conjunctly 
 and severally for the performance of the whole obligation, 
 each was bound as if he had been sole debtor, and the creditor 
 might sue whichever he pleased for the whole debt. The strict 
 forms of stipulation were abolished by the Emperor Leo, so 
 that a contract might be entered into by any words which 
 clearly expressed the intention of the parties.'^ 
 Cautionary Fidejussio was a contract by which a person bound him- 
 obiigations. gg^. ^g surety to fulfil the obligation of another, in case of the 
 failure of the principal obligant. The obligation of the surety, 
 which was usually entered into by stipulation, but might be 
 reduced to writing, extended not only to the surety but to his 
 1 1. 3. t. 16, 17, and 20. D. 45. 1. C. 8. 38 and 39. 
 
CHAP. III.] WRITTEN OBLIGATIONS. 217 
 
 heirs. A surety might he interposed in natural as well as in 
 civil obligations, so that he was sometimes liable to be' sued 
 when the principal was not ; but although the cautioner 
 might be liable for less, he could not be bound for a greater 
 sum than the principal. "Where there are several sureties, each 
 is liable in solidum to the creditor ; but they are all equally 
 liable in relief to each other. 
 
 Sureties by the Eoman law are entitled to the benefit of 
 discussion — that is, they may insist that the principal debtor 
 should be first sued, unless the creditor can show that it 
 would be useless to do so in consequence of insolvency or 
 absence. They have an action to recover from the principal 
 debtor whatever they have lawfully paid on his account. 
 They may also require an assignation of the debt from the 
 creditor to enable them to operate their relief against co- 
 sureties for their shares. 
 
 By the Senatus-consultum Velleianum a cautionary obliga- 
 tion by a married woman was ineffectual. To this rule some 
 exceptions were introduced before the time of Justinian, who 
 ordained that such an obligation should be absolutely null, 
 unless it was constituted by a public instrument signed by 
 three witnesses.^ 
 
 In Britain all cautionary obligations and guarantees must 
 be in writing. Sureties are not entitled to the benefit of dis- 
 cussion, if there be no express stipulation to that effect in the 
 instrument of caution. Any discharge by the creditor to one 
 cautioner without the consent of the other sureties, operates 
 as a discharge to aU.^ 
 
 The ohliaatio Uteris, in the Eoman law, was a written ac- Obligations 
 
 ■• ■ n 1 • . 1 f. •" ■writing. 
 
 knowledgment of debt, and was chiefly used m the case of a 
 loan of money, giving rise to an action called condictio in 
 chirographo. The creditor could not sue upon the note 
 within two years from its date, without being exposed to the 
 exceptio non numerates pecunice, whereby he was bound to 
 prove that the money was in fact paid to the debtor. But 
 after the lapse of two years from the date of the obligation 
 this plea was excluded.^ 
 
 1 I. 3. 21. D. 46. 1. C. 8. 41. ^ i. 3. 22. C. 4. 30. 
 
 " See 19 & 20 Vict. c. 60, s. 6, 5, 9. 
 
218 
 
 WRITTEN OBLIGATIONS, 
 
 [pAET III. 
 
 II. ENGLISH AND SCOTTISH LAW. 
 
 English It has already been explained that, by the law of England, 
 
 doctrine as consideration is presumed when the contract is under seal, 
 
 -to consider- ^ i i • • "Ul 
 
 ation. but as a general rule, a contract not under seal is mcapaoie 
 of being enforced by legal proceedings, unless it be supported 
 by a consideration, according to the maxim of the civil law, 
 "& nudo pacta non oritur actio." Upon this subject Dr 
 Browne observes : — " Ex nudo pacto non oritur actio is the 
 rule of the civil law as well as of ours ; but the meaning of 
 nudum pactum is very different in the two laws. With them 
 a verbal agreement, if attended with a certain solemn form 
 of words, and then called a stipulation, was valid, though 
 without consideration, and not nudum pactum. With us, all 
 verbal agreements without consideration are invalid and 
 nuda pacta. With them' agreements, though in writing, at 
 least until ratified by time, did not import a consideration ; 
 and even though they actually expressed one, it might be 
 disputed during that time. With us deeds import a conside- 
 ration ; but writings of a less solemn nature do not, unless 
 negotiable at law and the interests of third persons concerned ; 
 they may be evidence of the agreement or intent of the par- 
 ties, but not conclusive evidence of sufficient consideration.'"^ 
 As already mentioned, it is no longer necessary in England 
 that the consideration for a written guarantee should appear 
 in the writing.^ 
 
 In Scotland it is not essential to the validity of an obliga- 
 tion that it should be granted for a valuable consideration, or 
 indeed for any consideration whatever ; the rule of the civil 
 law, that no action arises from a naked paction, being rejected, 
 and an obligation undertaken deliberately, though gratuitously, 
 being binding. This is in conformity with the canon law, 
 " by which every paction produceth action, et omne verbum 
 de ore fideli cadit in debitum."^ 
 
 Does not 
 hold in 
 Scotland: 
 
 1 Browne's View of the Civil Law, 
 1802, voL i. p. 358, note. 
 
 = Act 19 & 20 Vict. 0. 97 (1856), s. 3. 
 3 Stair, 1. 10. 7. 
 
CHAPTER IV. 
 
 OF CONTKACTS PEEFECTED BY CONSENT ALONE. 
 
 Contracts perfected by consent alone are usually classed Consensual 
 under four heads: 1st, Sale; 2d, Location, or hiring; sd/™'"^"''- 
 Partnership ; and, 4th, Mandate. All these are considered 
 contracts loncefidei, and will be considered in their order. 
 
 Sect. 1. — Sale. 
 
 EOMAN LAW. 
 
 Sale is a contract, by which one person becomes bound to Nature and 
 
 form of ' 
 contract. 
 
 deliver a subject to another, with the view of transferring the '''™ °^ 
 
 property in consideration of a money price. When one com- 
 modity is given in return for another, this constitutes ex- 
 change, not sale.^ 
 
 By the Eoman law all contracts of sale were good without 
 writing, to whatever value they extended. Apart from the 
 personal capacity to contract, three things were required 
 for sale : a subject, a price, and the consent of the parties. 
 Though consent alone was generally sufficient, yet if it was 
 agreed by the parties that the contract should be reduced 
 into writing, the sale was held to be incomplete, and either 
 party was at liberty to resile tiU the writing was formally 
 executed.^ 
 
 All things adapted to commerce and susceptible of appro- what may 
 priation may be sold, unless the sale of them is prohibited by ^ ^° " 
 
 1 I. 3. 23. 2. " I. 3. 24. pr. 
 
220 SALE, [PAET III. 
 
 law. There may be a valid sale of a tMng whicli is not in 
 existence at the date of the contract, as the future produce of 
 an estate ; and even the chance of gain may be sold, such as 
 the hope of a succession or the cast of a net. 
 
 Price. The price must be certain, or capable of being ascertained; 
 
 but it may be fixed by a reference to a third party.^ When 
 an article is sold and delivered, and nothing is said about the 
 price, the fair value or market-rate, as fixed by custom, is 
 understood to be in the view of the parties. 
 
 Lffisio ultra When the price fell short of one-half of the value of the 
 imi mm. |.]^jjjg g^j^j^ ^j^g Seller was entitled to rescind the contract, on 
 the ground of lesion, unless the buyer consented to pay the 
 deficiency in the price.^ This doctrine proceeded on the 
 erroneous notion that the price in sale should be equal to the 
 value of the thing sold, in place of being the sum agreed upon 
 between the parties, which ought always to be binding where 
 no fraud or deceit is practised. Some writers have supposed 
 that the buyer was equally entitled to rescind the contract 
 when he suffered lesion beyond one-half of the price ; but 
 there is no authority for that doctrine.^ 
 
 Warranty By the Eoman law the seller was held to be bound by the 
 
 f^itef nature of the contract, and without any stipulation, to war- 
 rant the thing sold to be free from such defects as made it 
 unfit for the use for which it was intended. When the sub- 
 ject did not answer this implied warranty, the sale might be 
 set aside, and restitution of the price obtained. In such a 
 case the ordinary remedy of the buyer was to rescind the 
 contract by an actio redhibitoria, which required to be raised 
 within six months from the date of the sale.* 
 
 Not only was the seller bound by the Eoman law to war- 
 rant the thing sold against such faults as rendered it unfit for 
 its proper use; but even where the defect complained of was 
 of a slighter kind, so as merely to diminish the value, he was 
 liable to repay as much of the price as exceeded what the 
 buyer would have given, if he had known the defect. This 
 obligation was enforced by the actio quanti minoris, which 
 required to be brought within a year after the sale ; but no 
 1 I. 3. 23. 1. 2 C. 4. 44. 2. 3 Maynz, § 297. * Ibid. §296. 
 
CHAP. IV.] SALE, 221 
 
 such proceeding is allowed in modern practice, being wholly 
 inconsistent with the interests of commerce. 
 
 As a general rule, warranty against defects was implied in 
 the Eoman law ; but it was in the power of the parties to 
 derogate from this rule by special convention. So the seller 
 could stipulate that he should not be held to warrant against 
 any defects whatever, or any particular defects specified ; and 
 such clauses were valid where there was no fraud. 
 
 The seller was not bound to deliver the subject till the Obligation 
 price -was paid, unless the bargain was upon credit ; and if "^ '^^'"'^'^y' 
 payment was delayed after the term, interest was due. 
 
 It was an established rule of the Eoman law that the pro- 
 perty of the thing sold was not transferred to the purchaser 
 by the contract alone, without delivery actual or construc- 
 tive. Where the same thing was sold by the owner to two 
 different persons, and no delivery was given to either of 
 them, the first purchaser was preferred in respect of the 
 priority of his contract; but if the second purchaser ob- 
 tained possession under a bona fide, title, he was preferred to 
 the first. 
 
 According to the Eoman law, the property, or jus in re, 
 is not transferred by the contract unless it be followed by 
 tradition. By the French Code, immovables pass to the 
 buyer by the so-called contract, which operates as a con- 
 veyance of the jus in re. But if the subject of the sale be 
 movable, the property does not pass by the contract without 
 tradition in a question with third parties : for a second 
 purchaser, who has obtained possession under a hona fide 
 title, is preferred to the first. This exception to the general 
 principle is based on the free circulation of movables, which 
 may pass on the same day through twenty different hands.^ 
 
 As soon as the contract of sale is complete, all the risks of Risk of 
 the thing sold (as well as the profits) pass to the purchaser, ' '°^^ *" 
 though it has not been delivered to him, — Fericulum rei 
 venditce nondum traditce est emptoris. But, in order to the 
 risk passing to the buyer before delivery has been made to 
 
 1 Rogron, Code Civil expliquS, art. 1141. Austin's Lectures on Juris- 
 prudence, vol. iii. p. 206, 207. 
 
222 
 
 SALE. 
 
 [PAET. III. 
 
 Exceptions 
 to general 
 rule. 
 
 Special 
 conditions 
 in sale. 
 
 Wan-anty 
 
 against 
 
 eviction. 
 
 How sale 
 rescinded. 
 
 him by the owner, the subject of the personal contract must 
 be specific, and the price certain. In the case of commodi- 
 ties sold by weight, number, or measure, the contract is not 
 complete till the goods are weighed, counted, or measured. 
 Where the whole wheat in a particular granary, or all the 
 wine in a particular cellar, is sold in the mass for a slump 
 price, the risk passes to the buyer, because nothing remains 
 to be done to complete the contract ; but where any opera- 
 tion of weight, measurement, or the like, is necessary in 
 order to ascertain the price, the quantity, or the particular 
 parcel to be delivered, and to put it in a deliverable state, 
 the contract is incomplete until such operation is performed. 
 Considerable diflBculty sometimes arises in the application of 
 this rule.^ 
 
 The general rule, that the subject. is at the risk of the 
 buyer from the time of the sale, is subject to exceptions : 1st, 
 When the loss has happened by the fault of the seller, by his 
 improper delay in giving delivery, or by neglect of due care" 
 and diligence; 2d, When by special agreement the risk is 
 laid on the seller. 
 
 Conditions might be annexed to sale for the benefit of the 
 seller, such as the pactum legis commissorice and the pactum 
 de retrovendendo. By the first it was agreed that, if the 
 price was not paid within a certain time, the contract should 
 become void, and the buyer be bound to restore the thing 
 sold. By the second, the seller had a power of redeeming his 
 property within a certain time, by paying back the price 
 which he had received for it. 
 
 After delivery the seller was bound to warrant the title to 
 the buyer, and to indemnify him for the loss, if the subject 
 was evicted.^ 
 
 Sale might be rescinded in various ways: 1st, By the 
 mutual consent of seller and buyer ; 2d, By non-performance 
 of some of the conditions agreed upon ; and, 3d, By reason of 
 fraud, force, error, and other grounds of nullity. 
 
 ' D. 18. 1. 35. § Sand 6. Hansen, 4th 
 Feb. 1859, Sess. Ca., vol. xxi. p. 432. 
 
 ^ D. 21. 2. C. 8. 45. 
 
CHAP. IV.] SALE. 223 
 
 II. — ^ENGLISH AND SCOTTISH LAW. 
 
 Before leaving this subject, it may be proper to notice 
 some distinctions between the English and Scottish law of 
 sale. 
 
 In England, under the Statute of Frauds (2 9 Car. II. c. 3), Statute of 
 no contract for the sale of goods, wares, or merchandise for ^'*"''°- 
 the price of ten pounds or upwards, shall be good, except the 
 buyer shall accept part of the goods so sold, and actually 
 receive the same, — or give something in earnest to bind the 
 bargain, or in part of payment, — or that some note or memo- 
 randum in writing of the said bargain be made and signed 
 by the parties to be charged by such contract, or their agents 
 thereunto lawfully authorised. Again, in England, the pro- Rule as to 
 perty in specific goods ready for delivery passes to the buyer of^property. 
 on the making of the contract , and I'eforedelrvery. In Scot- 
 land, a c ontract for the sale °f goodsTw SS/ the ex ceptio 
 shigs^_is_ effectual without writing ; and may be proved bjy 
 oral or other legal evidence. The property of goods sold 
 ^oesnotpass to the buyer by the^mere contract of sale, but 
 remains with the seller, as in the Eoman law, till,„the, goods 
 are delivered . 
 
 An important qualification of the Scottish doctrine of Mercantile ■ 
 delivery, however, has been introduced by the Mercantile Amend- 
 Law Amendment Act, 19 & 20 Vict. c. 60, which enacts that, '°™' ^'='- 
 " Where goods have been sold, but the same have not been 
 delivered to the purchaser, and have been allowed to remain 
 in the custody of the seller, it shall not be competent for any 
 creditor of such seller, after the date of such sale, to attach 
 such goods as belonging to the seller by any diligence or 
 process of law, including sequestration, to the effect of pre- 
 venting the purchaser, or any one in his right, from enforcing 
 delivery of the same; and the right of the purchaser to 
 demand delivery of such goods shall from and after the date 
 of such sale be attachable by or transferable to the creditors 
 of the purchaser." ^ Farther, the seller is now bound by the 
 
 1 Sect. 1. 
 
224 SAXE. 
 
 j^PABT III. 
 
 same Act to deliver the goods to a second or sulDsequent pur- 
 chaser, on payment of the price or performance of the con- 
 ditions of the original contract of sale, and is not entitled, m 
 any question with a subsequent purchaser or others in his 
 right, to retain the goods for any separate debt or obligation 
 aUeged to be due to such seller by the original purchaser.^ 
 Warranty As to implied warranty in sales, the law of England is 
 dSt strongly opposed to it ; and the general rule is stated to be 
 that, "with regard to the soundness of the wares purchased, 
 the vendor is not bound to answer, unless he expressly war- 
 rants them to be sound, or unless he knew them to be other- 
 wise, and hath used any art to disguise them."^ Another 
 English writer, in treating of this point, observes :— "There 
 is no implied warranty of quality in the sale of a chattel ; 
 but if goods are ordered of a tradesman for a particular pur- 
 pose known to the vendor, there is a tacit engagement that 
 the goods shall be fit for it, and correspond with the descrip- 
 tion." 3 On the other hand, the law of Scotland followed the 
 Eoman doctrine of implied warranty, till the matter was 
 regulated bi_bhe Mercantile Law Amend ment Act^ which 
 declares that, " Wliere goodTshanTafter'the passing of this 
 Act, be sold, the seller, if at the time of the sale he was with- 
 out knowledge that the same were defective or of bad quality, 
 shall not be held to have warranted their quality- or suffi- 
 ciency, but the goods, with all faults, shall be at the risk of 
 the purchaser, unless the seller shall have given an express 
 warranty of the quality or sufficiency of such goods, or unless 
 the goods have been expressly sold for a specified and par- 
 ticular purpose, in which case the seller shall be considered, 
 without such warranty, to warrant that the same are fit for 
 such purpose." * 
 stolen '■ In Scotland, no purchaser of stolen goods can acquire 
 ^°°^^' an absolute right to them against the true owner ; but in 
 England, a sale of stolen goods in open market gives the 
 
 1 Sect. 2. V. Attenborough, 3 Exch. 500. 
 
 2 Stephen's Com. on Laws of Eng- * 19 & 20 Vict. ^. 60, s. 5. See 
 land, 4th. ed., vol. ii. p. 75. Yoking, 4th Dee. 1858, where this 
 
 3 Rosooe's Digest of the Law of clause of the Act was held to apply 
 Evidence, 10th ed., p. 332. Morley to the sale of horses. 
 
CHAP. iv.J HIKINa. 225 
 
 purchaser a good title, until the true owner has prosecuted 
 the thief to conviction.^ 
 
 Sect. 2. — Contract of Hiring. 
 
 This contract is of two kinds — ^the hiring of things and Nature of 
 the hiring of work or service. The hiring of things is a con- "''^*'™^^' 
 tract by which one of the parties engages to give the use of 
 a thing to the other for a limited time in consideration of a 
 certain rent or hire. The hiring of work is a contract hy 
 which one of the parties engages to do something for another 
 for a certain hire. In both cases the contract is perfected by 
 consent, and bears a close affinity to sale.^ 
 
 1. Hiring of Things. — All sorts of things which are the Hiring of 
 subject of commerce, whether movable or immovable, may * "'^^' 
 generally be let for hire. But things which are consumed in 
 the use that is made of them, such as current money, coin, 
 wine, and the like, though they may be sold, are not suitable 
 for hiring. 
 
 Leases of lands and houses are granted for a limited term Leases of 
 agreed upon between the parties. Among the Eomans the hoMes. ' 
 usual term for a lease of land was the lustrum of five years. 
 If there was no stipulation to the contrary, the engagements 
 formed by the contract passed to the representatives of both 
 parties, and the lessee might sublet to another. 
 
 The principal obligations of the lessor are — 1st, To put the Obligations 
 
 1 m 1 T • • of lessor. 
 
 lessee in possession of the subject ; 2d, To deliver it m a 
 proper state of repair, and to maintain it in such a condition 
 that it may be fit for the purpose for which it is let ; and, 3d, 
 To guarantee the peaceable enjoyment to the lessee during 
 the currency of the term agreed upon. The tenant of houses 
 is called inquilinus, and the tenant of lands cqlonus.^ 
 
 There was this peculiarity in a lease of houses, that the obligations 
 lessee was bound to quit possession whenever the proprietor ° 
 wanted the premises for his own occupation.* 
 
 ' 7 & 8 G. IV. c. 29, a. 57. Smitk's and 70. 
 Mer. Law, 6tli ed., 486. ^ Maynz, § 299. 
 
 2 I. 3. 25. D. 19. 2. C. 4. 65 « Ibid. § 300. C. 4. 65. 3. 
 
 P 
 
226 
 
 HIRING. i^^'^'' ™- 
 
 As hiring only gave rise to a simple personal obligation a 
 purchaser of the subject let was not bound by the lease ; he 
 could eject the lessee, who could only claim indemnity from 
 the lessor under the warranty. To obviate this result, it 
 was usual to stipulate in a sale that the purchaser should be 
 bound by the current leases. 
 Obligation, The lessee is bound to use the subject well, to put it to no 
 of lessee, ^^j^^^ ^gg ^^^^ tji^t for which it was let, to preserve it m 
 good condition, and restore it at the end of the term. He is 
 answerable for culpa levis, but not for loss occasioned by in- 
 evitable accidents. 
 
 The principal obligation of the lessee is to pay the rent or 
 hire at the stipulated periods. The hire is generaUy fixed to 
 be paid in current money, but when lands are let the rent 
 may consist of a portion of the fruits or produce. The fruits 
 of the ground are hypothecated to the proprietor for the rent 
 of land, and there is a similar hypothec over the tenant's 
 movables for the rent of houses. When two years' rents fall 
 into arrear, the tenant may be ejected. The tenant of a farm 
 is entitled to a remission of his rent if his whole crop is 
 destroyed by an extraordinary and unforeseen accident, such 
 as an inundation, or a hostile irruption in time of war ; 
 but if, during the remaining years of the lease, the loss so 
 sustained is compensated by extraordinary fertility, the tenant 
 is bound to pay the sum previously remitted.^ 
 Tacit relo- The Contract of hiring usually terminated at the expiry of 
 cation. ^^^ stipulated term. If the tenant was allowed to continue 
 in possession after the term, this was construed into a tacit 
 renewal of the lease from year to year, or for such other 
 period as might correspond with the nature of the subject let. 
 All the ordinary conditions of the lease were held to be re- 
 newed in tacit relocation, but the obligation of a surety could 
 not be extended in this manner. The contract also came to 
 an end by the loss or destruction of the subject And the 
 lessee might be ejected before the lapse of the term, not only 
 for non-payment of his rent, but also for damaging the 
 premises or making a bad use of them in any way. 
 
 ' May'nz, § 299, 300. D. 19. 2. 15. 2. Compare with FreDch Civil Code, 
 art. 1769, 1770. 
 
CHAP. IV.] HIRING. 227 
 
 Two rights, partaking in some degree of the nature of 
 leases, but of a more permanent character, called Emphy- 
 teusis and Superficies, have already been noticed. 
 
 2. Hiring of Work or Service. — Most of the general princi- Hiring of 
 pies which regulate the hiring of things apply to the hiring rervke.' 
 of work or service. To distinguish between hiring and sale, 
 Justinian lays down this rule : If a workman furnish all the 
 materials, as well as the work, for a certain price — as, for 
 instance, if a silversmith should undertake to make a piece 
 of plate and to supply the silver for a certain sum — ^this 
 resolves into sale, not hiring ; but if silver be given to the 
 artificer, and he is required to furnish the workmanship only, 
 this is locatio operis} When a builder contracts to erect a 
 house on your ground and to furnish the materials, this also 
 is location ; because the ground, which is the principal sub- 
 ject, belongs to you, and the building foUows it as an acces- 
 sory, — edificium solo cedit.^ 
 
 The person who undertakes to execute a piece of work 
 must perform it in a proper manner and within the time 
 agreed upon. He is bound to bestow upon it due care and 
 skill ; and if, from negligence or ignorance, the work is 
 defective or useless, he is liable in damages to his employer. 
 No man should undertake a work which he is not fully quali- 
 fied to perform. Imperitia culpce enumeratur. 
 
 When a contractor undertakes a work aversione — that is, 
 to be delivered as a whole after it is completed — ^the risk 
 does not pass to the employer till it is finished and approved 
 of. But when the work is to be performed by the piece, or 
 by measurement as it advances, the risk of what is exe- 
 cuted passes to the employer as soon as it is received and 
 measured.^ 
 
 As to the hiring of common labourers or servants, little 
 need here be said. Their rights and obligations, and the kind 
 and quantity of work to be required of them, involve many 
 particulars, which, so far as not expressly fixed by contract, 
 must be determined, in a great measure, by custom. 
 
 1 I. 3. 25. 4. part vii. c. i. 
 
 2 Pothier, Contrat du Louage, ^ d. 19. 2. 36. Florentiuus. 
 
228 
 
 PARTNEKSHIP. 
 
 [PAET III. 
 
 Sect. 3. — Partnershi]). 
 
 I. ROMAN LAW. 
 
 Bights of 
 partners. 
 
 How part- Partnership is a contract whereby two or more persons 
 coStituted. agree to combine property or labour in a common stock for 
 the sake of sharing the gain. There may be partnership in 
 one transaction as well as in a general business. The con- 
 tract is perfected by consent ; and the capital contributed by 
 the partners may be equal or unequal, and may consist of 
 property or labour or both. One of them may furnish money 
 and the other skill or labour alone.^ 
 
 If there be no express agreement on the matter, the shares 
 of profit and loss are divided among the partners equally, but 
 this is generally provided for by the contract. One partner 
 may stipulate for two-thirds of the profit and to bear only 
 one-third of the loss, or even to participate in the profit and 
 to be entirely free from loss ; and these stipulations will hold 
 good as between himself and the other partners, whatever 
 liability he may incur to strangers. But an agreement that 
 one should take all the profit and the other bear all the loss, 
 which is called societas leonina, is invalid. If profit has been 
 obtained in one branch of business and a loss has been 
 suffered in another, the whole transactions must be taken 
 into account in striking the balance of profit or loss.^ 
 
 A partner is bound to exercise the same care and diligence 
 of partners, j^ ^hc business of the company as he does in his own private 
 affairs, and he is answerable to his copartners for loss arising 
 from negligence. He is not liable for loss by fire or robbery 
 or other inevitable accidents. The acts of one partner are 
 not binding on the rest, if he act without authority or beyond 
 the scope of the partnership ; but where there is no such ex- 
 cess of power, his acts on account of the partnership bind the 
 whole partners for profit or loss. A contract made by a 
 partner as an individual, and on his own account, cannot 
 affect the partnership. So, if a partner admit another person 
 1 I. 3. 25. D. 17. 2. C. 4. 37. 2 j. 3. 25. 1, 2. 
 
 Liabilities 
 
CHAP. IV.] PAHTNEESHIP. 
 
 229 
 
 to participate in his share of the profits, this stranger does 
 not become a member of the company in any question with 
 the other partners, nam socii mei socius, socius mens non est} 
 
 If one of the partners has advanced money, or entered into 
 some engagement on account of the partnership, and for 
 ■which it is bound to indemnify him, each of the partners 
 must contribute to the indemnity in proportion to his share 
 in the concern ; and if any of them become insolvent, the 
 solvent shareholders must make up the deficiency according 
 to their respective interests.^ 
 
 Partnership is dissolved by the expiry of the time for which Dissolution, 
 the contract was made ; by mutual consent of the parties ; 
 by one of the partners retiring, especially when no term is 
 fixed, provided this is not done fraudulently or in a way to 
 injure the others ; and, lastly, by the death or bankruptcy of 
 any of the partners.* 
 
 II. FBENCH LAW. 
 
 The French law distinguishes three principal kinds of com- Different 
 mercial partnerships. 1st, Partnership en nom collectif is pirtne«hip 
 that which is carried on by two or more persons under a '" ^'^'^''^■ 
 social firm, each partner being liable for the whole 'engage- 
 ments of the company. 2d, Partnership en commandiU is 
 that which is contracted between one or more partners whose 
 responsibility is unlimited, and one or more persons who are 
 merely money-lenders, and are not liable for any loss beyond 
 the funds lent to the company. Only the proper responsible 
 partners can take part in the conduct of the business. 3d, 
 Anonymous partnership (soci^td anonyme) is that which has 
 no social firm, but is merely distinguished by the nature of 
 the enterprise ; it can only be established by the authority of 
 Government; the management is conducted by the agents 
 of the company ; the shares are transferable, and the holders' 
 liability for loss is limited to the amount of their capital in 
 the concern. Besides these three kinds of partnership, the 
 French law recognises joint adventures between two or more 
 1 D. 17. 2. 20. " D. 17. 2. 67. ' I. 3. 25. 4-8. 
 
230 PARTNERSHIP. [pabt III. 
 
 persons for participating in profit and loss in particular en- 
 terprises or transactions, wliicli are regulated by agreement.^* 
 
 III. — ENGLISH AND SCOTTISH LAW. 
 
 In England By the law of England, a private partnership of two or 
 nXa scpar- more pci'sons is not recognised separately from the partners 
 ate person. ^^ which it is composed. In an action at common law, by or 
 against a private partnership, all the partners must concur 
 individually, either as plaintiffs or defendants. But joint- 
 stock companies are usually empowered to sue and be sued 
 by their public ofQcer, who may be appointed to represent the 
 company as distinct from the individuals composing it.^ In 
 equity, if the partners be numerous, a few may, in certain 
 cases, be permitted to sue and be sued on behalf of the gene- 
 ral body, or on behalf of themselves and other partners having 
 a common interest with them ; but all partners having con- 
 flicting interests must be represented.^ 
 In Scotland In Scotland, a private partnership is deemed a separate 
 rent. ' *' person in law, capable of entering into contracts, of holding 
 personal property, and carrying on legal proceedings by its 
 distinctive name or firm. When the company firm includes 
 the name of one or more partners, as John Bruce & Co., the 
 partnership may sue or be sued by that appellation. But if 
 
 1 Code de Commerce, art. 18-50. managers. So long as they are 
 * Besides the partnerships stated managers their shares are inalienable, 
 in the text, another kind was au- and the share certificates are stamped 
 thorised by a law of 23d May with a declaration that the shares 
 1863, promulgated on the 29th, are inalienable, and are deposited in 
 called SocieU d, BesponsdbiUU the safe of the company. Within a 
 Lvmitie. This partnership may be fortnight after the company is con- 
 formed without the authority of Go- stituted the managers must deposit 
 vernment. The liabiKty of the part- in the Record Office of the Tribunal 
 ners is limited to their capital in the of Commerce a copy of the deed of 
 concern, and they cannot be less than constitution, and a list of the part- 
 seven in number. The capital cannot ners, and other details, which may 
 exceed 20,000,000 francs. The mana- be examined by the public, 
 gers must be proprietors equally of = Lindley's Law of Partnership, 
 a twentieth part of the capital, and p. 720. 
 
 that capital forms a guarantee fund s Lindley's Law of Partnership, 
 
 for the right administration of the p. 776. 
 
CHAP. iv.J PARTNERSHIP. 231 
 
 the firm be descriptive merely, as the Shotts Iron Company, 
 it is necessary that three at least of the partners, described 
 as suing or being sued on behalf of themselves and all the 
 other partners, should be joined along with the descriptive 
 iirm. To these opposite principles in the laws of the two 
 countries many important practical differences may be 
 traced. 
 
 When a partnership becomes bankrupt in England, the Bank- 
 joint property of the partnership, as well as the separate pro- "''"'''• 
 perty of each partner, vests in the assignees ; but the separate 
 creditors of each partner must be first paid in fuU before his 
 separate property can be applied to the debts of the partner- 
 ship. " For the rule as to the application of joint and sepa- 
 rate property to the payment of creditors, is, that the joint 
 estate should be applied to the joint debts ; the separate to 
 the separate debts ; and the surplus of each reciprocally to 
 the creditors remaining on the other. "^ 
 
 In Scotland, the partnership estate may be sequestrated 
 and applied in payment of the creditors of the company; and 
 they have a right to be ranked as creditors for the balance 
 unpaid on the private estates of the partners.^ 
 
 As to joint-stock companies with transferable shares, and Jobt-stock 
 limited liability companies, they are now chiefly regulated """"P™'"'- 
 by Acts of Parliament, and particularly by the 25 & 26 Vict, 
 c. 89,* which applies both to England and Scotland. Under 
 that statute, which takes effect from 2d November 1862, any 
 seven or more persons associated for any lawful purpose may, ' 
 by subscribing their names to a memorandum of association, 
 and otherwise complying with the requisitions of the Act, 
 form an incorporated company, with or without limited lia- 
 bility.^ The liability of the members of a company formed 
 under the Act may be unlimited, or may, according to the 
 memorandum of association, be limited either to the amount, 
 if any, unpaid on the shares respectively held by them, or 
 to such amount as the members may respectively undertake 
 by the memorandum of association to contribute to the 
 
 1 Smith's Mer. Law, 6th ed., 644. * Amended by 30 & 31 Vict. o. 131. 
 
 2 Bell's Com., 660. = 25 & 26 Vict. c. 89, s. 6. 
 
232 
 
 MANDATE. 
 
 [part III. 
 
 assets of the company in the event of its being wound 
 
 up.^ 
 
 There are also numerous raHway compames, and other pub- 
 lic entei-prises, which are governed by special statutes, and 
 certain general acts incorporated therewith. 
 
 Nature of 
 mandate. 
 
 How con- 
 stituted. 
 
 Powers of 
 mandatary, 
 
 Sect. 4. — Mandate. 
 
 Mandate is a contract by which one person confides the 
 management of some business to another, who undertakes to 
 perform it without pay or reward. He who gives the com- 
 mission is caUed the mandant, and he who undertakes it is 
 called the mandatary. It is essential to this contract that it 
 should be gratuitous, because, if any remuneration is given 
 to the agent for his services, the contract is not mandate, but 
 locatio operarum.^ 
 
 Under the emperors, when honoraries to advocates were 
 authorised, they could not pursue for payment by the actio 
 mandati; the magistrate awarded their fees extra, ordinem.^ 
 Brokers, who intervened in the purchase and sale of goods 
 and similar operations (called by the Eomans proxenetce) 
 were allowed a premium for their trouble.* 
 
 A mandate may be constituted verbally, or by letter, and 
 it may even arise rebus ipsis et factis, where one permits 
 another to transact his business for him. The mandatary is 
 not bound to undertake the business ; but when he does so, 
 he must perform it in terms of the orders given, otherwise 
 he will be liable for the consequences of his neglect. He is 
 answerable, not only for fraud and gross negligence, but also 
 for slight faults. 
 
 A mandate may be general or special. When a mandatary 
 is intrusted with general powers, he must exercise a sound 
 discretion within the scope of his employment. If his orders 
 are special and limited, he must strictly follow them. 
 
 The agent who is employed to buy an estate may better 
 the condition of the person who employs him, but cannot 
 
 1 25 & 26 Vict, c 89, a. 7-10. 
 
 2 I. 3. 27. D. 17. 1. C. 4. 35. 
 
 3 D. 50. 13. 1. 10. 
 
 * D. £0. 14. 3. Maynz, § 211. 
 
CHAP. iv.J MANDATE. 233 
 
 make it worse. Thus he may buy for a lower price than 
 what he was empowered to give ; but if he buy at a dearer 
 rate, he cannot recover the excess from his principal.^ 
 
 While the mandatary must act strictly according to the 
 orders given to him, the mandant, on the other hand, is bound 
 to ratify what was done by the agent within the scope of his 
 instructions, and to reimburse the agent for all advances and 
 expenses properly incurred in executing the commission. 
 The rights and obiigations arising out of the contract were 
 enforced by the actio mandati directa, when the mandatary 
 was called upon to account, and by the actio contraria, when 
 indemnity was claimed from the mandant. 
 
 Every mandate is revocable at pleasure ; it may be re- How man- 
 nounced by the mandatary while things are entire ; and it is mtnated. 
 put an end to by the death of either party ; but if the man- 
 datary, while ignorant of the death of his principal, does any 
 act in lona fide within his authority, the representatives* of 
 the principal are bound by what is so done. 
 
 In modern times, the law of principal and agent is of con- Modem 
 stant application in the commercial world, and the rights and **' 
 duties which belong to that relation are very important. But 
 in mercantile transactions agents are generally remunerated 
 for their services. For this reason their responsibility for 
 diligence in the execution of the business intrusted to them, 
 is more rigorously enforced than in the case of a gratuitous 
 mandate.^ StiU the law of England distinctly recognises the 
 principle that an unremunerated agent, standing in the same 
 position as a mandatary in the Eoman law, is liable for ordi- 
 nary diligence adequate to the performance of the duty he 
 has undertaken, as exemplified in the well-known case of 
 Coo'gs V. Bernard.^ There the inandatary undertook, without j 
 pay, to carry brandy from one place to another, and managed 
 the carriage so negligently that one of the pipes was staved, j 
 He pleaded that he had not undertaken to carry it safely ; but [ 
 he was held responsible, on the ground that this was implied, | 
 so far as regards ordinary care.* \ 
 
 1 1. 3. 27. 8. ^2 Lord Raymond, 909. 
 
 2 Code Civil, art. 1992. * Jones on Bailments, p. 58. 
 
Nature of 
 donation. 
 
 CHAPTEE V. 
 
 OF DONATIONS. 
 I. — ROMAN LAW. 
 
 Among the 'pwAa legitima or special conventions whicli might 
 be enforced by action by the new Eoman law, donation was 
 included. Originally it was subjected to many restrictions 
 which afterwards disappeared.^ 
 
 Donation consists in one person giving something from 
 generosity alone, and without any antecedent obligation, to 
 another who accepts it. The subject of the gift may be mov- 
 able or immovable property, or anything having a pecuniary 
 value, such as the release of a debt. To constitute donation 
 there must be an animus donandi on the part of the donor, 
 and acceptance or willingness to accept on the part of the 
 donee. But in pure and simple donations, which confer a 
 benefit without imposing any burden on the donee, acceptance 
 may generally be presumed without any formal act. 
 
 By the ancient Eoman law a pactum donationis gave no 
 right to the donee to sue for performance or delivery of the 
 subject. If the convention was clothed with the form of 
 stipulation it might be enforced; but if not, the donee 
 acquired no right to the thing tiU the property was transferred 
 to him by actual delivery. 
 
 After the time of Antoninus Pius this rigour was relaxed 
 when the donation was between ascendants and descendants, 
 for then any clear declaration on the part of the donor was suf- 
 ficient to give effect to the gift. Justinian went much farther ; 
 he allowed the donee to bring an action for delivery when the 
 donor declared his intention to give a thing, either orally or in 
 writing, even though the form of stipulation had not been ob- 
 served. The donor, however, continued proprietor till delivery. 
 Cincian The Ciucian law de donis, passed in the year of Eome 550, 
 
 prohibited all donations beyond a certain maximum, the 
 amount of which is unknown. It also prescribed the form 
 1 1. 2. 7. D. 39. 5 and 6. C. 7. 54. N. 162. 
 
 law. 
 
OHAP. v.] DONATIONS. 235 
 
 in which donations were to be made by mancipation and 
 tradition. But certain persons nearly connected by the ties 
 of blood were exempted from these restrictions. One of the 
 provisions of the same law prohibited advocates from accept- 
 ing presents for pleading causes ; and this is frequently re- 
 ferred to by Eoman writers. In later times the limitations 
 imposed by the Cincian law entirely disappeared.^ 
 
 Towards the close of the republic, governors of provinces were 
 not allowed to receive presents from persons under their juris- 
 diction. One prohibitory law on this subject contains an excep- 
 tion of eatables and drinkables for a few days' consumption.^ 
 
 Following a principle which had been adopted in some Registered 
 imperial constitutions from the time of Constantine, Justinian donations. 
 ordained that when the gift exceeded the value of 500 solidi, 
 a formal act stating the particulars of the donation should be 
 drawn up and inscribed in a public register. To this rule 
 there were some exceptions, siich as gifts to the emperor, the 
 distribution of prize-money by the military tribunes, sums 
 given for the ransom of captives, and donations mortis causa. 
 Donations not recorded in terms of this law were not wholly 
 nuU, but only in so far as they exceeded the prescribed sum.^ 
 
 By the Eoman law donations, though perfected by delivery, Revocable 
 were revocable by the donor for ingratitude in the donee, as l^g^^^'^^'' 
 for instance by his threatening the life or offering some vio- 
 lence to the person of the donor.* When the donor is not the 
 true owner of the subject, it may be evicted from the donee ; 
 but in that case no recourse lies against the donor, who is 
 only liable to warrant the gift against his own future deeds. 
 
 As to donations between husband and wife, we refer to what 
 we have already said in treating of the law of marriage. 
 
 Besides donations inter vivos, which are intended to take Donatio 
 effect during the life of the donor, there is another kind of ' 
 donation called donatio mortis causa, which under Justinian's 
 law partakes almost wholly of the character of a legacy.^ 
 Such a gift, being made in contemplation of death, is not 
 
 1 Fragmenta Vatioana, De dona- = T>. I. 18. 18. Modestinus. 
 
 tionibua ad legem Cinciam, § 266-316. " Ortolan, Institutes, vol. ii. p. 390. 
 
 Huschke, Jurisprudentije Antejua- * C. 7. 56. 10. 
 
 tinianse qnie supersunt, p. 674 et seq. ' I. 2. 7. 1. 
 Ortolan, Institutes, vol. ii. p. 387. 
 
 ? mortis 
 ■ causa. 
 
236 DONATIONS. [^^'^'^ !"■ 
 
 perfected till death ; it falls by the predecease of the donee, 
 and it is revocable by the donor at any time during his life, 
 whether delivery has taken place or not. By a constitution 
 of Justinian a donation mortis causa, whether declared orally 
 or in writing, required to be made in presence of five wit- 
 nesses; and, as already explained, inscription in a public 
 register was not necessary.^ 
 
 II. FRENCH LAW. 
 
 French Somc peculiarities of the French law regarding donations 
 
 rales as to ^^g sufficiently interesting to deserve notice here. 1. Every 
 
 donatioDB. •' <. i. i j. i 
 
 gift inter vivos' must be in the form of a contract executed 
 before notaries, so as to preserve evidence of the transaction.^ 
 
 2. A person who has no descendants or ascendants among his 
 relations may dispose of his whole estate by gifts inter vivos 
 or by testamentary bequests ; but if he has descendants or 
 ascendants, he can only so dispose of a certain portion of his 
 property fixed by law, and varying, according to the state of 
 his family, from three-fourths to one-fourth of his fortune.^ 
 
 3. Doctors of medicine, surgeons, and apothecaries who attend 
 a person during the malady of which he dies, though entitled 
 to proper remuneration for their services, can take no benefit 
 from any gifts or bequests made by the patient in their 
 favour during the course of that illness.* * 
 
 1 C. 8. 57. 4. he to benefit a universal legatee, and 
 
 ^ Code Civil, art. 931. not tte relations of the testator. 
 
 " Ibid. art. 913 et seq. The presumption of captation is so 
 
 * Ibid. art. 909. absolute andinflexible, that no proof 
 
 * This salutary and wholesome rule will be allowed to show that the tes- 
 is not law either in England or Scot- tator had such superiority of mind 
 land. Every case in these countries that he would not be the victim of 
 is determined upon its own special it. In like manner it is irrelevant 
 circumstances, generally giving rise to plead that the legacy was given 
 to long trials as to whether there not on account of services rendered 
 was imdue influence in fact. The or cares bestowed, but by reason of 
 French courts have rigidly enforced friendship and relationship. Even 
 the rule. A legacy to the doctor who legacies to conjunct persons, such as 
 attended the testator during his last the colleague of the minister of reli- 
 illness has been declared invalid gion, or the partner of the doctor of 
 
 even though the doctor were a rela- the testator, are void Les Codes 
 
 tive. The nullity of the legacy will AnnoUes de Sirey, art. 909. 
 
 be declared, though the effect would 
 
CHAPTER VI. 
 
 OF OBLIGATIONS ARISING FROM QUASI CONTRACTS. 
 
 Certain engagements are formed by implication from cir- 
 cumstances without express agreement, either on the part 
 of the person obliged or of the person to whom he becomes 
 bound. 
 
 Quasi contracts are constituted, without convention, by one 
 of the parties doing something that by its nature either binds 
 him to the other party or the other party to him. 
 
 Under quasi contracts we shall take as examples Neciotio- 
 rum_gs^iOj Indebiti so lutio, and Jactus merciuni navis levandce 
 causa, though this enumeration cannot be considered as com- 
 plete. 
 
 Sect. 1. — Negotiorum Gestio. 
 When a person spontaneously assumed the management of Negotiorum 
 
 ,.,. , i-,i, gestio de- 
 
 the aifairs of another m his absence and without any man- tined. 
 date, this was called negotiorum gestio. In such a case the 
 reciprocal obligations of the parties are very similar to those 
 which arise nnder the contract af mandate. 
 
 The negotiorum gestor is bound to perform any act which he Obligations 
 has begun, as if he held a proper mandate, unless the prin- Ig^J, 
 cipal shall relieve him. Though his responsibility may vary 
 according to circumstances, yet, as his interference is spon- 
 taneous, he is generally obliged to use exact diligence ; nor, 
 according to Justinian, will it suffice to show that he has 
 bestowed the same care which he usually does in his own 
 affairs, if another more diligent person could have transacted 
 
238 
 
 INDEBITI SOLUTIO. [pabt HI. 
 
 the business more profitalDly for tlie principal.^ The agent 
 must strictly account for his management. 
 Obligations On the other hand, the principal is bound to indemnify the 
 of theprin- negotiorum gestor for all advances and expenses properly m- 
 curred on his account, and to relieve the agent from engage- 
 ments entered into by him in the course of his administration. 
 
 Sect. 2. — Indehiti Solutio. 
 
 indebiti sol- Where one, through error, makes payment of what is not 
 utio defined. ^^^^ ^^ ^^^ ^^ Certain circumstances recover it back by an 
 action, which in the Koman law was called condictio indebiti. 
 Thus, if a legacy is paid under a testament supposed to be 
 genuine, but which afterwards turns out to be forged, the 
 person who has received the money may be compelled to 
 
 restore it. 
 Conditions As the obligation to restore is founded solely on equity, 
 reSt^ this action does not Ue, if the sum paid was due in equity 
 or by a natural obligation ; because in such a case there is 
 nothing against good conscience in retaining the money. 
 Neither can restitution be claimed, if he who made the pay- 
 ment knew at the time that no debt was due, it being 
 presumed when this happens that donation was intended.^ 
 Some writers mention as another exception to the rule, the 
 case where money is paid in consequence of a transaction or 
 compromise. But when a sum is so paid, " the transaction 
 itseK creates a debt, though no prior debt had existed." * 
 Effect of Whether money paid under an en-or in law can be recovered 
 
 error in law. ^^^-^ -j^y ^ condictio indebiti is a question which has given rise 
 to much controversy. A constitution in the Code seems to 
 deny restitution where the money has been paid under an 
 error in law, — " Quum quis jus ignorans indebitam pecuniam 
 solverit, cessat repetitio. Per ignorantiam enim facti tan- 
 turn repetitionem indebiti soluti competere tibi notum est ." 
 Controversy Founding on this constitution and other texts, many eminent 
 ciThfns. jurists, such as Cujas, DoueUus, and Voet, maintain that no 
 
 1 1. 3. 28. 1. ' Ersk. Pr. 3. 3. 17. 
 
 2 D. 50. 17. 53. * C. 1. 18. 10. 
 
 "4 
 
UHAP. VI.J INDEBITI SOLUTIO. 239 
 
 action lies to recover money paid by mistake in point of law.i 
 Other authors, among whom we find Vinnius, Ulric Huber, 
 D'Aguesseau, and Muhlenbruch, are of opinion that restitu- 
 tion may be obtained in all cases of error, whether it be an 
 error of fact or an error of law. They contend that as con- 
 ditio indebiti is founded on equity, it can only be excluded 
 by an equitable plea ; that in the whole title of the Digest 
 which treats of condictio indebiti,^ though very long, restitu- 
 tion is never confined solely to an error in fact, or denied to 
 an error in law, but is constantly ascribed to error simply, 
 whether the payment was made on account of what was 
 never due, or of some claim which could not be enforced by 
 reason of a perpetual exception ; and that some passages in 
 the Code in which restitution appears to be denied to an 
 error in law, occur in rescripts which could only be intended 
 to apply to cases where a natural obligation existed, so as to 
 afford a good ground of retention in equity.^ 
 
 In a learned essay, which forms an appendix to the third 
 volume of his 'System,' Savigny has expressed a decided 
 opinion that money which has been paid by mistake iu matter 
 of law, cannot be recovered by the condictio indebiti, unless 
 it can be proved that such ignorance is excusable, and not 
 the result of gross negligence.* A minor was entitled to 
 restitution against the consequences of an error in law, if he 
 sought relief within the quadrienniwm utile, but not after- 
 wards.^ In some exceptional cases restitution could be 
 claimed of what was not due, even when payment was made 
 with full knowledge — as, for instance, in gambling debts and 
 donations between husband and wife.^ 
 
 Of this famous controversy among the civilians as to the Modem 
 effect of an error in law, the framers of the French Code were ^^"'^ '"''• 
 well aware ; and they sanctioned by their authority the doc- 
 
 ■' Voet ad Pand. lib. 12, t. 6, § 7. MuHenbruch founds on D. 50. 17. 
 
 Pothier, Traitd de Condict. Indeb. 206, and D. 36. 4. 1. See also D. 22. 
 
 part 3, sect. 2, art. 3. 6. 8. 
 
 " D. 12. 6. * Savigny, System, vol. iii. app. 8, 
 
 ' Vinnius, Com., lib. 3, t. 28. Quest, s. 35. 
 
 Sel., lib. 1, c. 47. Ulric Huber, Inst., ^ C. 2. 33. 2. 
 
 lib. 3, t. 28. Among other texts ° Maynz, § 359. 
 
240 
 
 LEX EHODIA. [P^^^ l"' 
 
 trine of Vinnius and his foUowers by adopting this general 
 rule :—" When a person who, by error, believed himself to be 
 the debtor, has discharged a debt, he has a right of repetition 
 against the creditor. This right, however, ceases, if the 
 creditor, in consequence of the payment, has destroyed his 
 voucher of debt, recourse in that case being saved to the per- 
 son who has paid against the tru§ debtor."^ Under this rule 
 of the French Code restitution may be demanded without 
 distinction, whether the payment was made under an error in 
 fact or an error in law.^ The Austrian Code adopts the same 
 doctrine.3 The Prussian Code, on the other hand, allows 
 restitution for an error in fact, but not for an error in law.* 
 English and In England the law appears to be settled upon the same 
 faw!''* footing, as explained by Lord ChanceUor Brougham in the 
 case of Wilson v. Sinclair. " When a person pays money 
 under mistake, he has no right to recover that money, unless 
 where it was a mistake in point of fact. If he pays by mis- 
 take in point of law, there was at one time a little doubt in 
 Westminster Hall ; but it is now settled that he has no right 
 to recover it back again." 
 
 In Scotland an opinion prevailed, and seems to have re- 
 ceived effect in several instances, that restitution could be 
 demanded, even where the payment was made under an error 
 in law. But this doctrine has been discredited, if not over- 
 turned, by the opinions delivered in the House of Lords in 
 some recent cases.^* 
 
 Sect. 3. — Lex Rhodia de Jadu. 
 
 Rules of To those who suffer by loss of goods voluntarily thrown 
 foTS"''"" overboard at sea for the common benefit, recompense is due 
 
 1 Code Civil, arf. 1377. Wil. & Sk App. Cases, 445. 
 
 ^ Pailliet, Manuel de Droit Fran- * In the case of Dickson v. Halbert, 
 
 yais, 8th ed., p. 358. 17th Feb. 1854 (16 Dunlop, 586), 
 
 3 Savigny, vol. iii. app. p. 444. three judges of the Fii-st Division of 
 
 i Ibid. ■ the Court of Session held that those 
 
 5 Wilson V. Sinclair, 7th Decern- opinions delivered ia the House of 
 
 ber 1830, 4 Wilson & Shaw's App. Lords did not exclude restitution on 
 
 Cases, 398. Dixon v. Monkland the ground of error in law in some 
 
 Canal Co., 17th September 1831, 5 cases. 
 
CJIAP. VI.J LEX EHODIA. 241 
 
 quasi ex contractu. By the lex Rhodia de jactu, -which was 
 adopted by the Eomans and other commercial nations, the 
 owners of the ship and goods saved are obliged to contribute 
 •for the relief of those whose property has been sacrificed, so 
 that all concerned may bear their just shares of the loss.^ To 
 found this claim for contribution it is essential — 1st, That 
 some part of the cargo or of the ship, such as the masts or 
 rigging, should have been voluntarily sacrificed for the com- 
 mon safety ; and, 2d, that the sacrifice so made shall have 
 been effectual in preserving the property of those concerned. 
 If, therefore, notwithstanding the jettison, the ship perish in 
 the storm, no contribution will be due. Among the parties 
 bound to contribute to repair the loss, each is only liable 
 rateably for his own share, and not for what is due by the 
 rest.2 
 
 1 D. 34. 2. " D. 14. 2. 2. 6. 
 
OHAPTEE VIL 
 
 OF OBLIGATIONS EX DELICTO AND QUASI EX DELICTO. ; 
 
 Obligations arising in consequence of aminlawful act _are 
 
 divided into obligations ex delicto and quasi ex delicto. 
 
 Delicts are offences wilfuUy committed in violation of law. 
 
 A quasi delict arises in certain cases when tHe law holds a 
 
 man personally responsible for injurious acts committed 
 
 without negligence or intention on his part.i 
 
 It is a general rule of law, that every wrongful act which 
 causes damage to another, obliges the wrongdoer to make 
 
 reparation. This responsibility extends to damage arising 
 not only from positive acts, but also from negligence or im- 
 prudence. Persons having authority, by permitting or giving 
 orders for an unlawful act, are bound to give satisfaction for 
 the injury thereby occasioned. So also, the owners are re- 
 sponsible for damage done, through their fault, by animals 
 belonging to them. In criminal law, every offender must 
 bear his own punishment ; but, as regards civil reparation, 
 when several persons have committed an offence, they are 
 liable, singuli in solidum, for the whole damage, without the 
 benefit of division.^ 
 Rights from The rights arising from private delicts are treated^ in 
 delicts. Justinian's Institutes under four heads: Furtum, Rapina, 
 
 Damnum, et Injuria. 
 
 Theft and Furtum, or theft, is the felonious taking and carrying 
 
 robbery. away of the property of another for the sake of gain. To 
 
 constitute theft, the taking must appear to be with intent to 
 
 steal. By the civil law, a man might steal what was his own, 
 
 1 Austin's Jurisprudence, vol. iii. " D. 4. 2. 14. 15. C. 4. 8. 1. 
 p. 134. 
 
voaf. viLj OBLIGATIONS FROM DELICTS. 243 
 
 "by taking it from the lawfulpossession of another, as in the 
 case' of a pledge in the hands of a creditor. 
 
 Theft is divided into manifest and not manifest. When 
 the thief has been taken in the act, or near the spot, with 
 the stolen "property in his possession, this is fwrtum mani- 
 ■festum; and in such a case he is liable to restore fourfold 
 the value of the article stolen to the owner. "When the 
 thief was not so taken, the act is called neo manifestum, and 
 the penalty is limited to double the value. All the ancient 
 distinctions of theft, as" conbeptum, obldtuni, prohibitum, and 
 non exhibitum, were abrogated by the law as it stood in the 
 time of Justinian. 
 
 Eapina or robbery is theft of movables, committed with 
 violence against the person. The penalty is fourfold restitu- 
 tion, which includes the thing itself, if the action is brought 
 within the year; but after the lapse of a year, simple resti- 
 tution or indemnity could alone be claimed. 
 
 Damnum injuria datum is the damage sustained from the Damnum et 
 vsTongful destruction of, or injury to, property. Jt has refer- ""J™*- 
 ence to patrimonial loss, for which redress "was given by the 
 Aqudian law. This law consists of three chapters, the first 
 of which provided that if any person wrongfully killed the 
 slave or cattle of another, the offender should be bound to 
 pay the highest price for which the slave or animal could 
 have been sold during the previous year. The second chap- 
 ter of this law was in disuse in Justinian's time, but ah 
 explanation of it will be found in the Institutes of Gaius.^ 
 The third chapter comprehended all damage done to every 
 kind of property, animate or inanimate, except the killing of 
 slaves and cattle. 
 
 Under the Aqudian law, every man was responsible for 
 damage done by his fault or negligence, as well as for damage 
 done by fraud or design. But if the damage arose in the 
 exercisaof a right, as killing a slave in self-defence, or from 
 some inevitable accident, without blame, no claim for repara- 
 tion could be maintained, ; 
 
 If any one exercised a profession or trade without being 
 properly qualified to do so, he was liable for all damage his 
 
 1 Gai. 3. 2)i^ 
 
244 
 
 OBLIGATIONS FKOM DELICTS* 
 
 [part 
 
 iir. 
 
 Quasi 
 delicto. 
 
 Damage 
 done by 
 
 tilaves and 
 auimals. 
 
 want' of skill or knowledge might occasion. Thus a medical 
 man was held answerable, under the Aquilian law, if he 
 occasioned the death of a slave by an unskilful incision, or 
 an improper administration of medicine. 
 
 Finally, among delicts was reckoned what the Eomans 
 called injuria. Generally this means omne quod non jv/re fit ; 
 hut when used in a specific sense, it had reference to an in- 
 jurj'- done to the person, or reputation, as in the case of assault 
 or slander. 
 
 Injuries were divided into real and verbal The Praetorian 
 law softened the rigour of the Twelve Tables, and allowed 
 the injured person to recover such pecuniary compensation 
 as the natiire of the case required. In an action for libel or 
 slander, the truth of the allegation might be pleaded in justi- 
 fication, at least in those cases where the pubhc was interested 
 in the exposure.^ It was optional for the injured person to 
 proceed against the offender either civilly or criminally. Not 
 only the perpetrator of the injury, but he who counselled it, 
 might be prosecuted. In all cases it was necessary to show 
 that the act had been done maliciously ; and if it was accom- 
 panied by any peculiar circumstances of aggravation, the 
 damages awarded were proportionally increased.^ 
 
 A quasi delict has been defined, " An incident by which 
 damage is done to the obligee (though without the negligence 
 or intention of the obliger), and for which damage the obliger 
 is bound to make satisfaction." ^ 
 
 If anything was thrown from the windows of a house near 
 a public thoroughfare, so as to injure any one by its fall, the 
 inhabitant or occupier was, by the Eoman law, bound to repair 
 the damage, though it might be done without his knowledge 
 by his family or servants, or even, by a stranger.* This 
 affords an illustration of liability arising quad ex delicto. 
 
 In like manner, when damage was done to any person by 
 a slave or an animal, the owner might in certain, circum- 
 stances be liable for the loss, though the mischief was done 
 without his knowledge and against his will ; but in such a 
 
 1 D. 47. 10. 18. pr. C. 9. 35. 5. 
 
 2 I. 4. 4. 9. 
 
 ' Austin's Jurisprudence, voL iii. 
 
 p. 134. See -Cleghorn, 27tli Veh. 
 18S6, 18 D. 664, 
 * I. 4. 5. 1. 
 
CHAP, vii.] OBLIGATIONS FEOM DELICTS. 245 
 
 case, if no fault was directly imputable to the owner, he was 
 entitled to free himself from all responsibility by abandoning 
 the offending slave or animal to the person injured, which 
 was called noxce dare} Though these noxal actions are not 
 classed by Justinian under the title of obligations quasi ex 
 delicto, yet, in principle, they evidently fall within that cate- 
 gory.2 
 
 AH animals ferce naturce, such as lions, tigers, bears, and 
 the like, must be kept in a secure place to prevent them from 
 doing mischief, but the same vigilance is not required in the 
 case of animals mansuetce naturce, the presumption being, that 
 no harm wUl arise in leaving them at large, unless they are 
 known to be vicious or dangerous. So where a foxhound 
 destroyed eighteen sheep, belonging to a farmer, it was de- 
 cided by the House of Lords in an appeal from Scotland, 
 that the owner of the dog was not liable for the loss, there 
 being no evidence necessarily showing either knowledge of 
 the vicious propensities of the dog or want of due care in 
 keeping him ; and it was observed that, both according to 
 the English and the Scotch law, " the culpa or negligence of 
 the owner is the foundation on which the right of action 
 against him rests." ^ This decision, however, was modified 
 by the Act 26 & 27 Vict. c. 100, applicable to Scotland, ' 
 which declares that " in any action brought against the owner 
 of a dog for damages in consequence of injury done by such 
 dog to any sheep or cattle, it shall not be. necessary for the 
 pursuer to prove a previous propensity in such dog to injure 
 sheep or cattle." "The occupier of any house or place or 
 premises in which any dog which has injured any sheep or 
 cattle has been usually kept or permitted to live or remain 
 at the time of such injury, shall be liable as the owner of 
 such dog, unless the said occupier can prove that he was 
 not the owner of such dog at the time the injury complained 
 of was committed, and that such dog was kept or permitted 
 to live or remain in the said house or place or premises 
 without his sanction or knowledge." 
 
 1 I. 4. t. 8 and 9^ PP. 14 and 23. See also May v, 
 
 « Marezoll, § 150. ■ - Burdett, June 1846, 2 B, 101. 
 
 3 Jleeming v. Orr, 1855, 2 Macq., 
 
CHAPTER VIIL 
 
 ON THE TRANSFER OF OBLIGATIONS. 
 
 Form of 
 
 transfer. 
 
 Kffects of 
 traasfer. 
 
 By the Eoman law the right, as well as the engagement re- 
 sulting from an obligation, passed to the heirs of the creditor 
 and debtor respectively, on the principle of representation; 
 but, by a subtlety of the law, the right of the creditor was 
 considered to be inherent in his person, so that it could not 
 be directly transferred by him to a third person without the 
 debtor's consent. Thus, the creditor who wished to make 
 over the profit of an obligation to another, could only do so 
 by giving him a mandate to raise an action for the claim, and 
 retain what was recovered for his own benefit. This was 
 called mandare or cedere actionem. The mandatory, after 
 having obtained execution on the judgment, applied the 
 amount for his own benefit, and was therefore called procu- 
 rator in rem suam. In this way claims arising under obliga- 
 tions might be transferred to a third person in virtue of sale, 
 exchange, donation, or any other title. He who made over 
 the obligation to another was called cedens; and he who re- 
 ceived it was called cessionarius or procurator in rem suam. 
 The effects of the transfer are such as naturally arise from, 
 the transaction : — 
 
 1. The claim of the cedent is transferred to the assignee 
 with all accessory rights and privileges thereto belonging. 
 
 2. The assignee is liable to aU exceptions which would 
 have been competent to the debtor against the cedent, and 
 also to all exceptions personal to the assignee himself, 
 because he is procurator in rem suam. 
 
CHAP. VIII.] TRANSFER OF OBLIGATIONS. 247 
 
 3. The cedent generally guarantees the existence of the 
 debt assigned, but not the solvency of the debtor. 
 
 To prevent speculators from purchasing debts at low Anastasian 
 prices, and exposing debtors to vexatious prosecutions, the 'T' 
 Emperor Anastasius ordained that the assignee should not 
 be entitled to exact from the debtor more than he himseK 
 had paid to acquire the debt, with interest.^ This rule was 
 adopted and confirmed by a constitution of Justinian.^ 
 The Anastasian law a pplied only to assignments that were 
 raierous, not gratuitous ; but if an attempt was made to dis- 
 guise a transaction which was onerous in whole or in part, 
 by representiag it as gratuitous, the debtor was entitled to 
 plead the benefit of the law. It was li mited to o bligations 
 for payment of money orjdeliyery of fungibles — that is, arti- 
 cles which consist in quantity, and are regulated by number, 
 weight, or measure, as corn, money, wine. Where the sub- 
 ject. of the obligation is a thing of a given class, the thing is 
 said to be fungible — that is, the delivery of any object which 
 answers to the generic description will satisfy the obligation, 
 — in genere suo functionem recipiunt. A thing to be delivered 
 in specie is not a fungible. A thing merely determined by 
 the class to which it belongs is styled a genus, as a bushel of 
 corn, a pound of gold, and so on.^ 
 
 1 C. 4. 35. 22. Anastasius. though the term is said to be un- 
 
 ^ 0. 4. 35. 2.3. Justinian. known in England, it is adopted in 
 
 3 Mackeldey, § 369-374. Maynz, the same sense by French and Scot- 
 
 §272-4. In the Roman law fungible tish lawyers. 2 Denizart, 449. 1 
 
 was taken to mean res quce pondere, Bell's Com., note 255. 
 
 nwmero et mensura constant; and. 
 
CHAPTEE IX. 
 
 EXTINCTION OP OBLIGATIONS. 
 
 Obligations are extinguished .by actual fulfilment of the 
 engagement, as by payment or performance ; by virtual ful- 
 filment, as by compensation , novation , confusionj by accep- 
 tilationjj r discharg e ; and by prescription arising from the 
 lapse of time, which is considered under a separate head. 
 
 8ed. 1. — Payment or Prestation. 
 
 This is the most ordinary mode of extinguishing, an obli- 
 gation. The term solutio imports every satisfaction of an 
 engagement, whatever its nature may be.'' The creditor is 
 not bound to accept of payment by instalments, or of any- 
 thing short of proper payment at the time and place agreed 
 upon. 
 Payment It is not material by whom the pajrment is made, whether 
 ^\ul. ^7 t^e debtor himself or by another for him ; for a debtor 
 becomes free from his debt when another has paid it, either 
 with or without his knowledge, or even against his will.^ 
 But this doctrine does not apply so absolutely to obligations 
 ad factum prcestandum. In some cases of that description 
 where skill and ability are relied on, the creditor has an 
 interest to insist that the contract shall be performed by the 
 person specified, and may therefore object to accept perform- 
 ance from any other.^ In order to be effectual, the payment 
 
 1 D. 50. 16. 176. 8 D. 46. 3. 31. Code Civil, 1237. 
 
 = I. 3. 30. pr. 
 
CHAP. IX.3 COMPENSATION. 249 
 
 mnsi be made to the true Creditor, or to some one duly autho- 
 rised by him to receive it. 
 
 Where several debts are due, the debtor in making the indefinite 
 payment may appropriate it to any one he pleases. If no P^y"'*""- 
 appropriation was made by the debtor, the creditor, by the 
 Eoman law, was bound to apply it as the debtor himself 
 would have done, and, consequently, to that debt which bore 
 hardest upon him.^ A different rule is followed both iu 
 England and Scotland, the creditor being generally entitled 
 to apply such indefinite payment in the manner most favour- 
 able to himself — as, for instance, to the debt least secured — 
 unless there be some other debt, which, if left unsatisfied, 
 would expose the debtor to a rigorous forfeiture.^ If princi- 
 pal and interest be due, the payment should be imputed first 
 to the interest, and the surplus, if any, is applied to principal.^ 
 
 When performance has become impossible without any Perfom- 
 fault of the debtor — as, for instance, where the engagement j-ye^^"^' 
 relates to a specific subject which has perished by unavoid- 
 able accident — the obligation is extinguished. But if the 
 impossibility to fulfil the engagement has been caused by 
 the fault of the debtor, he will be liable in damages to the 
 creditor. 
 
 When the debtor failed to pay, the "creditors, after obtain- 
 ing judgment, were entitled to proceed with execution both 
 against his person and his property in the manner afterwards 
 explained. 
 
 Sed. 2. — Compensation. 
 
 Compensation is the reciprocal extinction Of debts between Nature of 
 two persons, each of whom is indebted to the other,— (7om- tion!"™'* 
 pensatio est debiti et crediti inter se contributio.*' If the debts 
 to be compensated are unecLual, the lesser obligation is ex- 
 tinguished and. the greater is diminished so far as the con- 
 course goes. 
 : The general requisites of compensation are these: — 1st, 
 
 1 J) 46. 3. 1. ' C. 8. 43. 1. Code Civil, art. 
 
 2 Koscoe's Digest of the Law of 1253-6. 
 
 Evidence, p. 470. Ersk. 3. 4. 2. ^ D. 16. 2. 1. Modeatiaus. 
 
250 COMPENSATION, L^'^K? 
 
 III. 
 
 General The two debts, -wiiateyer their nature inay be, must be 
 requisites, g^jgibig^ g^ tj^^t compensation cannot be pleaded on a claim 
 which is prescribed.! By the Eoman law, however, a natural 
 debt might be pleaded as a set-off against a civil debt.^ 2d, 
 The debts must be of the same nature ; so an obligation to 
 deliver graiu or goods cannot be set off against a pecuniary- 
 obligation. 3d, Both debts must be due and payable, so that 
 compensation is not allowed between a debt presently exigible 
 and one that is future or contingent. 4th, Compensation is 
 not admitted unless the debt founded on be liquid ; and a 
 debt is liquid when it is clearly ascertained to be due. So 
 a contested debt is not liquid ; but if it can be summarily 
 established without much discussion, it may found compen- 
 sation, according to the rule. Quod statim liquidari potest 
 pro jam liquido hahetur? 
 
 The rule that one can plead compensation only upon a 
 debt due to himself, is subject to limitations. Thus an heir 
 may found on a debt due to his ancestor as his own. In like 
 manner a surety may set off against the demand of the 
 creditor a debt due by the latter to the principal debtor ; but 
 the principal debtor cannot set off a debt due by the creditor 
 to the surety.* 
 When There are certain debts against which compensation cannot 
 
 excluded, -j^g pleaded. Thus it is never admitted against a demand for 
 restitution of a thing of which the owner has been unjustly 
 despoiled, according to the well-known rule, Spoliatus ante 
 omnia restituendus. In like manner a depositary cannot 
 plead compensation upon any extrinsic debt against a claim 
 for restitution of the deposit. ' 
 
 In order to receive effect, compensation must be pleaded 
 by the debtor against the plaintiff's demand. But when the 
 plea is sustained it operates retrospectively, and stops the 
 currency of interest on both sides from the period when the 
 two debts co-existed^ 
 
 ID. 16, 2. 14. "Quseoumqueper ' Maynz, § 372. Pothier, Traitd 
 
 exceptionem perimi possunt, in com- des Obligations, part 3, c. 4. 
 
 pensationem non veniuut. " * D. 16. 2. 5. 
 
 2D.16. 2. 6. " Etiam quod natura » Maynz, § 373. 
 debetur. venit in compensationem." 
 
GHAP. IX.] NOVATION. — CONFUSION. 251 
 
 Sect. 3. — Novation. 
 
 Novation operates in two ways : 1st, When the debtor Nature of 
 grants a new ohligation to the creditor in lieu of an old one "o™*'""- 
 which is extiaguished ; and, 2d, When a new debtor is sub- 
 stituted for an old one who is discharged by the creditor. 
 This last method of extinction is called delegation, and the 
 new debtor thus substituted was in the Eoman law styled 
 exi^romissor} 
 
 Novation is. not to be presumed, and the new obligation is Not pre- 
 construed to be merely corroborative of the former one, unless ^"""^ ' 
 the intention of the parties to the contrary clearly appear.^ 
 If a new obligation be granted to the same creditor by the 
 same debtor, without the intervention of any other person, 
 there is no novation, unless the new obligation be in some 
 respects different from the former one. When the principal 
 obligation is extinguished by novation, the sureties are free. 
 In delegation no liability attaches to the old debtor on the 
 supervening insolvency of the substituted debtor, unless his 
 credit be specially guaranteed by the old debtor.^ 
 
 Sect. 4. — Confusion. 
 
 Obligations are extiaguished by confusion when the same Confusion 
 person becomes both creditor and debtor, either by succession '^ ^ ' 
 or singular title — as, for instance, when the debtor succeeds 
 to the creditor, or the creditor to the debtor, or a stranger to 
 both ; for no one can be debtor to himself. 
 
 When confusion takes effect in the person of the principal 
 debtor, it liberates the surety. But when the claim comes 
 into the person of the surety, this obviously does not draw 
 after it the extinction of the principal obligation.* 
 
 - I. 3. 30. 3. ' D. 46. 2. C. 8. 42. 
 
 2 Ibid. ^ D. 46. 3, 
 
252 
 
 DISCHARGES. 
 
 [PABX III. 
 
 Sect. 5. — Acceptilation and Discharge. 
 
 Nature of When an obligation was discharged by the creditor without 
 ^raptiia- payment or performance by the debtor, it was caUed in the 
 Eoman law acceptilation : — Est autem acceptilatio imaginaria 
 
 Pactum de 
 Hon peten- 
 do. 
 
 Acceptilatio was a solemn declaration made by the creditor 
 in the form of stipulation in answer to a question put to him 
 by the debtor, that he held the obligation to be satisfied. 
 This form of discharge was strictly applicable only to those 
 obligations which were constituted by stipulation. But an 
 ingenious device was resorted to, called the Aquiliana stipw- 
 latio, whereby any obligation otherwise contracted could 
 easily be converted by novation into one ex stipulatione, so 
 as to admit of its extinction by acceptilation. ^ 
 
 The pactum de non petendo was more extensive in its 
 effects than acceptilation, as it applied to aU sorts of obliga- 
 tion, however constituted. Yet this mode of extinction did 
 not operate ipso Jure but only ope exceptionis— the declara- 
 tion of the creditor being, not that he held the debt paid, 
 but that he would not exact payment.^ In modern practice 
 the Eoman form of acceptilation is no longer in use. But all 
 debts and obligations, however contracted, may be cancelled 
 or discharged by a simple convention between the creditor 
 and debtor. 
 
 Discharges. As Certain contracts are formed by consent alone, so they 
 may be extinguished by the contrary consent of the con- 
 tracting parties without any performance on either side. 
 OUigationes gum consemu contrahuntur amtraria volimtate 
 di^olvuntur? But in the ordinary transactions of Kfe dis- 
 charges are most frequently granted as the consequence and 
 acknowledgment of payment or performance by the debtor 
 In some cases the mere lapse of time is held to extinguish 
 the obligation,, and in others to bar action upon it, as we 
 have already taken occasion to show in the chapter on Pre- 
 scription. 
 
 1 I, 3. 30. 1 and 2. 2 D. 2 14. 3 j 3 gg ^ 
 
PART IV. 
 
 OF THE LAWS OF SUCCESSION. 
 
 CHAPTEE I. 
 
 OF SUCCESSION IN GENEEAL. 
 
 TflEEE are two kinds of succession recognised in the Eoman Succession, 
 law — ^testamentary and legal. When a person by testament taryTnd 
 appoints heirs to succeed to his estate after his death, they '^s*'- 
 are preferred in respect of the special destination of the pro- 
 prietor ; and this is called testamentary succession. If the 
 deceased has left no will, his estate is devolved upon his 
 relations, in a certain order prescribed by law, from a pre- 
 sumption that they would have been called by the deceased 
 had he made a destination ; and this is termed legal succeSr 
 sion, or succession ah intestato. 
 
 When a Eoman died, the heir or heirs succeeded to all his HereditM 
 property as a universal succession ; and this was called Aere- ^Xlie suc- 
 ditas} The institution of an heir in a testament was a for- '^^'"™- 
 mality which could not be dispensed with. 
 
 The testator might appoint any number of heirs, and divide 
 his estate into as many parts as he pleased. The whole in^ 
 heritance was called as, and this was commonly divided into 
 twelve parts called unciw. Hence the hereS ex asse is heir to 
 one's whole fortune, Tieres ex semisse to the half, and so on. ,; 
 ' D. 50. 16. 24. 
 
254 SUCCESSION 
 
 [PAET IV. 
 
 Bonorura 
 
 Classes of 
 
 By the praetorian law, various persons who did not posses 
 the character of heirs according to the strict system of the 
 ancient civil law, were admitted to the succession under the 
 form caUed Imorum possessio. Though not properly heir, the 
 bonorum possessor was regarded and treated as such, m so 
 far as the law accorded to him the rights, and imposed upon 
 him the duties, of heir.^ 
 
 When the praetors by their edicts caUed to the succession 
 persons who were excluded by the civil law, these magis- 
 trates virtually exercised legislative power. The honorwn 
 possessio was given contra tabulas, secundum tahulas, and, m 
 a gi-eat many cases, under particular edicts for the distribu- 
 tion of inheritances. Even the legal heir sometimes found it 
 beneficial to take up the succession as bonorum possessor, 
 though he had the option to do so iii the character of heir. 
 There were three classes of heirs— 1st, Necessary; 2d, Pro- 
 ^^"'- per and necessary ; and, 3d, Strangers. ^ 
 
 When a slave was instituted by his master as his heir, he 
 became free at the testator's death, and was compelled to take 
 up the inheritance, so that he was called a necessary heir. 
 Here it may be explained that when the property of an in- 
 solvent person was sold by his creditors after his death for 
 payment of their debts, his memory was covered with infamy. 
 To avoid this disgrace it was common for one who suspected 
 his solvency to institute his slave as heir, so that if he did 
 .not leave enough to pay his debts, the goods were sold and 
 divided among his creditors as being the property of his heir.s 
 Proper and necessary heirs are the sons and daughters or 
 other descendants in the direct line who are under the pater- 
 nal power of the deceased at the time of his death. But 
 grandchildren are not proper heirs, unless they succeed in 
 room of their father by his death or emancipation in the life- 
 time of the grandfather. By the ancient civil law these heirs 
 were compelled to undertake the representation with all its 
 burdens as well as benefits, whatever might be the amount 
 of the debts and engagements of the ancestor ; but, as this 
 was frequently attended with hardship, the praetor permitted 
 ^ I. 3. 10. pr. D. 37. 1. = I. 2. 19. pr. 3 I. 2. 19. 1. 
 
CHAP. I.] IN GENERAL. 255 
 
 children and grandchildren to reject the inheritance, so as to 
 relieve themselves from loss when the debts exceeded the 
 value of the estate. This right was confirmed by the per- 
 petual edict.^ 
 
 Strangers — ^that is, persons who were not under the testa- 
 tor's power at the time of his death — were at liberty either 
 to accept or reject the inheritance ; but if they once accepted 
 they could not afterwards renounce.^ 
 
 Any one entitled to the succession either under a testament 
 or by law was accountable as heir, as soon as he declared his 
 acceptance, or dealt "with the property as heir. By the prse- Tfme for 
 tofian law the heir was allowed a certain time to deliberate ^on!'^'^'' 
 whether he would undertake the representation of the de- 
 ceased, and this was fixed by Justinian not to exceed nine 
 months if granted by the magistrates, and a year if granted 
 by the emperor. A stOl more important privilege was con- Benefit of 
 ferred upon heirs by Justinian, when he introduced the prin- '"''"''"'y- 
 ciple of limited representation by the benefit of inventory. 
 An heir who accepted with benefit of inventory, protected 
 himself from all liability for the debts of the ancestor beyond 
 the value of the inheritance.^ 
 
 1 I. 2. 19. 2. 2 I. 2. 19. 3. 3 1. 2. 19. 5. 
 
Testament 
 defined. 
 
 CHAPTER 11. 
 
 OF SUCCESSION BY TESTAMENT. 
 I. — ROMAN LAW. 
 
 Testaments are of high antiquity, and are mentioned in 
 Eoman history before the legislation of the decemvirs. The 
 Twelve Tables recognise the power of disposing of property 
 by will in these terms : " Uti legassit super pecunia tutelave 
 suse rei, ita jus esto." ^ 
 
 A testament is a declaration of the testator's last will, made 
 according to the formalities prescribed by law, and containing 
 the appointment of a testamentary heir or executor. Accord- 
 ing to Modestinus: "Testamentum est voluntatis nostrae justa 
 sententia, de eo, quod quis post mortem suam fieri velit." ^ 
 
 In the Eoman law, the essence of a testament, and that 
 "which distinguished it from a codicil, was the institution of 
 an heir .^ The inheritance could not be disposed of by codi- 
 cil. Originally, though fidei-commissa, or bequests in trust, 
 might be left by codicil, legacies could not, unless it was con- 
 firmed by a testament. But, under the law as modified by 
 Justinian, a testator might leave legacies or fidei-commissa by 
 codicil (which was attested by five witnesses), whether he 
 made a will or not. It was not uncommon to add to a testa- 
 ment what was called a codiciUary clause, declaring that, if 
 from any cause the will should not be valid as such, it should 
 
 ^ trip. 11. 14. potest (quia) facere testamentuni, ut 
 
 ' D. 28. 1. 1. pr. dicat, ' Zucius TUius mihi heres 
 
 ' D. 28. 5. 1. 3. " Quinque verbis eato.' " 
 
OHAP. II. J ROMAN TESTAMENTS. 257 
 
 nevertheless be effectual as a codicil, whicli required fewer 
 legal solemnities. 
 
 Among the Eomans the power of making a testament only Peisonn 
 belonged to citizens above puberty who were sui juris — a ^^yj^ f 
 rule which excluded a great number of persons. Children '"'"• 
 under the paternal power generally could not make a will, 
 having no property of their own ; but if the son was a soldier 
 or public functionary, he might dispose of his peculiwm by 
 will. Males above fourteen and females abo ve twelve, when 
 not under po wer or otherwis e specially disqualified, c ould 
 make a will wi thou t the authority of their guardians. Pupils, 
 lunatics, prisoners of war during their captivity, criminals 
 condemned to death or other punishments inferring confis- 
 cation of property, as well as various other persons, were 
 incapable of making a testament. Among the Eomans a 
 married woman was as capable of making a will as one who 
 was single. But in England a married woman cannot devise 
 lands; and, as a general rule, she is incapable of making a 
 testament of clmttels without the licence of her husband.^ 
 
 Sect. 1. — Forms of Roman Wills. 
 
 Anciently three modes of making wills were in use among Ancient 
 the Eomans. 
 
 1st, In the earliest times wills were made before the 
 general assembly of the people, called Comitia Calata, 
 which were held twice a-year for the purpose. 
 
 2d, "When the army was about to set forth to meet the 
 enemy, soldiers might make their wills in presence of their 
 companions in arms. This was called a testament in pro- 
 cinctu. 
 
 3d, The testament jjer ms et libram, consisted of an imagin- 
 ary sale of the inheritance by the testator to the intended 
 successor, in presence of the balance-holder and five wit- 
 nesses.2 This ancient mode of testamentary transfer is de- 
 scribed by Gains, 2. 104. 
 
 In process of time these forms were superseded by the 
 
 1 ■Williams's Exec, p. 47. 2 Black. Com., 497. " I- 2. 10. 1. 
 
 K 
 
258 
 
 ROMAN TESTAMENTS. 
 
 [PAKT 
 
 IV. 
 
 V 
 
 Wills in 
 writing. 
 
 Kimcupsfc- 
 tive wills. 
 
 Privileged 
 wills. 
 
 introduction of written wUls properly attested, which after 
 being recognised by the edicts of the pr^tors, were regulated 
 by tL constitutions of the en^perors. These wills requi ed 
 to be signed by the testator, or some person for him, in the 
 presence of ^gven witnesses caUed for the purpose, who 
 attested the same under their hands and seals. If the will 
 was entirely written by the testator, his signature at the 
 end of it was unnecessary. JasiaiiiaiU^ipilsdJhatJM^gffle 
 
 of the heir should b ejmtteaJ)yJJie,iestetQLfi^^g^-^! 
 ,V^.J 'K.,t. I.P_«^ ^ards dispensed wij hthayprmalitg. 
 
 It was necessary that witnesses to wUls should be Eoman 
 citizens and males above fourteen. Women, persons under 
 the power of the testator, the heir and his family, were aU 
 disabled from being witnesses; but this objection did not 
 apply to legatees.^ 
 
 A will might be written on a tablet of wax or any sub- 
 stance capable of receiving legible characters.^ 
 
 Nuncupative wOls might be made without writing, by 
 mere verbal declaration in presence of seven witnesses. 
 WOls of this nature are certainly the most ancient ; and the 
 liberty which the Eomans enjoyed of making testaments 
 without writing, serves to account for the burdensome for- 
 malities enjoined by the civil law regarding the number and 
 condition of the witnesses.* Two witnesses are sufiicient to 
 attest a written will in this country. In England a verbal 
 will or legacy is ineffectual, unless the testator be a soldier m 
 actual military service, or a mariner at sea.— 1 Vict. c. 26, 
 s. 11. In Scotland, writing is essential to the nomination of 
 an executor ; but a verbal legacy, if proved by parole, will 
 be sustained to the amount of £8, 6s. 8d.— Ersk. 3. 9. 7. 
 
 Among the Eomans wills could be made without the usual 
 formalities in certain privileged cases. 
 
 1st, When military persons were engaged in actual service 
 against an enemy, they might make their wUls without any 
 of the ordinary. formalities: all that was required was suf- 
 
 1 I. 2. 10. 3 and 4. 
 N. 119, ch. 9. 
 » I. 2. 10. 6-11. 
 
 C. 6. 23. 29. 
 
 = I. 2. 10. 12. 
 * I. 2. 10. 14. 
 
CHAP. 1I.J ROMAN TESTAMENTS. 259 
 
 ficient evidence of their intention regarding the disposal of 
 their property after death. This privilege was enjoyed by 
 soldiers only during the time of actual service in the field, 
 and testaments so made without the usual solemnities con- 
 tinued valid only for one ye arj,fter th eir discharge from the 
 army .^ ~~ ' "" ' 
 
 2dj During the prevalence of a pestilence or contagious 
 disease, the presence of all the seven witnesses at one time 
 and place was dispensed with ; it was suflBcient if each in 
 succession attached his signature and seal to the wiU.^ 
 
 3d, -In rural districts, when seven qualified witnesses could 
 not be found, the number might be reduced to five, and one 
 witness might .sign for those who could not write.^ 
 
 4th, If a will was made by a parent for distributing his 
 property solely among his children or other descendants, no 
 witnesses were required, provided the testator wrote the wiU 
 himself, or fiUed up in his own handwriting the date of its 
 execution, with the names and portions of the children.* But 
 a legacy left to a stranger in such a will was inefi"ectual. 
 
 Among the Eomans the testament was opened in presence 
 of the witnesses, or the major number of them, who had 
 signed it ; and after they had acknowledged their seals, it 
 was read, and a copy made ; after which the original was de- 
 posited in the public archives, from which a fresh copy might 
 be afterwards obtained if required. 
 
 Seat. 2. — Contents of Roman Wills. 
 
 By the ancient law, if the father of a family wished to de- Law as to 
 prive his children of the succession, he was obliged to declare 
 his intention by formally disinheriting them in his will. At 
 first, sons under the father's power were disinherited by 
 name, so as to prevent any risk of error ; but daughters and 
 grandchildren might be disinherited in general terms. These 
 distinctions were abolished by a constitution of Justinian, 
 which declared that aU children, whether emancipated or 
 
 II. 2. 11. pr. and a ' C. 6. 23. 31. 
 
 2 C. 6. 23. 8. * N. 107, ch. 1. 
 
260 ROMAN TESTAMENTS. [pabt IV. 
 
 not, and all other descendants in the male line, entitled by- 
 law to be called to the immediate succession of the testator, 
 should either be instituted heirs or disinherited by name. 
 As regards children adopted by an ascendant, they passed 
 into his family, so that he was bound either to institute or 
 disinherit them; but children adopted by a stranger retained 
 all their legal rights against their natural parent, and had 
 only a right to the succession of the stranger who adopted 
 them if he died intestate. 
 
 If a person sui Juris died without descendants, he was 
 bound in his will to institute or disinherit his ascendants, 
 without distinguishing between the paternal line and the 
 maternal line. 
 
 The necessity of disinheriting was at first nothing but a 
 simple form to protect children against the forgetfulness of 
 their ascendants in the paternal line ; and the head of the 
 family could, from pure caprice, and without any sufficient 
 reason, entirely exclude his descendants from the succession. 
 But before the age of Cicero the law only allowed disherison 
 for grave reasons, without which the testament might be 
 annulled by an action called querela inofficiosi testamenti. 
 Por a long time it was left to the judge to decide what should 
 be held suflScient reasons for excluding the lawful heirs. But, 
 to remove all uncertainty, Justinian fixed the only grounds 
 of exclusion which could be admitted — such as attempting 
 the lif e ofth e decease d, grievo usly im'urin sLhim in his p erson, 
 charac ter , or feelin gs, and other im moral or disgraceful acts 
 — and required that one or more of these reasons should be 
 indicated in the testament.^ If the truth of the charge 
 against the person disinherited was disputed, the burden of 
 proving it was laid upon the heir named in the will, 
 imtitution According to the strict rule of the Eoman law, no will was 
 effectual unless one or more persons were appointed heirs to 
 represent the deceased. 
 
 The testator might appoint one heir, or any number of 
 heirs. No one, except a soldie r, pould di e partly testa te, 
 partl yjat gstate ; and if a testator appointed an heir for any 
 1 N. 115, ch. 3 and 4. 
 
 of heirs. 
 
uai^tf. ii.j EOMAN TESTAMENTS. 261 
 
 portion of his property without naming heirs for the remain- 
 der, such heir became entitled to the whole inheritance. 
 When several heirs are instituted, the property may be 
 divided among them in such proportions as the testator 
 may appoint ; and if there be no distribution, all will parti- 
 cipate equally in the inheritance. If the shares of some of 
 the heirs are expressed in the testament, and nothing is said 
 as to the shares of the other heirs, they will be entitled to 
 the remainder of the property undisposed of by the testator. 
 
 Among co-heirs in testamentary succession there is a right Accretion 
 of accretion, so that if one of them cannot, or will not, take Ss!^ ™ 
 his portion,, it falls to the other heirs according to their shares 
 in the inheritance, to the exclusion of the heirs-at-Iaw, who 
 are not called by the testament. Thus, where two testamen- 
 tary heirs are appointed, who are not heirs of blood, and one 
 of them declines to take his portion, or becomes incapable ot 
 doing so by his predeceasing the testator, or other superven- 
 ing incapacity, then the other heir, who was instituted only 
 for a part, becomes heir to the whole estate. 
 
 The heir may be appointed simply or under a condition. 
 Various obligations may be imposed on him, such as to pay 
 legacies, to enfranchise slaves, to erect a monument or public 
 edifice, and the like. All conditions which are impossible, or 
 contrary to law or good morals, are rejected as if they had 
 never been written, without affecting the validity of the 
 testament in other respects. 
 
 Three kinds of substitution are mentioned by Justinian in Roman «ub- 
 the Institutes — Vulgar, Pupilary, and Quasi-pupilary. A '"'"'"""• 
 testator might appoint one person as heir, and, if he should 
 die or refuse to accept, then another, by way of substitution, 
 and that for any portion of the inheritance. This was called 
 the common or vulgar substitution of heirs ; it was truly a 
 subordinate conditional institution, which was only to come 
 into operation if the first institution failed to take effect. 
 
 Modestinus gives this example of it : — " Lucius Titiusheres 
 esto ; si mihi Lucius Titius heres non erit, tunc Seius heres 
 mihi esto." ^ 
 
 1 D. 28. 6. 1. 1. I. 2. 15, 
 
262 FEENCH WILLS. [^^"^ 
 
 IV. 
 
 When a person had a child under his power in pupilarity, 
 he might not only appoint such child to be his heir, and 
 suhstitute another to him in the manner above described, but 
 also declare that, Tnc _ase such child shoul d become heir a nd 
 die before^p uberty. then that ano ther person shquld;be_hgir^ 
 so~asjyirtuallyJo make a te stamen t for the pu EJl- But this 
 pupilary substitution for children was only effectual when 
 the father made a valid testament of his own. If the pupil 
 succeeded as heir, and afterwards reached puberty, the pu- 
 pilary substitution became extinct.^ 
 
 By a law of Justinian, a^manjwho^ had children ^^rother 
 descendants, who were insane, might make a substitution j o 
 tjiem int he manner of a pupilary substi tution, even although 
 they ha d arrived a t the a ge of puberty . But this species of 
 substitution became ineffectual, if the heirs first called were 
 restored to a sound mind, so as to be able to make a will for 
 themselves.^ 
 
 II. FEENCH LAW. 
 
 Forms of By the law of France, a testament is effectual if it is holo- 
 Frande graph — that is, entirely written, dated, and signed by the tes- 
 tator — ^without any other forms. It may also be executed par 
 acte p^iblic, with the aid of two notaries, in presence of two 
 witnesses, or one notary and four witnesses ; and it must be 
 signed by the testator, if he can write — and if he cannot, a 
 declaration to that effect must be inserted. A third form is 
 used called mystique, or secret. The will is made and signed 
 by the testator, whether written by him or by another. It 
 is then sealed up and presented to a notary and six wit- 
 nesses, the testator declaring that the sealed packet contains 
 his will, whereupon a note to that effect is made on the 
 envelope, and signed by the testator, the notary, and the 
 witnesses.^ 
 
 A Frenchman in a foreign country may make a testament 
 either by a holograph writing, as prescribed by article 970 of 
 the Civil Code, or by a writing authenticated according to the 
 1 L 2. 16. 8. 2 I. 2. 16. 1. 3 Code Civil, art. 970 et seq. 
 
CHAP. II.] EKGLISH WILLS. 263 
 
 forms in use in the place where it is executed.^ An English- 
 man resident in France is allowed to make his will according 
 to the French law, if he has obtained the authority of the 
 Crown to establish his domicile there, under the 13th article 
 of the Civil Code. 
 
 III. — ENGLISH AND SCOTTISH LAW. 
 
 Sect 1. — English Statute of Wills. 
 
 In England, the statute 1 Vict. c. 26, which came into 
 operation on January 1, 1838, contains important regulations 
 regarding wills, some of which may be here noticed : — 
 
 1 . Every person may, by wiU executed as required by the English 
 Act, devise, bequeath, or dispose of all real estate, and allj^!|}°^™' 
 personal estate which he shall be entitled to at the time of Pf '""^^ 
 
 I" , estates. 
 
 his death. 
 
 2. No wUl shall be valid unless it be in writing, and Form of 
 signed at the foot or end thereof by the testator, or by some "^™'''"'- 
 other person in his presence, and by his direction : and such 
 signature shall be made or acknowledged by the testator in 
 
 the presence of two or more witnesses, present at the same 
 time ; and such witnesses shall attest and shall subscribe the 
 will in the presence of the testator, but no form of attestation 
 shall be necessary. 
 
 Thus the English law requires every wiU to be executed in 
 the presence of two witnesses, with certain formalities ; and 
 holograph wills unattested are not valid. But any soldier in 
 actual military sei-vice, or any mariner being at sea, may dis- 
 pose of his personal estate by an oral wUl, as he might have 
 done before the passing of the Act. 
 
 3. Every wUl shall be construed, with reference to the real 
 estate and personal estate comprised in it, to speak and take 
 effect as if it had been executed immediately before the death 
 of the testator, unless a contrary intention shall appear by 
 the will. 
 
 1 Code Civil, art. 999. 
 
264 SCOTTISH WILLS. [pakt iv. 
 
 No will by 4. 'No will made by any person under the age of twenty- 
 
 minor. 
 
 one years shall be valid. 
 
 Eevoked by 5. As a general rule, every wiU made by a man or woman 
 
 mamage. gj^^jj ^^ revoked by his or her marriage. 
 
 6. AU gifts or legacies by will to an attesting witness, or 
 the husband or wife of such witness, or any person claim- 
 ing under them, shaU be void; but such witness shall be 
 admissible to prove the execution of the will. 
 
 Sect. 2. — How Testamentary Writings executed in Scotland. 
 
 A Scottish By the law of Scotland, the expression will or testament is 
 
 I'ly p^!"' understood to apply only to personal property. But a testa- 
 
 sonai estate, meut is usuaUy combined with a mortis causa disposition, 
 
 expressed in the technical terms essential for the conveyance 
 
 of lands or other real estate * Testamentary writings which 
 
 are holograph — that is, written and subscribed by the testator 
 
 — are valid without witnesses. But when they are written 
 
 by another person, they must be signed by the testator, if 
 
 he can write, and attested by two subscribing witnesses, and 
 
 must contain at the close an attestation-clause, in the Scotch 
 
 form, specifying the names and designations of the writer and 
 
 the attesting witnesses. A wiU of personal property by one 
 
 who cannot write, may be signed by a notary authorised by 
 
 him and two witnesses ; and the parish clergyman may act 
 
 as notary ; but two notaries and four witnesses are required 
 
 in deeds importing heritable title and "other obligations of 
 
 great importance." ^ 
 
 By the law of Scotland, a minor, male or female, and a 
 married woman having separate personal property, may make 
 a will. 
 
 Sect. Z.— Recent Acts as to Wills by British Subjects. 
 
 Act as to In consequence of some decisions of the Privy Council 
 BriUsh^ """liich were considered of questionable authority, the Act 24 
 subjects. & 25 Vict. c. 114, was passed " to amend the law with respect 
 
 * The necessity of using technical Vict. o. 101, sect. 20. 
 terms in bequeathing real estate in i Ersk. 3. 2. 23. 1579 o 80 
 Scotland is now removed ; 31 & 32 > • • 
 
CHAP. II.] WILLS BY BRITISH SUBJECTS. 265 
 
 to wills of personal estate, made by British subjects."^ By 
 this statute, which extends only to wills and other testamen- 
 tary instruments made by persons who die after it is passed, 
 it is enacted : — 
 
 1. Every will and testamentary instrument made out of Effect of 
 the United Kingdom by a British subject (whatever may be ^'roao!* " 
 his domicile), shall, as regards personal' estate, be held to be 
 
 well executed, if the same be made according to the forms 
 required either by the law of the place where the same was 
 made, or by the law of the place where such person was 
 domiciled when the same was made, or by the laws then in 
 force in that part of the British dominions where he had -his 
 domicile of origin.^ 
 
 2. Every will and other testamentary instrument made wiiis made 
 within the United Kingdom by any British subject (whatever ^^„^IL 
 may be his domicile), shall, as regards personal estate, be 
 
 held to be well executed, if the same be executed accord- 
 ing to the forms required by the laws for the time being in 
 force in that part of the United Kingdom where the same is 
 made.^ 
 
 3. No will or other testamentary instrument shall be held wiii not 
 to be revoked, or to have become invalid, nor shall the con- chang^e of^ 
 struction thereof be altered, by reason of any subsequent "J<"""^'''=- 
 change of domicile of the person making the same. But 
 nothing in the Act shall invalidate any will or other testa- 
 mentary instrument, as regards personal estate, which would 
 
 have been valid if the Act had not been passed, except as 
 such will or other testamentary instrument may be revoked 
 or altered by any subsequent will or testamentary instrument 
 made valid by the Act.* 
 
 1 Miss Calcraft, an English sub- P. C. 361). This decision proceeded 
 
 ject resident in Paris, made her will on an erroneous view of the French 
 
 conformably to the English law, law. According to the Fren eh jiu'ists, 
 
 which the Privy Council held to.be Miss Calcraft's English will was per- 
 
 invalid, upon the ground that she fectly valid.— Lord St Leonards's 
 
 was domiciled in France, although Practical Treatise, 1862, p. 404. 
 
 she had not obtained any authority '■' Sect. 1. 
 
 under article 13 of the Civil Code. ^ Sect. 2. 
 
 Bremer v. Freeman, 1857 (10 Moo. « Sect. 3 and 4. 
 
266 WILLS BY BRITISH SUBJECTS. [pabt IV. 
 
 Prospective This Statute was accompanied by tlie 24 & 25 Vict. c. 121, 
 kte domT" entitled, " An Act to amend the law in relation to the wills 
 "i'®- and domicile of British subjects dying whilst resident abroad, 
 
 and of foreign subjects dying whilst resident in her Majesty's 
 dominions" (6th August 1861). But this Act, which extends 
 to intestacy as well as to testacy, only becomes operative 
 after a convention shall have been entered into vtdth any 
 foreign state, and an Order in Council shall have been pub- 
 lished in the ' London Gazette.' 
 British After the publication of such order, no British subject 
 
 dymg" resident at his or her death in the foreign country named in 
 abroad. g^cji order, shaR be deemed, under any circumstances, to have 
 acquired a domicile in such country, unless such British sub- 
 ject shall have been resident there for one year immediately 
 preceding his or her decease, and shall also have made and 
 deposited in a public office of such foreign countiy, a decla- 
 ration in writing of his or her intention to become domiciled 
 there; and every British subject dying resident in such 
 foreign country, but without having so resided and made 
 such declaration aforesaid, shall be deemed, for all purposes 
 of testate or intestate succession as to movables, to retain the 
 domicile he or she possessed at the time of his or her going 
 to reside in such foreign country.^ 
 Foreigners ^^ ^^^^ manner, after the publication of such order in the 
 country""''" ^°'^'^°^ Gazette,' no subject of any such foreign country, 
 who, at the time of his or her death, shall be resident in any 
 part of Great Britain or Ireland, shall be deemed, under any 
 circumstances, to have acquired a domicile therein, unless 
 such foreign subject shall have been resident within Great 
 Britain or Ireland for one year immediately preceding his or 
 her decease, and shall also have signed and deposited with 
 the Home Secretary a declaration in writing of his or her 
 desire to become and be domiciled in England, Scotland, or 
 Ireland, and that the law of the place of such domicile shall 
 regulate his or her movable succession. But the Act is not 
 to apply to any foreigners who may have obtained letters of 
 naturalisation in any part of her Majesty's dominions.^ 
 ^ Sect. 1. 2 Sect. 2 and 3. 
 
CHAPTER III. 
 
 OF LIMITATIONS OP TESTAMENTAEY POWEES. 
 
 I. — ROMAN LAW. 
 
 ACCOEDING to the law of the Twelve Tables, the powers of a By Xweivo 
 testator in disposing of his property were unlimited ; for the po^e" un- 
 testament of the father of a family had the force of law, — jus '™ited. 
 esto. 
 
 In progress of time various laws were enacted to restrain Faicidian 
 immoderate bequests, which, after the general introduction of ^™ '™' 
 wills, were found to prejudice the heir. Of these the most 
 important was the Faicidian law, in the reign of Augustus 
 and year of Eome 714, whereby it was enacted that no one 
 should leave in legacies more than three fourth parts of his 
 estate", To as to secu re to the heir at least one-fourth of the 
 succession. This fourth is called the Faicidian portion- 
 Though this right was given originally to the testamentary 
 heirs, yet as legacies might be left by codicil, so as to be pay- 
 able by the heir-at-law aJ) intestato, he was equally entitled 
 to the Faicidian portion. The fourth part was estimated 
 according to the value of the estate at the testator's death, 
 after deducting debts and the necessary expenses of the suc- 
 cession. If the legacies exceeded three-fourths of the estate, 
 they suffered a proportional abatement in favour of the heir. 
 
 Another limitation of the powers of a testator arose from Legitim. 
 the law which enjoined parents to leave a certain portion of 
 their estate to their children, and children to leave a certain 
 portion of their estate to their parents. This was called the 
 
 i I. 2. 22. 
 
268 
 
 TESTAMENTARY POWEES. [^^^'^ ^''■ 
 
 Legitim portion, and was originally a fourth of the succession, 
 so that it was an extension of the principle of the Falcidian 
 
 law.^ • • -J 
 
 There are two orders of persons to whom legitim is due,— 
 1st, The descendants of the deceased, who would have been 
 called to the succession had he died intestate ; 2d, Failing 
 descendants, the ascendants of the testator, provided they 
 would have inherited ab intestato. Brothers and sisters have 
 no right to claim legitim, except when the testator has ap- 
 pointed an infamous person to be heir. ( V%t\f^i^ j 
 
 If in the same succession there are both children and 
 parents of the deceased, legitim is only due to the children ; 
 for they exclude parents from the succession. 
 
 AU the children, without distinction as to sex, have a right 
 to legitim. When there are only children of the first degree, 
 the legitim is divided among them in equal shares. But if 
 there be at the same time children of the first degree alive, 
 and grandchildren descended from others deceased, the legitim 
 is divided according to the number of the children of the 
 first degree who are stiU alive, and of those who, being dead, 
 have left issue to represent them, and these grandchildren 
 have only among them the legal portion which the person 
 whom they represent would have had if he had survived the 
 testator. 
 
 The second order of persons to whom legitim is due, fail- 
 ing descendants, are the nearest ascendants. If there are 
 paternal and maternal ascendants in the nearest degree, the 
 legitim is divided into two parts, one for the ascendants on 
 the father's side, and the other for the ascendants on the 
 mother's side. 
 
 At first the legitim, after the analogy of the Falcidian por- 
 tion, was, in all cases, a fourth of the estate which would 
 have fallen to the heirs-at-law ab intestaio, whatever might be 
 Ledtim in- their number. But Justinianraised the amoun t of the legi- 
 jus^bianf tiin_fordescend^tsji.Xea&L^ tbe sucaessiqn, jf 
 
 there were four or a less number, and to one-half when there 
 were more than four.^ Most writers think this regulation 
 1 1. 2. 18. 6. D. 5. 2. 8. 6. " N. 18, ch. 1. 
 
vjji^r. J1I.J LEGITIM. 269 
 
 applied also to ascendants, to the extent of entitling them to 
 one-third of the succession ; hut Mackeldey is of a different 
 opinion, holding that their legitim never exceeded a fourth 
 part.^ 
 
 Legitim is only due after the death of the testator, and 
 those who claim it must bring into account whatever they 
 have received under the testament, whether in the character 
 of heirs, or hy legacy, or donation mortis causa. Generally 
 donations inter vivos are not reckoned, unless they are given 
 expressly under that condition. Justinian ordained that the 
 legitim should he left to children in the character of heirs 
 and not as legatees or donees, according to the former prac- 
 tice ; but if any part of the inheritance, however small, was 
 left to them, they were only entitled to recover by action 
 what was necessary to make up the legitim.^ 
 
 Querela Inoffidosi Testamenti. — "When children or parents Challenge 
 are unjustly disinherited or passed over in a testament, it testament, 
 may be challenged as undutiful by the querela inofficiosi 
 testamenti. 
 
 When this complaint was successful, it had not the effect 
 of entirely annulling the testament under the new law of Jus- 
 tinian ; the institution of the heir was rescinded, but the leg- 
 acies and other provisions of the wiU remained in force.' 
 ' When the appointment of the heir was wholly set aside, the 
 succession was taken up ab intestato, under the burden of the 
 legacies so far as these did not exceed the legitim. If one of 
 the children was found to be justly disinherited, while the 
 others were successful in their challenge, the institution of 
 the heir in the testament could only be partially rescinded, 
 and the result was to make the testator die partly testate 
 and partly intestate, which was contrary to the general rule 
 of law. 
 
 If the complaint against a testament as undutiful was 
 rejected, the plaintiff by way of penalty forfeited whatever 
 had been left to him in the will. The action was excluded : 
 
 1 See on this subject Domat, part ' N. 115, ch. 3. I. 2. 18. 3. 
 ii. b. 3, t. 3, s. 2; Ortolan, Institutes, ^ n. 115, ch. 3, § U; ch. 4, § 8. 
 §802; Mackeldey, §680. 
 
270 
 
 FRENCH, ENGLISH, AND SCOTTISH LAW. [paet IV. 
 
 When ex- 
 cluded. 
 
 1st, When those who were entitled to raise it approved di- 
 rectly or indirectly of the testament; 2d, By the heirs of 
 blood surviving the testator, and thereafter dying vrithoiit 
 instituting a challenge ; and, 3d, By prescription, which was 
 at first fixed at two years, and afterwards at five.^ 
 
 II. — FRENCH LAW. 
 
 Limits of 
 testament- 
 ary power. 
 
 In modern times the limits of testamentary power vary in 
 different countries. In France, if any one die without issue 
 or ascendants, he may leave his whole property to strangers ; 
 but if a man at his death has one lawful child, he can only so 
 dispose of the half of his estate ; if he leave two children, the 
 third ; and if he leave three or more children, the fourth. If 
 the deceased has no issue, but is survived by ascendants in 
 each of the paternal and maternal lines, he can only dispose 
 of the half of his property; and three-fourths if he leave 
 ascendants only in one line.^ 
 
 III. — ENGLISH AND SCOTTISH LAW. 
 
 In England By the modcm law of England, whatever limitations may 
 
 te^^'power have formerly existed, the testamentary power is whoUy un- 
 
 uniimited. fg^tered. For, apart from special contract, any man can by 
 
 wiU bequeath his whole real and personal estate to strangers, 
 
 even though he should leave a wife and children.^ 
 
 In Scotland the law stands upon a different footing. If a 
 man die without either wife or issue, his whole property is at 
 his own disposal ; if he leave a wife and issue, his goods or 
 personal property are divided into three equal parts, one of 
 Jus relictffl which gocs to his wife as jus relictce, another to his children 
 an egitim. ^^ jegitim, and the third is at his own disposal ; if he leave 
 no wife, he may then dispose of one-half, and the other half' 
 goes to the children; and so, e converso, if he leave no children 
 
 In Scotland 
 same, if no 
 wife or 
 issue. 
 
 1 I. 2. 18. D. 5. 2. C. 3. 28. 
 « Code Civil, art. 913-916. 
 
 3 Williams's Exec, p. 3-5. 
 sou's Compendium, p. 223. 
 
 Pater- 
 
uiiAf. ill. J TESTAMENTARY POWERS. 271 
 
 the wife is entitled to one-half, and he may bequeath the 
 other. The legitim can only be claimed by the father's ex- 
 isting children, and not by the issue of a deceased child. The 
 eldest son has a share of the legitim along with the rest, 
 but is excluded from it if there be a heritable estate falling 
 to him as heir-at-law, which he refuses to share with the other 
 children.! The wife's jus relidce may be expressly excluded 
 in an antenuptial contract, and also the children's right to 
 legitim, at least when reasonable provisions are made for 
 them on the dissolution of the marriage. 
 
 1 Bell's Pr. § 1583. 
 
CHAPTEE IV. 
 
 OF FIDEI-COMMISSA OR BEQUESTS IN TRUST. 
 
 Hitherto we have treated of testamentary writings, the ob- 
 ject of which was to transfer the succession directly to the 
 heir. We now come to the subject of trusts. This form of 
 disposition was introduced in order to evade the strict rules 
 of the civil law, by transmitting property to foreigners, exiles, 
 and other persons who were legally incapacitated from taking 
 Trusts at anything directly under the wiU of a Eoman citizen. Origi- 
 first pre- nally aU trusts were precarious, and depended entirely on the 
 honour of the trustee, till Augustus authorised them to be 
 enforced by law ; and having afterwards become extremely 
 common and highly favoured, they were placed imder the 
 permanent jurisdiction of a special praetor.^ 
 Fidei-com- A fidei-commissum, in the Eoman law is a mortis causa 
 missum de- disposition, by which the testator leaves something to another 
 under an obligation to transfer it to a third person. If the 
 object of the trust was the whole succession or a part of it, 
 this was ciiRe^ fidei-commissaria hereditas, or fidei-commissum 
 universale ; if it was a single thing or definite sum of money, 
 it was called fidei-commissum singulw rei, ov fidei-commissum 
 speciale. In the first case, the obligation could only be im- 
 posed on the heir ; in the second, it might be laid on a lega- 
 tee, or any one who received something under the will. 
 
 A universal triist, by which the heir is requested to make 
 over the inheritance or a part of it to another, may be re- 
 garded as a species of substitution ; for the beneficiary takes 
 
 1 I. 2. 23. 1. 
 
CHAP. iv.J EOMAN TRUSTS. 273 
 
 in whole or in part the place of the first heir ; but it differs 
 from a vulgar substitution in this respect, that the beneficiary 
 can only take as a substitute after the first heir has entered 
 upon the inheritance. 
 
 The person charged with the trust was bound to restore the Obligations 
 subject at the time appointed by the testator, and, if no time tee. " ™'' 
 was mentioned, immediately after accepting the succession. 
 The testator might appoint the subject to be restored by the 
 first heir to the second, by the second to the third, and so 
 forth. "When a universal trust was constituted with substi- 
 tutions in favour of the family of the founder, it was called 
 fidei-commissum familicB} 
 
 The heir charged with the trust became proprietor in a 
 certain sense when he entered upon the inheritance ; but, 
 without the permission of the testator or the express consent 
 of all parties interested, he could not alienate the estate, ex- 
 cept for payment of debts affecting the succession, or pre- 
 venting the beneficiary from suifering damage. But, if the 
 heir was required to restore what remained of the succession 
 at the period of his own death — (fidei-commissum ejus quod 
 superfuturum est), he could under the new law dispose of 
 three-fourths of the estate, and was only bound to account to 
 the beneficiary for the remaining fourth, for which he might 
 be required to find security.^ 
 
 As the direct heir was free to accept or refuse the succes- 
 sion, there were reasons to apprehend that he would always 
 repudiate it when he was required to restore the whole estate 
 without deriving any benefit from. it. To obviate this diffi- Pegaaian 
 
 .-,, nni_i portion. 
 
 culty, the person charged with the trust was allowed by law 
 to retain a fourth part of the inheritance if he was universal 
 heir, or a fourth part of his hereditary portion if he was only 
 heir for a part ; but, on the other hand, he was bound to 
 accept the succession in order to discharge the trust. All 
 the debts affecting the succession were divided between the 
 
 1 N. 159. See Domat, part ii. = N. 108, oh. 1 and 2. Maokeldey, 
 b. 5, t. 3; Maokeldey, § 748. § 756. 
 
 S 
 
274 ROMAN TRUSTS. [p^bT 
 
 IV. 
 
 trustee who retained the Pegasian portion, and the beneficiary, 
 according to their respective interests.^ 
 A trast of a Particular things may also be the object of a special trust, 
 p^rfcuiar g^g ^ ggjjj^ ^ gj2ver cup, or a sum of money; and the person 
 charged with the trust may be the heir or a legatee. But no 
 man can be requested to give more than he has received by 
 means of the testament. A legacy was left in imperative 
 terms, a fidei-commissum in words of entreaty; but, notwith- 
 standing the difference in the form of expression, both were 
 binding in law. Justinian assimilated legacies and special 
 gifts in trust by abolishing aU ancient distinctions and ex- 
 tending the same rules of law to both, so far as this might be 
 necessary to make them effectual.^ 
 
 1 The Commentators often call tus-consultum. Ortolan, Institutes, 
 
 this portion the Trebellian fourth; § 962. 
 
 but it originated not under the Tre- " I. 2. 20. 3. 0. 6. 43. 
 bellian, but imder the Pegasian sena- 
 
CHAPTER V. 
 
 HOW TESTAMENTS AKE REVOKED OB ANNULLED. 
 
 -ROMAN LAW. 
 
 A TESTAMENT is null ob initio, if it be defective in any of the WiU null 
 formalities required by law. '^ '"''"• 
 
 In all cases a will is revocable during the life of the testa- win revo- 
 tor, but, when legally made, it remains valid till it is revoked testator^ 
 or rendered ineffectual. By the Eoman law a testament was 
 revoked by making a new one, even though it made no 
 express mention of the first. Per, as every will implied the 
 disposal of the whole estate, two testaments could not subsist 
 together, so that the second annulled the first ; but, in order 
 to have this effect, the second testament required to be com- 
 plete. Without making a new wUl, the testator might re- 
 voke a testament by cancelling or destroying it with that 
 intention. 
 
 A will might be annulled in whole or in part in various How an- 
 
 ,, ° nulled. 
 
 other ways. 
 
 1. By the subsequent birth, or adoption, of a child who was 
 passed over, the testament was rendered ineffectual, so far as 
 regards the institution of the heir. 
 
 2. By the testator changing his status — as, for instance, by 
 losing his liberty or his rights as a Eoman citizen — his will 
 became invalid. But if he recovered his status before his 
 death the praetor might sustain the testament, by giving to 
 the instituted heirs possession of the goods secundum tahulas. 
 
 3. "When the heir instituted could not or would not accept, 
 the testament was ineffectual as such ; but under the law of 
 
276 EETOCATION OP TESTAMENTS. [pabt iv. 
 
 Justinian legacies and fiduciary trusts could not be defeated 
 by the non-acceptance or renunciation of the heir. 
 
 4. The testament might be rescinded and declared null by 
 judicial sentence for non-compliance with the rules indispen- 
 sable to its validity.^ 
 
 In cases where a testament was nuU from the beginning, 
 or subsequently became invalid, the succession was generally 
 taken up ab intestato, unless the prsetor gave the possession 
 of goods secundum tahulas. But, as already explained, when 
 a testament was challenged as undutiful and only partially 
 rescinded, the succession might be partly testamentary and 
 partly ah intestato. 
 
 II. — ^FEBNCH LAW. 
 
 How will By the French Civil Code a testament cannot be revoked 
 iwf '" ill '^^ole °^ ill P^i"*^ except by a posterior one, or by an 
 instrument before notaries, declaring a change of wiU. A 
 posterior testament which does not expressly revoke a former 
 one does not annul it, except in so far as its provisions may 
 be found to be incompatible with, or contrary to, those in 
 the second will.^ 
 
 III. — ENGLISH AND SCOTTISH LAW. 
 
 country. 
 
 Howrevok- In England we have seen that, as a general rule, every 
 ed in this ^-^i jg revoked by a subsequent marriage; but, with that 
 
 p.mintrv. ^ j. w 
 
 exception, a wiU can only be revoked by another wiU, or 
 codicil, or some writing declaring an intention to revoke, and 
 executed Kke a wiU, or by the testator, or some person in his 
 presence and by his direction, destroying the will, with the 
 intention of revoking it.^ 
 
 By the law of Scotland a testament may be revoked by the 
 testator executing any probative writing declaring such to be 
 his intention, or by his making a new testament inconsistent 
 with the former one, or by deliberately cancelling or destroy- 
 ing the wiU with the intention of revoking it. 
 
 1 I. 2. 17. D. 2S. 3. 3 1 Vict. c. 26, s. 20. 
 
 2 Code Civil, art. 1035-6. 
 
CHAPTER VI. 
 
 OF LEGACIES. 
 
 I. — E OMAN LAW. 
 
 A LEGACY is a donation of a sum or subject whicli the testa- f^^'"^ "f 
 tor directs to be delivered after Ms death to the legatee.^ ^^*°^' 
 
 Anciently there were four kinds of legacies in use among Ancient 
 the Eomans — per vindicationem, damnationem, jorceceptionem, 
 sinendi modo. To each of these was assigned a certain form 
 of words ; but these distinctions were all abolished by the 
 imperial constitutions, and Justinian ultimately reduced all 
 legacies to one kind, which might be left either in a testa- 
 ment or codicil.2 
 
 All persons capable of making a will may leave legacies, '^'lat 
 Not only sums of money, rights, and debts, but lands and all bequeathed, 
 other things subject to commerce, whether corporeal or in- 
 corporeal, may be bequeathed. One may leave as a legacy 
 what is the property of another, and, if this was known to 
 the testator, the heir was bound either to purchase the thing 
 for the legatee or to pay its value to him. But, if the testa- 
 tor made a bequest of a thing belonging to another under the 
 erroneous belief that it was his own (which was to be inferred 
 unless the contraiy was proved by the legatee), neither the 
 thing nor its value could be claimed from the heir, it being 
 presumed that he would not have bequeathed the thing had 
 he known that it belonged to another.' These rules have 
 
 1 "Legatmn est donatio quaedam " I. 2. 20. 2 and 3. XJlp. 24. 1-6. 
 a defuncto, ab herede prsestanda." — ' I. 2. 20. 4. 
 I. 2. 20. 1. 
 
278 LEGACIES. [part IV. 
 
 been adopted in Scotland. In France a bequest of what be- 
 longs to another is invariably null, whether the testator 
 believed the thing to be his own or not.^ 
 Bequest of A Creditor may bequeath a debt due to him by a stranger ; 
 creditor. '^^^ the legacy is only effectual if any sum can be recovered 
 from the alleged debtor. When the discharge of a debt was 
 bequeathed to the debtor, which was called legatum libera- 
 tionis, it was effectual, so that no suit could be brought by 
 the testator's heir for the debt either against the debtor or 
 his representatives.^ 
 General If any One made a bequest generally of his jewels, pictures, 
 
 bequest. gtatucs, or the like, the legacy might be augmented by the 
 testator adding to the things bequeathed after the testament, 
 or diminished by his selling or otherwise disposing of a part 
 of them ; but in either case the bequest subsisted for what 
 remained. In like manner, the legacy of a herd of cattle or 
 flock of sheep might be increased or lessened by supervening 
 changes after the testament ; and it passed to the legatee 
 such as it was when the bequest fell due, although aU the 
 animals composing the original flock might be different from 
 what they were at first. If the flock received an increase 
 after the date of the testament, the legatee got the benefit of 
 it ; and, on the other hand, if the flock was reduced to a 
 single sheep, he was entitled to claim it.^ But if from any 
 cause the thing bequeathed was so entirely changed in its 
 nature or condition as no longer to fall under the original 
 description of it given by the testator, the bequest became 
 ineffectual. Thus, if one left a legacy of a flock of sheep, and 
 none of the animals remained ahve at his death, the legatee 
 had no right to claim the hides or the wool. Again, if the 
 testator bequeathed a ship, which was broken up and taken 
 to pieces before his death, the legatee could not claim the 
 materials. 
 SpeciHc In some of its legal consequences the distinction between 
 
 H^y- a specific and a general legacy is important. A specific 
 legacy is one where the object is so particularised as to be 
 distinguished from aU others. A general legacy is one where 
 1 Code Civil, art. 1021. ' I. 2. 20. 31. « I. 2. 20. 18. 
 
CHAP. VI.J LEGACIES. 279 
 
 the object is indeterminate and is not distinguished from 
 other things of the same kind belonging to the deceased. If 
 one bequeath a landscape by Claude, and he has only one 
 picture by that artist, there can be no doubt what is meant ; 
 the legacy is specific. But if a testator bequeath simply a 
 horse, to be taken from several in his stable, or a landscape, 
 to be taken from several in his gallery, how is the selection 
 to be made ? This may vary according to circumstances. If 
 the right of selection be given to the legatee, he may choose 
 the horse or picture which he considers most valuable ; if the 
 choice be left to the heir, he may exercise his discretion with 
 a due regard to the will ; and, if no choice be given to either, 
 the heir cannot be compelled to give the best thing, nor the 
 legatee to accept the worst — a rule which has been followed 
 in the modern French Code.-' 
 
 If the same thing was bequeathed to two or more persons. Accretion 
 either jointly {conjundim) or separately (disjunctim), each i^atMs. 
 took an equal share ; and if any one of them predeceased the 
 testator, or failed to take his portion, it fell by accretion to 
 the rest.2 But this right does not take effect when the testa- 
 tor forbids it expressly ; and if one of the co-legatees only 
 fails after he has acquired right to the legacy, it transmits to 
 his heirs.3 
 
 Accretion has no place among the conjuncti verbis tantvm, 
 being those to whom the thing has been bequeathed, with a 
 severance or division into parts between them — for instance : 
 '' I leave to Titius and Seius a particular estate or subject, in 
 equal portions, or one half to each of them," or in any other 
 proportion, — quoniam semper partes habent legatarii.^ 
 
 In Scotland it has been repeatedly decided, that where a 
 legacy has been left to two persons, to be divided equally 
 between them, the jus aocrescendi does not take place in 
 favour of the survivor.^ But accretion has been found to 
 take place where, in the clause of institution, the legatees 
 
 112. 20. 22 and 23. Warn. Inst. p. 578, § 870. 
 
 § 689. Code Civil, art. 1022. « stair, 3. 8. 27. Bankton, 3. 8. 
 
 '^ 2 I 2 22 8 S2. Paterson, M. 8070 ; Kove, M. 
 
 B Mackeldey, § 740. 8101. Torrie, 31st May 1832, 10 Sh. 
 
 * D. 32. 3. 89. Ortolan, voL ii. 597. 
 
280 LEGACIES. [I'AKT I"^- 
 
 were conjunct both as to the matter and the words, according 
 to the rule of the civil law, by which, in such conjunct rights, 
 the survivor takes the whole.^ 
 Errors in A legacy may be effectually bequeathed in any words 
 s^^lion!^^' which express the desire of the testator that it should be 
 paid. An error in the name of the legatee will not vitiate 
 the legacy, if his description is otherwise sufficient to fix his 
 identity. So also a mistake in the description of the thing 
 bequeathed, or a false inductive clause added to a legacy, 
 will not make it void.^ But if any one bequeath a specific 
 thing, describing it as " my diamond ring," or " my set of 
 Sevres china,'' and nothing answering the description can be 
 found among the effects of the deceased, the legacy is null. 
 Legacy The general rule of law is that a legacy implies dilectus 
 
 decease IV' persoiim, and so is personal to the legatee. From the nature 
 legatee. q£ ^ mortis causu bequest it only becomes effectual at the 
 testator's death, and must necessarily fall by the predecease 
 of the legatee. As a consequence of this rule, it is, in the 
 ordinary case, indispensable to mention other persons intended 
 to be favoured failing the legatee, when it is meant that the 
 legacy shall not lapse by his predecease ; and this is usually 
 done by a clause of conditional institution or substitution. 
 Lpgacies Whether a legacy has vested in a legatee so as to be dis- 
 condit^nai. posablc as his property, depends upon the particular terms 
 of the bequest, which may or may not contain conditions 
 qualifying the nature of the right and affecting the term of 
 payment. "Whatever may be the nature of the legacy, no 
 right to it can belong to the legatee or be transmitted from 
 him to his representatives, if he die before the testator. If 
 the legacy be pure and simple, so as not to depend on any 
 condition for its validity, the right to it vests in the legatee, 
 and will transmit to his representatives by his surviving the 
 testator, even though it should not be payable till a future 
 period and the legatee should die before the term. When 
 the legacy is conditional, so that its efficacy depends upon an 
 event or contingency, and the legatee, though he should survive 
 
 1 See Barbour, 6th Feb. 1835, 1.3 D. 94. 
 Sh. 422; Tulloch, 23d Nov. 1838, 1 212. 20. § 29, 30, 31. 
 
CHAP. VI.J ENGLISH LAW — LEGACIES. 281 
 
 the testator, dies iDefore the condition is fulfilled, he acquires 
 no right to the legacy. It is a condition rendering a legacy 
 contingent if it is made payahle on a future event -which may 
 never happen. All legacies for payment of which no term is 
 prescribed, and which are not conditional, ought to be paid 
 immediately after the succession is accepted by the heir. In 
 the Eoman law the phrase dies cedit, when applied to a 
 legacy, means that the period of vesting has arrived ; and 
 dies venit means that the time has come when the legacy 
 may be demanded.^ 
 
 The estate of the testator is primarily liable for his debts, 
 and if he die insolvent the legacies are not due : — Bona in- 
 telliguntur cujusque, quae deducto cere alieno supersunt^ 
 
 Legacies may be revoked by the testator either expressly Revocation 
 in a win or codicil, or tacitly by disposing otherwise of the "^'®s»<!ies. 
 thing bequeathed. A bequest to a debtor of a debt due by 
 him is revoked, if the debtor is afterwards compelled to pay 
 it in the testator's lifetime. So if the testator, after bequeath- 
 ing a thing, should sell it or make a gift of it to another per- 
 son, this would annul the legacy. A legacy is also annulled 
 when it is transferred to a second legatee in room of the first, 
 and this holds good even though the second legatee should die 
 before the testator. If the thing bequeathed should perish in 
 the lifetime of the testator, or even after his death and before 
 delivery, without the fault of the heir, the legacy would be 
 ineffectual ; but if the loss was occasioned by the fault of the 
 heir, he could be compelled to make it good.^ 
 
 II. ENGLISH LAW. 
 
 By the English Statute of "Wills. 1 V i ct, c. 26. s. 33. " where Direction in 
 any person, being a child or other issue of the testator to whom ^*u"'° °' 
 any real or pers onal estate shaH be devised or bequeathed, for 
 anyestate or interest not determinable at or before the death 
 of such person, shairdie inthe lifetime of the testator leaving 
 
 ^ " Cedere diem significat, incipere peti possit." — D. 50. 16. 213. 
 deberi pecuniam. Venire diem signi- ^ D. 50. 16. 39. 
 ficat, eum diem venisse, quo pecunia ' I. 2. 20. 16. 
 
282 
 
 SCOTTISH LAW— LEGACIES. [pabT IV. 
 
 issue, and .anxJTicIi^ssue^of such ECT^^^^^ sIialLV»ftJiving at the 
 timeof the dp.ath of| |i e testator^ snjh deyise,pr igque^tshalL 
 
 not lapse; Tjut's'bail tK effect. ^^- ^^ *^^ ^^^^^ °^ ^^'^^ persoft, 
 haTha^euedJmme^^ %e_death o£_thejbestato^ 
 
 unless acontrar;^ intention shall appear by thewilL'' Under 
 thlT enactinenTthe' issue do' nottake directly in their own 
 right under an implied substitution, but the legacy is given 
 to the deceased legatee absolutely, as though he had survived 
 the testator ; " and it is therefore disposable by the will of 
 the legatee." ^ 
 This is an Apart from this special regulation, it is a general rule of 
 to afe gTn- the law of England that unless the legatee survive the testator 
 eiai rule, ^j^^ legacy lapscs, and this holds even where the legacy is given 
 to the legatee "and his executors, administrators, and assigns." 
 But it appears to be established that where the bequest is " to 
 A or his heirs," or " to A or his personal representatives," the 
 word " or," generally speaking, implies a substitution, so as 
 to prevent the bequest from lapsing.^ 
 
 III. — SCOTTISH LAW. 
 
 Rules of In Scotland it has been repeatedly decided that wherever 
 
 asto vesth.1 a legacy is given, not merely to an individual, but also " to his 
 and lapsing ^ j^g ^^^ exccutors," it will not lapse by the legatee named 
 
 of legacies. """" ,, , , i . i • j. 
 
 predeceasing the testator, but will belong to his heirs or next 
 of kin in their own right as conditional institutes.^ It may 
 also be observed that the Scottish law, while it adopts the gen- 
 eral rule that a legacy to which heirs are not substituted lapses 
 by the legatee dying before the testator, recognises an implied 
 substitution of grandchildren or direct issue, founded on the 
 principle of paterna pietas, in legacies or provisions by a 
 father to a child, either singly or as one of a class, whether 
 there be or be not an express substitution of another, failing 
 the child, to the effect of passing the right to the issue of the 
 child on his predeceasing the testator.* 
 
 1 Williams on Exec, p. 1098. ^ More's Stair, vol. ii. p. 344, 
 
 2 Williams on Exec, p. 1085 and notes. 
 
 1088. * Dixon, 10th June 1836, 14D. 938. 
 
CHAPTER VII. 
 
 OF EOMAN INTESTATE SUCCESSION. 
 
 An intestate is one who dies witliout a will, or who leaves a intestacy 
 wlU which is not valid. The law appoints the person or per- '^^'^°*'^- 
 sons who are to succeed to his property, according to certain 
 rules, which maiiily depend upon their proximity in blood 
 to the deceased. 
 
 Eelationship between two persons arises either from the Relation- 
 one being descended from the other, which makes the connec- * '^' 
 tion between ascendants and descendants, or from their being 
 both descended from the same common ancestor, which makes 
 the connection between collaterals. All blood relations are 
 either descendants or ascendants or collaterals. Consanguinity 
 is distinguished by two lines, the direct and the collateral. 
 The degrees of direct consanguinity are reckoned by counting 
 the number of descents between the ancestor and the de- 
 scendant. Thus father and son are related in the first degree, 
 grandfather and grandson in the second degree. 
 
 The degrees of collateral consanguinity are differently reck- 
 oned in the civil and in the canon law. The civil law 
 reckons the number of descents between the persons on both 
 sides from the common ancestor. By this rule brothers are 
 in the second degree and cousins-german in the fourth. But 
 the canon law counts the number of descents between the 
 common ancestor and the two persons on one side only, and, 
 if they are not equally near, on the side of the one who is 
 most distant from the common ancestor. Thus by the canon 
 
284 
 
 ROMAN INTESTATE SUCCESSION. [P^ET IV. 
 
 Full Wood 
 aiid half 
 blood. 
 
 Intestate 
 succession 
 before 
 Justinian. 
 
 Rules by 
 
 Twelve 
 
 Tables. 
 
 Gentiles. 
 
 law brothers stand related to each other in the first degree, 
 and an uncle and nephew in the second degree. 
 
 Among coUateral kindred it is necessary to distinguish be- 
 tween the whole blood and the half blood. Persons are con- 
 nected by fun blood who are descended of the same lather 
 and mother. The nearest are brothers and sisters geiman. 
 The half blood may be either consanguinean or uterine ; the 
 first are persons descended of the same father but not of the 
 same mother, and the second are persons descended of the 
 same mother but not of the same father. 
 
 In regulating succession, the Eoman law takes no account 
 of the nature or origin of the property left by the deceased, 
 and in particular it makes no distinction between real and 
 personal estates, which by the modern law of succession in 
 this country are governed by totally different rules. 
 
 Under the decemviral law, succession ab intestato was based 
 on thepatriapotestas, or the ancient constitution of the Eoman 
 family. Hence there were three classes called to succeed. 
 
 In the first order were the sui heredes, that is, children or 
 grandchildren under the power of the father whose succession 
 had opened. Daughters under power succeeded like males, 
 and took an equal part. Adopted children were under power, 
 and the wife if in manu. The sui heredes were so called be- 
 cause they belonged to the defunct by the paternal power. 
 
 Failing sui heredes, the succession belonged to the nearest 
 agnates, who excluded the more remote. Agnates are relations 
 by males; they are those who would have been aU subjected 
 to the same power if the common head were still alive. The 
 sister is agnate of her brother when both are born of the 
 same father. Beyond this the right of succession was stopped 
 for women under the decemviral law. 
 
 In the third place, failing agnates the succession devolved 
 on the gentiles, who inherited together. 
 
 According to Cicero, the gentiles must bear the same name, 
 such as Scipio, Brutus, and the like. They must be descended 
 from free persons, not from slaves. They must not pass by 
 adoption into another family. If they do so, they take the 
 name of the gens to which they have emigrated, and remain 
 
y.-^^c. VX1.J ROMAN INTESTATE SUCCESSION. 285 
 
 no longer in their original gens. Thus community of name 
 and pure extraction, without any taint of servile blood, are 
 the essential characteristics of Eoman gentility.^ In the re- 
 volutions that affected public institutions, the gentiles ceased 
 to be called to the succession, and persons connected by the 
 tie of blood were preferred. 
 
 Gains has pointed out the harshness of the rules of intes- Harahness 
 tate succession in the Twelve Tables. A son not under power rui^!^* 
 from having been emancipated, or from any other cause, could 
 not succeed, because he was not in the famQy and no longer 
 among the sui heredes. So agnates who underwent a change 
 of state lost agnation, and along with it the right of succes- 
 sion. Female agnates, other than sisters, could not succeed. 
 Finally, cognates or relations by women were wholly ex- 
 cluded, so that even the mother, who was not in manu mariti, 
 did not succeed to her son and daughter, and her son and 
 daughter did not succeed to her.^ 
 
 The second period of intestate succession before Justinian Pratorian 
 comprises the innovations introduced by the praetors, who '™' 
 relaxed the severity of the decemviral law. They called to 
 the succession, by the indirect plan of the possession of goods, 
 all the children without distinction, whether emancipated or 
 not, by the edict unde liberi ; the wife not in manu and the 
 husband by the edict v,nde vir et uxor ; the more remote 
 agnates, though emancipated, by the edict unde legitimi; the 
 cognates by the edict unde cognati; and so forth. 
 
 When the praetor called emancipated children to the pos- CoUatio 
 session of goods by the edict unde liberi or contra tabulae, he <'°"™"- 
 obliged them to throw into the succession aU the separate 
 property which, if they had remained under power, would 
 have belonged to the head of the family, so as to place them 
 on an equal footing with their brothers who had not been 
 emancipated. This was called collatio bonorum. 
 
 The same principle was afterwards extended to a daughter 
 even though not emancipated, who was bound to bring into 
 account the marriage portion she received from the head of 
 
 > Oicero, Topic, c. 6. Giraud, Dis- ^ Gai. 3. 18-24 
 
 sertation sur la Gentility Romaina 
 
Intestate 
 
 successiou 
 
 286 BOMAN INTESTATE SUCCESSION. [^^^'^ ^^• 
 
 the family in any acconntiag with the other children. The 
 Emperor Leo extended this obHgation to the donat^o j^opter 
 
 ""mv, Justinian ordained that aU the children without 
 distinction, succeeding ab intestate to the property of ascend- 
 ants/ should be obliged to collate aU those things which 
 were imputable to legitim in a complaint of a testament as 
 undutiful.^ 
 
 Notwithstanding all the improvements introduced by the 
 „_„... pra^^torian edicts, Justinian found it necessary, at the close ot 
 "ia.. his reign, to remodel and simplify the rules of intestate suc- 
 cession, and establish a new system by the 118th Novel, 
 which was published A.D. 543. To this an important addi- 
 tion was made by the 127th Novel _ _ 
 
 In the Eoman law of succession not only is no distinction 
 made between real and personal estates, but primogeniture is 
 ^^^^■^-J ■ ^r^ tbere is no prefere^of males over females, 
 ''^^inity being the basis of Justinian's law, blood 
 relations succeed ab intestato. Except in the instance of the 
 surviving spouse of the intestate, affinity or relationship by 
 marriage gives no right of succession^ There is no difference 
 between agnates and cognates ; the nearer in degree in either 
 excluding the more remote in either. Certain persons, how- 
 ever, unconnected with the deceased by blood, have the right 
 of succession on special grounds. 
 
 The following is the order in which relations succeed ah 
 intestato under the law of the Novels :— 
 
 First the succession is devolved on the descendants of the 
 
 General ' 
 
 rules. deceased. 
 
 Secondly, failing descendants, the nearest ascendants are 
 called ; but if there be brothers and sisters, and the children 
 of deceased brothers and sisters, they are entitled to succeed 
 together along with ascendants in the same class. 
 
 Thirdly, half brothers and sisters consanguinean and 
 uterine, and the sons and daughters of such half brothers 
 
 1 De Fresquet, vol. ii. p. 18. ^ Ortolan, Institutes, § 1127-1130. 
 Marezoll, § 218. ^ C. 6. 59. 7. 
 
i.nAf. vii.j ROMAN INTESTATE SUCCESSION. 28? 
 
 and sisters as had predeceased the intestate, are called in the 
 third class. 
 
 Pinally, in the fourth class are comprehended all other 
 collateral relations, without distinguishing whether they are 
 connected with the defunct on both sides or on one side only, 
 but always according to the proximity in degree.^ 
 
 I. — DESCENDANTS. 
 
 If a person dies intestate leaving lawful children, they all First cUsa. 
 succeed to him by equal portions without distinction of seXj 
 and if there is only one child, he takes the whole estate. A 
 descendant of either sex, or any degree, is preferred to aU 
 ascendants and collaterals. 
 
 In the direct descending line the right of representation Representa- 
 takes place in infinitum. The effect of this is, that the de- ''"''■ 
 scendants of a son or daughter who has predeceased, take the 
 same place and share of the succession that their parent 
 would have done had he been alive. This right is admitted 
 when the children of the intestate in the first degree coexist 
 with the descendants of a son and daughter in whatever 
 degree they may happen to be. Thus the children of the in- 
 testate succeed to equal shares per capita, while the grand- 
 children by a son deceased succeed only per stirpes to the 
 share which their parent would have had if he had been alive. 
 
 Even when grandchildren by different sons or daughters When 
 stand alone, though they are all equally near in degree to the ^en take 
 intestate, they take by representation, so that if they happen *'™^- 
 to be unequal in their numbers as derived from different 
 stocks, the succession is divided among them, not by the head 
 in equal portions, but per stirpes, the descendants of each 
 son or daughter having no more among them all than the 
 portion which their father or mother would have taken if 
 alive.2 In England a different and more equitable rule is 
 
 - MarezoU, § 206. Maokeldey, art. 3. Dr Harris, Justinian's Inst. 
 649-653. 3. 1. 6, p. 186, note. 
 
 ' Domat, part 2, b. 2, tit. 1, § 2, 
 
288 ROMAN INTESTATE SUCCESSION. [p^ET IV. 
 
 followed. For if all the children are dead and only grand- 
 children exist, they all take, not by famHies, hut per capita, 
 that is, equal shares in their own right as next of kia^ 
 
 II. — ^ASCENDANTS WITH OK WITHOUT COLLATERALS. 
 
 Second If there are no descendants, the father and mother and 
 
 '''^" other ascendants exclude all collaterals fromthe succession, 
 
 except brothers and sisters of the whole blood and the 
 children of deceased brothers and sisters, who may succeed 
 concurrently with ascendants in the manner to be imme- 
 diately explained.2 ■» 
 
 Three cases may possibly occur affecting succession in the 
 ascending line: — First, the succession of ascendants alone, 
 where there are no collaterals falling within the favoured 
 category; secondly, the concurrence of ascendants with 
 brothers and sisters of the whole blood; and, thirdly, the 
 concurrence of ascendants with brothers and sisters of the 
 whole blood and also with the children of deceased brothers 
 and sisters. 
 Ascendants 1. When asccndauts stand one, the father and mother 
 *'™®' succeed in equal portions, and if only one of them survives, 
 he or she succeeds to the whole estate. There is no repre- 
 sentation among ascendants, and the nearest in degree ex- 
 cludes the more remote, so that the father alone, or the 
 mother alone, will exclude grandparents. 
 
 When several ascendants concur in the same degree, some 
 on the fathei^s side and some on the mother's side, the suc- 
 cession is divided into two equal parts, one of which is given 
 to the paternal ascendants and the other to the maternal 
 ascendants per tineas, though the number of individuals 
 should be less on one side than on the other. 
 Ascendants 2. If there be brothers and sisters of the whole blood, they 
 bro°fe7s Mid ^^^ called to the succession along with the father and mother 
 sisters. qt Other asccudants, and the estate is divided among them in 
 capita, that is, according to the number of persons. So where 
 1 Williams's Exec, p. 1348, 1349. = N. 118, ch. 2. N. 127, ch. 1. 
 
vu^f. VII.J KOMAN INTESTATE SUCCESSION. 289 
 
 the deceased leaves a father and mother, and a brother and 
 sister, each is entitled to a fourth of the succession. 
 
 Voet was of opinion that under the 118th Novel, ch. 2, 
 only the father and mother could succeed along with the 
 brother of the intestate, and consequently that the brother 
 excluded the grandfather.^ This principle was recognised in 
 the law of England in the case of Evelyn, decided by Lord 
 Chancellor Hardwick in 1754 ;2 but Domat and other emi- 
 nent civilians have rejected the opinion of Voet. They say 
 he has given an erroneous version of a passage in the Greek 
 Novel 118, ch. 2, by the words " si aut pater aut mater 
 fuerint," while the clause should be translated, as it is by 
 Warnkoenig, " etsi pater aut mater sint," the true meaning of 
 the law being that brothers and sisters are called to the suc- 
 cession along with ascendants, even although these ascend- 
 ants should be a father and mother.^ 
 
 3. By the 118th Novel the children of a deceased brother And also 
 or sister german were not admitted to the succession along dren of dc- 
 
 with ascendants or surviving brothers and sisters ; on the brother < 
 contrary, they were excluded by ascendants. This was cor- "*'*''• 
 rected by the 127th Novel, ch. 1, which allowed those 
 children to succeed along with ascendants and surviving 
 brothers or sisters, so as to take by representation the share , 
 which would have fallen to their parent had he or she been 
 alive. 
 
 Whether these nephews are entitled to succeed along with 
 ascendants alone, when there are no surviving brothers of the 
 deceased, is a doubtful question, which has led to much con- 
 troversy. By the 118th Novel these nephews are excluded 
 by ascendants : and by the 127th Novel they are only ex- 
 pressly called when brothers succeed along with ascendants, 
 from which it is inferred that they are not admitted with 
 ascendants alone. This is the conclusion to which Cujas has 
 
 ^ Voet, Com. ad Pand., torn. iL p. 1. Muilenbruch, Dootrina Pandeo- 
 688. tarum, vol. iii. p. 227. Warn. Inst. 
 
 ' Evelyn v. Evelyn, 3 Atkyns, § 510. Dr Irving, Introduction to 
 762. Civil Law, p. 99. 
 
 3 See Domat, part 2, b. 2, t. 2. s. 
 
 T 
 
290 
 
 ROMAN INTESTATE SUCCESSION, [paet iv. 
 
 arrived, and Pothier says he thinks it is most in accordance 
 ■with the true meaning of the Novel.^ 
 
 III. — COLLATERALS. 
 
 Succesgiou 
 of collate- 
 rals. 
 
 Brothers 
 and sisters 
 germ an. 
 
 As a general rule, collaterals who are nearest in the degree 
 of kindred to the deceased are called together to his succes- 
 sion, and exclude those who are in a degree more remote. 
 This rule suffers limitations in the Eoman law by the pre- 
 ference given to the full blood over the half blood, and by 
 the right of representation, which in collateral succession is 
 given to the children of brothers and sisters, but extends 
 no further. 
 
 If a person dies leaving neither descendants nor ascend- 
 ants, his brothers and sisters of the fuU blood succeed to his 
 estate in equal shares.^ But if the intestate leaves brothers 
 or sisters, and also nephews or nieces by a deceased brother 
 or sister, these last will succeed, along with their uncles and 
 aunts, to the share which their parent would have taken if 
 alive. Among collaterals, however, as already explained, this 
 privilege of representation does not extend beyond the sons 
 and daughters of brothers and sisters. 
 Nephews. If the intestate's brothers and sisters are dead, and nephews 
 alone succeed, it has been made a question how the estate 
 is to be divided. Azo contends that it must be divided in 
 capita, and Accursius in stirpes. Vinnius holds that when 
 there are only nephews there is no representation, and con- 
 sequently that each of them takes an equal share in his 
 own right ; and this is the rule of distribution adopted in 
 
 England.' 
 
 Half 
 brothers 
 and sisters. 
 
 On the failure of brothers and sisters by the whole blood, 
 and their children, the brothers and sisters by the half blood 
 
 1 Pothier, TraitS des Successions ' Vinn. Com. lib. 3, title 5, p. 
 chap. 2, s. 2. Warn. Inst. 2. p. 150 539. Dr Harris, Justinian's Insti- 
 note. tutes, 3. 2. 4, p. 197, note, 
 
 2 N. 118, ch. 3. 
 
UHAP. vii.J EOMAN INTESTATE SUCCESSION. 291 
 
 succeed, whether they are by the same father only or by the 
 same mother. And if any of these brothers or sisters by the 
 half blood have died leaving children, the right of repre- 
 sentation is extended to them so as to enable them to suc- 
 ceed to the share which would have fallen to their parent 
 if alive, just as in the case of children of brothers-german.' 
 
 AH the other relations of the deceased are called to the other reia- 
 succession according to their proximity in degree, the nearer jlTe^ee."' 
 being always preferred to the more remote ; and if many are 
 found in the same degree, whether on the father's side or on 
 the mother's, the estate must be divided among them in equal 
 shares, according to the number of persons.^ 
 
 For particular reasons the Eoman law gives a right of sue- Special 
 cession to other persons besides relations. succession. 
 
 When one of two married persons dies without leaving any Husband 
 relations, the survivor, whether husband or wife, is called to ""'' '"^®' 
 the succession under the edict of the praetor unde vir et uxor, 
 which was confirmed by imperial constitutions.^ 
 
 A widow who was poor and unprovided for had a right to 
 share in the succession of her deceased husband. When he 
 left more than three descendants the widow was entitled to 
 participate with them per capita; and if there were only 
 three or fewer descendants, or if other relations of the hus- 
 band were called, her portion was fixed at a fourth of the 
 estate. If she had children by the deceased, she had only 
 the usufriict of her portion during her life, and was bound 
 to preserve it for these children ; but in all other cases she 
 acquired her share in full property, and could dispose of it at 
 her pleasure.* 
 
 If a man had no lawful descendants or ascendants, he Natural 
 might by will give his whole inheritance to his natural chil- 
 dren — that is, those born of a concubine — or to their mother : 
 but if he had lawful children, he could only leave one-twelfth 
 to the natural children and their mother. If the father died 
 intestate, without leaving a lawful wife or lawful issue, his 
 
 1 N. 118, ch. a 3 I. 3. 9. 6. D. 38. 11. C. 6. 18. 
 
 2 Ibid. * N. 117, ch. 5. 
 
292 KOMAIf INTESTATE SUCCESSION. [part iv. 
 
 natural children and" their mother were entitled to receive 
 
 two nncise, or one-sixth of the succession, and the remainder 
 
 fell to the lawful heirs.^ 
 Treasury On the failure of all heirs and successors, testamentary and 
 
 hirS"' legal, the succession devolved on the Treasury, under the 
 
 burden of paying the debts of the deceased to the extent of 
 
 the value of the estate. 
 
 ' N. 89, ch. 12, § 2 and 3, and oh. 15. De Fresquet, vol. ii. p. 41. 
 
CHAPTER VIII. 
 
 OF INTESTATE SUCCESSION IN FEANCE, ENGLAND, AND 
 SCOTLAND. 
 
 I. FRENCH LAW. 
 
 In the modern law of France no distinction is made between No distinc- 
 real and personal estates in the matter of succession ; there tween^reai 
 is no privilege of primogeniture, and no preference of males ^j^t'^r™*' 
 over females ; and many of the rules are similar to those in 
 the Eoman law. 
 
 Children and other descendants, of whatever degree, male Euies of in- 
 or female, exclude all other relations, whether ascendants or cwa Code. 
 collaterals. 
 
 If the intestate die without issue, survived by his father 
 and mother, and brothers or sisters, or their descendants, one 
 half of the succession goes to the parents equally between 
 them, and the other half belongs to the brothers and sisters, 
 and their descendants. If only one of the parents survive, 
 his or her share is limited to a fourth, and the other persons 
 mentioned succeed to three-fourths. If neither parent sur- 
 vive, the brothers and sisters, and their descendants, take the 
 whole estate, to the exclusion of ascendants and other col- 
 laterals. 
 
 When the intestate leaves no issue, and no brothers or 
 sisters, or their descendants, the succession is divided into 
 two equal portions between the ascendants of the paternal 
 line and the ascendants of the maternal line. 
 
 For further information on the rules of intestate succession 
 in France, reference may be made to the Civil Code, articles 
 745-755. 
 
294 ENGLISH CANONS OF DESCENT. [part iv. 
 
 II. ENGLISH LAW. 
 
 Descent to By the law of England, as /well as of Scotland, the rules of 
 ™ ■ succession to lands are quite different from those which re- 
 late to personal property. In England, descent signifies the 
 title by which a man acquires an estate in lands as the heir- 
 at-law of a person deceased, and the estate itself is called the 
 inheritance. 
 Inheritance By the Inheritance Act, 3 & 4 "William IV. c. 106, which 
 applies to deaths occumng after 1st January 1834, the heir 
 must trace his descent, not from the person last seised, but 
 from the purchaser — that is to say, from the person who last 
 acquired the land otherwise than by descent, or by any 
 escheat, partition, or enclosure, making the land descendible 
 as if acquired by descent.-' 
 
 It often happens, however, that it is uncertain by whom an- 
 estate was originally purchased; and to obviate this difficulty 
 the Act declares that the person last entitled to the land shall 
 be considered to have been the purchaser, unless it be proved 
 that he inherited it ; and the same rule is applied at every 
 step upward of the pedigree.^ Where there is a total failure 
 of heirs of the purchaser, or of an ancestor held as such, the 
 descent is traced from the person last entitled to the land, as 
 if he had been the purchaser.^ Actual seisin is unnecessary 
 in the purchaser, or the person to be deemed such.* 
 Descent The rule, that in every case descent must be traced from 
 
 p^chase?" the purchaser, though newly introduced by the Inheritance 
 Act, is founded on a maxim peculiar to the English law, that 
 none can claim as heir who is not of the blood of the pur- 
 chaser. Eespect is had to the origin of landed property, and 
 the ancestor who acquired it by purchase, so that land which 
 came by the father shall descend to the heirs on the part of 
 the father, and land which came by the mother shall descend 
 to the heirs on the part of the mother— paterna paternis et 
 
 ^Seot. 1. * Lord St Leonards's Practical Trea- 
 
 ' Sect. 2. tise on New Statutes relating to Pro- 
 
 5 22 & 23 Vict. u. 35, sect. 19. perty, 2d ed., p. 257. 
 
UMAF. VIII.J ENGLISH CAKONS OF DESCENT. 295 
 
 materna maternis. No sucli rule obtains in Scotland, where 
 the law looks no farther hack than to the last owner of the 
 estate, and assigns him an heir without considering from 
 what ancestor the estate was derived.^ 
 
 To illustrate the English rule, suppose that John dies 
 owner of an estate which he inherited from his father George, 
 who purchased it, the claimant must prove that he is heir by 
 the right of blood to George the father, instead of John the 
 last owner. The consequence of this is, that no relation of 
 John on the mother's side can as such succeed to the estate ; 
 but, if the estate descended to John from his mother, who is 
 known to have been the purchaser, the descent in that case 
 must be traced from her, and John's relations on the father's 
 side are excluded on the same principle.^ 
 
 According to the law of England, inheritances lineally Canons of 
 descend to the issue of the person last entitled in infini- ''^'"^"'• 
 turn ; the male issue is admitted before the female ; where 
 there are two or more males in equal degree, the eldest only 
 inherits ; but females, where there are several, take together. 
 
 The lineal descendants of any person deceased represent 
 their ancestor ; that is, stand in the same place as the person 
 himself would have done had he been living. So, by right 
 of representation, the child or grandchild, whether male or 
 female, of an eldest son, succeeds before the younger son. 
 
 On failure of lineal descendants or issue of the person last 
 entitled, the inheritance ascends and descends to the lineal 
 ancestors and to the collateral relations of the purchaser. 
 Thus, next after descendants, the father, as the nearest lineal 
 ancestor, succeeds in preference to a brother under the sixth 
 section of the Inheritance Act. On the failure of the father, 
 the brothers and sisters and their descendants take in their 
 order in preference to the grandfather, and the estate does 
 not pass to any remoter lineal ancestor till the issue of the 
 father are exhausted. 
 
 The nearest lineal ancestor is the heir of the purchaser in 
 preference to any of the descendants of such lineal ancestor, 
 
 ' Stephen's Com. on the Laws Ersk. 3. 8. 10. 
 of England, 4th ed., voL i. p. 388. ^ Stephen's Com. vol. i. p. 389, 390. 
 
296 ENGLISH CANONS OP DESCENT. [part IV. 
 
 and to more remote lineal ancestors and their descendants 
 (other than himself), and the descendants of such lineal 
 ancestors succeed next after, or in default of him.^ Farther, 
 the paternal ancestors of the person from whom the descent 
 is to be traced and their descendants, are always preferred to 
 his maternal ancestors and their descendants.^ 
 
 Between coUaterals of a purchaser, a relation of the half- 
 blood succeeds next after any relation in the same degree of 
 the whole blood and his issue, where the common ancestor 
 is a male ; and next after the common ancestor where such 
 common ancestor is a female. So the brother of the half 
 blood on the part of the father inherits next after the sisters 
 of the whole blood on the part of the father and their issue ; 
 and the brother of the half blood on the part of the mother 
 inherits next after the mother.^ Before the Inheritance Act 
 kinsmen of the half blood were wholly excluded. The col- 
 laterals of the half blood of a person last entitled, who was 
 not a purchaser, will take in a course of descent from the 
 purchaser of whose whole blood they are, by force of the 
 direction, that in every case the descent shall be traced from 
 the purchaser. 
 
 Lastly, in lineal ascending and in collateral inheritances 
 the male stocks are preferred to the female — that is, the 
 male ancestors and kindred derived from their blood, how- 
 ever remote, are admitted before female ancestors and kin- 
 dred derived from their blood, however near— unless where 
 the lands have in fact descended from a female. 
 
 These canons of descent have been transcribed almost in 
 the words of Lord St Leonards from his ' Practical Treatise 
 on the New Statutes relating to Property,' which contains a 
 comparative view of the ' Canons according to Blackstone,' 
 and the ' Canons according to the New Law grafted upon 
 the Old ; ' and to this work our readers are referred as the 
 best exposition of this difficult subject.* 
 
 There are two anomalous modes of descent (gavelkind 
 and borough English) which prevail in some parts of 
 
 1 Sect. 6. 3 geot. 9. 
 
 2 Sect. 7. * Practical Treatise, 2d ed., p. 264. 
 
CHAP. VIII.] ENGLISH INTESTATE SUCCESSION. 297 
 
 England ; but the nature of these customs has already been 
 explained.^ 
 
 In the distribution of the personal estate of an intestate, Distiibu- 
 the law of England gives the same preference as the civil \a.w fZoLi 
 to the children and lineal descendants of the deceased, only ^^'*'''- 
 taking in the widow, if there is one surviving. After the 
 • expiry of a year from the death of the intestate, his personal 
 property is distributed in the following manner : — One-third Descend- 
 goes to the widow of the intestate, and the residue in equal wWotJ!'' 
 portions to his children, or if dead to their representatives, 
 that is, their lineal descendants ; if there are no children or 
 descendants of children, then a moiety goes to the widow, 
 and a moiety to the next of kin in equal degree, and their 
 representatives ; if no widow, the whole goes to the children ; 
 if neither widow nor children, the whole is distributed among 
 the next of kin in equal degree and their representatives. 
 Among descendants children represent their parents ad in- 
 finitum; but no representatives are admitted among col- 
 laterals farther than the children of the intestate's brothers 
 and sisters.^ In determining the next of kin under the Relations 
 English Statute of Distributions, the degrees of propinquity and mo*^' ' 
 are reckoned according to the computation of the civil law ; ^^^^'^ '"** 
 and the relations on the mother's side share equally with the equ.iiiy. 
 relations on the father's side in the same degree. 
 
 The heir-at-law, if one of the next of kin, has an equal Heir may 
 part in the distribution of the personal property with the rest personal 
 of the children, without taking into account the value of the P'ope''/' 
 land which he has received by descent or otherwise from the 
 intestate ; but if the heir-at-law has had any advancement 
 from his father out of his personal estate, this is counted as 
 part of his share. If any of the younger children, not being 
 the heir-at-law, has received an advancement either from the 
 real or personal estate of the intestate in his lifetime, this 
 must be reckoned as a part of the distributive share of such 
 child. 3 
 
 Where a wife dies intestate the husband is entitled to be 
 
 1 See supra, p. 143. s 22 & 23 Car. II. c 10, a. 5. WU- 
 
 2 22 & 23 Car. II. u. 10. liams's Exec, p. 1352. 
 
298 
 
 ENGLISH INTESTATE SUCCESSION. [PABT 
 
 IV. 
 
 Husband's 
 rights to 
 wife's 
 effects. 
 
 Rights of 
 ■widow. 
 
 Rights of 
 father. 
 
 Rights of 
 mother. 
 
 her administrator, and to recover and enjoy her personal pro- 
 perty whether she leave children or not ; but if the husband 
 be judicially separated from his wife, her personality will go 
 to her next of kin, as if she had been a single woman.i On 
 the other hand, if personal property is settled on a wife for 
 her separate use, and after her decease on her next of kin 
 expressly excluding the husband's right, as if she had died 
 unmarried, the wife's next of kin wiU succeed, to the exclu- 
 sion of the husband. 
 
 The widow's right to a share of the effects of her husband 
 who dies intestate has already been explained. At common 
 law the wife has no absolute right to any part of the hus- 
 band's personal property, and we have shown he can by will 
 bequeath the whole to a stranger; but if he die intestate, she 
 becomes entitled to her share under the Statute of Distribu- 
 tions, unless her claim be expressly barred by antenuptial 
 contract.^ 
 
 When the intestate dies without leaving wife or child, his 
 father, as the next of kin in the first degree, is entitled to the 
 whole personal estate. If there be no child, but a widow 
 and father survive, the personal estate is divided equally 
 between them.* 
 
 Before the statute of 1 James II. c. 17, if a person died 
 intestate without a wife, child, or father alive, his mother, as 
 his next of kin in the first degree, was entitled to his whole 
 personal estate; but it was declared by that Act, sect. 7, 
 " that if, after the death of a father, any of his children shall 
 die intestate without wife or children in the lifetime of the 
 mother, every brother and sister, and the representatives of 
 them, shall have an equal share with her." The reason 
 assigned for this enactment is that, under the former state of 
 the law, the mother might marry and transfer all the pro- 
 perty to a second husband.^ 
 
 If the intestate die without wife, child, or father, and 
 without leaving brother or sister, nephew or niece, the whole 
 
 1 "Williams's Exec, p. 1340. 
 21 Vict. c. 85, s. 25. 
 
 2 Ibid. 1). 1342. 
 
 20 & ' Williams's Exec, p. 1357. 
 4 Ibid. p. 1357. 
 
CHAP. VHI.J SCOTTISH LAW. 299 
 
 personal property devolves, as before the statute, on the 
 mother.^ 
 
 Brothers and sisters of the intestate are preferred to the Brothers 
 grandfather or grandmother, though they are all in theZ'^'^nl 
 second degree of kindred.^ Grandfathers and grandmothers, ^^"'^'■• 
 being nearer in degree, exclude uncles and aunts. Uncles 
 and nephews, aunts and nieces, are entitled to equal portions, 
 being all in the third degree. If the intestate leave one 
 brother and several children by a deceased brother, these 
 children will only take one-half of the personal estate, and 
 their uncle the other ; but if the brothers and sisters of the 
 intestate are all dead, having left children, these nephews and 
 nieces all take in their own right per capita} 
 
 Brothers and sisters of the half blood are entitled to an Half 
 equal share of the intestate's estate with brothers and sisters sisters share 
 of the whole blood.* In this respect the English law differs Z\^l^t 
 from the civil law and the law of Scotland. 
 
 Except in the instance of the wife of the intestate, affinity 
 or relationship by marriage gives no title to a share of his 
 property under the statute.* 
 
 The Statute of Distributions provides that it shall not 
 prejudice the customs of the city of London, or the province 
 of York or other places, but that these customs shall be 
 observed as formerly. But, though the customs remain in 
 force in the case of intestacy, any one may now by will 
 bequeath his whole goods and chattels, aU restraints on 
 testamentary power having been removed by subsequent 
 statutes.® 
 
 III. SCOTTISH LAW. 
 
 In the succession to lands in Scotland db intestato, the heir Succession 
 must trace his descent, not from the last purchaser as in '" ''° '' 
 England, but from the person last seised. Descendants are Heirs of 
 preferred to all other relations, males being always preferred '°*' 
 
 1 Williams's Exec, p. 1359. * Williams's Exec, p. 1362. 
 
 " Ibid. p. 1360. ^ Itid. p. 1362. 
 
 = Ibid. p. 1363. ° Ibid. p. 1374. 
 
300 
 
 SCOTTISH LAW. 
 
 [part IV. 
 
 Descend- 
 ants. 
 
 Brotliers 
 and sisters 
 and their 
 descend- 
 ants. 
 
 Father's 
 riglits. 
 
 Mother and 
 relations 
 through her 
 excluded. 
 
 before females, and the eldest male before the younger, while 
 females in the same degree succeed equally, and are called 
 heirs-portioners. The estate goes first to the eldest son and 
 his issue male or female; next to the second son and his 
 issue male or female ; and so on through all the sons with 
 their issue in the order of seniority. On the failure of sons 
 and their issue the daughters succeed equally as heirs-por- 
 tioners, and the issue of each daughter who has predeceased 
 the defunct takes the mother's place. On the failure of im- 
 mediate descendants grandchildren are called, and after them 
 great-grandchildren, and so forth in infinitum, males always 
 succeeding before females, and the eldest male before the 
 younger.^ 
 
 When there are no descendants collaterals succeed, among 
 whom brothers-german take the first place. If the deceased 
 was the eldest brother the estate goes to the immediate younger 
 brother ; but where the deceased leaves brothers both older 
 and younger than himself, the estate, if it be heritage, goes to 
 the next younger brother and not to the eldest, according to 
 the maxim that heritage descends ; and if the deceased hap- 
 pens to be the youngest, the succession goes to the immediate 
 elder brother, as being the least deviation from this rule. If 
 there are no brothers-german, the sisters -german succeed 
 equally ; then brothers consanguinean one after another in 
 the same order as brothers-german, and failing them sisters 
 consanguinean equally. Brothers and sisters uterine — that 
 is, by the mother only — are entirely excluded from the suc- 
 cession to land.2 
 
 Next in order after brothers and sisters and their descend- 
 ants, the father succeeds to lands as the nearest relation in 
 the ascending line, and after him his brothers and sisters in 
 their order; then the paternal grandfather, and failing him his 
 brothers and sisters, and so upwards as far as propinquity can 
 be traced. By the law of Scotland, an estate in land never 
 ascends to the mother or her relations, though her children 
 succeed to her. Even the mother's own estate, after vesting 
 in her son or daughter, never ascends to relations claiming 
 1 Ersk. 3. 8. 5 and 6. 2 Ersk. 3. 8. 8. 
 
CHAP. VIII.] SUCCESSION TO LANDS. 301 
 
 through the mother. On the failure of heirs in the three lines 
 of succession, the Crown succeeds as ultimus heres} 
 
 In the succession to lands there is a right of representation, Right of 
 whereby, if any one has died, who, if alive, would have sue- uC^"' 
 ceeded as heir, his place is supplied by his lineal descendants 
 in their order. Thus, if an eldest son should die before the 
 succession opens, a grandchild, male or female, by him, wUl 
 exclude a younger son.^ 
 
 A distinction is made between an estate to which the de- Heirs of 
 ceased has succeeded as heir to his father or other relation, °™i"'='*'- 
 and which is strictly termed heritage, and an estate which the 
 deceased has acquired by conquest — that is, not by succession, 
 but by purchase, donation, or other singular title. This holds 
 where the deceased has died without issue, leaving brothers 
 both older and younger than himself, or the issue of such 
 brothers, or two or more uncles, older and younger than the 
 father of the deceased, or the descendants of such uncles. In 
 such cases, heritage descends to the immediate younger bro- 
 ther of the deceased, or to the next younger brother of his 
 father ; but eo-nquest ascends to the immediate elder brother 
 or uncle. Where the deceased is the youngest brother, and 
 leaves two elder, the younger of the two surviving brothers is 
 heir both of line and of conquest.^ 
 
 There is no room for this distinction in female succession, 
 which the law divides equally among the co -heiresses, or 
 heirs-portioners as they are called in Scotland. If the pro- 
 prietor be a woman, her brother-german excludes sisters-ger- 
 man, and the immediate elder brother succeeds in conquest, 
 and the immediate younger brother in heritage. Conquest 
 can ascend but once ; for, when one succeeds as heir of con- 
 quest, the estate becomes heritage in his person, and as such 
 descends in the usual way at his death.* 
 
 Lord Stair thus explains the state of the law of Scotland outribu- 
 as to intestate movable succession before the changes intro- personal 
 duced by the 18 Vict. c. 23 (25th May 1855) :— " The succes- <^''■'^■ 
 sion in movables from the intestate belongeth to the nearest 
 
 1 Ersk. 3. 8. 9. Stair, 3. 4. 33. ' Ersk. 3. 8. 14. 
 
 s Ersk. 3. 8. 11. * Stair, 3. 4. 33. Ersk. 3. 8. 15. 
 
302 SCOTTISH LAW. [p^bt rv. 
 
 of kin, who are the defunct's whole agnates, male or female, 
 being the kinsmen of the defunct's father's side of the nearest 
 degree, without primogeniture or right of representation; 
 wherein those joined to the defunct by both bloods do 
 exclude the agnates by one blood." ^ 
 Exclusion Here it will be observed (and this is the most remarkable 
 of cognates, fgg^ture of the Scottish system, as distinguished from the 
 Eoman law and the law of England), that intestate movable 
 succession was confined to the agnates, male or female, being 
 the kinsmen on the father's side, excluding altogether the 
 cognates or relations on the mother's side. Strange as it may 
 appear, the mother was not allowed to succeed to her own 
 children, and all relations claiming through her were equally 
 excluded. Under the statute of 1855, representation in mov- 
 ables was admitted, the position of the father was materially 
 improved, and the mother, in certain circumstances, was ad- 
 mitted to a share of the personal estate of her children.' But, 
 with the exception of a provision to brothers and sisters 
 uterine and their issue, to be afterwards noticed, all the rela- 
 tions claiming through the mother of the intestate, whether 
 ascendants or collaterals, are still excluded from the succes- 
 sion, and the nearest of kin must be sought for among the 
 agnates, male or female, being the kinsmen of the deceased 
 on the father's side. 
 
 The rules of intestate succession in movables, as the law 
 now stands, may be shortly explained : — 
 Descend- First, The nearest descendants, male and female, in the 
 same degree, succeed equally, with representation. Formerly 
 there was no representation in movable succession ; but it is 
 now provided that the issue of a predeceasing next of kin 
 shall come in the place of their parent in the succession to an 
 intestate, with this restriction, that " no representation shall 
 be admitted among collaterals after brothers and sisters 
 descendants." ^ 
 Rights of Failing descendants, the brothers and sisters german, and 
 mother*" their issue, and the brothers and sisters by the father's side, 
 and their issue, were formerly called to succeed before the 
 1 Stair, 3. 8. 31. 2 18 Vict. c. 23. s. 1. 
 
CHAP. VIII.] INTESTATE SUCCESSION. 303 
 
 father; but this has now been modified by the following pro- 
 visions in favour of the father and mother of the intestate : 
 " Where any person dying intestate shall predecease his father, 
 without leaving issue, his father shall have right to one-half 
 of his movable estate in preference to any brothers or sisters, 
 or their descendants, who may have survived such intestate." ^ 
 
 Again, " Where an intestate, dying without leaving issue, 
 whose father has predeceased him, shall be survived by his 
 mother, she shall have right to one-third of his movables, in 
 preference to his brothers and sisters, or their descendants, or 
 other next of kin of such intestate." ^ 
 
 Where the intestate dies without leaving issue, and his Brothers 
 father and mother have both predeceased him, his brothers ™ 
 and sisters german, and their descendants, succeed to the 
 whole personal estate ; and failing these parties, his brothers 
 and sisters, on the father's side, and their descendants, are 
 called ; for the full blood still takes precedence of the half FuU blood 
 blood in Scotland, though, as we have already shown, a half. 
 different rule prevails in England. 
 
 As regards brothers and sisters uterine, who, along with all Rights of 
 maternal relations of the deceased, were formerly entirely sisters 
 excluded from succession in movables, as well as in heritage, 
 the following rule is now established : " Where an intestate, 
 dying without leaving issue, whose father and mother have 
 both predeceased him, shall not leave any brother or sister 
 german, or consanguinean, nor any descendant of a brother or 
 sister german, or consanguinean, but shall leave brothers and 
 sisters uterine, or a brother or sister uterine, or any descendant 
 of a brother or sister uterine, such brothers and sisters uterine, 
 and such descendants in place of their predeceasing parent, 
 shall have right to one-half of his movable estate." ^ As 
 already explained, all the relations claiming through the 
 mother of the intestate, with this exception, are stiU excluded 
 from the succession.* 
 
 1 18 Vict. 0. 23, s. 3. Williama, that "old imperfections 
 
 2 ];},i,i_ g_ 4_ are safer than new experiments." 
 
 3 Ibid. s. 5. But this doctrine may be carried too 
 * It was a saying of Lord Keeper far; and it is not easy to explain 
 
 uterine. 
 
304 SCOTTISH LAW. [pabt iv. 
 
 Father may When the intestate died without leaving issue, or brothers 
 ST and sisters, or their descendants, the father, before the statute 
 esTar"^ 18 Vict. c. 23, was entitled to the whole personal estate, as 
 the nearest ascendant; and this right remains entire, and 
 cannot be affected by the provision of the statute, which, on 
 the failure of issue, gives him a right to one-half of the mov- 
 able estate of the deceased, in preference to the brothers and 
 sisters, or their descendants. 
 Collation by Where the intestate leaves only one child, he is both heir 
 eir-a - aw. ^^^ executor without collation.^ But every heir who is one 
 of the next of kin, whether he be in the line of descendants 
 or collaterals, is bound to collate the heritable estate before 
 he can claim any share of the movables ; and, when he does 
 so, the whole property is thrown into one mass, and divided 
 equally among all the next of kin. This rule was introduced 
 in order that the heir might in no case fare worse than the 
 other next of kin.^ Where any person who, had he survived 
 the intestate, would have been his heir and one of his next 
 of kin, shall have predeceased him, the child of the prede- 
 ceaser, being the heir of the intestate, shall be entitled to 
 collate the heritage, to the effect of claiming for himself and 
 the other issue, if any, the share of the movable estate of the 
 intestate, which might have been claimed by the predeceaser, 
 upon collation, had he survived the intestate.^ 
 
 Thoiigh the husband is the absolute administrator of the 
 goods in communion consequent on marriage, during his life, 
 yet, upon his death, a certain share of these goods belongs to 
 his widow, jure relictce, and a certain share to the children, 
 called the legitim; and, though these rights may be re- 
 nounced or discharged, they cannot be defeated by the will 
 of the husband. If the husband leave a widow, but no child, 
 one half of the personal estate goes to the widow ; the other 
 
 how the vmjust exclusion of the rela- ished, bo as to assimilate the law of 
 
 tions on the mother's side should Scotland to that of England. 
 
 have remained so long a hlot on the i Ersk. 3. 9. 3. 
 
 Scottish system of intestate succes- s Ibid. 
 
 sion. The distinction between ag- 3 ig Vict. c. 23 s. 2 
 
 nates and cognates should be abol- 
 
CHAP. Viir.] INTESTATE SUCCESSION. 305 
 
 half is the dead's part, which he may dispose of by testament, 
 and which falls to his next of kin if he die intestate. When 
 the husband leaves children, one or more, but no -widow, 
 they get one-half as their legitim; the other half is the dead's 
 part, which also goes to the children, if the father has not 
 disposed of it otherwise by his will. If he leaves both widow 
 and children, the widow takes one-third, jure relictce ; another 
 falls as legitim to the children, ec[ually among them ; the re- 
 maining third is the dead's part.^ 
 
 If a wife die intestate, in Scotland, leaving separate per- 
 sonal property, not falling under the communion of goods, 
 and excluded from the jus mariti, the succession does not 
 devolve on the surviving husband, but falls to her children, 
 or other next of kin, whoever they may be. 
 
 ' Ersk. 3. 9. 19. 
 
PAET V. 
 
 OP ACTIONS AND PEOCEDUEE. 
 
 CHAPTEK I. 
 
 OF MAGISTEATES AND JUDGES IN CIVIL SUITS. 
 
 Jurisdic- Jurisdiction is a power conferred by the State on a magis- 
 trate or judge to take cognisance of and determine questions 
 according to law, and to carry his sentences into execution. 
 Among the Eomans jurisdiction was divided into voluntary 
 and contentious. The first was exercised in matters that 
 admitted of no opposition ; the second related to disputed 
 questions, which required judicial discussion. 
 
 By civil jurisdiction, CLuestiojQs^fjmyatejigM are^ecic^^ ; 
 by criminal, c rimes are tr ied and punished. That jurisdiction 
 is supreme from which there lies no appeal to a higher court. 
 
 ^Jur isdict ion is eitherproper_ or delegated. Proper juris- 
 
 diction is tKat which Belongs to a magistrate himself in virtue 
 of his office ; delegated, is that which is communicated by 
 the magistrate to another who acts under his authority. By 
 special commission persons are sometimes delegated to judge 
 in a particular cause, after the decision of which their power 
 ceases. 
 
 "When jurisdiction was conferred on a Eoman magistrate, 
 he acquired aU. the powers that were necessary to enable 
 him to exercise it. In criminal law the imperium nierum 
 
CHAP. I.] MAGISTRATES AKD JUDGES. 307 
 
 was the power to inflict punishment upon offenders ; and the 
 imperium mixtum was the power to carry civil sentences or 
 decrees into execution.^ 
 
 From jurisdiction in general must be distinguished the Compe 
 competency of a tribunal. By that phrase is meant the right ''""y- 
 which a tribunal has to exercise in a particular case the juris- 
 diction which belongs to it. From the earliest period it was 
 an established rule that the plaintiff should raise his action 
 before the court of the defendant's domicile — Actor sequitur 
 forum rei. At first, this principle was acted upon whether 
 the action was real or personal.^ It was afterwards declared 
 by an imperial constitution that a real action might be 
 directed against the possessor in the territory where the sub- 
 ject in dispute was situated, ratione rei sitce.^ Under Jus- 
 tinian this rule was followed in actions for vindicating 
 property ; but a petitio hereditatis was brought before the 
 court of the defendant's domicile, because this related rather 
 to the abstract right than to the objects of the succession. 
 By a constitution of the same emperor the authors of a delict 
 might be pursued wherever the unlawful act was committed, 
 and aU debtors iu consequence of a contract, in the place 
 where the contract was entered into.* 
 
 Sect. 1. — Judicial System during the Republic. 
 
 Among the Eomans the power of determining civil causes Judges in 
 belonged at first to the kings, and after their expulsion to the °™ '">^'^^■ 
 consuls. It then devolved on the praetor; and, in certain 
 cases, on the curule and plebeian ediles, who were charged 
 with the internal police of the city.^ 
 
 The prsetor, a magistrate next in dignity to the consuls, Jurisdic- 
 was elected annually by the Comitia Centuriata. His chief pratm. 
 duty was to act as supreme judge in the civil court at Eome, 
 and he was assisted by a council of jurisconsults in determin- 
 ing questions of law. At first there was only one praetor, a. r. 387. 
 
 ' D. 2. 1. 2 and 3. * N. 69, ch. 1. De Freaquet, voL 
 
 ^ De Fresquet, vol. ii. p. 401. ii. p. 519. 
 
 3 C. 3. 19. 3. ' Ortolan, Institutes, § 1849. 
 
308 MAGISTRATES AND JUDGES [part v. 
 
 but he was afterwards joined, in the year 508 of Eome, by a 
 colleague, who was invested with power to decide all dis- 
 putes in which foreigners were concerned.^ 
 
 After the conquest of Sicily, Sardinia, and the two Spains, 
 new prsetors were chosen to administer justice in these pro- 
 vinces. Permanent courts, which were usually presided over 
 by a prsetor, were established for the trial of certain crimes.^ 
 It became the practice for these magistrates to remain at 
 Eome during their year of of6.ce, after which they proceeded 
 to the provinces, where they dispensed justice as propraetors, 
 the different departments assigned to each being determined 
 by lot. The first among them was always the prcetor wr- 
 hanus. He performed the duties of the consuls in their 
 absence, and his functions were considered so important that 
 he was not permitted to leave Eome for more than ten days. 
 The prsetor held his court in the Comitium, wore a robe 
 bordered with purple, sat in a curule chair, and was attended 
 by lictors. Ulpian informs us that his assessors at Eome 
 were ten in number — five senators and five equestrians.* 
 These assessors are often called judges, but they did not pro- 
 nounce the sentence, which was drawn up in the prsetor's 
 name by their advice. Beaiifort is of opinion that they were 
 the same as the decemviri litihus judicandis, so often men- 
 tioned by ancient authors.* 
 Proceedings According to the judicial system long established at Eome, 
 injure. it was the duty of the praetor, or other magistrate exercising 
 1 civil jurisdiction, to inquire into matters of law ; and what- 
 ever business was transacted before him was said to be done 
 I in jure. When the magistrate took cognisance both of the 
 law and the fact, and decided the whole cause himself, the 
 judgment was called extraordinary. But in the great ma- 
 jority of cases, and particularly where the parties were at 
 issue upon the facts, it was customary for the magistrate 
 merely to fix the question of law upon which the action 
 Delegated turned, and then to remit it to a delegate with power to hear 
 
 judgea. 
 
 1 D. 1. 2. 3. 27. « Beaufort, Kep. Rom., voL ii. 
 
 « Ibid. § 32. p. 35. 
 
 = Ulp. 1. 13. 
 
°^^^- !■] IN CIVIL SUITS. 309 
 
 the cause, inqiiire into the facts, and pronounce sentence 
 according to the result of the investigation. 
 
 There were three' kinds of delegated judges, called respec- 
 tively Judex, Arbiter, and Eecuperatores. 
 
 The judex was not a magistrate holding jurisdiction ; he Powers of 
 was a private citizen invested by the magistrate with a judi- ""^ J"'^^''-. 
 cial commission in each cause, and for that cause only.^ Ori- 
 ginally he was chosen from the senators, and afterwards from 
 the official list of the judices selecti, which was made up of 
 persons whose qualification varied at different times. In the 
 reign of Augustus, the number of judices was about 4000, 
 and from that period at least the Album Judicum contained 
 aU the persons who were qualified to act as judices, both in 
 civil suits and in criminal trials. 
 
 When the lawsuit was not one of those which fell to be 
 determined by the centumvirs, or by the praetor himself, that 
 magistrate referred the parties to a judex chosen by them- 
 selves from the official list ; if they could not agree the 
 praetor proposed a judex, or allowed one to be drawn by lot. 
 Both parties had a right to object to the judex nominated by 
 the magistrate ; but we do not know precisely in what form 
 and within what limits that right was exercised.^ 
 
 As the function of the judex was a public one, he could 
 not decline to act without a lawful excuse. After being 
 sworn to do his duty he received from the praetor a formula 
 containing a summary of all the points under litigation, from 
 which he was not allowed to depart; he admitted the demand, 
 or rejected it, purely and simply, and without having power 
 to modify it. To suppose that the office of judex was limited 
 to simple questions of fact would be a mistake. He required 
 not only to investigate facts but to give sentence, and in 
 doing so law was more or less mixed up with the case accord- 
 ing to the extent of the powers committed to him. For this 
 reason he was allowed to consult one or more jurisconsults 
 to guide him in cases of difficulty; and, if the question 
 appeared to him so obscure that he could not decide it, he 
 
 ^ Ortolan, Institutes, vol. i. p. 147. 
 
 ^ Ibid. vol. iii. p. 478. De Fiesquet, vol. ii. p. 398. 
 
310 
 
 MAGISTRATES AND JUDGES 
 
 [part v. 
 
 Powers of 
 the arbiter. 
 
 Recnpera- 
 tores. 
 
 Centum vi- 
 ral court. 
 
 might decline to give judgment, by declaring on oatli sibi non 
 liquere} 
 
 There were two sorts of arbiters, — those who were named 
 by the parties extrajudicially in a reference or submission, 
 and those who were assigned to them by the praetor in a law- 
 suit. Here it is only of the last that we are to speak. 
 
 The arbiter, like the judex, could hear and detei-mine aU 
 ordinary lawsuits, and received a formula from the praetor 
 which enabled him to pronounce a sentence ex cequo et bono. 
 Some discussion has arisen as to the difference between the 
 duties of an arbiter and those of a judex ; but these difficul- 
 ties seem to be resolved by the definition of Pestus -.—Arbiter 
 est qui totiiis rei arbitrium habet et potestatem.^ All the dif- 
 ference between them seems to have consisted in the formula 
 and its consequences, so that the arbiter in substance_was a^ 
 judex with more extensive powers ; and, like the judex, he 
 could call in the aid of Tegal assessors. 
 
 Besides the judex and the arbiter there were officers called 
 recuperatores, to whom the praetor was in use to remit a cer- 
 tain class of cases to be heard and determined. This institu- 
 tion is involved in some obscurity. Beaufort is of opinion 
 that when the prastor appointed one person to hear and 
 decide a case he was called judex, but when three or more 
 persons were named for the same suit they were called 
 recuperatores.^ Zimmern has adopted this opinion, and he 
 adds that the recuperatores might be chosen from the whole 
 body of the citizens, and did not reqiure to be taken from 
 the list of judices selecti; and farther, that they were only 
 called upon to serve in summary affairs requiring extraordi- 
 nary despatch. The number of recuperatores appointed for 
 each case was usually three or five, and in the event of dif- 
 ference of opinion a majority had power to decide.* 
 
 The centum^irs constituted a permanent tribunal, com- 
 posed of members elected annually, in equal number, from 
 each tribe, and to this court the decemvirs were attached. 
 
 1 De Fresqnet, voL ii. p. 476. 
 
 2 Festus, V. Arbiter. 
 
 3 Beaufort, Rep. Rom., liv. v. c. 2. 
 
 4 Zimmem, TraitS des Actions, tra- 
 
 duit de rAllemand, par M. Etienne, 
 1843, part ii.ch. 1,§ 37. De Frea- 
 quet, Tol. ii. p. 399. 
 
CHAP. I.] IN CIVIL SUITS. 311 
 
 In the year of Rome 512, when, there were thirty-five tribes, 
 and each furnished three members to the centumviral court, 
 the whole number was 105 ; at a later period, in the time of 
 Pliny the Younger, the number appears, to have been 180. 
 
 This tribunal was presided over by the praetor. It was 
 divided into four chambers, which, during the republic, were 
 placed under the ancient questors, and after Augustus under 
 the decemviri litihiis judicandis. These sections gave judg- 
 ment separately ; but they were sometimes united, so as to 
 form one tribunal in affairs of great importance. A spear, 
 the symbol of Quiritarian ownership, was fixed in front of 
 the audience-hall of the centumvirs. 
 
 This court had not what the Eomans caU jurisdiction. All 
 the proceedings injure took place, in the first instance, before 
 the praetor, or other magistrate, who remitted the case to be 
 heard and determined by the centumvirs, if it was one fall-- 
 ing within their cognisance.^ From a passage in Cicero we 
 learn that the centumvirs were competent to decide questions 
 of status, Eoman property and succession, embracing a wide 
 range of subjects, which gave great importance to this court.^ 
 
 The date of the institution of the centumvirs is uncertain. 
 Among other celebrated lawyers, Pliny the Younger, as we 
 learn from his letters, was accustomed to plead before this 
 tribunal It is supposed to have subsisted till near the close 
 of the Western empire ; but it had entirely disappeared before 
 the time of Justinian.' 
 
 Prom this rapid sketch of the judicial system at Eome Pecuiiari- 
 during the republic, it will be seen that it laboured under j '^jal sys- 
 considerable defects. The superior magistrates we re changed *^ '°- 
 
 annually, and their political duties were mixed up with their 
 
 judicial functions. They were not ne cessarily la wyers by 
 profession ; and the same objection applied to the subordi- 
 nate officers, who, as judices or centumvirs, were intrusted 
 with the power of hearing and deciding civil causes. There 
 was at that period no class of men among the Eomans like 
 the judges in this country, who are appointed by the Crown, 
 hold their offices ad vitam aut culpam, and are trained to be 
 
 1 De Fresquet, vol. ii. p. 393-5. ' Maynz, § 36. 
 
 ' Cicero, De Orator., i. 38. 
 
312 MAGISTEATES AND JUDGES [part v. 
 
 interpreters of the law, by making it the business of their 
 lives. One thing, however, greatly contributed to the success 
 of the Eoman system — the institution of legal assessors, 
 selected from the most skilful jurisconsults. At first the 
 magistrate had the choice of his assessors ; under the empire 
 they became public salaried officers. At all periods the 
 assessors had only a consulting voice in judicial business : 
 the magistrate was not bound to foUow their advice ; but it 
 cannot be doubted that their opinions exercised the greatest 
 influence upon his decisions.^ 
 Italy and After Italy was subjected to the Eoman supremacy, the 
 provinces. jy^^g^jg^jQ^ of gach city and its territory was in the hands of 
 the municipal magistrates. Justice was administered as it 
 was at Eome. In the provinces the governors performed the 
 functions of the praetor, holding circuit courts at stated 
 periods at certain places within their territory, when they 
 decided suits, either directly, or by remitting them to a 
 judex, or to recuperatores. The circuit court was called 
 conventus. The governors were accompanied by assessors, 
 and they were assisted by legati chosen by themselves, or 
 named by the senate. 
 
 Sect. 2. — Judicial System under the Empire. 
 
 Newjadi- Under the empire the consuls preserved some judicial 
 tions. ' power till the fourth century. The jurisdiction of the prae- 
 tors endured still longer. Prastors were appointed to decide 
 questions relating to trusts and guardianship, and exchequer 
 cases ; and the number of these magistrates varied consider- 
 ably at different times. Augustus fixed their number at 
 twelve; Tiberius raised them to sixteen; and Pomponius 
 tells us that, in his time, the magistrates who dispensed 
 justice at Eome were eighteen prastors, besides two consuls, 
 six ediles, and ten tribunes of the people.^ 
 
 The accession of Augustus led to some important changes 
 in the judicial institutions of Eome, and new jurisdictions 
 sprang up under the imperial government. 
 
 ' On the Office of Assessors, see D. 1. 22. ' D. 1. 2. 34. 
 
CHAP. I.J IN CIVIL SUITS. 313 
 
 Among the magistrates the emperor himself became su- Powers of 
 preme judge, and gave decisions in lawsuits by his decrees, peror"' 
 sometimes directly, and sometimes by appeal. When the 
 emperor dispensed justice, he -was assisted by a council, 
 which, under Augustus, was composed of the two consuls, a 
 magistrate of each grade, and fifteen senators. 
 
 Next in dignity to the emperor were the praetorian pre- Prastorian 
 fects. At first their duties were purely military, but they ^'^^ ^° "' 
 afterwards discharged the most important judicial functions. 
 Their jurisdiction was established in the reign of Alexander 
 Severus. Tor a time their judgments might be reviewed by 
 appeal to the emperor, but they afterwards became final, sub- 
 ject only to the condition that they might be made the object 
 of a supplication addressed to the prince. The praetorian 
 prefects were chosen at first from the equestrian order, and 
 afterwards from the senators. 
 
 The jurisdiction of the emperor and the praetorian prefects Prefect of 
 extended over the whole empire. Under Augustus the pre- 
 fect of the city became a permanent judicial officer, whose 
 jurisdiction was gradually extended till it embraced appeals 
 from decisions of the praetors. There had been eighteen 
 praetors in the time of Alexander Severus ; there were only 
 three in the reign of Valentinian. Finally, all the important 
 judicial functions of these ancient republican magistrates 
 were withdrawn from them by little and little, and transferred 
 to the prefect of the city and the praetorian prefect, till the 
 praetors, who had formerly stood nearly on a level with the 
 consids, were reduced to little more than the insignificant 
 duties of directing the public games.^ 
 
 Beyond Eome, in Italy and the provinces, jurisdiction con- luiy and 
 tinued under the empire to be divided between the municipal inces.""''" 
 magistrates and the governors. But the competency of the 
 municipal magistrates, which was formerly unlimited, was 
 restricted to suits not exceeding the value of fifteen thou- 
 sand sesterces, equal to about £125, and their criminal juris- 
 diction was in a great measure absorbed by that of the 
 
 '• Maynz, § 50-53. 
 
314 MAGISTRATES AND JUDGES. [paet v. 
 
 judices The judices pedanei were appointed by the governor of a 
 
 pedanei. pj-Qvince to decide upon affairs of small importance. Cases 
 within their competency were brought directly before them 
 as permanent judges ; but an appeal lay from their decisions 
 to the governor. It has been conjectured that the title 
 pedaneiLS was given to those judges, qui negotia humiliora 
 discepiant, because they were placed at the foot of the judicial 
 ladder.i 
 Changes by To diminish the influence of the praetorian prefects, whose 
 Constan- pQ^gj,g sometimes held in check that of the emperor, Constan- 
 tine deprived them of their military prerogatives, and limited 
 them to duties purely civil and political ; and, whUe their 
 number was increased to four, care was taken never to leave 
 them in office for a longer period than a year. The empire 
 was divided into four prefectures — the East ; lUyria ; Italy, 
 which included Sicily, Sardinia, and Africa ; and the Gauls, 
 which comprehended Spain and England. Each of these 
 four departments was administered by a praetorian prefect, 
 who acted as supreme judge, almost always, of the last resort, 
 in lawsuits raised within his prefecture. 
 
 Under the prefect, vicarii, invested with judicial powers, 
 were placed at the head of each diocese, which comprehended 
 many provinces, each of the latter having a capital or metro- 
 polis. 
 
 Finally, in the provinces which composed the diocese, the 
 governor, called prseses or rector, was judge-ordinary, acting 
 sometimes in the first degree, and sometimes deciding appeals 
 from the municipal magistrates and other inferior judges, such 
 as the judices pedanei and the defensores civitatwm? 
 
 Originally the defensores civitatum had civil jurisdiction 
 in suits not exceeding 50 solidi, but augmented by Justinian 
 to 300 solidi ; and they also had power to try for petty dehn- 
 quencies.' 
 
 1 C. 3. 3. 5. Julian's Constitution, reduced the weight of the aureus, and 
 
 De Fresquet, vol. ii. p. 423. called it solidus. The value of the 
 
 ^ Beaufort, Rep. Rom., voL L p. solidus or aureus of Justinian's age 
 
 418-419. Maynz, vol. i. p. 148. is said to have been about Us. 6d. 
 
 ' De Fresquet, vol. ii. p. 517. Dr Summary of Roman Civil Law, voL 
 
 Colquhoun states that Constantino iii. p. 154-5. 
 
CHAPTER II. 
 
 MODE OF PEOCEDUEE IN CIVIL ACTIONS. 
 
 Among the Eomans the history of civil procedure is divided civii pro- 
 into three periods, to which successively belong — 1st, The °'"^"^' 
 actions of the law ; 2d, The formulary system ; 3d, The sys- 
 tem of extraordinary procedure — judicia extraordinaria. 
 
 ACTIONS OF THE LAW LEGIS ACTIONES. 
 
 Anciently, a process could only be introduced by means of Actions of 
 certain sacramental forms called actions of the law, probably * "^^ 
 because they were strictly adapted to the laws themselves, 
 and could not be varied or departed from in any particular 
 under the penalty of nullity. According to Gains these 
 legal actions were five in number: — 1. Actio sacramenti; 
 2. Judicis postulatio ; 3. Condictio ; 4. Manus injectio; 
 5. Pignoris capio.^ Strictly speaking, only the first three 
 were proper actions, the last two being modes of execution. 
 
 The actio sacramenti. derived its name from a deposit- 
 made by each of the parties of a certain sum of money under 
 the penal condition that he who lost the cause should forfeit 
 his part of the stakes for the benefit of public worship — ad 
 sacra puhlica. This action was both real and personal, and 
 very general in its application, as it extended to all matters 
 for which no other form was prescribed by law. By the loss 
 of a leaf of the manuscript of Verona, we have been deprived 
 1 Gai. 4. 11, 12. 
 
316 
 
 CIVIL PROCEDURE. 
 
 [part v. 
 
 Summons 
 before the 
 judge. 
 
 Procedure 
 in court. 
 
 of the commentary of Gaius on the action ^r postulationem ; 
 and little is known as to the procedure under the condictio , 
 being the third action under this system.^ 
 
 Every judgment might be carried into effect by the manus 
 inmtiq , or personal apprehension of the debtor, after the lapse 
 of thirty days, allowed by the law of the Twelve Tables. If 
 the debtor could not find a surety, he was imprisoned in the 
 house of the creditor ; and if the debt was not paid after the 
 lapse of sixty days, he might be sold as a slave beyond the 
 Tiber. 
 
 The vianoris cavio was a mode of execution against pro- 
 perty, by constituting a sort of pledge. This, however, did 
 not apply to ordinary private debts, but only to a few excep- 
 tional claims relating to the public treasury, military service, 
 and sacrifices.^ 
 
 The place where justice was administered at Eome was the 
 Comitium or Porum. There the superior magistrates held 
 their tribunal, seated on curule chairs. The inferior magis- 
 trates and the judices occupied the subsellia. 
 
 In the earliest times the action was commenced by the 
 plaintiff summoning the defendant to appear before the 
 praetor or other magistrate, which was called in j'lcs vocatio. 
 According to the law of the Twelve Tables, if the defendant 
 refused to go quietly, the plaintiff, after calling witnesses, 
 could drag him into court by force, unless he furnished a 
 solvent representative — vindex. 
 
 Before the magistrate the parties went through the an- 
 cient forms required by the particular action resorted to. If 
 the affair was such that it could be decided by the magistrate, 
 the suit was terminated before him. But if the litigation 
 was not of that nature, the magistrate had power to remit the 
 case to a judex, to arbiters, or to the court of the centumvirs. 
 Before the judex, or other delegated tribunal, parties were 
 heard, evidence was adduced, and, after pleadings in detail, 
 sentence was pronounced. 
 
 1 Gai. 4. 1.3, 14. to Gaius, 4. 12, and the Institutes 
 
 2 For a more particular account of of Ortolan, vol. iii. p. 480 et seq. 
 the legis actiones the reader is referred 
 
CHAP. II.J CIVIL PROOEDUEE. SI'J 
 
 The system of the actions of the law endured from the ear- 
 liest times to the period of Cicero. They were abolished in' 
 consequence of the excessive nicety required in the pleadings, 
 and the risks of failure arising from the slightest departure 
 from the prescribed forms. A remarkable illustration of this 
 is given by Gains. A person who complained of his vines 
 having been cut down lost his cause for using the term 
 " vines " in place of " trees," because the law of the Twelve 
 Tables, under which he claimed damages, mentions only trees 
 in general terms.-' 
 
 FORMULARY SYSTEM. 
 
 This system was a modification of the preceding one, freed Formulary 
 from its mysterious and sacramental forms. The essential 'y^'^™- 
 feature of the new system consisted in a formula, which the 
 praetor prepared after hearing the parties, and which was re- 
 mitted to the judex to regulate his decision ; for in this period, 
 as well as in the preceding one, the process was generally 
 divided into two parts, one of which took place before the 
 prsetor (injure), and the other before the judex (injudicio). 
 All the formulae generally in use were to be found in the 
 Album Prsetoris, and they were multiplied from time to time 
 to suit the exigencies of particular cases. 
 
 The formula usually consisted of three distinct parts, called Parts of 
 demonstratio, intentio, and condemnatio. "" *■ 
 
 The demonstratio stated shortly what had given rise to the 
 litigation, — res de qua agitur. 
 
 The intentio set forth the plaintiffs claim, and the question 
 which the judex was called upon to decide. 
 
 The condemnatio gave the judge power to condemn or 
 acquit the defendant, according to the result of his examina- 
 tion of the affair. When a process was raised to divide a 
 subject held in common between two parties, the term adju- 
 dicatio was used in place of condemnatio.^ 
 
 In certain cases the matter of the exception pleaded by the 
 defendant required to be inserted in the formula. Sometimes 
 1 Gai. 4. 11. Maynz, § 130. ^ Gai. 4. 39-44. 
 
318 CIVIL PEOOEDtlRE. [part V. 
 
 the formula was preceded by claims or reservations favour- 
 able to one or other of the parties ; these were called ^m- 
 scriptiones, because they were written at the head of the 
 formula.-' 
 
 It must also be remarked, that under the formulary system 
 the condemnatio was always given for a determinate sum of 
 money, even when the object of the action was to obtain 
 restitution of a particular thing. 
 
 To render these explanations more clear, we shall here 
 transcribe the text of a formula given by Gains, in a case 
 where Aulus Agerius prosecuted Numerius Negidius to re- 
 store a silver table deposited with the latter, and failing 
 restitution, to pay damages : — 
 
 " (Octavius) Judex esto ; 
 
 " Quod Aulus Agerius apud Numerium Negidium mensam 
 argenteam deposuit ; qua de re agitur ; 
 
 " Quidquid ob eam rem N". Negidium A. Agerio dare 
 facere oportet, ex fide bona ejus ; 
 
 " Id judex N". Negidium A. Agerio condemnato, nisi resti- 
 tuat ; si nonparet, absolvito."^ 
 
 According to the principle already explained, the condem- 
 natory sentence was given for a certain sum of money, nisi 
 restituat. The sum might be fixed by the praetor in the 
 formula, or left to be fixed by the judex. If the amount de- 
 cerned for in the judgment was sufficiently high, the defen- 
 dant generally found it to be for his interest to restore the 
 thing rather than pay the damages, so that indirectly the 
 plaintiff attained his object without infringing the general 
 rule. 
 Summons Under the formulary system, which marked the finest 
 cedme" period of Eoman jurisprudence, the summons to appear in 
 court was given at first verbally, and afterwards in writing 
 i flitiit dununciatio '). The defendant who refused to follow the 
 
 1 Gai. 4. 1. 30, 131. frequently used in Koman forms to 
 
 * Gai. 4. 47. The names Anlus denote any plaintiff or defendant. 
 Agerius, and Numerius Negidius, are Maynz, ^ 132. 
 
CHAP. II.] CIVIL PEOCBDURE. 319 
 
 plaintiff or to give security to appear on the day specified, 
 was subjected to a fine ; and if he made no appearance the 
 magistrate could put the plaintiff in possession of the de- 
 faulter's goods. 
 
 When both parties were before the magistrate, the plaintiff 
 pointed out the action he wished to use, and his adversary- 
 explained the grounds of his defence, and the exception 
 which he desired to be inserted in the formula. If the prsetor 
 considered the claim and exception relevant, he prepared the 
 formula, and appointed the judex for the trial of the cause. 
 
 After the delivery of the formula the parties appeared, on 
 a day fixed for the purpose, before the judex ; the cause was 
 pleaded, witnesses were examined, the advocates on both 
 sides were heard, and sentence was pronounced, sustaining or 
 rejecting the claim. "When sentence was given by the judex, 
 his office came to an end, and his power ceased. For the 
 purposes of execution it was necessary to resort to the 
 magistrate.^ 
 
 Such was the ordinary course of procedure during the for- 
 mulary system. But there were cases in which judgment 
 was given by the prsetor or other magistrate himself, without 
 any reaiit to a judex, and these were called judida extraordi - 
 naria . 
 
 The formulary system remained in force from near the 
 close of the republic till the reign of Diocletian, a.d. 294.^ 
 
 EXTBAOEDINAET PBOCBDUEE AFTER DIOCLETIAN. 
 
 The system of extraordinary procedure was the last and 
 the only one which existed under Justinian. 
 
 The distinguishing feature of the judida ordinaria was 
 the separation of the functions of the magistrate from those 
 of the judex. Even in the time of the republic we have seen 
 that the magistrate sometimes found it useful or necessary 
 in certain cases to unite these functions. It was then said 
 
 ^ Ortolan, Institutes, vol. iii. p. ^ ibid. vol. i. p. 499. Maynz, 
 590. § 131-4. 
 
320 CIVIL PEOCEDUEE. [party. 
 
 that he acted extra ordinem, and all suits so dealt with -were 
 called judicia extraordinaria. This mode of procedure was 
 invariably followed by the emperors, not only when they 
 judged in appeals, but in all suits brought before them in the 
 first instance. In the time of the classical jurists the new 
 procedure was adopted in numerous cases. 
 
 Finally, what had formerly been regarded as the exception 
 was established as the general rule. In the decay of Eoman 
 manners private persons were disinclined to undertake the 
 irksome office of judices in civil suits ; and it became every 
 day more and more difficult to find men sufficiently in- 
 structed and sufficiently honest to be intrusted with that 
 duty. This difficulty was chiefly experienced in the pro- 
 vinces. By a constitution of Diocletian, a.d. 294,i the pro- 
 vincial governors were directed to decide all cases brought 
 before them without remitting them to a judex, unless the 
 pressure of business rendered this absolutely necessary. This 
 was followed by other ordinances which established the new 
 system throiighout the empire. 
 
 The formulae were no longer req iiired, and after they had 
 remained for some time in use by the mere force of habit, 
 they were expressly abolished by Constantine, A.D. 34 2. 
 Summons In Justinian's time the defendant was summoned to ap- 
 cedme" pear in court by a writing called lihellus conmntinni^. which 
 was served upon him by an officer of the law. There was 
 no longer any distinction between proceedings in jure and 
 proceedings in judicio. All questions of law and fact were 
 discussed before the same magistrate or judge, and the 
 sentence, if given against the defendant, might either con- 
 demn him to pay a sum of money or to restore the subject 
 in dispute.^ 
 
 1 C. 3. 3. 2. 2 Maynz, § 135. De Fresquet, vol. ii. p. 521. 
 
CHAPTER III. 
 
 DIFFERENT KINDS OF ACTIONS. 
 
 AccoEDiNG to Justinian, an action is the right of prosecuting Action 
 iudicially for what is due to us.^ But the word action is **^^'^- 
 frequently applied to the actual exercise of the right, and in 
 that sense has been defined, a demand made judicially for 
 attaining or recovering a right. He who makes the claim is 
 called the plaintiff, actor ; and he who is subject to it, is 
 called the defendant, reus. 
 
 Among the Eomans the principal division of actions is into Actions 
 real and personal. A real action is that which arises from a persomi. 
 right in the thing itself, jus in re, either as proprietor or as 
 holding an inferior real right, such as servitude, pledge, hypo- 
 thec, or the like. A personal action is founded on an obliga- 
 tion undertaken by another, and is directed against the per- 
 son bound, or against his heirs or universal successors. What 
 are called mixed actions, are those which in one aspect are 
 real and in another personal. 
 
 Under real actions the Eomans comprehended not only all 
 questions regarding property and other real rights, but all 
 disputes regarding the status of persons, sometimes called 
 prejudicial actions.^ When the object of the action was to 
 recover the property of a corporeal thing, it generally bore 
 the special name of rei vindicatio . 
 
 There is an infinite variety of personal actions, according 
 to the different character of the obligations intended to be 
 
 ^ I. 4. 6. pr. "Actio nihil aliud quod sibi debetur." 
 est, quam jus persequendi in judicio, ^ I. 4. 6. 13. 
 
 X 
 
322 ACTIONS, [part v. 
 
 enforced. These actions are founded on contracts or quasi 
 contracts, on delicts or quasi delicts, and sometimes on en- 
 gagements arising from the law itself or from natural equity. 
 The -word condictio is frequently used in the Eoman law as 
 synonymous with personal action ; but before the abolition 
 of the legis actiones that term had a more special and techni- 
 cal signification. 
 Civil and Another well-known division of actions among the Eomans 
 praetorian. ^^^ ^^^^ ^.^jj ^^^ prsetoriau. A civil action was founded on 
 a law, decree of the senate, or imperial ordinance. A praeto- 
 rian action was one introduced by edict of the praetor. By 
 the strict rule of the civil law, no one was bound by the con- 
 tracts or deeds of anotlier. But this rigour was softened by 
 the praetor in many cases where equity or public utility re- 
 quired it. Thus, for instance, the actio institoria was allowed 
 against the principal upon the contracts of those whom he 
 employed as managers or superintendents of a farm or any 
 other particular branch of business; and under the ^io 
 mercitoria a similar remedy was given against the owners 
 of a ship, upon contracts for necessary repairs or provisions 
 entered into by the shipmaster. 
 Penal A distinction was taken in the Eoman law between actions 
 
 actions. ^^^ persecutorice and those which were penal. By the first 
 the plaintiff simply asks to recover what is his own, includ- 
 ing any loss or damage he may have sustaiued. In penal 
 actions, which always arise ex delicto, something more is de- 
 manded by way of penalty.^ 
 Bonffi 6dei Duriug the prevalence of the formulary system great im- 
 portance was attached to the distinction between actions 
 $tricti juris and those honce fldei . Under the first, the powers 
 of the judge were limited to the strict letter of the law ; un- 
 der the second, which embraced actions arising from sale, 
 hiring, partnership, mandate, and other mutual contracts, 
 more latitude was allowed, fuU effect being given to conside- 
 rations of equity. Mention is also made of the actions arU- 
 trarice. in which large discretionary powers were conferred, 
 more analogous to those of an arbiter than a judge. 
 1 I. 4. 6. 17 and 18. 
 
 juris. 
 
CHAP. III.] ACTIONS. 323 
 
 The limitation of actions varied according to circiimstances. Limitation 
 Some penal actions allowed by the praetor required to i^e "'^ *°"™''' 
 brought within the year.^ Generally speaking, according to 
 the ordinances of the lower empire, every action , whether 
 real or personal, was fi YtingniaTiPrl if n ot brough t within thirty^ 
 years ; the longest term was for forty year s in_a_sniall number 
 of exceptional cases. Thus, under Justinian, there was no 
 longer such a thing as a perpetual action, though the term 
 was sometimes applied to the actions of thirty years (for- 
 merly perpetual) in opposition to those limited to a lesser 
 period. 
 
 1 1. 4. 12. pr. 
 
CHAPTEE IV. 
 
 OF INTEEDICTS. 
 
 Nature of An interdict is an order issuing from tlie praetor or other 
 judge, commanding some person to do or not to do certain 
 acts. It is granted in cases requiring the summary interpo- 
 sition of a judge to preserve property or rights in danger of 
 immediate invasion. 
 Effect of Possession of personal property is prima facie evidence of 
 poKseinion. ownership, and whenever a right has been de facto exercised 
 for a long time, a court of law will always, if possible, refer it 
 to a lawful origin. Where the property of a subject is con- 
 tested, the lawful possessor is entitled to continue his posses- 
 sion tiE the point of right be determined ; and if he has lost 
 possession by violence or stealth, the judge will summarily 
 restore it to him. A person in possession has a right so to 
 continue against every one who cannot show that he has a 
 better right to possess ; and,- consequently, in pari casu melior 
 est conditio possidentis} 
 Different By the Eomau law interdicts were : 1. Prohibitory, which 
 interdi°ts. prohibited something from being done ; 2. Eestoratory, which 
 commanded something to be restored ; 3. Exhibitory, which 
 commanded some thing or person to be exhibited.^ 
 
 Under exhibitory interdicts we find one, de libera h,omine 
 ejJid hendo — the guarantee of individual liberty, which had for 
 its object to prevent any free man from being detained by 
 any one whatever. This interdict might be applied for by 
 
 '■ "Beati in jure censentur possi- ^ I. 4. 15. 1. 
 dentes." — Hein. Inst,, 1. iv. tit. 15. 
 
CHAP. IV.] INTERDICTS. 
 
 325 
 
 any person ; for no one was prohibited from favouring liberty ; 
 and it bore some resemblance to the English writ of habec^ 
 corpus} 
 
 Interdicts were granted in order that possession might be 
 acquired, retained, or recovered.^ Among interdicts for the 
 purpose of gaining possession were : 1st, Quorum bonorum . 
 whereby goods belonging to an inheritance were acquired 
 by the person entitled under the edicts of the prjetor to be 
 bonorum possessor ; 2d, Salvianum^ whereby goods belonging 
 to the tenant of a rural subject were secured under the land- 
 lord's hypothec for payment of rent. 
 
 Among interdicts for the purpose of retaining possession uti possi- 
 were Uti possidetis, which was granted in favour of one who ^tmbf 
 was in possession of lands or other immova]3le property; and 
 Utrubi, which was granted in favour of one who was in pos- 
 session of movables. But, in order to entitle any person to 
 this protection, his possession at the date of the litigation 
 must have been lawful, and not obtained from his adversary, 
 vi, clam, aut precario — that is, by violence, clandestinely, or 
 upon a precarious concession dependent on the pleasure of 
 his opponent.^ 
 
 An interdict called imde vi, was granted to recover pos- Unde vi. 
 session in the case of one who was ejected by violence from 
 lands or buildings. This remedy applied only to immovable 
 property. As regards movables seized by violence, the pos- 
 sessor could obtain redress, either by the interdict utrubi or 
 in the form of action vi bonorum, rjjptnrum . or vi furti , or 
 ad exhihendum ^ Thus, the violent seizure either of mov- 
 ables or immovables was always sternly repressed by the 
 Eoman law. According to Ulpian, if an aggression was 
 made with arms, it might be repelled by arms, not only for 
 defending the possession, but for instantly regaining it when 
 lost ; provided this was done during the continuance of one 
 general struggle, and without any interval.* ^ But when such 
 
 1 Ortolan, Institutes, vol. i. p. 498. is, qui concessit, patitur."— D. 43. 26. 
 
 2 I. 4. 15. 2. 1. pr. Ulpian. 
 ' " Precarium est, quod precibus ' I. 4. 15. 4. 
 
 petenti utendum conceditur quamdiu ' D. 43. 16. 3. 9, Ulpxan. 
 
326 INTERDICTS. [p-AET v. 
 
 an aggression was successful at the time, the proper remedy 
 of the person ejected was to recover possession by interdict. 
 • After the formulary system was suppressed, interdicts were 
 replaced by actions, which served the same purpose. 
 English and In England, injunctions (which are the same as interdicts) 
 law. " are issued from the Court of Chancery, and may now, by 
 recent statutes, be granted by the superior courts of Common 
 Law.^ In Scotland, interdicts are granted on summary ap- 
 plications, not only by the Court of Session, but by the 
 sheriffs of counties and other local judges in matters falling 
 within their jurisdiction.^ 
 
 ' 15 & 16 Vict. c. 83, s. 42. Com- « Bell's Pr. § 22.39. 
 mon Law Procedure Act, 1854, s. 79. 
 
CHAPTER V. 
 
 OF DEFENCES AND OTHER PLEADINGS. 
 
 Defences are tte pleas offered by the defendant against Defences. 
 whom an action is brought, in order to exclude it ; and this 
 general term comprehends both objections to the libel and 
 exceptions. 
 
 When the action is brought into court, the defendant 
 may admit the facts on which it is founded without offering 
 further opposition, in which case judgment passes against 
 him. If denied, the plaintiff must prove the allegations of 
 fact necessary to support his demand : " Ei incumbit proba- 
 tio, qui dicit ; non qui negat." i 
 
 Again, the defendant may oppose the demand, not by a 
 simple denial or by objecting to it as incompetent or irrele- 
 vant, but by alleging some new matter sufficient to exclude 
 the action in whole or in part ; and that defence is an excep- 
 tion. Thus, in personal actions, when the defendant pleads 
 payment, or performance, or set-off, or discharge, he admits 
 the demand to be good but for the new facts alleged by him. 
 If the exception turn on disputed facts, the burden of prov- 
 ing them lies on the defendant, on the principle of Ulpian : 
 " Ecus in exceptione actor est." ^ 
 
 Exceptions are dilatory and peremptory. Dilatory excep- Exceptions 
 tions are those whereby an action is opposed which is legally per''em7tory. 
 competent but brought at an improper time or in an impro- 
 per manner, as, for instance, before a court having no juris- 
 diction. These dilatory exceptions require to be pleaded in 
 1 D. 22. 3. 2. ' D. 44. 1. 50. 
 
328 DEFENCES AND PLEADINGS. [PAET v. 
 
 initio litis, otherwise they are held to be waived. Peremp- 
 tory exceptions enter into the merits of the cause, and are 
 said perimere camam, because they not only free the defen- 
 dant from the depending suit, but totally destroy the plain- 
 tiffs right of action upon the claim. 
 
 Various examples of exceptions are given in the Institutes 
 of Justinian;^ such as res jvdiMa, when the question be- 
 tween the parties has already been decided by a competent 
 court — prescription, when the action is excluded by the 
 lapse of time — and the common cases of contracts being 
 annulled by fraud, violence, forgery, or essential error. 
 
 In actions of strict law, during the prevalence of the for- 
 mulary system, the judex could not take any cognisance of 
 exceptions competent to the defendant, unless they were in- 
 serted in the formula remitted to him by the praetor. But in 
 the class of actions called bonce fidei, which were of common 
 occurrence, this rule was not enforced, it being competent for 
 the judge to entertain all exceptions founded on any violation 
 of good faith, such as fraud, violence, or error, even though 
 no mention was made of them in the formula. When the 
 prsetor admitted exceptions, most writers are of opinion that 
 they were inserted immediately after the intentio. The term 
 exception is supposed to have been derived from the practice 
 of inserting it as a condition in the formula, the plaintiff's 
 claim being rejected if the condition was proved. 
 Kepiication A replication is the plaintiff's answer to an exception, 
 cation. Thus, if the defendant plead compensation as an exception 
 to the demand, the plaintiff may meet this by pleading, in 
 replication, recompensation upon a separate debt not included 
 in the libel. A duplication is the answer to a replication ; a 
 triplication to a duplication, and so forth. In these plead- 
 ings the defendant was always entitled to the last word. 
 LitiB-con- In the Eoman law litis-contestation was originallv. and 
 properly, the termination of the proceedings in jure, when 
 the matter in di.spute was prepared for the investigation of 
 the judex. At a later period, under the system of Justinian, 
 when aU legal disputes were conducted before the magistrate, 
 
 1 I. 4. 13. 
 
 testation. 
 
CHAP, v.] DEFENCES AND PLEADINGS. 329 
 
 litis-contestation took place when the cause was ready for 
 hearing, that is, after the plaintiff had stated his claims and 
 the defendant his answers or defences. After litis-contesta- 
 tion the subject in dispute became litigious, and both parties 
 were bound under a quasi-judicial contract to submit to the 
 decision of the judge.^ 
 
 All questions of law may be decided by the judge on his 
 own knowledge ; but as regards questions of fact he cannot 
 proceed on his own private knowledge, but must decide 
 according to the evidence adduced, — secundum allegata et 
 probata. 
 
 1 De Fresqiiet, vol. ii. p. 472-3, 520. Maynz, § 141. 
 
CHAPTER VI. 
 
 OF EVIDENCE. 
 
 Three 
 modes of 
 proof. 
 
 Onus pro- 
 band!. 
 
 Proof by 
 
 writing. 
 
 Proof by 
 witnesses. 
 
 All disputed averments made by parties to a suit require to 
 be supported by proper evidence. There are three ordinary 
 ways of proving points in issue ; by writings, witnesses, and 
 oath of party. 1 
 
 The burden of proof lies on the party asserting an affirm- 
 ative fact if unsupported by any presumption. But if the 
 legal presumption be in favour of one party, the burden of 
 proof is thrown on his adversary. 
 
 Proof by writing is generally considered the most certain, 
 and great importance was attached to documents of a public 
 character, such as those prepared by the officers called tcibel- 
 liones. As parole is inferior in degree to written evidence, 
 the Eomans were jealous of admitting it to vary or contradict 
 an instrument in writing. This appears from the text, " Con- 
 tra scriptum testimonium, non scriptum testimonium non 
 fertur;"^ and the principle laid down by Paulus, "Testes 
 cum de fide tabularum nihil dicitur, adversus scripturam in- 
 terrogari non possunt." ^ In some instances, however, parole 
 evidence was admitted to contradict a written instrument. 
 Witnesses might also be adduced to prove forgery, and pro- 
 bably also to prove that the deed was obtained by fraud or 
 wrong. 
 
 Generally speaking, parole evidence was admitted by the 
 Eoman law. Every person might be a witness who was not 
 by law expressly disqualified. 
 
 ' On the general subject of proof, 2 q 4 20. 1. 
 see D. 22. 3 ; C. 4. 9. 3 p^ul. 5. '15" 4, 
 
OHAP. VI.] EVIDEKCE. 331: 
 
 Among persons who were declared inadmissible as wit- Witnesses 
 nesses were : 1. Pupils. 2. Lunatics. 3. Infamous persons, ^■"i"*"^^'^- 
 4. The parties in the cause, and all persons having a direct 
 interest in it as sureties or otherwise. 5. Near relations 
 of the parties ; so a father could not be • a witness for his 
 son, nor the son or any one under power for the father. 
 6. Slaves were not competent witnesses for their masters or 
 against them, except in certain offences, such as treason, fraud 
 against the Treasury, and adultery. Finally, no one who 
 had a strong enmity to one of the parties could be examined 
 against him. 
 
 After the time of Constantine witnesses in civil suits were 
 required to give their testimony on oath. In general, two 
 witnesses were sufficient to prove a fact ; but, in some excep- 
 tional cases, a larger number was required. When the wit- 
 nesses for the parties gave conflicting testimony on knj point, 
 it was the duty of the judge not to cotint the number on 
 each side, but to consider which of them were entitled to 
 the greatest credit, according to the well-known rule, " Testi- 
 monia ponderanda sunt, non numeranda." It rarely happens 
 that the evidence is so nicely balanced as not to preponde- 
 rate on one side or the other. But questions of fact may 
 be supported and opposed by every degree of evidence, and 
 sometimes by that degree of evidence of which the proper 
 effect is to leave the mind in a state of doubt, or in an equi- 
 poise between two conclusions. Where such a case occurred, 
 the Eoman law provided that the benefit of the doubt should 
 be given to the defendant rather than to the plaintiff.^ 
 
 A great revolution has taken place in the law regarding Eecent 
 the admission of witnesses, both in England and Scotland. BriSfifilw. 
 Formerly we adopted the rules of the Eoman law in reject- 
 ing as witnesses the parties to the suit, and all persons who 
 had a direct interest in the litigation, as well as those who 
 were considered infamous from being convicted of certain 
 crimes. These and other disqualifications have been removed 
 by recent statutes." Great apprehensions were entertained 
 
 1 D. 50. 17. 125. Hein. Pand., lib. " For England, 6 & 7 Vict. c. 85 ; 
 22, tit. 5, § 144. 14 & 15 Viot. c. 99; 16 & 17 Vict, 
 
332 EVIDENCE. [part v. 
 
 that these changes might open the door to perjury; but ex- 
 perience has demonstrated that the latitude allowed under 
 the new system, all objections to credit being duly weighed, 
 is, on the whole, highly beneficial, by enabling courts of law 
 to reach the truth in a multitude of cases where the ends of 
 justice were formerly defeated by excluding the testimony of 
 the parties best acquainted with the facts in dispute. 
 
 Generally speaking, the judicial admission by a party of a 
 fact alleged by his adversary is conclusive proof. The value 
 of such an admission arises from its being supposed to be 
 made by the litigant against his own interest. But in ac- 
 tions where collusion ought to be jealously guarded against, 
 such as consistorial causes involving questions of status, in- 
 dependent evidence should be adduced in addition to the 
 admissions on record. 
 Reference On the failure of regular proof, the Eoman law, as a last 
 to oa' • resource, allowed a party to refer the facts in a civil action 
 to the oath of his adversary. The characteristic feature of 
 this proceeding was, that it was considered a species of trans- 
 action, whereby the party referring staked the issue on his 
 opponent's oath, which was received as the only evidence on 
 the point referred, and was conclusive, without regard to any 
 offer to prove its falsehood. This appeal to the conscience 
 of the litigant could only be made on matters of fact falling 
 within his knowledge. If the person to whose oath reference 
 was made was not in a position to speak distinctly upon the 
 facts, it was competent for him to defer to the oath of his 
 adversary ; and then the judge, in his discretion, ordered 
 that party to depone who was supposed to have had the best 
 opportunities of knowing the facts. 
 Adopted iu The oath on reference borrowed from the Eoman law has 
 Sco5and° been adopted in France, where it is called serment decisoire} 
 It also retains a prominent place in the Scotch law of evi- 
 dence, notwithstanding recent changes. In some matters 
 the only admissible proof is the writ or oath of party ; in 
 others, parole evidence is competent, and, in general, refer- 
 
 e. 83; For Scotland, 3 & 4 Vict. c. Vict. c. 20. 
 
 59 ; 15 & 16 Vict. c. 27 ; 16 & 17 ^ Code Civil, art. 1357. 
 
°H^P- VI-] EVIDENCE. 
 
 333 
 
 ence to oath is resorted to by a litigant when aU other evi- 
 dence has failed, « ubi non deficit jus, sed probatio." By the 
 16 & 17 Vict. 0. 20, s. 5, it is not competent to any party 
 who has called and "examined his adversary as a witness, 
 thereafter to refer the cause to his oath, but " in aU other 
 respects the right of reference to oath shall remain as at 
 present established by the law and practice of Scotland." 
 
 Another species of proof of a somewhat anomalous charac- Oath in 
 ter was aUowed by the Eoman law, called the oath in litem. '"'"• 
 A person whose goods were lost or destroyed by the delict 
 or quasi delict of another, was sometimes permitted by the 
 judge to prove their amount and value by his own oath 
 in a civU action against the wrongdoer. Thus, in cases 
 founded on the edict nautce, caupones, stabularii, under which 
 shipowners, innkeepers, and stablers are responsible, quasi 
 ex delicto, for loss or damage to goods or luggage intrusted 
 to their care, the plaintiff's oath was received to prove the 
 number and value of the articles lost or destroyed, where 
 proof from other sources could not be obtained. The oath Adopted in 
 in litem, though a very questionable kind of evidence, has sSand.""* 
 been adopted both in the French law and the law of Scot- 
 land.i 
 
 Before leaving the subject of evidence a few observations Presump- 
 may be made on presumptions, which are usually divided 
 into three classes according to the degrees of their probative 
 force. The first class are purely artificial rules of law, which 
 admit of no contradiction by contrary evidence, and are called 
 by the commentators prcesumptiones juris et dejure. Such, 
 for example, is the rule that a child born more than ten 
 months after the dissolution of the marriage is not the lawful 
 child of the husband. 
 
 Another class of presumptions, caHed prcesumptiones juris, 
 are inferences drawn in pursuance of the pre-appointment of 
 law, and include those cases in which the law presumes a 
 fact of which no evidence is given, in the absence of contrary 
 proof. Many such presumptions are established in. the Eo- 
 man law. The property of movables is presumed from the 
 ^ Code Civil, art. 1366. Dickson on Evidence, 762. 
 
334 EVIDENCE. [PAET V. 
 
 possession of them ; a document of debt found in the custody 
 ■of the debtor is presumed to have been paid by him, — debitor 
 non presumitur donare ; and so forth, AH these presump- 
 tions may be rebutted by evidence, to the contrary ; and, if 
 one presumption of law be opposed by another, the court 
 must then decide which is the stronger. As already ex- 
 plained, where the legal presumption is on one side, the 
 burden of proof is thrown on the other. Thus a biU of ex- 
 change is always presumed to have been given for a good 
 consideration ; but evidence is admitted on the part of the 
 defendant to show that such was not the fact. 
 
 Another class of presumptions, ca!ii&di prcesumptiones facti 
 seu hominis, are the natural presumptions of mere fact emerg- 
 ing from the special circumstances of each case, and of which 
 the law has left the probative force to the discretion of the 
 judge. They occur when direct proof of a fact is offered to a 
 judge or jury as probable evidence, from which another fact 
 may be inferred. 
 
CHAPTEE VII. 
 
 OF JUDGMENTS AND THEIR EXECUTION. 
 
 I. EOMAN LAW. 
 
 An interlocutory judgment is a decision on an incidental poiat Judgments 
 which does not exhaust the merits of the cause. A final tory'orfTnai. 
 judgment is one which terminates the action by determining 
 the whole matters in dispute. It is a sacred rule, that every 
 judgment legally pronounced by a competent court, even 
 though it be erroneous, must be obeyed until it is reversed 
 or set aside by superior authority. 
 
 Under the empire every judgment required to be reduced 
 to writing, and signed by the judge. It was entered in a 
 register, and a copy was delivered to the parties. In the 
 East, after Arcadius, the judgment might be drawn up in 
 Greek, but the use of Latin was retained at Constantinople 
 down to Justinian's time.^ 
 
 After sentence the debtor was allowed thirty days for pay- Execution 
 ment of the debt under the law of the Twelve Tables. At timers. ^ 
 the expiry of that time he was assigned over to the creditor 
 by the prsetor, and was kept in chains for sixty days, during 
 which he was publicly exposed for three market-days, and 
 the amount of his debt proclaimed ; and then, if no person 
 released the prisoner by paying the debt, the creditor could 
 sell him as a slave to foreigners. When there were several 
 creditors, the letter of the law allowed them to cut the body 
 of the debtor in pieces, and divide it among them in pro- 
 1 C. 7. 45. 12. Lydus de Magis., u. 12; iii. 11. 20. 42. 
 
336 EXECUTION OF JUDGMENTS. [part V. 
 
 portion to their debts ; but some writers contend that the 
 words partes secanto are to be taken in a figurative sense, as 
 referring to a division of the price when the debtor was sold 
 as a slave. There can be no doubt that the debtor, who was 
 addidus, might be sold as a slave ; but, according to Aulus 
 Gellius, there was no instance in which he was ever put to 
 death.i 
 
 Such was the state of the law at the time of the Twelve 
 Tables. The law Pcetelia Papiria, of the year of Eome 428, 
 made an important change in the liabilities of the nexi, who 
 came under a voluntary engagement of the person for the 
 loan of money. ^ But the addictio of the debtor, whereby he 
 was formally declared the property of the creditor by judicial 
 sentence, still continued in force, though other institutions 
 rendered this usage more and more rare. 
 
 The praetor allowed a delay of two months for payment of 
 a judgment debt ; and Justinian extended the period to four 
 months, both to the defendant and his sureties, after which 
 the debtor might be imprisoned, not in the house of the cre- 
 ditor, as in early times, but in a public prison. 
 
 In progress of time the property of the debtor might be 
 attached and sold for payment of the judgment debt, by 
 means of the missio in possessionem, which the creditors ob- 
 tained from the praetor. At first this was followed, after 
 public advertisements, by a sale in mass of the whole goods 
 of the debtor, in favour of any one who offered, by way of 
 price, to pay the largest dividend to the creditors upon their 
 respective claims. Afterwards the goods of the debtor were 
 sold in detail, either by the creditors, or a curator bonis ap- 
 pointed by them. AU the creditors who presented them- 
 
 ^ Aulas Gellius, xx. 1. of the debtor became the property o£ 
 
 ^ Among civilians the precise con- the creditor. 2!'eixi datio expressed 
 
 dition of a nexus has been a subject the contracting, and nexi liberatiothe 
 
 of controversy. A nexum was a release from the obligation. Savigny 
 
 transfer of a thing in the form of a and other -writers reject the notion 
 
 sale per ces et libram. Some think that a Roman citizen could sell or 
 
 that persons iui juris could manci- pledge himself. Maynz, Droit Ko- 
 
 pate themselves by way of pawn for main, vol. ii, p. 199, note, 
 debt. By this alienation the person 
 
CHAP. VII.] MODERN LAW. 
 
 337 
 
 selves m proper time were entitled to be paid a rateable divi- 
 dend from the produce of the sale, in virtue of the pratorian 
 pledge which the missio in possessionem conferred equally 
 upon them all ; but the preferences of hypothecary creditors, 
 ujider rights acquired before the period of concourse or bank- 
 ruptcy fixed by the praetor's decree, were reserved entire. 
 
 In the time of the classical jurists, a judgment creditor Execution 
 could adopt three modes of execution against his debtor: 1st, w." 
 by imprisoning his person ; 2d, by attaching and selling his 
 movable goods ; and, 3d, by attaching and selling his 
 immovable property. All these modes of execution were 
 concurrent. After the abolition of the formulary system, 
 when any one obtained a judgment ordaining the restitution 
 of a particular thing, he could, if required, be put in posses- 
 
 new 
 
 sion of the thing manu militari ^ 
 
 II. FRENCH, ENGLISH, AND SCOTTISH LAW. 
 
 In France, imprisonment for debt at the end of a suit is French law. 
 forbidden by the Civil Code, subject to a few exceptions j^ 
 but it is allowed by the Commercial Code when the debt is 
 commercial, and amounts to not less than 200 francs, or £8. 
 By adopting certain formalities the debt becomes commercial 
 and the law is evaded. Persons above seventy cannot be 
 imprisoned even for commercial debts. The duration of the 
 imprisonment varies from one year to five years, according to 
 the amount of the debts.* 
 
 In England, no debtor, generally speaking, can be im- EngHsU 
 prisoned for a debt under £20; neither can the judgment *^' 
 creditor execute all the writs of execution at the same time. 
 " The general rule is, that imprisonment is a satisfaction for 
 the debt, unless the debtor die in prison, or escape, or be 
 
 ^ I. 4. 17. 2. D. 6. 1. 68. Maynz, it was so stipulated for in the lease. 
 
 § 155. But by art. 2 of the law of 13th Dec. 
 
 ^ Code Civil, art. 2059 et seq. 1848, it was enacted that, in future, 
 
 * By article 2062 of the Code Civil, imprisonment could not be stipulated 
 
 imprisonment for non-payment of for in a lease for non-payment of rent 
 
 rent could not be enforced unless of agricultural subjects. 
 
338 MODEEN LA.W. [paet V. 
 
 rescued ; and hence, after that kind of execution, the creditor 
 cannot seize his goods and lands also. Again, where a writ 
 of execution against the real estate has been executed, the 
 debtor's person, or personal estate, cannot be taken. But 
 after taking the personal estate, either the person or the real 
 estate may be taken." ^ 
 
 In the English county courts, a debtor who has no goods, 
 and does not pay at the time ordered, may be committed to 
 prison for not more than forty days, if it be proved that the 
 debt was contracted fraudulently, or without any reasonable 
 prospect of his having the means of payment. This imprison- 
 ment, however, is no satisfaction of the debt.^ 
 Scottish In Scotland, imprisonment is not permitted for an ordinary 
 
 debt under £8, 6s. 8d. ; ^ but all modes of execution are con- 
 current, so that "the judgment creditor can imprison the 
 debtor, attach his debts and goods, and adjudge his real estate 
 at the same time for the same debt. 
 
 ' Paterson's Compendium, p. 399. 3 5 & 6 Will. IV. c. 70. 
 
 2 Ibid. p. 417. 
 
 law, 
 
CHAPTEE Vm. 
 
 or APPEALS. 
 
 An appeal is an application to a superior judge to review the 
 decision of an inferior one, on the ground that it is informal 
 or erroneous. The effect of an appeal is usually to suspend 
 the execution of the judgment till it is confirmed hy the 
 superior court. The first title of the 49th hook of the Digest 
 treats of appeals.^ 
 
 During the republic there was no appeal in civil suits for During re- 
 the purpose of reversing or altering a decision, for each judge appeaisTn 
 had power to decide finally withiu the limits of his jurisdic- "'^'^ ™"*' 
 tion ; and even the sentence of the judex, as a general rule, 
 was not subject to review by the magistrate who appointed 
 him. In such cases the only mode in which a person could 
 obtain rehef was by the intercession of certain magistrates of 
 high rank. Cases occur in which one of the prsetors inter- 
 posed to stop the proceedings of his colleague. The tribunes 
 could also use their authority to prevent execution of a judi- 
 cial sentence. Thus, when the praetor condemned L. Scipio 
 for peculation, the tribune allowed execution to pass against 
 his property, but interfered to prevent Scipio being sent to 
 prison. 
 
 From the time of Augustus a regular system of appeals Appeals 
 was established. At Eome there was an appeal from all the „?,"» ™ 
 magistrates to the prefect of the city, and then from the pre- '""P'''*- 
 feet of the city to the praetorian prefect or the emperor. M. 
 Aurelius, by a rescript, allowed an appeal from the judgment 
 1 See also C. 7. 62. N. 23, oh. 1. 
 
340 APPEALS. [part v. 
 
 of a judex to the magistrate who appointed him.^ By a con- 
 stitution of Hadrian there was no appeal from the senate to 
 the emperor, and from the emperor himself there was of 
 course no appeal. 
 
 In Italy and the provinces there was an appeal from the 
 municipal magistrates in the first instance to the governors, 
 and from them to the praetorian prefect or to the emperor. 
 
 Constantine prohibited appeals before final judgment, ex- 
 cept where a question of competency was raised. From his 
 time no appeal was allowed from the decisions of the praeto- 
 rian prefect ; but redress might still be sought against his 
 judgments in the form of supplication addressed to the 
 emperor. 
 
 Under Justinian all appeals were appointed to be entered 
 within ten days from the date of the judgment.^ The same 
 emperor directed that the imperial court {auditorium prin- 
 cipis) should not entertain any appeal under the value of 
 twenty pounds of gold, and all cases below that standard 
 were remitted to one or more judges, whose decision was 
 declared to be final.^ 
 
 ^ D. 49. 1. 1 and 21. duite par Laboulaye, Paris, 1841 ; 
 
 ' N. 23, ch. 1. ch. ix. p. 96. 
 
 5 Walter, Procedure Civile, tra- 
 
CHAPTBE IX. 
 
 OF INSOLVENCY AND CESSIO BONOEUM. 
 
 By the Lex Julia, passed either in the time of Julius Caesar Cessio 
 or Augustus, and subsequently extended to the provinces, '"'°™"'' 
 insolvent debtors were allowed the benefit of cessio bonorum, 
 whereby they were freed from imprisonment on making a 
 voluntary surrender of all their property to their creditors.-' 
 
 This surrender was made by a solemn declaration, either Not a re- 
 judicial or extrajudicial. The property thus given up was debTs." 
 sold, and the price was distributed among the creditors. The 
 debtor was not released from his debts unless the creditors 
 were fully paid, but he was protected from imprisonment at 
 their instance. If the debtor subsequently acquired property. Future 
 his creditors were entitled to attach it, except in so far as it Khabie. 
 was necessary for his own subsistence.^ 
 
 The cessio lonorum has been adopted in France ^ as well Cessio in 
 as in Scotland. By the ancient law of France, every debtor gcoUand*" 
 who sought the benefit of cessio was obliged by the sentence 
 to wear in public a green bonnet {bonnet vert) furnished by 
 his creditors, under the penalty of being imprisoned if he 
 was found without it. According to Pothier, this was in- 
 tended as a warning to all citizens to conduct their affairs 
 with prudence, so as to avoid the risk of exposing themselves 
 to such ignominy; but he explains that in his time, though 
 the condition was inserted in the sentence, it was seldom 
 
 1 j)_ 42. 3. 0. 7. 71. ' See Code de Proc. Civ., art. 898- 
 
 2 I. 4. 6. 40. D. 42. .3. 4. 906. 
 
342 CESSIO BONOETJM. [PAET v. 
 
 acted on in practice, except at Bordeaux, where it is said to 
 have been rigidly enforced.^ 
 
 Pormerly, a custom somewhat similar prevailed in Scot- 
 land. Every debtor who obtained the benefit of cessio was 
 appointed to wear " the dyvours habit," which was a coat or 
 upper garment, half yellow and half brown, with a cap of the 
 same colours. In modern times this usage was discontinued. 
 " According to the state of public feeling, it would be held a 
 disgrace to the administration of justice. It would shock 
 the innocent; it would render the guilty miserably profli- 
 gate." ^ For a considerable time it had become the practice 
 in the judgment to dispense with the dyvours habit, and by 
 the statute of Will. IV. it is utterly abolished.' 
 
 ' Pothier, TraitS de la Procediire toire de la Procedure Civile chez 
 
 Civile, part v. cli. ui. § 5. les Komains, par Walter, traduite de 
 
 ^ Per Lord Meadowbank in Smith, I'Allemand par M. Laboulaye, 1841; 
 
 eth Feb. 1813. F. C. TraitS des Actions, ou Tligorie de la 
 
 3 6 & 7 "Will. IV. c. 56. 2 Bell's Procedure Civile Privfe chez les Eo- 
 
 Com., 6th ed., 1102. mains, par Zimmern, traduite de 
 
 Since the discovery of the Insti- I'Allemand par M. Etienne, 1843 ; 
 
 tutes of Gaius at Verona, a con- Traite des Actions, ou Exposition 
 
 siderable number of works have ap- Historique de I'Organisation Judi- 
 
 peared on civil procedure among the ciaire et de la Procedure Civile chez 
 
 Komans. Among the most useful les Romains, par M. Bonjean, 3d 
 
 to consult we may mention — His- edit., 1846. 
 
PAET VI. 
 
 OF CEIMINAL LAW AND PEOCEDTJRE. 
 
 CHAPTER I. 
 
 OF CEIMINAL COURTS. 
 
 The Institutes of Gains contain nothing on the criminal law 
 of the Eomans, and very little information can be gleaned 
 from the title in Justinian's Institutes, de publicis judiciis} 
 Our limits will not permit us to enter into the subject at 
 much length ; but a short account of the administration of 
 criminal justice at Eome may not be without its use. 
 
 Sect. 1. — Criminal Jurisdiction of the Kings and Consuls. 
 
 Though our sources of information as to the regal period Kings and 
 are obscure, we have reason to believe that the kings were """'^ *' 
 the supreme judges in criminal trials, and that they were 
 assisted by a council. 
 
 TuUus HostiUus delegated his authority to two commis- 
 sioners to try Horatius for killing his sister, and allowed an 
 appeal from their sentence to the Comitia Curiata.^ Tarquin 
 the Proud dispensed with the aid of a council in criminal 
 trials; but this was considered irregular, and was made mat- 
 ter of complaint against him. 
 
 1 I. 4. 18. 2 Livy, i. 26. 
 
344 CRIMINAL COUKTS. [pakt vi. 
 
 After the expulsion of the kings, the consuls succeeded to 
 their judicial authority as regards the trial and punishment 
 of capital crimes, and they exercised the power of life and 
 death, as shown in the proceedings against the sons of Brutus. 
 But this power was of short duration. By the Valerian law, 
 passed in the year of Kome 245, every Eoman citizen had a 
 right to appeal to the people against any criminal sentence 
 pronounced by a magistrate ; and the direct jurisdiction of 
 the Comitia was afterwards recognised for the trial and pun- 
 ishment of all the more serious crimes. Further, by an ex- 
 press law of the Twelve Tables, no citizen was to be tried 
 for any offence involving his life or his rights as a citizen, 
 except before the Comitia of the Centuries. 
 
 By laws of this kind, which, though sometimes attempted 
 to be evaded, were frequently renewed and confirmed, the 
 criminal jurisdiction of the consuls and other magistrates was 
 reduced within narrow limits. In times of civil commotion, 
 however, when the liberties of the people were endangered, 
 the senate, by a decree, invested a dictator or the consuls with 
 extraordinary powers, in virtue of which they might put any 
 dangerous citizen to death, and execute summary justice upon 
 all offenders, without regard to the ordinary forms of law. 
 
 Sect. 2. — Criminal Jurisdiction of the Senate. 
 
 Senate as a During the republic, the senate possessed no regular juris- 
 diction in criminal causes in so far as Eoman citizens were 
 concerned. If this body sometimes ordered criminal prose- 
 cutions, they did so, after a preliminary investigation, by the 
 intervention of the magistrates, who prosecuted before the 
 people according to established forms ; and the trial took 
 place before the ordinary courts, or a special tribunal created 
 for the purpose. 
 
 When the senate was appointed to decide criminal causes, 
 either by itself or by commissioners taken from its body, this 
 power was derived from the express or tacit delegation of the 
 people. On some extraordinary emergencies of extreme peril, 
 the senate, along with the consuls, assumed the responsibility 
 
 criminal 
 court. 
 
CHAP. 1.] CRIMINAL COURTS, 345 
 
 of inflicting summary punishment on state criminals. Of this 
 we have a memorable example in the proceedings against the 
 conspirators associated with Catiline, some of whom were 
 strangled in prison without any regular trial, under the con- 
 sulship of Cicero. This measure, however, was viewed with 
 great jealousy as a dangerous and unconstitutional stretch of 
 power; and although it was generally acknowledged that 
 Eome had been preserved from great peril by the vigorous 
 conduct of Cicero, he was afterwards driven into exile, under 
 the law of Clodius, for having put Eoman citizens to death 
 without a trial. 
 
 Though the senate, during the republic, had no proper crim- Offences in 
 inal jurisdiction over the city of Eome, they took cognisance proyinMs. 
 of all serious crimes committed in Italy and the provinces. 
 
 Under the empire, the senate was invested by the prince. State 
 exercising the powers of dictator, with criminal jurisdiction, °^™"*- 
 particularly in all offences against the state and the person of 
 the emperor, as well as in crimes of extortion by provincial 
 magistrates, and capital charges against senators. Frequently 
 the emperor in person attended the deliberations of the sen- 
 ate ; the senators held their office during his pleasure ; and he 
 had no difficulty in obtaining any condemnation which he 
 desired, when his object was to crush men of influence who 
 had incurred his displeasure. Thus the senate soon became 
 a mere instrument in the hands of the prince, who absorbed 
 all its authority.^ 
 
 Sect. 3. — Criminal Jurisdiction of tJie Comitia. 
 
 There were three sorts of popular assemblies at Eome — the Assemblies 
 Comitia Curiata, the Comitia Centuriata, and the Comitia peopfe. 
 Tributa. 
 
 Of these the Comitia Curiata, the earliest in date, was an Comitia 
 assembly of the thirty curise, composed entirely of patricians. "'* "■ 
 The trial of Horatius, being the first we meet with in Eoman 
 history, took place before this tribunal. 
 
 The Comitia of the Centuries, instituted by Servius TuUius, 
 1 MajDZ, § 51. 
 
346 CEIMINAL COURTS. [part VI. 
 
 Comitia comprehended all the citizens, divided into a certain number 
 Centuriata. ^^ classes, according to fortune, age, and rank. In this as- 
 sembly the great preponderance was given to riches, all the 
 power having been concentrated in the superior classes, 
 without appearing to exclude any one from the right of suf- 
 frage. The sentiments of each century were governed by the 
 majority of its members, but in the assembly each century 
 counted only for one vote. 
 Comitia The Comitia Tributa was an assembly of the people accord- 
 
 Tributa. j^g ^^ ^j^g^^ tribes, and originally consisted only of plebeians. 
 Here the democratic element prevailed. AU citizens were 
 afterwards admitted into this assembly ; and, at a period not 
 clearly ascertained, the system was modified by the intro- 
 duction into the tribes of a classification analogous to that of 
 the centuries, so that the votes were no longer given by the 
 head, but by classes in each tribe. 
 Assembly of At the Commencement of the republic, the assemblies of 
 the chief the pcoplc appear to have acted as a court of review in those 
 criminal cases only where an appeal was made from the sen- 
 tence of a magistrate. But after the power of the magistrates 
 as criminal judges had been restricted by successive laws, 
 the Comitia Centuriata came to be recognised as the regular 
 court for the trial of all the more serious crimes committed 
 by Eoman citizens. "What chiefly led to this result was the 
 well-known law of the Twelve Tables, that no Roman citizen 
 could be tried for any offence involving his life or privileges, 
 except by the Gomitiatus Maximus — ^that is, as we are told 
 by Cicero, the Comitia Centuriata. The judicial power so 
 conferred on the popular assembly was regarded as a funda- 
 mental part of the Eoman constitution, and the surest safe- 
 guard against injustice and oppression down to the close of 
 the republic. 
 
 The Comitia Tributa likewise acted as a supreme court of 
 criminal judicature, but the limits of its jurisdiction are not 
 very clearly defined. Originally, it claimed the right of 
 giving judgment on those offences which were regarded as • 
 infringements of the privileges of the plebeians ; but, as the 
 power of the tribunes increased, they grew bold and unscru- 
 
 criminal 
 court. 
 
CHAP. I.] CRIMINAL COURTS. 84'7 
 
 pulous, and occasionally brought before the Comitia Tributa 
 capital offences which did not fall under their cognisance. 
 Thus Coriolanus was condemned by the assembly of the 
 tribes ; but this was considered a flagrant violation of the 
 constitution. Cicero was convicted and driven into exile by 
 the same tribunal ; but he complained that it had no power 
 to try him on the charge of perduellio, brought against him 
 by Clodius, which could only be legally tried before the as- 
 sembly of the centuries. Many writers are of opinion that 
 although the Comitia Tributa sometimes exceeded their 
 powers, they were prohibited by law and established usage 
 from inflicting any punishment more severe than the imposi- 
 tion of a fiue.^ 
 
 In criminal trials before the comitia, no one could act as 
 an accuser except a magistrate. 
 
 As a general rule, no person could be brought to trial while 
 holding any of the higher offices of state, though this was 
 sometimes departed from ; but all magistrates might be called 
 to account for malversation after their year of office had 
 expired. When threatened with a criminal prosecution by 
 Milo, Clodius contrived to stave it off by getting himself 
 elected edile. 
 
 In a trial before the comitia, the people gave their votes 
 in the same manner as in passing a law. 
 
 Sect. 4. — Criminal Jurisdiction of Commissioners — 
 Qucestiones Perpetuce. 
 
 To convene the citizens in the comitia for the trial of Standing 
 
 IT- J criminal 
 
 offenders, after the population of Eome had increased, was commis- 
 found to be inconvenient, and the expedient was adopted of "™'- 
 delegating the jurisdiction of the people to one or more per- 
 sons, invested with temporary authority, to try particular 
 crimes. These judges were called qucesitores or qucestores — 
 the trial being termed qucestio — and their authority ceased 
 when the trial was over. The ordinary magistrates were most 
 
 1 See Laboulaye, Essai sur lea Lois Criminelles dea Eomains (Paris, 1845), 
 p. 96. 
 
348 CRIMINAL- COURTS. [paet VI. 
 
 frequently appointed commissioners, and sometimes private 
 persons. In matters falling under their jurisdiction, the 
 senate usually appointed qucestores from their own body. 
 
 In the early ages of the republic, it was customary to issue 
 a special commission to try each cause ; but in the beginning 
 of the seventh century, when offences of every description 
 had become numerous, an important change was introduced 
 into criminal procedure by establishing permanent courts for 
 trying crimes of the most frequent occurrence, and these 
 courts were called qucestiones perpetuce. Calpurnius Piso, a 
 tribune of the people in 604, introduced a law de pecuniis re- 
 petundis, whereby a permanent commission was established 
 for the trial of extortion by provincial governors. This court 
 was composed of a praetor, who acted as presiding judge, 
 without a deliberative voice, and a certain number of judices, 
 resembling in many respects a modern jury, chosen from the 
 senators. 
 
 So successful was this new experiment that it was soon 
 extended to other crimes, such as treason, peculation, and 
 bribery. When the criminal code was remodelled by Sylla, 
 new courts of a similar description were instituted for a great 
 variety of offences, till at length the system was brought into 
 general operation, and the whole ordinary criminal business, 
 with few exceptions, was conducted by the qucestiones per- 
 petuce down to the establishment of the imperial government. 
 Presiding After the institution of the qucestiones perpetvxie in the 
 tria?* *' seventh century, the presiding judge was either one of the 
 prsetors, or an officer called judex qucestionis. Each court 
 took cognisance of one class of offences only; and the mul- 
 tiplicity of these tribunals rendered it necessary to increase 
 the number of prsetors, though these magistrates were au- 
 thorised to delegate their functions of president to the judex 
 qucestionis. 
 Any citizen As the qucestiones perpetuce were established under different 
 might prose- ^^^g^ j;^g forms of procedure were not always the same ; but 
 some general principles were applied in all of them. It was 
 no longer necessary, as it was before the comitia, that a 
 magistrate should act as accuser ; any citizen might now 
 
OHAP. I.] CRIMINAL COURTS. 349 
 
 come forward and prefer a charge before the pr^tor. Every 
 case submitted to these courts was tried by a judge and a 
 jury. It was the duty of the judge to preside and regulate 
 the proceedings according to law. It was the duty of the 
 jury, after hearing the pleadings and the evidence, to decide 
 upon the guilt or innocence of the accused. The number J^y varied 
 of the jury varied according to the provisions of the law '" '"""''"'■ 
 under which the trial took place, but was always consider- 
 able; and we find examples of thirty-two, fifty, seventy, 
 seventy-five, and other numbers. The presiding judge drew 
 out the names of the jurors from the urn : each party had 
 a right to challenge a certain number ; and the verdict was 
 returned by a majority of votes.^ 
 
 During the last century of the republic, the power pos- 
 sessed by those who acted as judices was very great, and was 
 often abused for party purposes, so that the most serious in- 
 ternal dissensions arose from contests between different orders 
 of the state for the privilege of acting in that capacity. At How juror 
 first the judices were chosen only from the senators, and so " '"™' 
 matters stood at the passing of the lex Calpurnia, in G04 ; 
 then, by the Sempronian law of C. Gracchus in 630, only 
 from the equestrians ; afterwards, by the Servilian law in 
 647, from both orders. Sylla, in 671, restored the privilege 
 to the senators alone. By the Aurelian law, Cotta, in 683, 
 divided it among the senators, equestrians, and tribunes of 
 the treasury. Augustus increased the number of the judices, 
 and extended the qualification to the humbler classes of the 
 community ; but the political importance of the ofSce under 
 the empire soon passed away. 
 
 Sect. 5. — Criminal Jurisdiction of the Emperor and other 
 Magistrates. 
 
 Under the imperial government, the prince exercised imperial 
 
 t . ° .ii T, , -nr magistrates. 
 
 criminal jurisdiction in concurrence with the senate. We 
 
 find frequent examples of the emperor presiding personally 
 
 in criminal trials without consulting the senate. When 
 
 » Maynz, § 35. 
 
350 
 
 CRIMINAL COURTS. 
 
 [PAET VI. 
 
 Prefect of 
 the city. 
 
 Prefect of 
 police. 
 
 Csesar, the dictator, constituted himself sole judge of Ligarius, 
 it may be said that the old Eoman constitution was over- 
 thrown. 
 
 By the side of the republican courts, Augustus established 
 the jurisdiction of the senate for a large class of crimes, such 
 as treason, and offences committed by magistrates and public 
 functionaries. During the first century of the empire, we 
 find examples of some crimes tried by the quwstiones per- 
 pettue; but these became more and more rare, and criminal 
 jurisdiction was gradually diverted to imperial magistrates. 
 
 The prefect of Che city usurped many of the duties which 
 had formerly belonged to the praetor and ediles. He pun- 
 ished all ordinary crimes committed in the city of Eome, 
 and within a circuit of a hundred miles around it, having 
 power to banish persons from Italy, and transport them to 
 an island named by the emperor. 
 
 The prcefectus vigilum, who commanded the soldiers ap- 
 pointed to watch the city, took cognisance of incendiaries, 
 thieves, vagrants, and the Uke; but he could only inflict 
 light punishments.^ 
 
 1 Maynz, § 53. 
 
CHAPTER 11. 
 
 PROCEDURE IN CRIMINAL TRIALS. 
 
 Any Eoman citizen might accuse another before the praetor, Authority 
 on being authorised to do so by that magistrate. The demand -^ZST 
 for such authority was called postulatio, and was published *'"• 
 in the forum, to allow aU concerned an opportunity of object- 
 ing. At the same time the accuser gave his oath of calumny 
 that his proceedings were adopted in good faith, and with a 
 view to the public interest. 
 
 After a reasonable delay, if the title of the accuser was Accusation 
 sustained, he made a formal declaration of the name of the ""'"''"'p '"• 
 person impeached, and the crime laid to his charge. A docu- 
 ment was then drawn iip, called inscriptio, stating the name 
 of the accused and the precise nature of the charge: and 
 this was signed by the accuser and those who intended to 
 support him in conducting the prosecution. 
 
 The accused was summoned to appear before the praetor 
 and hear the charge preferred against him. If he appeared 
 and denied his guilt, as usually happened, the prsetor ap- 
 pointed a day for proceeding with the trial, which was 
 generally fixed after the lapse of ten days. 
 
 On the day appointed the parties appeared ; and the praetor. Trial, 
 or in his absence the presiding judge, caReA judex qucestionis, 
 drew out of the urn the proper number of names to constitute 
 the jury. A certain number of the jury might be challenged, 
 both by the accuser and the accused. The jury having been 
 sworn, the prosecutor, or his counsel, opened the case ; the 
 accused defended himself in person or by his counsel ; and 
 then the evidence was taken. 
 
352 CRIMINAL TRIALS. [paet vi. 
 
 Verdict and When the proof and pleadings were concluded, the jury 
 judgment. ^^^^ called upon by the judge to give their verdict, which 
 was done at first openly, and afterwards by ballot. The judge 
 distributed among the jury small tablets, upon which they 
 wrote secretly either an A. {ahsolvo), or a C. (condemno), or 
 K L. [non liquet). After examining these tablets, the judge 
 pronounced sentence, according to the opinion of the majority, 
 in a certain form. If the verdict was guilty, the praetor said, 
 mdetur fecisse ; if it was not guilty, non videtur fecisse ; and 
 if a majority were unable to decide, he said ampliv^, and the 
 cause was deferred for a new hearing on a future day. When 
 the criminal was condemned, he was punished by law ac- 
 cording to the nature of his offence. 
 
 Such were the forms of procedure followed in trials before 
 the qucestiones perpetuce. The forms observed before the 
 comitia were very nearly the same, excepting the differ- 
 ences arising from the nature of the tribunal and the mode 
 of giving the vote.^ 
 
 1 Much of our knowledge of crim- ciissed with great clearness in the 
 
 inal procedure among the Romana ' Republique Romaine ' of Beaufort, 
 
 is derived from Sigonius, a learned and more recently by M. Laboulaye 
 
 writer of the sixteenth century. To in his ' Essai sur les Lois Crimiuellea 
 
 this modem discoveries have added des Remains, ' Paris, 1845. 
 very little; but the subject is dis- 
 
CHAPTEU III. 
 
 OF CRIMES. 
 
 In a general sense, crimes are such transgressions of law as Nature of 
 are punishable by coiirts of justice. The perpetrator of a ™'°^" 
 crime is liable to punishment on grounds of public policy, 
 besides being bound to repair, where that is possible, the 
 injury sustained by the individual. For minor offences the 
 term delict is sometimes used. 
 
 By the Eoman law, crimes w^ere divided into private and Crimes 
 public. Private crimes could be prosecuted only by the party pubik! "" 
 injured, and were generally punished by pecuniary fines ap- 
 plied to his use. Some offences which we are accustomed 
 to regard as public crimes, such as theft and robbery, were 
 treated as civil wrongs in the same manner as trespass, 
 slander, and various other injuries which have already been 
 noticed under the head of actions arising from wrongs. 
 AU these were usually requited by payments in money ; and 
 the same peculiarity is observable in the early laws of the 
 Germans. 
 
 Ordinary public crimes were those expressly declared to Ordinary 
 be such by some law or ordinance, and which, on account of ordinary, 
 their atrocious or hurtful character, might be prosecuted by 
 any member of the community. Some public crimes were 
 called extraordinary, when the nature of the punishment was 
 not defined by any specific law, but was left to the discretion 
 of the judge. Of this description were violating a tomb, re- 
 moving landmarks, forcing prisons, sheltering and abetting 
 thieves, stellionate,^and a great variety of innominate offences.i 
 1 D. 47. t. 11-21. 
 z 
 
354 CRIMES. [PABT VI. 
 
 Character of The Criminal system of the Eomans never attained the 
 system*' same degree of maturity and perfection as their law of civil 
 rights. Their law respecting crimes was framed with special 
 reference to their national institutions, their religion, the 
 functions of their magistrates, and the manners and hahits of 
 the people, so that many regulations which were natural and 
 convenient in their situation are wholly unsuitable to modern 
 states. Besides, under the empire, the violence, and jealousy 
 of every bad prince, and the short-sighted policy of every 
 weak one, led to numerous inconsistent ordinances often dic- 
 tated by mere caprice, which threw this branch of Eoman 
 jurisprudence into great confusion. 
 
 In classifying crimes, a distinction has generally been drawn 
 between offences against the sovereign and the state, and 
 offences against individuals. 
 
 I. OFFENCES AGAINST THE STATE. 
 
 Treason — Crimen Icesoe majestatis. 
 
 Treason. In the early times of the republic, every act which was in- 
 
 jurious to the safety of the state was called perduellio, and 
 was punished by death. Numerous offences against the state 
 were comprehended under that term, such as conspiracy 
 against the government, aiming at kingly power, assisting the 
 enemies of Eome, misconduct in the command of the armies. 
 Marcus Manlius, who saved his country during the invasion 
 of the Gauls, was convicted of an intention to seize upon the 
 government, and being condemned, was, as Varro relates, 
 hurled from the Tarpeian Eock, or, as Cornelius Nepos affirms, 
 scourged to death ; his property was also confiscated, and his 
 house razed to the ground.' Cn. Fulvius was accused of los- 
 ing a Eoman army ; but he anticipated his condemnation by 
 voluntary exile. Coriolanus was charged with aspiring at 
 tyranny, because he declared in the senate that the office of 
 tribune of the people should be abolished. 
 • Aulus Gellius, lib. xvii. c. 21. 
 
CHAP. III.] CRIMES. 
 
 355 
 
 Of all the crimes falling under the description of capital, 
 treason was visited with the greatest severity. The term 
 pnrduellio fell into disuse, and the offences corresponding to 
 treason in English law were comprehended under the crimen 
 Icesce majestatis, the penalty of which was death with confis- 
 cation of goods, while the memory of the offender was de- 
 clared infamous.^ Under the empire, the law was extended 
 not only to all attempts on the life of the reigning prince, 
 but to aU acts and words which might appear to be disre- 
 spectful to him, so that any indignity offered to a statue of 
 the emperor could be punished as severely as an offence 
 against his person. Every reader of Eoman history knows 
 how fearfully this engine of oppression was worked by 
 Tiberius and some of his successors. 
 
 One striking peculiarity of the Eoman law of treason was Trials for 
 that the criminal might be tried even after his death, in order delT™*"*' 
 that his memory might be declared infamous and his pro- 
 perty confiscated to the state.^ This barbarous practice, so 
 contrary to the rules of law and the dictates of humanity, 
 was introduced during the despotism of imperial Eome ; and, 
 strange to say, was adopted both in France and Scotland 
 at a period so recent as the beginning of the seventeenth 
 century. 
 
 Nicolas I'Hote, a clerk of the Secretary of State, having 
 betrayed Henry IV. of France by giving information to the 
 King of Spain of all the deliberations of the French Council, 
 was warned that his crime had been discovered, and in 
 attempting to escape from his pursuers was drowned in the 
 Marne. His dead body was taken to Paris, where he was 
 convicted of high treason on 15th May 1604, and sentenced 
 to have his body drawn on a hurdle, and dismembered by 
 four horses, and the quarters exposed on the four principal 
 avenues of the city. Dismemberment by four horses was 
 then the ordinary punishment for treason in France, but it 
 was sometimes aggravated by the most cruel torments, as 
 shown by the sentences against the regicides Eavaillac and 
 Damiens ; and it is remarkable that in both of these cases 
 ' I. 4. 18. 3. D. 48. 4. C. 9. 8. ' C. 9. 8. 6. 
 
356 
 
 CRIMES. [PABT VI- 
 
 the houses in which the criminals were horn were ordered to 
 be razed to the ground according to the Eoman custom, the 
 proprietor being indemnified for the loss.^ 
 
 Several trials for treason after the death of the criminals 
 took place in Scotland during the reign of James VI., who 
 piqued himself on a strict adherence to the classical standards 
 of antiquity, though he frequently selected the worst models 
 for imitation. In January 1603, Francis Mowbray, who was 
 accused of "most high, horrible, and detestable points of 
 treason," was killed in his attempt to escape from Edinburgh 
 Castle. By a royal warrant his dead body was brought to 
 the bar of the Court of Justiciary, which, without any evi- 
 dence, and without the verdict of a jury, sentenced him "to 
 be dismembered as a traitor, his body to be hanged on a 
 gibbet, and afterwards quartered ; his head and limbs stuck 
 up on conspicuous places in the city of Edinburgh, and his 
 whole estate to be forfeited." ^ In Eobert Lesly's case, and 
 in that of Logan of Eestalrig, the bones of the deceased were 
 raised from the grave and presented at the bar, as if to mock 
 the very forms of justice.' 
 
 During the same reign, Archibald Cornwall, town-officer 
 in Edinburgh, was convicted of treason for the foolish jest of 
 attempting to hang up the king's picture on the gallows. 
 The prisoner was charged with "the ignominiously dis- 
 honouring and defaming of his majesty, in taking of his por- 
 trait, and laying of the same and setting thereof to the stoops 
 and upbearers of the gibbet." For this offence Cornwall was 
 condemned to be hanged on the same gibbet till he was 
 dead, and to remain on the gibbet " by the space of twenty- 
 four hours, with a paper on his forehead containing that vile 
 Clime committed by him, which was pronounced for doom." * 
 
 Blackstone mentions two instances in the reign of Edward 
 
 IV. of England, of persons executed for treasonable words, — 
 the one a citizen of London, who said he would make his 
 son heir of the crovm, being the sign of the tavern in which 
 
 1 Encyclopedie de Jurisprudence, » Amot's Criminal Trials, p. 65. 
 voce Lise-MajesU, Paris, 1785, voL ^ i Hume's Criminal Law, p. 540. 
 
 V. p. 440-1. « Amot's Criminal Trials, p. 63. 
 
CHAP. III.] CRIMES. S5f 
 
 he lived ; the other, a gentleman whose favourite buck the 
 king killed in hunting, whereupon he wished it, horns and 
 all, in the king's belly. In the last case, we are told, Chief- 
 Justice Markham rather chose to leave his place than assent 
 to the judgment.^ It has now, however, been long settled, 
 that words spoken are not treasonable, though they may 
 amoimt to a high misdemeanour. 
 
 Vis PubKca et Privata. 
 
 Public force was a breach of the peace committed by bodies PuWio and 
 of men in arms organised for purposes of sedition, or obstruct- \l"^^ 
 ing the constituted authorities in the performance of their 
 duty. In the last century of the Eoman republic, violent 
 riots by hired mobs became frequent, and persons convicted 
 of this offence were banished. Private force was an illegal 
 act of violence perpetrated on private account without arms ; 
 and this was punished by confiscation of one-third of the 
 offender's estate.^ 
 
 MHO accused Clodius of having opposed by an armed force 
 the decree by which Cicero was recalled from exile ; but 
 Clodius escaped from this prosecution by getting himself 
 appointed to the office of edile. He then brought a similar 
 accusation against Milo for having employed force in dis- 
 persing Clodius and his satellites when the law for Cicero's 
 recall was passed. 
 
 Crimen Eepetundarum. 
 
 These expressions were used to denote a charge against Extortion, 
 governors, magistrates, or other public functionaries, of ex- 
 tortion or other corrupt practices, such as accepting bribes 
 to pervert the course of justice.^ In the early ages of Eome 
 there are few traces of this offence ; but after the corruption 
 of manners it became extremely common, especially in the 
 provinces. If Cicero's orations can be relied on, they present 
 
 1 Black. Com., book 4, ch. 6. 7. C. 9. 12. 
 
 2 Lex Julia de Vi, D. 48. t. 6 and ' D. 48. 11. C. 9. 27. 
 
358 CRIMES. [part VI. 
 
 a vivid picture of the extortions of Verres during his three 
 years' rule as proprsetor in Sicily. No class of the inhabit- 
 ants was exempted from his avarice and cruelty. Both the 
 producers and farmers of the revenue were laid under contri- 
 bution ; the industrious classes were made to pay heavy im- 
 posts ; and the wealthy were forced to yield up their money 
 and their works of art, among which were the beautiful 
 statues and Corinthian vases, the possession of which by 
 Verres, after his return from exile, is supposed to have led 
 Mark Antony during the second triumvirate to place his 
 name on the list of the proscribed.^ 
 
 The crimen repetundarum (jpecuniarum) was punished by 
 restitution of what was wrongfully taken, and pecuniary 
 penalties to the extent of double and sometimes quadruple 
 the value. Under the empire, the offender generally suffered 
 degradation, by loss of rank or of&ce ; and he was sometimes 
 condemned to exUe. 
 
 jPeculatus. 
 
 Embezzle- By this is meant the theft or embezzlement of property 
 "ubiicV"- I'elonging to the state. In early times it was punished by 
 perty. j;}jg interdiction of fire and water; afterwards, when the 
 offence was committed by public officers during their admin- 
 istration, the punishment was death ; and private persons 
 suffered deportation. Of the same nature was the Lex de 
 Besiduis, which applied to those who had received public 
 money for public purposes and retained it. They were com- 
 pelled to restore what they had appropriated, and to pay 
 one-third more by way of penalty. 
 Sacrilege. Sacrilege is the stealing of sacred or religious things con- 
 secrated to the service of God. It was comprised in the Lex 
 Julia de Peculatu? The punishment was death, but some- 
 times a lighter penalty was inflicted. It was not unusual for 
 private persons to deposit their money in temples for security; 
 but the stealing of such money appears to have been regarded 
 as theft, not sacrilege. 
 
 ' Plin. Hist. Kat., xxxiv. 3. ' D. 48. 13. C. 9. 28. 29. 
 
CHAP. III.J CRIMES. 359 
 
 Ambitus. 
 
 During the republic, severe laws were passed to repress Bribery, 
 bribery by candidates in their canvass for election to public 
 offices, not only while the voting was open, but also after the 
 ballot was introduced by the Gabinian law (b.c. 139). Only 
 the briber and his agents appear to have been punished, not 
 the persons bribed. The penalty was sometimes exile, and 
 sometimes a pecuniary fine, exclusion from the senate, and 
 iacapacity to hold office. 
 
 By the Lex Tullia, passed in the consulship of Cicero (b.c. 
 63), the punishment of bribery was ten years' exile. This 
 law forbade any person to exhibit public shows for two years 
 before he was a candidate ; and prohibited the practice of 
 hiring gladiators and armed men to attend the competitors 
 at the popular elections. Notwithstanding the severity of 
 these enactments, the temptation to purchase the suffrages 
 of the people was too strong to be resisted, and bribery, re- 
 duced to a regular system, went on increasing till the close 
 of the republic. Marius, SyUa, Pompey, Julius Caesar, aU 
 lavished money among the venal citizens to procure dignities 
 for themselves and their friends or adherents. 
 
 The trials for bribery were numerous in the republican 
 period. When Emilius Scaurus was elected consul, he was 
 accused of bribery by EutiUus, who had been his competitor 
 for that office. Scaurus was acquitted, and immediately after- 
 wards he impeached Eutilius for the same offence, and ob- 
 tained a conviction. Cicero defended Murena and Plancius 
 when accused of bribery, and his -orations have come down 
 to us. 
 
 The popular forms of election ceased under Tiberius. The 
 choice of magistrates was then transferred to the senate; but 
 the emperors abolished by degrees the vestiges of republican 
 government, and appointed the magistrates themselves, so 
 that the laws against bribery, as Modestinus observes, be- 
 came obsolete at Eome. They subsisted only in municipal 
 towns and colonies, where the people continued to enjoy the 
 freedom of elections ; and, by a decree of the senate, persons 
 
360 CRIMES, [part VI. 
 
 convicted of bribery were subjected to a fine of one hundred 
 aurei, with infamy.^ 
 
 II. — OFFENCES AGAINST INDIVIDUALS. 
 
 Homicide. 
 
 Homicide is the act by which the life of a human being is 
 taken away. There are two degrees of criminal homicide, 
 murder and manslaughter; and two degrees of homicide 
 which do not expose to punishment, excusable bhA justifiable. 
 
 Murdci. Murder is the killing of any person wilfully without a 
 
 necessary cause. By the laws of the Twelve Tables, this 
 crime was punished by death. In the early ages, trials for 
 murder took place before the people in the Comitia Centuri- 
 ata, or by commissioners appointed by them ; and this prac- 
 tice was continued till about the last half-century of the re- 
 public, when Sylla established a permanent court {qucestio 
 perpetua) to take cognisance of all offences falling under the 
 Lex Cornelia de Sicariis et Veneficiis.^ 
 
 At different periods of Eoman history, poisoning prevailed 
 to an alarming extent. Livy informs us that two patrician 
 matrons were accused of preparing poisonous drugs, which 
 were found in their possession. They asserted that the drugs 
 were wholesome ; and, in order to test their sincerity, they 
 were brought into the forum, and made to drink off the pre- 
 paration, when they both perished. Their attendants being 
 instantly seized, gave information against a great number of 
 matrons, of whom no less than 170 were condemned. This 
 affair created a great sensation, and, according to the histo- 
 rian, " seemed more the result of madness than of vicious 
 depravity." ^ 
 
 Parricide. Pairicide is the murder of parents — a crime against which 
 Solon refused to make any law, lest he should by forbidding 
 it teach the people it was possible. By the Eoman law the 
 murderers of a parent or grandparent were scourged till they 
 bled, sewed up in a leather sack with a dog, cock, viper, and 
 1 D. 48. 14. C. 9. 26. " D. 48. 8. ' Livy, viii. 18. 
 
CHAP. 111.] CRIMES. 361 
 
 ape, and thrown into the sea or a river. This extraordinary 
 punishment was originally introduced by the Twelve Tables ; 
 it was renewed by the laws of Sylla and Pompey ; and it is 
 mentioned in the Institutes as subsisting in the time of Jus- 
 tinian.^ Under the empire, it was not uncommon to con- 
 demn parricides to be burned alive, or to be devoured by wild 
 beasts in the amphitheatre.^ 
 
 By the laws of SyUa and Pompey, parricide was extended 
 to the killing of ascendants and descendants in any degree, 
 of collaterals to the fourth degree, and of the wife, husband, 
 and patron ; but the punishment of the sack appears to have 
 been retained only for those who had murdered a father, 
 mother, grandfather, or grandmother, among ascendants, or 
 children among descendants.* Publicus Malleolus, who 
 killed his mother, is said to have been the first who suffered 
 this pimishment, in the year of Rome 652.* Sextus Eoscius, 
 of Ameria, was tried for the murder of his father under the 
 Cornelian law (B.C. 80) ; but he was ably defended by Cicero, 
 and acquitted. 
 
 Among civilised nations murder has been generally punished 
 capitally. But it is a remarkable fact, that in almost every 
 barbarous state this atrocious crime might be atoned for by 
 paying a fine to the nearest kinsmen. This custom prevailed 
 among the ancient Germans,^ and was incorporated as law in 
 the provisions of the barbarian codes. 
 
 Plagium. 
 
 This offence was the abduction or stealing of a free person. Kidnap- 
 er a slave belonging to another. By the Lex Fabia the P""^' 
 
 ' I. 4. 18. 6. ner; his right hand was then cut off, 
 
 ^1). 48. 9. 9. 1. "Hodie tamen and his body " encutado," that is, 
 
 viviexurunturveladbestiasdantur." placed in a barrel, with a cock, a 
 
 Paul, 5. 24. 1, p. 439, ed. Huschke. snake, a monkey, and a toad, and 
 
 3 c. 9. 17. 1. thrown into the river. — See Quart. 
 
 Something resembling the ancient Rev., vol. Ixi. p. 390. 
 
 form of execution took place at Jaen, * Beaufort, Kep. Kom., vol. ii. p. 
 
 in Spain, on Ist March 1832. A man 87. 
 
 who had murdered his daughter-in- ^ Tac. Ger., c. 12. 
 law, was hanged in the usual man- 
 
562 CRIMES. [part VI. 
 
 penalty was pecuniary ; but after kidnapping became com- 
 mon, the punishment was increased to banishment, and in 
 some cases was capital.^ 
 
 Adultery. 
 
 Adultery. By the law of most Christian' countries, adultery is the 
 violation of conjugal fidelity by either of the spouses, so that 
 the incontinency of the wife and husband stand upon the 
 same foundation. The Eomans adopted a different mle ; for 
 adultery was defined by them to be sexual intercourse with 
 another man's wife.^ It was adultery whether the male was 
 married or not ; but the sexual connection of a married man 
 with a woman who was not married was not adultery. By 
 the Julian law, passed in the time of Augustus, persons con- 
 victed of adultery were banished, besides forfeiting a con- 
 siderable part of their property.^ A constitution of Constan- 
 tine, inserted in the Code, made adultery a capital offence, 
 but it seems to apply only to males ; and, at a subsequent 
 period, Justinian ordered the erring wife to be confined in a 
 convent, after being whipped.* 
 
 In England, during the Commonwealth, adultery in either 
 sex was made a capital oflence; but this law was discon- 
 tinued at the Eestoration. A similar law for notorious adul- 
 tery existed in Scotland under the Act 1563, c. 74 ; but this 
 statute has expired by long desuetude. In France, a married 
 woman and her paramour, convicted of adultery, are liable 
 to be punished by imprisonment, besides a pecuniary fine in 
 the case of the man.^ 
 
 JRaptiis Mulierwm. 
 
 Rape. By the Eoman law, rape was punished with death and con- 
 
 fiscation of goods.® It is the general opinion of civilians 
 
 ^ I. 4. 18. 10. D. 48. 15. C. 9. 20. Vinnius, Com. 4. 18. 4. 
 
 ' "Adulterium est aUeni thori vio- ' D. 48. 5. 
 latio, sive coitus cum aliena uxore ^ C. 9. 9. 30. N. 134, ch. 10. 
 factus. Nam adulterium jure civili " Code Penal, art. 336, 337, 338. 
 cum nupta tantum committitur. " — ' C. 9. 13. 
 
°H^^- "1-J CRIMES.' 
 
 363 
 
 that this offence might be committed, not only by forcible 
 connection with a woman against her will, but by carrying 
 off her person from her friends with a view to debauch her, 
 even though there should be no actual violation. But in this 
 country it is essential to this crime that the act of connection 
 should be fully consummated* 
 
 Formerly the punishment of rape was capital with us ; but 
 by the 4 and 6 Vict. c. 56, it is provided that every person con- 
 victed of this crime shall be liable to be transported for life. 
 In France the punishment varies, according to circumstances, 
 from imprisonment to forced labour for life.^ 
 
 Crimen Falsi. 
 
 Falsehood has been defined the fraudulent imitation or Forgery and 
 suppression of truth to the damage of another. The Lex f*''^'"""^- 
 Cornelia de Falsis, passed in the time of Sylla, treated chiefly 
 of three offences : . 1. Forgery of testamentary writings ; 2. 
 Coining base money ; 3. Perjury and corrupting witnesses. 
 The penalty attached to this law was the interdiction of fire 
 and water. 
 
 There were other legislative provisions regarding these 
 offences, whereby the penalties of forgery were extended to 
 the fabrication of all viTitten instruments, as well as wills. 
 Laws were also passed against the use of false weights and 
 measures, and other frauds. The punishments inflicted were 
 arbitrary, and a distinction was sometimes made according 
 to the rank of the offender ; for, while persons of condition, 
 called "honestiores," were banished, we find men of low 
 degree, the " humiliores," sentenced to be buried in the mines 
 or executed.^ 
 
 Besides robbery, theft, patrimonial damage, and injury to Kxtraordi- 
 the person or reputation, which have already been considered "^''y"'"'""^^- 
 as private trespasses, though in modern systems the first two 
 
 * Proof of penetration is now sut- ^ Code Penal, art. 331, 332, 333. 
 ficient in England ; 24 & 25 Vict. c. » I. 4 18. 7. D. 48. 10. C. 9. 
 
 100, § 63 : also in Scotland, case of 22. 23. 
 Robertson, 12tli March 1836. 
 
364 CKIMES. [PAKT VI. 
 
 are usually classed under criminal prosecutions, the Digest 
 treats of a variety of offences called extraordinary crimes, to 
 which no certain punishment is annexed.^ 
 
 The Cornelian, Pompeian, and Julian laws formed the 
 foundation of criminal jurisprudence at Eome ; but the later 
 emperors greatly aggravated the severity of punishments, and 
 Justinian has disguised their rigoiir by using the names of the 
 original lawgivers, from a natural desire to conceal from the 
 people the progress of despotism. 
 
 ErtincUon of Crimes. 
 
 How crimes By the Eoman law, crimes were extinguished — 1st, By the 
 guished. death of the criminal, though in some exceptional cases 
 during the empire trials of deceased persons were allowed, in 
 order to confiscate their property ; 2d, By remission from the 
 sovereign, which freed the delinquent from punishment, but 
 did not cut off the party injured from his claim of damages ; 
 3d, By prescription after the lapse of twenty years without 
 accusation, and in particular crimes after a much shorter 
 period fixed by law. 
 
 In England it is understood there is no limitatioii of time 
 applicable to the prosecution of crimes, except in some special 
 cases fixed by statute, as treason, smuggling, and the like." 
 By 7 William III. c. 3, it is declared that no person shall be 
 prosecuted for treason after three years from the commission 
 of the offence, except in the case of a designed assassination of 
 the sovereign. According to the custom of Scotland, crimes 
 prescribe in twenty years, following the rule of the Eoman 
 law ; but in particular crimes the prescription is limited by 
 statute to a shorter period.* Prescription applicable to crimes 
 is admitted in the French law, according to certain rules laid 
 down in the Code.* 
 
 1 D. 47. t. 11-21. 1 Code d'lnstrnction Criminelle, 
 
 ° Paterson's Compendium, p. 322. art. 635-643. 
 3 2 Hume's Criminal Law, 136. 
 
CHAPTER IV. 
 
 PUNISHMENTS IN THE EOMAN LAW. 
 
 When the penal laws of the decemvirs, which were remark- 
 able for their extraordinary severity, fell into disuse, the 
 Eomans, by a very natural transition, passed from the ex- 
 treme of rigour to the opposite extreme of lenity. For a time 
 the right to sentence any one to die belonged to the general 
 assembly of the people ; and the person of a Eoman citizen 
 was deemed so sacred that capital punishments became of 
 rare occurrence. A Eoman accused of any capital crime 
 might prevent the sentence of the law by voluntary exile ; 
 and this indulgence was carried so far, that tUl the votes of 
 the last century had been declared, he was allowed to with- 
 draw in the open view of all, and retire in safety to Ehodes 
 or Athens, or any other of the confederate cities.^ It is to 
 this period that livy alludes when he says, that no people 
 were fonder of moderation in punishments than the Eomans. 
 Sylla, the dictator, when invested with absolute power, put 
 thousands of citizens to death by proscription without any 
 form of trial ; but in the Cornelian criminal code the usual 
 punishment fixed by him for heinous crimes was aquce et 
 ignis interdictio. Under the empire public executions became 
 frequent, and new and cruel punishments were introduced.^ 
 
 Some of the principal punishments in use among the 
 Eomans may here be shortly noticed. 
 
 Fine. — The infliction of a fine for certain offences was com- Fine, 
 mon from the earliest times. At first, such was the scarcity 
 I Polybius, vi. c. 2. « d. 43. 19. De Poenis. C, 9. 47. 
 
366 
 
 ROMAN PUNISHMENTS. [P^ET VI. 
 
 of money that fines consisted of cattle ; and, according to 
 some authors, the highest under the Aternian law, B.C. 455, 
 never exceeded two sheep and thirty oxen.^ But much larger 
 fines, paid in money, were afterwards exacted at different 
 periods of the repuhlic, proportioned to the wealth of the 
 delinquent and the nature of the offence. 
 Imprison- Imprisonment. — A person aceused of any crime might be 
 "*'"• detained in prison till he could he brought to trial. If he 
 
 denied his guilt he might be required to give sureties for his 
 appearance, so as to avoid being detained in custody ; and, 
 except in extreme cases, even when ordinary bail was refused, 
 the accused, instead of being thrown into the public jail, was 
 placed in libera custodia, — ^that is, intrusted to the charge of 
 one of the higher magistrates, or of a private person of dis- 
 tinction, who became responsible for his safe keeping. The 
 prison was chiefly used as a place of confinement before trial, 
 and also as a place of execution. Imprisonment appears to 
 have been seldom used among the Eomans as a legal punish- 
 ment for offences. 
 
 A prison was first built at Eome by Ancus Martius, near 
 the Forum. Another was subsequently erected by Appius 
 Claudius, the decemvir, in which he was himself put to death. 
 The prison was under the charge of a jailer, who kept an 
 exact roll of the prisoners, which was reported every month 
 to the triumviri capitales. 
 Scourging. Gorporol Chastisement. — Scourging, or flogging, was applied 
 in A'^arious ways. The rod was used in the punishment of 
 Roman citizens till it was abolished by the Porcian law. 
 Soldiers guilty of desertion and other offences against mUitaiy 
 discipline, were liable to the punishment called fustuarium, 
 which was analogous to running the gauntlet. , Upon a given 
 signal, all the soldiers of the legion fell upon the delinquent 
 with sticks and stones, and generally killed him on the spot ; 
 
 ' According to AuIub Gelliua, there his ' Roman Antiquities,' Dr Adam 
 
 were great numbers of horned cattle has stated the maximum fine at two 
 
 in Italy, but sheep were scarce ; and oxen and ttirty sheep, 7th ed., p. 
 
 he gives that as the reason why the 260. See Dr Colquhoun's Summary 
 
 fine was levied in the proportion here of the Roman Civil Law, voL iii p. 
 
 stated.— Aul. Gell., lib. xi. c. 1. In 682. 
 
CHAP. IV.] ROMAN PUNISHMENTS. 367 
 
 but if he made his escape he could not return to his native 
 country. Slaves were punished hy the lash. Under the 
 emperors corporal punishment hy beating or flogging was 
 frecLuently inflicted on freemen of the lower orders. 
 
 Retaliation. — By the Twelve Tables the punishment of Retaliation, 
 retaliation was authorised for bodily injuries — an eye for an 
 eye, a limb for a limb ; but this severe penalty was seldom 
 exacted, because the law allowed pecuniary compensation to 
 be taken in lieu of it.i 
 
 Ignominy. — This was inflicted in two ways, either by the infamy, 
 censors or by judicial sentence. The nota censoria operated 
 as a stain on the reputation without affecting civil rights ; 
 but those made infamous by a judicial sentence were ex- 
 cluded from public offices and dignities, and deprived of 
 various privileges belonging to other citizens. 
 
 Penal Servitude. — A Eoman citizen might be sold iato Penal 
 slavery for various offences chiefly connected with military 
 discipline; for neglecting to give an exact account of his 
 property to the censors ; for refusing to serve in the army 
 when the consul held a levy ; and for deserting to the 
 enemy in time of war. Persons guilty of these offences were 
 supposed to have voluntarily renounced the rights of citizens. 
 During the empire criminals were often condemned to 
 labour in the mines or on public works. 
 
 Banishment. — Aquce et ignis interdictio (forbidding the Bamsh- 
 use of fire and water) was equivalent to the deprivation of the "™ ' 
 chief necessaries of life, and its effect was to incapacitate a 
 person from residing or exercising the rights of a citizen 
 within the limits embraced by the sentence. He did not 
 cease, however, to be a Eoman citizen, unless he procured 
 admission into another state ; and, if the interdiction was 
 leo'ally removed, he might return and resume his former 
 po'sition at Eome. Thus Cicero, who had been interdicted 
 
 1 I. 4. 4. 7. Among the Atlienians, but one eye happens to thrust out 
 
 Solon decided that whoever puts out one of his neighbour's ? Shall he 
 
 the only eye of a one-eyed person lose his only eye by way of retalia- 
 
 shall, for so doing, lose both his own. tion ? If so, he would then be quite 
 
 But the case has been put, what blind, and suffer a greater injury 
 
 shaU be done where a man having than he had caused. 
 
368 ROMAN PUNISHMENTS. [PABT VI. 
 
 fix)m fire and water within four hundred miles of Kome, was 
 restored by a lex centuriata. 
 
 Under the emperors two forms of banishment, in the 
 ordinary sense of the term, were introduced, deportatio and 
 relegatio. Deportatio consisted of confinement in some place 
 more or less distant, generally in one of the small rocky 
 islands off the coast of Italy, or in the ^gean, which were 
 used as state-prisons ; and, although the criminal was not re- 
 duced to the condition of a slave, he lost his property and all 
 his rights as a Eoman citizen. Relegation was compulsory 
 residence in a particular place assigned in the sentence, with- 
 out being deprived of personal freedom or the rights of a 
 citizen, and this might be either for an indefinite or a definite 
 time. Sometimes a person was forbidden to live in Eome, or 
 in a particular province, leaving him to choose his residence 
 elsewhere ; and sometimes an island or a particular city was 
 assigned for his residence. Ovid, who was banished to Tomi, 
 a town on the Euxine, praises, perhaps without much sin- 
 cerity, the clemency of the emperor for the mildness of his 
 sentence. 
 Capital Death. — In early times the punishment of death appears 
 
 ments. *° havc been inflicted by hanging, scourging, and beheading, 
 and by hurling from the Tarpeian Eock. The ancient usage 
 of scourging, more majorum, is described by Suetonius. " The 
 custom," he says, " was to strip the criminal stark naked, and 
 lash him to death, with his head fastened within a forked 
 stake." ' This execution generally took place in a field out- 
 side the Esqtiiline Gate, at the sound of a trumpet 
 
 Many criminals were also executed in prison, either by 
 strangling them or precipitating them from a high place 
 called Sobur. 
 
 Slaves after being scourged were crucified, usually bearing 
 on their breast a label or inscription intimating the crime for 
 which they suffered. They were compelled to carry the cross 
 to the place of execution. No death could be more lingering 
 and horrible when the suspended culprit was left to perish by 
 slow degrees without any one to put an end to his torments. 
 * Sueton. in Ner., c. 49. 
 
OHAP. IV.] ROMAN PUNISHMENTS. 
 
 369 
 
 Sometimes he was stifled by the smoke of a fire, lighted 
 expressly for the purpose, at the foot of the cross; and at 
 other times a merciful bystander plunged a spear into the 
 victim's body to terminate his sufferings. This barbarous 
 punishment, which is said by Cicero to have been invented 
 by Tarquin the Proud, continued in force until Constantino, 
 from reverence to the sacred symbol, abolished it throughout 
 the Eoman empire. 
 
 During the republic, capital punishments appear to have 
 been inflicted on Eoman citizens by the lictors. But there 
 was a public executioner {carnifex), one of the most odious 
 of all the officers of justice, who was not permitted to live 
 within the city. It was his duty to execute slaves and per- 
 sons of vile condition condemned to infamous punishments, 
 such as the cross, or strangling in prison.^ 
 
 Some new and cruel capital punishments were introduced 
 under the emperors, such as burning alive, exposing to wild 
 beasts, and similar tortures. The inhuman practice of ex- 
 posing criminals to the fury of wild animals, which was in 
 use among the Carthaginians, was adopted at Eome from the 
 time of Tiberius : sometimes the culprit was condemned to 
 engage in mortal strife with a lion for the amusement of the 
 populace ; at other times he was deprived of the chance of 
 life, being tied to a stake that he might be unresistingly de- 
 voured by his ferocious assailants. That the early Christians 
 were not unfrequently subjected to this cruel fate, may be 
 inferred from a well-known passage in TertuUian : — " If the 
 Tiber overflow its banks ; if there be a famine or plague ; if 
 there be a cold, a dry, or a scorching season ; if any public 
 calamity overtake us ; the universal cry of the populace is, — 
 To the lion with the Christians — Ghristiani ad leonem ! " ^ 
 
 Under the empire persons of condition were generally 
 treated with more favour in the matter of punishment than 
 those of lower degree. Beheading and deportation were re- 
 served for the former : while meaner criminals were subjected 
 to the most cruel and degrading punishments. In some 
 
 - Beaufort, Rep. Rom., vol. i. p. ^ On Roman Punishments, see 
 
 425 Beaufort, vol. ii. p. 115-118. 
 
 2 A 
 
370 ROMAN PUNISHMENTS. [pabt VI. 
 
 instances criminals of distinction, convicted of offences 
 against the state, were permitted to choose whatever form of 
 death appeared to them least painful, as happened in the 
 case of Seneca, who was condemned for having been privy to 
 a conspiracy against the Emperor Nero, and chose to expire 
 in a warm hath after having his veins opened.^ 
 
 ^ According to popular tradition, death, he very whimsically chose to 
 when the Duke of Clarence, brother be drowned in a butt of Malmsey, 
 of Edward IV., was condemned to — Hume's Hist., voL iii. p. 363. 
 
CHAPTEE V. 
 
 OF THE CEIMINAl LAW OF FEANCE AND BEITAIN. 
 I. FRENCH LAW. 
 
 Befoee the Eevolution of 1789 the criminal laws of France Criminal 
 were arbitrary and confused, and stained by the most wanton ^^^^"'■ 
 cruelty. The first National Assembly in 1791 improved the 
 penal system, remodelled the criminal courts, and introduced 
 publicity and trial by jury. Since then the body of penal 
 law has been entirely recast, and now consists of the Code 
 d'Instruction Criminelle of 1808, and of the Code Penal of 
 1810, both of which were revised in 1832, besides numerous 
 laws concerning special matters, forming a collection much 
 more considerable than that of the codes. 
 
 According to the French penal system offences are treated 
 under three heads. 1. Crimes, which are tried before a jury 
 and punished by severe or infamous punishments. 2. De- 
 licts, which are tried by the correctional tribunals without a 
 jury, and are punished by imprisonment for a time in a house 
 of correction, temporary privation of certain civil rights, or a 
 fine. 3. Contraventions, which are petty offences tried by 
 the simple police, and punished by imprisonment not exceed- 
 ing five days, and fines not exceeding fifteen francs.* 
 
 * There have been additions made form, or a decoration to which he is 
 
 to the French Criminal Code since not entitled, will be punished by 
 
 1832, particularly in 1858 and 1863. imprisonment for six months. Any 
 
 One of these we transcribe, as re- one who, without right, and with 
 
 pressing a practice which in Eng- the view of attributing to himself 
 
 land and Scotland has given rise to an honorary distinction, shall have 
 
 inconvenience. " Any one who shall publicly taken a title, changed, 
 
 publicly wear a costume, a uni- altered, or modified the name which 
 
372 FRESrCH CRIMIKAL LAW. [part vi. 
 
 Trial by All Criminal prosecutions in France are conducted by a 
 
 ^"^' public prosecutor appointed by Government. The jury con- 
 
 sists of twelve persons. Originally the verdict could be re- 
 turned by a simple majority; but under the law of 28th 
 April 1832 no decision can be given against the accused 
 except by a majority of more than seven votes. A similar 
 majority of more than seven votes may find the existence of 
 extenuating circumstances so as to reduce the punishment. 
 Principal By the Penal Code all crimes are defined and all punish- 
 ments." ments are fixed, but with a maximum and a minimum as 
 regards certain punishments. The principal punishments 
 now in force in France are death, forced labour for life or for 
 a limited time, deportation for life to some place beyond the 
 continental territory of France, banishment from the empire 
 for a fixed period, detention in a fortress, imprisonment in 
 a house of correction, privation of civil rights, and pecuniary 
 fine. 
 Ancient Formerly there were five modes of inflicting capital punish- 
 
 ment in France : — Burning alive, breaking on the wheel, 
 hanging, beheading, and quartering. To these were some- 
 times added extraordinary tortures, such as tearing off the 
 flesh from the living body with red-hot pincers, pouring 
 molten lead and brimstone into the raw wounds, cutting out 
 the tongue, and similar atrocities, which, though carefully 
 recorded in judicial sentences, almost stagger belief.^ * Un- 
 
 is assigned to him in the public re- to the Grive, and, on a scaffold to be 
 
 gistera, will be subject to a fine of there erected, the flesh shall be torn 
 
 from 500 to 1000 francs. " The of- to pieces with red-hot pincers from 
 
 fender must also pay the costs ; and his breasts, his arms, and thighs, 
 
 the judgment is to be advertised in and the calves of his legs ; his right 
 
 the newspapers. — Loi, 28th May hand, holding the knife wherewith 
 
 1858. he committed the aforesaid parri- 
 
 ^ When General Kleber was as- cide, shall be scorched and burned 
 
 sassinated by a fanatic in Egypt in with flaming brimstone ; and on the 
 
 June 1800, the murderer was put to places where the flesh has been torn 
 
 death by impalement, which is said with pincers, melted lead, boiling 
 
 to be the punishment of assassins by oil, scalding pitch, with wax and 
 
 the law of Turkey. brimstone melted together, shall be 
 
 * The sentence passed in 1610 on poured ; after this he shall be torn 
 
 Kavaillac, the assassin of Henry in pieces by four horses, his limbs 
 
 IV., was that, after publicly confess- and body burnt to ashes and dis- 
 
 ing his guilt, "he shall be carried persed in the air." His goods and 
 
 system. 
 
CHAP, v.] BRITISH CRIMINAL LAW. 373 
 
 der the ancient regime nobles were beheaded, while meaner 
 criminals were hanged ; but now all are reduced to the same 
 level, as every one condemned to death is beheaded by the 
 guillotine. This machine, though surrounded by painful Guillotine, 
 associations from the great number of its victims during the 
 Eeign of Terror, was iatroduced and is retained from motives 
 of humanity, because it inflicts less pain than decapitation 
 by the axe or the sword as practised in other countries. 
 
 The proposal to abolish the punishment of death, supported 
 by Eobespierre, was rejected by th« National Assembly. 
 The question as to the mode of execution was a question of 
 equality. After the Eevolution of 1848 the punishment of 
 death was abolished for all political crimes ; but it was re- 
 established in 1853 for all criminal attempts against the 
 head of the state.^ 
 
 By the law of 28th April 1832 the Penal Code was greatly Recent im- 
 
 .,.., t t> ' t provementa, 
 
 improved by a general reduction mthe scale ot punishments; 
 many crimes formerly capital were declared to be so no 
 longer, and the barbarous penalties of mutilation, branding, 
 and the iron collar, were entirely abolished. The penalty of 
 confiscation of goods was abrogated after the Eestoration by 
 a law of Louis XVIII. Criminals sentenced to death, to 
 forced labour for life, or to deportation, were formerly sub- 
 jected to what was called civil death, involving the loss of 
 property and aU civil rights ; but that penalty, after being 
 long condemned as inexpedient, was finally abolished by the 
 law of 31st May 1854.2 
 
 II. BRITISH CRIMINAL LAW. 
 
 Bv the law of England crimes are classed under the heads CksBifica- 
 of felony and misdemeanour. Treason is a higher kind ot crimes. 
 
 chattels were declared to be con- tion of the sentence, Ravaillac again 
 
 fiscated ; the house in which he was to undergo the torture for discovery 
 
 horn was to be pulled down (the of his accompHcea. — Sully's Me- 
 
 owuer being indemnified), and no moirs, vol. v. p. 234; English 
 
 other ever to be erected there ; his translation, 1812. 
 father and mother to be banished ; ^ Ortolan, Elements du Droit Penal, 
 
 his other relatives commanded to Paris, 1855, p. 69. 
 change the name of Ravaillac for " Ibid., p. 715. 
 some other; and before the execu- 
 
374 BRITISH CRIMINAL LAW. [PABT VI. 
 
 felony, and a misdemeanour is an offence lower in the scale 
 of crime than felony, but separated from it hy an arbitrary 
 line. " The chief practical difference consists in the legal 
 incidents attaching to conviction of these crimes. In capital 
 felonies the prisoner forfeits both his real and personal estate. 
 In felonies not capital he forfeits only his personal estate. 
 In misdemeanours the prisoner forfeits nothing." ^ 
 
 Besides these classes of indictable crimes there are many 
 statutory offences subject to the summary jurisdiction of 
 Justices of the Peace. The distinction between felony and 
 misdemeanour is unknown in the law of Scotland. Sentence 
 of death by that law involves only a forfeiture of movables. 
 In aU other cases not capital, even the movables are not 
 forfeited, except in a few crimes where this is made part of 
 the punishment, and in outlawry.^ 
 How pro- One of the great defects in the English system of criminal 
 procedure, is the want of a public prosecutor, such as exists 
 in France and Scotland. Any member of the community, 
 generally speaking, may prosecute for all offences in the 
 name of the sovereign, but the task is usually devolved on 
 the person injured by the crime, though, in some cases, the 
 prosecution is conducted by the Crown. " To leave each 
 individual in the community," says Lord Brougham, " the 
 power of prosecuting for all offences in the name of the 
 sovereign, but at his discretion, subject to the power of stay- 
 ing his proceedings, vested in the sovereign, and at his own 
 cost, subject to the court which tries the case allowing his 
 reimbursement; to burden the injured party with the expense 
 and trouble of bringing to justice him by whom he has been 
 injured ; to let wealthy offenders buy off their prosecutor, while 
 poor men must stand their trial ; to divide the responsibility of 
 a culprit's escape, who ought to be convicted, and of an inno- 
 cent man's vexation and trial, who ought never to have been 
 tried, among three-and-twenty country gentlemen or trades- 
 men in towns, while no professional man is answerable at all 
 either for the omission or the oppression; this is the English 
 
 ^ Paterson'a Compendium, p. 342. ^ 2 Hume's Criminal Law, p. 483- 
 Broom'sCom., p. 891. 492. 
 
CHAP, v.] BRITISH CRIMINAL LAW. 375 
 
 system of prosecution, and anything so bad, we may safely 
 affirm, exists in no other country under the sun." ^ 
 
 In Scotland, the Lord Advocate and his deputies, who are 
 barristers, are charged with the duty of prosecuting all crimes, 
 acting with the assistance of procurators-fiscal, who take the 
 initiative, and collect the evidence in all criminal proceedings. 
 Before inferior courts the procurator-fiscal, who is a solicitor, 
 not a barrister, acts as prosecutor. The person injured, or 
 his kinsmen, but not strangers, may also prosecute in certain 
 cases ; but they can only do so with the concurrence of the 
 public prosecutor. 
 
 The jury which tries the prisoner in England consists of Verdict of 
 twelve men, and their verdict must be unanimous. In Scot- ^"^' 
 land, the jury in criminal trials consists of fifteen, and the 
 verdict may be returned by a majority. There seems no good 
 reason why the number of the jurymen should not be reduced 
 to twelve; but in no case should a bare majority be allowed 
 to return a verdict against the accused, as involving too great 
 a risk of error : and it might be advisable to adopt the rule 
 followed in France, by requiring, in a jury of twelve, a ma- 
 jority of more than seven votes, which would secure the con- 
 currence at least of two-thirds of the whole jury.^ 
 
 Since the union of the two kingdoms in 1707, the laws of Trials for 
 treason in England and Scotland have been assimilated. 
 The trial proceeds according to the English forms. A biU is 
 found by a grand jury, and the petty jury consists of twelve 
 
 1 Lord Brougham, British Consti. of the jury agree, after three hours' 
 tution, 1861, p. 329. deliberation, they may return a ver- 
 
 2 In Scotland the jury may decide diet ; and if nine cannot agree after 
 against the accused by a simple ma- six hours' deliberation, the jiu^' may 
 jority of 8 to-7, so that the scale is be discharged without a verdict. * 
 turned against him by o»e vote. Tin- Though this change was recommended 
 der the French system, the majority by English lawyers of the highest 
 must be at least 8 to 4, being in the eminence, the principle of unanimity 
 proportion of two-thirds to one-third, is still adhered to in all civil and cri- 
 or just double the number of the mi- minal trials before English courts, 
 nority * By the Act 31 & 32 Vict. c. 100, 
 
 In civil caiises-in Scotland, the jury § 48, the jury, after being enclosed for 
 
 consists of twelve men ; and unani- three hours, may return a verdict by 
 
 mity was at one time required. But, a majority,— which cannot be less 
 
 by the Act 22 & 23 Vict. c. 7, if nine than 7 to 5. 
 
376 BRITISH CRIMINAL LAW. [part VI. 
 
 persons. The punislunent of treason, in the case of males, is, 
 that the offender shall be drawn on a hurdle to the place of 
 execution, and be hanged by the neck till dead ; that the 
 head shall then be severed from the body, and the body be 
 divided into four quarters — the head and quarters being at 
 the disposal of the Crov?n ; and this is accompanied by for- 
 feiture of honours, and real and personal estates, and corrup- 
 tion of blood. Power is reserved to the sovereign, by royal 
 warrant, to change this sentence to beheading. In the time 
 of Blaekstone, the traitor, if a male, was hanged by the neck, 
 and cut down before life was extinct, and his entrails were 
 taken out and burned while he was yet alive ; and, if a 
 woman, she was drawn to the place of execution, and there 
 burned alive. But, by Acts passed in the reign of George 
 III., the sentence was altered, in the case of males, by 
 abolishing the savage custom of emboweUing ; whilst 
 women were appointed to be drawn to the gallows and 
 hanged. 
 Principal In Britain the punishment of offences is in some cases 
 men'ts. govemcd by the common law only, but is more frequently 
 defined by statute. The principal punishments now in force 
 are — death ; penal servitude, now substituted for transpor- 
 tation beyond seas ; imprisonment, with or without hard 
 labour ; whipping, in certain cases ; and fine. 
 
 The ordinary mode of capital punishment which has been 
 in use from the earliest times, is that the offender shall he 
 hanged by the neck till dead, with the addition, in the case of 
 murder, that his body (which formerly was sometimes given 
 to the doctors for dissection) shall be buried within the pre- 
 cincts of the prison in which he shall have been last confined 
 after conviction. Treason, as we have seen, is accompanied 
 with other severities ; and beheading is sometimes substi- 
 tuted for hanging, especially in the case of criminals of dis- 
 tinction who have committed ofiences against the state. 
 Ancient In former times burning alive was the inevitable doom 
 
 system. °^ persons convicted of heresy and witchcraft. Trials for 
 witchcraft were common both in England and Scotland 
 down to the close of the seventeenth century. Sir Matthew 
 
CHAP, v.] BRITISH CMMINAL LAW. 
 
 377 
 
 Hale passed sentence of death on two poor women for this 
 offence in 1664. A change soon afterwards took place in 
 the feelings of the English judges ; and Chief-Justice Holt, 
 in several trials, charged the jury with such firmness and 
 good sense as to ohtain verdicts of acquittal. Yet, after aU 
 this, in 1716, Mrs Hicks and her daughter, aged nine, were 
 condemned to death at Huntingdon for selling their souls to 
 the devil In Scotland, where this delusion had full sway, 
 the last execution for this offence took place at Dornoch in 
 1722, under a sentence of the Sheriff of Sutherlandshire. The 
 penal statutes against witchcraft were repealed in 1736, and 
 the pretended exercise of such arts was made punishable by 
 imprisonment and the piUory. 
 
 Among the laws of William the Conqueror, mutilation 
 figures very prominently as a punishment, with such horrible 
 details as plucking out the eyes, cutting off a hand or a foot, 
 and the like.^ During the reign of the Tudors, fine and im- 
 prisonment were the usual penalties inflicted by the Star 
 Chamber ; but the pillory, whipping, branding, and cutting 
 off the ears, grew into use by degrees.^ These abuses attracted 
 notice at the Eevolution, and it was declared by the Bill of 
 Eights (1 Will. sess. 2, c. 2), that no cruel and unusual punish- 
 ments should be inflicted. Mutilation and branding have been 
 long discontinued ; the pillory has been abrogated by statute ; 
 and even the stocks have fallen into disuse as unsuited to 
 modern manners. 
 
 Formerly the law of England assigned capital punishments Capital 
 to many kinds of ofiences, but inflicted it only in a few ex- not en- 
 amples of each kind. About the beginning of the present °"* ' 
 century the sentence of death was not executed on more 
 than a sixth part of the persons on whom it was pronounced, 
 even taking into account crimes the most atrocious and dan- 
 gerous to society; and, if these be excluded, the proportion 
 which the number executed bore to those condemned, was 
 
 ^ " Interdicimus ne quis occidatur I. cap. 7. Fleta, lib. i. c. 38. Brae. 
 
 vel suspendatur pro aliqiia culpa; sed lib. 3, c. 32. 
 
 eruantur oculi, abscindantur pedes, " Hallam's ConstitutioDal History 
 
 vel testiculi vel manus." — Leg. Gul. of England, vol. i. p. 484-493. 
 
378 BRITISH CRIMINAL LAW. [past vi. 
 
 probably not more than one in twenty.^ To relax the 
 severity of the statutes, the royal prerogative was constantly 
 invoked, and every year capital executions became more 
 rare. At length, by 4 Geo. IV. c. 48, when any person was 
 convicted of a capital crime, and the judge considered him fit 
 to be recommended to the royal mercy, the court was autho- 
 rised to abstain from pronouncing sentence of death, and to 
 order it to be recorded, which entering on record was to have 
 the same effect as if the judgment had been pronounced and 
 the offender reprieved. By this extraordinary expedient, 
 which transferred a portion of the prerogative of the Crown 
 to the judges, the legislature practically declared that the 
 statutes creating capital offences were not meant to be carried 
 into indiscriminate execution. 
 
 One great peculiarity of the Scotch criminal system is that 
 the Lord Advocate, as the responsible Minister of the Crown 
 in his character of public prosecutor, may pass from any 
 charge at pleasure, and restrict the penalty to an arbitrary 
 punishment short of death before moving for sentence. 
 
 A theory at one time prevailed, supported by the authority 
 of Dr Paley, who was fond of devising apologies for existing 
 abuses, that it was good policy, in framing penal statutes, to 
 sweep into the net every crime which could possibly merit the 
 punishment of death, leaving the Crown to relax the severity 
 of the law as often as circumstances appeared to palliate the 
 offence. But many writers have demonstrated the flagrant 
 injustice and mischievous consequences of this practice. 
 Commenting on the frequency of capital punishment which 
 disgraced the English law at the time he wrote, Blackstone 
 observes: — "It is a melancholy truth that among the variety 
 of actions which men are daily liable to commit, no less 
 than 160 have been declared by Act of Parliament to be 
 felonies without benefit of clergy ; or, in other words, to be 
 worthy of instant death. So -dreadful a Hst, instead of dim- 
 inishing, increases the number of offenders. The injured, 
 through compassion, will often forbear to prosecute ; juries, 
 through compassion, will sometimes forget their oaths, and 
 either acquit the guilty or mitigate the nature of the offence; 
 1 May's Constitutional History of England, vol. ii. p. 597. 
 
CHAP, v.] BRITISH CRIMINAL LAW. 379 
 
 and judges, through compassion, will respite one-half of the 
 convicts, and recommend them to the royal mercy. Among 
 so many chances of escape, the needy and hardened offender 
 overlooks the multitude that suffer; he boldly engages in 
 some desperate attempt to relieve his wants or supply his 
 vices, and if, unexpectedly, the hand of justice overtake him, 
 he deems himself peculiarly unfortunate in falling at last 
 a sacrifice to those laws which long impunity has taught him 
 to contemn." ^ 
 
 Notwithstanding this forcible appeal to justice and human- 
 ity, capital offences, in place of being diminished, were 
 greatly increased after Blackstone's time. So reckless was 
 the sacrifice of human life, that from the Eeformation to the 
 death of George III. — a period of 160 years — no less than 
 187 capital offences, wholly different in character and degree, 
 were added to the criminal code.^ At length the opinion 
 advocated by Beccaria, Montesquieu, and Bentham, gained 
 ground, though slowly, that "crimes are more effectually pre- 
 vented by the certainty than the severity of punishment." 
 To the exertions of Sir Samuel Romilly we are mainly in- 
 debted for having laid the foundation of that reform of our 
 penal jurisprudence which was afterwards commenced by Sir 
 Eobert Peel, and carried out so successfully in the reign of 
 her present Majesty. By the acts 7 Will. IV. and 1 Vict. c. 
 84 to 89 and 91, brought in by Lord John Eussell, and passed 
 on 17th July 1837, the punishment of death was removed Capital 
 from about 200 offences, leaving it applicable to high treason, ^^atiy 
 murder, and attempts at murder, rape, arson with danger to '^^^^''^'^■ 
 life, and to piracies, burglaries, and robberies, when aggravated 
 by cruelty and violence. Eape was taken out of the list of 
 capital offences by a subsequent statute. 
 
 As great difBculties were experienced in finding colonies Penal 
 
 o • 1 'i. J servuuae. 
 
 willing to receive transported convicts, penal servitude was 
 substituted for transportation under the Acts 16 & 17 Vict, 
 c. 99, and 20 & 21 Vict. c. 3. By the last of these Acts, no 
 person can be sentenced to transportation after 1st July 1857, 
 and any person who might have been previously sentenced 
 to transportation may be sentenced to be kept in penal ser- 
 1 Black. Com., book 4, o. 1. ^ May's Const. Hist., vol. ii. p. 595. 
 
380 BRITISH CRIMINAL LAW. [paet VI. 
 
 vitude for a term of the same duration as the term of trans- 
 portation to which such person would have been liable if these 
 Acts had not been passed, but the discretion of the court as 
 to alternative punishments is not affected ; and in any case 
 in which, before the passing of the last Act, sentence of seven 
 years' transportation might have been passed, the court may 
 in its discretion pass a sentence of penal servitude of not less 
 than three years. 
 
 Every person sentenced to penal servitude may be con- 
 fined in any prison or place of confinement in the United 
 Kingdom, or in any river, port, or harbour of the United 
 Kingdom in which persons sentenced to transportation might 
 formerly have been confined ; and may be conveyed to any 
 place or places beyond seas to which persons sentenced to 
 transportation could formerly be conveyed, or to any place 
 or places beyond seas which may be hereafter appointed. 
 
 Any of the principal Secretaries of State may grant licences 
 to be at large to convicts under sentence of penal servitude ; 
 but if the licence of any convict be revoked, he may be com- 
 mitted to prison, and compelled to undergo the residue of 
 his sentence.^ 
 
 In modern Acts, when offences are punished by imprison- 
 ment, the duration is usually limited, so as not to exceed 
 three years, or at the utmost four years, and not unfrequently 
 the imprisonment is accompanied with hard labour.* 
 
 The principal part of the English criminal law is contaiaed 
 in the Criminal Law Consolidation and Amendment Acts of 
 1861, 24 & 25 Vict. c. 94 to lOO.^ 
 
 ^ These two statutes are dow rao- Scotland respecting that class of 
 
 dified by 27 & 28 Vict. c. 47 (25th criminals. 
 
 July 1864). The minimum period " See Treatise on these Acts hy 
 
 of penal servitude is fixed at five Charles S. Greaves, 2d ed., Svo, 
 
 years, or, in case of previous oonvio- London, 1862. 
 
 tion, at seven years. The Act also The principal Acts are— o. 100, 
 
 relates to corporal punishment for relating to offences against the per- 
 
 offences committed in prison, and to son ; c. 96, relating to larceny and 
 
 licences granted under these penal other similar offences; o. 97, relat- 
 
 servitude Acts. ing to malicious injuries to property ; 
 
 * The Habitual Crimiuals Act, c, 98, relating to indictable offences 
 1869, contains important provisions by forgery; c. 99, relating to coin- 
 applicable to both England and age offences (United Kingdom). 
 
CHAPTER VI. 
 
 OF THE EOMAN BAE. 
 
 In the earliest times the Eomans were more addicted to the First 
 profession of arms than to the study of law and eloquence, ^ere "° 
 Every head of a patrician house had a number of dependants, p**"^""'- 
 who looked up to him as their protector, and owed him "cer- 
 tain obligations in return. This was the relation of patron 
 and client. One of the ordinary duties of the patron was 
 to assist his client in lawsuits, and defend him before the 
 tribunals. 
 
 The first pleaders who appeared at the Eoman bar were not 
 jurisconsults ; but when the science of law became more 
 difficult and complicated, the pleaders began to apply them- 
 selves to the study of jurisprudence, and a new class of pub- 
 lic men arose, who combined the double character of able 
 speakers and great jurisconsults. During the republic, the 
 bar was held in high estimation, and was the principal field 
 for attaining the honours of the state. 
 
 Till the close of the republic, pleaders were generally Advocates 
 termed patroni. Under the empire they were usually called empire. 
 advocati, and sometimes causidici. In a short rescript of 
 Valentinian and Valens, declaring it to be incompatible for 
 any one to be judge and advocate in the same suit, the three 
 terms pair onus, advocatus, and causidicus, are all used in the 
 same sense.^ 
 
 ' " Quisquis vult esse causidicus, inter arbitros et patronos oportet 
 nou idem in eodem negotio sit advo- esse deleotum." — C. 1.6. 6. 
 catus et judex : quoniam aliquem 
 
382 ROMAJI BAR. [part vi. 
 
 la private causes it was customary to deliver to the advo- 
 cate a brief drawn up by a jurisconsult, in which questions 
 of law were fully discussed. Besides, the advocates were 
 frequently assisted at the bar by a lawyer of a second order, 
 who was called leguleius or formularius, and sometimes 
 monitor. 
 Costume. Among the Eomans the costume of the advocates was the 
 white toga, which at one period was common to all the citi- 
 zens. By the lower class this began to be given up about the 
 time of Cato the Censor, and it had almost fallen into disuse 
 at the end of the republic, except among the senators and 
 equestrians. Under Augustus advocates were compelled to 
 assume the ancient costume at the bar. Before long the toga 
 was nowhere to be seen except in courts of justice ; and the 
 expression togati, which Cicero and Virgil had applied to the 
 whole Eoman people, became at last the usual designation of 
 the advocates. 
 Duration of Whether any limitation was imposed on the length of the 
 P ^ "g?*- Qj-g^]^ pleadings in early times is uncertain ; but in the age of 
 Cicero this seems to have been left to the discretion of the 
 judge, especially in private causes. In criminal trials Pom- 
 pey made a regulation, that the accuser should not be entitled 
 to speak for more than two hours, nor the accused for more 
 than three hours ; but the parties were sometimes allowed to 
 exceed these limits when the nature of the cause appeared to 
 require more time. Not long afterwards the judges were 
 again invested with discretionary power to regulate the period 
 to be occupied by the speeches according to the importance 
 of the affair. In criminal causes the time was usually divided 
 in the proportion fixed by the Pompeian regulation, so that 
 if six hours were allowed to the accuser, nine hours were 
 allowed to the accused.^ 
 
 A clepsydra was used in the tribunals for measuring time 
 by water, similar in principle to the modern sand-glass. 
 When the judge consented to prolong the period assigned for 
 discussion, he was said to give water — dare aquam. "As 
 for myself," says Phny, "whenever I sit upon the bench 
 1 Pliny, Ep. iv. 9. 
 
^^- '^'■] ROMAN BAR. 383 
 
 (which is much oftener than I appear at the bar), I always 
 give the advocates as much water as they require ; for I look 
 upon it as the height of presumption to pretend to guess be- 
 fore a cause is heard what time it will require, and to set 
 limits to an affair before one is acquainted with its extent, 
 especially as the first and most sacred duty of a judge is 
 patience, which, indeed, is itself a very considerable part of 
 justice. But the advocate wiH say many things that are 
 useless. Granted. Yet is it not better to hear too much 
 than not to hear enough ? Besides, how can you know that 
 the things are useless till you have heard them?" ^ 
 
 Marcus Aurelius, we are told, was in the habit of giving a 
 large measure of water to the advocates, and even permitting 
 them to speak as long as they pleased. 
 
 By a constitution of Valentinian and Valens, A.D. 368, ad- 
 vocates were authorised to speak as long as they wished, upon 
 condition that they should not abuse this Uberty in order to 
 swell the amount of their fees. 
 
 Sometimes the pleadings were very long : for, if we are to 
 believe QuintQian, it was a species of glory for an advocate 
 that he had spoken a whole day for one party. Eegulus 
 fatigued the judges with interminable harangues. In the 
 trial of Marcus Prisons before the senate, Pliny, who opened 
 the case, spoke nearly five hours. On another occasion, he 
 tells us, he spoke for seven hours before the centumvirs and 
 a crowded audience, with success equal to his great fatigue.^ 
 
 According to ancient custom, one counsel only appears to Numter of 
 have been allowed on each side. Afterwards the number °°^^^ ' 
 was increased. 
 
 Cicero defended Celius with Crassus ; Cornelius Balbus 
 with Pompey and Crassus ; P. Sextus with Hortensius and 
 other members of the bar. Scaurus had six advocates — 
 Cicero, Hortensius, M. Marcellus, P. Clodius, Calidius, and 
 Messala Niger. Occasionally the number rose so high as 
 tweh'^e counsel for one party in the same trial. 
 
 Of this practice Cicero disapproved, conceiving it to be 
 attended with great inconvenience, and contrary to the ancient 
 1- Pliny, Ep. vi. 2. 2 piiuy, Ep. ii. 11, and iv. 16. 
 
384 ROMAN BAR. [part vi. 
 
 institutions of tlie bar. Under the empire the number of 
 counsel employed was reduced, and seldom exceeded two or 
 three on each side. When the accused had no advocate, it 
 -was customary for the judges to appoint one to act for him. 
 Hortensius and Cicero, we are told, sometimes defended pick- 
 pockets ; and Asinius PoUio, the friend of Augustus, pleaded 
 cases about mean-walls.^ 
 Remunera- Tor somc centuries after the foundation of Eome, the pro- 
 pieaders. fession of an advocate did not exist ; because the duty of 
 patron, which included the defence of clients before the 
 tribunals, was discharged by the patricians, who formed the 
 first order among the citizens. ISTo remuneration was then 
 given for forensic pleading beyond the usual services which 
 every client owed to his patron. After the ancient institu- 
 tions were modified, and law became a complicated and diffi- 
 cult science, presents of various kinds were given by clients 
 to those persons who devoted themselves to pleading. This 
 practice having been regarded as an abuse, a law was passed 
 by the Tribune Cincius, B.C. 204, prohibiting any one from 
 taking money or gifts for pleading causes ; but as this law 
 imposed no penalty on those who contravened its injunctions, 
 it was little observed, and the opinion gained ground that 
 advocates who required to devote their time to the special 
 studies of their profession were entitled to receive some 
 recompense for their services. 
 
 Before the overthrow of the republic it was quite common 
 to give large fees to advocates. M. Licinius Crassus, whose 
 fortune is said to have exceeded three millions sterling, ex- 
 acted exorbitant sums from his clients, and the same charge 
 has been made against P. Clodius and C. Curio. Cicero 
 himself, who lost no opportunity of boasting of his respect 
 for the Cincian law, and who is represented by his enthusi- 
 astic admirers as a model of disinterestedness, is strongly 
 suspected of not having always put in practice the principles 
 which he professed. There are many reasons for believing 
 that the sum of a million of sesterces (about £8000), which 
 he received from Publius Sylla, then under impeachment, 
 1 Quint, iv. 1. Grellet-Dumazeau, Barreau Eomain, PariSn 1851, p. 38. 
 
CHAP. VI.] EOMAN BAR. 385 
 
 and whicli was employed by Cicero in the purchase of a 
 house, was neither more nor less than the fee given for his 
 forensic services, though it was disguised, according to a com- 
 mon practice, under the form of a secret loan.i 
 
 Another mode of rewarding members of the bar was by Legacies to 
 legacies left to them by clients in their testaments. These "'* ''*"'■ 
 bequests were considered honourable when they were not 
 obtained by fraud or undue influence, and Cicero boasted 
 that he had received in this form sums amounting to upwards 
 of twenty millions of sesterces, equal to about £166,666. 
 
 Augustus endeavoured to restore the ancient discipline by 
 a senatus-consultum, which revived the Cincian law, and 
 declared that advocates convicted of having received remu- 
 neration from their clients should be compelled to refund 
 the amount fourfold. This injudicious regulation, from the 
 change of circumstances, could not have been enforced 
 with advantage to those parties whom it was intended to 
 protect. The people had ceased to be the dispensers of 
 political power, and it could not be expected that persons 
 qualified to act as pleaders in courts of justice would devote 
 their time and talents to the service of those from whom 
 they could obtain no return. 
 
 All attempts to put down the practice of giving fees to Honoraries 
 counsel proved unavailing. But, in the time of the Emperor ^"''"'™^ ■ 
 Claudius, a regulation was made that the sum given as a fee 
 should not in any case exceed ten thousand sesterces, which 
 is equivalent to about £80 of our money. Trajan renewed 
 this law, with the addition that no fee should be paid till 
 after judgment was given in the cause. This was intended 
 to put a stop to an evil arising from the fraudulent abandon- 
 ment of a cause by those who had been paid in advance to 
 conduct it. That restriction, however, was removed by Jus- 
 tinian, who allowed counsel to receive their fees from clients 
 
 1 In'the case of Small v. Attwood, Gerbier, an eminent French advocate 
 
 a fee of £8000 was given to Sir of the eighteenth century, received 
 
 Thomas Wilde (afterwards Lord from a French colonial governor a 
 
 Truro), which nearly corresponded fee of 300,000 francs, or £12,000 
 
 with the amount handed to Cicero, sterling. 
 It is stated by M. Berryer, that 
 
 2 B 
 
386 ROMAN BAR. [part VI. 
 
 without waiting till judgment was given ; and there is a 
 passage in the Digest which mentions a hundred aurei 
 as the lawful amount of honoraries to be awarded in a 
 cause.^ 
 
 By a law of Constantine, advocates were prohibited, under 
 the penalty of deprivation of office, from making with their 
 clients any bargain for acquiring a portion of what they 
 might gain by the lawsuit, which was called pactum de quota 
 litis. In most countries into which the Eoman law has been 
 introduced, a similar regulation exists, in order to maintain 
 the honour and integrity of the legal profession. 
 
 After pleading at the bar became fully recognised as a pro- 
 fession, the right of advocates to pecuniary remuneration was 
 established. In form, however, the fee was merely an hono- 
 rary consideration, not paid in name of hire, but as the reward 
 of services which could receive no proper estimation. For 
 this reason advocates were not allowed to prosecute for pay- 
 ment of their honoraries under the actio locati or the actio 
 mandati, but from the time of the Emperor Alexander Se- 
 verus they might recover by means of an extraordinaria 
 cognitio.^ 
 
 In France, ancient laws and decisions, as well as the opin- 
 ions of the doctors, allowed an action to advocates to re- 
 cover their fees ; but according to the later jurisprudence of 
 the Parliament of Paris, and the actual discipline of the bar 
 now in force, no advocate was or is permitted to institute 
 such an action. In like manner, barristers in England are 
 held to exercise a profession of an honorary character, " and 
 cannot, therefore, maintain an action for remuneration for 
 what they have done, unless the employer has expressly 
 agreed to pay them." * Upon this point the authorities in 
 the law of Scotland are not very precise. Lord Bankton 
 says, " Though action be competent for such gratification, 
 advocates who regard their character abhor such judicial 
 claims, and keep in their mind the notable saying of Ulpian 
 upon the like occasion, Qumdam enim tametsi honeste accipi- 
 
 > D. 50. 1.3. 1. 12. 3 Addison on Contracts, p. 507. 
 
 « D. 50. 13. 1. 10. Maynz, § 301-303. 
 
CHAP. VI.] ROMAN BAR.' 387 
 
 antur, inhoneste tamen petuntur." ^ But it is maintained by- 
 others, whose opinion is entitled to great weight, that no 
 action lies for such fees — the presumption, in the absence of 
 an express paction, being, that the advocate has " either been 
 satisfied, or agreed to serve gratis." ^ 
 
 To entitle any one to be admitted to the Eoman bar, the Age for 
 first condition was that he should be of competent age, which to bar!'"" 
 was fixed at seventeen years by the edict of the praetor, and 
 this was confirmed by Justinian.^ 
 
 The entrance to the bar was forbidden to all infamous per- 
 sons. Women were never prevented from pleading their 
 own causes, but they were prohibited from acting for others. 
 Caia Afrania, a bold, impudent woman, was in the habit of 
 molesting the praetor by her violent speeches, and this led to 
 an edict forbidding all females from pleading for others in 
 courts of justice. This prohibition passed from the edict 
 into the Pandects.* 
 
 Candidates for the bar studied the law for four years, and Comsc of 
 after Justinian's new regulations for five years. They also * ° ^' 
 required to pass a public examination previous to admission.' 
 
 It is probable that the Eoman advocates were formed into Advocates a 
 a corporation, called ordo or collegium, about the time of '"'"' '""' 
 Ulpian ; and they certainly were so under Theodosius and 
 his successors. The names of the advocates authorised to 
 plead before the courts were inscribed upon a tablet in the 
 order of their admission ; they enjoyed special privileges ; 
 and for breaches of duty they were liable to be suspended 
 from the exercise of their functions for a term, or even to be 
 entirely deprived of their office. 
 
 From Constantine to Justinian the bar was divided into 
 two classes — the advocates in practice, and the supernume- 
 raries. The number of practising advocates was fixed in 
 each tribunal, and new members were only received from the 
 supernumeraries when vacancies occurred. The court of the 
 praetorian prefect of the East could furnish employment for 
 
 1 Bank. 4. 3. 4. D. 50. 13. 1. 5. ^ p. 3. 1. 1. 5. 
 
 2 More's Stair, Notes, p. 126. * D. 3. 1. 6. Val. Max. viii. 3. 2. 
 Shand's Practice, p. 80. " D. Prsef. Prim. Const. 2. 
 
388 ROMAN BAE. [paet vi. 
 
 150 advocates ; there were 50 at Alexandria, besides a large 
 number who practised at the provincial bars. But even 
 those whose names were not inscribed in tbe privileged lists 
 were still members of the order, and were at liberty to prac- 
 tise before some inferior courts.^ 
 
 All the judges were chosen from the profession of the law. 
 The members of the bar were often raised to preside in the 
 tribunals before which they had pleaded. Many of them 
 obtained the government of provinces, and by the aid of 
 merit or favour' rose by degrees to the highest dignities of 
 the state. 
 Style of the From the works of Cicero, the Institutes of Quintilian, and 
 Roman bar. ^j^^ j^pig^^^gg of Pliny, WO are enabled to form a general idea 
 of the style of eloquence that prevailed at the Eoman bar 
 during an uninterrupted period of several centuries. 
 Orators be- In giving an account of the orators of Eome, Cicero does 
 fore Cicero. ^^^ g^ f^rtjier back than about 150 years before his own con- 
 sulate, naming as the first and most ancient of them M. 
 Cornelius Cethegus. He was a contemporary of the poet 
 Ennius ; and though his manner was simple, he was a most 
 persuasive speaker. Cato the Censor came after him in the 
 order of time. His style was concise, pointed, and forcible. 
 He is said to have been the first at Eome who laid down some 
 rules of eloquence. Quintilian says, " His genius, like his 
 learning, -^as universal ; historian, orator, lawyer, he culti- 
 vated the three branches ; and what he undertook he touched 
 with a master hand." 
 
 Between the death of Cato and the birth of Cicero about 
 forty years intervened. During that period the eloquence of 
 the bar made rapid progress, chiefly through the influence of 
 the literature and philosophy of Greece, which began to be 
 studied by the better classes, whereby they improved their 
 taste and judgment, and enriched their minds with new stores 
 of knowledge. Of all the advocates who appeared at this 
 Crassus and epoch, Lucius Licinius Crassus, and Marcus Antonius, the 
 AnSua. grandfather of the triumvir, were the most illustrious. Ac- 
 cording to Cicero, they were the two greatest orators of the 
 ^ Grellet-Dumazeau, p. 79. 
 
CHAP. VI.] ROMAIC BAR. 389 
 
 bar, and the first Romans who raised eloquence to the same 
 level which it had attained in Greece. 
 
 As success at the bar was the surest mode to gain popu- Orators of 
 larity and distinction, and opened up one of the most direct age. 
 avenues to political power, it can excite no surprise that the 
 art of forensic speaking was more and more cultivated, until 
 it reached its culminating point in the age of Cicero. In 
 the ' Dialogue concerning Oratory,' which has been ascribed 
 by some to Tacitus, and by others to Quintilian — the scene 
 being laid in the sixth year of Vespasian, a.d. 7,5 — Messala 
 thus expresses himself : " Cicero stands at the head of our 
 Roman orators, while Calvus, Asinius and Csesar, Cselius and 
 Brutus, follow him at a distance ; all of them superior not 
 only to every former age, but to the whole race that came 
 after them. Nor is it material that they differ in the mode, 
 since they all agree in the kind. Calvus is close and ner- 
 vous ; Asinius more open and harmonious ; Cassar is distin- 
 guished by the splendour of his diction ; Cselius by a caustic 
 severity ; and gravity is the characteristic of Brutus. Cicero 
 is more luxuriant in amplification, and he has strength and 
 vehemence. They all, however, agree in this — their elo- 
 quence is manly, sound, and vigorous. Examine their works, 
 and you will see the energy of congenial minds, a family 
 likeness in their genius, however it may take a distinct 
 colour from the specific qualities of the men."^ This opinion 
 as to the superiority of Cicero and his contemporaries has 
 been generally adopted by the best critics. 
 
 The great Roman orator improved himself, not only by the Cicero, 
 most laborious exercises, but by a diligent study of the best 
 models of Greece. His own native genius and industry sup- 
 plied the rest. Yet Cicero had his detractors, who objected 
 to him that he was diffuse without vigour, and luxuriant 
 to a fault, and that he wanted the strength, purity, and 
 elegance of the Attic school. While vindicating Cicero 
 from these criticisms, and placing him in the highest rank 
 among Roman orators, Quintilian candidly acknowledges 
 that, although it was hardly possible to have added any- 
 - Dialogue concerning Oratory, c. 25. 
 
§90 EOMAJJf BAR. [part vi. 
 
 thing to his eloquence, something might have been re- 
 trenched from it. 
 
 All the speeches of Cicero which have reached us, being 
 fifty-nine in number, were carefully revised and corrected by 
 him before they were published. Of the seven orations 
 against Verres, the first two only, called the " Divination " 
 and " the First Action," were spoken in court ; the other five 
 were published as they were prepared and intended to be 
 spoken if Verres had not abandoned his defence. Like many 
 of his other speeches, Cicero's defence for Milo was much 
 altered and improved ; and when a copy of it was sent to 
 Milo in his place of exile, he is said to have exclaimed, " 
 Cicero, if you had spoken thus, I never should have eaten 
 such good fish at Marseilles ! " ^ 
 Hortcnaius. Amoug the contemporaries of Cicero, though eight years his 
 senior, was Hortensius, who exercised for a considerable time 
 an undisputed sway in the courts of justice. He was much 
 engaged in defending men of the aristocratical party when 
 accused of malversation and extortion in the provinces, or of 
 bribery and corruption in canvassing for public honours. In 
 his work called ' Brutus,' Cicero gives such a graphic account 
 of Hortensius that we cannot resist quoting it. After de- 
 scribing Cotta's way of speaking as calm and easy, Cicero says: 
 " The language of Hortensius was splendid, warm, and ani- 
 mated, and far more lively and pathetic both in his style and 
 action. He had such an excellent memory, that what he 
 composed in private he was able to repeat without notes in 
 the very same words he made use of at first. He employed 
 this natural advantage with so much readiness, that he not 
 only recalled whatever he had written or premeditated him- 
 self, but remembered everything that had been said by his 
 opponents without any notes. He was infiamed with such a 
 passionate fondness for the profession, that I never saw any 
 one who took more pains to improve himself; for he would 
 not suffer a day to elapse without either speaking in the 
 forum or composing something at home, and very often he 
 did both on the same day. He had, besides, a turn of ex- 
 ' Dio. Cass. Hist. Rom., xl. 54. 
 
CHAP. VI.] ROMAN BAR. 391 
 
 pression which was far from being lax and unelevated, and 
 possessed, too, other accomplishments in which no one could 
 equal him ; an uncommon clearness and accuracy in stating 
 the points he was to speak to ; and a neat and easy manner 
 of collecting the substance of what had been said by his 
 antagonist and by himself. He had likewise an elegant 
 choice of words, an agreeable flow in his periods, a copious 
 elocution, with a sweet and sonorous voice, which he was 
 partly indebted for to a fine natural capacity, and partly ac- 
 quired by the most laborious rhetorical exercises. In short, 
 he had a most retentive view of his subject, and always 
 divided and parcelled it out with the greatest exactness ; and 
 he very seldom overlooked anything which the case could 
 suggest that was proper either to support his own allegations, 
 or to refute those of his opponents." 
 
 Hortensius had no rival in the forum till he encountered 
 Cicero. Having first run through the career of public honours 
 and amassed a large fortune, Hortensius remitted his intense 
 application, and began to enjoy a life of ease and affluence ; 
 while Cicero, redoubling his exertions, obtained at last, by 
 general consent, the palm of eloquence. The orations of 
 Hortensius, though published, have not reached us, and some 
 other works written by him have also perished. His elo- 
 quence appears to have been of the florid or " Asiatic " style, 
 and was probably fitter for hearing than for reading. With 
 a soft and musical voice, his action was graceful and elabor- 
 ate. Ancient writers have recorded the pains he bestowed in 
 arranging the folds of his toga ; and Eoscius, the actor, is said 
 to have followed him into the forum to take a lesson in his own 
 art. Hortensius possessed immense wealth. He had several 
 villas splendidlyfurnished, a gallery of valuable paintings, and 
 a large stock of wines ; he had also parks with fish-ponds, and 
 all sorts of animals. He was renowned for his sumptuous 
 entertainments, and, it is said, was the first person at Eome 
 who brought peacocks to table. He died at the age of sixty- 
 four, in the year of Eome 703, some months before the pas- 
 sage of the Eubicon. 
 
 According to Quintilian, Calvus was preferred by some to 
 
392 EOMAN BAR. [pabt VI. 
 
 Caivus and all the orators of his time. His manner was grave and solid; 
 
 ^°""*" his style chaste, and often animated. To be thought a man 
 of Attic eloquence was the height of his ambition. His chief 
 fault was, that in labouring to refine his language he was too 
 attentive to little niceties. Had he lived to correct this error, 
 and to give more scope to his eloquence, he would have 
 reached the summit of his art ; but he was cut off by a pre- 
 matiire death. Asinius PoUio was an accomplished pleader 
 in extensive practice. Of all the eminent advocates he was 
 considered the most happily endowed with the power of speak- 
 ing on a sudden question with unpremeditated eloquence. 
 As to Brutus, Quintilian says he was fitter for philosophical 
 speculations than for the career of eloquence. 
 
 At this brilliant period the members of the Eomau bar 
 embraced with ardour all branches of knowledge; their literary 
 exertions were remarkable ; and many of them left behind 
 them esteemed works on a great variety of subjects. When 
 we consider the career of Cicero, who prepared such elaborate 
 pleadings, and published them with so much care after they 
 were delivered — ^who took so large a part in public business 
 during the most stormy period of the republic — who was suc- 
 cessively quaestor, edile, prastor, consul, proconsul, and general 
 of an army — and reflect on his numerous works in almost 
 every department of literature and philosophy, we are aston- 
 ished at his power and versatility, and can hardly conceive 
 how one man was capable of such vast labours. Varro, who 
 also belonged to the bar, earned for himself the title of " the 
 most learned of the Eomans;" and St Augustin declares 
 that the life of man is hardly sufficient to enable one to read 
 aU he has written. Cato the ancient, Lelius, Crassus, the 
 Antonies, Curio, Philippus, Hortensius, Catulus, Asinius 
 PoUio, Messala Corvinus, and most of the celebrated pleaders 
 of the empire, composed histories or other treatises evincing 
 literary taste and varied erudition ; to say nothing of Quin- 
 tilian, Tacitus, Suetonius, and Pliny, who were all advocates.^ 
 After the age of Cicero, eloquence declined, and a decla- 
 matory, redundant, and affected style of speaking was intro- 
 1 Grellet-Dumazeau, pp. 197, 198. 
 
CHAP. VI.] ROMAN BAR. 
 
 393 
 
 diiced. It had become usual to complete the education of Decline of 
 young men destined for the bar in some of the towns of Asia, f^^^'"'^ 
 where professors of rhetoric abounded ; there a new kind of ci'ero. 
 speaking was taught, called the Asiatic style. This was a 
 compound of Greek subtlety and Oriental pomp, very seduc- 
 tive in appearance, but founded on false taste ; it was not 
 simple or natural, but diffuse and ostentatious, and affected 
 to dazzle by strokes of wit, far-fetched metaphors, and super- 
 fluous ornament. To Hortensius is ascribed the blame of 
 having first introduced this vicious style at the bar. He had 
 many admirers, who, without his oratorical talents, imitated 
 his faults, and the Asiatic school came by degrees into fashion 
 in the courts of justice. 
 
 The eloquence of the bar, already much impaired under 
 Augustus, declined still farther under his successors. Troni 
 Tiberius to Trajan the advocates who appear most prominently 
 on the scene are those who attained a bad eminence by mak- 
 ing a traffic of their talents in conducting criminal prosecu- 
 tions to satisfy the vengeance of some of the worst emperors. 
 But even during that period a few names occur which recall 
 the best days of the old Eoman bar. 
 
 Domitius Afer, who was born under Augustus, and died at Domitius 
 an advanced age in the reign of Nero, was the most cele- ^^^' 
 brated advocate of his time. He spoke slowly, and with 
 gravity ; his arrangement was clear and logical ; and his 
 style was concise, earnest, and energetic, with nothing idle 
 or redundant about it; but he could enliven his discourse 
 with touches of irony and humour, and was always heard 
 with pleasure. One day Julius Gallicus was pleading before 
 the Emperor Claudius, who held his court near the banks of 
 the Tiber. The advocate, having irritated the prince, was 
 by his orders thrown into the river. Some days afterwards a 
 client of Gallicus brought his case to Afer, requesting him to 
 plead it before the emperor: "Who told you," said Afer, 
 " that I was a better swimmer than Gallicus 1"^ 
 
 The great blot on the fame of Afer was, that he lent him- 
 self to the vengeance of Tiberius. But in those days no 
 ^ Dio. Cass., Ix. p. 790. 
 
394 
 
 ROMAN BAE. [paet VI. 
 
 man's head was safe on his shoulders, and Domitius may 
 have acted on compulsion. A declared enemy to all charla- 
 tans, he encouraged a manly style of eloquence ; and the bar, 
 raised by his example from a long lethargy, produced some 
 eminent men, who appeared as his adversaries, or acted along 
 with him in all causes of importance. Crispus Passienus, 
 Decimus Lelius, and Julius Africanus, might be seen by his 
 side, all of them men of mark, and the last almost worthy to 
 walk as his equal. 
 Pliny the Pliny the youuger was the last of the Eoman bar who tried 
 younger. ^^ rgstorc to it a portioQ of its ancient glory. He was the 
 pupU of Quintilian. Not content with the eloquence of his 
 own times, he aspired to follow the best examples of a 
 former age. In his nineteenth year he began to speak in the 
 forum, and he was frequently employed as an advocate before 
 the court of the Centumvirs, as well as before the Roman 
 senate. He soon acquired a high position at the bar. His 
 pleading for Accia Variola, a noble lady disinherited by her 
 father, was regarded as his masterpiece.^ 
 
 Pliny and Tacitus the historian were most intimate friends. 
 They were both appointed to conduct the prosecution of 
 Marcus Priscus, proconsul of Africa, before the senate. The 
 impeachment was opened by Pliny ; and, after an able de- 
 fence by Salvius Liberalis, we are told, " Tacitus replied 
 to him with great eloquence, and a certain dignity which 
 distinguishes all his speeches." ^ Such was the debasement 
 of the bar at this period, that Pliny declares he was ashamed 
 of the corrupt effeminate style that disgraced the court of the 
 Centumvirs, and he thought of withdrawing from it alto- 
 gether.^ Pliny wrote a history of his own times, and numer- 
 ous pleadings, which have perished ; but his letters, and liis 
 panegyric on the Emperor Trajan, have reached us. 
 
 If Pliny under Nerva and Trajan was a model of good 
 taste, his example was not followed by his brethren of an 
 inferior order, who are justly reproached for indulging in 
 foolish quotations and irrelevant digressions. To this habit 
 Martial alludes in his well-known epigram: "Advocate — 
 - Pliny, Ep. vi. 33. ' Ibid. Ep. ii. 11. s Ibid. Ep. ii. 14. 
 
CHAP. VI.] ROMAN BAE. 395 
 
 We have nothing to do here with violence, or murder, or 
 poison. I accuse my neighbour of having stolen three goats, 
 and the judge wants me to prove this. You, with all the 
 force of your lungs, and striking the bar with your hand, 
 only make a noise about the battle of Cannge, the war of 
 Mithridates, and the perfidy of the Carthaginians,— about 
 Sylla, Marius, and Mucins. Speak, then, I pray you, of my 
 three goats." ^ 
 
 Only one pleading of the second century has been pre- Apuieius. 
 served. It is the defence which Apuleius, an advocate of 
 the Eoman bar, made at Carthage, before the proconsul 
 Claudius Maxiraus, upon an accusation brought against him 
 of having had recourse to magic to secure the love of a 
 woman older than himself In this singular discourse Apu- 
 leius, who was born some years after tlie death of Pliny, 
 professes himself to be a follower of Plato ; and, in order to 
 vindicate himself from the charge of magic, he discusses 
 questions of grammar, natural history, and physics ; he 
 cites Moses and Zoroaster ; and he passes under review all 
 the orators, poets, and philosophers of the world. 
 
 To push our inquiries on this subject farther would only 
 lead us into a region of conjecture. Pliny the younger, and 
 Apuleius, are for us the last known representatives of the 
 Eoman bar; after them, forensic pleading as an art disap- 
 peared before the science of jurisprudence. 
 
 Much has been written on the qualifications necessary for Quaiifi2f 
 an advocate, on the legal knowledge required in conducting qXed fe 
 causes, on composition, action, and delivery, the style which "■* *""■• 
 he may adopt with the greatest advantage, the collateral 
 studies to be pursued, and other kindred topics. Cicero has 
 treated this subject with judgment and discrimination. But 
 the great work of Quintilian, written during the reign of 
 Domitian, is the most complete system of rhetoric that the 
 Eomans have left to us. 
 
 In the ' Dialogue ' of M. Loisel, an eminent advocate of 
 the Parliament of Paris in the sixteenth century, we have 
 some striking sketches of the most celebrated men who then 
 1 Martial, vi. 19. 
 
396 ROMAN BAR. [PART VI.- 
 
 practised at the French bar.^ M. Pasquier, who takes part 
 in the discussion, says : " I do not desire for an advocate all 
 the perfections which Cicero, Quintilian, and others require 
 for their orator ; for I do not consider high eloquence to be 
 the principal qualification for an advocate. It is, indeed, 
 one of them, and very useful in great pleadings ; but it is 
 not what is most required for the bar. What I desire in my 
 advocate is, that he should learn to conduct well any suit in 
 which he may be engaged ; to prepare the written pleadings 
 in proper form ; and, when he comes to plead, that he should 
 handle judiciously all the circumstances of the cause, seize 
 well the point on which it hinges, and express himself in 
 well -chosen language, plain and sententious rather than 
 redundant and copious, supporting his argument with perti- 
 nent reasons and formal and precise authorities, texts of law, 
 ordinances, customs, and determinations of the jurists, with- 
 out obscuring the subject with superfluous matter, sometimes 
 embellishing it with a touch of sentiment, or a passing 
 illustration from the Greek or Latin, but so significant and 
 to the point that it could not be better expressed in French. 
 .... In short, I desire in my advocate the contrary of what 
 Cicero requires in his orator, which is eloquence in the first 
 place, and then some knowledge of law ; for I declare, on the 
 contrary, that an advocate should above all be learned in law 
 and practice, and moderately eloquent — more a dialectician 
 than a rhetorician, and more a man of business and judg- 
 ment than of great or long discourse." 
 
 There is much good sense in these reflections ; and, after 
 the lapse of three centuries, they apply with equal force to 
 the business of an advocate in our day, though few of that 
 profession, however high their scholarship, now venture to 
 season their speeches with Greek.^ 
 
 ' ' Pasquier, ou Dialogue des Avo- mus. Paris, 1818. 2 vols. 8vo. 
 
 cats du Parlement de Paris.' This ^ For a full account of the Roman 
 
 dialogue, which gives an account of bar we refer our readers to an able 
 
 the principal advocates from 1524 work from which we have derived 
 
 to 1599, has been reprinted by M. much aid — ' Le Barreau Romain de- 
 
 Dupin, in an edition of the 'Lettres puis son Origine jusqu'3, Justioien.' 
 
 Bur la Profession d'Avocat,' by Ca- Par Grellet-Dumazeau. Paris, 1851. 
 
INDEX. 
 
 Acceptilatio, 252. 
 
 Accession, acquisition by, 171. 
 
 Accretion among heirs, 261. 
 
 Among legatees, 279. 
 AccuTsius, Italian jurist, 34. 
 Actions, different kinds of, 321. 
 
 Real, personal, and mixed, 321, 
 
 Civil and Praetorian, 322. 
 
 Penal, 322. 
 
 Bonee fidei et stricti juris, 322. 
 
 Limitation of, 323. 
 Addictus, 336. 
 
 Adjudicatio, part of the formula, 317. 
 Adoption, 130. 
 Adultery, 362. 
 .^rariam, 167, note. 
 Age, 78. 
 Agnatio, 138. 
 Allegiance, national, 90. 
 Alluvion, 171. 
 Ambassadors, 71. 
 Anatocismus, 207. 
 
 Animals, wild and domesticated, 168. 
 Antichresis, 212. 
 Antinomies, or contradictions in Corpus 
 
 Juris, 28. 
 Appeals in civil suits, 339. 
 
 Not allowed during republic, 339. 
 
 Competent under empire, 339. 
 Aquseductus, servitude of, 178. 
 Aquilian law, 243. 
 Arbiter, powers of, 310. 
 As, indicates inheritance, 253. 
 Assessors, 312. 
 
 Assignment of debt and claims, 246. 
 Augustus, 12. 
 
 Bach, History of Roman Law, 37. 
 Bar, Roman, 381. 
 
 First pleaders were patrons, 381. 
 
 Advocates under empire, 381. 
 
 Costume of bar, 382. 
 
 Duration of pleadings, 382. 
 
 Number of counsel in a cause, 383. 
 
 Remuneration of pleaders, 384. 
 
 Age for admission to bar, 387. 
 
 Course of study and examination, 
 387. 
 
 Advocates a corporation, 387. 
 
 General style of Roman bar, 388. 
 
 Orators before Cicero, 388. 
 
 Crassus and Mark Antony, 388. 
 
 Orators of Cicero's age, 3&9. 
 
 Cicero and Hortensius, 389, 390. 
 
 Calvus and Asinius Pollio, 392. 
 
 Decline of eloquence after Cicero, 
 393. 
 
 Domitius Afer, 393. 
 
 Pliny the younger, 394. 
 
 Apuleius, 395. 
 
 Qualifications required for the bar, 
 395. 
 Bartolists, 34. 
 Basilica, collection of, 30. 
 Bastards, legitimation of, 126. 
 Benefit of inventory, 255. 
 Bequest, 277. — See Legacy. 
 Birth, 77. 
 
 Blockade, law of, 66. 
 Bologna, school of, 33. 
 Bonae fidei contractus, 206, 322. 
 Bonse fidei possessor, 175. 
 Bonorum possessio, 254. 
 Borough English, custom of, 143. 
 Bracton, an English lawyer, 39. 
 Breviarium of Alaric, 31. 
 Bribery (ambitus), 359. 
 British subjects, 89. 
 
 Capacity of persons, 77. 
 State of mind, 79. 
 Capitales Triumviri, 366. 
 Capital punishments, 368, 372, 376. 
 Capitis diminutio, 80. 
 Caracalla made citizenship general, 83. 
 Cautionary obligations, 216. — See Surety. 
 Celibacy at Rome, 101. 
 Censors, 86. 
 Centumviral court, 310. 
 Centuries, assembly of, 346. 
 Cessio bonorum, 341. 
 Citation of Roman law, 28. 
 
398 
 
 IXDEX. 
 
 Citizens, Eoman, different kinds of, 81. 
 How citizensliip acquired, 84. 
 How lost, 84. 
 Civil rights in France, 87. 
 Codes, Gregorian and Hermogenian, 19. 
 Of Theodosiiis, 19. 
 Of Justinian, 22. 
 Codicils, 256. 
 Coemptio, 98. 
 Cognates, 139. 
 CoUatio bonorum, 285. 
 Colliers in Scotland, 95. 
 Coloni or serfs,- 93 — Rural tenants, 225. 
 Comitia curiata, centuriata, tributa, 345, 
 
 346. 
 Commixtion, 173. 
 Commodatum, 204. 
 Compensation, its nature, 249. 
 Rules of, 249. 
 When excluded, 250. 
 Competencj' of courts, 307. 
 Concubinage at Rome, 101. 
 Condemnatio, part of formula, 317. 
 Condictio indebiti, 238. — See Restitution. 
 Conditions in obligations, 196. 
 
 In legacies, 280. 
 Confarreatio (marriage), 98. 
 Confusio (extinction of debt by), 251. 
 Connubium, 97. 
 Consanguinity, 283. 
 
 How degrees computed, 283. 
 Consensual contracts, 219. 
 Consideration valuable, 218. 
 Constantine, political changes under, 17. 
 Constitutions of the emperors, 14. 
 Contraband of war, 67. 
 Contracts, Roman law of, 195. 
 Essential elements of, 196. 
 Different classes of, 200. 
 Real contracts, 204. 
 Contracts Uteris et verbis, 216. 
 Consensual contracts, 219. 
 Innominate, 214. 
 Peculiarities of English law, 201. 
 Judgment debts, 201. 
 Contracts under seal, 201. 
 Simple contracts, 201. 
 International law, 202. 
 
 Lex loci contractus, 202. 
 Lex loci solutionis, 202. 
 Negotiable paper, 203. 
 Contubemium, 98. 
 Conventio in manum, 98. 
 Convention, 195. 
 Conventus, 312. 
 
 Corporations in Roman law, 155. 
 Constitution of, 155. 
 Extinction of, 157. 
 Special corporate bodies, 167. 
 Treasury or flsc, 157. 
 English Corporations, 158. 
 Aggregate or sole, 158. 
 Scottish corporations, 169. 
 Corpus Juris Civilis, 27. 
 Courts for civil actions, 306. 
 
 Judicial system during republic, 
 307. 
 
 Jurisdiction of prsetors in civil 
 
 suits, 307. 
 Delegated judges, 308. 
 Judex, 309. 
 Arbiter, 310. 
 Recuperatores, 310. 
 Centumviral court, 310. 
 Italy and provinces, 312, 313. 
 Judicial Institutions during em- 
 pire, 312. 
 Changes under Constantine, 314. 
 Criminal courts, 343. 
 
 Criminal jurisdiction of king 
 
 and consuls, 343. 
 Criminal jurisdiction of senate, 
 
 344. 
 Criminal jurisdiction of Comi- 
 tia, 345. 
 Criminal jurisdiction of im- 
 perial magistrates, 349. 
 Criminal jurisdiction of stand- 
 ing commissions, 347. 
 Crimes, Roman law, 353. 
 
 Public and private, 353. 
 Ordinary and extraordinary, 353. 
 Crimen falsi, 363. 
 Crimen liesse majestatis, 354. 
 Crimen repetundarum, 357. 
 Criminal law of France, 371. 
 Criminal law of Britain, 373. 
 Cujacius, 35. 
 
 Culpa, liability of parties for, 197. 
 Curators, different kinds of, 150. 
 Custom, 10, 52. 
 
 Damage, 243. 
 Decemvirs, 5. 
 
 Litibus judicandis, 308, 311. 
 Declaration of Congress of Paris, 1856, 
 
 64. 
 Dedititii, 94. 
 
 Defamation, 244. — See Injury. 
 Delegation, 251. 
 
 Deliberandi jus of apparent heirs, 255. 
 Delicts and quasi delicts, 242. 
 Delivery under sale, 221. 
 Demonstratio, 317. 
 Deportatio, 368. 
 Deposit, contract of, 210. 
 Derelicts, 170. 
 Descendants, 287. 
 
 Descent, canons of, in English law, 294. 
 Desertion, divorce for, 124. 
 Digest of Justinian, 23. 
 Diplomatic agents, classification of, 71. 
 Discharge, extinction of obligations by. 
 
 Discussion, benefit of, to sureties, 217. 
 Distribution, English Statute of, 297. 
 Divine law, 46. 
 Divorce in Roman law, 119. 
 
 In French law, 121. 
 
 In English law, 122. 
 
 In Scottish law, 124. 
 Dolus mains, 196. 
 Dominum, 164.— <Se« Property. 
 
 Ex jure Quiritium, 166. 
 
INDEX. 
 
 399 
 
 Donations, Roman law, 234. 
 
 Inter vivos, 234. 
 
 Inter virum et uxorem, 104. 
 
 Propter nuptias, 104. 
 
 Mortis causa, 236. 
 French rules as to donations, 236. 
 Dos, Its different Icinds, 103. 
 Dower in England, 111. 
 Droit d'aubaine, 88. 
 Dunioulin, 36. 
 Duplicatio, 328. 
 
 Edict NautiE, Caupones, &c., 210. 
 Edicts of the praetors, 9. 
 Edictum perpetuum, 14. 
 
 Theodorici, 31. 
 Ediles curule and plebeian, 307. 
 Emancipation of children, 139. 
 Embezzlement, 358. 
 Emblemata Triboniani, 24. 
 Emphyteusis, 184. 
 Emptio, venditio, 219. — See Sale. 
 England, Roman law in, 39. 
 Equity in English practice, 55. 
 Error in contracts and obligations, 196. 
 Error in fact or in law, 238. 
 Ethics, as distinguished from jurispru- 
 dence, 45. 
 Evidence, 330. 
 
 Three modes of proof— wiitings, 
 witnesses, and oath of party, 330. 
 
 Onus probandi, 330. 
 
 Proof by writings, 330. 
 
 Proof by witnesses, 330. 
 
 Recent changes in British law, 
 331. 
 
 Reference to oath of party, 332. 
 
 Oath in litem, 833. 
 
 Presumptions, 333. 
 Exceptions, 327. 
 
 Dilatory and peremptory, 327. 
 
 Non numeratse pecuniae, 217. 
 
 Rei venditsD et traditae, 167. 
 Exchange, 214. 
 
 Excuses of tutors and curators, 147. 
 Execution of decrees, 336, 337. 
 Exheredatio, 260. 
 Existimatio, 85, note. 
 Expromissor, 251. 
 Extinction of obligations, 248. 
 Extortion, 357. 
 Extradition of criminals, 89. 
 
 Falcidian fourth, 267. 
 
 Falsa demonstratio in legacies, 280. 
 
 Falsi crimen, 363. 
 
 Family, notion of, 138. 
 
 Father, his powers over children, 135. 
 
 Fault, responsibility for, 197. 
 
 Application of theory, 199. 
 Fees, barristers', 384. 
 Fidei-commissa, or trusts, 272. 
 
 Universal or particular, 272. 
 Fidejussio, 216. 
 Fines, punishment by, 365. 
 Fiscus, 157. 
 Foenus unciarium, 207. 
 
 Force and fear, nullity of obligations in- 
 duced by, 198. 
 Foreigners at Rome, 82. 
 
 Rights of, in France, 88. 
 
 Rights of, in Britain, 89. 
 Forgery, 363. 
 
 Formula, its different parts, 317. 
 Formulary system, 317. 
 Fragmenta Vaticana, 41. 
 Fraud, definition of, 196. 
 
 Invalidates obligations, 196. 
 Free-born and freedmen, 94. 
 Fruits bona iide percepti et consumpti, 
 
 175. 
 Fungibles, what ? 247, note. 
 Furtum (theft), 242. 
 
 Gaius, 15. 
 Game, 169. 
 
 Gavelkind, custom of, 143. 
 Gentiles, 284. 
 Glossatores, 33. 
 Guarantee, mercantile, 217. 
 Guardian and ward, 148.— ,See Tutors and 
 curators. 
 
 Guardians in France, 152. 
 
 Guardians in England, 153. 
 
 Guardians in Scotland, 153. 
 
 Habitatio, 183. 
 
 Hadrian, 13, 14. 
 
 Harmenopulus, Promptuarium Juris, 31. 
 
 Heineccius, works of, 36. 
 
 Heredes sui, 254. 
 
 Necessarii, sui et necessarii, 254. 
 
 Extranei, 255. 
 Heredis institutio, 260. 
 
 Substitutio, 261. 
 Hereditas, 253. 
 
 Heresy, as affecting civil rights, 86. 
 Hiring, contract of, 225. 
 
 Hiring of things, 225. 
 
 Hiring of work or services, 227. 
 History of Roman law, 11. — See Roman 
 
 law. 
 Homicide, 360. 
 Honours, 84. 
 
 Personal distinctions — Nobiles, 84. 
 
 Titles of honour under Constan- 
 tine, 18. 
 
 Civil honour as affecting status, 
 85. 
 Hotman, Anti-Tribonianus of, 35. 
 Husband and wife, 102. — See Marriage. 
 Hypothec as distinguished from pledge, 
 212. 
 
 Impediments to marriage, 100. 
 
 Imperium merum et mixtum of magis- 
 trates, 306. 
 
 Imprisonment, 366. 
 
 Indebiti solutio, 238. 
 
 Indefinite payment, how to be applied, 
 249. 
 
 Infamy, 86, 367. 
 
 Ingenuus, 94. 
 
 Injunctions, 325. — See Interdicts. 
 
400 
 
 INDEX. 
 
 Injuries, 244. 
 
 InDominate contracts, 214. 
 
 Inns, law regarding goods lost at, 211, 
 
 Insolvency, 341. 
 
 Institutes of Justinian, 25. 
 
 Intentio, 317. 
 
 Interdictio aquse et ignis, 367. 
 
 Interdicts, 324. 
 
 Interest of money at Rome, 206. 
 
 In this country, 207. 
 Interlocutory decrees, 335. 
 International law, 56. 
 Intestate succession, Boman law, 283. 
 
 Under Twelve Tables, 284. 
 
 Under edicts of prsetor, 285. 
 
 Under Justinian, 286. 
 Intestate succession in France, 293. 
 
 In England, 294. 
 
 In Scotland, 299. 
 Italicum j\is, 167. 
 Iter (road), 178. 
 
 Joint-stock companies, 231. 
 Judex, 309. 
 
 Pedaneus, 314. 
 Judgment debts, 2U1. 
 Judicia extraordinaria, 320. 
 Judgments and their execution, 335. 
 Jurisconsults, their opinions, 10, 13. 
 
 Their writings, 11, 15, 18. 
 
 Schools, 13, 16. 
 Jurisdiction, 306. 
 Jurisprudence, general and particular, 44. 
 
 Distinction between, and Ethics, 
 45. 
 Jurists, Byzantine, 31. 
 
 Scholastic, 33. 
 Jury — Verdict in Roman trials, 349, 352. 
 
 In French criminal trials, 371. 
 
 In this country, 374, 375. 
 Jus jEliannm, 11. 
 
 Aureorum annulorum, 94. 
 
 Flavianum, 10. 
 
 Honorarium, 9. 
 
 Italicum, 167. 
 
 Latii, 83. 
 
 Papiriauum, 4. 
 
 Quiritium, 166. 
 
 Sufiragii, 81. 
 
 Vitas et necis, 136. 
 Jus in re and jus ad rem, 165. 
 Justice defined, 45. 
 Justinian, reform of law, 22. 
 
 Body of law collected by him, 27. 
 
 Opinions on his works, 29. 
 
 Kidnapping (plagium), 361. 
 Kindred, degrees of, 283. 
 Kings, Roman law under, 4. 
 
 Lands, succession to, in England, 294. 
 
 In Scotland, 299. 
 Latii jus, 83. 
 Latini, 83. 
 Laudemium, 185. 
 Law, l.—See History of Roman law. 
 
 Principal divisions of law, 46. 
 
 Divine positive law, 46. 
 
 Natural law, 47. 
 
 Positive law of different states, 50. 
 
 International law, 51. 
 
 Exposition of the Roman law, 75. 
 Laws of the Twelve Tables, 5. 
 Lease of lands and houses, 225. 
 Legacies, 277. 
 
 General and specific, 278. 
 
 Accretion among lega.tees, 279. 
 
 Effect of predecease of legatee, 
 280. 
 
 Revocation of legacies, 281. 
 Legis actiones, 314. 
 Legitima portio, 267. 
 Legitimation of natural children, 126. 
 Lesion in sale, 220. 
 
 In contracts with minors, 151. 
 Lex jS!lia Sentia, 94. 
 
 Aquilia, 243. 
 
 Canuleia, 98. 
 
 Cincia, 234. 
 
 Commissoria, 212. 
 
 Falcidia, 267. 
 
 Hortensia, 8. 
 
 Julia et Papia Poppaea, 101. 
 
 Pcetelia Papiria, 336. 
 
 Begia, 14. 
 
 Rhodia de jactu, 240. 
 
 Romana Burgundiorum, 32. 
 
 Roniana Visigothorum, 31. 
 Libel, 244. 
 
 Libellus conventionis, 320. 
 Libertini, 95. 
 
 Light or prospect, servitude of, 179. 
 Limitation, extinction of obligations by, 
 
 186. 
 Litis-contestation, 328. 
 Litis denunciatio, 318. 
 Loan, 204. 
 
 Locatio conductio, 225. — See Hiring. 
 Loss at sea, contribution for, 240. 
 
 Magistrates and judges, 307. 
 During republic, 307. 
 Under the empire, 312. 
 Mancipatio, 76, 166. 
 Mandate, 232. 
 Manumission, 94. 
 Manus mariti, 76, 98. 
 
 Injectio, in actions of the law, 316. 
 Maritime rights, 63. 
 Marriage, Roman law, 97. 
 
 Constitution of marriage, 97. 
 Mairiage with or without manus, 
 
 98. 
 Three ancient forms — oonfarreatio, 
 
 coemptio, usns, 98. 
 How marriage contracted, 99. 
 Impediments to marriage, 99. 
 Celibacy at Rome, 101. 
 Concubinage, 101. 
 Effects of Roman marriage, 102. 
 Dos or dowry, 103. 
 Donatio propter nuptias, 104. 
 How far marriage a religious cere- 
 mony, 104, 
 
INDEX. 
 
 401 
 
 Frenoli law of marriage, 106. 
 
 English law of maniage, 107. 
 
 Scottish law of marriage, 111. 
 Minors, their privileges, 151. 
 
 Eestitution on minority and lesion, 
 151. 
 Missio in possessionem, 336. 
 Mores majomm, 10. 
 Mortis cansa donations, 236. 
 Mutuum, 205.— See Loan. 
 
 Nations, law of, 56. 
 
 Natural law, 47. 
 
 Naturalisation of aliens, 89. 
 
 NautsB, caxipones, et stahularii, 210. 
 
 Negotiable instruments, 202. 
 
 Negotiorum gestio, 237. 
 
 Neutral territory, 70. 
 
 Neutrals, maritime rights of, 64. 
 
 Nohiles, 84. 
 
 Nota censoria, 86, 367. 
 
 Notitia dignitatum, 18. 
 
 Novation, 251. 
 
 Novels of Justinian, 26. 
 
 Nudum pactum, 195 
 
 Nuncupative will, 258. 
 
 Nuptiae, 97. 
 
 Oath, on reference, 332. 
 
 In litem, 333. 
 Obligations, law of, 194. 
 
 Natural and civil, 194. 
 Kequisites, 195. 
 Pure or conditional, 196. 
 Material contents of obligations, 
 
 197. 
 Sources of obligations, 200. 
 Obligations from contracts, 200. 
 Eeal contracts, — quae re con- 
 
 trahuntur, 204. 
 Contracts quae verbis et Uteris 
 
 contrahuntur, 216. 
 Contracts quse consensu con- 
 trahuntur, 219. 
 Obligations from quasi contracts, 
 
 236. 
 Obligations from delicts and quasi 
 
 delicts, 242. 
 Transfer of obligations, 246. 
 Extinction of obligations, 248. 
 Occupancy, acquisition of property by, 168. 
 Oneris ferendi servitude, 179. 
 Operse servorum vel animalium, 183. 
 Operis locatio, 227. 
 
 Pacta adjecta, 195. 
 
 Legitima, 195. 
 
 Prsetoria, 195. 
 Pactum nudum, 195. 
 
 De non petendo, 252. 
 Pandects, history of their composition, 23. 
 Papirius, 4. 
 
 Paraphernalia bona, 104. 
 Paratitla of Cujacius, 35. 
 Parricide, 360. 
 Partnership, 228. 
 Paternal power, 135. 
 
 Patrons, 95, 381. 
 
 Paulus Julius, 16. 
 
 Pawnbrokers Acts, 214. 
 
 Peculium, different kinds of, 137. 
 
 Peregrini, 82. 
 
 Persons in general, 76. 
 
 Persons juridical, 76. 
 
 Pignoris capio, 316. 
 
 Plebiscita, 8. 
 
 Pledge, 212. 
 
 Populiscita, 7. 
 
 Possession, 175. 
 
 Pothier's Pandects, 37. 
 
 Praetors, 9, 307, 312, 313. 
 
 Precarium, 325. 
 
 Predial servitudes, 177. 
 
 Prescription, 186. 
 
 Presumptions, 333. 
 
 Price in sale, 220. 
 
 Procedure in civil actions, 315. 
 
 Prohibited degrees in marriage, 100. 
 
 Proof, 330. — See Evidence. 
 
 Property in general, 165. 
 
 Modes of acquiring, 168. 
 Prosecutor, public, 347, 348. 
 
 In France, 371. 
 
 In Scotland, 374. 
 Punishments, Eoman, 365. 
 
 Quadriennium utile, 151. 
 
 Qusesitores, 347. 
 
 Quaestiones peipetus, 348, 350. 
 
 Quarta Falcidia, 267. 
 
 Quasi contracts, 237. 
 
 Quasi delicts, 251. 
 
 Quasi pupilary substitution, 262. 
 
 Querela inofSciosi testamenti, 260. 
 
 Quorum bonorum, 325. 
 
 Rape, 262. 
 
 Eapina (robbery), 243. 
 
 Real actions, 321. 
 
 Real contracts, 204. 
 
 Real rights, description of, 164. 
 
 Eecuperatores, 310. 
 
 Rei vindicatio, 321. 
 
 Relationship, 283. 
 
 Religion, as affecting civil rights, 86. 
 
 Relocation, tacit, 226. 
 
 Bemissio injuriae, effect in divorce, 125. 
 
 RepUcatio, 328. 
 
 Res, division of things, 161. 
 
 Communes, 162. 
 
 Corporales et incorporalos, 161. 
 
 In commercio et extra commer- 
 cium, 161. 
 
 Mancipi et nee mancipi, 166. 
 
 Mobiles et immobiles, 163. 
 
 NulUus, 170. 
 
 PubliciE, 162. 
 
 Saorae, sanctae, religiosae, 163. 
 
 Universitatis, 163, 
 Rescripts, 14. 
 
 Responsa pradentum, 10, 13. 
 Restitution, doctrine of, 238. 
 
 Payment in error, 238. 
 
 On minority and lesion, 151. 
 
 2 c 
 
402 
 
 INDEX. 
 
 Revocation of legacies, 281. 
 
 Of testaments, 275. 
 Ehodia lex de jactu, 240. 
 Roman law, history of, 1. 
 
 Political constitution of Rome, 3. 
 The law under the kings, 4. 
 The laws of the Twelve Tables, 5. 
 Sources of law during the republic, 
 
 7. 
 Leges et plebiscita, 7, 8. 
 Senatus consulta, 8. 
 Edicts of the magistrates, 9. 
 Eesponsa pnidentum, 10. 
 Customary law, mores majomm, 10. 
 Pall of the republic, 11. 
 Transition to absolute monarchy, 
 
 12. 
 New character of responsa prudeu- 
 
 tum, 13. 
 Imperial constitutions, 14. 
 Celebrated jurists after Hadrian, 
 
 15. 
 Decline of law after Alexander Se- 
 
 verus, 16. 
 Fall of Western empire, a.d. 476, 
 
 20. 
 Consolidation of the Roman law 
 
 under Justinian, 22. 
 Pate of Roman law after Justinian, 
 
 30. 
 Revival of study in Europe, 33. 
 Subsequent progress of the science, 
 
 34. 
 Rural servitudes, 178. 
 
 Sabiniaus and Proculians, 13. 
 Sale, Roman law, 219. 
 
 Nature and form of contract, 219. 
 
 What may be sold, 219. 
 
 Price must be certain, 220. 
 
 Laesio ultra dimidium, 220. 
 
 Vendor's warranty against faults, 
 220. 
 
 Risk of things sold, 221. 
 
 Conditions in sale, 222. 
 
 Warranty against eviction, 222. 
 
 How sale rescinded, 222. 
 English and Scottish law, 223. 
 
 Statute of Frauds, 223. 
 
 Rules as to passing of property, 
 223. - 
 
 Mercantile Amendment Act, 223. 
 
 Warranty against defects, 224. 
 
 Stolen goods, 224. 
 Salters in Scotland, 95. 
 Salvius JuUanus, 14. 
 Schools of law, 13. 
 
 Sabinians and Proculians,. 13. 
 
 At Berytus, 16. 
 
 At Bologna, 33. 
 
 French school of sixteenth century, 
 34. 
 
 School of Netherlands, 36. 
 
 Civilians in Britain, 39. , 
 
 Historical school of Germany, 41. 
 Scotland, Roman law in, 40. 
 Sea and sea-shore, 162. 
 
 Senate, constitution of, 3, 8. 
 
 Criminal jurisdiction of, 344. 
 Senatus consulta, 8. 
 
 Senatus consultum Claudianum, 92. 
 Macedonianum, 206. 
 Pegasianum, 274, note. 
 VeUeianum, 217. 
 Sentences and their execution, 334. 
 Separation, judicial, of husband and wife, 
 
 123. 
 Servitudes, 176. 
 
 General character, 176. 
 Rural, 177. 
 Urban, 179. 
 
 How acquired and lost, 179. 
 Servius Tullius, 3. 
 Sex, 77. 
 Slander, 244. 
 Slavery, 91. 
 
 Origin of, 91. 
 
 Condition of slaves at Rome, 92. 
 Coloni, or serfs, 93. 
 Manumission and its effects, 94. 
 Slavery in modem times, 96. 
 Society or partnership, 228.— &c Part- 
 nership. 
 Solutio, 248. 
 
 Indebiti, 238. 
 Specialty debts, 201. 
 Specification, property by, 172. 
 Status, 75, 79. 
 
 Civitatis, 79. 
 
 FamUisB, 79. 
 
 Libertatis, 79. 
 
 StiUicide, servitude of, 179. 
 
 Stipulations, form of, 216. 
 
 Aquilian, 252. 
 Stuprum, 101. 
 Subjects, allegiance of, 89. 
 
 Who are held British subjects, 89. 
 Who are held French, 88. 
 Substitution, forms of, 261. 
 
 Vulgar, pupilary, and quasi pupil- 
 ary, 261. 
 Succession, laws of, 253. 
 
 Succession in general, 253. 
 Succession by testament, 256. 
 Roman wills, 257. 
 Forms of wills in France, 262. 
 English Statute of Wills, 263. 
 Testamentary writings in Scotland, 
 
 264. 
 Recent Acts as to wills by British 
 
 subjects, 264. 
 Limitations of testamentary power, 
 
 266. 
 How testaments revoked or annul- 
 led, 275. 
 Roman intestate succession, 283. 
 Succession ab intestato under 
 
 Twelve Tables, 284. 
 Succession under the prcetor- 
 
 ian law, 285. 
 Succession under Justinian, 
 286. 
 Intestate succession in France, 
 293. 
 
IKDEX, 
 
 403 
 
 Intestate succession in England, 
 294. 
 Descent to lands, 294. 
 Distribution of personal estate, 
 a97. 
 Intestate succession in Scotland, 
 299. 
 Succession to lands, 299. 
 Distribution of personal estate, 
 301. 
 Superficies, 185. 
 Support, servitude of, 179. 
 Surety, 216. 
 
 Tacit relocation, 226. 
 Testament, or last will, 256. 
 
 Persons capable of making, 257. 
 
 Ancient forms, — Calatis comitiis, 
 257. 
 
 In prooinctu, 257. 
 Per ees et libram, 257. 
 
 Wills in writing, 258. 
 
 Nuncupative wills, 258. 
 
 Privileged wills, 258. 
 
 Contents of Roman wills, 259. 
 
 How revoked or annulled, 275. 
 
 Forms of wills in Prance, 262. 
 In England, 263. 
 In Scotland, 264. 
 Theodorici Edictum, 81. 
 Theodosian Code, 19. 
 Theophilus, Greek paraphrase of Insti- 
 tutes, 25. 
 Things, objects of law, 161. 
 
 Division of things, 161. — See Res. 
 Titles of honour under Constantine, 18. 
 Tradition, 173. 
 Treason, 354. 
 
 Treasure-trove (thesaurus), 170. 
 Treaties, public, 70. 
 Trent, affair of, 68. 
 Trials, criminal, 348 et seq. 
 Tribonian, 22 et seg. 
 Triplicatio, 328. 
 
 Trusts, 272.— Se« Fidei commissa. 
 Tutela mulierum, 146. 
 Tutors and curators, 146. 
 
 Ancient tutory of women, 146. 
 
 Tutory of pupils, 147. 
 
 Testamentary tutor, 148. 
 
 Tutor at law, 148. 
 
 Tutor dative, 148. 
 Powers and duties of tutors, 148. 
 Termination of tutory, 149. 
 Curators to minors, 160. 
 
 To insane persons, 151. 
 
 Ad litem, 151. 
 Privileges of minors, 151. 
 Guardian and ward in France, 
 152. 
 
 In England, 153. 
 
 In Scotland, 153. 
 Twelve Tables, laws of, 5. 
 
 Ulpiau, Fragments, 16. 
 
 Urban servitudes, 179. 
 
 Usucapio— prescription, 186. 
 
 Usufructus, 179. 
 
 Usurse, 206. 
 
 Usus, 182. 
 
 Uti possidetis (interdict), 325. 
 
 Vacarius, 33. 
 
 Vattel on War, 60, 61. 
 
 Venia setatis, 79, 160. 
 
 Verbal contracts, 216.— <See Stipulatio. 
 
 Verdicts in Roman trials, 349, 352. 
 
 In France and Britain, 371, 374. 
 Via, 178. 
 
 Villenage in England, 95. 
 Violence— vis publioa et privata, 357. 
 Vocatio in jus, 316. 
 
 Waifs and strays, 171. 
 War, rights of, 60. 
 
 Civil war, 61. 
 
 Contraband of war, 67. 
 
 Effect of blockade, 66. 
 Warranty in sale, 220. 
 Western empire, fall of, 20. 
 Whales, rules as to the appropriation of, 
 
 in fishing, 169. 
 WiU, 256.— jSfee Testament. 
 Witnesses, SSO.—See Evidence. 
 Work and labour, hiring of, 227. 
 Writing, contracts in, 217. 
 
 THE END. 
 
 fg FBINTED BV WILLIAM BLACKWOOD AND SOUS, EDINBUEOH. 
 
Mr-