Outlines of Roman law : comprising its historical growth and general principles

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Outlines of Roman law xomprising its hi

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Preface

The primary object of this book is to serve as a manual for the use of students and of others who desire an elementary knowledge of the history and principles of the Roman Law. Since the founding of the " historical school " in Germany, and the new direction given to legal studies by Sir Henry S. Maine, the importance of the Roman law as a part of liberal education has been strongly emphasized in England, and has received some recognition in this country. It seems now to be a well-established fact that the history of modern systems of law and the principles of comparative jurisprudence cannot be properly understood without some knowledge of this most important branch of learning. Twelve years experience in teaching this subject has convinced me of the valuable results which it affords to the student in widening his historical horizon and in deepening his sense of the importance of law as a liberal science.

The general scope of this outline is somewhat similar to that expressed in the ordinary German title, Geschichte und Institutionen des Romischen Rechts. But its arrangement, both in the historical and the expository part, differs considerably from that usually followed by the German text-book writers. The departure from a plan approved by writers of such eminence may require a word or two of explanation — in addition to the general necessity of adapting a work, as far as possible, to the special needs of those for whom it is written.

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IV PREFACE.

Since the time of Leibnitz it has been customary in Germany to separate the external from the internal history of the Roman law. This method has, it is true, made clear the distinction between the formal sources of the law, on the one hand, and the development of the various branches of the law, on the other. If the method fails at all, it fails to give a proper synthetic view of the general historical influences which have contributed to the growth of the law as a whole. I have adhered to the division into periods adopted by Puchta ; but have added a fifth period in order to emphasize the continuity which binds together the history of the Roman law from the earliest times to the present. I have also attempted to point out in each period the organic agencies at work in Roman society, whether social or political, philosophical or religious; the mode in which these agencies acted upon the prevailing legal forms and ideas ; and the effects which they produced upon the substance of the law, as a whole, and in its more important branches. And this general line of development is traced, so far as is consistent with the limits of the work, by the aid of specific illustrations. In controverted questions regarding the origin of law, I have usually followed the safe judgment of Sir Henry S. Maine.

In describing the general principles of the Roman law, one of three modes of classification may be adopted. In the first place, we may accept the ordinary arrangement adopted by the German writers in describing the modern civil law. Again, we may re-arrange the principles of the law according to an ideal order, which we think the Romans ought to have adopted. Finally, we may adhere to the general classification with which the Romans themselves were familiar in the works of their own text-book writers. Were it not for the fact that this last method is

PREFACE. V

rarely followed, it would seem hardly necessary to claim that the spirit of the Roman law can be best understood in the form in which it is expressed in their own systematic treatises. Without assuming that this is the most scientific arrangement, I have yet followed as closely as possible, the order of the "Institutes " of Gains and Justinian, as that which most faithfully represents the legal system of the Roman jurists. The special portions of the law are explained, however, in the light of the " Digest " and the works of modern commentators.

That this book may also serve as a guide to the further study of the Roman law, each chapter is followed by a short list of references, which is intended not to be a bibliography of the subject discussed, but to call attention to certain works in English, French, and German, and to some original authorities, in which the study of the subject may be continued. The most important of these references will also be found collected in a single list at the close of the volume.

The great extent of the subject embraced in this outline must be pleaded as an excuse for the brief and often inadequate discussion of particular topics. The purpose of the outline will, however, be accomplished if it presents to the student and to the general reader a clear and comprehensive idea of the historical and scientific significance of the Roman law, and thereby awakens an interest in its further study.

Rochester, N. Y.,

October i, 1884.

Part First. The Historical Growth Of The Roman Law

PERIOD I.

FROM THE EARLIEST TIMES TO THE CODIFICATION OF THE TWELVE TABLES.

Chapter I. — The Organization of Karly RoTnan Society

1. The early Roman family

2. The Roman gens ....

3. The Roman populus ....

4. The Plebeian element ....

5. The Consular or Republican government

Chapter II. — The Beginnings of the Ancient yus Civile I. Character of the earliest sanctions K. The rise of civil jurisdiction

3. The earliest civil procedure .

4. The growth of legal conveyance .

5. The nature of early Quiritarian rights

Chapter III. — The Character of the Twelve Tables

1. The law of procedure ...

2. The law regarding family relations

3. The law relating to succession

4. The law relating to property

5. The law respecting injuries . 5. General character of the XII Tables

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PACE

3 5 7 8

9 II

14 14 15 17 19 21

PERIOD II.

FROM THE CODIFICATION OF THE TWELVE TABLES TO THE ESTABLISHMENT OF THE EMPIRE.

Chapter I. — The Enlargement of the State and the Extension of the Franchise

r. The equalization of the orders — -jus civitatis

2. The pacification of Latium — -jus Latii .

3. The reduction of Italy — -jus Italicum .

4. The conquest of the provinces — jus frovinciarum

5. The civil wars and Roman citizenship .

Chapter II. — The Roman Pmtor and the Earlier Jus Gentium

1. The jurisdiction of the prsetor

2. The character of the praetorian edicts

3. The functions of \ht prcstor peregrinus

4. The growth of the earlier /aj gentium

5. Relation of \\\& jus gentium to theyMj civile

Chapter III. — The Improvement of the Roman Law during the Republican Period

1. Extension of the civil capacity of persons

2. The praetorian law of possession .

3. Acquisition of property ex jure gentium-

4. Changes in the law of succession .

5. Growth of the law regarding contracts .

47 47 49 50 52 55

59 59 61

63 65 69

72 72

74 76 78 80

6. Reforms in the law of procedure . . 84

PERIOD III.

FROM THE ESTABLISHMENT OF THE EMPIRE TO THE ACCESSION OF DIOCLETIAN.

Chapter I. — The Establishment of the Imperial System . qi

1. The position of the Emperor .... qi

2. The relation of the Senate to the Emperor . 03

3. The position of the Comitia ...... a±

4. The new imperial offices ••.... 05

5. The judicial system of the empire .... 06

Chapter II. — The Sources of Legislation under the Early Empire .98 CONTENTS

IX

1. The enactments of the people

2. The decrees of the senate

3. The edict of the prsetor

4. The, responses of the jurists .

5., The, constitutions of the emperor .

Chapter III. — The Stoic Philosophy and the Later Jus Gen- Hum

; I. The Stoic philosophy at Rome X 2. The Stoic theory of " natural law " (' 3. Acceptance of this theory by the jurists

4. New meaning attached to yaj^^»/zKffz .

5. The laXsr jus gentium viewed as equity

Chapter IV. — The Influence of the Jurisconsults upon the Roman Law

1. The method of the jurists

2. Definitions and maxims of the law

3. The reason of the law — ratio legis

4. Restrictive and extensive interpretation

5. The jurists and indirect legislation

6. The jurists and direct legislation .

100 100 102 104

PERIOD IV.

FROM THE ACCESSION OF DIOCLETIAN TO THE FINAL CODIFICATION OF THE LAW BY JUSTINIAN.

Chapter I. — The Re-organization of the Imperial System

1. Failure of the Augustan constitution

2. The orientalization of the empire .

3. Reorganization of the provinces .

4. The forms of legislation

5. The character of the judicature

Chapter II. — The Relation of Christianity to the Empire and to Legislation

1. The triumph of Christianity

2. Relation of the church to the state

3. Immunities and privileges of the clergy

4. The judicial authority of the clergy

5. Christianity and legislation .

135 135 137 138

139 140

143 144

145 146 148

X CONTENTS.

Chapter III. — The Final Codification of the Roman Imw . 154

1. The pre-Justinian codes of the East .... 154

2. The Roman codes in the West 156

3. The final codification by Justinian .... 158

4. General character of the Corpus jFuris .... 162

PERIOD V.

FROM THE CODIFICATION OF THE LAW BY JUSTINIAN TO THE PRESENT TIME.

Chapter I. — The Roman Law during the Middle Ages

1. Its continuance in the Eastern Empire .

2. Its preservation in the barbarian kingdoms .

3. The Roman law and the feudal system

4. The Roman law and the mediaeval Empire .

5. The Roman law and the mediseval Church .

167 168 169 171 174 176

Chapter II. — The Revival of the Study of the Roman Laiv

from the Twelfth Century 181

1. The school of Bologna in Italy 182

2. The study of the Roman law in France . . . 183

3. Its study in Holland 185

4. Its study in Germany 187

5. Its study in England i8g

Chapter III. — The Roman Element in Modem Jurisprudence Ig2

1. The modern civil law on the Continent . . . 193

2. The Roman element in the English law

3. The Roman law and the modern canon law .

4. The Roman law and modem international law

5. The spread of Roman law by colonization .

198 203 207 210

Part Second. The General Principles Of The Roman Law

Introduction. — Fundamental Concepts and Divisions of the

1. Justice and law ....... 210

2. Natural law and positive law ..... 221

3. Written law and unwritten law 222

CONTENTS.

XI

4. Public law and private law

5. Law relating to persons, to things, and to actions .

Chapter I. — Persons with reference to Liberty

1. The legal idea of person and status

2. Freedom as a condition of personality .

3. Legal status of slaves — servi

4. Legal status of freedmen — libertini

5. Status of free-bom persons — ingenui .

Chapter II. — Persons with reference to Family Relations I. The power of the father over the child . The nature of Roman marriage .

The conditions of legal marriage .

The legal effects of marriage The dos and donatio propter nuptias Divorce and its legal effects .

223 224

Chapter I. — Things as the Objects of Ownership

1. The legal idea of res or thing

2. Things as to their legal capacity .

3. Things as to their general qualities

4. Things as to their mode of designation

5. Things as to their mutual relations

Xll

CONTENTS.

Chapter II. — General Right of Ownership — Dominium. . 279

1. Growth of property as a legal right .... 280

2. Elements involved in ownership, or dominium . . 282

3. Different forms of ownership ..... 283

4. Possession and its relation to ownership . . . 285

Chapter III. — Subordinate Rights of Ownership — Jura in Re 288

1. General features oi jura in re . . . . - 288

2. Praedial servitudes — rural and urban .... 289

3. Personal servitudes — usufruct, use .... 292

4. Emphyteusis and superficies ...... 294

5. Pignus and hypotheca ....... 297

Chapter IV. — Acquisition of Ownership in Single Things . 302

1. Occupation — its principles and application . . . 303

2. Accession — its character and different forms . . 304

3. Tradition — its requisites and various modes , . . 307

4. Prescription — its origin and principles .... 309

Chapter V. — Acquisition of Ownership by Inheritance . . 313

i. The nature of inheritance ...... 313

■^. The position and functions of the heir .... 315

3. The character and forms of the testament . . . 318

4. Necessary contents of the testament .... 322

5. Modes of invalidating the testament .... 326

6. Inheritance ab intestate ...... 329

7. Legacies, fidei-commissa, and codicils .... 334

Title II. — The Law of Obligations.

Chapter I. — General Character of Obligations

1. Nature of obligation as a personal right

2. The subject-matter of obligations

3. Accessory liability in obligations .

4. Classification of obligations ....

Chapter II. — Obligations arising ex Contractu

1. Essential features of a contract

2. Real contracts, or those made re .

3. Verbal contracts, or those made verbis .

4. Literal contracts, or those made Uteris .

5. Consensual contracts, or those made consensu

6. Obligations arising quasi ex contractu .

341 342

344 348 350

CONTENTS.

7. Dissolution of contract-obligations

404 406 408 410 412 413

417 425

Part First. The Historical Growth Of The

ROMAN LAW.

PERIOD L

FROM THE EARLIEST TIMES TO THE CODIFICATION OF THE TWELVE TABLES.

X

OUTLINES OF ROMAN LAW.

CHAPTER I.

THE ORGANIZATION OF EARLY ROMAN SOCIETY.

In explaining the origin of law, a wide difference of opinion has hitherto separated the purely analytical from the historical school of jurists. The former class of writers have attempted to explain its origin upon principles derived from the study of an advanced and highly complex state of society. Reasoning from facts observed in such a social condition, it is held by these writers that all law derives its origin from the definite sanction of a well-organized state authority. The historical jurists, on the other hand, observe that the state itself is the result of a slow and gradual process of growth. In the actual evolution of human society they discover no sharply defined limit, separating the early community-life — which can hardly be said to have any political character at all — from the fully developed state, furnished with all the means of compulsory power. They also see that early customs, which have scarcely any other authority than that derived from public opinion, pass into well-defined, positive laws only by slight and almost imperceptible gradations.

As a matter of fact, the law and the state grow up side by side ; and in the early stages of society the character of the one is no more definitely fixed than that of the other. A certain sense of duty, embodied in common

4 OUTLINES OF ROMAK LAW.

usages and enforced by general opinion, acts as a rule of civil conduct even before the community has acquired a distinct political consciousness. It is these customs which furnish the content of the early law, which determine the form of early legal processes, and which, in fact, afford a justification for the sanctions which are afterward imposed by a constituted state authority. The germs of law must, therefore, be found in the early life of a people, especially in its common customs and institutions, which tend to give a uniform direction to thought and conduct.

From the intimate relation which exists between legal facts and social progress, it is evident that any thing like unity in the law must depend upon the extent to which society itself has become unified and organized. Hence, the historical sources of the Roman law must be sought not only in the beliefs and customs of the early Roman people, but also in those institutions which tended to give an organic unity to the early Roman state.

The essential features of the early society at Rome were common to all the ancient communities of Italy ; and were, no doubt, derived from the primitive customs of the Aryan race. With the growth of Aryan institutions in Italy, as elsewhere, the early form of social life, founded upon a patriarchal and religious basis, acquired more and more a civil and political character. The patriarchal family, the gens, the curia, the tribe, the city, the state, marked the successive steps in the enlargement and organization of society. As a result of this federative process of growth, in which each new association was rendered sacred and permanent by the worship of common deities, we find the early community at Rome made up of a collection of social groups organized upon principles which were essentially religious in their char- Digitized by Microsoft®

ORGANIZATION OF ROMAN SOCIETY. 5

acter. The performance of certain common rites, called sacra, formed the bond of union in these several groups, and upon their maintenance depended the preservation of the whole social body. Religion and the priestly power which necessarily attended it were the constituent principles of the early Roman state. Bearing these facts in mind, we may be able to understand the organic features that characterized Roman society during the early period which we are now considering.

I. The Early Roman Family. — The elementary unit of Roman society was the family. But this association was far different from the modern family. The special features by which it was marked and the regulations adopted for its continuance grew out of the conditions incident to the observance and perpetuation of a domestic worship. This may be illustrated by the character of the paternal power, the nature of the membership, and the principle of succession within the family.

(i) The power of the household father was derived not simply from his lineal superiority, but from the importance which attached to his priestly character. He was the oldest living male ascendant, and had derived from his predecessor the supervision of the ancestral worship. His authority was clothed with all the sacredness of religion, and he was amenable to no one but the gods for the character of his domestic government. This irresponsible power of the father extended over all the persons and property within the sphere of the patriarchal family.

(2) The membership of the early Roman family was determined, fundamentally, not so much by blood-relationship as by participation in common religious rites. Some who were related by blood — as a married daughter — were excluded from the family. Some who were extraneous by birth — as the wife of the father, and of the son — were admitted within its sacred circle. By marriage, a woman was, in fact, completely transferred from the religion of her father to that of her husband, so that both she and her children became identified with the family of her husband. The father's priestly power could not therefore extend over the offspring of his daughters, who had passed into another worship. It could extend only over the offspring of his sons, who remained within his own domestic religion. On this account, those descendants only who were related through a male line — that is, agnati — were members of a given household. Moreover, to prevent the extinction of the domestic worship, a stranger might be initiated into the rites of family, and being thus " adopted " he was as truly a member of the family as though he were of the same blood. The family, in short, comprised those persons, and only those, who were admitted to the same domestic altar, and who were consequently subject to the same paternal power.

(3) The principle of succession also was dependent upon the essential nature of the family considered as a kin'd of religious corporation. The extinction of the domestic worship was regarded as the greatest of evils ; and hence its preservation was not .made to depend upon the life of the father. At his death the sons immediately under power were obliged to succeed him in the supervision of the sacra J and with the priestly office was transmitted all the responsibility and authority which it involved — that is, the care of the dependent members of the household, and the administration of the patrimonium. Succession was not so much a legal right as a religious duty. The paternal power and the administration of the family estate thus followed the same principle pf descent as that which governed the perpetuation of the sacra.

ORGANIZATION OF ROMAN SOCIETY. 7

2. The Roman Gens.— The union of families thus constituted formed the next higher group — the gens. But this union was not an artificial association. It was rather a natural outgrowth of principles already existing in the family. While the death of the father would tend to separate the domestic group into new families, each subject to its own paternal head, the preservation of a common worship and of a common name would furnish a ground of perpetual union. The family relationship would thus widen with successive generations into the gentile relationship. The special features of the gens may be indicated as follows :

(i) The participation of the ^ij^/Z/^j in common sacred rites {sacra gentilitid) — which were required to be celebrated at a given time and place.

(2) The preservation of a common name — which seems to have been transmitted with nearly the same care as the worship.

(3) The theory of a common descent — which was, however, in great part, a fiction, since the membership'of the gens, like that of the family, was restricted to descent through a male line, and was similarly affected by marriage and adoption.

(4) The obligation of the members to render mutual assistance — which extended to repelling a common enemy, to ransoming a captive in war, to aiding indigent members, and to paying the fines of persons condemned.

(5) The possession of common proprietary rights — which related not only to the altar and burying-place, but also to certain lands, and to the estate of a deceased member in default of more immediate heirs.

(6) A kind of civil organization — which consisted of a chief, who, like the father of the household, assumed religious and judicial functions, and represented the group in its external relations ; and a council made up of the chief men of the gens ; and, perhaps, a more general assembly composed of all the members capable of bearing arms.

3. The Roman Populus.— As we pass to consider the character of the early body politic, we must keep in mind the fact that the ancient Populus Romanus was emphatically a collection of gentes. The state did not, of course, spring into being by a direct union of these groups. It was rather the result of a slow federative process, which passed through several stages of development. For example, a number oi gentes united to form a curia ; a number of curice coalesced to form a tribe ; and three tribes composed the early Roman community. Each one of these intermediate groups had, doubtless, at some time, formed an independent corporate body, united by a common worship and a common civil organization, with its own chief, its own council, and its own general assembly. It was from this gradual coalescence ol gentes that the early Roman populus derived its unity ; and it was from the institutions which were evolved during the federative steps of this union that the early Roman state derived the peculiar features of its religion, government, and law. Besides the state religion, with its common gods, its common priesthood, and its common ceremonial, the organic unity of the people was expressed in three important institutions, derived, it is true, from earlier customs, but now acquiring a more fixed and definite form. These were the Rex, the Senatus, and the Comitia Curiata.

(i) The Roman kingship, like the other features of the early constitution, was derived from the more primitive societies which had united to form the populus. Each tribe, curia, and gens, had been presided over by its own head-man, whose authority was modelled after that of

ORGANIZATION OF ROMAN SOCIETY. 9

the household father. The Roman rex, therefore, representing remotely the father of the family, exercised a sort of patriarchal power over the nation at large. He was at once the high-priest of the national religion, the supreme judge in all private and criminal matters, the commanderin-chief in time of war, and the source of all magisterial power, the inferior officers being subject to his appointment and removal,

(2) Associated with the king was the senate, which evidently grew out of the council of elders existing in the earlier tribes. The riumber of its members corresponded theoretically with the number of gentes. In its functions it was at first merely an advisory body, assisting the king in his administrative duties, and perhaps drawing up proposals to be submitted to the people.

(3) With the growth of the early Roman state, not only did the tribal chieftain grow into the rex, and the tribal council into the senatus j but, still further, the tribal assemblies coalesced to form the Comitia Curiata. Like its prototype, this assembly was composed of all the people capable of bearing arms. In a certain sense it was the source of sovereign power, since it confirmed the appointment of the king by a formal act (lex curiata de imperio) ; and it was called upon to ratify all measures of unusual importance. The highest authority of the early Roman state thus rested with the gentes, organized into curia and incorporated into the Comitia Curiata.

4. The Plebeian Element.— The earliest organization of the state included, as is evident, only those persons who were members of the subordinate groups of which the original populus was composed. Only the members of the ancient patrician gentes could claim the privileges of the citizen. But from various causes, such as conquest and immigration, there grew up by the side lO OUTLINES OF ROMAN LAW.

of the original community an alien population, which was excluded from the worship and the protection of the state. With the growth of this non-citizen class the patricians came to assume more and more the character of an aristocratic body. The antagonism thus established between the two orders was the occasion of a series of efforts to incorporate the plebeians into the patrician state. With every fresh encroachment of the plebeian body the spirit of the ancient society became somewhat modified, and supplementary institutions were established which gave a new form to the political society. The most important of these new institutions were the gentes minores, the centuries, and the local tribes.

(i) The plebeians at first gained a partial admission into the state, not by the formation of new tribes patterned after the patrician tribes — the original plan ascribed by tradition to Tarquinius Priscus — but by the insertion of new gentes into the tribes already existing. Each tribe thus contained a patrician and a plebeian element. The plebeian gentes, which probably included only the more important families, were called gentes minores to distinguish them from the patrician gentes, which were now called the gentes majores.

(2) A more radical revolution was that which is attributed to Servius Tullius. The whole population, including both orders, was reorganized upon a military basis and divided into five classes, or " centuries," which were arranged according to the equipments worn in military service. Since the capacity of a citizen to furnish himself with heavy or light armor depended upon the possession of a greater or less amount of wealth, the newly organized state acquired somewhat the character of a " timocracy." The bestowment of the suffrage upon the body of the people thus constituted created a new assembly, called the Comitia Centuriata. Digitized by Microsoft®

ORGANIZATION OF ROMAN SOCIETY. II

(3) The incorporation of the plebeians was still further aided by the development of an internal organization peculiar to themselves. The principle of this new organization was founded upon territory. There were formed thirty districts, corresponding to the number of the patrician curia. The "local tribes," as these districts are called, possessed to a certain extent the right of local government. They held their own meetings, levied their own taxes, and appointed their own officers. In the process of time — probably not until after the establishment of the Republic — they all met together in one assembly called the Comitia Tributa, where they passed general laws under the name of plebiscita.

5. The Consular or Republican Government.— The paternal power of the king, which was necessarily extended by the previous reforming legislation, acquired a despotic character in the hands of the second Tarquin, leading to a revolution which resulted in the fall of the kingdom and the establishment of the Republic. The chief features of this revolution grew out of the efforts to restrain the royal power by distributing its various functions among several officers, whose term was limited to a fixed period of time. By this means were established the Consulate, the Dictatorship, and the Plebeian Tribunate.

(i) By the Valerian laws (B. C. 508) the royal power was put into commission — that is, entrusted to two officers called Consuls (at first " praetors "), whose term was restricted to a single year. In connection with the Consuls there was also appointed the rex sacrorum, who exercised the priestly functions hitherto belonging to the king. The royal power was still further specialized by the creation of two Questors to be appointed by the people for the purpose of administering the finances.

(2) The power of the royal imperium, thus restricted by the creation of two " annual kings," was temporarily restored to something like its ancient vigor by the appointment, in certain grave emergencies, of a Dictator, who held supreme power for a period of six months. In this way the magisterial power could be centralized and rendered more efficient to meet an impending danger.

(3) The Consulate was practically a patrician office, and was used, generally speaking, for advancing the interests of the patrician body. The continued and aggressive demands of the plebeians for a greater degree of protection finally led to the creation of the Plebeian Tribunate. The person of the Tribune was rendered inviolable, and his chief duty was, by his veto, to protect the interests of the oppressed class.

Such were the main features which marked the progressive organization of Roman society previous to the codification of the Twelve Tables. From the early gentile communities, which had been brought into Italy with the Aryan migration, there had grown up a comparatively well-defined political society, in which the functions of government were distributed between three popular assemblies and a body of religious and civil magistrates. The authority of the early state was exercised primarily in repelling common dangers and in determining the relation of the subordinate groups to each other and to the entire community. The father, it is true, was still the head of the household. The gens also preserved a certain degree of autonomy. And the other groups — the curia and the tribe — did not lose entirely their identity. But all these communities were yet brought into a closer union by the recognition of a common authority and the growth of common political institutions.