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SOHM’S INSTITUTES 

4 


LED LIE 









THE INSTITUTES 

A TEXT- BOOK OF THE HISTORY AND 
SYSTEM OF ROMAN PRIVATE LAW 

BY 

RUDOLPH SOHM 

PROFESSOR OF GERMAN LAW AND ECCLESIASTICAL LAW IN THE 
UNIVERSITY OF LEIPZIG 


TRANSLATED BY 

JAMES CRAWFORD LEDLIE, B.C.L., M.A. 

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW 
AMI) OF LINCOLN COLLEGE, OXFORD 


WITH AN INTRODUCTION BY 
ERWIN GRUEBER, Dr. Jur, M.A. 

OF BALLIOL COLLEGE, OXFORD 

PROFESSOR OF ROMAN LAW AND JURISPRUDENCE IN THE UNIVERSITY OF MUNICH 
LATE DEPUTY REGIUS PROFESSOR OF CIVIL LAW AND READER IN ROMAN LAW 
IN THE UNIVERSITY OF OXFORD 


SECOND EDITION 


OXFORD 

AT THE CLARENDON PRESS 

LONDON AND NEW YORK: HENRY FROWDE 

ALSO SOLD BY 

STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON 

I9OI 



Oxford 

TRINTED AT THE CLARENDON PRESS 

BY HORACE HART, M.A. 

FRINTER TO THE UNIVERSITY 



PREFACE 


The first edition of the English translation of Professor 
Sohm’s ‘Institutes* was based on the fourth edition of the 
German original. The present (the second) edition is based 
on the eighth and ninth German editions, which were pub- 
lished simultaneously about the middle of last year. As 
compared with the earlier editions, the seventh German 
edition contained a large number of alterations and additions, 
the greater part of which were due, directly or indirectly, to 
the passing of the German Civil Code. The latest German 
editions (the eighth and ninth) differ only in details from the 
seventh. The nature and purpose of the principal alterations 
and additions are sufficiently explained in Professor Grueber’s 
Introduction, and in the opening sections of the book itself. 
In this place it will be enough to state briefly where the more 
substantial alterations and additions are to be found. 

§§ 2 to 5 have been rewritten in view of the changes caused 
by the German Civil Code. 

The greater part of § 7 I (The Conception of Law and the 
Legal System) is new. 

In § 8 the portion dealing with legal Interpretation (pp. 30, 
31) has been enlarged. 

§§ 9 and 10 and the concluding part of § 11 (pp. 54> 5o) 
are new. 

The section on ‘ The Beginnings of the Jus Gentium* (§ 13) 
has been altered and enlarged. 

The Praetorian Edict is more fully dealt with than in 
the first English edition. The subject-matter of what was 



vi PREFACE 

formerly § 14 has been distributed (with minor alterations) 
over the present §§ 15 and 17, and a new section (§ 16) has 
been added. 

The history of Roman law during the Empire (§ 16 of the 
former edition) has been amplified, and is now dealt with in 
two sections (§§ 19 and 30), pp. nsff. down to the end of 
§ 19 being new. 

§§ 33 to 38 are new (see Professor Grueber’s Introduction, 
p. xviii). 

The opening part of the section on ‘ The System of Private 
Law ’ (§ 39) has been enlarged. 

There has been a considerable change in the exposition of- 
the Law of Persons. In the former edition the conception 
of a ‘ person,’ and the two kinds of persons (* natural ’ and 
‘juristic’) formed the subject-matter of a single section (§ 30). 
In the present edition, after an introductory section (§ 30), 
the greater part of which is new, separate chapters are de- 
voted to natural and juristic persons respectively. In the 
chapter on natural persons § 31 is, for the most part, new. 
The chapter on juristic persons consists of two sections, one 
of which (§ 37) reproduces (with considerable alterations and 
additions ; see especially the long note on p. 303) the contents 
of the former § 30 so far as it dealt with juristic persons, 
while the other (§ 38) is entirely new. 

In § 40 the last two paragraphs (dealing with ‘ real ’ and 
‘obligatory’ agreements and with ‘negotia mortis causa’ and 
‘ negotia inter vivos ’ respectively) are new. 

The greater part of § 43 I and III is new. 

The account of Representation contained in § 33 of the 
former edition has been considerably modified in the present 
§ 45 - 

§§ 49 and 50 have been revised and enlarged in the light, 
more particularly, of Professor Wlassak’s recent researches 
(v. p. 363, note 10), pp. 355 to 359 being new. 

The part dealing with Execution (§ 55 III) has been 
altered, and note 3 on p. 303 is new. 

§ 60 is, for the most part, new. 



PREFACE 


vii 


The section on Traditio (§ 63 I) has been revised and 
enlarged, the last paragraph (p. 33a) and note 1 being en- 
tirely new. 

In the section on Possession (§ 67) notes 1 and 2 are new, 
and note 5 (on precarium) has been enlarged. 

The opening part of the section (§ 7a) on Pledges (pp. 372, 
373) has been altered. 

The section on* The Conception of an Obligation ’ (§ 73) has 
been enlarged. 

The Appendix to § 75 is new. 

The section on .Literal Contracts (§81) has been rewritten, 
the author having abandoned the theory set forth in the third 
..and fourth German editions (and in the first English edition) 
in favour of the older theory of Keller. Note 3 on p. 414 
is new. 

The observations on Sale (§ 82) have been somewhat 
altered and enlarged, notes 1 and 2, and the last paragraph on 
p. 418, being new. 

In the section on Marriage (§ 92) the paragraph beginning 
*At first marriages’ (p. 474) is new. 

The section on donationes propter nuptias (§ 96) has been 
altered. 

There are changes in the section on the ‘Termination of 
Marriage’ (§ 97). Note 1 (p. 495), which is new, explains 
the reason for these changes. 

The account of usucapio pro herede (formerly in § 97, now 
. in § no, pp. 540, 541) has been rewritten. 

In § 1 14 the paragraph on Collatio (p. 590) is new. 

In addition to the changes enumerated, the present edition 
contains several references to, and extracts from, the German 
Civil Code. 

In this, as in the earlier edition, my sole object has been 
to produce a faithful translation of Professor Sohm’s treatise. 
I have accordingly adhered in every particular to the arrange- 
ment adopted in the original. The English text follows the 
German text as closely as possible, and the footnotes are all 
(with the exception of those indicated by asterisks) the author’s 



viii 


PREFACE 


own. The renderings of certain terms in the original, for 
which (so far as I am aware) no recognized English equi- 
valents exist — e. g. * obligatory right ’ (‘ Forderungsrecht ’ ; see 
note on p. 336), ‘ petitory action ’ (‘ pctitorische Klage ’), ‘ heir by 
necessity’ (‘Noterbe’), and others — necessarily sound somewhat 
strange and unfamiliar. The objection to the use of more 
familiar terms (if any such can be found) is that it often tends 
to import into the translation associations which are quite 
foreign to the original. In the new §§ 37 and 38 ‘Verein’ 
has been rendered by * society.’ A perusal of these sections 
will, I think, show that the term chosen, though open to 
objection, is preferable to either * company’ or ‘ association.’ 

In preparing both the first and the second edition of this 
translation I have had the valuable assistance of Professor 
. Gruebcr, of Munich. I am under a deep obligation to him 
for all the trouble he has taken in revising the whole MS. of 
the first edition, and the MS. of the new and altered portions 
of the second edition. The text as it now stands has been 
approved by Professor Grueber. There cannot, I think, be 
a better guarantee for its accuracy as a translation. 

I have also to thank Sir William Markby and Mr. E. A. 
Whittuck for many useful suggestions made during the pro- 
gress of the first edition, and Mr. E. A. Whittuck for further 
help given in the earlier stages of the present edition. 

J. C. L. 

Cobham, Surrey, 

JVov., 1900 . 



CONTENTS 

PACK 

List of Abbreviations xiv 

Introduction by Professor E. Grueber xv 

INTRODUCTION \ 

CHAPTER I. 

The Nature of the Subject. 

§ i. The Reception of Roman Law in Germany i 

§ 2. The Law of the Pandects and German Private Law .... 2 

§ 3. The Law of the Pandects and Codified Law 5 

§ 4. The German Civil Code 7 

§ 5. The Nature of the Subject to be dealt with . • . . . . . 9 

CHAPTER II. 

Sources and Fundamental Conceptions. 

§ 6. The Sources of Roman Law 16 

Appendix. The Manuscripts of the Corpus Juris . . .19 

§ 7. Fundamental Conceptions 23 

§ 8. Jurisprudence 29 

PART I 

THE HISTORY OF ROMAN LAW. 

Introduction, 

§ 9. The Quiritary Law . . . . 36 

§ 10. The Development of the Civil Law in its Principal Stages . . . 45 



X 


CONTENTS 


CHAPTER I. 

Roman Law as the Law of the City of Rome. 

PAGE 

§ii. The Twelve Tables 50 

§12. The Interpretatio 55 

§ 13. The Beginnings of the Jus Gentium 66 

CHAPTER II. 

Roman Law as the Law of the World (The Empire). 

§ 14. Jus Civile and Jus Gentium 7 2 

§ 15. The Praetorian Edict 7 ^ 

§ 16. The Dual System of Law 83 

§ 17. The Edictum Hadrianum 87 

§ 18. Roman Jurisprudence 91 

§ 19. The Republican Empire and the Imperial Administration of Justice . 109 

§ 20. The Monarchical Empire and the Imperial Legislation . . .116 

§ 21. Codification ... 120 

§ 2a. The Result 129 

CHAPTER III. 

The Subsequent Fate of Roman Law. 

§ 23. Byzantium 136 

§ 24. Italy 137 

§ 25. The Glossators 139 

§ 26. The Corpus Juris Canonici 142 

§ 27. The Commentators 144 

§ 28. The Law of the Pandects in Germany 155 

PART II. 

THE SYSTEM OF ROMAN PRIVATE LAW. 

§ 29. The System of Private Law 163 

BOOK I. 

THE LAW OF PERSONS. 

§ 30. The Conception of a Person and the Kinds thereof .... 167 

CHAPTER I. 

Natural Persons. 

§ 3 1'. Introduction 170 

§ 32. Slavery 171 

Note. Relationships akin to Slavery 178 



CONTENTS xi 

PAGE 

§ 33. Cives and Peregrini 1 79 

§ 34. Paterfamilias and Filiusfamilias 184 

$ 35. Capitis Dcminutio *86 

§ 36. Existimationis Minutio J 9 ° 


CHAPTER II. 

J uristic Persons . 

§ 37. The Nature of a Juristic Person *95 

§ 38. Societies and Foundations 205 

BOOK II. 

THE LA W OF PROPER TV. 


CHAPTER I. 

General Part. 

§ 39. Introduction 215 

I. JURISTIC ACTS. 

§ 40. The Conception of a Juristic Act and the Kinds thereof . . .215 

§ 41. Requisites of a Juristic Act 217 

§ 42. Motive, as affecting Juristic Acts 220 

§ 43. The Qualifications of a Juristic Act 224 

§ 44. Capacity of Action 228 

§ 45. Representation 231 

II. THE PROTECTION OF RIGHTS (LAW OF PROCEDURE). 

§ 46. Introduction 236 

§ 47. Roman Civil Procedure 237 

§ 48. The Legis Actio 241 

$ 49. The Formulary Procedu re 252 

§ 50. The Formula 267 

§ 51. Intentio and Actio 271 

§ 52. The System of Actions 277 


§ 53. Condemnatio and Exceptio 281 

§ 54. Actio Perpetua and Actio Temporalis. Tempus Utile . . . 298 

§ 55* The Effect of an Action at Law 301 

$ 56. The Procedure Extra Ordinem. Literd^ta^ jn I n tegru n ^ Resti^ o . 306 
§ 57, The Procedure of the Later Empire . , . , . . „ 313 



xii 


CONTENTS 


CHAPTER II. 

The Law of Things. 

PAGE 

§ 58. The Conception of a Thing . . 319 

§ 59. The Different Kinds of Things 320 

§ 60. Real Rights 3 2 5 

I. OWNERSHIP. 

§ 61. The Conception of Ownership 327 

§ 62. The Acqnisitioft, gf.Qwaership. Historical Introduction . . .327 

§ 63. %1 fE^Acquisition of Ownership. A. Derivative Acquisition . . . 330 

§ 64. The Acquisition of Ownership. B. Original Acquisition . . . 335 

Note. The Different Unions of Things 345 

§ 65. The Protection of Ownership 346 

§ 66. The Protection of Uswgpio Possession 347 

§ 67. The Protection of Juristic Possession. Possession and Ownership . 350 

II. JURA IN RE ALIENA. 

§ 6S. Jura in Re AUena.in. general 357 

§ 69. SeooDuks 358 

§ 70. Emphyteusis 368 

§71. Superficies 371 

§ 72. Pledge 372 

CHAPTER III. 

The Law of Obligations. 

I. THE CONCEPTION AND CONTENTS OF AN OBLIGATION. 

§ 73. The Conception of an Obligation (Obligatory Right) .... 379 

§ 7 j . Plurality of Debtors and Creditors 380 

§ 75. The Contents of an Obligation 386 

Appendix 387 

§ 76. Stricti Juris Negotia and Bonae Fidci Negotia 388 

II. THE MODES IN WHICH OBLIGATIONS ARISE. 

§ 77. Contracts and Delicts 390 

A. Contractual Obligations . 

§ 78. Introduction 3^ 

§ 79. Real Contracts 394 

§ 80. The Verbal Contract 401 

§81. The Literal Contract 410 

§ 82. Consensual Contracts 



CONTENTS xiii 

PAGE 

§ 83. Quasi-Contracts 423 

§ 84. Facts 429 

B. Delictual Obligations . 

§ 85. The Private Delicts of Roman Law 432 

§ 86. Quasi-Delicts 439 

III. TRANSFER AND EXTINCTION OF OBLIGATIONS. 

§ 87. Transfer of Obligations 440 

§ 88. Liability for Debts contracted by Another . . .... . 444 

§ 89. R "inction of Obligations 449 

BOOK III. 

FAMILY LAW AND THE LAW OF INHERITANCE. 

CHAPTER I. 

Family Law. 

§ 90. Introduction 465 

§ 91. The Family 466 

I. THE LAW OF MARRIAGE. 

§ 92. Marriage and the Modes of contracting it 470 

§ 93. Marital Power 477 

§ 94. The Proprietary Relations between Husband and Wife . . . 480 

§ 95 - Jias 4®4 

§ 9 * 5 - Dodjfejriyite^NnBtias 49a 

§ 97. The Termination of Marriage 494 

§ 98. Second Marriages 497 

§ 99. Celibacy and Childlessness 497 

II. PATRIA. POTESTAS. 

§ 100. The Modes in which Patria Potestas originates 498 

§ 101. The Effect of Patria Potestas . . 502 

§ 102. The Extinction of ?«tria Potestas 506 

III. GUA RDIANSHIP. 

§ 103. The Different Kinds of Guardianship 509 

§ 104. The Appointment of Guardians 513 

§105. The Effect of the Guardianship ....... 517 

$ 106. Termination of Guardianship 520 

§ 107. The State as Guardian-in-Chief 521 



xiv 


CONTENTS 


CHAPTER II. 

The Law of Inheritance. 

PAGE 

§ 108. Hereditary Succession j its Foundation and Conception . . . 523 

$ 109. Delatio and Acquisitio of the Hereditas 528 

§ no. Hereditas and Bonomm Possessio ....... 538 

§ hi. Intestate Succession 554 

§112. Testamentary Succession 566 

§113. Succession by Necessity 578 

§ 1 14. The Effect of the Vesting of an Inheritance 587 

§ 1 15. Bequests 593 

§ 1 16. Restrictions on Bequests 600 

§ 1 17. Universal Fideicommissa 602 

§ 1 18. Mortis causa capio 606 

Index 6 °9 


EXPLANATION OF SOME ABBREVIATIONS 

IN THE REFERENCES TO THE GERMAN AUTHORITIES. 

Abt. «■ Abteilung. 

R. =■• Recht. 

G. = Geschichte. 

RG. ■■ Rechtsgeschichte. 

RW. - Rechtswissenschaft. 

ZS. = Zeitschrift. 

Sav. St. ■* Savigny-Stiftung. 



INTRODUCTION 


In view of the enactment of the German Civil Code, which came 
into force on January i, 1900, Professor Sohm has found it necessary 
to make extensive alterations in his Institutes of Roman Law , and to 
add a considerable amount of new matter. In order that English 
readers may properly understand the nature and purpose of the 
principal alterations and additions, it will be desirable to give a short 
account of the past and present systems of legal education in 
Germany. 

There is a considerable difference between the English and the 
German systems of academic legal instruction. The practice of the 
English Universities has been to confine the teaching of law to a com- 
paratively limited number of selected subjects. The German system 
of academic instruction, on the other hand, has always embraced the 
whole range of law : Private Law, the various departments of Public 
Law, viz. Civil Procedure and Bankruptcy, Criminal Law, Criminal 
Procedure, Constitutional (and Administrative) Law, as well as Inter- 
* national Law and Ecclesiastical Law. The student is thus furnished 
with all the legal knowledge he requires in the exercise of his pro- 
fession. But whereas each of the several departments of Public 
Law was comprehensively dealt with in a special course of lectures 
of its own, Private Law (i. e. the Law of Property and the Law of 
Family Relations) was not uniformly dealt with in a single course of 
lectures, but formed the subject-matter of two distinct courses, both 
covering the same ground, viz. the lectures on * the Pandects ’ and 
the lectures on * German Private Law ’ (* Deutsches Privatrecht ’). 
This twofold division was connected with the twofold origin of the 

SOHM : LBDLIB b 



XVI 


INTRODUCTION 


private law of Germany. The lectures on ‘ the Pandects were con- 
cerned with Roman law in the form in which it had been 1 received 1 
as the Common Law of Germany. The lectures on ‘German 
Private Law* were concerned with those institutions of native 
German origin which had remained in force, to a greater or less 
extent, all over the country, in spite of the reception of Roman law, 
and they frequently included an account of that special branch of 
private law which is concerned with mercantile relations and bills of 
exchange (‘ Handelsrecht 1 and ‘ Wechselrecht ’). These two courses 
of lectures supplied, until within quite recent times, the foundation 
for the entire teaching of Private Law, not only in those parts of 
Germany where the law of the Pandects was actually in force as the 
common law of the land, but also in the territories where the law 
of the Pandects had been entirely superseded by codes of modern 
origin 1 . In these latter territories the codified private law was 
treated in the same way as the ‘ particular ’ private law of any other 
part of Germany, i. e. it was set forth, in a condensed form, in short 
supplementary lectures founded on the detailed instruction pre- 
viously imparted in the lectures on the common (Pandect) law. 

The object of the lectures on Private and Public Law hitherto 
mentioned was to explain the law actually in force in Germany. 
The German curriculum has, however, always included certain other 
lectures which are merely designed to prepare the mind of the 
student for the several branches of legal science. Among the 
lectures of this kind, those on what is called ‘Juristischc Encyklo- 
padie* (and ‘ Methodologie ’) must be mentioned in the first place. 
They were intended (like the English lectures on General Juris- 
prudence) to explain the fundamental legal conceptions, and the 
leading classifications and sub-divisions of law, and thus to supply 
the beginner with a general introduction to all the departments of 
legal study. The lectures on the ‘ Institutes ’ and on the ‘History 
of Roman Law/ which were also of a preparatory character, had 


1 Thus the Prussian Landrecht of 
1794 superseded the law of the Pandects 
in the dd provinces of Prussia, and the 
i'reiich Civil Code of 1805 and the 


Saxon Civil Code of 1 863 did the same 
for the countries on the left bank of the 
Kliine and for the Kingdom of Saxony 
ri-H|)cctivcIy. 



INTRODUCTION 


xvii 


special reference to the study of the Pandects. The Institutes gave 
the student a comprehensive and systematic account of pure Roman 
private law (at the time of Justinian), thus enabling him to under- 
stand the details of the modified Roman law as expounded in the 
Pandects. The lectures on the ‘History of Roman Law' were 
devoted to an account of the historical development of the private 
law of Rome. Lastly, the lectures on the ‘ History of German Law * 
performed an analogous function in regard to German Private Law, 
their main (though not exclusive) object being to prepare the 
beginner for the study of German Private Law. 

The coming into force of a Civil Code for the whole German 
Empire has necessitated far-reaching changes in the system of legal 
education. The effect of the Code is to establish a uniform body of 
private law for the entire German Empire, subject only to such 
special reservations as are made by the * Introductory Statute 7 (‘ Ein- 
fuhrungsgesetz *) or the Code itself in favour of the ‘ particular 1 laws 
of the several Federal States. This new ‘German Civil Law* (‘das 
deutsche biirgerliche Recta*) has naturally become the pivot and 
foundation of all legal instruction. The place formerly occupied by 
the ‘Pandects* and by ‘German Private Law* in the academic 
teaching of law is now assigned to German Civil Law. The private 
law of the separate States (the ‘particular* private law) has been 
reduced to a subordinate position, and can accordingly only be dealt 
with in lectures supplementing those on the law of the German Civil 
Code (the Imperial private law), unless indeed — as is not infrequently 
the case — it is expounded in immediate connexion with the teaching 
of the German Civil Law. 

German Civil Law having become the centre of academic legal 
instruction, it became necessary to determine what lectures would best 
serve as a preparation for its detailed study. The law of the Civil 
Code being partly of Roman and partly of German origin, there 
could be no hesitation in retaining the lectures on the History of 
Roman and German Law. On the other hand, it was necessary for 
the purpose of supplying a foundation for the study of the institutions 
of the Civil Code which are based on German law, to replace the 
exhaustive lectures on ‘ German Private Law * by a mere outline of 

b % 



xviii 


INTRODUCTION 


the subject, called the 4 Elements of German Private Law* (‘Grundziige 
des deutschen Privatrechts ’), which serve, at the same time, as an 
introduction to the study of the ‘particular' private law still in force 
in the several German States. But it was quite impracticable to 
retain the two systematic courses of lectures on the * Institutes ’ and 
the ‘ Pandects * by way of introduction to the study of those parts 
of the Code which are of Roman origin. It was therefore decided 
by the several Federal governments to replace those two courses 
by a single course called ‘ The System of Roman Private Law.' The 
lectures on ‘The System of Roman Private Law' will accordingly 
combine the special advantages previously derived from the lectures 
on the Institutes and from those on the Pandects. The new course 
being of an introductory character, it will have this feature in 
common with the Institutes that it will be confined to the elements 
of Roman Private Law, though the fundamental conceptions and 
leading ideas of Roman law will be explained with some fullness. 
On the other hand, it will take over from the Pandects the function 
of explaining, at the same time, the modified form in which Roman 
law was in force as the common law of Germany. And thirdly, in 
view of its special bearing on the teaching of the German Civil 
Code, it will be highly desirable in the new course to indicate, 
however briefly, the shape which the institutions of Roman origin 
contained in the Code have finally assumed. 

These are the requirements which Professor Sohm has sought to 
meet in preparing the latest (the seventh, eighth, and ninth) editions 
of his Institutes . They are sufficient in themselves to account for 
a large proportion of the alterations and additions. The learned 
author has, however, still further increased the size of his book by 
considerably enlarging thjp historical portion. His object has been 
to afford the student a fuller insight into the historical development 
of Roman law. He has accordingly added to the ‘System of 
Roman Law 9 what is practically an abridgei * History of Roman 
Law/ This accounts for the insertion of several new sections (c.g. 
§§ 9 and io) and of a new chapter (§§ 23-28) dealing with the fate 
of Roman law in the East and West after the codification of 
Justinian, and more particularly with the literary history of the 



INTRODUCTION 


xix 


Corpus juris civilis. The author has obviously aimed at furnishing 
the student, within the compass of a single book, with all the know- 
ledge of Roman law he requires under the new system of legal 
instruction. In spite of these changes, however, Professor Sohm 
does not mean to alter the fundamental character of his work : it is 
still designed as an introduction to the study of Private Law. The 
original title of Institutes has accordingly been retained, but with the 
addition of the words, ‘ A Text-book of the History and System of 
Roman Private Law.* The book is, in short, framed as an insti- 
tutional treatise on Roman law. 

Besides the lectures on Roman and German law, the new regula- 
tions require an introductory course of lectures, called ‘ Einfiihrung 
in die Rechtswissenschaft ’ (Introduction to the Science of Law). 
These lectures can have no other object than to serve as a general 
preparation for all the various branches of legal study. Their 
subject-matter is therefore identical with that of the above-mentioned 
lectures on * Encyklopadie 9 and * Methodologies which are designed 
to furnish the beginner with everything he may require in the way of 
a preliminary training, by explaining fundamental legal conceptions, 
by giving him a survey of the entire field of law, and by instructing 
him as to the method he should pursue in order to obtain a mastery 
of the science with which he is concerned. 

The present system of legal education accordingly provides for 
three series of lectures of a preparatory character, viz. (i) Intro- 
duction to the Science of Law; (2) History and System of Roman 
Private Law; and (3) History of German Law and the Elements of 
German Private Law. 

From the preparatory lectures we have to distinguish those which 
set forth the various branches of the law actually in force in Germany. 
These are the lectures on (1) German Civil Law (as supplemented 
by the * particular 9 private law of the several States); (2) Mercantile 
Law and Bills of Exchange 2 ; (3) Civil Procedure; (4) Bankruptcy 8 ; 

9 These subjects are dealt with in a 3 The law of Bankruptcy is thus 
separate course of lectures, though (as treated separately, though it is, in the 
already stated, p. xvi) they really only main, merely a branch of the law of 
form a special branch of private law. civil procedure. 



XX 


INTRODUCTION 


(5) Criminal Law; (6) Criminal Procedure; ( 7 ) Constitutional and 
Administrative Law ; (8) International Law ; and (9) Ecclesiastical 
Law. 

Since the enactment of the German Civil Code every German 
University imparts systematic instruction in each of the twelve 
subjects just enumerated, viz. in the subjects of the three intro- 
ductory lectures and in those of the nine other lectures *. The 
student is further recommended to attend certain other lectures, the 
object of which is, on the one hand, to give him a deeper insight 
into the essential character of legal science — such, for example, is 
the object of the lectures on the Philosophy of Law — and, on the 
other hand, to familiarize him with some extra-legal topics— such as 
Political Economy and Forensic Medicine — a knowledge of which is 
indispensable in the exercise of his calling. 

This brief survey may suffice to explain the position assigned to 
Roman Law in the present system of legal education, and the 
function which Professor Sohm’s treatise, in its altered form, is 
intended to fulfil in the new order of academic instruction. It 
is obvious that the new system involves a considerable restriction of 
the study of Roman law. In what way then — it may be asked— can 
the book in its present shape be said to answer the requirements of 
legal education in England ? 

There is every reason for holding that Professor Sohm’s treatise in 
this its latest form will be no less useful to English students than it 


4 The new Encyklop'ddic der R edits- 
ivissenschaft , edited by Professor Birk- 
meyer, of the University of Munich 
(Berlin, 1901), consists of a collection 
of comprehensive treatises, each of which 
deals with one of the twelve subjects 
mentioned in the text. The object of 
this work is to present a summary view 
of the whole law actually in force in 
UcMriany since January 1, 1900. The 
Encyclopaedia will serve the purpose 
which has hitherto been served by Franz 
von lloitzuidorff’s Encyklopiulie der 
Redilswiszemchaft (see the present 
writer’s article in the Law Quarterly 
Review, vol. i, pp. 62-79). The article 


entitled * Einftihrung in die Kcchts- 
wissenschaft,’ which the same writer 
has contributed to Birkmeycr’s Encyclo- 
paedia. contains a fuller account of the 
classifications of law and of the several 
branches of legal study than can be con- 
veniently supplied within the limits of 
this Introduction. The tenth edition of 
the late Professor Arndt’s Jurist is, he 
Eticyklopadic uttd Mcthodoiogie, which 
is about to be published under the editor- 
ship of the present writer, will deal with 
the subject ni methodology, with special 
reference to the new order of legal 
studies in (iermany. 



INTRODUCTION 


xxi 


has proved to be in the form in which it was originally presented to 
English readers. 

In the first place, it is clear that the additions to the historical 
section of the work will be of the greatest interest to all students of 
Roman -law. As it now stands, the historical portion embodies 
a concise but complete history of Roman law. An acquaintance 
with the history of the Corpus juris in the Middle Ages and in 
modern times is particularly important, because, without it, it is 
impossible property to appreciate the significance which Roman law 
possesses for modern Europe. The fourth German edition of the 
Institutes (on which the first English edition was based) did not deal 
with this period of the history of Roman law. And it was with 
a view to furnishing the necessary information on this subject that 
the present writer included in his Introductory Essay prefixed to the 
first English edition (pp. xiii-xxviii) a brief account of the later 
history of the Corpus juris, which is no less intimately associated 
with the influence exercised by Roman law in England than it is 
with the influence which Roman law has exercised elsewhere. 

And this brings us to the second, the practical aspect of the 
question we have raised. The influence of Roman law on the law 
of England is by no means so insignificant as it is sometimes 
assumed to be R . ‘Texts of Roman law/ as Sir Henry Maine says, 
‘have been worked at all points into the foundations of English 
jurisprudence V The earliest treatises on the English Common Law 
(dating from the twelfth and thirteenth centuries) are the direct 
outcome of the study of Roman law in England. In addition to 
this, certain courts of limited jurisdiction, such as the Ecclesiastical 
and Admiralty Courts, have always recognized the binding force of 
Roman law. The development of Equity again, which has had 
such far-reaching effects on the modern law of England, was largely 
influenced by Roman law. And the importance of Roman law for 

* See the present writer’s Introductory in chapters 5 and 6 ; Maine’s Essay on 
Essay just mentioned, pp. xxviii ff., and ‘ Roman Law and Legal Education ’ in 
his article in the Zeitschrift fiir ver- his Lectures on V Wage- Communities in 

gleichende Rechtswissenschaft , vol. xi, the East and West, &c. 
p. 253 ff. ; Pollock and Maitland’s Ilis- 6 Maine, Village-Communities (4th 
tory of English Law , book i, chapter 4, ed.), p, 332. 

and the account of Glanvill and Bracton 



xxii 


INTRODUCTION 


English students becomes still more apparent if we remember, on 
the one hand, that Roman law is actually the law of the land in 
large portions of the British Empire, and, on the other hand, that 
the multifariousness of international relations may at any time make 
it the duty of an English Court to decide a case in accordance with 
a legal system founded on Roman law. lastly, it should be borne 
in mind that the theory of Roman law furnishes the only common 
ground on which the civilized nations of the world can build up 
a body of fixed rules for regulating the ever-multiplying international 
relations of modern life. It is hardly necessary to point out that 
what the practical English lawyer has to take into account in every 
case is not pure Roman law, but Roman law in its modified form, as 
adapted to the requirements of the present day. Now the object of 
the majority of the additions to the systematic part of Professor 
Sohm’s work is (as already stated) to explain the changes which 
Roman law has undergone in modern times. It is to be hoped, 
therefore, that an English version of the latest (double) edition of 
the Institutes will be at least as valuable to English students of law 
as the English version of the earlier edition has evidently proved 
to be. 


ERWIN (1RUEBER. 



THE INSTITUTES 


INTRODUCTION 


CHAPTER I. 

The Nature ok the Subject. 

§ i. The Reception of Roman Lazo in Germany. 

The great movement in the history of European civilization which § 1. 
.substituted the revived spirit of antiquity for mediaeval conceptions 
and ideas, was consummated in Germany during the sixteenth cen- 
tury. The movement had originated in Italy, and th$ sixteenth 
century witnessed its triumphant spread over the whole of Western 
Europe. Its influence made itself felt in every sphere. Gothic 
architecture made way for the style of the Renaissance, scholasticism 
was superseded by humanism. Nor did German law escape being 
swept along by the mighty current of the new movement. For the 
national law of Germany had no strong central power to shield and 
develop it, and could thus offer but imperfect resistance to the inroad 
of the new ideas. What had been gradually preparing at the close 
of the Middle Ages was accomplished in the course of the sixteenth 
century, and Roman law was definitely 1 received 5 in Germany. 

From that time onwards Roman law has been an ingredient in the 
law prevailing in Germany, and the entire history of the latter has 
moved, ever since the sixteenth century, on the lines of a continuous 
interaction between the received Roman law and the indigenous 
German law. 


SOHM : LEDLIE 


15 



2 


THE INSTITUTES 


§ l. Great, however, as was the material success achieved by Roman 
law, it was even less remarkable than the effect produced on the 
scientific thought of Germany. Mediaeval law was not to be found 
in books. It lived entirely in the memories of men. A science of 
law was, therefore, a thing unknown in Germany. Thus, when 
Roman jurisprudence, as contained and set forth in the Corpus juris 
civilis, made its way across the Alps, it found, so to speak, an empty 
and vacant territory, which it was able to occupy forthwith without 
the slightest resistance. German jurisprudence, in fact, dates from 
the sixteenth century, i. e. its existence commences with, and is due 
to, the reception of Roman law. As the child of Roman juris- 
prudence it was but natural that, from the very outset, German 
jurisprudence should bear the impress of its origin. The marvellous 
sense of form which characterizes all antique art manifests itself 
clearly in the symmetry, perspicuity, and convincing force of the 
scientific conceptions of ancient jurisprudence. The natural result, 
therefore, was that no sooner had Roman law made its first appear- 
ance in Germany, than its own inherent virtues ensured it a rapid 
and easy victory. Roman jurisprudence came, saw, and conquered. 
From the sixteenth century to the present day it has guided and 
determined all juristic thought in Germany. And this is the reason 
why, in every plan of legal education in Germany, the first place is 
assigned to the study of Roman law. 

Within the whole field of law, ancient jurisprudence gained its 
most conspicuous successes in the domain of ‘private law’ which 
means, primarily, the law of proprietary relations, including owner 
ship and obligations. To this day the science of Roman private law 
forms a fundamental part of German jurisprudence. Hence tlu 
Institutes are still concerned with private law in order to supply the 
beginner with a first introduction to the science with which he has 
to deal. 

§ 2 . The Law of the Pandects and German Private Law . 

§ 2 . The effect of the ‘ reception * in the sixteenth century was to make 
Roman private law the common private law of Germany. Roman 
private law obtained the force of law for the entire German Empire 



THE NATURE OF THE SUBJECT 


3 


It came to be known in Germany by the name of the ‘ Law of the § 2. 
Pandects/ because the ‘Digesta seu Pandectae * (infra, § 6) formed the 
principal portion of the Corpus juris civilis. The ‘ Law of the Pan- 
dects/ however, did not coincide in all respects with the law of the 
Corpus juris, the 1 pure ’ private law of Rome. It would obviously 
have been impossible to apply the Roman law of Justinian (which 
was the Roman law of the sixth century), a thousand years later, 
without change, to entirely new circumstances. 

It was at the hands of the Italian jurists (infra, § 28) that Germany 
received the law of the Corpus juris, but it was the law of the Corpus 
juris modified and developed by the mediaeval legislation of the 
Church (the Canon law of the Corpus juris canonici), and by the 
theory and practice of the Italian lawyers. The law thus received 
was still further modified and developed in Germany itself by 
Imperial legislation and by the theory and practice of the German 
lawyers. The law of the Pandects, then, as the positive common law 
of Germany, was Roman private law adapted to German conditions, 
and the theory of the Pandect law was accordingly the theory of 
Roman private law in the altered form which it had assumed on 
becoming the * modern ' common private law of Germany. 

The victory of the Pandect law did not, however, result in the 
complete extinction of the German private law of indigenous 
growth which had established itself during the Middle Ages in the 
shape of numerous local laws, city laws, and territorial laws. A large 
body of legal rules of native origin remained in force even after the 
reception of Roman law, but only as the law of particular portions of 
Germany, whether of localities or cities or territories. Thus the 
law of the Pandects, as the common law of Germany, was merely 
subsidiary, supplementing the local laws so far as the latter were 
defective, but yielding to any conflicting provisions which they con- 
tained. Hence the saying, ‘ City law breaks territorial law, territorial 
law breaks common law/ What is more, the German jurists en- 
grafted upon the common Pandect law itself not only a number of 
separate legal rules of native origin, but whole institutions— such as 
‘family trusts/ charges on land (Reallasten), agreements concerning 
the institution of an heir (Erbvertrage)— which had sprung from the 

B % 



4 


THE INSTITUTES 


§ 2 . indigenous German law and were entirely foreign to Roman law. 
A substantial portion of the native German private law thus held its 
ground notwithstanding the reception of the foreign system— for the 
most part, it is true, in the shape of special local laws, but in a few 
instances as part of the common law of Germany. 

The private law which had sprung from German soil— German 
private law in the fullest sense of the word — had obviously as much 
claim to scientific treatment as the law of the Pandects. The latter, 
however, continued to engage the almost exclusive attention of 
students of private law in Germany down to the eighteenth century. 
But from the eighteenth century onwards ‘ German Private 1 aw ’ 
(Deutsches Privatrecht)— as the new branch of legal study came to be 
called— definitely took its place in the legal curriculum side by side 
with the Pandect law. As distinguished from the books on the 
Pandects, which were concerned with the ‘received ’ private law of 
foreign origin, the books on ‘ German Private I. aw ’ were concerned 
with the private law of Germany so far as it was of native origin. 
The subject-matter of ‘ German Private Law ’ accordingly comprised 
both the indigenous portions of the common private law of Germany - 
that is, besides the institutions already mentioned (family trusts, 
charges on land, and ‘ Erbvertrage,’ supra, p. 3 ), the feudal law of the 
Lombards which had likewise been ‘ received ’—and further those 
portions of the native law which had survived the reception in the 
shape of ‘particular’ laws. Inasmuch, however, a*s the native German 
law found its principal stay and refuge in these particular laws, ‘Ger- 
man Private Law ’ became pre-eminently the general science of the 
various particular laws of Germany, as opposed to the ‘ Law of the 
Pandects,’ which was the science of the common law of Germany. 

Thus the private law of Germany was dealt with in two distinct 
branches of study corresponding to its twofold origin : first, in the 
‘ Law of the Pandects,’ and secondly, in ‘German Private I aw,' the 
former having for its subject the common private law of Roman origin, 
the latter the indigenous private law, existing for the most part only 
in the shape of ‘particular’ laws. Of the two branches the law of 
the Pandects was the older, the larger, and the more powerful. But 
the younger branch grew steadily in importance ; inwardly it became 



THE NATURE OF THE SUBJECT 


5 


less and less dependent on its older rival, and as a result its outward § 2. 
power increased, so that it gradually became the stronghold of 
national legal ideas as against the claims of the foreign ideas 
imported from Roman law. 

§ 3 . The Law of the Pandects and Codified Law . 

The law of the Pandects had established itself in Germany as § 3. 
being the common private law of the so-called ‘ Holy Roman Empire 
of the German Nation/ The decline of the ancient Empire neces- 
sarily involved a decline of the authority attaching to the law of the 
Pandects. 

From the eighteenth century onwards the initiative in regard to 
legislation was taken by the governments of the separate German 
states. Some of the legislatures, more especially those of the smaller 
states, contented themselves with legislating on single topics, that is, 
they confined themselves to working out the 4 particular ’ law of their 
respective states, leaving the subsidiary force of the common Pandect 
law within their territories untouched. In the larger states, however, 
the idea of a codification struck root, the idea, in other words, of 
recasting afresh the law as a whole, private law, criminal law, and 
the law of procedure. The formal effect of a codification is to set 
aside the existing law in its entirety, as far as the territory affected 
is concerned, and to substitute for all the laws transmitted from the 
past a single new code. The condition of the private law of Ger- 
many called for a remedy of this kind. The dualism of the private 
la>v, the antithesis between the commonRoman law and the particular 
German law — which latter was of the most heterogeneous character — 
could only be removed by means of a new code which should fuse 
Roman and German law into one complete whole. But as long as 
no strong German Empire was forthcoming, the necessary momentum 
for such an achievement was lacking, and the task of codification 
therefore devolved on the separate legislatures of the larger German 
states. Thus it came about that the law was codified for consider- 
able parts of Germany— the private law, as well as the criminal law 
and the law of procedure— and within these parts the law of the 
Pandects ceased henceforth to have the force of law. 



6 


THE INSTITUTES 


§ 3. The whole of Germany was accordingly divided into two great 
territories corresponding to the form in which its private law 
presented itself. This division continued till January i, 1900. 

The territory of the law of the Pandects, or (as it was also called) 
the territory of the common law, was that portion of Germany in 
which Roman private law— in the form in which it had obtained 
recognition as the common law of Germany — maintained its formal 
validity and continued to be enforced, except where expressly altered 
by distinct local laws. This territory embraced Holstein with some 
parts of Schleswig 1 , the Hanse towns, Lauenburg, Mecklenburg, 
part of Hither Pomerania {Neuvorpommern) and Riigen, the 
greater part of Hanover, Oldenburg (except the principality of 
Birkenfeld), Brunswick, the Thuringian duchies, Lippe-Dctmold, 
Schaumburg-Lippe, Waldeck, the district of the former Appellate 
Court of Ehrenbreitstein, Hesse-Nassau, Hesse- Darmstadt (except 
Rhenish Hesse), Hohenzollern, Wiirttemberg and Bavaria (except 
the Palatinate and the Franconian principalities). It constituted one 
large and continuous stretch of land, extending from Schleswig- 
Holstein in the north to Bavaria in the south. In all these 
countries many laws had been enacted setting aside the rules of 
Roman private law, in some parts but sparingly, in others on a 
larger scale. But the force of Roman private law as a subsidiary 
common law remained unaffected throughout the whole of this 
territory, in other words, it continued to be valid in all cases where 
not directly overridden by the contrary provisions of particular laws. 

The territory of the codified private law was that territory where 
the formal validity of Roman private law had been set aside in 
favour of exhaustive local codes governing the entire private law of 


1 In the greater part of Schleswig, 
the so-called * Jiitisch Low* of King 
Yaldcmar II of Denmark 'A.n. 1240) 
was in force in the form of a Low 
German translation dating from the end 
of the sixteenth century. Roman law 
had never been ‘received’ in the territory 
governed by the Jiitisch Low. Apart 
from isolated institutions to which it ap- 
plied, it operated, for the rest, merely as a 
* ratio scripta,’ i. e. so far only as it gave 
expression to such requirements as sprang 


from equity and the general nature of the 
circumstances in question. The same 
is true to this day of Roman law in llu* 
Swiss cantons, except where the law his 
been codified. It was expn ssly ‘received,* 
in the sense of obtaining foimal subsi- 
diary force of law, only in those portions 
of Swil Zetland which were formerly under 
the influence of the jurisdiction exercised 
by the ‘ (‘ourt of the Imperial Oinmlwi ' 
(Rcichskammcrgericht! which Kmpcror 
Maximilian i established in 1495 A.n. 



THE NATURE OF THE SUBJECT 


7 


the land. Nevertheless all these codes had, in substance, adopted § 3. 
a large number of the principles of Roman law. This territory 
comprised those portions of Germany which were governed by the 
Prussian Landrecht of 1794, the French Civil Code of 1804 (which 
was in force on the left bank of the Rhine, as well as in Baden in the 
shape of the Baden Landrecht of 1809), and the Royal Saxon Civil 
Code of 1863. In the western territories of the Austro-Hungarian 
Empire (on this side of the Leytha) the law of the Pandects pre- 
vailed till 1811, in which year it was superseded by the Austrian 
Civil Code. Almost the entire eastern half of Germany to the 
right of the Elbe, and the extreme west to the left of the Rhine, 
were already governed by civil codes. 

The time for definitively putting an end to the legal authority of 
the Pandect law had now arrived. 

§ 4. The German Civil Code . 

On August 18, 1896, the German Civil Code, together with an § 4. 
Introductory Statute (Einfiihrungsgesetz), was promulgated for the 
German Empire. It came into force on January 1, 1900. This 
date marks the final completion of a development extending over 
400 years, and commencing, about 1500 a.d., with the reception of 
Roman law in Germany. 

We have already referred to the formal effect of codifications as 
such (supra, p. 5). In the case of the German Civil Code the effect 
is to sweep away, in its entirety, the private law as it has here- 
tofore existed in any part of Germany, whether common or 
particular private law, — the Imperial private law (based on the legis- 
lation of the new Empire) alone excepted. The Introductory 
Statute, however, contains (Article 56 ff.) certain express reservations 
in favour of the State private law, and to this extent the latter 
remain in force. Many of the legal rules embodied in the Code 
are indeed borrowed in substance from Roman law ; formally, how- 
ever, the common Pandect law as such ceased, as from January 1, 

. 1900, to have the force of law for any part of Germany. 

■ A strong central power was needed to carry through the task 
of codification. Such a power was found in the new German 



8 


THE INSTITUTES 


§4. Empire. The condition of the private law of Germany— repre- 
sented, on the one hand, by a motley collection of petty local laws 
devoid of vital force, and, on the other hand, by a foreign code 
which, though speaking in a foreign tongue and in many respects 
obsolete, was nevertheless clothed with statutory authority — stood 
in urgent need of reform. The separate codifications, so far from 
removing the difficulties caused by the multiplicity of particular laws, 
had merely aggravated them. The territories where the private law 
had been codified were inevitably out of immediate touch with the 
national jurisprudence, whose energies continued to be devoted to 
the common law. In order to give formal unity to the private law 
of Germany, and at the same time to create a body of law, endowed 
with true vital force and capable, by its inherent strength, of 
attracting the genius of German scientific research, a German Civil 
Code was required. This, accordingly, was the task which devolved 
on the new Imperial legislature when the German Empire had at 
last been re-established. 

Early in the sixteenth century Roman law had Ikcii received in 
Germany; four hundred years later— such are the changes wrough; 
by time— it was abolished. Hut the law of the Pandects, though 
now dethroned from the commanding position it has so long held 
in Germany, has served a useful purpose. Roman law was, so !<> 
speak, the taskmaster under whose discipline the law of modern 
Germany became what it is. For the transition from Roman ci\;i 
law to a German civil law, from the reception of Roman law to it- 
supersession, marks a process of steady advance in the iimani 
development of the law of Germany. The new Code does im: 
re-introduce mediaeval German law. The private law which it 
contains is essentially modern private law, in which legal conception* 
of native growth, dating back to the oldest times, are combined 
\Gth the results achieved in working out the Pandect law, and with 
modern ideas on the principles which should regulate human intei 
course. The Holy Roman Empire, in its impotence, had to talu 
refuge in the private law of Rome. The new birth of the German 
Empire has resulted in a new birth of the private law of Germany. 
After passing through a Roman, a German, and a modern stage. 



THE NATURE OF THE SUBJECT 


9 


the private law of Germany has emerged at last* enriched by the § 4 . 
accumulated forces of its long development, to a new and a nobler 
existence. 

§ 5. The Nature of the Subject to be dealt with . 

Now that the law of the Pandects has been abolished, is the § 5 . 
study of Roman private law likely to be discontinued in Germany ? 

Hitherto the private law of the Romans has been the subject of 
three different branches of study, viz. (1) the History of Roman 
Law, (2) the Institutes, and (3) the Pandects. 

Between the first two branches — the History of Roman Law and 
the Institutes — there is a close inner connexion : both were con 
cerned with the history of the private law of Germany, so far as that 
law is itself derived from Roman sources. 

** In the lectures on the ‘History of Roman Law’ it has been the 
practice hitherto to set forth the history of Roman law, more particu- 
larly of Roman private law, from the oldest times down to Justinian, 
the author of the Corpus juris civilis (sixth century a.d.). In tracing 
that history it was shown how Roman law, growing from small begin- 
nings, took gradual possession of the world ; and how, while accom- 
plishing this outward victory, it was inwardly transformed into a great 
cosmopolitan system of law. It was shown, further, to what causes 
Roman law and the theory of Roman law owed their greatness, and 
an explanation was thus given, at the same time, of some of the 
reasons why Roman law came to be received in Germany. 

The ‘ Institutes * ’ were closely connected with the ‘History of 
Roman Law’; they were concerned with the ultimate results of the 
history of Roman private law in so far as that history reached its 
final stage within the limits of the Roman Empire. In other words, 
the Institutes were concerned with the private law of Rome as it 
existed at the time of Justinian. It was reserved for Justinian to 
sum up the results of the whole development of Roman law. The 
code in which he accomplished this task is the Corpus juris civilis. 

* The term ‘Institutes’ is used by tutes of Gnjus and Justinian: and 
German writers to express the modern therefore as corresponding to what we 
exposition of the elements of Roman in England would call ‘Lectures « >r 
private law as dealt with in the Insti- Commentaries on the Institutes.’ 



TO 


THE INSTITUTES 


§ 5. It stands at the goal of the history of Roman law, and at the 
starting-point of the history of mediaeval law. It forms, in a sense, 
both the coping-stone of the whole structure of antique law and the 
foundation stone of the structure of modern law. This is the point 
of view from which the law” of the Corpus juris civilis has hitherto 
been expounded in the Institutes. The Institutes were concerned 
with the la>v of the Corpus juris civilis as it existed at the time of 
Justinian, in other words, with the law of the Corpus juris civilis 
in its unaltered form, the so-called ‘pure* private law of Rome. 
To the history of Roman law they added, as its last and noblest 
achievement, the theory of the pure private law of Rome in the 
finished form in which it is presented to us in the Corpus juris. 

On the other hand the Pandects, as a branch of legal study, 
were immediately concerned with a body of law in actual force in 
Germany. Both the Institutes and the Pandects (as hitherto 
expounded) treated of the law of the Corpus juris civilis, but 
in the case of the Pandects it was the law of the Corpu*> 
juris in its modern form, as modified by the Canon law, the 
customary law of Italy and Germany, and by the statutes of the 
German Empire, "l'lie Pandects set forth the Roman law of the nine 
teenth century, the Institutes the Roman law of the sixth century. 
In the Pandects an account was given of the Pandect law in the 
form in which, till January i, njoo, it had the force of law within 
the territory of the Pandect law (supra, p. 6\ The books on the 
Pandects accordingly served a practical purpose : they set forth in 
a scientific form a body of law actually in force in a large part of 
Germany, viz. the common private law of Germany, so far as that 
law was derived from Roman sources. 

With the coming into operation of the German Givil Code the law 
of the Pandects ceased to have the force of law in Germany. It ^ 
obvious, therefore, that the Pandects, as a branch of study, ceased a> 
from the same time to serve the practical purpose just referred to. 

It has, however, long been recognized that apart from its pra< 
tical utility— the law of the Pandects, as taught and studied in 
Germany, possesses a special value of its own in the field of pure 
legal theory. 



THE NATURE OF THE SUBJECT 


IT 


From the days of the Glossators (infra, § 25 ff.) down to the § 5. 
present time Roman law has engaged the attention of a number of 
men of the highest intellectual eminence, not only in Germany, but 
in the whole of Western Europe. The studies of these men were 
devoted, not merely to ascertaining the actual positive provisions 
of Roman law, but also, in an especial degree, to the working out 
of those general legal conceptions by the aid of which we can 
master, not Roman law alone, but any other system of law. From the 
intellectual labours bestowed by jurists on the law of the Pandects 
for several centuries, jurisprudence has reaped an abundant harvest 
of legal conceptions which have a scientific value of their own, the 
importance of the results achieved in this field being, in a large 
measure, independent of the particular form which the law for the 
time being in actual force may assume. There are a number of 
tools, so to speak, which no working jurist can dispense with, and 
the Pandects were the workshop where these tools of the science 
of law were manufactured, stored, and carried to ever greater per- 
fection. Thus it came to pass that the study and the teaching of 
scientific jurisprudence became bound up with the study of the 
Pandects ; and from the time when the school of Bologna stood at 
the height of its influence down to the present day, the leadership 
in the science of law has always fallen to the nation for the time 
being supreme in the domain of the law of the Pandects. 

From the time of Savigny onwards the science of law has reached 
a higher pitch of perfection in Germany than in any other country, 
a result which was due, in the first instance, to Savigny himself and, 
among his successors, in a pre-eminent degree to 1 boring. Now 
the pith and marrow of German legal science is to be found in 
the Pandects. What then, we may ask, is likely to happen if the 
study of the Pandects is abandoned? Will the strength of German 
jurisprudence depart with it ? 

It is, however, quite clear that, whatever else may happen, the 
Pandects cannot continue to hold the place they have hitherto held 
in the study of law in Germany. For up to the present the study 
of the Pandects has stood at the very centre of the study of the private 
law of Germany, and the study of the Pandects means the study 



12 


THE INSTITUTES 


§ 5. of Roman private law ; in other words, what it signifies is this, that 
the jurists and the students of Germany have been devoting their 
best strength to a dead law. Such a state of things cannot be 
allowed to continue. Science exists for the sake of the living ; and 
it is the business of German science to serve German law. What 
is needed above all things is a science which shall devote all its 
strength, willingly and unreservedly, to the living, positive law of 
Germany. 

It was only natural that German scientific lawyers should take but 
a distant interest in the development of the modern law of Germany, 
so long as the existing law offered them no alternative to the received 
Roman law but a number of ‘particular’ systems of private law. 
A Saxon legislature might indeed create a Saxon Civil Code, but it 
could not create a Saxon legal science. Even Prussia failed to 
establish an independent legal science of her own, although the 
territory of the Prussian Eandrecht was a comparatively large one. 
There is, in fact, no such thing as a Saxon or a Prussian legal science, 
but only a German legal science, and its representatives could not he 
expected to single out any one of the ‘particular’ systems as tin- 
object of their special attention. Accordingly German jurists con 
tinued to devote themselves to the law of the Pandects (and of 
course to ‘German Private Law,' in the narrower sense). Even 
for the territories where the law had been codified, it was only in tin 
lectures on the Pandects that the general theory of the private law 
was scientifically dealt with. In other words, the only genuine!) 
scientific training which practical lawyers received was in the nppl. 
cation of a law which, as far as the territories referred to were con 
ccrncd, had no actual existence; and even in the territory of tin 
common law itself the practical validity of the Pandect law had 
been very largely curtailed by Stale legislation and in the hum 
recent times - by Imperial Statutes. 

These circumstances will explain the nature of the change which > 
bound to take place, and which is in fact taking place, in the stud) 
of law in Germany. The new German (’ode marks the decisiw 
turning-point in this development. What distinguishes the (ode 
from the various ‘particular’ codes is above all things the fact that 



THE NATURE OF THE SUBJECT 


13 


it is able, by virtue of its greater inherent vitality, to determine the § 5. 
course of German legal science. The living law of modern Germany 
has at last taken definitive shape as a national private law, and it is 
in the main to this law that the attention of scientific students of the 
private law will henceforth have to be devoted. A meeting-ground 
will thus be found on which theory and practice can join hands 
in a permanent alliance. 

It would indeed be strange if centuries of training in Roman law 
were to profit nothing, and Germans were never to be able to become 
masters of their own law. Is there really any reason why the art of 
legal thinking, which has hitherto been acquired and applied with so 
much success in connexion with the 4 phantom of the Pandect law/ 
should not be equally well taught and practised on the materials 
furnished by the new Civil ('ode ? 

The abolition of the law of the Pandects will necessarily put an end 
to the study of the Pandects, as hitherto conducted. The Pandects 
of Roman law will no longer stand at the centre of the science and 
the study of the private law of Germany, and their place will be taken 
by the Pandects of the German Corpus juris civilis, that is, by the 
German Civil Code. The old home of the Pandects will be broken 
up, but the spirit of scientific inquiry of which the Pandects were the 
centre will live on, and will find yet ampler scope within the new 
sphere opened up by the national private law. The future science of 
the private law of Germany will succeed both to the office hitherto 
performed by the law of the Pandects and to the wealth of scientific 
materials which has accumulated round the Pandects. The great 
tiaining-school of legal thought will be transferred from the Pandects 

the new discipline, with this signal advantage to the student, that 
■the intellectual equipment hereafter provided for him will fit him to 
i(auge the full significance, not of a dead law, but of the living law' of 
his country. 

The study of Roman private law as such will in future only occupy 

introductory stage in the legal curriculum. Pandects of the old 
jtindwill disappear, though Pandects in an abbreviated form, dealing 
|fith th e fundamental principles of the former science, will remain, 
§nd will serve, on the one hand, to maintain the existing connexion 



14 


THE INSTITUTES 


§ 5. between legal education and the scientific study of Roman law 
(which continues to be carried on with unabated vigour) and, on 
the other hand, to prepare the student for the proper understanding 
of the contents of the Corpus juris, an explanation of which will be 
as indispensable to a sound legal training in the future as it has 
been in the past. The History of Roman Law and the Institutes 
alone will retain the position they have heretofore occupied in the 
study of law in Germany. But they will be fused into a single 
subject, to be called the i History and System of Roman Private 
Law/ and will be required, in this form, to take over part of 
the subject-matter previously treated of in the Pandects. 

In the teaching of the Pandects as hitherto conducted the aim has 
been, while expounding the theory of private law, to introduce the 
student at the same time to the Corpus juris. In future it will be the 
business of the new ‘ Pandects ’ of the German Civil Law to expound 
the theory of private law, and the task of introducing the student 
to the Corpus juris will devolve to a considerable extent on the 
‘ History and System of Roman Private Law.' 

It is most important that German jurists should remain in touch 
with the Corpus juris. It furnishes the key without which a com 
plete mastery of the modern law of Germany is impossible. The 
magnificent results which the skill of the Roman jurists enabled 
them to achieve are collected and exhibited in this compilation, 
which is a store-house of legal materials of priceless value. The 
road to proficiency in legal science lies through a study of the 
ancient jurists. As an instrument of legal education the Corpus 
juris is irreplaceable, and as such it should be jealously preserved. 

It has been customary heretofore to conclude the history of 
Roman law with an account of Justinian’s great code. In future 
its development will have to be carried several stages further. The 
history of Roman law will have to include an account of the fate of 
the Corpus juris from the date of its compilation down to the present 
dey— a subject which till now has usually been treated of in the 
Pandects. It will be necessary to explain the nature of the role 
played by the Corpus juris in the entire subsequent evolution of the 
law; in other words, the history of Roman law will have to be 



THE NATURE OF THE SUBJECT 


15 


expounded in such a way as to bring out the value which the Corpus § 6. 
juris possesses even for modern times. 

As to the so-called 4 System of Roman Private Law/ its function 
will be to give a compendious survey of the private law contained in 
the Corpus juris, after the manner hitherto observed in the books on 
the Institutes — a survey, therefore, into which the historical element 
will enter to some extent. Certain matters will, 'indeed, have to be 
discussed somewhat more fully than has hitherto been the practice 
in the Institutes, and it will also be advisable, in reference to some 
points of importance, to travel beyond the Roman law of Justinian 
and to indicate the connecting links between the law of the Corpus 
juris and the modern private law of Germany. In the main, however, 
the 1 System of Roman Private Law' will be concerned with the 
same private law as has hitherto been expounded in the Institutes : 
that is, with the pure private law of Rome in the form in which Jus- 
tinian summed up the final results of its previous development. An 
object of the utmost importance will thus be attained, the preserva- 
tion, namely, of the bond which connects the scientific study of 
modern law with the contents of the Corpus juris. 

In order to accomplish the task thus indicated, it will be advisable 
to adhere in the main — in this as in other respects — to the principle 
hitherto observed in Institutional works, and to frame our treatise, on 
the whole, as an introduction to the study of law, by adapting it to 
the requirements of beginners. The Corpus juris will stand hence- 
k forth only at the threshold of the science of law, and when the 
student has passed beyond this stage his attention will be claimed, 
not by Roman, but by German law. 

The plan and purpose of the following treatise are thus explained. 
We shall premise a few words on the sources of our knowledge of 
Roman law, and also on the fundamental conceptions of law. We 
shall then proceed to expound the subject-matter proper, commencing 
with a brief history of Roman law, and passing on to the doctrinal 
part, or theory of Roman law. 



CHAPTER II. 


Sources and Fundamental Conceptions. 

§ 6? The Sources of Roman Law . 

Q. The sources of Roman law are of two kinds : first, the Corpus 
juris civilis of Justinian; and secondly, the pre-Justinian sources 
of law. 

I. The Corpus juris civilis. 

The Corpus juris civilis of Justinian, in its modern form, consists 
of four parts : the Institutes, Digest, Code, and Novels. 

(i) The Institutes. 

The Institutes (published Nov. 21, 533 a.d.) are a short manual or 
text-book, the object of which is to give a brief and comprehensive 
summary of the whole body of law as set forth in the remaining 
portions of the Corpus juris, and, at the same time, to supply the 
student with a general introduction to the study of the Corpus juris. 
It must be observed, however, that this text-book has, in itself, the 
force of law, the Institutes being published with the same statutory 
force as the Digest and Code. 

The Institutes are divided into four books, each book into titles, 
each title into paragraphs. The first sentence of each title, pre- 
ceding § 1, is called ‘principium’ (pr.). Thus German writers usually 
quote as follows : 

pr. I. ( = Institutionum) de donat. (2, 7) *. 

Eod. is = eodem titulo ; so that § 4 I. cod., closely following 
another quotation (say, pr. I. dc donat. 2, 7), would be a shorter 
way of writing : § 4 I. de donat. (2, 7), the name and number of the 
title not being repeated. 

h. t. ( = hoc titulo) refers to the particular title dealing with the 
* English writers quote briefly as follows ; Inst. ii. 7. pr. 



SOURCES AND FUNDAMENTAL CONCEPTIONS 17 


subject-matter in question. Thus, if the subject under discussion § 0. 
were obviously gifts (donationes) pr. I. h. t. would refer to the prin- 

f * 

cipium of the title ‘ de donationibus ’ (Inst. II. 7). * In other words, 

( h. t/ refers to the title bearing on the special subject-matter under 
discussion; ‘eod.* refers to the title given in the quotation imme- 
diately preceding. 

(2) The Digest 

The Digest or Pandects (published Dec. 16, 533 a.d.) are a col- 
lection of excerpts or ‘ fragments * from the writings of the Roman 
jurists, arranged by Justinian, and endowed by him with statutory 
force. The Digest contains fifty books, each book being divided 
into titles, each title into * fragments ’ or ‘ leges/ each fragment 
into a principium and numbered paragraphs. Thus German writers 
usually quote as follows : — 

L. (=lex) 2 pr. I). (=Digestorum) mandati (17, 1)*. 

L. 10 § 1 eod. (eod. here=D. mandati, 17, 1). 

L. 18 h. t. (Here h. t. refers to the title ‘mandati/ if ‘man- 
datum* or agency is the special subject-matter under discussion.) 
Books 30, 31, and 32 of the Digest all deal with the same subject, 
viz. legacies, and are not divided into titles. A quotation thus 
runs : — 

L. 1 1 ). de legatis I (30). 

Some modern writers apply the term ‘fragmenta* specifically to 
the excerpts from the writings of the jurists which make up the 
titles of the Digest, and therefore quote the Digest briefly as 
follows : — 

fr. 2 pr. mandati (17, 1) (the D. being thus omitted). 

(3) The Code . 

The Code (published Nov. 16, 534 a.d.) is a collection, by Jus* 
tinian, of imperial decrees and laws, promulgated partly by the 
older emperors, partly by Justinian himself, and published (for the 
most part) in the shape of excerpts. The whole collection was to 
be regarded as one uniform code with statutory force. It con- 
tains twelve books, each book being divided into titles, each title 


* English writers quote briefly as follows: Dig. 17. t. J. pr. 
sohii : lbdu* C 



THE INSTITUTES 


18 

§ 6. into leges, each lex into paragraphs as above. A quotation woult 
thus run: — 

L. n § i C. (=Codicis) depositi (4, 34) *. 

The term ‘ constitute ’ (c) is sometimes applied specifically t< 
the leges of the Code, so that the above quotation would run : c. r 
§ 1 depositi (4, 34), (the C. being omitted). 

Though published by Justinian at different times, these thre< 
parts of the Corpus juris, viz. the Institutes, Digest, and Code, wen 
intended by him to constitute, in the aggregate, a single code 0 
law with equal statutory force in all its parts. This is the Corpu 
juris in the form in which it was issued by Justinian. In its moderi 
form, however, the Corpus juris differs from the Corpus juris 0 
Justinian in that it contains a fourth part, viz. the Novels. 

(4) The Novels. 

The Novels are laws enacted by Justinian and some later cm 
perors, subsequently to the completion of the Corpus juris. Th< 
great majority of these Novels were issued by Justinian betweer 
535 and 565 a. d. Most of them have been ‘received * in Germany 
Being later than the Corpus juris, they take precedence, so far a: 
they have been received, over the remaining portions of the Corpus 
juris. The Novels are quoted by the number, chapter, and para 
graph, e.g. Nov. 118, cap. 3, § 1. 

Edition of the Corpus juris : 

Corpus juris civilis. Editio stereotypa. Institutiones, recensuii 
P. Kruger. Digesta, rcc. Th. Mommsen. Berolini, 1872. Codex 
Justinianus, rec. l\ Kruger. Bcrol., 1877. Novcllac, rcc. R. Scholl, 
G. Kroll. Berol., 1895. 

II. The Pre-Justinian Sources ok Law arc as follows:— ■ 

(1) The writings of the Roman jurists in their original form. 

(2) The decrees and laws of the Roman emperors in their original 
form. 

(3) The early Roman statutes and other sources of law in their 
original form, together with documents and incidental information 
in non-juristic writers. 


• English writers quote briefly a* follows: Cod. 4. 34. 11. 1. 



SOURCES AND FUNDAMENTAL CONCEPTIONS 19 


The following editions are the most important : — § 6 . 

(1) Corpus juris Romani antejustiniani consilio professorum Bon- 
nensium. Bonnae, 1835 ff. 

(2) Jurisprudentiae antejustinianae quae supersunt, ed. Huschke, 
ed. 5. Lipsiae, 1886. 

(3) Jurisprudentiae antehadrianae quae supersunt, ed. F. P. 
Bremer. Pars prior: Liberae reipublicae jurisconsulti. Lipsiae, 
1896. Pars altera, sectio prior, 1898. 

(4) Collectio librorum juris antejustiniani. In usum scholarum 
ediderunt P. Kriiger, Th. Mommsen, Guil. Studemund. Tom. I. 

Gai Institutiones, ed. 3, Berolini, 1891. Tom. II. Ulpiani liber 
singularis regularum. Pauli libri quinque sententiarum. Fragmenta 
minora. Berol., 1878. Tom. III. Fragmenta Vaticana, etc. Berol., 
1890. 

(5) Corpus lcgum ab imperatoribus Romanis ante Justinianum 
latarum, quae extra constitutionum codices supersunt, ed. Hand. 
Lips., 1857. 

(6) Fontcs juris Romani antiqui ed. Bruns., ed. 6. cura Th. 
Mommseni ct O. Gradenwitz. Pars I : I^ges et negotia. Pars II : 
Scriptorcs. Friburgi in Brisgavia, 1893. 

(7) Textes de droit romain, publics et annotds par P. Girard, 

2 ed. Paris, 1895. 


APPENDIX. 

The Manuscripts of the Corpus Juris . 

We arc now accustomed to think of the Corpus juris as constituting 
a single uniform hook. Such, however, was not originally the case. 
Justinian (as wc have seen, p. 16 flf.) published the Institutes, Digest, and 
Code separately as three independent books, though it was his intention 
that they should represent a uniform hotly of law. The Novels, of course, 
were separate and later publications. These facts will explain the form 
In which the MSS. of the Corpus juris have been handed down to us, 

c a 



20 


THE INSTITUTES 


App. each one of which contains but part of the Corpus juris as we now 
know it. 

I. The Digest. 

The Digest has been preserved to us in a famous and most excellent 
MS. which was known, first as the Pisan, and subsequently as the 
Florentine MS. During the Middle Ages it was treasured in the city of 
Pisa, till the Florentines, in the year 1406, conquered that city and 
removed the precious MS. to Florence. It was written in the beginning 
of the seventh century by Greek scribes, and corrected with the greatest 
care, a second original being used for the purpose of emending the text. 
As far as Western Europe is concerned, it is on this MS. that the history 
of the Digest, and with it (for the Digest contains the pith of the Corpus 
juris) the history of Roman law in general, is, in the main, based. It 
also forms the basis of the numerous ‘vulgate* MSS., i.e. MSS. which 
preserve the text of the Digest as adopted by the Glossators or teachers 
of Roman law at Bologna in the twelfth and thirteenth centuries. The 
vulgates however, unlike the Florentine, never contain more than a 
portion of the Digest. 

According to the plan of study laid down by Justinian for the schools 
of law, only Books 1 23, 26, 28, and 30 of the Digest were to be the 
subject-matter of the professorial lectures during the first three years of 
the course. This will explain why the copy of the Florentine MS., which 
was at first chiefly in use throughout Italy, stopped short at Book 23, or 
rather Book 24, tit. 2 , the first two titles of this book being very closely 
connected with Book 23. This was called ‘ Digestum ’ simply. Books 
24, 25, 27, 29, 31 30, however, were to be privately studied in the fourth ; 
ycai. Hence a few, but only very few, of the Italian MSS. arc copies of 
the Florentine from Book 24, tit. 3, to Book 36. The last fourteen j 
books formed no part of the regular curriculum at all, but were reserved •' 
for private study at a later period. The Bolognese text was fixed hy J 
reference to an incomplete MS. of this second part of the Digest which 
broke oflf in the middle of Book 85, tit. 2, lex 82 (ad leg. Falcidiam 
before the words ‘tres partes.* It was not till the complete Florentine 
MS. had again become known that the defective MS. of the second part 
of the Digest could be supplemented and (for the sake of symmetry 1 
brought up to the end of Book 38. Hence this part was given the name 
of ‘Digestum infortiatum* f = fortiatum, ‘ strengthened '), and was sub- 
divided into the infortiatum proper (up to ‘tres partes’) and the so-called 
* tres partes * (from ‘ tres partes ’ to the end of Book 38). The rc-disrovery 
of the Florentine MS. also made it possible to make up the third part »>f 
the Digest (Book 39 to the end) which came to be known as the 
‘Digestum novum.* In contradistinction to the Digestum novum, ib fi 
name of ‘ Digestum vetus * was applied to that portion of the Digest which 



SOURCES AND FUNDAMENTAL CONCEPTIONS 21 

had been known long before (Books 1 - 24 , tit. 2). See‘v. Scheurl, ZS.fur § 6 App. 
RG.y vol. xii. p. 143 ff. ; Karlowa, Rom. RG ., vol. i. (1885) p. 1027 (note). 

Thus the vulgate MSS. of the Digest consist of three * volumina,’ the 
Digestum vetus (Books 1 - 24 . 2), infortiatum, with the tres partes (Books 
24 . 3 — 38 ), and novum (Books 39 - 50 ). These MSS. have little value, as 
they are in all three parts but copies of the Florentine, the mistakes 
of which they invariably reproduce. Towards the end of the Digest, 
for example, the Florentine has two pages placed in the wrong order ; all 
the MSS. referred to have the same mistake. What critical value they 
possess is due to the fact that, as far at least as Book 33 , they contain, 
in several places, as compared with the Florentine MS., certain emen- 
dations, additions and alterations which must have been suggested by 
a second original at a time when the Digest copies in use only went as 
far as ‘tres partes/ The text given by Mommsen in his great edition 
of the Digest (Digesta Justiniani Augusti, 2 voll. : 1870) is based on his 
own critical researches which are laid before us in the same work. He 
is entitled to the full credit of having elucidated all the above-mentioned 
facts concerning the MSS. of the Digest. 

2. The Institutes . 

There were very numerous copies of the Institutes, and they were much 
more widely read, even in the early Middle Ages, than the more volu- 
minous Digest. The most valuable MSS. for our purposes are those of 
Bamberg and Turin, both of the ninth and tenth centuries. The latter 
(which is unfortunately incomplete) contains an important gloss (the 
‘Turin gloss on the Institutes') which was written in the time of 
Justinian. 

3. The Code . 

The Code has been handed down to us in a comparatively incomplete 
form. This is probably due to its not being prescribed as the subject of 
professorial lectures at all, being left to private industry in the fifth year 
of stddy. A Veronese palimpsest (of the same date as the Florentine MS.) 
was at one time complete, but is now very defective. The remaining 
MSS. arc all based on epitomes of the first nine books of the Code, the 
last three books being omitted as dealing merely with the public law of 
the Byzantine Empire. These epitomes, with a few supplements, vie 
possess in MSS. of Pistoja, Paris and Darmstadt, of the tenth (or eleventh), 
eleventh, and twelfth centuries respectively. They were gradually com- 
pleted again by successive writers, beginning with the close of the eleventh 
century. Towards the end of the twelfth century MSS. of the last three 
books were written, but the first nine were always regarded as the Code 
proper, and the ‘tres libri,' as they were called, have been handed down 
to us in a separate form. The Greek constitutions, which were left out in 
all the Western MSS. (] Graeca non Wnintur'L-were added much later in 



22 


THE INSTITUTES 


§ 6 App. the prints of the humanist epoch (the sixteenth century) from Byzantine 
sources both of ecclesiastical and secular law. In the same prints an 
attempt was made to restore, as far as possible, the inscriptions and 
subscriptions of the imperial decrees (which had been very much neglected 
in the vulgate MSS. of the Bolognese school of law) from better manu- 
scripts and also from the Codex Theodosianus. 

4. The Navels. 

The first knowledge which the West obtained of the Novels was derived 
from the so-called Epitome Juliani, which was a collection of extracts from 
125 Novels of Justinian by Julianus, professor of law in Constantinople, 
A. D. 556. At a later period, the Glossators found another collection of 
134 complete Novels, of which some were in original Latin, the majority 
however in a Latin version (the ‘versio vulgata’) made from the Greek 
original. It is probable that this collection is identical with the official 
one which Justinian ordered to be drawn up for Italy in the year 554 a.l>. 
(Zachariae v. Lingenthal, Sitzungsbcrichte der Berliner Akademie, 1S82.) 
The Glossators called this collection (in contradistinction to the Epitome 
Juliani) the Authenticum, or Liber Authenticorum (i.c. the i authentic 
collection’), and divided the ninety-seven Novels which they considered 
to be of use, into nine collationcs and ninety-eight titles. Excerpts from 
the latter were inserted in the respective passages of the Code, and were 
called ‘authenticae/ In addition to these Western collections there is 
also a Greek collection of 168 Novels - not all by Justinian however 
every one of which is composed in Greek. 

Having thus briefly reviewed the state of the MSS., we are now in a 
position to understand why, in the earliest editions, the Glossators divided 
the whole Corpus juris into five volumes, with the addition of the glossae. 
The first three volumes comprised the Digest (vol. 1, Digestum vetus; 
vol. 2, Digestum infortiatum ; vol. 3, Digestum novum), the fourth con- 
tained the first nine books of the Code, the fifth (called ‘volumen parvum, 
or 4 volumen * simply) the last three books of the Code, the Authenticum 
and the Institutes. 

The division with which we arc now familiar is into four parts in the 
following order: Institutes, Digest, Code, Novels. This division was 
first adopted by Cothofredus in his complete edition of 1583 (without the 
glossae). He was also the first to give the entire collection the name by 
which it is now universally known, viz. Corpus juris civilis. It is only 
from the time of Gothofrcdus onward that the Corpus juris appears in the 
now familiar shape of one complete book. 



SOURCES AND FUNDAMENTAL CONCEPTIONS 23 


§ 7 . Fundamental Conceptions . 

I. The Conception of Law and the Legal System l . § 7. 

Law, in the abstract, is the sum of binding rules which distribute 
among persons living in a community — and, in the first instance, 
in the community of a people — a certain power over the outside 
world. Law, in other words, determines, defines, and distributes 
the relations of power within the limits of human society and in 
accordance with that ideal of justice which resides, in the first 
instance, in the community of a people, and, through it, in the 
community of mankind at large, and the ultimate source of which 
is the belief in divine justice 2 . 

Justice is a principle regulating the distribution of things which 
are valued by men— awarding them to some, denying them to 
others — and it is, at the same time, a principle whereby each man’s 
worth is appraised. Justice gives to ‘everyone that which is his,’ 
that which (in other words) is due to him according to his worth. 
Divine justice measures a man by his moral worth, his worth before 
(iod; human justice measures a man by his legal worth, his worth 
for the people. Just as the communion between the individual and 
(lod is the foundation of moral order, so the communion between 


1 Cp. A. Merkel, Juristischt En - 
(yklopadie (1885), p* r & 

* This is the reason why originally 
no distinct ion was made between moral 
laws and juristic laws. It is only gradu- 
ally that nations leant to comprehend 
the special character of the latter. 
They fail to recognize, at the outset, 
that the justice realized by laws, in the 
juristic sense, is necessarily but an im- 
perfect human justice, in its nature in- 
separable from definite outward forms; 
that its realization is sought solely in 
the interests of a definite outward regu- 
lation of the relations of power which 
subsist between members of a com- 
munity, and that the purpose for which 
such laws exist is to strengthen and 
maintain the national life. It is not, 
therefore, the function of juristic, but 
of moral laws, to produce the moral 
freedom of the individual; all juristic 


laws can do is to render such freedom 
possible. It has been observed that 
‘ the point of view of a ** jus quod 
populus sibi ipse constituit” is still 
quite foreign to the primitive law of 
the Aryan nations’ (the dharma of the 
Indians, the of the Greeks, the /as 
of the Romans', ‘their laws are closely 
interwoven with their religion and their 
moral code; they are bound up with 
the belief in the gods which belongs to 
the Aryan gentes, the belief, namely, 
that the gods shield what is right and 
punish what is wrong.* In later times 
we have, as opposed to fas — law set by 
the gods the jus (Greek Sortuov), or 
law made by the State (civilas; jus 
civile). Lei st, AUarischcs Jus Gentium 
(1889), pp. 3,4; Leist, Altarisches Jus 
Civile , Part 1 (1894), p. 337 ff., Part 1 
(1896:, pp. 3 1 389^ 



24 


THE INSTITUTES 


§ 7. the individual and the society of which he is a member is the 
foundation of legal order. In its essence morality points to that 
which is beyond this world ; law, on the other hand, points, in its 
essence, to the things of this world. It is in the people that legal 
order has both its source and its objective point. 

Law and morality are bound together by strong ties. In order 
to be healthy, the life of the people as of the individual must 
ultimately rest on a foundation of morality. It follows that law must 
be either in accord with, or, at any rate, must not run counter to 
definite moral requirements. The law, for example, calls upon us 
to serve the people ; and this, one of the foremost demands of the 
law, is at the same time a demand of morality, which calls upon us 
to serve our neighbour. On principle therefore every law (in the 
juristic sense) is not only legally but also morally binding. Never 
theless there is an essential difference between law and morality. It 
is not the object of law to enforce a minimum of morality. Morality 
cannot be forced, nor indeed does it admit of being stated in the 
terms of any formal proposition of general validity. Still less is it 
the business of law to act as a kind of ‘practical Christianity’: 
Christianity by statute would be a contradiction in terms. It is 
true, law helps to train men up to Christian morality, but it is not 
the servant of the moral law ; it carries its rules within itself. I^aw 
is the servant of the people and of no one else. It exacts the things 
which are Caesar’s — that is, the people’s— never the things that 
are God’s. 

The principle which lies at the root of law is the preservation of 
the people, the preservation, that is to say, of the power of a people. 
Whatever serves the purpose of preserving the power of a people, 
that is, humanly speaking, just. Law is the formal expression of the 
means whereby a people organizes itself for the struggle for existence. 
Accordingly it is war that generates law. War, it is said, is the 
father of all things. Under the stress of the perils of war a people 
consolidates into an army, into a State. So far from being the 
power that destroys societies, war is the power that builds them up. 
Legal order has its ultimate origin in military order and in this sense 
the soldier is ‘pater patriae.* Military constitutions beget political 



SOURCES AND FUNDAMENTAL CONCEPTIONS 25 

constitutions, and from the distribution of the booty of war spring § 7. 
the rights of property. Law and the State were born, so to speak, 
sub hasta , under the sign of the spear. All law exists in order that 
the people may live and be strong, and the power of law over the 
individual is rooted in that subordination of the individual life to 
the common life which is demanded by morality. The people 
claims back from the individual the life which it gave him. 
Populum vivere necesse est, te vivere non necesse est. Law 
apportions to each individual that which is due to him as a member 
of the people, and due to him, moreover, for the sake of the 
people. Herein lies the true significance of the suum cuique , in its 
legal sense. 

The apparent contradiction between what we have said and the 
division of law itself into two departments— private law and public 
law — can be readily explained. Rights founded on private law have 
reference, by their very nature, to the self-interest of the individual, 
rights founded on public law have reference to the common interests 
of all. In other words, a private right is enjoyed by the person 
entitled, primarily, for his own sake, in order namely that he may 
have power, capacity, scope of action. Rut a public right— such 
as the right of a monarch to govern or of a citizen to vote — is 
enjoyed for the sake of all. Accordingly the effect of a right 
derived from private law is primarily to confer a power, the 
effect of a right derived from public law is primarily to impose 
a duty. This antithesis is not however a complete one, and 
the boundary between public and private law has consequently 
shifted at different times in the history of law and has been variously 
drawn by legal theorists. We may add that it is on this very 
question — the question namely as to how the boundary referred to 
is to be fixed — that the social struggle turns. And though the 
provisions of private law are primarily designed to serve the self- 
interest of the individual, nevertheless private law exists no less than 
public law for the sake of the common good — that is, for the sake of 
the people— and must accordingly remain subordinate to public 
tow, or may even be said to be, in a sense, subsumed under the 
totter. On the other hand, private law rests on the gradual recognition 



26 


THE INSTITUTES 


§ 7. of the truth, that a people grows strong, not by subordination 
alone, but, in a yet higher degree, by the development of its members 
into free persons capable of independent effort and achievement ; 
the truth, in other words, that legal (or military) order fulfils its real 
purpose by producing, not military subordination merely, but liberty. 
It is for the sake of the commonwealth as a whole that each member 
has assigned to him by law a sphere wherein he may strive for his 
own interests, wherein his individual energies may be at once 
satisfied and put forth untrammelled to their utmost capacity. What 
the individual accomplishes will benefit all. In the primitive ages 
men are but units of a gregarious crowd : it is the function ol 
private law to transform them into a community of free individuals. 
In this sense, private law constitutes l;oth the antithesis of the 
entire body of public law, and, at the same time, its indispensable 
foundation. 

Private law, then, is concerned with rights the essential charac- 
teristic of which is that they confer power on the person entitled. 
The objects of rights of this kind— that is, of rights exercised in one? 
own interest — are, in the first instance, things or the equivalents ol 
things. Private law has accordingly for its subject-matter the right? 
of control exercised by persons, for their own advantage, over material 
things. In this sense private law is identical with the law of property. 
Coupled with the law of property we have the law of the family. The 
members of a household or family are, like things, subject to a powci 
conferred by private law and therefore exercised in the self-interest ol 
the person in whom it vests. True, they are persons, but in the eye 
of the law they are persons of lesser value, ranking legally below the 
head of the household 3 . In the oldest times, the wife and children 
were actually treated as chattels, and it is suggested with some 
plausibility that the monogamic power, that is, the sole ownership 
of a man in his wife — and consequently in his children — represents, 
in the dawn of history, the earliest application of the principle ol 
exclusive ownership and, with it, the germ of private law. In more 

* This is the point where the advo- a second master. They decline to admit 

cates of the so-called * women's rights the effect of military order upon th< 

movement ’ join issue. They seek to legal organization of the family, 
turn the mistress of the household into 



SOURCES AND FUNDAMENTAL CONCEPTIONS 27 

developed legal systems the members of the family are treated as § 7. 
persons, and the tendency to regard the family power as existing, 
not in the interests of the head alone, but of all the members of the 
household, asserts itself with ever-increasing insistence. Nevertheless 
a man's house remains in a very real sense his castle, for it represents 
a sphere of power wherein the family head may, within certain limits, 
exercise an authority which is arbitrary, and which, for that very 
reason, derogates from the complete personality of the other 
members of the household. The entire history of the law of the 
family finds expression in the fact that, to this very day, family law 
and the law of property are treated as constituting together a single 
great department of the law, viz. Private Law. 

In opposition to Private Law (consisting of the Law of Property 
and Family Law) we have Public Iaw which includes Constitu- 
tional and Administrative Iaw together with International Law, 
Ecclesiastical Law, Criminal I aw and the Law of Procedure. 
Public I aw creates public powers, powers designed for the benefit 
of the community; it is concerned with rights which enable one 
person to exercise control, in the common interests of all, over 
other persons legally his equals. 

L. 1 § 2 I). de just, ct jure (1, 1) (Ulpian.): Hujus studii duae 
sunt positiones, publicum et privatum. Publicum jus est 
quod ad statum rei Romanae spectat, privatum quod ad 
singulorum utilitatem : sunt enim quaedam publice utilia, 
quaedam privatim. 

II. The Origin of Law. 

Law may originate in one of two ways. First, it may spring 
unconsciously from the convictions and life of a people. The law 
thus begotten is called Customary law. Secondly, it may originate 
in the conscious act of the sovereign power, which act is, in point of 
form, quite arbitrary. The law thus begotten is called Statute law. 
Statute law rests on force and owes its formal validity to the com- 
mand of the sovereign fiower. Customary law rests on national 
conviction and owes its validity to the fact that, having sprung from 
national conviction, it has asserted itself by voluntary observance in 
virtue of an inward necessity. 



28 


THE INSTITUTES 


7 . L. 32 § i D. de leg. (1, 3) (Julian.): Inveterata consuetudo pro 
lege non immerito custoditur, et hoc est jus quod dicitur 
moribus constitutum. Nam cum ipsae leges nulla alia ex 
causa nos teneant, quam quod judicio populi receptae sunt, 
merito et ea quae sine ullo scripto populus probavit tenebunt 
omnes : nam quid interest suffragib populus voluntatem suam 
declaret an rebus ipsis et factis? Quare rectissimum etiam 
illud receptum est, ut leges non solum suffragio legislatoris, 
sed etiam tacito consensu omnium per desuetudinem abro- 
gentur. 

III. The Application of Law. 

As regards its territorial limits, the positive law of Germany is 
either local (‘particular’) or general (‘common’), i.e. it either 
applies to one special portion of Germany only (‘ Particularrecht 
or it obtains throughout the whole Empire (‘Gemeines Deutsches 
Recht’) 4 . Again, the Common law of Germany may either be 
subsidiary or absolute (‘ uniform ’). It is subsidiary, where it only 
applies in so far as there is no ‘particular’ law to the contrary. It 
is absolute, where it overrides all particular laws that differ from it. 
The older Common law of Germany, including the law of the 
Pandects, had only subsidiary force. The new Common Law of 
Germany, as created by the acts of the modern imperial legislature, 
claims absolute validity. 

As regards the individual again, a law may be said, in the same 
way, to be either absolute or subsidiary. A law is subsidiary, or (a> 
it is more usually called) permissive, if its operation can be excluded, 
in each separate case, by the private will of the individual. The ruK 
of Roman law that the vendor of a thing is answerable for latent 
defects is a case in point. A law is absolute, if its operation cannot 
be excluded by the private will of the individual. The rules of law- 
concerning the forms of wills or bills of exchange are cases in point. 
Most rules of law are absolute. The Romans sometimes use the 
term jus publicum’ or ‘jus commune,’ in a technical sense, to 
express an absolute rule of law, even where such rule is one of 
private law. 


4 law of the Pandects is still 
c&llcc 1 Common German Law/ became 


it formerly applied to the whole <*! 
Germany. 



SOURCES AND FUNDAMENTAL CONCEPTIONS 29 


L. 38 D. de pactis (2, 14) (Papinian.) : Jus publicum privatorum § 7 . 
pactis mutari non potest. 

L. 7 § 16 eod. (Ulpian.) : Quoties pactum a jure communi re- 
motum est, servari hoc non oportet. 

IV. Law and Right. 

German writers distinguish between 1 objectives Recht 1 and * sub- 
jectives Recht. 1 The former is what we call ‘ law/ or * a law * ; the 
latter is what we call a ‘ right/ i.e. a power or authority conferred 
by law, e.g. the 4 right * of a creditor against his debtor. 

V. Law and Equity. 

Law is described as ‘rigid* or ‘strict* (‘jus strictum*), in so far as 
it refuses to take into account the particular circumstances of the 
individual case. For example : jus strictum, as such, declines to 
consider whether a debtor, in becoming a party to a transaction, 
was acting under the influence of fraud. Law is described as 
‘equitable* (‘jus aequum*), in so far as it allows the particular 
circumstances of the individual case to be taken into account. Jus 
aequum appears frequently in the form of law which is an exception 
to the ordinary law (the so-called ‘jus singulare’), in so far namely 
as it permits the consideration of special circumstances, by way of 
exception^ in certain cases only 8 . Jus singulare is called ‘privilege* 

(in the objective sense) in so far as its benefits affect particular 
classes of persons. ‘ Privilege,’ in the subjective sense, is a particular 
right conferred on a definite person by a ‘ lex specialist 

L. 14 I), de leg. (1, 3) (Paulus): Quod vero contra rationem 
* juris receptuin est, non est producendum ad consequentias. 

§ 8. Jurisprudence . 

Jurisprudence has a twofold function to perform : first, a prac- § 8. 
tical one; secondly, an ideal one. 

I. The Practical Function of Jurisprudence. 

The practical function of jurisprudence is to adapt the raw mate- 
rial of law for practical use. For the law, as begotten by custom or 

8 As to the conception of ‘jus singulaic,’ cp. fcisele, Jktring's Jahrbtkherfiir 
Vogmatik, vol. xxiii. p. 119 ft. 



3 <> 


THE INSTITUTES 


§ 8. statute, is but the raw material, and is never otherwise than imperfect 
and defective. Even the wisest of legislators cannot foresee all 
possible contingencies that may arise. It is the function of juris- 
prudence to convert the incomplete and defective law which it 
receives at the hands of customs and statutes into a law which shall 
be complete and free from omissions. In other words, it is its 
lunction to transform the raw material into a work of art. A two- 
fold activity is required for the performance of this task : the rules 
of law must first be ascertained ; when ascertained, they must In- 
worked out and unfolded. 4 5 £> 3 ^ 

In the first place, then, jurisprudence must ascertain what the 
rules of law are which it receives directly from customs and statutes. 
This it does by means of Interpretation. Juristic interpretation is 
either ‘grammatical ’ or ‘ logical/ If it is an interpretation of the letter, 
i.e. of the words as they stand, it is called ‘grammatical ’ ; if it is an 
interpretation of the sense by reference to the context as well as the 
origin and object of the rule of law, it is called ‘ logical.’ 

In the logical interpretation of a rule of law the element which has 
to be considered above all others is the object of the rule, that is, the 
practical effect intended by the law giver 1 . The idea of justice, which 
is the vital principle of law, requires that the considerations of 
practical utility inherent in the relations of life shall be taken into 
account, and where— as is often the case in these relations— f 
conflicting purposes of opposite parties clash, it happens but too 
frequently that the extent to which the ideal of justice is realized 
depends on the amount of force which the practical efforts battling 
for life are able to command. Law bears thus a double aspect : on y 

1 In his work, Dcr Zweck tm Rerht utility. Whatever is of practical utility 

(vol. i. cd. 2, 1NN4; vol. ii. 1S.S3., to the people, whatever (in other wonh 

jhering has made an interesting and is in the common interest </«*//, that is 

ingenious attempt to show that the humanly speaking just, and convert iv 
'object’ aimed at, that is, the con* 'supra, pp. .23. 24; it is ‘ righteousness ’ 

sideration of practical utility, is, as he ,i.e. justice that 1 rxaltcth a nation.' 

puts it, the ‘creator of law.’ See also The real opposition lies between justice. 

A. Merkel's argument in von Holt/en- on the one hand, and the separate in- 

dorff’'. J.ncyklofuidie dcr Rtchhwisscn- (crests of an individual or class as such. 

sihaji (vol. i. ed. 5, ityo, pp. 13, 14) on the other hand, and it is undoubtedly 

where Jhciing’s idea is turned somewhat true that interests of this kind can ne\«*r 

differently. J here is however no real be {x.’rm.miUly a source of law. 

antithesis between justice and practical 



SOURCES AND FUNDAMENTAL CONCEPTIONS 31 


the one side it is a reflection of things divine, on the other side § 8 
a reflection of things human. Jurisprudents est divinarum atque 
humanarum rerum notitia, justi atque injusti scientia 2 . He alone 
can claim to have obtained a real vision of the law, of justice and 
of injustice, to whom life has revealed itself in its fulness. It is of 
course true of jurisprudence as it is of other sciences that the know- 
ledge it commands is, and will remain, fragmentary. But it has 
a lofty aim in view to which it must strive, 'with unremitting 
endeavour, to approach as nearly as may be. It is the foremost 
function of* the ‘logical’ interpretation to show clearly the real 
contents of a rule of law by means of a true perception of its actual 
conditions and effects \ in other words, a logical interpretation should 
be, above all things, practical, it should exhibit the material signifi- 
cance of the rule, subjecting it to a keen and searching test in its 
bearings on * things divine and human.’ 

Logical and grammatical interpretation must always be combined, 
the former, in many ways, rectifying the results of a mere interpreta- 
tion of the letter. When it extends the grammatical interpretation 
of the words, it is called 1 extensive,* when it restricts the grammatical 
interpretation, it is called ‘restrictive’ interpretation. To take 
deliberate advantage of the letter of the law — that is, of its gram- 
matical interpretation — in defiance of its sense — that is, its logical 
;t tterpretation — would constitute a proceeding ‘in fraudem legis V 

L. 17 D. de leg. (1, 3) (Celsus) : Scire leges non hoc est verba 
earum tenere, sed vim ac potestatem. 

. L. 29 eod. (Paulus) : Contra legem facit, qui id facit quod lex 
prohibet, in fraudem vero qui, salvis verbis legis, sententiam 
ejus circumvenit. 

Having thus ascertained the rule of law, jurisprudence must next 
[ proceed to develop, or work out, its contents. A rule of law may 
be worked out either by developing the consequences which it in- 
volves, or by developing the wider principles which it presupposes. 

3 Cp. § i Inst, de just, et jure (1,1); 3 Cp. J. Pfaff, Zur Lehre vow sog. in 

L. 10 § 2 D. de just, et jure (1,1). fraudem legis agere t Vienna, 1892. 



32 


THE INSTITUTES 


§ 8. For one rule of law may involve a series of more specific rules of 
law ; it may be a major premiss involving a series of minor premisses. 
Or again, the given rule of law itself may be the consequence of 
more general rules ; it may be a minor premiss presupposing certain 
major premisses. The more important of these two methods of 
procedure is the latter, i. e. the method by which, from given rules 
of law, we ascertain the major premisses which they presuppose. 
For having ascertained such major premisses, we shall find that they 
involve, in their logical consequences, a series of other legal rules 
not directly contained in the sources from which we obtained our 
rule. The law is thus enriched, and enriched by a purely scientific 
method. When a given rule of law is so used as to lead us, by an 
inductive process, to the discovery of a major premiss, the ascertain- 
ment of new rules by means of the major premiss thus discovered 
is termed the * analogical application 1 of the given rule of law. The 
application, then, of a principle (a major premiss) which is given, we 
call the method of Inference ; the application of a principle which 
we have found, we call the method of Analogy. 

The scientific process by means of which principles are discovered 
which are not immediately contained in the sources of law may be 
compared to the analytical methods of chemistry. It is in this sense 
that Jhering has spoken of a ‘juristic chemistry V Jurisprudence 
analyses a legal relation which is regulated by a rule of law into its 
elements. It discovers that amidst the whole mass of legal relations 
which are for ever emerging into new existence from day to day — 
endless and apparently countless— there are, nevertheless, certain 
elements, comparatively few in number, which are perpetually re- 
curring merely in different combinations. These elements constitute, 
in the language of Jhering, the 1 alphabet of law V The common 
element, for instance, in every agreement, whether it be an agreement 
to purchase or to hire or to create a pledge-right, &c., is just the 
agreement, in other words, the expression of consensus. An ex- 
haustive enumeration of the legal rules concerning sales must 

4 v. Jhering, Geist des romischen (2nd ed., 1871), p. 11. 

Rechts auf den verschiedenen Stufen * Geist des 10m. R. t Part I (3rd ed., 
seiner Entwickelung \ Part 3, subdiv. 1 1873), p. 42. 



SOURCES AND FUNDAMENTAL CONCEPTIONS 33 


necessarily include certain rules bearing on this element in every § 8. 
contract of sale, viz. the expression of the concordant will of the 
parties. Thus from the legal rules concerning sales we gather 
certain major premisses, or general rules, concerning this element 
of * agreement/ which rules will accordingly determine the require- 
ments that are necessary to constitute an agreement, the effect of 
error, of conditions, or other collateral terms, and so forth. They 
are major premisses involving a countless variety of other legal rules, 
which will assist us in fixing the conditions under which other 
agreements, say, to hire, to deliver, to institute some one heir, and 
many others, are effectually completed, subject, of course, to such 
modifications as may be necessitated by a different set of major 
premisses. Thus, in applying the method of analogy to a rule of 
law, we are, at the same time, discovering the ingredients of the 
legal relations. The method of analogy does not mean (as the lay 
mind is apt to imagine) the application of a given rule of law to 
a legal relation of a somewhat similar kind. Such an analogy would 
be the very opposite of scientific jurisprudence. It is the application 
of a given rule not to a merely similar relation, but to the identical 
relation, in so far as the identical element (to which the given rule 
had already assigned its proper place) is traceable in a legal relation 
which is apparently different. 

These, then, are the methods by which jurisprudence attains to 
a full knowledge of the materials of the law, and filling up the blanks 
which it finds there moulds the whole into completeness. The 
discovery of the elements which recur in every legal relation brings 
with it the discovery of rules of law which.meet the just requirements 
of every legal relation. The mode of proceeding may be either by 
Analogy, i. e. by the discovery of those elements and the analysis 
of legal relations ; or by Inference, i. e. by the practical application 
of those elements and the synthesis of legal relations. It is not by 
the legislator, but by scientific jurisprudence, that the complexity of 
human relations is regulated. 

II. The Ideal Function of Jurisprudence. 

Jurisprudence fulfils its practical function by effecting a material 
addition to our rules of law, by bringing to light, as it were, the 

SOHM : LEDLIB D 



34 


THE INSTITUTES 


§ 8. actual matter of the law. It fulfils its ideal, its purely scientific 
function— what one may call its artistic function— by means of the 
form in which it presents these rules of law. For, as in the abun- 
dance of matter we are fain to look for the unifying conception 
which underlies the whole, so in the abundance of legal rules we 
instinctively search for the one idea which dominates all. It is the 
ideal task of jurisprudence to satisfy this desire for unity which 
exists in the mind of man. With this purpose in view, jurisprudence, 
in expounding the law, will avoid the use of the imperative form, in 
other words, it will avoid a simple enumeration of legal rules. It 
prefers to deal, on the one hand, with the facts, or groups of facts, 
which produce juristic effects ; and, on the other hand, with the 
juristic effects annexed to these facts, or groups of facts, with a view 
to arranging both facts and effects under definite categories or con- 
ceptions, which it defines. A scientific exposition, for example, 
would never run as follows : If a thing has been delivered to you 
under a contract of sale, you have a right to keep it, and a third 
party into whose possession it comes, is bound to hand it over 
to you. The scientific exposition would be in this fashion. First, 
ownership is a right, unlimited in its contents, to exercise control 
over a thing. Thus we get the conception of 1 ownership.’ Secondly, 
ownership can be acquired by traditio, occupatio, usucapio, &c. 
(each of these terms being defined). Thus in place of a series of 
legal rules we have a number of abstract conceptions, partly of rights, 
partly of facts. When this is done, the abstract conceptions appear 
to govern those very rules of law on which, as a matter of fact, they 
depend, and from which they have been derived. Jurisprudence 
deduces from the conceptions of ownership, delivery, &c., the several 
positive rules of law, the identical rules, namely, which it had pre- 
viously, as it were, put into those conceptions. In point of form, 
then, the positive character of law is merged in the predominance of 
abstractions, and jurisprudence proceeds as though it evolved those 
rules spontaneously from general principles. And it is precisely by 
this means that the craving of the human mind for unity, and the 
instinct which shrinks from the predominance of matter, are satisfied. 

Each conception, once gained, urges us to rise to still higher ones, 



SOURCES AND FUNDAMENTAL CONCEPTIONS 35 

and thus the ideal instinct of the science of law begets a desire for § 8. 
a system of law , i.e. for a form of representation in which the whole 
body of law shall come before us as the spontaneous evolution of 
one single conception, the conception, namely, of Law : this done, 
matter will sink into the background and make way for the 
victorious Idea. 


I) 2 



PART I 


THE HISTORY OF ROMAN LAW 


Introduction. 

§ 9. The Quiritary Law . 

9. At the period when Rome first emerges into the light of history 
the law of the city had already completed a long course of develop- 
ment. The traditions concerning the pre-historic stage of Roman 
law are indeed of the scantiest, but such as they are, we should try 
at least to make them yield to us a picture, however imperfect, of 
the character of this primitive development, and, in so doing, to 
form some idea of the nature of the soil from which the authentic 
portion of the history of Roman law has sprung \ 

The pre-historic stage in the development of the Roman state and 
of Roman law coincides with the period of the kings. The Roman 
state in the regal period was a state of clans. With the Romans as 
with other peoples the clan (gens) was the primary cell from which 
the state was evolved. Beside the king as chieftain we find a council 
consisting of the elders of the clans 1 2 , the senatus, and the entire 
body of all the members of the clans, the populus. 


1 Among those whose labours have 
contributed to our knowledge of Roman 
constitutional and legal history special 
mention should be made of Mommsen 
( Romisches Staatsreckt, 3rd ed., 3 vols., 

1887; Abriss des rom . Staatsreehts , 
in Binding’s Hand buck , 1893) and 
Jhering ( Geist des rom . Rechts auf den 
verschiedenen Stufen seiner Entwicke- 
lung, 5th ed., 3 vols., 1891). An ex- 


haustive account of Roman legal history 
has been commenced by Karlowa, Rom. 
RG. t vols. i. ii. parts 1, 2, 1885 ff., and 
M. Voigt, Rom. RG ., vol. i, 1892 ; 
vol. ii, 1899. Schulin’s Lehrbueh der 
Geschichte des rom . Rechtes , 1889, is a 
short text-book on the subject. 

2 Every member of the ancient pa- 
trician Senate was ‘in theory a king’ 
and ‘ could actually officiate as such,’- 



INTRODUCTION 


37 


An individual as such could not belong immediately to the state. § 9. 
In order to belong to the state, he had first to belong to one of the 
clans or gentes which composed the state. A group of gentes consti- 
tuted together a curia y ten curiae formed a * third/ or tribus , and the 
three ‘thirds’ — Ramnes, Titienses, Luceres — formed the state. In 
the structure of the state the curia was the smallest recognized unit : 
the liability to military service was regulated by curiae — each curia 
being bound, on principle, to furnish one centuria for infantry 
service and one decuria for cavalry service— and it was by curiae 
that the voting took place (in the comitia curiata). Within the curia 
the gens had no existence as a political unit. On the other hand, 
no one could be a member of a curia (that is, a ‘quins’), and 
therefore a citizen, unless he was a ‘ gentilis,’ or member of a clan. 
Civic, or quiritary, rights could only be enjoyed through the medium 
of gentile rights. There was accordingly only one way — apart from 
the admission of individuals to an existing clan — whereby the 
number of citizens could be enlarged, and that was by admitting 
new clans — the so-called ‘younger clans,’ gentes minores — to the 
curiae. The individual as such was incapable of political rights 
or duties. It was only through the medium of his clan that the 
capacity for such rights and duties could be acquired. 

With the development of the state the gens ceased to play any 
part as a political corporation. The growth of the state involved — 
and necessarily involved, by the very nature of the process— the 
break-up of the political cohesion of the gens. But in economic 
as in religious matters the bond of unity which had held the clan 
together before the state came into being remained in full force 
during the period of the kings. The arable portions of the land 
of the community (the ‘ ager privatus ’) were not assigned to 
individuals, but to gentes. Individual property in land was un- 
known. The very house and garden (horctus) of the clansman, 
though allotted to him in permanence, were not held by him as 
owner, but remained in the common ownership of the gens — 

as interrex, namely (Mommsen, Abriss , grew out of the position occupied by 
P* 306). The kingship itself obviously the senior member of a clan. 



38 


THE INSTITUTES 


§ 9. a ‘heredium/ or homestead, which he had no power to alienate 3 . 
As at one time with the Germans, so with the ancient Romans, the 
husbandry of the individual was a constituent part of the common 
husbandry of the clan. Free rights in severalty could only be 
enjoyed by the individual in respect of that which he had ‘ in his 
hand,' ‘in manu’; that is to say — apart from his wife (uxor in 
manu ) 4 and children — in respect only of things capable of 1 man- 
cipium/ things that could be ‘taken with the hand/ viz. slaves 
(mancipia) and cattle (pecunia). Now, it was only movables that 
could be thus ‘taken with the hand.* Originally, therefore, only 
movables ranked as res mancipii (infra, § 59 III), as objects of complete 
ownership, — they alone, in other words, could be held by individuals 
as separate property. But even in this case separate property can 
be traced back to common property as its source. In the earliest 
times all property, movable as well as immovable, was the common 
property of the gens, and it is on this primitive fact that the 
supplementary right of the gens to succeed to the inheritance of 
a deceased person — in default namely of agnates — was based, a right 
which continued to be recognized down to the early Empire (infra, 
§ hi) 5 . The management and cultivation of property is carried 
on, in the oldest times, on behalf of the gens ; it is the gens alone 
that owns ; all property whatsoever is on principle the collective 
property of the gentiles. Each member of the clan at this stage 
enjoys rights of property, just as he enjoys political rights, by virtue 
of his clanship alone. The individual, standing by himself, counts 
for nothing. Whatever he is, he is, politically or economically 
speaking, through his family, or rather through his gens, which is 


3 It is in this same sense that the 
term ‘terra salica’ occurs in the later 
texts of the Lex Salica, in the sense 
namely of ‘folkland’ permanently as- 
signed in user to individuals (cp. Berichte 
der konigl. sachsischen Gesellscha/t d. 
W issenschaften,phil.-hist. Klasse, 1896, 
p. 104 ff.). The same thing is to be 
found, about the same time, in the Lex 
Ribuaria under the name of 1 hereditas 
aviatica/ or ‘hereditary land.’ 

4 foha* § 92, and supra, p. 26. 

The German ‘munt’ (e.g.in ‘Vormund- 


schaft’) corresponds linguistically and 
in substance to the Latin ‘manus.’ 
Munt means ‘hand’ and is the oldest 
German expression for individual owner- 
ship. Cp. A. Heusler, lmtitutiomn 
des deutschen Privatrechts , vol. i. p. 95 (f. 
M. Voigt, Rom . RG. t vol. i. p. 348 ff. 
C. Tunzclmann v. Adlcrflug, Zttm IVesett 
der langobardischen Munt, Inaugural- 
dissert., Freiburg im Breisgau, 1897, 

P* 3 1 ff - 

J On this subject, see Mommsen, 
Rom. Staatsrecht , vol. iii. p. 23 ff. 



INTRODUCTION 


39 


his collective family. For even the separate family can only exist § 9* 
under the protection of the gens*— as a branch, so to speak, of the 
gentile tree. The gens alone lives, not the individual. 

There can be no doubt that the economic significance of the 
gentile organization had a decisive influence on its political effects. 

A clansman enjoyed political rights through his clanship just because 
it was through his clanship that he enjoyed rights of property. 
Private law furnishes the foundation upon which public law rests. 

As early as the regal period however the gentile system in Rome 
was deprived of its economic importance through the development 
of the principle of separate private property. The upshot of the 
development was that the Roman state ceased to be a state of 
clans. 

The decisive factor in this process was the extension of the notion 
of separate ownership from movables to land. Among primitive 
communities land is the seat of economic power. The principle 
of private property was applied, in the first instance, to town land, 
to the clansman’s house and garden within the city. The arable 
fields followed next. The rights of the clan in the arable land were 
broken up and distributed among the individual holders. The only 
traces of the former collective ownership which survived in later 
times are to be found in the law of succession and in the law of 
guardianship, which latter is closely bound up with the law of 
succession. Land became a ‘res mancipii,* a thing that ‘could be 
taken with the hand.’ For purposes of private law it was treated 
as a movable and, as such, was added to the category of things that 
could be held in free individual ownership. 

Tradition assigns the decisive turning-point in this development 
to the reign of Servius Tullius 6 . It is however evident that the 


p it is to Servius Tullius that the 
division of the city of Rome into four 
local tribes is attributed. These four 
city tribes were afterwards followed by 
the creation of sixteen country tribes 
(see note n). The local tribe marks 
the sphere of individual property. The 
break-up of the common rights of the 


gens within the city finds expression in 
the creation of the city tribes; the 
creation of the country tribes means that 
the arable land previously held by 
gentes has been divided among indi- 
viduals. Cp. Mommsen, Rom . Staais- 
recht, vol. iii. p. 162 ff. 



40 


THE INSTITUTES 


§ 9. so-called ‘Servian Constitution’ merely gave expression and effect to 
the final results of conditions which had actually been established 
for a great many years. That such was the case is shown most 
clearly by the fact that the rise of the institution of private property 
in land was most intimately associated with another development, 
the rise, namely, of the estate of free plebeians — a development 
which, as usual, matured but by slow degrees. 

From the oldest times the Roman community had comprised, 
besides the class of freemen, a body of unfree men (servi). An 
unfree man, as such, was not a person, but a thing. He was 
entirely debarred from private as well as from political rights. But 
an unfree man was always potentially a free man. In ancient Rome 
the legal road to freedom lay through the relation called clientela. 
Clientes, or vassals, were such unfree men as were not, in fact, 
treated in the household as things — in other words, as servi — but 
as ‘liberi,’ or children of the family. legally speaking, being unfree, 
they were not ‘father’s sons,’ patricii, nor could they be ‘fathers’ 
(patres) in the legal sense. As a matter of fact however they stood 
on a level with the free members of the household. They were 
attached to a member of one of the gentes as men ‘who hearkened’ 
(clientes), and were reckoned as belonging to his gens and curia, not 
however as free associates, but only as dependants. Still the fact 
that they were thus brought into connexion — though only into 
passive connexion— with the gentile organization, necessarily brought 
them into connexion — though again only into passive connexion - 
with the Roman state. It contained at any rate the germ of a future 
liberty. The further development of the institution of clientela was 
mainly and most materially influenced by the practice of admitting 
entire bodies of citizens of conquered towns within the pale of the 
Roman community. Since these new-comers, who were men of 
kindred race, could not be received on a footing of equality nor 
again as slaves, the only course left was to rank them as clientes. 
Nominally they were attached as vassals to some patrician. As 
a mrtter of fact they were free. They kept, and were intended to 
keep, their own property. They kept their own marriages and their 
own separate families. But they were, of course, precluded from 



INTRODUCTION 


41 


forming a gens of their own 7 , for the simple reason that they already § 9 . 
belonged to one or other of the patrician gentes, though indeed only 
as dependent members *. In the eye of the law, consequently, as 
they had no independent personality of their own, they could not, in 
the first instance, possess their goods, or their wives and children, 
directly, but only, like the clientes, indirectly, through the medium 
of the patrician clansman to w'hom they were attached as patron. 

But since they were admitted in large bodies at a time and were left 
in actual enjoyment of their liberty, their connexion with the patron 
and, through him, with the gens, was a mere fiction. As a matter of 
fact these dependants took their place in the legal system of Rome 
as clan-less people, in a word, as individuals. The far-reaching 
importance of this fact cannot be exaggerated. It marks a rupture 
with the traditional legal ideas of Rome. Of course the change was 
not effected at one blow. Such a proceeding would have been 
foreign to the Roman character. The complete w r orking-out of the 
new legal idea involved a struggle which occupies the entire first 
epoch of the development of Roman law, an epoch which is in the 
main pre-historic. It was the struggle at the memorable close of 
which Roman law and the Roman state stood ready to take up their 
great role in the history of the world. 

The result of the practice of admitting the populations of conquered 
towns as clientes within the pale of the Roman community was that, 
after a time, the clientes formed numerically the bulk of the inhabi- 
tants of Rome. They were the ‘multitude/ the ‘plebes/ as con- 
trasted with the gentes, the patrician ‘ populus.’ Their strength lay 
in theii / numbers. Only a fraction of the clientes actually remained 
in the legal condition of clientela. With the great majority, clientela 
was but a half-way house on the road to legal freedom, that is, to the 
freedom enjoyed by the ‘ plebeians ’ 9 . 

■ ^ was within the sphere of private law that the plebeians were 

;■ f irst allowed to have legal rights. Their property — movable property 

l 7 The strict legal term for the plebeian in the curiae is of later origin. Momm- 
' ‘gentes’ was ‘stirpes/ not gentes. sen-, op. cit. t pp. 9a, 93. 

\ ^ he y were not gentes in the legal sense. 9 On this topic the results established 
j£. M ?®!f sen : °P' at " v °l* iif P* 74 * by Mommsen’s researches (0/. «*/., p. 

lhe n gbt of the plebeians to vote 55 ff.) arc of fundamental importance. 



42 


THE INSTITUTES 


§ 9. alone was in question at first— was recognized as belonging to them 
by legal title ; their marriages were recognized as lawful marriages. 
We have no' documentary evidence at all to show how this develop- 
ment — one of the most momentous of ancient times — came about. 
The change was probably due to an unconscious transformation of 
the legal convictions of the people finding expression in their actual 
habits and practice. The greatest and most far-reaching revolu- 
tions in history are not consciously observed at the time of their 
occurrence. 

In ancient law the capacity to have rights within the private law is 
a constituent part of a man’s general capacity as a citizen. A citizen 
alone is legally a person. To allow therefore that a plebeian could 
have private rights was to allow that he was pro tanto a citizen. He 
had become capable of holding property by quiritary title, by the 
title of a Roman citizen ; he could contract a lawful marriage, that 
is, a marriage of the kind contracted by Roman citizens. Thus the 
great reform had been accomplished as far as private law was con- 
cerned. The plebeian and the patrician now ranked legally as 
equals. The plebeians accordingly participated in that development 
which led in Rome to the recognition of separate quiritary ownership 
in land. Indeed the victory of the principle of private property and 
the rise of the plebeian order were closely connected with one 
another. Whatever a plebeian owned, he owned, as a matter of 
fact, from the outset independently of the gentile organization ; his 
ownership was in reality all along the ownership of a clan-less man, 
in a word, it was individual ownership. The conception of free 
individual property sprang from the ranks of the plebeians, and 
it was this very conception that destroyed the gentile organization 
of the ancient families. When the land in the country — which 
technically the plebeians had perhaps at first only occupied precario 
—was ch'vided up, the benefits of the change affected the plebeians 
as veil as the patricians, indeed they would seem to have affected 
the plebeians more particularly 10 . And it is this fact that finds 
expression in the ‘Servian’ constitution. 


10 Cp. Weber, Rom. Agrargeschichte , 1891, pp. 117-S. 



INTRODUCTION 


43 


We have seen that, for economic purposes, the old gentile system § 9. 
had been broken up. It was merely a question of time when it 
would cease to have any connexion with the structure 'of the state. 
Servius Tullius is reported to have further signalized the formal 
recognition of private individual property in land 11 by making the 
ownership of land the new foundation of his military and fiscal 
arrangements. The plebeians had become sharers in the property 
of the nation. It was right therefore that they should be required 
henceforth to render the military service and pay the taxes due from 
them as citizens. The duty to serve in the army and to pay taxes 
was annexed to the ownership of land. For purposes of infantry 
service the whole body of citizens was divided into five classes 
according to the amount of land they owned; each class was 
liable to military service in a fixed number of sub-divisions called 
centuriae 12 . Service in the cavalry centuriae was subject to special 
regulations. The cavalry centuriae were permanently under arms. 

The infantry centuriae consisted, as such, not of actual levies, but 
of persons liable to be levied. As regards taxation, on the other 
hand, the division of the ager privatus into local tribes (supra, p. 39, 
note 6) was used as a basis for the new arrangements. 

The reform of the rules of military service and taxation was 
necessarily followed by a reform of the franchise. It was towards 
the beginning of the Republic at latest that the citizen army, in its 
newly organized form, became the governing populus Romanus. 

The voting took place by centuries. The eighteen centuries of the 
cavalry voted first, then followed the five divisions of the infantry in 
due order, the first division— the ‘ classici in eighty centuries, the 
remaining four divisions together in ninety centuries. The cavalry 
and the first division (i. e. the class owning the largest number of 
jugera) were sufficient, if they voted together, to form a majority ,s . 


11 It is most probable that at this 
time the division of the town land had 
, already taken place ; the division of the 
: land in the country, in other words, the 
: establishment of the local country tribes, 
j was in preparation. Cp. Mommsen, 
\ op. cit., p. 244, and supra, n. 6. 
j la The first division of the infantry 


was called ‘classis,’ simply; it repre- 
sented the real ‘line’ of the phalanx. 
The term ‘classis’ was subsequently 
extended to the four lower divisions, the 
total number of classes being reckoned 
as five. Mommsen, ibid., p. 263. 

ia As to the subsequent development 
of the organization of the comitia cen- 



44 


THE INSTITUTES 


§ 9. The preponderant influence of land was thus transferred from the 
economic to the political sphere. 

In the exercise of the sovereign powers of the Roman community 
—except as regards the regulation of certain questions of gentile 
law 14 — the comitia curiata were now superseded by the new comitia, 
the comitia centuriata. This fact marks the great turning-point in 
the development 1 "’. A new community had come into existence, 
a populus Romanus consisting of both patricians and plebeians . 
The plebeians had thus succeeded in obtaining a recognition of 
their capacity in regard to public as well as to private law. As 
distinguished from the plebeians, the patricians merely represented 
henceforth a noble caste enjoying certain privileges the real founda- 
tions of which had disappeared. It was only a question of time 
when the last remnants of the ancient class distinctions would be 
swept away, though the two final stages in the development — the 
concession of connubium with the patricians (involving a recognition 
of equality of birth as between the two orders), and the acknowledg- 
ment of the plebeians’ equal rights to public and sacerdotal offices — 
were not reached till after the Twelve Tables™. The multitude 
rose from vassalage to full freedom. The strength of the Roman 
body politic dates from this time, and Roman law was ready to set 
out on its great historic career. 

The regal period ends with the break-up of the state of clans and, 
at the same time, with the new birth of the populus Romanus on 
a broader basis. The citizen of the new state was called civis. He 
superseded the older type of citizen, the t/uiris, or member of a curia. 
In place of a quiritary law wc have a civil law, that is, a law for the 


turiata, and of the laws dealing with 
military service and taxation, v. Momm- 
sen, op. cit ., vol. iii. p. 247 ff. 

14 For example, if an independent 
male citizen wished to pass by adro- 
gatio (infra, § 100, into another gens; 
Mommsen, ibid . , p. 318 ff. 

The comitia tributa — which existed 
in the first instance side by side with 
the comitia centuriata, but as comitia 
of lesser legal authority (comitia leviora) 
— did not embody any new and fruit- 
ful idea of fundamental importance ; 


Mommsen, ibid., p. 322 IT. 

The J.ex Canuleja of the year 309 
A.u.c. (445 u.c.) gave the plebeians 
connubium with the patricians. In 387 
A.u.c. (367 B.c.) the Lex Licinia enacted 
that one of the consuls must be a 
plebeian. The tribuni plcbis— whose 
office was perhaps a very ancient one, 
though the right of intercession was not 
bestowed on them till the year 260 
A.u.c. (494 b.c.) as a result of the first 
secessio — were not, as such, magistrate 
populi Romani. 



INTRODUCTION 


45 


individual civis as such, whose liberty has its foundation, not, as § 9. 
before, in clanship, but simply in membership of the state (civitas). 

It is the development of the Roman civil law that gives to the 
history of Roman law its special character and its permanent 
importance. 

§ io. The Development of the Civil Law in its 
Principal Stages. 

Two features characterize the pre-historic stage in the develop- § 10. 
ment of Roman law which we have just described. 

In the first place, there is the preponderant influence of landed 
property. The old common ownership of the gentes in the land 
was the basis of the gentile organization. When the land was 
divided up, the gentile organization disappeared, but only to make 
way for another system, founded, like it, on landed property. 

In the second place, we cannot fail to be struck by the energy 
with which the idea of individual landed property was carried 
through at, comparatively speaking, so early a stage, and by the 
rapidity with which the consequences involved in the idea were 
realized. For the development of free private property in land (as 
in movables) — from its beginnings down to its final completion — 
falls entirely within the regal period, in other words, it was finished 
before the authentic history of Rome even commences. German 
law adhered, during its whole development right down to the close 
of the Middle Ages, in the main to restricted forms of landed 
property, viz. collective ownership, feudal and other kinds of tenure. 

The history of Roman law, on the other hand, starts at once, from 
the moment the authentic tradition begins, with free private property 
in land as in movables, and this conception of the freedom of 
ownership becomes henceforth the guiding principle in the entire 
development of Roman private law. 

It is readily perceived that the remarkably early victory of the 
principle of free ownership in Rome was due to the conditions 
of town life. From the very outset the city (urbs) stood in the 
centre of Roman history, legal as well as political. The city is 



4 6 


THE INSTITUTES 


§ 10. the birth-place of commerce \ and commerce demands free rights 
of property. It is the city again that begets the multitude, the 
compact body of persons living close together, and the effect of 
a multitude is to wear away the gentile bond and to leave the field 
free for the individual. A community of clans thus makes way for 
a community of persons belonging to the same locality. Throughout 
the Middle Ages German law remained primarily a law for the 
country. The distinctive feature of Roman law is that when it 
first appears on the stage of history it is already a city law. Almost 
thtoughout the Middle Ages again German law received its decisive 
impulses from the peasantry and the nobility ; Roman law, on the 
other hand, tended from the very outset to become a law for a city 
and for citizens. 

In the history of the Roman civil law we observe two stages of 
development. 

During the first period Rome is a state of peasant-citizens 1 2 . We 
have seen how the fusion of patricians and plebeians produced 
a new type of commonwealth, but the citizens of this commonwealth 
had not, as yet, shaken off the associations of their earlier rural life ; 
they still breathed the strength that comes of contact with the earth. 
A man's worth and duties as a Roman citizen were alike measured 
by the land he owned. It was the freehold that made the man. In 
the comitia centuriata the preponderance of power lay, as we have 
seen (p. 43), with the classici, the largest owners of land. After- 
wards, when the Roman plebeian had succeeded in securing a recog- 
nition of his right to hold his house and his field in free separate 
ownership, the rights in the ager publicus, the common land— it was 
originally pasture land— became the principal object of his economic 
and political interests. The struggle for the enlargement and, at the 
same time, for the distribution of the ager publicus occupies nearly 
the entire period of the Republic. 

The Roman peasant-citizen embodies the true type of the genuine 

1 In Rome as elsewhere the com- ancient patricians represented a class of 

mercial interests were quick to assert ‘great landed proprietors engaged in 

themselves, Mommsen, Rom. (kschichte % commerce on a large scale/ M. Weber, 
8th ed., \ol. i. p. 46 ff. (Dickson’s Tians- Rom. Agrargesch ichte, p. 1 16. 

lation, vol. i. p. 56, 1894). The 3 Cp. M. Weber, op. «V., p. 117. 



INTRODUCTION 


47 


Roman burgher. The civil law of this period bore a distinctively § 10. 
national Roman (i.e. Latin) character. It was rigid, cumbrous, 
punctilious in form, and of juristic acts it had but few to show. 

True, it was already a law for citizens, a law based on freedom of 
property and freedom of intercourse, but, for all that, it bore clear 
traces, in its narrowness and its limitations, of the old-world peasant 
notions of an earlier age. The Roman law of this period was a city 
law, a law adapted to the requirements of a community circum- 
scribed and determined by its national character; but it was the 
city law of a peasant community, and its essence lay in the jus 
strictum } the rigid law of an age when commerce moved but 
slowly. 

As a result of Rome’s political successes the range of the Roman 
community was enlarged. Towards the close of the Republic the 
Roman franchise had been extended over the whole of Italy, and 
the soil of Italy had become Roman ager privatus. At the same 
time Rome became the centre of the world’s government and the 
world’s trade. 

The Punic Wars had decided the struggle for supremacy in the 
world in favour of the Romans. The close of the wars marks 
the commencement of the second period in Roman history and 
Roman law. 

The ravages of the war with Hannibal broke the back of the 
Italian peasantry. Rome ceased henceforth to be a nation of 
peasant-citizens. The great Carthaginian was vanquished, but in 
succumbing he dealt a mortal wound to the national life of Rome, 
and the young empire which arose over the ruins of Carthage bore 
the seeds of its own destruction within it. The class of small land- 
owners disappeared. A larger type of citizen survived, the type 
represented by the proprietors of the great latifundia and the great 
merchants, the class who, with their troops of slaves, crushed the 
free labour and, with it, the freedom of the masses. The system 
of latifundia spread from Italy all over the Roman Empire, carrying 
serfdom with it wherever it went. While Rome’s serfs were growing 
into freemen, her power was steadily in the ascendant; when the 
mass of her small freemen lapsed into serfdom, her power was 



4 8 


THE INSTITUTES 


§ 10. doomed. Christianity came to proclaim the gospel to the masses, 
but it arrived too late to effect any decisive reform in the existing 
economic conditions. The Roman Empire fell a prey to the 
barbarians. 

The decay of the Roman State set in at the very time when the 
foundations of Rome’s supremacy were laid. At the same time, 
however, Roman law (and more particularly Roman private law) 
reached the culminating point of its development. The great 
capitalist and land owning class became the agents of a world-wide 
commerce which in its energy and in regard to the part played by 
money in its economic development reminds us of our own times \ 
Rome was no longer the country town of old. It had become the 
meeting-place of the nations of the earth who carried their treasures 
to her markets. And while commerce was levelling the national 
distinctions, Greek culture was spreading over all parts of the 
civilized world. The peasant-citizen was being transformed into 
the world-citizen, and, as a necessary consequence, the law of the 
peasant-state was broadening into a cosmopolitan system. The 
lines on which the development of the civil law actually proceeded 
are thus indicated. The jus civile, the law for Roman citizens, as it 
had been transmitted from the past, underwent a gradual transforma- 
tion and tended to approximate more and more to that other body 
of law which had matured alongside of the jus civile : the jus gentium, 
namely, the law regulating the dealings with foreigners— a law which 
combined simplicity in the requirements of form with a surprising 
comprehensiveness in regard to the matters brought within its range ; 
a law in which the claims of equity and the conceptions of honour 
and good faith (without which no developed system of commerce is 
possible) were given free play and were yet brought within the 
operation of definite rules. Towards the commencement of the 
third century (in the reign of Caracalla) the Roman franchise was 
extended to the great bulk of the subjects of the Empire (infra, § 33). 
In point of form, the Roman civil law was still only applicable to 
Roman citizens. But to be a citizen of Rome was now to be 

3 A comprehensive account of this Ilandkuch des Handelsrechts , 3rd rd.. 
subject is to be found in Goldschmidt’s vol. i. 1891, p. 65 ff. 



INTRODUCTION 


49 


i citizen of a world-wide Empire. The Roman civil law— at one §10. 
;ime a narrow kind of private law, circumscribed and limited by 
lational idiosyncrasies — expanded into a private law for the citizen 
){ the orbis terrarum , a law for the private person as such, a law, in 
Dther words, in which the essential and indestructible elements of 
:he private personality found expression. And at the same time 
:he rules regulating the ordinary dealings between man and man 
widened into a system in which the essential character of such 
dealings was brought out, a system not restricted to the dealings 
of any particular age, but applicable in all ages alike. Herein lay 
the secret of the imperishable strength of Roman private law. 
Roman citizenship of the specifically national type had to pass 
away in order that its mighty off-spring, the cosmopolitan system 
of Roman private law, might come into being. Roman law still 
continued to be called * civil law 9 : as a matter of fact however 
it had ceased to be the local law of a city and had become the 
universal law of a world-wide empire. 

The history of Roman law accordingly divides itself into two 
great periods : (i) the Period of Local Law, which extends down to 
the last century of the Republic; (2) the Period of Universal Law, 
which is the period of the Empire. The first period is marked by 
the prevalence of the jus civile of the old type, which is the rigid, 
formal, national (i.e. Latin) law of Rome. The second period is 
marked by the prevalence of what was to be the jus civile of the 
future, i. e. the equitable law, free from formalism, which sprang from 
the world-commerce — the ‘jus gentium’ — and the mutual inter- 
action of Greek and Roman influences. 


£OHM : LEDLIJE 


E 



CHAPTER I. 

Roman Law as the Law of the City of Rome. 
§ii. The Twelve Tables . 

§ 11 . The law of the city of Rome was called, very appropriately, * jus 
civile/ or the ‘ law for citizens ’ \ it applied exclusively to the citizens 
of the Roman city-state. This law was set forth, for the first time, 
on a larger scale, in the legislation of the Twelve Tables, b. c. 451, 
450 (a.u.c. 303, 304). The Twelve Tables mark, at the same time, 
the starting-point in the development of Roman law, so far as it can 
be historically authenticated, a development which, after steadily 
advancing in uninterrupted progression, finally culminated in the 
Corpus juris civilis of Justinian. 

The characteristics of early Roman law, as we find it, or suppose 
it to have existed, in the Twelve Tables, are formalism and rigidity. 

All private dealings between man and man are, at this time, 
governed by two juristic acts : (1) ‘mancipatio 1 (or ‘mancipium, 1 in 
the old language) ; (2) ‘ nexum. 1 

1. Mancipatio. 

Mancipatio is the solemn sale per aes et libram 1 . In the pre- 
sence of five witnesses (cives Romani puberes) a skilled weigh* 
master (libripens) weighs out to the vendor a certain amount of 
uncoined copper (aes, raudus, raudusculum) which is the purchase- 
money, and the purchaser, with solemn words, takes possession with 
his hand— hence the description of the act as ‘hand-grasp 1 — of the 
thing purchased as being his property. 

1 Bechmann, Dtr Kauf nach gemei - ence to it, Degenkolb in vol. xx. (p.481 ft) 

nem Recht , vol. i. (1876), and, in refer- of the AW/. Vicrteljahrsschrift . 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 51 


Gajus, Inst. I. § 1 19: Est autem mancipatio . . . imaginaria § 11 . 
quaedam venditio, quod et ipsum jus proprium civium 
Romanorum est. Eaque res ita agitur : adhibitis non minus 
quam quinque testibus civibus Romanis puberibus et prae- 
terea alio ejusdem condicionis qui libram aeneam teneat, 
qui appellatur libripens, is qui mancipio accipit aes tenens 
ita dicit: hunc ego hominem ex jure quiritium meum 

ESSE AJO ISQUE MIHI EMPTUS ESTO HOC AERE AENEAQUE 

libra ; deinde aere percutit libram idque aes dat ei a quo 
mancipio accipit, quasi pretii loco. 

Before the Twelve Tables, when there was as yet no coined 
money, the weighing out of the aes by the libripens constituted or, 
at any rate, might constitute the actual payment of the purchase- 
money. Mancipatio was not an * imaginaria venditio/ but a genuine 
sale. But the decemviri introduced coined money into Rome. 

The first coin used was the copper c as/ the silver denarius not 
being introduced till 269 b.c. These changes, however, did not 
affect the formalism of mancipatio. The libripens and the weighing 
still remained, in spite of the fact that the weighing out of uncoined 
aes had ceased to constitute payment. For the payment implied 
in the ceremonial of mancipatio was now a purely fictitious one, and 
the actual payment was a matter quite independent of the manci- 
patio. Hence the enactment of the Twelve Tables that no manci- 
patio should be legally operative unless the price were actually paid 
or, at least, security were given for it 2 . Thus mancipatio continued 
to be a real sale, and on principle it was a sale for ready money, 
a narrowly circumscribed transaction clothed in rigid formalities 
: and only available for a single economic purpose. The manci- 
[ patory sale was the only valid form of sale which was known, and 


Cp. $ 41 I. de rer. div. (2, 1) : 
Venditae vero et traditae (res) non aliter 
emptori adquiruntur quam si is venditori 
pretium solvent vel alio modo ei satis- 
fecerit, veluti expromissore vel pignore 
; Quod cavetur quidem etiam lege 

i “Uoaecim tabularum * — It seems certain 
that the text which the framers of this 
passage in the Institutes had before them, 
contained the words : venditae vero et 

E 


mancipatae (not traditae) res. It was 
only in the course of the subsequent 
development that this rule was extended 
to res venditae et traditae (infra, p. 7 1). It 
must still remain a moot point whether 
the giving of security for the price (by va- 
dimonium or sponsio, infra, § 80, note 3) 
was really put on the same footing as 
the actual payment thereof as early as 
the Twelve Tables. 

% 



52 


THE INSTITUTES 


§ 11 , was thus at the same time the only private juristic act by which, 
at this stage of the jus civile, property could be conveyed. No 
alienation of property, therefore, was legally valid unless it satisfied 
the following conditions: it must be for valuable consideration; 
it must be carried out in the presence of five witnesses and the 
libripens ; the thing to be alienated must be before the parties, and 
only so many things can be alienated in any one transaction as the 
purchaser can take hold of (manu capere) at one and the same time. 
Thus if more things are to be mancipated than the alienee can 
take hold of at once, the whole ceremony of mancipatio must be 
repeated anew each time 3 . Such was as yet the clumsy and back- 
ward condition of the law which governed the ordinary dealings 
between man and man. 

2. Nexum. 

Next to mancipatio we have the * nexum,’ or solemn loan, another 
transaction per aes et libram. In the presence of five witnesses the 
libripens weighs out to the borrower the corresponding amount of 
raw metal, and the lender at the same time declares in solemn 
words that the borrower is his debtor— dare damnas esto— for the 
specified amount after the lapse of a specified time (twelve months). 
The borrower is now under an obligaiicn to repay. He is said to 
be ‘nexus’ to his creditor, i.e. he has pledged his own person for 
repayment of the loan. He thus stands already in precisely the 
same position as a judgment debtor, as a ‘damnas’ whom the 
creditor may, in default of payment, arrest by manus injectio, by the 
‘ laying on of hands/ and lead away as his bondsman for debt. Here 
again, the effect of the introduction of coined money was that the 
loan, as executed in the nexum itself, became a mere form, the actual 
loan being an independent matter. Nevertheless, as in the case of 
mancipatio, so here, the material character of nexum, as a trans- 
action subserving one definite purpose only, remained intact. For 
nexum could not be employed to create any kind of debt, but solely 

. 3 It appears from a document recently the whole mancipatio ceremony specially 
discovered in Pompeii that even in the for each separate slave. Cp. Kck, vol.ix. 
fiist century of our era it was necessary, p. 87 (Romanist. Abt.) of the ZS. dtr 
in mancipating several slaves, to repeat Sav. St, 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 53 

a debt based on a loan 4 . Thus we see that the law of contract, too, § 11 . 
was narrow and meagre, like the whole life of this early period. 

We have stated that mancipatio is a ready-money transaction. 

It does not, as such, bind the purchaser to pay the price, but only 
makes such payment a condition precedent to the passing of owner- 
ship. Nexum, on the other hand, is a transaction on credit. Its 
effect is to place the borrower under an obligation to repay. If he 
fails, the debt will be followed by execution. 

Execution proceeds directly with inexorable rigour against the 
person of the debtor. He falls into the power of his creditor, who 
may bind him and cast him into chains. After having thrice 
publicly invited some one to come forward and release him, the 
creditor may — in default of any one appearing, and after the lapse of 
sixty days — regard the debtor as his slave, and may either kill him 
or sell him ‘trans Tiberim,’ i.e. into a foreign country, viz. Etruria. 

If several creditors have claims upon one and the same debtor, 
the law allows them to cut the debtor into pieces, and provides 
that a mistake in the division shall in no wise prejudice their rights. 

XII tab. III. 1-4 : Aeris, confessi, rebusque jure judicatis, XXX 
dies justi sunto. Post deinde manus injectio esto. In jus 
ducito. Ni judicatum facit aut quis endo eo in jure vindicit, 
secum ducito, vincito aut nervo aut compedibus XV pondo, 
ne minore, aut si volet majore vincito. Si volet, suo vivito. 

Ni suo vivit, qui eum vinctum habebit, libras farris endo dies 
dato, si volet plus dato. 6 : Tertiis nundinis partis secanto. 

Sin plus minusve secuerint, se fraude esto* 

The rigour of the private law finds its counterpart in the rigour of 
the family power. Within his family the paterfamilias is an absolute 
sovereign ; he has power over the life and liberty of any member of 
the household. The only external checks on the exercise of his 
legal rights are furnished, not by the law, but by religion and custom. 

4 This follows from the legal rules way or other, so that just as the pur- 
about nexi liberatio (infra, § 89). It ap- chaser did not acquire ownership by the 
pears, therefore, that in nexum as well bare form of mancipatio alone, so here 

as in mancipatio the material character the debtor did not incur an obligation 

of the transaction must have been by the bare form of nexum alone, 
brought out in the ceremonial in some 



54 


THE INSTITUTES 


§ 11. It is nevertheless apparent, from the Twelve Tables themselves, 
that Roman law had already, at this early period, arrived at a com- 
■" paratively advanced stage of development. 

The very fact that, in the Decemviral Code, the law of the city 
assumed the form of statute-law on so comprehensive a scale is in 
itself characteristic of Roman law. The history of German law— in 
its earlier stages and down almost to the close of the Middle Ages — 
is marked by the preponderance of customary law; in other words, 
the development of the law is for the most part an unconscious and 
what may be called an artless process. The authentic history of 
Roman law, on the other hand, begins at once with an elaborate 
piece of codification. Under the influence of city-life the tendency 
of the law to adopt the trenchant and summary form of a statute 
gathers speed. It was the struggle between patricians and plebeians 
that led to the decemviral legislation. The object of reducing the 
law to writing was to put a check on the arbitrary authority of the 
patrician magistrate (infra, p. 56 ). The purpose was not so much to 
alter the law, as to fix, definitively and in writing, a law which should 
be the same for both orders. And the Twelve Tables themselves 
are the best proof that the law of the city had matured sufficiently to 
admit of its contents being formulated in vigorous language. 

It is in keeping with the advanced character of Roman law that, 
even at this early age, loans and sales— negotia per aes et libram — 
should occupy the central position in the private law of the 
Twelve Tables. The period of barter was long past. At the time 
of the decemviri the copper ingot (aes) had been established for 
a great many years as the principal power in commerce, and not- 
withstanding the change of currency it was retained in the ceremonial 
of nexum and mancipatio, because its use was sanctioned by 
immemorial observance. Simultaneously with the Twelve Tables 
coined money was introduced into Rome. The economic condi- 
tions of the city were tending to establish themselves on a money 
basis. What was a man’s by purchase was in the true sense his 
own, and only things that could be purchased (res mancipii) could 
be objects of true ownership. Even land had become a res man- 
cipii, a purchasable thing of value that could be ‘ taken with the 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 55 

hand,’ and, as such, had been added to the list of articles of free § 11» 
commerce. But the number of things which the law deemed 
purchasable was still strictly limited. The term * res mancipii * (or 
‘ mancipi ’) as yet only covered the necessary appendages of a 
peasant’s farm and the farm (fundus) itself (infra, § 59 III). At 
the same time the enormous power of capital and the resulting 
enslavement of insolvent debtors through the medium of nexum are 
unmistakable evidence of the fact that the age we are concerned 
with was one in which capital was still scarce. 

The law of the Twelve Tables was a law for citizens, but for 
peasant-citizens only, a cumbrous, rigid and inflexible law. 


§ 12. The Interpretatio . 

The Twelve Tables had exhibited early Roman law in a form § 12, 
corresponding to its tendency, the form, namely, of a popular 
statute. 

In the original stages of its development the law of Rome, like 
that of other nations, was of the nature of customary law. The 
Romans, however, looked upon customary law as an inferior kind 
of law. Their innate sense of form could not rest satisfied with 
a species of law which is comparatively intangible, formless, and 
difficult of proof. True, there were some rules of customary origin, 
resting on immemorial usage and gradually shaped into precision by 
the legal habits of the nation, which possessed the full force of lex, 
and even of lex in the most emphatic sense of the word, in the 
sense namely of the ‘old, unchangeable, primal law’ 1 of the Roman 
community. But, generally speaking, it was held that the magistrate 
in administering justice was not absolutely bound by rules of 
customary law as such — so far, that is, as the rules in question 
lacked the force of ancient primal law — and that in dealing with 
such rules he was justified in exercising a free discretion. But a Lex 
(publica), i.e. a rule of law which magistrate and people had agreed 
upon by means of a solemn declaration of consensus, was a different 


1 Mommsen, ZS. d. Sav. St., vol. xii. p. 275 ff. 



56 


THE INSTITUTES 


§12. matter 2 . The authority of a lex was irrefragably binding on the 
magistrate as well as on the people. 

In the Twelve Tables Roman law had, to a considerable extent, 
received the form of a lex 3 . It is to this fact that the success and 
popularity of the decemviral legislation is due. So far as it was 
exhibited in a codified form, the law was now secure from the 
arbitrary powers of the magistrate who administered it. 

L. 2 § i D. de orig. juris (i, 2) (Pomponius) : Et quidem initio 
civitatis nostrae populus sine lege certa, sine jure certo 
primum agere instituit omniaque manu a rege guberna- 
bantur. 

Tacitus, Annal. III. 27: compositae duodecim tabulae, finis 
aequi juris. 

The decemviral legislation being accomplished, the energies of 
the three succeeding centuries were concentrated in the task of 
thoroughly working out its contents. During the Republic, changes 
by statute, in matters of private law, were exceptional, and the func- 


2 Lex (Icelandic: lag, log; Frisian: 

laga, lag, log ; Anglo-Saxon: lagu, lah; 
Saxon: lach; English: law) means 

literally that which is ‘ laid 9 or 1 fixed/ 

in other words, 4 * * * 8 a statute.’ In the lan- 

guage of the Romans lex means anything 
which is ‘ laid down ’ or 1 settled/ and 
which, being proposed in a certain form 
by one party, is accepted by the other 
(e.g. the 4 lex commissoria ’ infra, § 72). 
A ' lex publica/ then, is a covenant, or 
statute, proposed by the magistrate and 
accepted by the people, which binds the 
community in virtue of this reciprocal 
declaration. Cp. Mommsen, A' dm. 
Staatsrecht , vol. iii. pp. 303, 309 ; A. 
Pemice, Domicile Gesetze im Romischen 
Recht (Festgabe fur Gneist), 1888; 
Wlassak, Rom. Processgcsetze, vol. ii. 

p- 94 ff- 

8 Some isolated laws were made as 
early as the regal period. Servius 
Tullius, for instance, is credited with 
some laws on contracts and delicts. 

The 4 leges regiae/ however, which were 
collected in the so-called 4 jus Papiria- 
pum* (probably a private compilation 
dating from the close of the Republic), 
owe their name either to the fact that 


the king was, by virtue of his sacerdotal 
position, the organ of the fas, or law 
willed by the gods (supra, p. 23, n. 2), or 
merely to the fact that the regulations 
they contain were placed under the im- 
mediate protection of the kings. The 
name of ‘royal laws’ was applied to 
early Attic regulations of ceremonial 
ritual, merely because their administra- 
tion was the official duty of the Archon 
Basileus; v. R. Scholl, pp. 88, 89 of 
the Sitiungsberichte der Bayerischen 
A kademie d. Wissenschaften , 1886. 
These ‘ leges regiae’ are concerned, in 
the main, with ‘ sacred * matters, i. e. they 
are essentially of a religious and moral 
character, and bear clear testimony to 
the closeness of the original connexion 
between law and religion. It is prob- 
able that, in substance, the majority of 
them actually date back to the time of 
the Kings. Bruns, Routes y p. 1 ff. ; 
Mommsen, Rom. Staatsrecht, vol. ii. 
(3rd cd.) p. 41 ff. ; Karlowa, Rom. 
RG vol. i. (1885) p. 106; Voigt, Die 
leges regiae (1870) ; P. Kruger, G. der 
QnelUn u. Litteratur des Rom . R. 
( 1 888), pp. 4-8 ; Jors, Rom. R IV. (1888), 
P -59 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 57 

tion of interpreting and, at the same time, developing the laws of § 12. 
the Twelve Tables was left, in the main, to the operation of the 
existing legal agencies. The period of legislation was followed by 
the period of interpretation. 

The exigencies of commerce demanded new regulations. How to 
represent these new regulations as virtually contained in, and covered 
by the statutory force of, the law of the Twelve Tables, was thus the 
problem to be solved. The notion of formally superseding the law 
of the Twelve Tables, which was statutory, by conflicting rules of 
law, which were merely customary, would, at that time, have 
appeared well-nigh inconceivable to the Romans. For throughout 
the long period of one thousand years, extending down to the final 
stage in the development of Roman law, i.e. down to the Corpus 
juris civilis of Justinian, the legal force of the Twelve Tables, as the 
source of all Roman law, was regarded all along as remaining, in 
theory, unimpaired, in spite of the fact that, when the end came, 
there was not a stone in the entire structure of the decemviral laws 
but had long been displaced from its original position. And this 
was quite in keeping with the conservatism of the Romans and the 
extreme caution with which they proceeded in all matters of law. 

Not one letter of the Twelve Tables was to be altered, and yet the 
new spirit was to be infused into the old letter. The decemviral 
legislation being complete, the time had arrived for an 4 interpretatio * 
which should develop and even alter the law, but should, at the 
same time, leave the letter of the law intact. 

The period of interpretation covers the later centuries of the 
Republic. At the outset the work of interpreting the law, i. e. of 
carrying on, in its initial stage, the development of the jus civile, 
was performed by the pontiffs. It was regarded as the special pro- 
fessional duty of the pontiffs to preserve the knowledge of the laws 
of the Kings. In consequence more particularly of the knowledge 
they thus possessed and also of their general scientific learning, it 
became their office to assist with legal advice not only magistrates 
in regard to the exercise of the jurisdiction vested in them, but also 
private parties in regard to the steps to be taken in concluding con- 
tracts and carrying on lawsuits (infra, § 18). Thus it happened that 



58 


THE INSTITUTES 


§ 12. the business of interpreting the subsisting law, and thereby develop- 
ing the civil law, fell under the control of the pontiffs. 

It was by means of such interpretation that the so-called ‘In 
Jure Cessio * was now developed. In jure cessio was a new way of 
conferring a legal title by means of a fictitious lawsuit before the 
magistrate. The beginnings of in jure cessio probably date back 
to a time anterior to the laws of the Twelve Tables, but its full 
development belongs to a period subsequent to these laws. The 
Twelve Tables provided that whenever one party to an action, at 
the suit of the other, at once admitted his opponent’s title in person 
before the magistrate (‘in jure’), no judgment should be required, 
and the party confessing should be regarded as already condemned 
(confessus pro judicato est) 4 . The confession before the magistrate 
had the force of a judgment. Thus, in a suit about ownership, the 
magistrate could at once proceed to award the thing to the plaintiff 
(the ‘ addictio ’). In other words, if a person confessed before the 


4 That the maxim 1 confessus pro ju- 
dicato est* ( 1 . i D. 42, 2) occurred in 
the Twelve Tables in some form or other, 
either directly or indirectly, seems a 
reasonable inference from the statement 
of the jurist Paulus (Vat. fr. 50 : ‘et 
mancipationem et in jme cessionem lex 
xii. tab. confirmat.’ 

It is extremely probable that the 
starting-point in the development is to 
be found in the fictitious suit on a ques- 
tion, not of ownership, but of status t 
such a suit being first employed for 
purposes of manumission. Livy tells 
us (ii. 5) that it first came into use in 
the beginning of the Republic, which 
would be not long before the Twelve 
Tables. The oldest times knew of no 
juristic act by means of which a manu- 
mission could be effected. In jure cessio 
was thus invented in order to render 
manumission possible, and was used for 
the first time (according to the legend 
reported by Livy) in favour of the slave 
who discovered the conspiracy of the 
sons of Urutus. Cp. Karlowa, Rom, 
RG. f vol. ii. p. 130. 

In an in jure cessio the fictitious 
defendant himself directly confesses that 
he has no title. As distinguished from 


the judgment of a judex which only 
operates clearly to ascertain a legal 
relationship already in existence, this 
self-condemnation of the defendant (cp. 
nexum, p. 52) is tantamount to a valid 
disposition (cessio), i. e. it operates not 
to ascertain, but to constitute a legal 
relationship. That is the reason why, 
on principle, the judgment of a judex 
only operates * inter partes,’ i. e. its effect 
is confined to the parties themselves, 
whereas, on the other hand, the self- 
condemnation produces a new legal rela- 
tionship. The confessus in jure is di- 
vested of his right, and that even though 
he may fail to effect a transfer of it to 
the other party (cp. e.g. § 109, end of 
n. 3). This is the foundation of the 
legal force of in jure cessio against third 
parties as well, for the disposition which 
is implied in the confessio in jure confers 
on the other party a title available 
against every one, provided of course 
the person making the disposition was 
himself really the owner. See, on this 
question: Demelius, Die Confessio m 
rom. Civilprocess (1880), p. 98 ff. ; Ter- 
nice, ZS. der Sav, St, fur RG* t vol. ix. 
p. 203. 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 59 

magistrate that his opponent in the action was the owner, he was § 12. 
divested of his ownership, provided that at the moment of the con- 
fessio he was still owner. This suggested a general method for trans- 
ferring ownership. If A desired, on any legal ground whatever, to 
transfer his ownership in a thing to B, A and B would go before the 
magistrate, B (the intended transferee) would claim ownership as 
fictitious plaintiff, A (the intended transferor) would admit his title as 
fictitious defendant, and the magistrate would then pronounce his 
award (addictio) in favour of the transferee. Thus the transferor 
was divested of his ownership and the transferee was invested with 
it. A rule of procedure (confessus pro judicato est) had been 
utilized for developing a new kind of private juristic act, the act 
of transferring ownership by means of a fictitious vindicatio (in 
jure cessio), and one the validity of which could be represented 
as resting on the Twelve Tables. The same process could be 
utilized for the purpose of establishing patria potestas and effecting 
the manumission of a slave by means of a fictitious vindicatio * in 
patriam potestatem * and 1 in libertatem ’ respectively. Thus in jure 
cessio became the medium through which a whole host of new 
juristic acts were introduced into the working system of Roman law 5 . 


' In jure cessio was used for the pur- 
pose (1) of manumission (manumissio 
vindicta, infra, § 32 ' ; (2) of emancipa- 
tion (§ 102); (3) of adoption 100) ; 
(4) of assigning the tutela legitima 
mulierum (§ 103, n. 2) ; (5) of assigning 
the hereditas (but only the hereditas 
legitima, § 109, n. 3) ; (6 > of transferring 
ownership, both in res mancipi and res 
nec mancipi (§ 62) ; (7) of creating any 
kind of servitude (mancipatio being only 
available for the creation of rural servi- 
tudes, § 69, iv). The procedure was the 
same in all cases, whether the subject- 
matter of the claim were liberty, patria 
potestas, tutela, hereditas, ownership, or 
servitude. The alienee first makes a 
fictitious vindicatio in his own favour, 
the alienor then confesses * in jure,’ and 
the magistrate gives his award (dictio, 
addictio) accordingly. The use of in 
jure cessio in cases a, 3, and 7 can be 
assigned with certainty to a period sub- 
sequent to the Twelve Tables. The 


same is to be said of 4 and 5, because 
the sphere within which they are ap- 
plicable is determined by the Twelve 
Tables themselves, in jure cessio being 
only available for the assignment of a 
tutela legitima mulierum and a hereditas 
legitima . Only the first case belongs 
most probably to a period anterior to 
the Twelve Tables mote 4, supra), but 
very possibly owes its general and un- 
questioned validity to the interpretation 
based on the Twelve Tables. It should 
also be observed that not every tutela 
legitima was transferable by in jure 
cessio, but only the tutela legitima 
mulierum . This fact shows that at the 
time when in jure cessio was coming 
into use, the tutela legitima impuberum 
was already regarded as an * ofiicium * 
and, as such, was unassignable, whereas 
the tutela legitima mulierum retained 
its original character of a special power 
which existed in the interest of the 
(agnatic) guardian, and might therefore 



6o 


THE INSTITUTES 


§ 12 . Another juristic act was developed in a similar manner by 
utilizing a penal provision of the Twelve Tables. This was the 
‘emancipation* of the filiu&familias. The Twelve Tables enacted 
that, if a father sold his son thrice into bondage, he should suffer 
the penalty of forfeiting his patria potestas. 

XII Tab. IV. 2 : Si pater filium ter venumduuit, filius a patre 
liber esto. 

The ‘ interpretatio * utilized this rule. The father might sell his 
son, by a purely imaginary sale, thrice repeated, into the bondage 
of another who would manumit the son after each sale by means of 
in jure cessio. The effect of this transaction was the ‘ emancipation ’ 
of the filiusflamilias, i.e. he was discharged from the paternal power ; 
for the conditions required by the Twelve Tables had been com- 
plied with. The father had thrice sold his son into bondage, con- 
sequently the son was now free from the paternal power. A different 
adaptation of the same penal rule led to the development of ‘ datio 
in adoptionem’ (§§ 100, 102). 

Of all the changes the most important was the transformation 
which mancipatio underwent in the course of the century subsequent 
to the Twelve Tables. The Twelve Tables enacted : 

XII Tab. VI. 1 : Cum nexum faciet mancipiumque 6 , uti lingua 
nuncupassit, ita jus esto. 

That is to say, the formal juristic act was to operate in the 
manner defined by the solemn oral declaration (nuncupatio). Utilizing 
this rule, the interpretation changed the nature of mancipatio. It was 
the intention of the Twelve Tables that mancipatio should be a 
genuine sale, and it was essential for its validity that the purchase- 
money, as specified in the mancipatio, should be actually paid down. 
But there was nothing to prevent the parties from naming in the 
ceremony of mancipatio, not the real price, but a fictitious one, and 
since the payment of this price sufficed to call into play the opera- 
tion of mancipatio as a legal conveyance, the parties were thus able, 

be treated us assignable. lioth the cases period. Sec also on this subject : Knr- 
ir. which i,. jure cessio was applied, and Iowa, Rom. Rtr., vol. ii. pp. 383, 384. 

also the limitations which were imposed *• Mancipium is the name given here 
upon its use, point to the conclusion that to mancipation, 
it was not developed at a very early 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 61 


in effect, to evade the rule as to the necessity of paying the price. § 12. 
And this is what actually happened at a later stage. The outcome 
of this device was the so-called ‘ mancipatio sestertio nummo uno.’ 

In the mancipatio a declaration was made that the thing was being 
sold for ‘one sesterce,’ and, the alienee having paid his sesterce 7 , 
ownership passed to him in virtue of the Twelve Tables. So far 
then as mancipatio took the form of a ‘ mancipatio sestertio nummo 
uno,’ it had passed from a genuine to a purely fictitious sale 
(imaginaria venditio) 8 . 

The result was that mancipatio developed into a general mode of 
conveying ownership as such, quite irrespective of the legal ground on 
which such conveyance took effect. It could now be employed for a 
variety of purposes. It was, for instance, available for the purpose of 
making a gift. But there was another and a more important use to 
which it could be turned : the so-called ‘ mancipatio fiduciae causa ’ 
had now become practicable. This mancipatio fiduciae causa, or, 
briefly, ‘ fiducia,’ was a qualified mancipatio, the effect of which was 
accordingly to impose a duty on the transferee, and it was a trans- 
action, the nature of which rendered it conveniently available for 
economic purposes of the most multifarious kinds. Thus the change 
from the old mancipatio to the new was a change from a trans- 

7 It will be observed that the handing The purchaser was benefited in that the 

over of the aes (rauduseulum'., which ownership passed by the mere payment 

was part of the mancipatio ceremony, of one sesterce, the rule of the Twelve 

was not sufficient. The requirement of 'fables touching the ncce>sity of paying 

the Twelve 'fables concerning the pay- the price being thus evaded. The vendor 

ment ot the price had akoto lie satisfied, was benefited in this wise. According 

and this was done by the payment of the to the Twelve 'fables, if the purchaser 

numraus unus. True, such a proce< ding in mancipatio were evicted from posses- 

was a violation of the spirit of the sion of the thing mancipated by a person 

Twelve Tables, hut the letter was strictly whose title was superior to his (the 

adhered to. And it was precisely in this vendor, e. g. not having been the real 

that the peculiar nature ot the interpreta- owner\ the latter p. e. the vendor) was 

lion lay : while professedly but interpret- compellable by an 4 actio auctoritatis * 

ing the letter of the old law, it was really to indemnify the purchaser to the extent 

building up new law. of double the price solemnly named 

# A fictitious sale of this kind was (* nuncupated *' in the mancipatio. In 

resorted to, when it was desiied, e. g. to the case of a mancipatio nummo uno 

make a gift, pledge, &c., by mancipatio * double the price named ’ meant two 

fcp. p. 6 ji). JJut mancipatio nummo sesterces, i.e. practically nothing. Thus, 

uno was also available in the case of by means of the mancipatio nummo uno 

real sales, and possessed then a twofold the ‘ actio auctoritatis* was also excluded 

advantage, one in favour of the pur- in spite of the Twelve Tables. Karlowa, 

chaser, the other in favour of the vendor. Rom. RG. } vol. ii. pp. 371 ft., 377 ff. 



6a 


THE INSTITUTES 


§ 12. action, narrow in character and circumscribed in application, to one 
free from inward restrictions and capable of adaptation to an indefinite 
variety of uses. 

‘Fiducia ’ is an agreement of trust, whereby the transferee in a 
mancipatio-tindertakes to divest himself of the ownership which has 
been conveyed to him, and more especially — in certain circum- 
stances — to remancipate the thing he has received. 

Suppose, for instance, that a debtor desired to give his creditor a 
pledge. A transaction by which a person made his property simply 
liable for an existing debt, in the modern sense (a * hypothec *), was 
unknown to early Roman law. But mancipatio in its new shape 
would meet the necessities of the case. The debtor mancipated the 
thing to the creditor ‘for one sesterce/ and thus constituted him 
owner by means of an imaginary sale. But the creditor held the 
legal ownership subject to a 1 trust 1 (fidei or fiduciae causa), and 
the fiducia was to the effect that on payment of the debt the creditor 
should reconvey (‘ remancipate *) the thing to the debtor. The creditor 
thus got his security, and meanwhile he was the owner of the thing 
pledged. But as soon as the debtor discharged the debt, the fiducia 
or trust-clause gave him a right to claim the thing back again. 
Other agreements could be concluded in the same way. In the 
case of the pledge just described there was a 1 fiducia cum creditore 
contracta/ In precisely the same manner the so-called ‘ fiducia cum 
amico contracta 9 rould be used for the purpose of effecting a de- 
positum or mandatum in accordance with the forms of the civil law. 
Thus, whether the thing were delivered for safe custody — as in the 
case of depositum— or were delivered on terms that the transferee 
should, for instance, sell it, or give it to a third party, or (if the 
object were a slave) should manumit such slave— as in the case of 
mandatum— in any such case the transferor (the deponens or the 
mandans) made the transferee (the depositarius or the mandatarius) 
formally owner of the thing delivered, but the ownership was held 
subject to a trust, 1 fiduciae causa ’ ; it was purely formal, and in- 
volved an obligation to abide by the terms of the agreement on 
which the mancipatio was based* 

There was no reason why the agreement that ownership should 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 63 

pass subject to a trust, should not be set forth in the formula used § 12. 
in the mancipatio (the * nuncupatio *) 9 . The existence of a fiduciary 
duty was thus clearly established by the solemn act itself, but to 
embody the entire agreement in the nuncupatory formula was 
scarcely feasible. The mancipatio itself, therefore, s&id nothing 
about the terms of the trust ; for these it was necessary to look to 
the 1 pactum conventum,* a formless collateral agreement. But, 
according to early Roman law, no action can be 'brought on a 
formless pact. Is, then, a ‘pactum fiduciae* actionable or not? 

The early jurists argued this way. Inasmuch as the pactum con- 
ventual as such is not actionable, that which is promised in the 
pactum cannot, as such, be enforced by an action. But the duty to 
deal with the object ‘ in good faith * is actionable. Having been 
clearly set forth in the solemn mancipatio this duty falls, of course, 
under the protection afforded by the rule of the Twelve Tables: 

‘ uti lingua nuncupassit, ita jus esto.’ The transferee thus became 
liable to an ‘actio fiduciae. 1 It is important to observe what it was 
precisely that the plaintiff in this action could require the defendant 
(i. e. the transferee in the mancipatio) to do. He could not call upon 
him to do what he had promised in the pact, because the pact had 
not been ‘ nuncupated.* But he could call upon him to do that which 
any honourable and trustworthy man could be reasonably expected 
to do having regard to the circumstances of the case, the most im- 
portant of which was, of course, the pactum conventum itself. In 
other words, what the judge had to find out was not whether the 
defendant had acted up to the precise terms of the pact — for the 
pact being formless, its terms were still quite unenforceable — but 

* The inscription, No. 5402, in vol. ii. pendent ‘pactum conventum,’ which 
of the Corp. inscr. lat., shows that this proves that the agreement in question 
was actually done : D . . . fundum B . . . was a matter apart from the mancipatio. 
nummo I Jidi fiduciae causa tnancipio The document recently discovered in 
accepit. Cp. on this point, Degenkolb, Pompeii which contains a fiducia has so 
ZS. fur RG vol. ix. pp. 172, 174; many lacunae that it is impossible to say 
Voigt, Die zwolf Tafcln (1883), vol. ii. whether the trust clause was inserted in 
p. 166 ff. Thus the words 4 fid L fiduciae the mancipatio or not. But here again, 
causa ’ formed part of the mancipatory the pactum dealing with the position of 
act itself. But in this inscription the the fiduciary transferee follows thewords 
agreement which defined the conditions evidencing the mancipatio in the shape of 
of the trust follows the words evidencing an independent agreement. Cp. Eck, ZS. 
the mancipatio in the shape of an inde- der Sav . St. } vol. ix. pp. 89, 96, 97. 



6 4 


THE INSTITUTES 


§ 12 . whether the defendant had conducted himself in such a way, * ut 
inter bonos bene agier oportet et sine fraudatione 10 .’ Since the 
pactum conventum lay outside the solemn mancipatio, the fiducia 
did not give rise to an actio stricti juris u , but to a so-called 4 actio 
bonae fidei,’ i. e. the extent of the obligation which it produced 
was not fixed by any hard and fast line, but rather by the judge 
exercising, within fairly wide limits, his free judicial discretion 13 . 
In fiducia we have the first recognized instance of a contract 
different in kind from the legal transactions which had been handed 
down from olden times. For the extent of the obligation en- 
gendered by these transactions was rigorously determined by the 
letter of the agreement ; in fiducia, on the other hand, it was equitably 
determined in accordance with the free discretion of a ‘ bonus vir,* 
taking into account all the circumstances of the case. It was a 
contract which placed the existaice of a liability beyond all doubt, 
but which was neither designed nor able to fix, in set terms, its 
precise contents. 

Thus the interpretation of the Twelve Tables, in dealing with 
mancipatio, the formal, rigorous, ready-money sale of the early law, 
had produced a twofold result : 


,c If the judge decided against the 
defendant, the judgment did not mean 
that he (the defendant) had failed to 
meet a legal obligation, but rather that 
his conduct in the matter had not been 
that of a man of honour. This is the 
reason why condemnation in an actio 
fiduciae entailed infamy (op. § 36). 
Cp., on this point, Jhering, Das Sc hit hi- 
moment im rbmischcn rrivatrecht 
(1867), p. 29 ff. f and note 12 below. 

11 Differing, in this respect, from other 
collateral agreements in mancipatio 
which were fully covered by the terms 
of the nuncupatio. Such were, e. g. the 
trusts imposed on the farniliae emtor in 
the mancipatory will (infra, § 112). 

Vi The actio fiduciae was presumably 
an ‘actio in factum concepta.* (Cp. 
Lend, /S. der Sav. St., vol. iii. p. 112.) 
Lenel himself has. however, pointed out 
( Das EM 'turn ferpeiuum, 1883, p. 234) 
that nothing is thereby proved in regard 
to the later origin of this action. But 
the fact of its being an actio in factum 


concepta seems rather to point to the 
conclusion that, in the old times, the 
actio fiduciae was tried by means of 
the legis actio per judicis postulationem 
(infra, § 48, ii See Voigt, tor.cit., p. 475 IT. 
— At a later time, the other actiones 
bonae fidei seem also to have first come 
into use in the shape of actiones in fac- 
tum conceptae. For since an informal 
promise was originally not legally, but 
only morally binding, the plaintiff was 
precluded from setting up a legal claim 
which the defendant had not satisfied, 
and could only allege some fact which 
went to show that the defendant’s con- 
duct in the matter was unjust. This 
explains the connexion between the actio 
bonae fidei in its cailiesl form and the 
actio ex delicto. Cp. n. 10, supra, and 
the passage from Jhering referred to. — 
A different view is now taken by Bernice 
{Labeo, vol. iii. pt. 1 , p. 124) and Karlowa 
{Mom. KG., vol. ii. p. 561 ff.), who hold 
that the actio fiduciae was on actio in 
jus concepta. 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 65 

(1) It had developed a formal method of transferring ownership § 12. 
for any purpose whatsoever; that is to say, it had developed a 
transaction of an c abstract * type in which the object underlying the 
transfer of ownership did not appear, and which, for that very reason, 
could be utilized for any such transfer, no matter what its object 
might be. 

(2) It had developed a whole series of transactions (negotia 
bonae fidei) based upon credit, being the various cases of fiducia, 
which were concluded ‘ re/ by performance, that is, by mancipation 
(sestertio nummo uno) ,3 . 

With regard to Nexum, no corresponding development took place. 
Nexum remained what it had been, a loan-transaction, and was 
subsequently superseded as such by the formless loan called ‘Mutuum’ 

(§ 13). The sole trace of the original severity of the formal contract 
of loan is to be found in the fact that mutuum was a negotium stricti 
juris (§§ 76, 79). It was reserved for ‘ Stipulatio ’ (infra, § 80) to supply 
a type for all agreements in which the solemn promise of the debtor 
gives rise to a rigorously unilateral obligation quite irrespective of 
the legal ground on which such obligation is based. Stipulatio was 
the outcome of the ancient ‘ sponsio,’ and resembled nexum in so 
far as the underlying idea in both was originally a kind of self- 


13 After the example of mancipatio 
luluciae causa an in jure cessio and 
ooemtio (§ 9 2) ‘fuluciae causa’ came 
subsequently into use. Just as the 
transferee in mancipatio 'n. 9) declared 
that he took the legal ownership * cum 
fiducia,* so, in the case of in jure cessio, 
the person making the fictitious vindi- 
cate declared that he was only owner 
‘ fiduciae causa.’ The vindicatio, there- 
fore, was made, as in other cases, ‘ ad- 
jecta causa.’ Cp. Voigt, loc. cit., p. 172. 
In every instance the solemn declaration 
set forth that the conveyance of o\\ ncr- 
ship, or (in the case of ooemtio) of 
marital power, was merely formal. Thus 
the extraneus with whom a woman had 
concluded a coemtio, i. e. had formally 
contracted a marriage, but only fiduciae 
causa (e.g. for the purpose of freeing 
herself from guardianship, § 103, n. 2), 
was not her maritus, nor was he called 
so ; he was her * coemtionator,' and, as 


such, had neither the rights nor the 
power of a husband (Gaj. i. 1 15). The 
effect of the fiduciary clause was not 
merely obligatory, but also real , i. e. it 
altered the character of the right of 
property itself ; in other woxiSs, fiduciary 
ownership was different in kind from 
ordinary ownership. This is the reason 
why the so-called ‘ usureceptio ex 
fiducia’ was possible, i. e. why it was 
that the transferor could, by means of 
usucapio, without bona tides (Gaj. ii. 
59, 60), recover the very ownership he 
had transferred. And it was this very 
difference in kind, again, that made it 
possible for the alienee in mancipatio 
and in jure cessio to claim a merely 
fiduciary ownership. No fiducia could, 
however, be concluded by means of a 
mere formless traditio. See Lenel, ZS. 
d. Sav. St., vol. iii. pp. 114, 115, and 
infra, § 69, note 1 on dcductio servi- 
tutis. 


SOHM : LEDLJE 


F 



66 


THE INSTITUTES 


§ 12 . pledge; but it differed from nexum in that the pledge implied ii 
stipulatio could only be enforced by the gods 14 . 

As the mancipatio fiduciae causa supplied the foundation for tin 
negotia bonae fidei of a later period, so nexum is the type and basil 
of the negotia stricti juris, i.e. transactions which generate a rigoroush 
unilateral obligation and leave no latitude to the discretion of the judge 


§ 13 . The Beginnings of the Jus Gentium. 

§ 13 . From the earliest times there must, of course, have existed ir 
Rome, side by side with the formal juristic acts which alone enjoyec 
the sanction and force of the jus civile, a countless variety of trans 
actions which were dispatched without any form whatever. I 
happened, as a matter of course, that many a sale was made bj 
simple delivery of the article and payment of the price, many a loan, 
too, contracted by a simple handing over of the money, and so on 
In other words, there were informal sales, loans, deliveries (with 
a view to transferring ownership in things), and so forth. Bui 
according to the early civil law all these informal proceedings were 
totally devoid of legal validity. That which was effected by an 
informal sale was, of course, a transaction, but not a juristic 
transaction. Thus if A sold and delivered something to B which 
did not belong to him, and B were evicted by the true owner, he 
had no action against A. There was no question of law at all ; 
the whole relationship between A and B was purely one of fact , and 
might, in this respect, be compared to our position in dealing with 
savage tribes. We may sell to them, and barter with them, but no 


14 Sponsio was the name originally 
given to a contract which was concluded 
by a libation, i. e. by a formal self- 
denunciation, to the following effect : — 
Even as this wine now flows, so may 
the punishing gods cause the blood of 
him to flow who shall be the first to 
break this covenant. (Cp. Leist, Grdco - 
italisrke Rechtsgeschichte (1884), p. 
457 If.) The original obligation created 
by such a promise was a purely moral, 
or religious one, partaking largely of 
the nature of an oath. It was not till 
later that it assumed a legal character 
(cp. % 80). When Cicero speaks of 


* spondere, promittere 'involving an 1 oh* 
ligare fid cm,’ his Woids seem to point to 
some surviving notion of a pledge of one’s 
moral self (cp. A. Pern ice, Labeo , vol. i. 
(187.I) P* 408). German law confirms 
the view that all the oldest contracts 
originated in some kind of pledge (obli- 
gatio), whether of one’s person or of 
portions of one’s property. Cp. e.g- 
J. Kohler, Shakspeare vor dem Forum 
der Jurisprudent , vol. i. (1883) p. 52 ff. ; 
Heuslcr, Institutionen des deutschen 
rrivatrechts , vol. i. (1K85) p. 104; 
Puntschart, Schuldvertrag u. Treugt - 
lobnis (1896), p. 406 ff. 



ROMAN LAW AS THE LAW OF THE CITY OF ROME 67 

legal relations, no actionable rights, are called into existence. Good § 13 . 
faith as between man and man, what the Romans termed ‘bona 
fides,’ was the natural foundation on which all these informal 
transactions rested ’, but as yet bona fides had not become a source 
of law in Rome. 

There was; however, one element which was bound, in the long 
run, to secure the legal recognition of these formless transactions. 

This element was the foreign trade, in so far as it was carried on 
within the confines of Rome. Every alien, i.e. non-citizen, was, as 
such, absolutely debarred from any share in the jus civile, the law 
as between Roman citizens, and, as a consequence, he was absolutely 
debarred from the use of any of the formal juristic acts of the 
Roman civil law. In the early law every alien was, on principle, 
right-less. Mancipatio as well as nexum was null and void, if one 
of the parties, nay, if one of the witnesses, were without the Roman 
civitas. Thus, even though a foreign merchant (i. e. one who did not 
enjoy the privileges of Roman citizenship) were quite willing, in 
doing business in Rome, to observe the forms, say, of mancipatio, 
it would have been useless, because the mancipatio would have been 
none the less void. The result was that the commercial dealings of 
aliens in Rome, including, therefore, the dealings of aliens with 
Roman citizens, were at all times confined, without option, to the 
formless transactions just referred to. For aliens these were the 
only transactions. Of course such a system could not last. The 
commercial transactions of the foreign merchants could not remain 
permanently outside the pale of the law, and some method had to 
be devise.d by which they should obtain legal validity not only if 
both parties were aliens, but also if one of them were a Roman 
citizen. Inasmuch, moreover, as even Roman citizens, among 
themselves, were making daily and habitual use of these informal 
acts, it was quite obvious that their gradual recognition by the law 
was a matter of pressing importance to citizens and aliens alike. 

At a subsequent period the law under which aliens traded in 
Rome assumed a shape which served to bring out the full significance 
of the process with which we are here concerned. In the course of 

1 'With the exception of mutuum, supra, p. 65. 

F 2 



68 


THE INSTITUTES 


§ 13. the first centuries of its history (down to about 250 b. c.), the Roman 
community frequently concluded international and commercial 
treaties with other states (as, for example, Carthage), members of 
which were permitted to engage in commerce in the Roman market. 
By these treaties legal protection and legal capacity were reciprocally 
guaranteed to members of the communities concerned, the legal 
protection being secured in Rome by means of the courts of ‘ re* 
cuperatores.* Thus, by the second commercial treaty with Carthage, 
every Roman enjoyed, in Carthage, in regard to his commercial 
dealings, the same private rights as a Carthaginian citizen ; and the 
Carthaginian enjoyed, conversely, corresponding rights in Rome 
(i. e. the ‘commercium *). In this way it came to pass that a portion 
of the Roman civitas, viz. the jus commercii, was granted to non- 
citizens (peregrini), to such, namely, as possessed the privileges of 
an international treaty of friendship. Aliens of this kind were 
accordingly permitted to avail themselves of the juristic acts peculiar 
to the jus civile. Such treaties, however, only affected certain 
specified foreign communities, and even in these first centuries 
there were many peregrini in Rome who were shut out from the 
privileges they bestowed, and had no option but to use, in their 
dealings, those formless transactions which (as we have seen) pro- 
duced, in the first instance, relationships of mere fact, devoid of all 
legal sanction. In all cases, however, where an alien of the 
privileged class had dealings with a Roman, the solemn acts of 
the Roman jus civile were available. In other words, the gates of 
the jus civile had been thrown open to such aliens as enjoyed by 
treaty the friendship of Rome. But all this changed after about 
the third century b. c. Rome becomes the great power which only 
condescends, in quite exceptional cases, to deal with other powers 
on terms of equality by means of treaties of friendship. Numerous 
communities are annihilated by the Roman state ; their members 
are incorporated with the Roman community without any treaty 
and without being placed on a footing of equality with Roman 
citizens (* dediticii *). The Roman civitas now becomes a valuable 
privilege. Even the mere jus commercii is only granted to non- 
citizens in exceptional cases, and the jus civile thus shuts its gates 



ROMAN LA W AS THE LAW OF THE CITY OF ROME 69 


to the world without. The bulk of aliens whose business carries § 18. 
them to Rome have no legal capacity under the jus civile. It is 
at this stage of the movement that the true importance of foreign 
trade, so far as it is denied the privileges and protection of the jus 
civile, becomes strikingly manifest. It has, in fact, been raised to 
the rank of an independent power confronting the jus civile in 
Rome itself with distinct legal habits and distinct juristic acts 
(informal acts) of its own. It has now become absolutely impossible 
to maintain the old rule that the transactions of non-privileged aliens 
are not legally binding, and a law is imperatively demanded which 
shall recognize, govern, and sanction such transactions. The Roman 
magistrate had it within his power to render such a law a working 
reality. For as against aliens he, the praetor, the magistrate of the 
city of Rome, was in nowise bound by the jus civile, nor even by 
pop ula r statutes: popular statutes applied exclusively to citizens 1 . 

As far therefore as the affairs of aliens were concerned the magistrate 
was absolutely unfettered in the exercise of his imperium. Accord- 
ingly, while the Roman praetor was dispensing justice to aliens, he 
was, at the same time, moulding and giving practical effect to a law 
for regulating the informal transactions of aliens,— a law to which 
the restrictions peculiar to the transactions of the civil law were 
entirely foreign. In Rome a special judge for aliens, a praetor 
peregrinus,’ was appointed in 242 b. c. This marks the final victory 
of the movement. In the edict of the praetor peregrinus (infra, § 15) 
the law governing the relations of aliens took shape, and was, in 
a sense, codified. We have now a law for the citizen, as such, the 
jus civile, and, beside it, a law for the alien, as such, the jus gentium. 
Thus there sprang from the intercourse with foreigners the second 
great power in the working system of Roman law, viz. the jus 
gentium, the law for foreigners, and it was the very exclusion of the 
great majority of foreigners from the privileges of the jus civile which 
rendered the birth of this new force possible. It is certain that the 
contents of the jus geptium were largely determined by the example 
of such laws as had come to regulate the rights of foreigners m 
other commercial centres of the age. It is still more certain that 
* Wlassak, Rom. Pirxcs% r cselze, vol. ii. pp. 93 > 188 



70 


THE INSTITUTES 


§ 13. the Roman jus civile itself was the model by which the praetor 
peregrinus was principally guided in shaping the law for foreigners 
in Rome. In order to adapt the jus civile for use in his court and 
thereby convert it into jus gentium, the praetor had first to strip it 
of its formalism : this done, the legal ideas underlying the forms of 
the civil law could be carried more completely into effect in the jus 
gentium and could, at the same time, be brought into closer accord 
with the current ideals of justice. The jus gentium was in truth 
a younger, a modernized form of jus civile. And it is precisely to 
this fact that we must attribute the powerful influence which it was 
able to exercise in regard to the reform and development of the jus 
civile itself. In addition to this, we must not fail to bear in mind 
that from this same time onwards the ancient national character of 
Rome was steadily yielding to the inroads, increasingly powerful, 
of foreign, more especially Greek, elements bearing within them the 
whole accumulated force of Hellenic culture. The entire world 
came, so to speak, to make Rome its capital, and with it came the 
jus gentium, a law, not for any particular state, but universal ; a law 
not merely for the citizen, but for the private person as such. The 
jus gentium came to fulfil its twofold vocation. It was destined not 
only to shape and determine the legal rights of aliens in Rome, but 
also to guide and direct the Roman civil law itself. For by securing 
the legal recognition of formless transactions, i.e. transactions which 
depend for their effect not on any form, not on something visible, 
external, or tangible, but rather on the will of the parties themselves, 
the jus gentium was laying down the lines of a new development for 
the law governing the ordinary dealings between Roman and Roman 3 . 

In this way it gradually came to be acknowledged that legal 
ownership (in res nec mancipi) could be validly acquired by means 
of a formless traditio. The only qualification seems to have been 
that such traditio, in order to pass ownership, must take place in 

3 On the above subject, v. M. Voigt, Abhatuil. zum rbm. Civilprozess (1889), 
Jus ruturale, vol. ii. §§ 16, 21 ff . ; pp. 69 ff., 100; Mitteis, Reichsrecht und 

Mommsen, Rbm. Staatsrecht , vol. iii. Volksrecht (1891), p. 72 ff.; Wlassak, 
(*887) pp. 590 ff. t 600 ff. ; Jors, Rom. Rbm. Rrocessgesetze, vol. ii. pp. 129 ff., 
RW. zur Zeit der Republik (i88<S), 339 ff. ; and Degenkolb’s Rectorial 

pp. 1 14 ff., 126 ff.; Ad. Schmidt, ZS. Address referred to infra, § 49, n. 7. 
der Sav. St., vol. ix. p. 137 ff. j Eisele, 



ROMAN LA W AS THE LAW OF THE CITY OF ROME 71 

pursuance of a sale, and that the purchaser must have actually paid the § 13 . 
price. For the rule of the Twelve Tables that no ownership could 
pass to the vendee unless he actually paid the price or were given 
credit for it by the vendor, was deemed to apply, in an equal measure, 
to the transfer of ownership by traditio 4 . The principle thus adopted 
in the case of sales, viz. that ownership could pass by traditio, was 
afterwards extended to traditio in general, provided only the parties 
had concluded some transaction which placed the intention to convey 
ownership beyond doubt. Thus the necessity for a solemn mancipatio 
was, in the end, confined to certain classes of things only, viz. those 
comprised under the collective name of 1 res mancipi * (§ 62), in dealing 
with which it seems probable that, from the oldest times, mancipatio 
was, as a matter of fact, almost universally employed. Those 4 res * 
comprised all such things as constituted, properly speaking, a farmer s 
stock-in-trade: his land (fundus Italicus), his slaves, his live-stock 
(beasts of draught and carriage). In the case of all other things — the 
‘res nec mancipi’ — ownership passed by mere traditio, that is, by 
simple delivery of the thing on the ground of some juristic act 
clearly evincing an intention to transfer ownership. Such things 
would be, e. g. money, articles of dress, tools, &c., in short, all such 
things as were intended not so much for permanent possession as for 
commercial intercourse. 

In the same way as informal traditio thus obtained the sanction 
of the law, so informal sales, loans, &c., gradually secured legal 
recognition. 

The old-fashioned formalities of the Roman jus civile found them- 
selves confronted with the exigencies of a world-wide commerce. 

The new demands which had thus arisen had won their first 
victory towards the close of the Republic by securing the recognition 
of a number of formless juristic acts. The whole future course of 
development was virtually involved in this recognition. Thus the 
end of the Republic marks the commencement of that process by 
which the local law of the city of Rome was gradually converted 
into that which Roman law was destined, at a future time, to be, 
viz. the general law of the civilized world. 

4 Cp. § 41 I. de rer. div. (2, 1), supra, p. 51, n. 2. 



CHAPTER II. 


Roman Law as the Law of the World. 

(The Empire.) 

§ 14. Jus Civile and Jus Gentium . 

14 . Jus civile was the law of a city, the law, that is, which obtained 
among cives, its application being confined to the citizens of the 
Roman community. It was destined to be replaced by a different 
kind of ‘civil’ law, a civil law enlarged into a jus gentium, or general 
law for all mankind. 

The local law of Rome had already adopted a number of juristic 
acts which were all characterized by formlessness, ease of application, 
and free adaptability (§ 13). 

The Romans themselves had not failed to observe that their 
law already contained two distinct ingredients, one of which operated 
by virtue of its form and was derived from their old jus civile (the 
civil law, in the strictest sense of the term), while the other was free 
from formal elements, and owed its adoption and validity as law to 
the contact between the commerce of Rome and that of the world at 
large. The former bound none but Roman citizens to whose mutual 
dealings alone it applied, and the latter was binding on, and applic- 
able to, the peregrini as well. The former kind of law, which was 
specifically Roman, the civil law of the old type, was now called jus 
civile in the special and narrower sense of the term, the ‘jus proprium 
civium RomanorumV The jus gentium, on the other hand, came 
to be regarded as a universal law of all mankind, common to all 

1 In modem phraseology * civil law ’ Romans meant by civil law the law 
is used for ‘private law’ simply; the which obtains among * cives/ 



ROMAN LAW AS THE LAW OF THE WORLD 73 

nations, because resting on the nature of things and the general § 14. 
sense of equity which obtains among all men, the *jus gentium 
quod apud omnes gentes peraeque custoditur/ a sort of natural law, 
exacting recognition everywhere by virtue of its inherent reasonable- 
ness. It would, however, be erroneous to suppose that the Romans 
attempted to introduce a code of nature such as the philosophers 
had devised. The jus gentium was and never had been anything 
else but a portion of positive Roman law which commercial usage 
and other sources of law, more especially the praetorian edict (§ 15), 
had clothed in a concrete form. Nor again must it be imagined 
that the Romans simply transferred a portion of foreign (Hellenic) 
law bodily into their own system. In the few quite exceptional 
cases where they did so (as e. g. in the case of hypotheca), they never 
failed to impress their institutions with a national Roman character. 

The antithesis between jus civile and jus gentium was merely the 
outward expression of the growing consciousness that Roman law, in 
absorbing the element of greater freedom, was commencing to dis- 
card its national peculiarities and transform itself from the special 
local law of a city into a general law for the civilized world. The 
jus gentium ivas that p art of the private law of_ Rome whi ch in its 
fundamental con ceptions was in accordance with the private law of 
othe r nations , more especially with that of the Greeks which would 
naturally predominate along the sea-board of the Mediterranean. 

In other words, jus gentium was that portion of the positive law of 
Rome which appeared to the Romans themselves as a kind of 
‘ ratio scripta/ a law which obtains among all nations and is common 
to all mankind. 

The value of the division of Roman law into jus civile and jus 
gentium was not merely theoretical, but also eminently practical. 

The law which now governed the intercourse of foreigners— Greeks, 
Phoenicians, Jews — in Rome was, of course, Roman law, but it was 
Roman jus gentium, and the Roman jus civile, in the narrower 
sense of the term, was confined on principle to the mutual dealings 
between Roman citizens (cp. § 33). The jus gentium was thus, at 
the same time, the Roman law for foreigners, i. e. the law which 
governed the transactions of the peregrini. And it was but natural 



74 


THE INSTITUTES 


§ 14. that such should be the case, since it had been shaped under the 
influence of foreign intercourse, and had received definite form for 
the first time in the edict of the praeter peregrinus. 

There is a moment in the history of every nation when the claims 
of a natural sense of justice assert themselves and revolt against the 
hard and fast austerities of ancient traditional forms. The Romans 
had now arrived at this stage. The jus gentium was in its nature 
the equitable law whose growth and expansion, in opposition to the 
jus strictum of ancient tradition, proceeds henceforward with ever 
increasing volume. The whole tendency of the history of Roman 
law pointed to the suppression of the jus strictum by this new equit- 
able law, and to the consequent destruction of the ancient jus civile by 
the jus gentium. But it must not be imagined that the development 
was a very sudden one. Such a course would have been entirely 
alien to the legal instinct of the Romans. The jus gentium did not 
come down like a hurricane and sweep away the jus civile. The 
slow and gradual elaboration of a system of equity alongside the 
older and stricter law, was rather the work of a patient and un- 
interrupted development extending over a period of more than five 
hundred years. When, in the natural course of things, the vitality 
that once filled the forms of the jus civile had passed from them, 
leaving them but hollow relics of a bygone age. then, but not till 
then, were they finally discarded. Slowly, cautiously, and, as it 
were, bit by bit, portions of a freer and more equitable law were 
worked out and tested, first one, then another, and finally incor- 
porated in the organism of Roman law. The reform of Roman 
law was the result of a vast series of small changes of detail. And 
it was only by painstaking care of this description, by scorning all 
appeals to vague general principles of equity, that the Romans, 
aided by that keen sense of form, moderation, and legality, which 
with them was hereditary, could succeed in reducing the jus aequum 
to a body of principles lucidly conceived, minutely elaborated, and 
carefully weighed in all their details. By such a method alone could 
Roman law, while its contents were freely developing over so vast 
a field, preserve intact throughout that artistic power which moulds 
and subdues its materials, and erects them into a firm harmonious 



ROMAN LAW AS THE LAW OF THE WORLD 75 


structure. It is this power which has made Roman law, and more § 14 . 
especially Roman private law, what it is : a model for all times to 
come such as has never since been equalled. 

In working out the jus gentium, i. e. those rules of natural equity 
which regulate the dealings between man and man, and in reducing 
these rules to a system of marvellous transparency and lucidity, 
which carries irresistible conviction by its form as well as its matter 
to the mind of every observer — in doing this, Roman law has per- 
formed its mission in the world’s history. And it was this achieve- 
ment, successfully accomplished for all times to come, that not only 
fitted Roman law for becoming the general law of the Roman empire, 
but also endowed it with the power, when once it had emerged from 
the oblivion of centuries, to conquer the modern world. 

There were three agencies whose influence in working simul- 
taneously and successively at this identical task, viz. the developing 
and importing of the jus gentium, was decisive of the ultimate 
result. These were the praetorian edict, Roman scientific juris- 
prudence, and imperial legislation. 


Cicero de offic. III. 17 : Societas enim est, latissime quae pateat 
hominum inter homines, interior eorum qui ejusdem gentis 
sunt, propior eorum qui ejusdem civitatis. Itaque majores 
aliud jus gentium, aliud jus civile esse voluerunt: quod 
civile, non idem continuo gentium, quod autem gentium, 
idem civile esse debet 2 . 

Gaj. Inst. I. § 1 : Omnes populi qui legibus et moribus reguntur 
partim suo proprio, partim communi omnium hominum jure 


2 In the last sentence Cicero is not 
criticising the jus civile and conveying 
an opinion that it ought to accommodate 
itself to the jus gentium. He is simply 
expressing the fact that that only can be 
jus gentium which actually obtains every- 
where in the separate systems of positive 
municipal law, more particularly in 
Roman municipal law, or jus civile, in 
this sense of the term. Jus civile is not 
necessarily jus gentium, i. e. it does not 
necessarily obtain everywhere, but jus 
gentium is necessarily jus civile, because 
law which obtains everywhere must 
necessarily obtain with us, failing which 


it would not he jus gentium, or law 
which obtains everywhere. Jus civile 
is here used, not in the narrower sense 
of the specifically Roman law, but in 
the sense of municipal law, and is there- 
fore used for Roman law simply. What 
is not law among the Romans, can 
obviously not be regarded as obtaining 
1 apud omnes gentes.* In this, the wider 
sense of the term, jus civile includes jus 
gentium within its limits, and jus 
gentium is thus not opposed to, but 
forms a portion of, Roman law.— In 
Verr. I. 13 Cicero calls the jus gentium 
1 communia jura/ 1 common law.’ 



76 


THE INSTITUTES 


14 . utuntur : nam quod quisque populus ipse sibi jus constituit, 
id ipsius proprium est vocaturque jus civile, quasi jus pro- 
prium civitatis ; quod vero naturalis ratio inter omnes homines 
constituit, id apud omnes populos peraeque custoditur, voca- 
turque jus gentium, quasi quo jure omnes gentes utuntur. 
Populus itaque Romanus partim suo proprio, parcim corn- 
muni omnium hominum jure utitur. 

§ 15 . The Praetorian Edict. 

15 . I fl Jthe year 367 b t c. the judicial functions were separated from 
the consular power, and a special officer, the praetor urbanus, was 
appointed to administer justice in the city. Subsequently (about 
242 b.c.) the increase of commerce necessitated the appointment of 
a second praetor, the praetor pcregrinus, to whom all disputes were 
assigned where one or both of the parties were peregrini. The 
jurisdiction of the praetor urbanus was henceforth confined to 
matters in dispute between Roman citizens themselves. 

During his year of office, the praetor, like the consuls before him, 
was invested with the ancient judicial power of the king 1 . That is 
to say, in administering justice he was authorized to give full play 
to his imperium or sovereign judicial discretion, being limited — in 
point of form, and as against Roman cives only — by the letter of 
the leges or popular enactments, and by such customs as ancient 
tradition had endowed with the force of law (supra, p. 55). In 
modern times the judge is subordinate to the law. His sole 
business, in dispensing justice, is to apply the law. But the praetor, 
officiating in his court, was his own master; he was the supreme 
judicial authority. As a magistrate he represented, within the 
limits of his official powers, the sovereign populus Romanus. His 
administration of justice, therefore, was not merely an application 

1 The word 'praetor’ means literally military command, but with the ad- 
a general, and is a title of honour ac- ministration of justice. This is the 
corded to the consuls in the first cen- reason why, in point of rank (and in 
turies of the Republic (Mommsen, Rom. the number of his lictors), he was inferior 
Stdatsrecht , vol, ii. 3rd ed. p. 74 ff.). The to the consul, though, on principle, his 
praetor was really a third consul who power was consular (Mommsen, ib. 
was specially entrusted, not with the p. 193 ff.). 



77 


ROMAN LAW AS THE LAW OF THE WORLD 

of existing law, but was fitted to become an instrument for the § 15 , 
creation of new law. It is necessary to bear this* fact in mind 
in order to appreciate the peculiar importance of the praetorian 
‘ edict.* 

An edict is an order promulgated by a magistratus populi Romani. 

A praetorian edict, therefore, is an order promulgated by the praetor. 

It deals with the principles by which the praetor intends to be guided 
in his administration of justice, in other words, in the exercise of his 
free judicial discretion. Though the power of issuing commands — 
the imperium— vested in him from the very outset, it is not likely 
that he began to proclaim such edicts at once. He would, of 
course, in the first instance consider it his sole duty, in dispensing 
justice as between Roman citizens, to administer the existing law, 
and where foreigners were concerned- so far as the principles of 
his jurisdiction were not regulated by international treaties— he 
would probably content himself, at the outset, with deciding each 
case, as it came before him, on its merits. It was therefore, in 
the nature of things, a very gradual process by which definite 
principles peculiar to the praetorian jurisdiction were worked out 
— principles which, when developed, tended more and more to con- 
st itute the praetorian power the organ of reaction against the principles 
of the civil law. It was thus but gradually that an occasion 
arose for the praetor to promulgate any orders in regard to the 
granting of legal assistance. It would seem, however, that, even at 
an early period, it was usual to post up in the praetor’s court a list of 
legal formulae for the better information of the parties to an action, 
e. g. of formulae for the interdicts for which application had to 
be made to the praetor— interdicts, being commands by means of 
which the praetor, in the exercise of his administrative powers, granted 
an extraordinary remedy (infra, § 56) — and, again, of formulae for the 
processual sponsiones (processual agreements) which the praetor, 
under certain circumstances, compelled the parties to enter on a . 


* At the end of the Edictum Hadri- 
anum there is an appendix consisting, 
for the most part, of nothing but for- 
mulae, — formulae, namely, for the in- 
terdicts, exceptiones and stipulationes 


(processual sponsiones). There is no 
internal reason whatever to justify the 
grouping together, at the end of the 
edict, of these formulae, more especi- 
ally of the formulae for the exceptiones 



?8 


THE INSTITUTES 


§ 15 . In addition to this tablet of formulae other tablets gradually came 
into use, which contained the orders of the praetor concerning 
matters of law, i.e. the edicts. After the introduction of the 
formulary procedure (infra, p. 81) the * actiones * or formulae for com- 
mencing an action were also published on tablets. A new kind of 
Tables of Law thus arose side by side with the twelve bronze tables 
which were to be seen, not far away, in the forum Romanum, and 
on which was engraven the old jus civile of Rome. The praetorian 
tables being only intended to last for a year were simply made of 
wcod painted white, for which reason they were called collectively 
‘album/ Nevertheless these wooden tablets were destined to out- 
last the bronze ones. For they represented those principles of law 
which metamorphosed and finally swept away the ancient laws of 
the decemviri. The whole body of edicts and formulae was called 
either ‘ album ’ (on account of its outward form) or ‘ the edict of the 
praetor/ the formulae prescribed by the praetor (the publication of 

and stipulationes. And the arrangement tions (the jus Flavianum, Aelianum : 

seems all the more unreasonable, be- infra, p. 93). Subsequently, when tin- 

cause the edicts which deal with the formulary procedure had come into use. 

praetorian stipulationes (i.e. which the praetor published the formulae rclat- 

direct their conclusion) and the stipu- ing to actions as well, and arranged them 

lationes themselves arc placed in en- in their proper place among the edicts, 

tirtly different parts of the Edictum The older formulae, however, were left 

aod are thus completely detached from where they were and formed a special 

one another; and, fuither, because the section — the appendix— of the album, 

exceptiones and the subject-matters to This hypothesis assumes that the legal 

which they respectively belong are, in remedies grouped together in the ap- 

like manner, totally disconnected. It pendix are all as old as the period ot 

seems most natural to look to history legis actiones. That this is true of the 

for an explanation of so strange an interdicts and praetorian stipulationes 

anomaly, to the fact, namely, that this can be asserted with sufficient certainty, 

appendix contains the beginnings of As regards the exceptiones, the fact under 

the praetorian ‘ album/ the tablet of discussion might perhaps be considered 

frrmulae (with, of course, a number of an argument in favour of the view that 

subsequent additions) which was left in the insertion of an cxceptio was possible, 

the very order in which, in the course not indeed in the ‘lege agere/ but in 

of time, it had shaped itself. The the proceeding called * per sponsionein 

absence, in this tablet of formulae, of agere ’ (the processual sponsio), which 

the ‘actiones * or forms of action, is ex- can be traced back to the period of legis 

plained by the fact that, at the time of actiones : v. Karlowa, Der romisch t 

the procedure by legis actiones, the Civil process zur Zcit der Legisadionni . 

praetcr had no power in regard to the p. 101 (1872). In that case the placing 

drawing up of the formulae for actions. of the formulae of exceptiones before 

The legis actiones, which were elabor- those of sponsioncs would not be acci- 

ated and developed by the pontifical dental. — On this subject v. Wlassak. 

jurisprudence, owed their publicity not Edict und Klageform , p. 22 ff. (1882) : 

to the praetor, but to private compila- Karlowa, Rom . RG. vol. i. p. 462 ff. 



ROMAN LAW AS THE LAW OF THE WORLD 79 


which was not, in the legal sense, an edict) being thus included § 15 . 
with the edicts proper under the collective title of * the Edict V 

It is probable that, from an early date, it was the business of every 
new praetor, on taking office, to revise the tablets of formulae and 
put up new ones. For it was obvious that these tablets, being made 
of wood, would serve, at most, for the one year of office. What had 
been a traditional usage in the case of the formulae became, from 
the very outset, a matter of necessity in the case of the edicts. For 
the edict was only valid during the year of office of the praetor who 
issued it. Thus when the new praetor came in, he had to publish 
anew ‘ the Edict ’ as a whole : ut scirent cives, quod jus de quaque 
re quisque dicturus esset: 1. 2 § 10 D. de O. J. (1, 2). 

The edict which the praetor issues on taking office is called the 
‘ edictum perpetuum.’ It is intended to be valid for the whole term 
of his year of office. The opposite of the edictum perpetuum is an 
extraordinary order issued by the praetor during the year of office for 
such unforeseen occasions as may arise (prout res incidit). The 
edictum perpetuum or, as we shall in future call it, the ‘edict 5 
simply, is not a statute, nor is it originally even a source of law 
at all. For the very magistrate who had issued the edict might 
arbitrarily disregard it 4 , till a lex Cornelia (b.c. 67) made it illegal 


* The arrangement of the Edictum 
Hadrianum (cp. § 17) is based on the 
antithesis between the ordinary and ex- 
traordinary legal relief administered by 
the magistrate. The first main part of 
the Edict deals with the exercise of the 
* jurisdiction i. e. the ordinary form of 
legal relief; the second with the exercise 
of the ’imperiiim* (in the narrower sense 
of the term), i.e. the extraordinary form 
of relief administered by the magistrate 
in virtue of the imperative powers of 
his office (v. infra, § 56). Preceding the 
two main parts we have an introductory 
section dealing with the rules for regu- 
lating judicial proceedings up to the 
appointment of the judex. Appended 
we have a concluding section dealing 
with execution and appeals. Then 
follows the appendix, discussed in note 
2, dealing with interdicts, exceptiones 
and stipulationes, and, last of all, the 


aedilician edict. Lenel, Edictum per- 
petuum , p. 12 ff. (1883). 

4 But in such a case his colleague 
might intercede. Cic. in Verrem, act. 
II. lib. I. 46 § 1 19 : Turn vero in magis- 
tral contra illud edictum suum sine 
ulla religione decemebat. Itaque L. 
Piso multos codices implevit earum 
rerum in quibus ita intercessit, quod 
iste aliter atque ut edixerat decrevisset. 
Cp. also § 120: Alias revocabat eos 
inter quos jam decreverat, decretumque 
mutabat, alias inter alios contrarium 
sine ulla religione deccrnebat ac proxi- 
mis paullo ante decreverat. Thus, 
though it was felt to be most im- 
proper (sine ulla religione) for a praetor 
to violate his own edict, still his legal 
right to do so was an exemplification of 
the nature of the magistrate’s judicial 
power ; i. e. like the sovereign power of 
the kings, which had devolved upon 



8o 


THE INSTITUTES 


§ 16 . for a praetor to depart from his edictum perpetuum. But even then 
the validity of the edict expired with the year of office of the praetor 
who had issued it. The new praetor was not bound by the edict of 
his predecessor. He could repeat it or alter it, as he chose. It was, 
however, but natural that a custom should soon establish itself for 
each praetor, on taking office, regularly to repeat a large portion of 
the edict (the ‘edictum tralaticium ’), and confine himself merely to 
additions (nova edicta, novae clausulae B ). Thus a regular system of 
judge-made law grew up in the praetorian court which, in addition 
to the statutory and customary law already in force, became, in 
point of fact, one of the most potent factors in the legal system. 

The praetor peregrinus had to adjudicate in disputes between 
aliens, and between citizens and aliens. In his judicial capacity 
therefore he possessed unlimited authority, and it was in virtue 
of this authority that he became the organ for shaping and working 
out the law for foreigners, the jus gentium (p. 69). In the edict 
of the praetor peregrinus the jus gentium thus acquired a written, 
fixed, and tangible form, and was, at the same time, placed in 
a position to exert a more powerful influence on the general 
development of Roman law, including the law as between citizens 
themselves. The praetor urbanus only had jurisdiction in disputes 
between Roman citizens. His edict dealt with Roman law in its 
entirety, i. e. both with the jus gentium (which of course came to 
be recognized as between Roman citizens as well) and the jus civile, 
in the narrower sense. The form in which the jus civile really 
attained to practical vitality in the praetor’s court became clearly 
apparent in the edict of the praetor urbanus. 

The praetor had no power to legislate, but he might grant or 


him, it was formally free, subject only 
to thfe limitations imposed by definite 
leges. 

* By the time of Cicero the greater 
part of the praetorian edict had already 
become truaticium, so that Cicero 
describes the piaetorian law— which, of 
course, was not based on any lex— as a 
sort of customary law j Cic. de invent. 
II. 22, § 67 : Consuetudinig aiucm jus 
esse putatur id quod voluutate omnium 


sine lege vetustas comprobavit ; in ca 
autem jura sunt quaedam ipsa jam cerla 
propter vetustatem ; quo in genere et 
alia sunt inulta, ct comm multo maxima 
pars, quae pr tic tores tdieere consucrunt. 
Cic. Verr. II. lib. i. 44 $ v 1 4 : et hoc 
vetus edictum transhiticiumquc esse; 
45 5 1 1 5 i in rc veterc edictum novum ; 
4 8 § 1*7: hoc (edictum) tranilaticium 
cst. Mommsen, Rom. Stoats tec At f vol. 
i. (3rd ed.) p. 208, note 5. 



ROMAN LAW AS THE LAW OF THE WORLD 81 


refuse an action. The old action of the civil law (legis actio) was § 15 . 
confined within certain inflexible formulae which had been developed 
by the practice of the courts in conformity with the words of the 
statute. All the magistrate could do here was to grant or disallow 
the action (legis actio). Hence it was a most important event 
when, by the enactment of the lex Aebutia towards the middle of 
the second century b.c., the formulary procedure gained a footing 
even in proceedings between cives, that is, in proceedings governed 
by the jus civile. This procedure derived its name from the fact 
that, under it, the lodging of the complaint resulted in the 
nagistrate addressing to the judex a written precept (formula), 
jontaining an authoritative statement of the issue in dispute, 
together with the principles on which the judex was to decide it 
(infra, § 49). The judex who heard the case (i. e. the private indi- 
vidual to whom the praetor, in accordance with traditional custom, 
referred the matter in litigation for trial and decision) was now 
far more dependent than formerly on the magistrate's instructions. 

He might be directed, under certain conditions, to disallow an 
action which the civil law admitted, or, on the other ‘hand, 
to allow a claim of which the civil law knew nothing whatever. 
Again, as against the parties themselves, the position of the praetor 
was now one of much greater freedom than before. He might, 
on the one hand, refuse an action ; on the other hand, he might, 
while granting an action, subject his grant to such conditions as 
to make it in certain cases tantamount to a refusal. The entire 
procedure was thus brought under the control of the praetor. 

We can now understand how it came to pass that the praetorian 
law soon began to advance with rapid strides. By the time of 
Cicero the praetorian edict had already become the leading organ 
for the development of Roman law 6 . But the praetorian reform 
achieved its most essential result by working out that equitable 
law (the jus gentium) which was tending more and more to displace 
the harsh rigours of the old jus civile. The praetorian edict was the 

* Cic. dc legib. I. 5. 17 : Non ergo a ox intima philosophia hauriendam juris 
pr&ctoris edicto, ut phriqut nunc , neque disciplinam putas. 
a XII tabulis, ut superiorcs, sed penitus 

G 


90HII : LBDLIB 



82 


THE INSTITUTES 


§ 16 . engine best fitted for effecting this reform— a task as important as it 
was difficult. As the edict was never valid for more than one year, 
it was a convenient instrument for giving new principles a trial. If 
the innovations did not answer, they could be dropped again at once. 
The praetors in general showed little taste for the sudden adoption 
of far-reaching general principles. They confined themselves rather, 
in the first instance, to laying down rules for a perfectly definite case, 
the conditions of which were clearly apprehended. The next praetor 
might then add some further clause to the edict of his predecessor, 
the third might take yet another step in advance, and so on. It was 
precisely on account of this objection to far-reaching generalizations 
that they always hesitated to strike out anything that had once found 
its way into the edict. They preferred the method of adding a 
second concrete case to the first, a method which had this further 
advantage that it secured accuracy of verbal expression, — an im- 
portant consideration, since the praetorian edict, like the statutes, 
was interpreted according to its letter. Thus there grew up in the 
edict a kind of code of private law ; on the face of it, a collection of 
rules on the granting of actions, admission of pleas, and so on, 
couched, moreover, in a style, which was not exactly Ciceronian, nor 
even pleasant to read. Nevertheless it was by means of this code, 
with all its old-fashioned jargon and cumbrous phraseology, that the 
wisdom, experience, and foresight of bygone ages were handed down 
from generation to generation. It was a code which combined con- 
servatism with a ready susceptibility of change, thus standing at the 
same time firmly rooted in the experience of the past and the life 
and movement of the present. 

Praetorian law, in the shape it assumed in the edict, was not, 
strictly speaking, law , but the power involved in the right to allow or 
disallow actions and other legal remedies virtually raised it to the 
position of law. Thus we find Cicero declaring that even at his time 
the edrt was felt to be a kind of law 7 . The praetorian law, l>cing 
a law made by officials (‘jus honorarium ’), was opposed to the jus 
civile, i. e. L.w in the strict and proper sense of the term, the law 

/• 1 :/* ui pl u /j mum tribuunt edicto, practoris cdictura legem annuam dicunt esse ' 
(in Verrerii, II. x. 42). 



ROMAN LAW AS THE LAW OF THE WORLD 83 

made by the people. Thus both the jus civile 8 and the jus § 16 . 
honorarium 9 contained elements of jus gentium, but in the jus 
honorarium the influence of the jus gentium predominated. The 
praetorian edict was, in the main, the instrument by means of which 
the free principles of the jus aequum gained their victory over the 
older jus strictum. Though at first the praetorian law may merely 
have served the purpose of giving fuller effect to the jus civile 
(j uris civilis adiuvandi gratia ). and then of supplementing the jus 
civile (j uris civilis supplendi gratia) , nevertheless, in the end, borne 
along by the current of the times, it boldly assumed the function 
of reforming the civil law (j uris civilis corrigendi gratia) . 


§ 16. The Dual System of Law . 

The development of the jus honorarium resulted in the establish- § 10 . 
ment of a dual system of law in Rome. In every department of 
the law, but more particularly in private law and in civil pro- 
cedure, an antithesis arose between law in the strict and proper 
sense (jus civile) and law made by officials (jus honorarium). 

Thus, according to the jus civile a res mancipii (res mancipi) 
could not be validly alienated by act of the parties without the 
form of mancipatio. Part of the ceremonial of mancipatio consisted 
in *manu capere/ the taking hold of the thing by the purchaser 
(supra, p. 50). No doubt this * taking with the hand * had originally 
a distinct significance, its objett being to enable the purchaser to 


8 We are here using the term jus 
civile in its wider sense as signifying the 
positive law of Rome simply, the law 
which applied to Roman citizens, 
whether it be jus civile in the nariower 
aense (of law peculiar to the Romansl 

or jus gentium, i. e. law which origin- 
ally only applied to aliens, but was ex- 
tended by usage to Roman citizens. 
When opposed to jus honorarium, jus 
Civile means all such portions of the law 
: : of Rome applying to civcs Romani as 
.^ere law in the strictest sense of the 
llezm, being based on statutes enacted 
:t*y the Roman people or on Roman 
customary law. The difference between 


jus civile (in the narrower sense) and 
jus gentium is a difference in regard to 
the contents of the legal rules, those of 
the former bcing^eculiar to the Romans, 
those of the latter obtaining among 
foreign nations or being common to 
all men. On the other hand, the dif- 
ference between jus civile (in the wider 
sensed and jus honorarium is a difference 
in regard to the source from which the 
rules derive their authority, those of the 
former being based on statute or custom, 
those of the latter on the official autho- 
rity of the magistrate. 

9 i. e. the law which is only law in 
virtue of the edict 


G 2 



the institutes 


84 

§ 10 . get actual control over the thing. But gradually as the jus civile 
was developed by the 1 interpretation the ‘manu caperc’ dwindled 
into an empty form. The mancipatio as such ceased to give pos- 
session of the thing mancipated and its effect was only to pass 
ownership. By the civil law the transfer of possession (traditio) had 
become quite immaterial as far as the transfer of ownership was 
concerned. The praetor however reversed the position by making 
the traditio the essential feature in the transaction in regard even 
to res* mancipi. Where a res mancipi — such as a slave or a fundus 
lLalicus— was sold and informally delivered into the possession of 
the purchaser, the latter did not become owner according to the 
civil law. But if the matter came before the court, the praetor 
would treat him just as if he were the true owner. The praetor 
could not make a man who had acquired a res mancipi by mere 
traditio full civil law owner (ex jure Quiritium), for the praetor had 
no power to alter the legal force of the civil law. But he could 
grant actions and defences to such persons as he thought fit to 
protect, since the practical application of the civil law was under 
his control. Though a person who had acquired possession of 
a thing by mere traditio was not the formal owner, still the effect 
of the praetorian action and defence (actio, exceptio) was that he 
held the thing ‘in bonis,’ so that no one could deprive him of 
it. Thus to the civil law rules of ownership the praetor opposed 
another set of rules, the praetorian rules, and to the quiritary 
ownership of the jus civile he opposed another kind of ownership, 
where the thing was said to be ‘in bonis/ the so called ‘ bonitary 
ownership.’ (Cp. infra, § 62.) 

According to the civil law again a servitude— that is, a right of 
user of a particulfr kind in a thing not one’s own, c.g. a usufruct 
or a right of way — could only he created by means of certain definite 
legal forms. The praetorian law, on the other hand, allowed 
a servitude to be created by a so-called ‘quasi traditio servitutis’; 
that is, it was satisfied if one party gave the other, without any 
form, permission to exercise the right of user in question (infra, 
§ 6 i) IV). In the civil law again a pledge, in the proper sense of 
the term, was an unknown transaction. If a creditor was to have 



ROMAN LAW AS THE LAW OF THE WORLD 8$ 

real security, he had to be constituted owner of the thing pledged. § 18 . 
The praetor however introduced a right of pledge as a distinct 
right apart from ownership. He granted the creditor a real action 
on the ground of a simple agreement with the debtor that a particular 
thing should serve as a pledge for the debt (infra, § 72). In this 
way the jus honorarium brought about a fundamental reform in 
the rules, not only as to ownership, but also as to jura in re 
aliena. 

Where a juristic act was obtained from a person by means of 
threats (metus) or by fraud (dolus), the civil law treated the act, 
as a rule, as valid, notwithstanding the threats or the fraud. The 
praetor however took account of the metus or dolus in all cases 
by granting the aggrieved party an action or a defence, as the case 
might be. The civil law and the praetorian law accordingly took 
opposite views of a liability incurred by means of a promise, which, 
though made in due legal form, was in fact obtained as a result of 
threats or fraud. The civil law regarded such a promise, as a rule, 
as perfectly valid; according to the praetorian law it was always 
invalid. There were other facts again— such as an informal agree- 
ment of release (pactum de non petendo)— which the debtor could 
not rely on as a ground of discharge according to the civil law, 
because the civil law treated them on principle (like metus and 
dolus) as irrelevant in themselves ; whereas the praetorian law, on 
the contrary, held that they constituted, in themselves, a relevant 
defence. Moreover, while there were, on the one hand, certain 
facts which the praetor treated as grounds for discharging an 
obligation, there were others again which, by virtue of the praetors 
jurisdiction alone, came to be treated as creating an obligation. 

That is to say, by granting an action, the praetor gave legally 
binding force to certain transactions which were not actionable 
according to the civil law, such as the constitutum debiti, or informal 
promise to pay a subsisting debt \ 

Let us take another example. The praetor had no power to 
make a man heres who was not heres by the civil law. But his 
office gave him control over the so-called ‘ bonorum possession 
1 c P . § 84, 11. 



86 


THE INSTITUTES 


§ la. that is to say, it lay with him, in the exercise of his jurisdiction, 
to determine who should be put into possession of a deceased 
person’s property. The practice of the praetors in awarding or 
refusing the possession of an estate thus became the foundation 
on which a new system of hereditary succession (which of course 
only gave rise to bonitary rights) was built up, viz. the praetorian 
system of bonomm possessio (infra, § i io). 

These are merely some of the most salient points illustrating 
the antithesis under discussion a . But they will suffice to convey 
some notion of the far-reaching influence of the jus honorarium as 
an engine of reform. The jus honorarium was gradually developed 
into a complete legal system. It confronted the system of the 
jus civile as a compact whole, as a new body of private law made 
by officials, in which the legal ideas of the jus gentium found 
expression. 

It must not however be supposed that any part of the jus civile 
was abolished. The legal force of the jus civile remained absolutely 
untouched. The only way the jus honorarium could be given effect 
to was through the medium of legal procedure, i.e. by actiones 
and exceptions 3 . Jus civile and jus honorarium existed side by 
side. It is to this dualism that we must attribute the high pitch 
of artistic perfection to which the Romans carried the technique 
of their law. The two bodies of law, the jus civile, or law in the 
strictest sense (which it was always possible to fall back upon, if 
the justice of any particular case seemed to require it), and the 
jus honorarium, the law declared and acted on by the courts, 
were welded into a great unity covering a rich multiplicity of 
detail— a complicated, but orderly structure, operating with the 
subtlest of means and demanding for its complete mastery the fullest 
exercise of the intellectual faculties. The strength and artistic skill 
displayed by the praetorian edict are the immediate source of the 
itrength and artistic skill which characterize the scientific juris 
prudence of the early Empire. 

* As to the development of the prae* 1 In exceptional cues by in integrum 
tonan law of civil procedure, see infra, restitutio, infra, § 56 iii. 
i 49- J 



ROMAN LAW AS THE LAW OF THE WORLD 87 


It was never attempted to reform the Roman civil law at one § 10. 
stroke by the rough method of legislation. Nor was any such 
attempt necessary. For the praetor had ready to hand, in the 
established practice of his court, an instrument powerful enough 
to carry the law, on the basis of the jus civile itself, to a higher 
plane of development, and to adapt the civil law to the legal 
requirements of every day life in such a way as to produce what was 
in fact a new law, the civil law of the future. 

Cicero de offic. I. c. 10 §§ 32, 33 : Jam illis promissis standum 
non esse quis non videt, quae coactus quis metu, quae 
deceptus dolo promiserit? quae quidem pleraque jure praetorio 
liberantur, nonnulla legibus. 

L. 5 C. de pactis (2, 3) (Imp. Antoninus) : Creditori tuo si 
partem pecuniae exsolvisti, de parte vero non petenda inter 
te et eum convenit . . . . ea obligatione partim jure civili 
partim honorario liberatus es. 

Gajus I. § 54 : Cum apud cives Romanos duplex sit dominium, 
nam vel in bonis vel ex jure Quiritium vel ex utroque jure 
cujusque servus esse intellegitur. 

L. 1 pr. I), quibus modis ususfr. (7, 4) (Ulpian.) : parvi refert 
utrum jure sit constitutus ususfructus an vero tuitione 
praetoris. 

§ 17. The Edictum Hadrian inn. 

The development of the praetorian edict reached its climax in the § 17. 
last century of the Republic. In the main the problem had now 
been* solved, It was universally felt that the jus honorarium, fully 
matured as it was (it was already for the most part ‘ tralaticium,’ 
each praetor handing it on to his successor in the form in which 
he found it), was now entitled to rank as a second great power, 
equal in importance to the jus civile. But the constitutional 
changes which had gradually been accomplished soon opposed 
a barrier to the further creation of law by the praetor. For we 
must bear in mind that the praetor’s jus edicendi was the outcome 
of that autocratic power which was peculiar to the ancient republican 
magistracies. The rising imperial power could not permanently 



THE INSTITUTES 


§ 17 . tolerate any rival independent authority. But, as in all other 
branches of public life, so here the old forms were preserved, 
though in substance the way was being prepared for the new 
monarchical ideas. The far-seeing genius of Hadrian, at this point, 
recognized and, at the same time, gave effect to the necessary results 
of the altered political circumstances. It was never, from the outset, 
considered anything very abnormal for the supreme power in the 
state to instruct the magistrates as to how they should exercise 
their official power 1 . Thus some leges, and subsequently (more 
especially in the first centuries of the Empire) a series of senatus- 
consulta 2 , had laid down instructions which were binding on the 
praetors in the administration of justice and the granting or refusing 
of rights of action, and in so doing had indirectly contributed to 
determine the contents of the praetorian edict. It was from this fact 
that Hadrian took his cue. The time had come to prescribe to the 
praetor the entire contents of his edict. The regular reissue of the 
edict by the magistrate had already sunk to a mere matter of form. 
It would have been inconsistent with the actual position occupied 
by the princeps and praetor respectively, if the latter had ventured 
to make important alterations in the edict without the assent of the 
former. And, moreover, if the praetor had attempted to make any 
change in his edict which the emperor did not approve, the latter 
was legally empowered to disallow it by virtue of his jus inter 
cedendi. The result was that the praetorian edict became stereo 
typed and barren. Its task was done. All that remained was to 
cast it into a final shape and, at the same time, to define, in a legal 
form, the relations subsisting between the imperial power and tin* 
edict. With a view to this purpose, Hadrian (before the year 
129 a. d.) instructed the great jurist Salvius Julianus definitively to 


1 See, for example, the lex ' probably 
the lex Aelia Scntia, 4 a. i>. ; which 
directed the praetor in dealing with 
property left, at their death, by certain 
deditich (such namely ns had become 
dcdit»c ; i by manumission) ' ita jus 
direre, indicium reddere, ut ea fiant 
quae futura lorent, si dediticiorum nu- 
mero facti non essent.’ (Z.V. dcr Sav. 

St, vol. i. 10m. Abt. p. 97.) 


1 e.g. the Scnatusconsulturn Vellc- 
janum, Treludlianmn, Maccdouinnum ; 
cp, Schlcsingcr, /.V. Jur A'C., vol. vm. 
p. ay, note 41; Karlowa, A'om. AC., 
vol. i. p. ft it) ; Kruger, (,\ d. Qutlltn d. 
rom. A\ , p. 85. As early ns 1 -ivy (41. 
9) we find mention of a senatuscon- 
sultum of this kind dating from thr 
Republic (177 11. c.;. 



ROMAN LAW AS THE LAW OF THE WORLD 89 


revise the edicts of the praetor urbanus and praetor peregrinus, § 17. 
adding, at the same time, the market-regulations (as to the liability 
of the vendor for faults, &c.) contained in the edict of the curule 
aediles. By order of the emperor, the whole was then ratified by 
a senatusconsultum. This is the so-called Edictum Hadrianum or 
Julianum 3 . The edict issued by the provincial governors— praesides 
provinciarum— in the administration of justice (edictum provinciale) 
was similarly dealt with and finally reduced to si definite form. 
Thus the imperial power— the effect of which was extended to 
the senatorial provinces by means of the senatusconsultum— rose 
supreme above the magistracies, appropriating, as its own, the 
contents of the edict with its rules on the administration of justice. 
Formally, however, the change was slight. The magistrate con- 
tinued to administer justice and the edictal law was still, in theory, 
derived from his official power as its source. The praetor and, in 
the provinces, the praeses provinciae continued, on taking office, to 
issue their edict and the contents of the edict were still jus hono- 
rarium, i. e. law which existed only in virtue of the official authority 
of the magistrate entrusted with the administration of justice. The 
jus honorarium had not been converted into jus civile, because the 
contents of the edict had not been declared law for the whole 
empire 4 . The semblance of the power of the old republican 

3 Already towards the close of the ‘ legis vicem* under the empire J 19) 

Republic the two praetorian edicts co- ami was thus a source of jus civile, 

incided in all essentials, the praetor ur- Hut the antithesis between the magis- 

kanus having likewise admitted the freer terial law as jus honorarium and the 
jus gentium to his edict. As a rule, jus civile was maintained. It follows 

the contents of the edicts issued by the from this that the provisions of the im- 

provmcial governors also corresponded perial enactment, which was ratified by 
with the urban edicts. In proof of both the senate, were referable to the domain, 

these facts wc may quote C icero k ad not of private, but of public law. In 

Att. 6. 1. 15): dixi (viz. in the edict for other words, the effect of this enactment 
his province) me de co gencre ad edicta was not, directly, to convert the contents 
urbana accommodaturum. Cicero was of the edict into law (viz. private and pro- 
able to refer to the edicta in the plural, cetfural law' for the subjects of the em- 

because the contents of both the urban pire, but rather to determine its contents 

edicts were already thought of as being for the magistrates , and to bind them 

substantially the same. by public ordinance to issue the edict in 

4 The senatusconsultum would have the form in which it was thus arranged 
converted the edictal law into jus civile, and no other. Cp. M. Wlassak, Kritische 
had it directly enacted that the contents Studicn zur Theorie der Rcchlsqutllm , 
of the edict should be law for the whole 1884, pp. 14, 15; Kruger, loc. cit. V v. 
empire; for a senatusconsultum had notea), p. 91. As to the date when the 



90 


THE INSTITUTES 


§ 17 . magistrates remained as heretofore. But the emperor and senate, 
by means of their legislative authority, had compelled the magistrate 
to issue the edict in the new form as finally established and in no 
other. In substance, therefore, it was not the will of the magistrate, 
but the will of the emperor that determined the contents of the 
magisterial edict. Thus, if it appeared that any provision of the 
edict was ambiguous, it w s the emperor who had to be appealed to, 
with a view to deciding the matter by means of an imperial rescript 
In like manner it was reserved for the emperor to have the edict, 
when necessary, supplemented. The edict of the praetor had 
become unchangeable— an edictum perpetuum in a new sense of 
the term, and the edictal law, in its further stages of develop* 
ment, was to appear in the form, not of praetorian, but of imperial 
law. 

The praetorian law was finished. The time had come for a fresh 
power to enter on the scene, in order to solve a new problem which 
had now arisen. This power was Roman Scientific Jurisprudence. 

L. 2 § io D. de orig. juris (i, 2) (Pompoxius): Eodem tempore 
et magistrates jura reddebant, et, ut scirent cives quod jus 
de quaque re quisque dicturus esset seque praemunirent, 
edicta proponebant. Quae edicta praetorum jus hono- 
rarium constituerunt. Honorarium dicitur, quod ab honore 
praetoris venerat. 

Asconius in Cicer. orat. pro Cornclio: Aliam deinde legem 
Cornelius, etsi nemo repugnarc ausus est, nuiitis tamen invitis 
tulit : ut praetores ex edictis suis perpetuis jus dicerent ; quae 
res cunctam gratiam ambitiosis praetoribus, qui varie jus 
dicere solebant, sustulit. 

L. 7 § 1 I), de just, ct jure (1, 1) (Papinian.) : Jus practorium 
est quod praetores introduxerunt adjuvandi vel supplcndi vel 
corrigendi juris civilis gratia propter utilitatem publicam. 

I,. 8 eod. (Marcian.): et ipsurn jus honorarium viva vox est 
juris civilis. 


Edictum Hadrianum was composed, cp. 
Kruger, p. 86 ; Hremer, in the Got linger 
Gelthrlc . Inst gen, 1889, p. 432 note. 

" It is only from the time of Hadrian 
that the emperors begin to interfere to 


any perceptible degree in the adminUtra 
tion of justice by means of their rescript*. 
Cp. Karlowa, Rom. RG. % vol. 1. p. 630 ; 
Kruger, loc. cit. p. 94; Hremer, lot. 
!>• 430 . 



ROMAN LAW AS THE LAW OF THE WORLD 91 


The following passage may serve to illustrate the contents of the § 17 . 
edict. It deals with the so-called in integrum restitutio propter 
absentiam, i.e. the rescission of an injury which a person has 
suffered, by operation of the law, in consequence of his not having 
asserted his rights in time. 

L. 1 § 1 D. ex quib. caus. maj. (4, 6) : Verba autem edicti talia 
sunt : Si cujus quid de bonis, cum is metus aut sine dolo 
malo reipublicae causa abesset, inve vinculis servitute hos- 
tiumque potestate esset, posteave non utendo deminutum 
esse 6 , sive cujus actionis eorum cui dies exisse dicitur; item 
si quis quid usu suum fecisset aut quod non utendo amissum 
sit 6 , consecutus, actioneve qua solutus ob id quod dies ejus 
exierit, cum absens non defenderetur inve vinculis esset 
secumve agendi potestatem non faceret aut cum eum invitum 
in jus vocari non liceret neque defenderetur, cumve magis- 
trate de ea re appellate esset sive cui per magistrate 6 
sine dolo ipsius actio exempta esse dicetur: earum rerum 
actionem intra annum quo primum de ea re experiundi 
potestas erit, item si qua alia mihi justa causa esse videbitur, 
in integrum restituam, quod ejus per leges, plebis scita, 
senate consuita, edicta, decreta principum licebit. 

'Fhe passage shows very clearly the various clauses which have 
been inserted one after the other, ending with a most comprehensive 
general clause which is certainly the latest. It is to be observed, 
also, that the praetor expressly avows his magisterial discretion to be 
limited by statutory law, but does not mention customary law. 

See, on the whole subject, especially : 0 . Lenel, Das Edictum 
Perpetuum (1883) ; Bruns, Fontes juris Romani antiqui, ed. 6 (1893), 
p. 202 ff. 


§ 18. Roman Jurisprudence . 

The beginnings of Roman jurisprudence 1 date from the pontifices, § 18 . 
who dfcted as skilled legal advisers in the court, first of the king, then 

6 Cp. Lenel, Edictum popetuum, p. P. Jors, Romischc Rechtswsumchaft 
96* zur Zeit der Republik (1888); F. P. 

1 On early Roman jurisprudence, see Bremer, Jurisprudent iae antchadrianae 



$2 


THE INSTITUTES 


§ 18, of the consul, lastly of the praetor. Their science of law was closely 
bound up with their science of religion and astronomy. Theirs was 
the knowledge of the jus sacrum and the calendar, they alone could 
tell the dies fasti and nefasti, i. e. the days on which an action at law 
might or might not be commenced. It was a consequence of their 
functions as consulting assessors in the law courts that the know- 
ledge, control, and development of the formulae relating to actions 
(legis actiones) and to juristic acts came to rest entirely with them. 
Their science was the science of the letter of the law and of its 
technical application, interpretation, and utilization for purposes of 
the forms of actions and of juristic acts (interpretatio, supra, § 1 1 ). 
From the very outset the legal method of the Romans was charac 
terized by its careful attention to and consequent mastery of form, 
so that the idea was never sacrificed to the form, the form being 
rather utilized as a means for giving effect to the idea. In conse- 
quence of the development of forms at once strict and clastic for the 
conduct of legal affairs, we are able to discern, even in the work of 
the Roman pontiffs, some early indications of that classical style — so 
different from the somewhat Cyclopean style of the older (ierman 
law — in which the fabric of Roman law was built up. Rut the 
shaping of this science was exclusively confined to the college ot 
pontifices, and its knowledge was preserved and handed down, 
within the same limits, by tradition and by instruction of the new 
members who joined. Moreover, the precedents, i. e. the early legal 
opinions (responsa, decreta) of the college, which formed the basis 
and norm of the existing practice, were preserved in the arc hives of 
the pontifices, and to these archives none but members of the 
college had access. Thus the business of interpretation, which wa\ 
of course, in each separate case, decisive of the form of the action or 
juristic act, was confined to a few, and the pontifical jurisprudence 
came positively to be regarded as a secret science, exclusively 
reserved for the pontifical college, and as constituting, at the same 
time, a powerful weapon in the hands of the patricians (to whom 

quae supersunt (supra, p. 19). The material* relating to the separate writers 
latter work contain*, besides the texts together with suggestive observations on 
of the jurists, the whole of the extant the part of the learned author. 



ROMAN LAW AS THE LAW OF THE WORLD 93 


the pontifices belonged) in their struggle with the plebeians. No § 18 . 
wonder, then, that the publication by Flavius (304 b.c.) and Aelius 
(about 204 b.c.) of the legis actiones, i. e. of the formulae for actions 
in the shape which the pontifices had given them (the so-called ‘jus 
Flavianum’ and ‘jus Aelianum’), was regarded as a great popular 
act 2 . Accordingly it marked an important turning-point, when 
Tiberius Coruncanius (about 254 b.c.), the first plebeian pontifex 
maximus, proclaimed his readiness to give information to anybody 
on legal questions. True, the pontifices had, before this time, given 
information on enquiry, not however to every one, but only to 
magistrates and to persons who, as parties to an action, were 
practically concerned in some question of law; in other words, 
the information vouchsafed only applied to a particular case : it was 
fragmentary and afforded no insight into the system as a whole. 

The announcement made by Tiberius Coruncanius meant that he 
was also prepared to answer questions addressed to him by persons 
whose interest was purely theoretical, in other words, questions put 
by those whose object it was to know the law and to study the exist- 
ing jus civile. The knowledge of law was to be opened up to all. 
Here, then, we have the first beginnings of a system of public legal 
instruction and — as its necessary consequence— a juristic literature. 

The same Aelius whom we just mentioned, surnamed ‘Catus/ ‘the 
cunning' (Sextus Aelius Paetus Catus, Consul 19S b.c.), had already 
composed a work, called the 2 commcntaria tripertita,’ in which the 
author, not confining himself to a mere collection of formulae, 
offered a commentary on the Twelve Tables and the formulae for 
action's and juristic acts. It represents the first attempt to set forth 
the pontifical jus civile in a literary form, in the form, it is true, of 
mere explanatory or exegetic notes, but nevertheless a book— the 
first book dealing with law, the ‘cradle of juristic literature’ s . 
From this time onward the technical knowledge of law passed 

* The promulgation of the calendar thereby publicly established what the 

had already been effected by the de- existing law actually was. 

cemviri. And the definitive ascertain- 5 Pomponius, 1 . 2. § 38 D. 1, a : qui 
ment of the rules of the jus civile by liber veluti cunabula juris continct. Cp, 
means of the deccmviral legislation was, Jdrs, he. at. p. 104 ff. 
in itself, a popular act, because it was 



94 


THE INSTITUTES 


18 . more and more out of the hands of the pontifices and became 
an ingredient in national culture 4 . At the same time the influence 
of Greek literature, and, more especially, the scientific methods of 
the Stoic philosophy, operated as a powerful and ennobling stimulant. 
The idea now suggested itself of casting the hard materials of law 
into a suitable artistic form. Thus, at an early date, we find 
M. Porcius Cato, the younger (who died 152 n.c.), making a 
conscious attempt to work out general principles of law (regulae 
juris) 8 , i. e. to trace in the raw material of legal rules, as presented 
by history, the underlying legal idea, to shape the statue from the 
rough block of marble. The most distinguished of all these 4 veteres ' 
was Qu. Mucius Scaevola, the younger, pontifex maximus. About 
100 b.c. he wrote his great treatise on the jus civile, in eighteen 
books, a work of wide and enduring fame. In this treatise the 
positive private law* was, for the first time, set forth in systematic 
order, i. e. arranged and classified according to the nature of the 
subjects dealt with. Scaevola’s system remained the foundation for 
the subsequent labours of his successors. He abandoned the tradi- 
tional legal arrangement of simply following the words of statutes or 
of the formulae relating to procedure or juristic acts, and adding 
explanatory notes. Nor did he confine himself, like earlier writers, 
to the discussion of isolated cases or questions of law. He arranged 
his work according to the subject-matter with which the several rules 
of law were concerned, and in which they were, so to speak, focussed. 
He was the first to determine, in clear outline, the nature of the 
legal institutions (will, legacy, guardianship, partnership, sale, hiring, 
&c.), and the various kinds (genera) thereof. He made the first 
attempt to set out general legal conceptions, i.e. those elements 
which go to make up the checkered and, to all appearances, 
boundless mass of concrete facts. This is the secret of the great 
significance and enormous success of his work. His achievements 

1 Mucius Scaevola whom wc 5 e.g. the ‘ rqrula Catoniana ’ : 
shall | resent ly have occasion to men- si tcMumenti facti tempore dccrjwisRet 
tion, orn.*: declared to the orator Servius testator, inutile forct,id Ic^atum.quando- 
StilpiciU' wh » consulted him on a le^al cumnuc decesscrit, non valerc. I. t pr. 
question; 4 turpe esse patricio ct nohili l). ac reg. Caton. (34. 7) ; Jors, tee. 
et causas oranti jus in quo vcrsarctur rit. i>. aHy ff. 
ignorarc/ 



ROMAN LAW AS THE LAW OF THE WORLD 95 

rendered it possible, for the first time, to survey private law rising as § 18 . 
a whole beyond all the complexities of detail. A mere knowledge 
of law was beginning to develop into a legal science *. 

L. 2 §§ 6. 7 T). de orig. jur. (1, 2) (Pomponius) : Omnium tamen 
harum (legum XII tab.) et interpretandi scientia et actiones 
apud collegium pontificum erant, ex quibus constituebatur, 
quis quoquo anno praeesset privatis.— Postea cum Appius 
Claudius proposuisset et ad formam redegisset has actiones, 
Gnaeus Flavius scriba ejus, libertini filius, subreptum librum 
populo tradidit, et adeo gratum fuit id munus populo ut 
tribunus plebis fieret et senator et aedilis curulis. Hie liber, 
qui actiones continet, appellatur jus civile Flavianum. — 

— augescente civitate, quia deerant quaedam genera agendi, 
non post multum temporis spatium Sextus Aelius alias ac- 
tiones composuit et librum populo dedit qui appellatur jus 
Aelianum. 

§ 35 eod. : ex omnibus qui scientiam (juris civilis) nancti sunt 
ante Tiberium Coruncanium publice professum neminem 
traditur : ceteri autem ad hunc vel in latenti jus civile retinere 
cogitabant solumque consultatoribus vacare potius quam 
discere volentibus se praestabant. 

§ 41 eod.: Quintus Mucius (Scaevola), Publii filius, pontifex 
maximus, jus civile primus constituit generatim, in libros 
decern et octo redigendo. 

The chief business of a Roman jurist— apart from the drawing up 
of formulae for juristic transactions (cavere) — was to give answers 
to legal, questions (respondere). With this he would combine the 
practice of teaching law and writing on legal subjects. 

The authority of the ancient pontifical responsa rested on the 
position occupied by the college of pontifices, which appointed one 
of its members every year to give 1 opinions ’ on questions of private 
law (constituebatur, quis quoquo anno praeesset privatis). This is 
the reason why the judges were, as a matter of fact, bound by the 
pontifical responsa 7 . Since the close of the Republic, however, and 

4 On Scaevola's jurisprudence, v. vol. ix. p. 286 ff. 

Kruger, G. d. QueUen des rom. A\, pp. 1 The delivery of the pontifical re- 
59, 60; Burckhardt, ZS. dcr Sav. St., sponsum virtually decided the suit, 



9 6 


THE INSTITUTES 


§ 18 . with the spread of juristic learning, it had become a frequent practice 
for persons other than members of the college of pontifices freely 
to give ‘ responsa,’ though, of course, responsa of this kind were 
devoid of binding authority. It was clear that such a practice must 
tend to prejudice the prestige of the responsa and of jurisprudence 
in general. On the other hand, a return to the old monopoly of all 
legal learning by the pontifices was out of the question. The 
Emperor Augustus therefore devised a different remedy. With a 
view to restoring the authority of professional legal opinions, and at 
the same time, very probably, to throwing the imperial power into 
fresh relief, he ordered that in future all responsa should be given 
ex auctoritate ejus (principis) s , i.e. with the sanction of the emperor. 
As Augustus was at the same time pontifex maximus, this ordinance 
of his might be interpreted as involving both a revival and a reform 
of the old authoritative responsa, which the rise of the new practice 
had not, of course, done away with. Through the medium of the 
emperor it was now feasible for persons who were not pontifices to 
deliver authoritative responsa. Henceforward the pontifical college 
ceased to play any part in the shaping of the civil law, and the 
princeps in conjunction with scientific jurisprudence (which had 
now definitely passed into the hands of laymen) assumed, to an 
ever increasing extent, the lead in the further development of the law. 

Erom the reign of Tiberius onward the business of giving responsa 
ex auctoritate principis was invariably carried on in a form which 
that emperor seems to have been the first to settle definitely. 
Henceforward it is the usual practice for the emperor to confer the 
so-called ‘jus respondendi ’ (jus publice, populo respondendi) on 
certain distinguished jurists. The jus respondendi is the privilege 
of delivering ‘ opinions * binding on the judge , both on the magistrate 
and the appointed judex privatus. The ‘opinion* of a privileged 
jurist was required to be delivered in writing and sealed, and if 
a party submitted such an opinion in due form, the judge was 


thou^n tie pionounament of the ver- " I.ilcrnlly t ‘ under the guarantee «>1 
rltct by the judge had to follow a* a the < a m|)C(or.' (p. iVrnice in th '• /w- 
mntter of form. Cp. Mommsen, /Com. ristiuhe Abhandlun^m, Fcstgabc lur 
.Sfaat. recht, vol. ii. (3rd cd., jip. 46, 4S. Ucsclcr (Berlin, p. 70. 



ROMAN LAW AS THE LAW OF THE WORLD 97 


)ound to decide accordingly, unless, indeed, a conflicting opinion § 18 . 
rf another privileged jurist were also submitted. At first it was 
3nly the responsum expressly delivered by the jurist in reference 
:o a particular action that possessed such authoritative force. But 
it soon became the practice to extend the same authority to pre- 
vious responsa, i. e. to such as no longer existed in their official form 
(written and sealed), but were only to be found in the literature 
of the responsa (the collections of responsa). A rescript of the 
Emperor Hadrian expressly sanctioned this practice. 

The responsa prudentium, i.e. the ‘opinions’ of the privileged 
jurists, had become a kind of source of law, and their force, as 
a source of law, was beginning to extend to juristic literature in 
general. 

L. 2 §§ 48. 49 D. de orig. jur. (1, 2) (Pomponius): Massurius 
Sabinus in equestri ordine fuit et publice primus respondit : 
posteaque hoc coepit beneflcium dari, a Tiberio Caesare 
hoc tamen illi concessum erat. Et, ut obiter sciamus, ante 
tempora Augusti publice rcspondendi jus non a principibus 
dabatur, sed qui fiduciam studiorum suorum habebant, con- 
sulentibus respondcbant : neque responsa utique signata 
dabant, sed plerumque judicibus ipsi scribebant, aut testa- 
bantur, qui illos consulebant. Primus divus Augustus, ut 
major juris auctoritas haberctur, constituit ut ex auctoritate 
ejus responderent : et ex illo tempore peti hoc pro beneficio 
coepit. 

Gaj. Inst. I § 7 : Responsa prudentium sunt sententiae et 
opiniones corum quibus permissum est jura condere. Quo- 
rum omnium si in unum sententiae concurrunt, id quod ita 
sentiunt legis vicem obtinet ; si vero dissentiunt, judici licet 
quam velit sententiam sequi ; idque rescripto divi Hadriani 
significatur. 

Roman jurisprudence was thus placed in a position of command- 
ing influence. It only remained to be seen whether it would be able 
to utilize the influence it had acquired fl . 

1 On the subject under discussion, v. ersten Jahrhumhrt dcr Kaiserzeit, 
especially A. Pcrnice, Marcus Antistius vol. i. (1873) pp. 14 ff., 81 ff. ; Karlowa, 
Labeo, Das romische Privatrecht im Rom. RG. t vol. i. pp. 657 ff. f 677 ff., 

SOllM : l.Rni.in IT 



98 


THE INSTITUTES 


18. At the outset, a conflict arose between the jurists themselves. 
Two rival law-schools sprang up, the Sabinians and Proculians, the 
Sabinians being the followers of C. Atejus Capito, the Proculians 
the followers of M. Antistius Labeo. Both Capito and Labeo lived 
under Augustus. The Sabinians derived their name from Masurius 
Sabinus, an adherent of Capito, who lived in the reign of Tiberius. 
The Proculians derived their name from Proculus, who lived in 
the reign of Nero and was acknowledged as the leader of the disciples 
of Labeo. Sabinus was succeeded by C. Cassius Longinus, and 
it is after him that the Sabinians are sometimes called Cassiani. 

It is impossible, at the present day, to determine, with any 
certainty, what the essence of this divergence of schools was. But 
there would seem to be good warrant for one statement, at least, 
viz. that the influence exercised by Labeo extended in a large 
measure to the Sabinians. Of the two great jurists of the Augustan 
age Labeo was beyond doubt the greater. The large number of 
quotations from his works which our Corpus juris has preserved 
bear testimony, to this day, to his extraordinary influence on scientific 
jurisprudence. Capito’s name, on the other hand, has practically 
disappeared from Justinian’s collection. Labeo is the author of 
various new classifications, divisions and definitions— c. g. the de- 
finition of ‘dolus malus,’ of excusable error, of appurtenances, \( . 
— which helped to place both the theory and practice of law 
on a clearer and firmer footing. He is probably the author of the 
division of ail actions into ‘actiones in rem ' and ‘actiones in 
personam’ (infra, § 52 )— a division which, to this day, affects all 
juristic thought in matters of private law. As in the domain ot 
scholarship— for he was an accomplished scholar and thoroughly 
imbued with the Greek and Roman culture of his age— so also 
in that of jurisprudence, be was an * analogist M0 , i. e. his method 

707 ff., 733 ff. ; Kruger, G. der QuelUn xxv. '1890 pp. 53, 54. The author 

u. J.itteratur des Rom. R. i8.sK .pp. dwells on l.abco’s method of dealing 

lctyff., 1 26 ff. ; \\. Kalb, Roms Juristen with questions of scholarship, and vtiv 

noth threr Sf niche dargestc’lt 1890). happily points to certaiu conclusions t*» 

10 r p. M. Schanz in the Rhilologus which it helps us in endeavouring t" 
P* ‘ C< ) ft- : Analogical u. Ano- characterize Labeo’* intellectual 
tnalnttn im romischen Recht ; and, on lion, 
the same subject, in the Hermes , vol. 



ROMAN LAW AS THE LAW OF THE WORLD 99 


was to trace all that was normal, all that was united by a common § 18. 
underlying conception, in order that, by so doing, he might bring 
positive law under the control of the art of dialectics. He was 
well qualified, therefore, to perform a useful task in his time. For 
there were many principles of law floating, as it were, in the air, 
generally recognized and already universally adopted, but still, 
maybe, waiting for some one to give them direct utterance. Labeo 
was the man to grasp them boldly and firmly, to cast them into 
shape, to give them a terse and vigorous expression which was 
sometimes, perhaps, too terse, because too sweeping. There was 
a book of Labco’s in which he had collected what he called the 
‘probabilia,’ i. e. a number of such ‘legal principles of universal 
validity ’ taken from actual life (‘ libri pithanon*). This book long 
continued to exercise a vast practical influence, and it was with 
a view to softening the exaggerated point of the principles there 
formulated that Paulus, as late as two centuries after, wrote a critical 
commentary on I^abeo’s work, testing his principles in the light of 
the actual facts of particular cases, and more especially in the light 
of the concrete intention of the parties (the ‘quod actum estb. 

But it was precisely the terseness and vigour of his definitions 
and principles that very naturally carried his contemporaries away. 
The power of definiteness and logical precision were on his side 
and could not fail to ensure his success. Neither he nor Capito 
seem to have founded a regular school themselves. They both gave 
legal instruction, but apparently after the traditional republican 
fashion of old distinguished Romans, whose practice it was to give 
public answers to questions in the presence of their pupils, occasion- 
ally arguing with them, but very rarely imparting regular private 
tuition in a series of connected lectures. Sabinus, who (we are told) 
earned his living by giving legal instruction n , seems to have been 
the first to originate a school of law. It is probable that, at the 
same time, the method of instruction by means of a corporate 
organization, such as had been in vogue among the Greek 
schools of philosophy, found its way into Rome. These schools 

11 L. a. § 50 D. de orig. juris (1, a) facilitates fuerunt, sed plurimum a suis 
(Pomponius) : huic (Sabino) nec arnplac auditoribus sustentatus est. 

H % 



100 


THE INSTITUTES 


§ 18. were societies of which the professor was the president and the 
pupils the members, each pupil being bound on entering to pay a sub- 
scription. The presidency of the school passed by a legal succes- 
sion from one professor to the other 1S . In opposition to the school 
of Sabinus, a second school sprang up, organized after the same 
fashion. This was the school of l’roculus. After their respective 
founders the members of the former called themselves Sabinians, 
those of the latter Proculians. Tradition subsequently traced back 
the opposition between the schools to the opposition between the two 
famous jurists of the age of Augustus, I.abco and Capito. Neverthe- 
less there were many eminent jurists who did not belong to cither 
school and who had learned law in the old fashion, i. e. as ‘au- 
ditores ’ of some distinguished jurist. But as long as the opposition 
between them lasted, the organized societies of Sabinus and Pro- 


13 von Wilamowitz-Mollondorff lias 
proved in his J'hilologinhe Unterstuh- 
tuigen (edited with Kiessling', voi. iv. 
(i8$T p. 263 ff.. that the llreck schools 
of philosophy were thus organized as 
corporate societies. C’p. Diels in l 'hilt - 
sophist he Aufsatze , Kd. Zeller gtwidm* t, 
1887, j). iyj ff. When the students took 
their meals together, they wcie hound 
to conform to the rufiot avunortKoi or 
4 drinking rules’ laid down by the pro- 
fessor as president of the society. Cp. 
Perrdcc, ZS. dtr Sav. St. , vol. vii. mru. 
Abt., p. <) 2 . The circumstance* which 
>eem to point to the conclusion that the 
Sabinian and Proculian *chooU were 
similarly organized as corporate socie- 
ties are the following. l u*t, th** tact 
that Sabinus was in the habit of taking 
fees from his pupils ; secondly, the cir- 
cumstance pointed out, some time ago, 
by Hremei in his RahtsUhnr mi,/ 
RcchtsschuUn im n misi hen Aa/An c/, A 
(186 8), p. 68 ff., viz. that Poinponius 
( 1 . 2. 5 51 ff, I), r. 2 j, in enumerating 
the heads of the Sahinian and Proculian 
schools, invariably uses the term 1 suc- 
cessit/ which he avoids in enumerating 
the jurats of the Republic — an expres- 
sion which would seem to show that, in 
the case of the Sabinians and Procu- 
lian-* ii wa really a question of legal 
succession to the presidency of the 
school/' Again, the words used by Ul- 


pian in 1 . 1. § 5 D. de extraord. cogn. 

50, 1;, in regard to the fee payable ti> 
the professor: honor qni in ingres>u 
sth’ramtHfi offer ri debuit c]>. on tlm 
point Hiemvr, A'o pp z, 6; 

Karlown, AVw. R(i. % vol. i. p. ^7;, note 
1 , might contain a r< kmnee t»> such an 
organization. For sacr amentum is the 
equivalent in Tow I .at in e g in th: 
Tatin elum.li fating for the (inck 
/iVtTrrjfuoi', and the ‘mysteries’ were 
private corporations, just as, convcr>clv, 
the private Coi poralioiis bore this re- 
semblance to the ‘ mysteries* that they 
centrctl in some religious delimit. An 
entrance fee was exacted from every 
one becoming a member o! a mystery 
or of any private corporation in genei.il. 
Tlpian’s words may. of ccun’, only 
be meant in a figurative s< use, the 
idea being inertly to compare the fee 
with the payme nt made on ‘ entering 
the association* the * set ret soviet)'. 
Hut they would still be of interest in 
reference to the question under discus- 
sion as showing how rcadilv even in 
Ulpian's time —a comparison between a 
law school and a corporate soue’v sug- 
gested itself. — The arguments on both 
si<ks of this question have recently been 
discussed bv zVPernice in Ilull/endoilf’* 
EmykhpaMt d. R IV. vol. i. ^th ed. 
ifrjo) p. 1 5 j note. 



ROMAN LAW AS THE LAW OF THE WORLD ioi 

cuius were the natural centres of all further development. Sabinus § 18. 
himself was the leading spirit among the chiefs of these schools. 

He pointed out to his pupils the lines on which Roman law should 
progress, in the sense of ridding itself of old-fashioned formalism. 

The Proculians, on the other hand, were inclined to abide by 
traditional rules, though, in so doing, they often, perhaps, sacrificed 
the spirit to the letter of Labeo’s, their master’s, teachings. The 
following dispute may serve to illustrate the difference between the 
schools. The Sabinians maintained that the defendant in an action 
was entitled to judgment, even though he only gave satisfaction to 
the plaintiff during the trial (‘ omnia judicia esse absolutoria’). The 
Proculians, on the other hand, insisted that in the actioncs stricti 
juris, i. e. in those actions where the issue submitted to the judge 
was simply whether or no the defendant was liable, he (the de- 
fendant) ought, in all cases, to be condemned, if he was liable at 
the time when the issue was formulated (litis contestatio), and that 
no payment by him, after litis contestatio, could affect the result. 
Sabinus’ most important work — the one through which he exercised 
the most lasting influence— was his treatise called 1 libri tres juris 
civilis.’ Starting from the law of inheritance and passing on to the 
several juristic acts, he exhibited the entire body of civil law, 
classified according to subjects, and succeeded, like Labeo— whose 
influence he too felt, though in some points he controverted Labeo’s 
teachings — in bringing out a number of new points of view, so 
much so, that his work was adopted henceforward as a fundamental 
treatise for the study of the jus civile. 

The first indications of the so-called ‘classical jurisprudence' 
appeared early in the second century. Its task was to reconcile the 
opposition between the two schools, and its labours resulted in the 
fusion of the jus civile and the jus honorarium (which latter had 
already become stationary) with the new imperial law into one 
harmonious whole. The foundations were Laid by P. Juventius 
Celsus in his ‘ Digesta ’ (in thirty-nine books). He was a follower 
of Proculus and died probably in the reign of Hadrian. Celsus was 
succeeded by a more eminent lawyer of the Sabinian school, Salvius 
Julianus, a native of Hadrumetum in the Roman province o£ Africa. 



102 


THE INSTITUTES 


§ 18 . who flourished in the reigns of Hadrian and Antoninus Pius. 
The task of his life consisted, in the first place, in the final con- 
solidation of the edictal law (supra, pp. 88,89) ; and, secondly, in the 
composition of his great Digest in ninety books. Like Celsus, he 
adopted the arrangement of the praetorian edict, utilizing it, how- 
ever, for the purpose of expounding the whole of Roman law. His 
vast acquaintance with practical case-law, the ingenuity of his own 
countless decisions, his genius for bringing out, in each separate 
case, the general rule of law which, tersely and pithily put, strikes 
the mind with all the force of a brilliant aphorism and sheds its light 
over the whole subject around — these are the features which con- 
stitute the power of his work. Roman jurisprudence had completed 
its dialectic training under Ixibeo and Sabinus, and the time had 
now arrived for applying to the vast mass of materials the principles, 
categories, and points of view that had been thus worked out. 
Julianus’ Digest exhibited Roman jurisprudence in all its strength 13 , 
and its success was proportionately great. Surrounded as he was by 
numerous friends, all working towards one and the same end, the 
great jurist's triumph was ensured. Of such fellow-workers we may 
mention two: one, Sextus Caecilius Africanus, a rugged and weighty 
writer, the other Sextus Pomponius, a man of extensive reading and 
learning, who was also interested in historical research. After this, 
the star of the Proculian school began to set. The jurist Gajus, 
who died after 180 a.d., and whose institutional treatise was adopted 
as a model by all subsequent writers of legal text books, is the last 
in whom the opposition between the schools is represented. He 
himself was a Sabinian. He still mentions contemporary teacheis 
‘of the other school/ i. e. Proculians. Put their names have not 
been handed down to us. The Sabinians gained the day. Prom 
the time of Salvius Julianus, and as a consequence of his labours, 
there was but one jurisprudence, and the lines on which it was 
• progressing were those marked out by him. 

The real nature of the task, to fulfil which was the function of 
Roman jurisprudence, had now become manifest. To unfold the 

J n !} anu * ai }d his writings, cp. II. On p. 108 flf. the author denis with the 
I'uhl, Sqjjuus Julianus , part i. ( 1 886). aphoristic wisdom of Julianus. 



ROMAN LAW AS THE LAW OF THE WORLD 103 


great legal system in all its wealth and multiplicity by means of § 18 . 
decisions and opinions, while following up in its details each 
question that arose, and yet, at the same time, to produce order out 
of chaos by vindicating the force of firm principles— such was the 
problem which Roman jurisprudence had to solve. A kind of casuistry 
of a higher order was required, such as had already been exhibited 
to the Romans in the great Digest of Celsus, and more especially in 
that of Julianus. At this point — it was towards the end of the second 
century — the Greek-speaking Orient sent its intellectual forces to 
participate in the creation of a jurisprudence for the whole empire, 
emphasizing thereby that consciousness of a great internal unity to 
which the empire had already attained 14 . Under Marcus Aurelius 
and Commodus, Q. Cervidius Scaevola, a Greek by birth and 
subsequently a member of Marcus Aurelius’ council of state (con- 
silium), wrote his Digest in forty books, in which he set forth Roman 
law after the casuistic method, in the shape of ‘ responsa/ adopting, 
like others, the arrangement of the edict. His pupils were Septimius 
Severus, who afterwards became emperor, and, above all, Aemilius 
Papinianus, the most illustrious and, with Julianus, the greatest 
of Roman jurists. Papinian, who, like Scaevola, was an Oriental, 
combined the moral weight attaching to a character of sterling 
rectitude with the elegance of a Greek and the terseness and pre- 
cision of a Roman. Like Scaevola he adopted the casuistic method 
of expounding the law by means of answers to concrete legal cases. 

He carried this method to its highest perfection. His most im- 
portant works were nineteen 4 libri responsorum * and thirty-seven 
‘ quaestionum libri,’ in the latter of which he followed the arrangement 
of the edict. A mass of detached questions is here treated with the 
utmost lucidity ; the decisions are formulated with great breadth, 
but, at the same time, with due regard to their proper limitations ; 
the essential facts of each case are thrown into sharp relief and their 
accordance with the legal principle propounded is so strikingly 
brought out as to carry conviction, even where no arguments are 
adduced. Greek and Roman culture, acting and reacting on one 

14 Caracalla gave expression to this fact by extending the Roman franchise to 
provincials ; infra, § 33. 


o 



104 THE INSTITUTES 

§ 18 . another, produced in Papinian the brightest luminary of Roman 
jurisprudence. What he had taught and demanded throughout his 
life, viz. that what was immoral should also be deemed impossible 
he sealed with his death. He was murdered by the servants oi 
Caracalla in 212 a . d . on account of the unswerving resistance which 
he opposed to the fratricidal designs of that tyrant. 

After Papinian the period of decline begins. Roman juris 
prudence had accomplished its masterpiece. The era of creative 
genius is followed by the labours of the compilers. Papinian's 
pupil, Domitius Ulpianus, a Syrian by descent (he derived his 
origin from Tyre), summed up the results achieved by his prede- 
cessors in a critical spirit, and embodied them in his voluminous 
commentary on the praetorian edict in cighty-thrce books, in his 
fifty-one Mibri ad Sabinum,’ and in a long scries of monographs— 
most of his works dating from the reign of Caracalla (212-21 7 A.n. ). 
Next to him, and working in a kindred spirit, we have the jurist 
Julius Paulus, like Ulpian, an unusually prolific writer and probably 
a pupil of Scaevola’s. His principal works were also a commentary 
on the edict (in eighty books), and a commentary ad Sabinum (in 
sixteen books). From this time onward it was in the main through 
the medium of Ulpian’s and Paulus' writings that the labours of the 
great jurists operated on subsequent ages. 'Flic immense intellectual 
achievements of Roman jurisprudence were there put together in 
a clear and easily intelligible form. The foundations of Justinian’s 
Digest were thus laid. A touch of the bright Greek spirit illumined 
the writings of Ulpian and caused them to be preferred to those <>i 
Paulus, where the thought is perhaps occasionally more profound, 
but the struggle with the matter more apparent. Ulpian’s writings 
form the groundwork of Justinian's Digest. They constitute om 
third, Paulus' writings about one sixth of the Digest (there are 246: 
passages from Ulpian and 2080 from Paulus), so that about one half 
of that part of our Corpus juris which consists of the Digest owes 
its origin to the writings of Ulpian and Paulus. After Ulpian only 
one other jurist, Hercnnius Modestinus, a pupil of Ulpian's and, 


11 Cp. 1 . 15 D. dc cond. imt. ^8, 7). 



ROMAN LAW AS THE LAW OF THE WORLD 105 

like him, a native of the Greek portion of the empire, attained to § 18 . 
eminence. Little, however, had been left for him to do. His 
favourite topics are the law relating to the public officials of the 
incipient monarchy, and certain subtle questions of theory and 
practice. It was soon after his time that Roman jurisprudence lost 
its leading position. The jus respondendi ceased to be conferred 
after the close of the third century. The empeior alone gave 
‘responsa/ in the form of the ‘ rescripta principiV (infra, § 19), and 
the last achievement of Roman jurisprudence— for its vitality had 
not yet passed away — was to infuse its spirit into the numerous 
rescripts of Diocletian and his successors 16 . 

From Labeo and Sabinus down to Celsus and Julianus, i.e. during 
the first century of the Empire, the development of Roman juris- 
prudence had been steadily progressive. From Celsus and Julianus 
to Scaevola and Papinian, i. e. during the second century, it stood 
at the height of its power. From the time of Ulpian and Paulus, 
i.e. from the third century onwards, a period of uninterrupted 
decline set in. The treasure of Roman jurisprudence lay henceforth 
in the wealth which the past had produced. And a wonderful 
treasure it was which was thus entrusted to the safe-keeping of 
the jurists, and which they now passed on to the emperors and, 
through them, to the coming generations. 

The task which had devolved upon Roman jurisprudence, and 
which it had now solved, had been a twofold one, viz. first, to 
consolidate into a uniform system the law which lay stored up in 
all the manifold sources, from the time of the Twelve Tables down- 
wards ; .secondly, to develop, in a scientific form, the abundance of 
matter which these sources of law contained. The time had arrived 
for a new 4 interpretation Just as, at an earlier date, the Twelve 
Tables had to be ‘interpreted/ so now, it was above all things the 
praetorian edict that had to be subjected to a similar process. It 
was only in a rough and ready manner, in a few broad outlines, that 

18 Cp. F. Hofmann, Kritische Studien it would seem that instances of grants 
turn romischen Rechte (1885), pp. 3-35: of the jus respondendi occurred even 
Der Verfall der rom . A 'IV , ; Kruger, G. under Diocletian (Kruger, p. 260, n. 6}. 
der Quellen, See., p. 274. Nevertheless 



io 6 


THE INSTITUTES 


§ 18 . the praetorian edict had been able to work out the principles of a 
free and equitable law for the mutual dealings between man and man. 
There was a large field for further labour here. Nay, what is more, 
there were a great many subjects on which no information whatever 
was to be gained either from the praetorian edict or any other 
written source of law, for example, on the principles of representa- 
tion, on the legal effect of conditions, on the contractual liability for 
negligence and many others. The problem here was to discover the 
true nature of the dealings themselves, to trace the unexpressed and 
unconscious intention underlying all such dealings, and, having traced 
it, to put it into words, to clothe it in a form in which definiteness 
and lucidity should be coupled with a degree of comprehensiveness 
sufficient to bring out the broad general principle governing, not 
merely a large number of cases, but positively all cases, including 
those which were peculiar and exceptional. Such a problem touched 
rather the creation than the application of law. But it was precisely 
in performing a task of this kind that the genius of Roman juris- 
prudence came most strikingly into play. In spite of its innate 
dialectic strength and discipline, it had but few dogmatic interests in 
the modern scientific sense of the term. It gave little thought to 
the abstract conception of law, of ownership, or of liability ; and 
what little it gave, generally yielded but very scanty results. But 
with regard to the consequences involved in the abstract conception 
ot ownership or of liability, its natural instinct was never at fault for 
a single moment. And nowhere was this unique power more con 
spicuously displayed than in the way the Roman jurists, so to speak, 
hit upon the precise requirements of bona tides in human dealings 
and applied them to individual cases. In such transactions, for 
instance, as sales, agreements to let and hire, agencies, &c. they 
seemed to know at once, and instinctively, what it was that the 
nature of the circumstances themselves required, in all c ases and in 
each separate case, quite apart from any explicit declaration of inten 
tion on the part of the persons concerned. This wonderful power of 
discrimination, this clear-sightedness in the adjustment of conflicting 
principles, guided by a never-failing instinct for discerning the 
common elements ; this unique faculty for giving outward expression 



ROMAN LAW AS THE LAW OF THE WORLD 107 

to the law inherent in the concrete circumstances, which law, when § 18 . 
found supplies the rule— with many practical variations of course— for 
all other circumstances of the same kind : — these are the features 
which give to the writings of the Roman jurists their incomparable 
charm, and to the work they have achieved its indestructible force. 

It was no mere * arithmetic of abstractions/ as it has been called, 
that made the Roman jurists as great as they were, it was rather that 
practical tact, which, without always being intellectually conscious of 
the abstract conception, nevertheless invariably acted in accordance 
with it, and thus succeeded in bringing out, in the individual case, 
the general law inherent in all cases of a similar description. 

The department of law where the peculiar genius of the Roman 
jurists found full scope, is the law of obligations, the law of debtor 
and creditor, the law, in other words, which is most properly con- 
cerned with the mutual dealings between man and man ; and here 
again it is more especially the law relating to those contracts, where 
not merely the expressed, but also the unexpressed intention of the 
parties has to be taken into account (the so-called bonae fidei 
negotia). And in regard to this unexpressed intention which is not, 
for the greater part, present to the mind of the party himself at the 
moment of concluding the contract, it was the Roman jurists who 
discovered it, and discovered it for all time to come, and enunciated 
the laws which result from its existence. This is a task which will 
never have to be done over again. And, at the same time, they 
clothed these laws in a form which will remain a model for all future 
ages. That is the reason why the law of obligations, and it alone — 
and more particularly the law of those bonae fidei negotia, and it 
alone— constitutes what is, in the truest and strictest sense, the 
imperishable portion of Roman law. As to the remaining parts of 
Roman private law, they never again attained to full and absolute 
dominion, and they have all been, more or less, superseded and 
even formally abrogated by the German Civil Code which has now 
come into force. But the Roman law of obligations will endure. 

It cannot be abolished. The intention of the purchaser, the hirer, 

&c. is the same in all ages, and it is this intention alone that Roman 
law has made clear. The legislation of Germany may indeed repeal 



108 THE INSTITUTES 

§ 18 . the Roman law on this subject, in point of fact, however, it cannot 
fail to be in the main a substantial re-enactment of it. 

It was just the manner in which the Roman jurists exercised their 
vocation that enabled them to accomplish these striking results and 
to secure to Roman law its imperishable and irresistible power. For 
the centre and pivot of all their learning lay at all times in the art of 
giving ‘responsa/ i. e. in the treatment of concrete cases. Roman 
jurisprudence grew up in immediate contact with practical life, 
immersed, so to speak, in a multitude of concrete cases, but never 
at a loss to discover the law inherent in each, — a law which, though 
abstract, met the requirements of details and which, with all its 
elasticity, was strong and firm enough to govern the vast field of 
human dealings with triumphant certitude. 

The praetorian law was the channel through which the jus gentium 
had, in the first instance, gained admittance to, and had then rapidh 
permeated, Roman law. But it was only in the hands of the Roman 
jurists that the jus gentium, that law of human dealings which, in 
itself, was so intangible, so shifting and so free, received the tangible 
ness, the perspicuity and, at the same time, the necessary limitations 
without which the principles of bona fides, in the form in which the 
Roman jurists had embodied them, could never have retained their 
indestructible vitality. 

The real task which had devolved on Roman law in the course nt 
its development was thus accomplished. The jural reason inherent in 
the various relations of human intercourse had found an expression 
of classic beauty in the writings of the Roman jurists. The last 
touch was all that was wanting. To apply it was reserved for the 
imperial power. 

L. 2 § 47 D. de 0 . J. (i, 2) (Pomponius) : Maximae auctoritatb 
fuerunt Atejus Capito, qui Ofilium secutus est, ct Antistius 
Labeo, qui omnes hos audivit, institutus est autcin a Trebatio. 
Ex his Atejus consul fuit : I^tbco noluit, cum offerretur ci ah 
Augusto consulatus quo suffectus fierct, honorem suscipcrc, 
sed plurimum studiis operam dedit, et totum annum ita 
diviserat ut Romac sex mensibus cum studiosis cssct, sex 
mensibus secederet et conscribcndis libris operam darct; 



ROMAN LAW AS THE LAW OF THE WORLD 109 


itaque reliquit quadringenta volumina ex quibus plurima § 18 . 
inter manus versantur. Hi duo primum veluti diversas 
sectas fecerunt: nam Atejus Capito in his quae ei tradita 
fuerant perseverabat ; Labeo ingenii qualitate et fiducia 
doctrinae, qui et ceteris operis scientiae operam dederat, 
plurima innovare instituit. 

The first book in which a reconstruction, on scientific lines, of the writings of 
the Roman jurists (more especially from the materials preserved in Justinian's 
Digest) has been undertaken, is Otto Lenel’s Palingenesia juris 'rivilis (2 vols., 

1889), in many respects a work of fundamental importance. For the jurists prior 
to Hadrian, reference should be made to the work of Bremer mentioned on pp. 19 
and 91, n. 1. 


§ 19. The Republican Empire and the Imperial 
Administration of Justice . 

The imperial power passed through two stages of development. § 19 . 
In its first stage, that of the principals \ the power of the emperor 
is simply the power of the ‘first citizen* of the republic; in its 
second stage, i. e. from the time of Diocletian and Constantine, it is 
the power of a monarch. This development is reflected in the 
history of law. The princeps of the first epoch has no legislative 
powers ; the imperial monarch of the fourth and subsequent 
centuries has legislative powers. During the period of the principate 
the emperor’s influence on the development of the law is merely 
incidental and supplementary ; during the period of the monarchy 
he assumes, by means of his legislative authority, the exclusive 
leadership in all further legal progress. 

During the first stage, which extends down to about 300 a. d., 
the princeps influences the development of law in four ways : by 
his decisions of particular cases (dccreta, interlocutiones) ; by his 
‘opinions’ on particular cases (rescripta); by his instructions to 
officials (mandata) ; by his public ordinances (edicta). 


1 The princeps, as such, was a private 
individual, distinguished, however, from 
other private individuals by the fact 
that he possessed, first, the tribunicia 
potestas lor life, which secured him a 
decisive influence in the city of Rome, 
ind secondly, the imperium for life, 
which made him military commander- 


in-chief in the empire. Cp. A. Nissen, 
Beit rage sum row. Staatsrecht 1885), 
p. 209 ff. Mommsen {Rom. Stoat sr ex ht , 
vol. ii. 3rd ed., p. 745 ff.) takes a some- 
what different view and holds that the 
power of the princeps was, on principle, 
magisterial. 



110 


THE INSTITUTES 


10. 4 Decreta * and * Rescripta 9 must be regarded as means of authentic 

interpretation. The emperor interprets the law by applying it tc 
a particular case, but the imperial interpretation of the law is authorita- 
tive, and conclusive for all cases of the same kind. A rescript 
(cp. infra, § 57, n. 2) was granted in reply to an enquiry addressed tc 
the emperor either by a magistrate or— as was far more frequentlj 
the case— by a private party. It took the form either of an inde- 
pendent reply (epistola) or of a note appended, by way of answer, tn 
the written enquiry (subscriptio). The quasi-statutory force ol 
decrees and rescripts (legis vicem habent), like that of the responsa 
prudentium (§ 18), is not limited to the life of the emperor who 
issues them. The authentic interpretation shares the legal force of 
the law it interprets 2 . 

The ‘ Mandata ’ which the emperor addressed to his officials 
became, as a matter of fact, a source of law in so far as certain 
portions of them (capita ex mandatis) were regularly repeated in 
every set of official instructions 3 . The imperial ‘Edicts/ lastly, 
were the outcome of that right to issue public orders which vested 
in the emperor in his magisterial capacity. By means of his edicts 
on questions of private law he made known the principles by which 
he intended to be guided in the exercise of his imperial power in 
reference to any such questions coming before him \ Edicts and 
mandates were only valid, on principle, during the life of tin 
emperor who issued them; if their validity was to extend any 
further, the next emperor had to repeat them \ 


* e. g. the dccretum divi Marci on self- 
help, 1 . 7 D. ad leg. Juliam <le vi privata 
(48, 7), the epistola divi Hadriani on the 
beneficium divisionis for several co- 
sureties, $ 4 I. de fidejuss. (3, 20;, 1 26 
D. cod. (46, — Cp. Mommsen, horn. 

Stantsrcchi, vol. ii. 3rd ed., p. 911 fT. ; 
Wlassak, Krilische Studitn zur Theorit 
dtr Rechtsqucllcn (1884;, p. 133 fT. ; 
Karlowa, Rom. RG., vol. i. p. 646 fT. ; 
Kruger, G. d. Quel/on, p. 93 ft. It was 
not till Hadrian (supra, p. 90, n. 5) 
that it became the practice for the em- 
peror to give a legal opinion in reply to 
the petition of a litigant party. Alto- 
getber the reign of that emperor marks 


a perceptible advnncc from the print j 
pate of the old style to the later mon- 
archy. Cp. Bremer, in the Gotti%n 
Gtlekrte Anztigtn, 1889, p. 429 fT. 

3 e. g. the caput ex mandatis in favour 
of soldiers’ wins, which became a stand- 
ing order from the lime of Hadrian, 1 . 1 
pr. D. dc testam. militis (29, I 

4 e g. 1. 4 D, ne dc statu defunct. 
(40, 15) : Divus Nerva edicto vetuit 
pnst quinquennium mortis cujusquc de 
statu quacri. 

4 Mommsen, Rom. Stoat srt(hl % vol. ii. 
( 3 rd ed.) pp. 905, 913-915; Wlassak. 
Kritische Studitn, p. 166 IT. Hence 
it was very rarely that the emperors re* 



ROMAN LAW AS THE LAW OF THE WORLD III 


The jurists gave these various manifestations of the imperial § 10. 
power, so far as they bore on the development of law, the collective 
name of ‘ constitutiones,* and assigned to such constitutiones a quasi- 
statutory force in so far as the conditions of permanent validity had 
been satisfied, which (as we have seen) was not a matter of course 
in the case of edicts and mandates. During this epoch, however, 
a statute proper assumed, as a rule, the form, not of an imperial 
ordinance, nor again of a popular statute— examples 'of the latter 
occurred but exceptionally, and only in the early part of this 
period — but of a senatusconsultum. During the Republic, the 
authority of the senate was still confined to regulating the execution 
I of the laws by means of an authoritative interpretation. From the 
-beginning of the Empire, however, though at first in the face of 
^some opposition (Gaj. i, 4), the senate exercised an independent 
legislative power operating, of its own force, as a source of jus 
civile. The decree of the senate was now regarded as taking the 
place of the popular statute. The princeps has the right to treat 
with the senate and to originate a decree of the senate by means 
of a motion (oratio) ; since Hadrian, in fact, the power to submit 
bills to the senate for the purpose of having them enacted as 
senatusconsulta is exclusively exercised by the emperor. To what 
extent the right of the senate to agree to a motion of the emperors 
had, in the course of this epoch, sunk to a mere matter of form, is 
apparent from the fact that it could become the practice, at a 
subsequent date, to quote, not the senatusconsultum, but merely 
the oratio, i. e. the motion of the emperor 4 . 

Gaj.’ Inst. I § 4: Senatusconsultum est, quod senatus jubet 
atque constituit, idque"legis vicem optinet, quamvis fuerit 
quaesitum. § 5 : Constitutio principis est, quod imperator 
decreto vel edicto vel epistula constituit, nec umquam dubi- 
tatum est quin id legis vicem optineat, cum ipse imperator 
per legem imperium accipiat. 

sorted to edicts for the purpose of intro- (27, 9X Karlowa, loc . fit. p. 643 ff. ; 

ducing rules of law which were intended Kruger, loc . tit. p. S3 flf. Scnatuscon- 

to be permanent. sulta, like popular statutes, applied only 

4 e.g. the # oratio divi Severi on the to Roman citizens; Wlass&k, Korn. 
property of wards, l. 1 D. de reb. eor. Proctssgtselu, voL ii. p. x 73 flf. 



1 12 


THE INSTITUTES 


10 . L. i § i D. dc const, princ. (i, 4) (Ulpian.): Quodcumque 
igitur imperator per epistulam et suhscriptionem statuit vel 
cognoscens decrevit vel de piano interlocutus est vel edicto 
praecepit, legem esse constat. Haec sunt quas vulgo consti- 
tutiones appellamus. 

During what has been termed the * republican ’ Empire, it was 
principally by means of decrees and rescripts that the emperors 
influenced the development of Roman law. These decrees and 
rescripts represent the form in which the emperor declared the law 
in reference to particular cases coming before him. The praetor’s 
free power to make new law had come to an end with the final 
consolidation of the Edict by Hadrian (§ 17). His place in this 
respect was taken by the emperor. At the period of which we are 
speaking the emperor was not yet legally invested with legislative 
authority. In order therefore to carry on the development of the 
law r , he availed himself, in the main, like the praetor before him, 
of his 4 jurisdiction that is, his judicial power, his unrestricted right 
to declare the law' after the fashion of a magistrate. 

There was, how'ever, an important difference in the methods 
respectively adopted by the emperor and the praetor in administering 
justice. And this difference showed itself in the novel character of 
the results achieved by the emperors. 

In all legal matters that came under his cognizance the emperor pro 
c ceded extra ordinem y that is, instead of following the ordinary judicial 
procedure— involving a reference of the decision to a sworn judge and 
the consequent use of a ‘formula’— he employed the administrative 
procedure (infra, § 57). He either decided the case himself by his 
sovereign magisterial decree (decretum), or else he appointed 
a delegate to dispose of it in his stead and often in accordance with 
precise instructions set out in an imperial rescript. In the procedure 
extra ordinem — also called the procedure ‘per cognitionem the 
judge always exercised a free discretion. And it was precisely this 
element in the jurisdiction of the emperor that enabled him to 
develop the law by means of his decrees and rescripts. These 
decrees and rescripts were intended, by their very nature, serve as 
modes of declaring and applying and even interpreting the existing 



ROMAN LAW AS THE LAW OF THE WORLD 113 


law (supra, p. no). But the imperial interpretation was unfettered; § 19 . 
it was freer, if possible, even than the interpretation of the ancient 
jurists, which was bound at any rate by the letter of the law 
(supra, p. 57). It was an interpretation which really involved an 
indefinite power of creating new law. 

We can now understand how it came about that the emperors 
were able, by means of their jurisdictio, to call into being a number 
of institutions entirely unknown to the previous law. % The most 
important of these was the * fideicommissum.’ Down to Augustus 
the only kind of bequest recognized by Roman law was one made 
in accordance with the strict and formal requirements of a legatum 
(§ US, I)* The Emperor Augustus was the first to introduce into 
the administration of justice the principle that, where a testator 
requested a person who was benefited under his will to make over 
the benefit he received to a third party — this is the meaning of 
fideicommissum — the request should be legally enforceable, even 
though it had been made without any form whatever. Augustus 
entrusted the consuls with the exercise of the new jurisdiction ; 
after Titus, a special praetor fideicommissarius was appointed to 
adjudicate on such matters extra ordinem as the emperors delegate, 
and in the provinces the like function was imposed on the 
governors 7 . In this way the fideicommissum, or informal bequest, 
came into use as a legal institution, and such was its subsequent 
development that it gradually revolutionized the whole Roman law 
of bequests, and even — when 1 universal ’ fideicommissa were intro- 
duced— the whole Roman law of succession of the older type (§ 1 1 7). 
besides the legal recognition of fideicommissa, we may mention as 
another example of what was effected by the extraordinary jurisdiction 
of the emperors, the fact that honoraria were now for the first time 
made legally recoverable. According to the Roman civil law pay- 
ment for services could only be enforced by action, if the sendees 
were of the meaner kind, ‘operae illiberales.’ It was only under the 
imperial procedure extra ordinem that legal protection was extended 
to honoraria for ‘ liberal 9 services. The Roman civil law treated 

r Cp. Wlassak, Kritisihc StuMen, p. 164 ff. ; infra, § 115 II. 

SOIIM: LBDL1E I 



ii 4 


THE INSTITUTES 


§ 19 . earnings derived from labour somewhat slightingly. The legal recog- 
nition of contracts of service, in the modern sense, was due to the 
jurisdictio of the emperors. In modern systems 8 a payment due 
under a contract of service is, as a rule, equally recoverable, whether 
the services rendered be * liberal ' or otherwise, and the distinction 
between slave labour and labour worthy of a free man is unknown, 
all honest labour being deemed worthy of a free man. 

L. i pr. § i D. de variis et extraord. cognit. (50, 13) (Ulpian.). 
Praeses provinciae de mercedibus jus dicerc solet, sed prae 
ceptoribus tantum studiorum liberalium. — Medicorum quoque 
eadem causa est quae professorum — et ideo his quoque extra 

ordinem jus dici debet. 

Cp. 1 . 7 D. mandati (17, r). L. 1 C. mandati (4, 35). 

The new body of law which thus grew up under the hands ol 
the emperors may be called imperial jus extraordinarium. It was 
new law, for though nominally interpreting the existing law, the 
emperors were in fact transforming it. The new law could not be 
made to fit precisely into either of the established legal categories 
of jus civile and jus honorarium. On the one hand, the source from 
which it sprang was not one recognized by the civil law as a source 
of law, and on the other hand, as opposed to the jus honorarium, 
it was not confined, either in point of time to a particular term 
of office fixed in advance, or in point of space to a particular sphere 
of jurisdiction. The jus extraordinarium was in fact a new thing, 
a third species of law which really broke through the bounds of tin 
older legal classification. It was, however, most closely akin to the 
old jus honorarium. Like the praetorian law which it displaced 
the imperial law was the outcome of that free power to declare the 
law which belonged to a Roman magistrate ; it was a new type <>t 
jus honorarium, a type adapted to the monarchical tendencies o? 
the age 9 . 

The imperial law r did not exhibit the same constructive energy 

1 See §611 ff. of the German Civil observations on this topic in 
Code. /'roiasstfetelst, vol. i. Qi 8SS) pp. - |4 n 

• Cp. Wlamk, Kritiuhe Studun , 120, note, 

pp. *1 ff., 153 ff., ami the same author’s 



ROMAN LAW AS THE LAW OF THE WORLD 115 


the old praetorian law. The principal work of reforfti had already § 19 . 
been accomplished by the praetor. Though the emperors were 
formally unrestricted in the exercise of their jurisdiction, they fol- 
lowed in the great majority of cases the old traditional paths. This 
is shown most clearly by the fact that only a comparatively small 
number of legal institutions owe their origin to the imperial jus 
extraordinarium. 

Nevertheless the effect of the imperial procedure per cognitionem 
on the law as a whole was considerable. The province of the imperial 
jurisdiction was steadily enlarged during the empire. It came to 
embrace not only the jurisdiction exercised by the emperor himself, 
but also the jurisdiction of his delegates, e. g. the praetor fidei- 
commissarius (p. 113). The imperial delegates, like the emperor 
himself, acted extra ordinem, that is, they decided cases in person 
without a sworn judge or a formula. Now the officials of the empire 
were tending more and more to become delegates of the emperor, 
and were thus tending at the same time to pass from republican 
magistrates into officials of the imperial monarchy. By the time of 
Diocletian the Roman state was definitely established on a bureau- 
cratic basis with a hierarchy of officials. The entire administration 
of the law was henceforth conducted extra ordinem in the name of 
the emperor (cp. § 57). 

The effect of the jurisdictio extra ordinem was to obliterate the 
old antithesis of jus civile and jus honorarium. All law was alike # 
administered in accordance with the will of the emperor, irrespective 
of the source from which it was derived. And there was, above all 
things, the important fact that the * formula ’ had been dropped, that 
is, the magistrate had ceased to issue written instructions to a sworn 
judge who was to decide the case by his judgment (infra, § 49). 
Hitherto the practical importance of the opposition between jus civile 
and jus honorarium had consisted more particularly in the fact that 
the judex (i. e. the sworn judge who was to adjudicate on the case) 
was bound to take account of the jus honorarium, not by virtue of his 
office— for the jus honorarium was not law in the true legal sense— 
but only by virtue of the express instructions of the magistrate as set 
forth in the ‘ formula. 1 If the formula did not contain an exceptio, 

I 2 



ii6 


THE INSTITUTES 


§ 19 , i. e. a plea of defence recognized by the praetorian law, the judex 
was precluded from taking account of the facts on which such a plea 
might have rested (infra, § 53, II). All this was changed now. In 
the procedure per cogjiitionem there was no formula. The emperor 
and his officials administered the praetorian law in precisely the same 
way as the jus civile, giving precedence to the jus honorarium. The 
jus honorarium came to be identified broadly with the new law which 
overrode the old jus civile. The dual system of the earlier law had 
already been worked into a new and uniform body of law by the 
labours of the Roman jurists. Within the sphefe of the imperial 
procedure per cognitionem the old formal antithesis had completely 
disappeared. It is true, the idea of a distinction between a law 
operating jure— the jus civile— and a law operating merely ‘tuitione 
praetoris ’ — the jus honorarium — was still maintained and is even to 
be found in the Corpus juris. But as far as the imperial jurisdic- 
tion was concerned, the distinction had in the main but a purely 
theoretical value. It was by the aid of the formula that the jus 
honorarium had first grown strong (supra, p. 81) ; when the formula 
disappeared, the special character of the jus honorarium, and indeed 
the special character of the whole dual system of Roman law, 
disappeared with it. 

The antithesis between jus civile and jus honorarium was the last 
legacy of the republican constitution. The time for finally removing 
it in the monarchical empire was now at hand. 


$ 20 . The Monarchical Empire and the Imperial 
Legislation . 

j 20. The second stage of the Empire commences with the reign of 
Diocletian about 300 a. d. 

Hadrian had put a final stop to the growth of the praetorian edict, 
and after the close of the third century Roman scientific jurispru- 
dence ceased to be an independent force in the development of 
Roman law. From the same time onward the imperial power, which 
had now definitely assumed a monarchical form, commenced to 
exercise an exclusive control over the further evolution of the law. 



ROMAN LAW AS THE LAW OF THE WORLD 117 


Since Diocletian the entire administration of justice was dominated § 20 . 
by the authority of the emperor. The imperial rescripts conse- 
quently increased enormously in number. We possess, for example, 
a thousand rescripts of Diocletian’s alone. The interpretation of the 
scientific jurists was superseded by the authoritative imperial inter- 
pretation claiming sole and exclusive validity. In addition to the 
rescript, we have, as before, the 1 decretum ’ or judicial decision of 
the emperor, but, above all, the imperial statute, representing the 
new form in which the development of the law is carried on. 

The imperial statute originated in the motion which the emperor 
introduced to the senate (oratio, supra, p. in), but the form of com- 
municating it to the senate has now been discarded. Imperial 
legislation supersedes senatorial legislation. An imperial statute 
is, so to speak, an ‘oratio’ directly promulgated to the nation at 
large. Hence it is described as an ‘edictum’ or ‘lex generalis.’ 
When the emperor had acquired the power to legislate, it became 
necessary to distinguish his merely interpretative or judicial from his 
legislative functions. Whereas in the earlier epoch every rescript 
and decree had possessed the force of general law, unless its validity 
were expressly limited to the particular case (‘ constitutio personalis '), 
the position was now reversed, and every rescript and decree, as 
such, was treated as a ‘constitutio personalis,* i. e. as vafid only for 
the particular case, unless the general validity of the principle 
applied were expressly ordained. It was only when the emperor 
chose to act as lawgiver that a law binding on the whole empire, 
a ‘constitutio generalis,’ came into existence, and such a constitutio 
generalises (on principle at least) the distinctive form of a statute 
as such. In ordinary cases, then, a law now takes the form of an 
edict, i. c. a law officially promulgated ; in extraordinary cases, it 
takes the form of a rescript or decree (expressly issued with the 
force of law), i. e. a law not officially promulgated. There are 
still laws which are not officially promulgated, and which only 
become known to the people at large through the medium of 
literature, because the emperor, in legislating, still continues, to 
some extent, to avail himself of the forms of an earlier period 
when, formally, he possessed no legislative j>owers. Nevertheless. 



ii8 


THE INSTITUTES 


§ 20. the principle of the distinction between a law, as something which 
requires to be promulgated, and a mere detached decision, as some 
thing which needs no promulgating, is already well established ; and 
the decision which is not officially promulgated (the rescript or 
decree) has only the force of law in exceptional cases. The 
modern type of monarchical legislation is thus gradually attaining 
to a consciousness of its own nature and conditions. 

L. i C. de leg. (i, 14) (Constantin.): Inter aequitatem jusque 
interpositam interprctationem nobis solis et oportet et licet 
inspicere. 

L. 12 § 3 cod. (Justinian.): In praesenti leges condere soli 
imperatori concessum est, et leges interpretari solum dignum 
imperio esse oportet. 

L. 11 C. Th. de rescr. (2, 2) (Arcamus et Honorius): Re* 
scripta ad consultationem emissa vel emittenda in futurum 
iis tantum negotiis opitulentur quibus efiusa dicebantur. 

L. 3 § 1 C. de leg. (1, 14) (Tiikodos. et Vai.kntinian.) : Sed et 
si generalis lex vocata est (viz. the decision of a single case) 
vel ad omncs jussa est pertinere, vim obtineat edicti, inter 
locutionibus quas in uno negotio judicantes protulimus vel 
postea proferennis non in commune praejudicantibus, ne( 
his quae specialiter quibusdam roncessa sunt civitatihib 
vel provinciis vel corporihus ad generalitatis observantiam 
pcrtinentibus \ 

Imperial legislation which henceforth took the lead in all furtlui 
progress had a twofold task to fulfil : first, to complete the develop 
ment of Roman law ; secondly, to gather in the results. 

The completion of the development of Roman law involved, on 
the one hand, a final process of filing down the jus civile by the 
jus gentium, and, on the other, the final removal of the antithesi.** 
between jus civile and jus honorarium. Roth these tasks were 

On the same point cp. 1 . I C. cod.; generalis* contained in a rescript or <h ■ 
i u'.iita, (, ursus tier ln*titutionni y § 131. cree, should l>c picsumed to nave the 
jLstinian, again, enacted that an iin- force of gcneril law, 1. 12 « 1c le s f 

i^ri.tl decree pronounced at a solemn (1, 14). The piinciplc, however, that 
^ fl ie col,r t» ia the presence decrees and rescrij>ts, ns hucIi, n«> longer 
o the parties (a form which was uh- possessed the forte of general law re* 
v*rv»*d in certain appeal cases., as well rnained untouched. 

<*5 the authentic interpretation of a ‘ lex 



ROMAN LAW AS THE LAW OF THE WORLD 119 

solved, not by the short and sharp method of codification, but by § 20. 
a series of separate statutes. For the same cautious conservative 
tendency, chary of innovations, which characterizes the history of 
Roman law in general, is no less characteristic of the methods of* 
imperial legislation. From Diocletian and Constantine to Justinian, 
i, e. during an interval of over two centuries, the ancient traditional 
law, the ‘jus vetus,’ was subjected to a continuous process of 
polishing and filing at the hands of successive emperors, till perfect 
unity and harmony had been established. And the majority of final 
reforms which effected alterations of a more far-reaching character 
in the private law, were only accomplished by Justinian, the last 
Roman emperor whose own proficiency in the law enabled him, 
in some measure, to dispense with the aid of his legal advisers 
and work independently at the improvement of Roman law. Some 
of his reforms, e. g. in the law of inheritance, were not even carried 
out till after the completion of the Corpus juris, by means of his 
Novels. Down to the Corpus juris the Twelve Tables continued 
in theory to constitute the basis of the entire body of Roman law. 
Down to the Corpus juris, again, the antithesis between jus civile and 
jus honorarium continued in theory to be maintained. Justinian’s 
Corpus juris summed up the results of that uninterrupted development 
which had commenced centuries ago with the Twelve Tables, and 
the Twelve Tables themselves, with all that followed them, were now 
superseded by the great imperial code of Justinian. Theoretically 
speaking, this code signalized the final victory of the jus civile, for 
the law begotten by imperial legislation was civil law; in point 
of fact,, however, it was the jus gentium, allied with the jus hono- 
rarium, that had triumphed all along the line. 

Caracalla had conferred the Roman franchise on all citizens of 
the empire (infra, p. 1S1). The idea still prevailed that Roman law 
only applied to citizens of the Roman city-state. In order to extend 
Roman law to the empire the citizens of the empire had to be 
converted into citizens of Rome, but the new Roman citizens were 
citizens of the orbis terrarum. There was thus but one nationality 
in the Roman empire, to wit the Roman— and the Roman nation 
was coextensive with that portion of mankind upon which the 



120 


THE INSTITUTES 


§ 20. civilization of Western antiquity rested. From* the fourth century 
onwards, moreover, the tendency to shift the centre of gravity to the 
Eastern, in other words, to the Greek portion of the empire, became 
more and more pronounced. The provinces were now the seat of 
the empire’s strength. Formal expression was thus given to what 
had already been an accomplished fact : the victory of cosmopolitan 
Hellenism over the spirit of ancient Rome. It was no longer the 
traditions of Rome and Italy, but the views and requirements of 
Greek provincialism that surrounded and influenced the emperor 
of Constantinople. The provinces had ousted the old premier 
country, Greece had triumphed over Rome. And so it came to 
pass that the jus gentium finally displaced the old jus civile. 
Centuries ago the intercourse with the Greeks had engrafted the 
jus gentium on the local law of Rome. Now that the native soil 
of the jus gentium itself had become the scene of legal develop 
ment, the jus gentium could not fail to put forth all its strength. 
Thus the jus aequum, having attained to full maturity, received the 
final form in which it dominated with essential uniformity the whole 
field of private law. Roman law was finished : the local law of 
a city had passed into a law available for the world in general. 

One thing only remained to be done, and that was to gather 
in the ripe fruits and store them up for future generations. This 
task also devolved on the emperors, and was successfully performed 
by them. 


§ 21 . Codification . 

§ 21. I. The Stages preliminary to Codification. 

In the later Empire (which dates from the fourth century) there 
were two groups of sources of law: first, the ‘jus vetus,’ or ‘jus 
simply, i. e. the old traditional law, the development of which was 
completed in the classical period of Roman jurisprudence (in the 
course of the second and the beginning of the third century): 
secondly, the ‘leges’ or ‘jus novum,’ i. c. the later l$w which 
had sprung from imperial legislation. These two classes of law, 
‘jus’ and ‘leges,’ mutually supplementing each other, constituted 
the whole body of law as it existed at the time, and, taken together. 



ROMAN LAW AS THE LAW OF THE WORLD 121 


represented the result of the entire development of Roman law from § 
the earliest times down to the period we have now reached, viz. the 
epoch of the later Empire. 

The ‘jus* was based, indeed, on the Twelve Tables, the plebiscita, 
the senatusconsulta, the praetorian edict and the ordinances of the 
earlier emperors. In reality, however, neither the tribunals nor 
the parties were in the habit of using these sources of law in their 
original form, but preferred to resort to the classical juristic literature 
where they found the contents of these sources set forth and worked 
out. It was not the praetor or the plebiscitum that was now quoted, 
hut Papinian, Ulpian, Paulus, and the other jurists. And, at the 
same time, no distinction was made as to whether the particular 
opinion had happened to be conveyed by Paulus or Papinian in the 
shape of a ‘responsum’ or not. The authority which the responsa, 
and the literature connected therewith (p. 97), had acquired since 
the opening of the second century was now actually transferred to 
juristic literature in general. To this must be added the fact that the 
practice of conferring the jus respondendi on individual jurists was 
discontinued in the course of the third century ; after Diocletian the 
emperor was the only person entitled to give authoritative responsa, 
which he did by means of his rescripts (p. 105). Thus it happened 
that later ages failed to appreciate the distinction between jurists 
who had, and jurists who had not, the jus respondendi. The 
writings of jurists who had not possessed the jus respondendi were 
cited as entitled to an authority in no way inferior to that of the 
writings of privileged jurists, provided only they were supported by 
the same -literary prestige which distinguished the writings of the 
illustrious privileged jurists. Thus, for example, in the fourth 
century, Gajus, who flourished as a professor of law under Antoninus 
Pius and Marcus Aurelius, and whose writings delighted all subse- 
quent ages by a fluency and lucidity worthy of a Greek, enjoyed, in 
tkc courts of law, an authority equal to that, say, of Paulus or 
Papinian, in spite of the fact that he had never possessed the jus 
respondendi. Considering that, in the case of the privileged jurists, 
their other writings which, of course, had nothing to do with their 
jus respondendi, were ranked on a par with the writings on the 


21 . 



122 


THE INSTITUTES 


§ 21. responsa, it was altogether absurd to insist on the jus respondendi 
as a condition of judicial authority. The practice of not discrimi- 
nating between the different kinds of writings necessarily led to the 
practice of not discriminating between the authors themselves— 
which is only another way of saying that the transfer of the authority 
of the responsa to juristic literature in general had become an 
accomplished fact. 

A keenly felt want was satisfied by this development. The old 
sources of law, and more especially the popular statutes and the 
praetorian edict, had ceased, by this time, to be generally intelligible, 
partly on account of their language, partly on account of the bald, 
sententious, pregnant phraseology in which they were couched. 
Since people were no longer able to make use of the old sources 
of law themselves, they were driven, in lieu thereof, to resort, on 
a more extensive scale, to the juristic literature which had sprung 
from these sources. In other words, ‘jus,’ i.e. the law of the earlier 
stages of development, ceased to be practically available in any other 
form but that in which it appeared in the writings of the jurists ; the 
jus (vetus) became identified with jurist-made law. 

All the emperors had to do here was, partly to modify, partly to 
supplement and confirm the law as they found it. For this purpose 
a number of ‘laws of citations’ were enacted, among which Yalen 
tinian the Third’s Law of Citations (426 a. i>.) was the most important. 
Valentinian merely sanctioned what had already become an estah 
lished usage. He ordered that the writings of the jurists, to wit, 
of Papinian, Paulus, Ulpian, Gajus and Modestinus, as well as of all 
those who were cited by these writers (the limits of classic literature 
being thus officially determined), should possess quasi-statutory force 
so that their opinions should be binding on the judge 1 . If the 


1 The Law of Citations is based on 
the presupposition that the writings of 
the above-named five great jurists, Papi- 
nian. &c., are widely circulated and 
generally known. The same does not 
apply to the writings of the other jurists 
(Sca'.vula, Sahinus, &c.; who are mostly 
older. Hence it is provided that the 
writings of these other jurists shall only 
be u=cd, if they— in the words of the 


enactment — ' codicum collationc fir- 
tnentur.’ The meaning of these last 
words is doubtful. The usual transl.v 
tion, according to which they would 
mean that the contents of those writings 
were to l>e confirmed * by a comparison 
of manuscripts,’ seems as little accurate 
as it would Ijc to translate 'codex 
Thcodoftianus * by the 1 Theodosian 
manuscript.’ 'Codex’ docs not mean 



ROMAN LAW AS THE LAW OF THE WORLD 123 


opinions differed on the same question, that opinion should prevail § 21. 
which was supported by most jurists; if the numbers were equal, 
Papinian's opinion should prevail, or, if Papinian had expressed no 
opinion on the question; the judge was to exercise his discretion. 

Not a word is said about citing the old sources of law themselves ; 
their force as law has passed on to juristic literature. Valentinian 
the Third's Law of Citations marks the completion, for the time 
being, of that development which had commenced with*the responsa 
of the old pontifices and the jus respondendi of Augustus. Never 
did a literary movement achieve a more unqualified success. 

L. 3 C. Th. de resp. prud. (1, 4) (Theodos. et Valentinian.) : 
Papiniani, Paulli, Gaji, Ulpiani atque Modestini scripta 
universa firmamus ita ut Gajum quae Paullum, Ulpianum 
et cunctos comitetur auctoritas, lectionesque ex omni ejus 


a manuscript, as such, in our modern 
sense of the term, hut a parchment 
volume, a ‘ corpus’ (cp. Mommsen, /.S'. 
d. Sav. .S’/., vol. x. p. 346;, a book, 
more especially a hook containing a 
variety of things, c.g. the ‘codices ac- 
cepti et expensi ’ (infra, § Si), or the 
* codices ’ (i. e. the hooks' of the 
malhematici in 1 . io C. tie episc. aud. 
(1, 4). In the same way we hear of a 
‘ codex Gregorianus atque llermoge- 
ninnus,’ i.c. a collection by Gregorianus 
ant! Ilcrmogenianus (cp. the gesta de 
recip. cod. Thcod. : ad similitudinem 
Gregoriani atque Hcrmogcniani coditis 
cunctas coliigi constitutiunes decemi- 
mus) ; and again of the 1 codex Thcodo- 
sianus’ and the two codices of Justinian 
(to wit, the ‘codex juris enuclcati,’ i. e. 
the collection of the jurist-made law in 
the Digest, and the 1 codex constitu- 
tionum,’ cp. const. Deo auctore, § u). 
The words in question would accord* 
ingly mean that the writings of the 
jurists other than the specified five must 
be confirmed hy a collation of the ‘col- 
lections,’ i.e. only such passages may lie 
used ns have been admitted to the 1 col- 
lections.’ The only possible interpre- 
tation would seem to be that it was 
intended to make collections (codices) 
of the passages taken front the writings 
of other jurists, which were to be used 
in addition to the works of Papinian, 


&c.~a plan which might be compared 
with that indicated in c. 5 C. Th. de 
const, princ. (1, 1; and actually carried 
out in Justinian’s Digest, except that, in 
the latter, the validity of all juristic 
writings was confined to such excerpts 
as had been admitted (cp. inlra, note 2 . 
Thus the words would mean that quasi- 
statutory force should attach to all the 
writings of Papinian, Ulpian, Paulus, 
Gajus, and Modcstinus, but only to cer- 
tain excerpts from the writings of the 
remaining jurists cited by Papinian, See. 
but since no such collections of ex- 
cerpts from the works of the remaining 
jurists were ever made, the practical 
result was that which found expression 
in the interpretation of Valent inian’s 
Law of Citations contained in the code 
of the Visigoths, viz, that of the writ- 
ings of the other jurists only those 
passages were valid which had been 
adopted in the works of the above- 
named five juries. As to the different 
explanations of the I aw of Citations, 
cp. l’uchta, Cutsus Jcr Institutionen , 
§ 134 ; Danz, Lehrbuth dtr G. < ies rom. 
R. (Jnd ed.), § 78; Demburg, Die In- 
stitutionen a'es Gajus, p. lioff. ; Kar- 
lowa, Rom. RG., vol.i. pp. 933, 934. The 
view here set forth has l>ecn controverted 
by Kemni, Sloria a'clk fonti di dirUto 
Romano { Milano, 188 % 0,p. 1 1 iff.; and A. 
Pemicc, IS. der Sav . St. % vol. vii. p. 155. 



124 


THE INSTITUTES 


21 . opere recitentur. Eorum quoque scientiam quorum tractatus 

atque sententias praedicti omnes suis operibus miscuerunt 
ratam esse censemus, ut Scaevolae, Sabini, Juliani atque 
Marcelli, omniumque quos illi celebrarunt, si tamen eorum 
libri propter antiquitatis incertum codicum collatione 
firmentur. Ubi autem diversae sententiae proferuntur, 
potior numerus vincat auctorum, vel si numerus acqualis sit, 
ejus partis praecedat auctoritas in qua exccllcntis ingenii vir 
Papinianus emineat, qui ut singulos vincit, ita cedit duobus. 
Notai etiam Paulli atque Ulpiani in Papiniani corpus factas 
(sicut dudum statutum est) praecipimus infirmari*. Ubi 
autem pares eorum sententiae recitantur, quorum par censetur 
auctoritas, quod sequi debeat, eligat moderatio judicantis. 
Paulli quoque sententias semper valere praecipimus, c\:c. 

The jus (vetus) was traditionally taken to include those collection* 
of early imperial ordinances, more especially of rescripts, among 
which the Codex Gregorianus — published about 300 a.d. — and the 
Codex Hermogenianus — a later collection supplementing the former, 
and published in the course of the fourth century— were pre-eminent. 
Both these codices were perhaps due to suggestions from official 
quarters 2 3 . Their practical value lay in the fact that they contained 


2 In the year 321 a.d. the Kmperor 
Constantine, with a view to cutting short 

‘perpetuas prudentium contentioncs,' 
had interdicted the use of Ulpian’s and 
Tanks’ critical notes on Papinian’s 
works (fragments of which have been 
recently discovered, cp. /.S', d. Sav. St., 
vol. ii. p. 86 flf. ; vol. v. pp. 1 75 ft'., 1 8; flf. ) ; 
he had, however, ratified the use of 
Paulus' other writings, especially the 
‘ Sententiae,’ which are also expressly 
mentioned at the end of Valcntinian’s 
Law of Citations cp. text, above), 1 . 1. 
2 C. Th. de resp. prud. (1, 4). It is 
clear that as early as the beginning of 
the fourth century, all the writings of 
the famous jurists, and not merely their 
respMisa, were used in the tribunals, and 
that »bc parties were in the habit of 
bringing into court and submitting to 
the judge the particular juristic work 
upon which they relied f 1. 2 cit. : in judi- 
ciis prolatoi). Accordingly the need for a 
systematic arrangement of excerpts from 


the writings of the jurists (cp. note 1 
became all the more urgent. Such ai: 
arrangement would make it much easier 
to show the judge all the passages 
bearing on the arguments. A private 
compilation of this kind, dating prob 
ably from the end of the fourth ccnlur\. 
has l)cen preserved to us— partially a: 
least- in the so-called Fragment;! Yati- 
cana a collection of excerj>ts from the 
jurists ; Papinian, Ulpian, Paulus\ tc- 
gether with some imperial constitution*, 
arranged according to their subject- 
matter. (Cp. Karlowa, AW/. A’(/\, vol. 
i. p. 969 ff.) 

3 A private collection of rescripts, <>j 
an earlier date, existed in the 1 libri xx 
constitutionum ’ of Papirius Justus, which 
were compiler! in the second half of the 
second century. They were also con- 
sidered as belonging to the ‘jus,’ ami 
were, for this reason, extracted by Justi- 
nian in his Digest (c. g. 1 . 60 I>. de 
pactis 2, 14). 



ROMAN LAW AS THE LAW OF THE WORLD 125 


such rescripts (including the numerous rescripts of Diocletian) as § 21. 
the classical jurists had not yet been able to take into account. 

The real type of the new imperial law (leges) was the ‘ edictum/ in 
the later sense of the term, the ‘ constitutio generalis ’ promulgated 
to the public. All that these constitutions of the new kind as well 
as the rescripts of the post-classical period required was that they 
should be collected, and this want was supplied by the Codex 
Theodosianus, published by the Emperor Theodosius II in 438 a.d., 
and promulgated in the very same year with statutory force for the 
Western Empire by Valentinian III. It contained the constitu- 
tiones generalcs issued since Constantine and at the same time 
abrogated all such constitutions of the same period as had not 
been adopted. 

Between the Codex Theodosianus and Justinian a series of 
separate imperial laws were issued, which were known as 1 Novels/ 
and were collected under that name (the so-called ‘ Post-Theodosian 
Novels ’). 

The following sources of law were thus in use at Justinian's time : 

1. the writings of the jurists, as determined by Yalentinians Law of 
Citations ; 2. the earlier imperial ordinances (Codex Gregorianus and 
Codex Hcrmogenianus) ; 3. the Codex Theodosianus and its Novels. 

These are the materials out of which our Corpus juris was 
constructed \ 

II. The Corpus juris of Justinian. 

The Emperor Justinian, who reigned from 527-565 a.d., conceived 
the plan of consolidating the entire existing law in a single code. 

For this purpose he caused two collections to be prepared, one of 
the ‘jus/ or jurist-made law, the other of the ‘leges,’ or emperor- 
made law. A short text-book (the * Institutiones,’ or ‘Institutes’) 


4 The so-called ‘Syrio- Roman Book 
nf I.aw,’ which was originally written in 
tjrcek, ami which has sum veil to t his, 
lay in a Syrian ^as well as an Armenian 
in<l Arabic) translation, dates from the 
period between the Codex Theodosianus 
ind the code of Justinian. (It has been 
edited with a translation and notes by 
Bruns and Sachau, 1880.) It was very 


extensively used in the List, where it 
was not supeiscded even by Justinian’s 
Corpus juris, thus testifying to the tena- 
city with which the national Hellenic 
law held its own notwithstanding the 
fact that x ever since Caracalla) Roman 
law had formally applied to all citizens 
of the empire alike, 



126 


THE INSTITUTES 


ai. was prefixed to the whole by way of introduction to the code and 
the study of law. Thus the code was divided into three parts : the 
Institutes, the Digest (or Pandects), and the Code (Codex). 

1. The Institutes. 

The Institutes (in four books) are a short text-book of Justinianian 
law, its contents being partly of an historical, partly of a theoretical 
character. It was composed by the imperial minister Tribonian, 
and, under his supervision, by the two professors Theophilus and 
Dorotheus \ It was founded on earlier institutional treatises, e. g 
those of Ulpian and Marcianus, but more especially on the Institutes 
and Res quotidianae of Gajus. Justinian published the Institutes 
as part of his code, with the same statutory force as the remaining 
portions. 

Const. Imperatoriam (prooem. Inst.) of Nov. 21, 533 a.d., the 
document officially promulgating the Institutes. 

Const. Tanta ( 1 . 2 C. de veteri jure enucl. 1, 17) of Dec. 16. 
533 a. D., refers (in §§ n, 23) to the Institutes, and provides that 
both the Institutes and the Digest shall have statutory force froir. 
Dec. 30 of the same year. 

2. The Digest (or Pandects). 

The Digest (in fifty books) is a collection of excerpts from the 
writings of the jurists, in other words, a codification of the ‘jus’ or 
jurist-made law, prepared, by Justinian’s orders, by a commission ui 
professors and advocates under the supervision of Tribonian. Ii. 
their arrangement of the subject-matter the compilers were, generally 
speaking, guided by the order of the praetorian edict. The con: 
mission was divided into three sections, each of which was instructed 
to extract a particular group of writings. To the first section wa* 
assigned the group of works dealing with the jus civile, ‘the Sabinian 
group/ so called, because the staple of these works consisted of the 
writings of Sabinus and his commentators. To the second section was 

4 It is probable that Dorotheus wrote simpler. (*p. Iluschke, Preface t«» In* 
the f.rst two hooks, and the last title of edition of the Institute r, 1S6X ; I ; .<1 
the foi»rth, Theophilus the last two (iru|*\ Zur Ira^e na<h den I 'erfiS'i ' 1 
b'Kiks except the last title. In point of tier Institutional Ju tinians Strasslnu^. 
diction, Dorotheus’ manner i«* rather i8S<;). 
more JF’yzantine, that of Theophilus is 



ROMAN LAW AS THE LAW OF THE WORLD 127 


assigned the group of works dealing with the praetorian edict, the § 21. 
[o-called ‘ Edict-group.’ To the third section was assigned the group 
pf works dealing with separate legal questions and cases, the 
\ Papinianian group/ so called, because in this branch the writings of 
jpapinian and his commentators transcended all others in importance. 

JSach section extracted the works allotted to it so far as they bore on 
the several legal subjects. Thereupon the whole was consolidated into 
line work, the excerpts of the three groups being pieced together under 
each rubric, while some further excerpts from writings which had, 
in the first instance, been overlooked or rejected were subsequently 
inserted (the so-called ‘Appendix-group’) 6 . Inasmuch as the object 
of the whole undertaking was not to promote historical research, but 
to produce a practical code of law, the commission was empowered 
to make alterations in the excerpts they adopted. This is the 
explanation of the so-called ‘interpolations’ (‘emblemata Triboniani’) 
by means of which the selections from the classical jurists were brought 
into harmony with the law of Justinian’s time 7 . The controversies 
among the juristic writers were set aside, one view only being accepted 
— such at least was the intention— in the Digest. All individual 
features were swept away in favour of a uniform, self-consistent 
whole 8 . It was but reasonable that Justinian and his advisers 
should look with pride on their achievement. Their work was, in 
the main, a success. The results of the development of Roman law 
extending over more than a thousand years had been summed up. 


• Bluhme, ZS. fur gesch ichtliche Pill, 
vol. iv. (1820) p. 257 ff. — All those 

t rists were drawn upon to whose writ- 
gs Valeotinian’s Law of Citations had 
given the force of law, i. e. the writings 
the five great jurists and the writings 
tif the authorities whom they cite. Fau- 
W and Ulpian’s notes on Papin inn 
(supra, note 2) were restored to validity. 
The Digest commission was expressly 
exempted from the operation of the 
roles of the Law of Citations which de- 
clared that, where the jurists differed, a 
majority of voices should decide, c. 1 § 4. 
6 C. de veteri jure enucl. (1, 17). The 
Wrings of Panlus and more especially 

S Jlpian constituted the main body of 
Digest (supra, p. 104).— As toLenel’s 


attempt to reconstruct the juristic writ- 
ings from which excerpts were drawn, 
cp. supra, p. J09. 

7 Cp. Eisele, Zur Diagnostik der 1 ti- 
ter polationen {ZS. d. Saw St., vol. vii. 
pp. io, n. 13, 1 8) ; C.radenwitz, Infer- 
polationen in den Pandekten ibid . p. 
45 ff. N ; Schirmer, Die angebliehen Inter - 
polationen bei Scaevola Jbid. vol. viii. 
p. 155 ff.) ; Ciradenwitz, Inter polationen 
in den Pandektcn , 1887. 

By means of fifty imperial ordin- 
ances, the so-called ‘ quinquaginta dcci- 
siones,’ the commission was supplied 
with the groundwork for settling the 
controversies in the writings of the 
jurists. 



128 


THE INSTITUTES 


§ SI. Instead of a wilderness of juristic writings there was a uniform work, 
easy of survey and methodical in execution. It was forbidden to 
make any further use of the writings of the ‘jurists in their original 
form, and the imperial selection— an epitome and, at the same time, 
a revival of Roman jurisprudence— was published with statutory force. 
Never had a code been prepared from nobler materials ®. 

Const. Deo auctore (at the head of the Corpus juris and in 1 . i C. 
de vet. jure enucl. i, 17) of Dec. 15, 530 a.d., instructing Tribonian 
to undertake the ^composition of the Digest. 

Const. TANTA=const.£efia >ntv (at the head of the Corpus juris and 
in 1. ^C. eod.) of*f)ec. 16, 533 a.d., the document promulgating the 
Digest with statutory force from Dec. 30 of the same year. 

3. The Code (Codex). 

The Code (in twelve books) is a collection of imperial constitutions, 
including both the separate decisions of the old type since Hadrian, 
and the general ordinances of the new type ; in other words, a 
codification of imperial law (leges). As early as 528 a.d., Justinian 
had ordered a new code to be compiled on the basis of the 
Gregorian and Hermogenian codes (which in this instance, then, were 
counted among the * leges ’), the Codex Theodosianus and the later 
♦ ordinances. This Code was finished and published in 529 a.d. The 
subsequent composition of the Digest and Institutes, however, which 
involved a number of material changes in the law 10 , necessitated 
a remodelling of the Code. The Code of 529 was repealed and a 
new Code published in 534. The Code in this its second edition 
(repetitae praelectionis) is the Code of our Corpus juris. The 
imperial constitutions which had been admitted were arranged in 
chronological order under their several titles. Here again, inter- 
polations were, when necessary, resorted to with a view to bringing 

• The division of the Digest into seven dence, marriage, guardianship) ; pars 
parts had no significance except in re- quinta books 28 to 36 (wills, legacies) ; 
gard to the then system of instruction. pars sexta books 37 to 44 (bonorum 
Pars prima ( npwra ) comprises books 1 posscssio, intestate succession, &c.) ; 
to 4 (general doctrines); pars secunda pars septima books 45 to 50 (miscel- 
(de judiciil) books 5 to 1 1 (real *c- laneous topics, including the * libri tcr- 
tions) ; pars te»tia (de rebus scil. ere- ribilcs/ books 47 and 48 on criminal 
ditis) hooks li to 19 (personal actions) ; law). 

pars quarta (umbilicus Pandectarum) ,a Especially through the 50 deci- 
books 20 to 27 (pledges, interest, evi- siones (supra, note 8). 



ROMAN LAW AS THE LAW OF THE WORLD 129 


the contents of the earlier imperial ordinances into accordance with § 21. 
the law prevailing at the time. All earlier constitutions were de- 
prived of validity. Just as the ‘jus’ had no validity except in the 
form of the Digest, so the * leges ’ had no validity except in the form 
of the new Code of Justinian. 

Const. Haec quae necessario (prefixed to the Code) of Feb. 13, 

528 a.d., containing orders for the composition of a new Code 
(the first edition of the Code). 

Const. Summa reipublicae (prefixed to the Code) of April 7, 

529 a.d., the document promulgating the first edition of the 
Code. 

Const Cordi nobis (prefixed to the Code) of Nov. 16, 534 a.d., 
the document promulgating the second edition of the Code 
with statutory force from Dec. 29 of the same year. 

The Corpus juris of Justinian was thus finished. The entire 
positive law had been cast into a final shape. All three parts, 
Institutes, Digest, and Code, though published at different dates, 
were to have equal validity as parts of one and the same code of law. 

With a view to preventing new controversies, the writing of commen- 
taries was forbidden. All doubtful points were to be referred to the 
emperor himself for decision. This explains the necessity for new 
constitutions (novellae constitutiones) which were already issued, in 
fairly large numbers, by Justinian himself (535-565 a. d.). These 
‘Novels' were afterwards collected (supra, p. 22). The collection of 
Novels which was used by the Glossators at Bologna (the Authen- 
ticum) was ‘ received ' in Germany in the sixteenth century as the 
fourth part of the Corpus juris. 

§ 22. The Result . 

When Justinian composed his Corpus juris, Western Europe was § 22. 
in the hands of the German tribes who had founded their kingdoms 
on the ruins of the Western Empire. In these kingdoms, however, 
German law only applied to the conquering Germans, and not to 
the subject Romans, except so far as the constitution of the State 
came into question. Thus, in the German kingdoms of the Goths, 
Burgundians, Franks, &c., the force of Roman private law, criminal 

SOHll; LfiULIB K 



130 THE INSTITUTES 

§ 22. law and law of procedure remained, on principle, unimpaired, as far 
as the Roman-born section of the population was concerned. The 
German kings therefore had some motive for protecting Roman law, 
and thus it came to pass that, even prior to Justinian, precisely the 
same thing was effected for the German kingdoms as Justinian 
accomplished for the East-Roman Empire, viz. a codification of 
Roman law. It is noticeable how the tendency of Roman law, 
ever since the fifth century, pointed more and more markedly in 
the direction of codification, i.e. of a comprehensive summing up 
of the law in a single book which should facilitate the administration 
of justice. No sooner had a strong and efficient government sprung 
into being, whether in the East or the West— and as regards the 
West,, the establishment of the German kingdoms was equivalent to 
a political regeneration — than the codification of Roman law forced 
itself upon it as something necessitated, as it were, by the very nature 
of the circumstances. 

It was thus that about the year 500 a.d. (i.e, about thirty years 
prior to the Corpus juris of Justinian) the so-called * Leges Romanae, 
comprehensive records of Roman law, came into existence in the 
German kingdoms. Opposed to the * Leges Romanae ’ were what 
we call nowadays the 1 Leges Barbarorum/ i.e. the records of 
German tribe-law. The Lex Romana applied to the Roman, the 
record of Geryian law (the Lex Burgundionum, Visigothorum, \c.) 
to the German members of the respective kingdoms. 

Leges Romanae of this kind were compiled in three German 
kingdoms, viz. those of the Ostrogoths, Burgundians and Visigoths. 
The Edictum Theodorici by Theodoric the Great, which probably 
dates from the years 511-515 a.d., is the Lex Romana of the Ostn* 
goths 1 , the Lex Romana Burgundionum (also called ‘Papian’), 
issued by King Gundobad about 500 a.d., is the Lex Romana of the 
Burgundians a , and the Lex Romana Visigothorum (also called 

1 The Edictum Theodorici has this Goths, being Roman soldiers, wers. m 
peculiarity that it was intended to apply their dealings with Romans, governed 
not only to the Roman, but also to the by Roman law as the existing law «»f 
Gothic subjects of the kingdom. The the land. See, on this Edict, Brunner, 
notion still prevailed here that the king- Deutsche RechtsgesckUhte , vol. i. (1887) 
dom of the Ostrogoths formed a portion p. 365 (T. 

of the Roman Empire and that the 1 Cp. Brunner, loc. cit. p. 354 ° n 



ROMAN LAW AS THE LAW OF THE WORLD t 3 i 


1 Breviarium Alarici ’), issued by King Alaric II in 506 A.D., is the § 22 . 
Lex Romana of the Visigoths 8 . 

The task which these German kings had set themselves to perform 
was the same as that undertaken by Justinian. But the difference in 
the results they respectively achieved was immense. 

The Leges Romanae of the Ostrogoths and the Burgundians are 
nothing more than lame attempts to set out in a brief form the 
principal provisions of Roman law so far as they appeared to be 
of practical importance. The Edict of Theodoric attempts to formu- 
late matters in its own way, so that, in this respect, the Lex Romana 
Burgundionum has a certain superiority over it, in that it adheres 
more closely to the Roman originals. It is possible that, in both 
cases, the compilers availed themselves of so-called 1 summaries/ i. e. 
brief resumes of the authorities accompanied by explanatory notes, 
such as had sprung up in the literature of the fifth century in connexion 
with the teaching of law 4 . But the spirit of Roman law has completely 
vanished from both these codes. What is here presented to us is 
a mere wreck. In the great invasion of the barbarians, which swept 
like a hurricane over the West, only the coarsest part of the materials 
has been rescued ; all that is implied in artistic treatment, beauty of 
form and wealth of ideas has i>erished. What remains is but a 
tarnished torso, mutilated and insignificant. Not a trace is left of the 
grandeur and splendour of bygone times. In fact th§ self-conscious- 
ness of Roman law itself has perished. In both Leges we observe 
a strong tendency to absorb ideas of German law. German law 
already constitutes the stronger portion of the codes ; its victorious 
career is about to commence. Nor had it any cause to dread the 
rivalry of such Roman law as was embodied in these two Leges 
Romanae. Roman law of that kind would never have subdued the 
world. 

From the Lex Romana Visigothorum, however (the so-called 
‘ Breviarium Alarici ’), we carry away a somewhat different impression. 
Thanks to its geographical position Spain had enjoyed a greater 

the name • Fapian ’ (a mutilation of Kriieer, G. d. Qtullcn , p. 309 if. 

I apinian), cp. infra, n. 5. * \Ve still possess * summaries * of the 

3 Cp. Karlown, Rom. RG. % vol. L Codex Theodosianus of this kind. Cp. 

P* 97 » ff* Brunner, loc. at. p. 358 ff ; Karlowa, Rom. R G. % vol. i. p. 963. 

K % 



132 


THE INSTITUTES 


§ 22 . immunity from the ravages of the Germanic invasion than any other 
portion of Western Europe. It was in Spain, then, together with 
that part of Gaul which lay south of the Loire, and which belonged 
to the Visigoths till 506 a.d., that the genuine spirit of Rome main- 
tained its last energies. King Alaric, in composing his Corpus juris 
Romani, had very different intellectual powers at his disposal from 
Theodoric, though the kingdom of the latter included Rome itself. 
Hence the wide difference between the Hispano-Gallic Corpus juris 
and that of the Ostrogoths. The system upon which the Lex 
Romana Visigothorum was composed was similar to that sub- 
sequently adopted by Justinian. Without attempting to expound 
Roman law in a form of their own, the compilers preferred to collect 
excerpts from the traditional sources of Roman law which were well 
fitted to preserve not only the substance of Roman law, but also its 
classic form. The greater part of the Lex Romana Visigothorum 
consists of the Codex Theodosianus together with the post-Theo* 
dosian Novels in an abbreviated form, a number of constitutions 
being omitted. The Codex Theodosianus (which represents the 
‘leges’) is followed by portions of the ‘jus,’ viz. the Institutes of 
Gajus in an abridged form, compressed into two books (the so- 
called ‘Gothic Epitome of Gajus’), the ‘Sententiae’ of Taulus, 
portions of the Gregorian and Hermogenian codes and™ fur 
courtesy’s sake — a passage from Papinian by way of conclusion f '. 
The rule followed was to leave the selected passages unaltered, but 
to accompany them with an ‘ interpretation which regulated in a 
sensible manner the application of Roman law in the kingdom of 
the Visigoths (a kind of Gothic Usus modernus Pandectarum), the 
compilers perhaps availing themselves — in parts, at least —of sum- 
maries such as were to be found in juristic literature The ‘liber 
Gaji ’ alone has no interpretatio, because the form in which the 
commission had found and adopted it was already an abbreviated 

5 Tr. the MSS. the I *x Romana P.ur- gundionum. Hence its name ‘ Papian ’ 

punilinnum was frequently joined on (i.e. l’apinian , which occurs as early 

iinmcdiiiti-l) to the I .ex Romana Visi- a*, the ninth century. Cp. Hnmncr, /<*'• 
gothon m, o that the heading of the (it. pp. 356, 357. 
last section of the lx:x Visigothorum f ‘ (,‘p. Pitting, /.V. fiir R(i. % vol. ii. 

( Papinian. lih. i. responsonun . was taken (1873) p. tf. 

to refer also to the Lex Romana Uur- 



ROMAN LAW AS THE LAW OF THE WORLD 133 

one, an epitome, namely, of Gajus which had been prepared for § 22. 
purposes of contemporary legal instruction. It was therefore thought 
that, taken in this form, no further * explanations ’ were required to 
adapt it to the existing state of the law and the general under- 
standing of the people. 

We see, then, that the sources of law which were here drawn upon 
and reproduced were very different from those used in the Leges 
Romanae of the Ostrogoths and Burgundians. The best portions, 
at any rate, of the imperial law were saved, and an attempt, at 
least, was made to preserve some parts of classical Roman juris- 
prudence for the existing law. The consequence was that, with the 
destruction of the kingdoms of the Ostrogoths and Burgundians, 
their codes ceased to have any further practical importance, whereas, 
on the other hand, the Breviarium Alarici maintained its vitality in 
Western Europe, in spite of the fact that, as regards Spain itself, it 
was set aside in the seventh century by the union of Romans and 
Goths under a single code, viz. the remodelled Lex Yisigothorum. 

The Roman Breviarium Alarici became the Lex Romana of Western 
Europe, and, down to the eleventh century, it exercised in this 
capacity (though frequently only through the medium of inferior 
abstracts) a dominant influence upon Romance law in Southern 
France and some parts of South Germany (viz. Upper Rhaetia). 
Even in the German convent-schools (e. g. St. Gall,*Reichenau) the 
Breviarium was used in the early Middle Ages (10th and nth 
centuries), in addition to the records of German law, as the founda- 
tion of the teaching of Latin, and, at the same time, of the teaching 
of law 7 . With regard to Italy, however, the conquest of that 
country by Justinian, though only temporary, had nevertheless 
resulted in its adopting the Corpus juris of the Eastern Empire. 
Thus, from the sixth century onwards, the Corpus juris of Alaric. 
king of the Visigoths, and the Corpus juris of Justinian confronted 
each other as rivals, the former predominating in the West, the latter 
in the East. Which was to be the Corpus juris civilis of the future? 

The question was decided in favour of Justinian’s code. The 

7 Fitting, /.S', d. S<n\ .V/., vol. vii. pp. S6-90; Fitting, Pit Anfangt Kcthis- 
schulc zn Bologna (188S), p. 31. 



134 


THE INSTITUTES 


§ 22. school of Glossators who revived the study of Roman law in Italy in 
the twelfth century took Justinian's Corpus juris (which was in force 
in Italy) as their starting-point, and with the triumphant spread of 
Italian jurisprudence the East-Roman Corpus juris found its way to 
the West. The Corpus juris of the German king was destroyed by 
the Corpus juris of the emperor of Byzantium. 

It wmld, however, be erroneous to suppose that the decision in 
favour of Justinian's Corpus juris was due to a mere accident of 
history. It was rather the intrinsic value of what Justinian had 
achieved that found outward expression in the success which 
attended his work. And the intrinsic value of Justinian's compilation 
consisted in this that it had succeeded in mastering the juristic 
literature , and in grasping, and handing down, to future ages, 
through the excerpts embodied in the Digest, the true spirit of 
Roman jurisprudence. Important as the practical influence of 
imperial legislation had been in moulding the law, nevertheless it is 
not there we must look for the seat of that strength which guaranteed 
Roman law its indestructibility. What was so entirely unique in the 
achievements of Roman law was, simply and solely, its masterly 
treatment of the casuistry of private law, a treatment which, in 
tracing the laws of a particular case, exhibited, at the same time, 
both the elements of the case, and the principles inherent in these 
elements which govern all private transactions in general, and more 
particularly such as result in an obligation— a treatment whidi 
had solved the great problem how to reconcile a free, equitable 
discretion with fixed rules, a vindication of the concrete individual 
intention with the necessary subjection to its immutable, innate 
laws. It was in the writings of the Roman jurists alone that this 
masterpiece of Roman law had been accomplished. Whoever, 
therefore, had mastered the Roman jurists had mastered what was 
true, genuine, and imperishable in Roman law. But it was not 
everybody that could master and understand the jurists, as we sec 
most conspicuously in comparing Justinian's code with the others. 
Even the compilers of King Alaric’s code had found the great works 
of I'apinian, Ulpian, Paulus, &c. difficult and unintelligible. They 
were content with the light fare with which the short ‘maxims’ 



ROMAN LAW AS THE LAW OF THE WORLD 135 

(sententiae) of Paulus and the Institutes of Gajus, in their abridged § 22. 
form, supplied them. They had thus renounced what constituted 
the real strength of Roman jurisprudence. In the main, therefore, 
the Lex Romana Visigothorum is nothing more than a collection 
of ukases, of imperial constitutions. Roman law, in this shape, 
was as unfit to be 4 received * in Germany as it was in the shape 
of the other Leges Romanae. But it was different with the 
advisers and professors of Justinian; they were still qualified to 
read and extract the great jurists with intelligent appreciation. 

It was in their Corpus juris alone that Roman law stood forth in 
all its splendour and world-subduing power. The Corpus juris 
of Justinian, and it alone, has preserved, and rescued for all 
future ages, the great masterpiece of Roman jurisprudence. In 
this form, and in no other, could Roman law be received in 
Germany. And so it actually happened. Thus we are still living 
in this as in other respects on what the intellectual forces of 
Byzantium accomplished for us by preserving and transmitting the 
treasures of antiquity. 

This, then, was the great feat which Justinian had achieved 
by his Corpus juris. Roman law, as a work of art, had been 
definitely finished, and had, at the same time, been cast into a 
comprehensive form which saved it from destruction. No matter 
now whether the Roman state perished or not, Roman law was 
strong enough to survive the Roman empire. 



CHAPTER III. 


The subsequent Fate of Roman Law. 

§ 23. Byzantium . 

23 . With the completion of the Corpus juris the energies of the 
East-Roman Empire were exhausted as far as the scientific treatment 
of law and the power to produce new law were concerned. The 
literature of the period was confined, for the most part, to Greek 
translations of single parts of the Corpus juris or to attempts (of 
a very superficial kind) to reproduce the contents of these parts 
either (abridged) in the shape of abstracts or else in the shape of 
explanatory ‘ paraphrases V In a few exceptional cases mono- 
graphs were written dealing with particular legal topics. This 
tendency to prune away and dilute Justinian’s mighty compilation 
is reflected in the legislation of the period. It supplies, indeed, the 
explanation of the Basilica (™ faurtkuid) which were composed 
towards the close of the ninth century’. The Basilica were com 
menced by the Emperor Basilius Macedo (867-886 a. d.) and were 
carried to completion by his son, Leo Philosophus (886-911 a. i>.). 
They consist of a reproduction, in an abridged form, of the contents 
of the Corpus juris in sixty books and are based on the trans- 
lations and abstracts of the sixth century 1 * 3 . Following the example 
of the Institutes, the Emperor Basilius prefixed an introductory 
part called the Up6\ftpop f which was afterwards revised and republished 
by Leo under the name of 'Eirayuyi) r«0 popov. The Basilica retained 

1 For example, Theophilus (as to bach, Hasilicontm libri I.X t 7 voll., 
whom .see supra, p. 1 26) wrote a para- Lipsiae, 1833-1897. Volume ii con- 
phrase 01 the Institutes, and Stephanas, tains a SuppUmcntum , ed. C. E. Zacha- 

another contemporary of Justinian’, a riae a Lingenlhal (1846); volume vii 
paraphrase of the Digest a SuppUmcntum alterum % ed. E. C. 

J'hey have been edited by E. Heim- Feirini, J. Mercati (1897). 



THE SUBSEQUENT FATE OF ROMAN LAW 137 


thenceforth in theory their statutory authority, though in reality § 23 . 
there was a steadily increasing tendency to replace them in practice 
by epitomes. The last successful work of this latter kind was the 
Hexabiblos of Harmenopulos (1345 a. d.), a ‘miserable epitome of 
epitomes of epitomes ’ 3 . As a matter of fact the law set forth in the 
Hexabiblos was the Roman law of the expiring Eastern Empire. The 
Hexabiblos, however, survived the rule of the Turks, and in 1835 
was clothed with statutory force for the Kingdom of Greece \ The 
history of Roman law in the East is the history of a steady process 
of decline. The same blight that had fallen on the Empire and the 
Church had affected the law. What had once been a body full of 
vital force had shrunk, past recognition, to a mere lifeless form. 

A different fate was in store for Roman law in Western Europe, 
where it was destined to enter on a fresh lease of life. 


§ 24. Italy. 

We have already pointed out (supra, pp. 1 29, 1 30) that in the German § 24 . 
kingdoms of Western Europe Roman law — in its pre-Justinian form, 
of course— remained in force, as far as the Roman population of the 
provinces was concerned, even after the fall of the Roman Empire. 

That as a matter of historic fact Roman law continued to exist in 
Western Europe has been conclusively shown by Savigny in his 
brilliant treatise on the subject but its continued existence did not 
differ in character from the continued existence of the Roman 
language. That is to say, just as the Katin language, after absorbing 
a number of Germanic elements, grew into the Romance languages, 
so Roman law became (in Upper Rhaetia and in the South of 
France) a barbarized Romance law shorn of all the strength of the 
classical law, to which indeed it bore but a faint resemblance. 


3 See the article, Geschichtc u. Qucl- 
len des rom. Keclits (by Bruns, revised 
by Pcmicc),in HoltzcndorfTs Encyklo- 
pddie der A’/K, vol. i. (5th cd„ 1890) 
P* J 74 - 

Among works which have contri- 
buted to our knowledge of the history 
of Graeco-Roman law, special mention 
must be made of the numerous writings 


of E. Zachariae, and more particularly 
of his Gcschuhte des piech iscn -rom ischen 
Rech/s t 1877. An excellent and concise 
resume of the subject will be found in 
the article mentioned in note 3 (at 
pp. 174-176). 

* Geschichtc des retnischen Reckts itn 
Mittelaltcr , and cd., 7 voll., Heidelberg, 
1834 ff. 



138 


THE INSTITUTES 


§ 24. Italy was the only country over which Roman law, in its original 
form, never completely lost its hold. In Italy the traditions of 
Roman law lived on, not only among the people, but also among 
the learned jurists, and by this means the connexion with classical 
legal literature was maintained. The scientific study of law, like 
ancient culture in general, of which it was part, never entirety died 
out in Italy. The schools of law which continued to exist — in 
Rome, and afterwards (in the eleventh century) at Ravenna — pre- 
served the tradition of the legal teaching of the Roman Empire and, 
with it, no mean portion of the spirit of Roman jurisprudence*. 

But the scientific jurists of Italy who wrote and taught from the 
sixth to the eleventh century were out of immediate touch with the 
law actually in force in their country. They never succeeded in 
gaining any control over the practical administration of justice. In 
fact, a complete mastery of so vast a subject as Roman law was 
beyond their powers. In the main they were satisfied with taking 
their Roman law from those portions of the authorities which were 
che easiest to understand, and which, for that reason, contained less 
valuable matter than the other portions. They showed a preference 
for the Institutes, on the one hand, and the Novels, on the other, 
and out of these they were content to put together a summary 
sketch of Roman law, just as their fellow jurists were doing at 
Byzantium about the same time. They were, however, intellectually 
incapable of coping with the principal part of the Corpus juris, viz. 
the Digest. And yet it was precisely within the field of the Digest 
that the great achievement which stands in history to the credit of 
the Italian jurists was afterwards accomplished. 

A new force was required in order to free the study of Roman 
law in Italy from the Byzantine manner and to fill it with fresh life. 

3 Much light has been thrown on the rim. R edits im fruheren Mittelaltcr , 
literature reierred to — as to the value of vol. i, ixipzig, 1891. Besides these, 
which opinions differ— by the numerous reference should be made more partial- 
writings of Fitting (e. g. Ober die soge- larly to Ficker’s Borsch ungen zur A' o'. 
nannte 'Juriner Institutionenglosse u. It aliens, vol. iii. (1870) pp. nofl., 
dsn so^tnavnten Brachylogus , Halle, 125 ff., 299 ff., and to Fickcr, Ober die 
1H70; Anf dnge der Reehtsschule zu Entstehungsrverhaltnisse der Exceptions 
Bologna, fieri in, 1888) and by Conrat Legum Roman arum , Innsbruck, 1886 
• writing in opposition to Fitting) in his (as to which see Fitting, ZS. d . Sav. St., 
htickicklt d. Quellen u. Litteratur d. vol. vii. pt. 2, p. 27 ff.). 



THE SUBSEQUENT FATE OF ROMAN LAW 139 


It was a singular coincidence that this vitalising force should have § 24 . 
been supplied by the German peoples and by German law, for it 
was just the extraordinary success of the scientific study of Roman 
law which, at a subsequent period, threatened German law itself with 
extinction. 

The Lombards were distinguished beyond all the other tribes of 
German nationality by the remarkable degree to which the legal 
instinct was developed in them. Not only could they boast a body 
of statute-law, vigorously worked out and clearly enunciated— the 
Edicts of the Lombard kings and the Capitularies of the Franconian 
kings — but from an early time they set themselves consciously to 
the task of applying the text of the statutes in a rational manner. 

The assessors (judices) of the Royal Court at Pavia became the 
representatives of a school of German (i. e. Lombardic; law which 
flourished in the tenth and eleventh centuries. It is to them that 
we owe the Liber Papiensis, a collection of the edicts and capitu- 
laries arranged in chronological order— a kind of Corpus juris Lango- 
hardici— to which were added explanatory glossae and formulae 
for actions. Their labours culminated about the year 1070 a. d. 
in a complete commentary on the Liber Papiensis called the 
‘Expositio’ -~a highly creditable achievement to which the con- 
temporary school of Roman law could offer no parallel 3 . 

It almost looked as if German law were about to beat Roman 
law out of the field, not only in practical life, but also as a subject 
of scientific study. The success of Lombardic jurisprudence was, 
however, destined to instil fresh life into Roman law. 


§ 2j. The Glossators. 

In the second half of the eleventh century the method of the § 25 . 
Lombard jurists was applied in Bologna to the Roman Corpus juris. 

The success with which the Bolognese School of Glossators worked 
this method enabled them to restore Roman jurisprudence to fresh 

5 The Expositio is discussed by Bo- ministration of justice among the Lom- 
retius in the Afotium. titrm. I e gum, bards, see /S. it. Sav . Si., germ. Abt., 
tom. iv. p. lxxxiv sqq. As to the ad- vol. i. pp. 33, 34. 



140 


THE INSTITUTES 


§ 25 . power and dignity and, at the same time, to lay the foundations 
on which modern German jurisprudence rests. The credit of having 
founded the School of Glossators has been assigned to Irnerius 1 , who 
flourished about 1100 a. d. The most distinguished among his 
successors were the ‘ quattuor doctores,’ Martinus, Bulgarus, Jacobus, 
and Hugo (who were contemporaries of Frederick Barbarossa) and, 
in the first half of the thirteenth century, Azo, Accursius, and 
Odofredus. The jurists of the earlier school of Ravenna (supra, 
p. 138) had taught Roman law by means of comprehensive epitomes 
and manuals. The Glossators of Bologna, on the other hand — and 
it is this that distinguishes them from the teachers of the earlier 
school 2 — adopted the exegetic method practised by the Lombard 
jurists ; that is to say, they dealt with the provisions of the Corpus 
juris in detail by means of g/ossae , or explanatory notes appended 
to the text of the Code. The most fruitful part of the work done 
alike by the Lombard jurists in dealing with the Liber Papiensis 
and by the Glossators in explaining the several passages of the 
Corpus juris consisted in searching out what are known as ‘parallel’ 
passages, that is, the various other passages connected with the 
particular passage under discussion. It is remarkable how much 
light the Glossators were able by this means to throw on the pro- 
visions of Roman law. Their explanations went far deeper than any 
mere elucidation of the letter of the law ; they served to reconcile 
contradictions and to bring such parts as were mutually related into 
vital connexion; they took account of the system of Roman law 
as a whole without neglecting any single detail. The need for 
a compendious survey of the results achieved gave rise to the 
so-called ‘Summae’ which were also apparently modelled on similar 
works by the Lombard jurists. The strength of the school lay in 
the before-mentioned glossae . Undeterred by the difficulties of the 
task, Irnerius and his followers boldly set themselves to analyse the 

1 A certain dominus Pcpo (who lived which Irnerius* glossae on the Pigestum 
about 1070 a.d.) is mentioned as a pre- vetus are published. Irnerius was cer- 
decessor of Imerios ; cp. Savigny, 6’. d. tainly the first whose work as aglossatoi 
rom. A*., voi. iii. p. 427 ; vol. iv. pp. 6, 7. achieved a lasting success. 

Irnerius is the subject of a recent work 1 Ficker, Forschungen zur KG. Ita- 
by Besta, 11 opera d* Irnerio (2 voll., liens } vol. iii. p. 139 fF. 

Torino, 1896), in the second volume of 



THE SUBSEQUENT FATE OF ROMAN LAW 141 

countless provisions of the Corpus juris, and by the use of genuinely § 25 . 
scientific methods they were able to bring to light the wealth of 
legal treasure that lay embedded there. They accomplished what 
nobody had accomplished before, for it is to their efforts that the 
modern world owes its intellectual mastery over the vast materials 
of the Corpus juris. By dint of unremitting labour they succeeded 
in bringing out the full significance of the priceless work contained 
in the Digest, and in revealing the noble fabric of Roman law not 
merely in separate sections, but as a great whole. The Glossators 
re-discovered the Digest in the sense that they brought home its 
meaning — and, with it, the meaning of Roman jurisprudence— to 
the minds of men once more, and at the same time, by means of 
a magnificent exegetical apparatus, they secured all future genera- 
tions in the enjoyment of the fruits of their labours. What the 
Glossators have thus accomplished is work done once and for all, 
and it entitles the School of Bologna to rank for all time to come as 
one of the mightiest forces in the history of Roman law. 

The ‘Glossa ordinaria’ of Accursius (about 1250 a. d.), in which 
the results achieved by the Glossators were finally and compre- 
hensively summed up, marked the completion of the special work 
of their school : there is necessarily a point at which a scientific 
process working exclusively on exegetic lines must come to an end. 

The Glossators had succeeded in showing once more what the pro- 
visions of pure Roman law, of the Corpus juris, actually were, so far 
as it was possible to do so by a method of enquiry and explanation 
which confined itself strictly to the contents of the code itself. 

But in order to place pure Roman law in a position to exercise 
an influence on practical life a mere re-discovery of its provisions 
was not sufficient. It would be the greatest mistake to suppose that 
any sudden reform in the application of law took place at the time 
of the ‘Glossators. In Italy as elsewhere the law continued for the 
present to be administered on the old lines, and the importance of 
the results effected by the Glossators was at first rather theoretical 
than practical 3 . The law of the Corpus juris had to undergo 

3 The archives of the Italian Courts the School of Bologna till towards the 
do not show any traces of the effects of close of the twelfth century, and even 



142 


THE INSTITUTES 


§ 25 . a process of modification and adaptation before it could be actually 
applied in the Courts and resume the commanding position in the 
civilized world that had once belonged to it : ancient Roman law 
had to be suited to the altered conditions of mediaeval life. 

One step in this direction was taken by the Glossators themselves. 
Among the ‘authenticae ’ or excerpts from the laws of the later 
Roman emperors which they inserted in the text of the Codex (supra, 
p. 22), we find some that are based on laws of the German Emperors 
Frederick I and Frederick II 4 . Of still greater significance is 
the fact that to the nine divisions, or * collationes/ of their collection 
of Novels (supra, p. 22) they added as a tenth (decima collatio) the 
record of the feudal law of the Lombards which is known as the 
* libri feodorum,’ a work which was compiled in the twelfth century 
and was likewise founded to some extent on laws of German 
emperors. The text adopted by Accursius and furnished by him 
with an apparatus of glossae has become the standard text of the 
libri feodorum 5 . What the Glossators were aiming at was to 
re-establish the authority of Roman law as a living law. Hence 
the unexpected appearance of the mediaeval German emperors in 
their Corpus juris ; hence also that strange appendage— a rugged 
bit of mediaeval feudalism— which they added to the classical 
structure of pure Roman law. 


§ 26. The Corpus Juris Canonicu 

§ 26 . In the meanwhile the task of bringing Roman law into harmony 

with the requirements of the age had been taken in hand by the 

Church, and the laws made from time to time by the ecclesiastical 

these effects are of a very limited cha- a pubes— and the authentica ' Ilabita ’ 
racter; cj». Kicker, /•'orschungcn>yo\,\\\, - dealing with the jurisdiction ov«r 
p. *99 ff. The direct influence exer- students, —both of which arc excerpts 
cised by the Glossators on the general from laws of the hm|>cior Frederick 1. 
ideas of their contemporaries bv their Cp. Mommsen, Corpus juris, vol. ii. 
revival of the notion of the Roman pp. 510,511. 

emperorship was more considerable. * For the I.ibri Feodorum reference 

4 Of these the most famous arc the should be made to the recent work of 
authentica 4 Sacramcnta puberum ’ — K. Lehmann, Das langobardischt I.ehn- 

providing that even void transactions recht. Gottingen, iSgo. 
shall be validated by the oath of 



THE SUBSEQUENT FATE OF ROMAN LAW 143 


authorities were more successful in this respect than the labours of § 26 . 
the Glossators. Since the close of the eleventh century the mediaeval 
Church had become the mistress of the world. Having attained to 
this position she proceeded, in the next place, to give laws to the 
world. The Canon law, as the law made by the Church is called, 
did not confine itself henceforth to ecclesiastical matters, but sought 
to effect a reform of the law as a whole — including private law, 
criminal law, and the law of procedure — on lines approved by the 
Church. There were accordingly two bodies of law claiming 
universal validity, the law of the Popes and the law of the Emperors, 
ecclesiastical law and Roman law. The Christian world acknow- 
ledged a twin legal system (jus utrumque) corresponding to the twin 
sovereignty of Emperor and Pope. Side by side with the Roman 
Corpus juris civilis stood the Cqrpus juris canonici 1 , a mediaeval 

1 The Corpus juris canonici consists contains five books, and is cited by 
of the following four divisions book, title, and canon: c. 1, X (i.e. 

1. Dec ret urn Gratiani , a work com- Extra) de praeb. (3, O. 
posed privately by the Hologncse monk 3. Liber Sextus, published by Boni- 
Gratianus about 1 140 A.n. It contains face VIII in 1 29^ a. d. Like the Liber 

a collection of all the laws canones) Extra, it contains five books, and is 

which had been issued by the cede- cited : c. 1 in Vito dc praeb. (3, 4). 

siastical authorities up to that time, 4. Clementinae , containing the De- 
coupled with what are known as the cretals of Pope Clement V published in 

‘dicta Gratiani,’ in which the author 1317, and also divided into five books, 

subjects the canons to a scientific treat- Each canon is cited as * Clementina * : 

ment and seeks to harmonise their Clem. 1, de praeb. (3, 2). 

contents. The Decretum is cited as The importance of the Decretum 
follows: — the priina pars (which is Gratiani, which the author himself de- 

divided into 101 ‘distinctiones 1 ) by scribed as a 4 concordantia discordan- 
distinctio and canon : c. 1. dist. 1 ; the tium canonum, 1 consists in the fact that 
secunda pars (which deals with 36 it forms a final collection of the older 

cases or ‘causae 1 ) by causa, <]uacstio, canons, and harmonises the contents 

and canon : c. i, C. i,qu. 1; the tertia of these canons in the interests of 

pars (de consccrationc), which is divided a papal absolutism. By a skilful mani- 

into five distinctiones, by distinctio pulation of scholastic dialectics, the 

and canon with the addition of the author succeeded in bringing the rights 

words ‘de consecr.' : c. 1, dist. i, de of the ancient Church into accord with 

consecr. Quaestio 3, Causa 33, in the the powers claimed by the Popes in his 

secunda pars, contains a ‘ tractatus de time. The other chief part of the code 

pocnitcntia/ which is cited to nomine by is the Liber Extra, which consists 

distinctio and canon (thus : c. i, dist. 1, principally of the Decretals of Alex- 

de poenit.). The canons alone have andcr III and Innocent III. The Liber 

formal validity, not the ‘ dicta Gratiani.* Extra forms the most imposing portion 

a. Liber Extrq , i.e. liter extra De- of that classical Canon law which was 

cretum vagantium, a collection of the built up by the great Popes of the 

later canons that had not been included period on the foundations supplied by 

in the Decretum Gratiani, more especi- Gratianus. It is here that the Canon 

ally of the new Papal decretals. It was law appears for the first time as a law 

published by Gregory IX in 1234 a.d., claiming nniversal validity. 



r44 


THE INSTITUTES 


§ 26. code built up, not by the German Emperors, but by the Popes— 
it was completed in the beginning of the eleventh century— and 
claiming, like the older code, to be binding on the whole of 
Christendom. The law embodied in this code was in substance 
Roman law modified in accordance with mediaeval ideas. In the 
field of private law the reforms effected by the Church did not go 
so deep as in other departments, though even here some new 
principles of far-reaching importance were established, such as the 
rule requiring continuous bona fides in the limitation of actions and 
in acquisitive prescription, and the prohibition of interest and of 
usury in general. On the other hand, in the field of procedure and 
criminal law the changes were so extensive as to amount virtually 
to a revolution. Roman procedure and Roman criminal law were 
in fact transformed into the procedure and the criminal law of 
the Canon law. It was in the altered form given to them in 
the Corpus juris canonici that Western Europe, at a subsequent 
date, received not only the law of procedure and the criminal law 
of the Corpus juris civilis, but also, in the main, the private law of 
Rome. The Papal Code represented a kind of revised version of 
the ancient Imperial Code in which the law of the Roman emperors 
was made intelligible to the Middle Ages and was fitted for practical 
application. 

It must, however, be borne in mind that the Canon law as such 
was not recognized in the secular, but only in the ecclesiastical 
courts. The Church was not strong enough to effect unaided such 
a reform of Roman law as would have enabled it to be applied in 
the secular courts. 

In this instance again it was from the scientific jurists that the 
development of Roman law received its decisive impulse. 


§ 27 . The Commentators . 

§ 27. From the middle of the thirteenth century onwards the School 
of Glossators was replaced by the School of Post-Glossators or 
Commentators, whose ablest representatives— Cinus, Eartolus, Baldus 
— lived in the fourteenth century. The School of Post-Glossators, 



THE SUBSEQUENT FATE OF ROMAN LAW 145 


which had its principal seats at Perugia, Padua, and Pavia, represents $ 27. 
the second phase in the evolution of Italian jurisprudence. The 
importance of this phase has been largely misjudged owing to 
a tendency to measure the services of the Post-Glossators merely 
by what they have contributed towards a better understanding of 
the Corpus juris civilis 1 . Judged by this test it is quite true that 
the jurists in question can claim little merit of their own ; they are 
mere imitators, fitly described as * Post-Glossators 7 ; distinguished — 
and very unfavourably distinguished — from their predecessors solely 
by the fact that, instead of writing short explanatory notes (glossae) 
on the several passages of the Corpus juris, they indulge — as their 
name ‘Commentators ’ betokens — in long-winded commentaries teem- 
ing with scholastic ‘distinctions,’ — commentaries, moreover, which 
do not even comment on the passage upon which they profess to be 
founded, but are really exhaustive disquisitions on doctrines having 
no inner connexion whatever with the text (or the gloss on the text) 
to which they are appended. 

We cannot, however, accept this estimate as correct. The work 
which the Commentators were called upon to perform, and did in 
fact perform, was in truth of quite a different kind 2 . These men 
never set themselves to explain the Corpus juris at all : in their 
view indeed, after what the gloss had done, there was nothing more 
to explain in Roman law. The task to which they addressed them- 
selves was a new one, and a greater one than anything attempted 
by their predecessors, the task namely of building up, on the 
foundations furnished by the Glossators, a Roman law which might 
be applied ih actual life and which, as such, might serve (in the 
first instance for Italy) as a living common law. 

The time had arrived — it was the fourteenth century — for fusing 
the various elements, Lombardic and Romanic, that constituted the 

1 This is tlu* position taken by fourteenth century should (as he thinks' 

Kavigny in his (Uschichtc <t. row. A\ represent a period of steady decline in 

(vol. vi. p. 1 ff.\ Naim ally enough, the field of jurisprudence, 

therefore, he is somewhat surprised to 2 The views set forth in the text are 
note {ibid. pp. n, la't that the very founded on the convincing arguments 

same men who vlike Onus, e.g.' 1 took of W. Kn gel 111 aim in Die Schuldiehn 

an active part in the revival of the dcr Posfglessatorcn (Leipzig, 1 SyO, 

national literature of Italy during the p. 1 tT. 

SOHM: LfiDLIH L 



146 


THE INSTITUTES 


§ 27. population of Italy into a national unity. Dante, Petrarch, and 
Boccaccio created a national Italian literature. At the same time 
Cinus, Bartolus, and Baldus created a body of national Italian law. 
Down to the eleventh and twelfth centuries Lombard law and Roman 
law' continued to exist side by side as mutually distinct systems. In 
the courts it was virtually only Lombard law that was recognized 
and applied 8 (in Upper Italy at any rate), and Lombard law was 
the source whence the various bodies of statute-law, which developed 
with considerable vigour in the city-states of Upper Italy, derived 
their strength. In literature, on the other hand, it was virtually only 
Roman law that was taken into account. In the course of the 
twelfth century the works of the Lombard jurists had been com- 
pletely cast into the shade by the School of Glossators, and as for the 
statute-law of the cities just mentioned— that vigorous young off-shoot 
of the Lombard law which the Glossators contemptuously described 
as irrational law, a ‘noisome' thing and the work of ‘donkeys*’— 
the scientific jurists simply ignored it altogether. Between the law 
of practical life and the law with which the jurists concerned them- 
selves there was thus a great gulf fixed. The law recognized in 
actual practice consisted of the statute-law of the cities, on the one 
hand, and the Canon law, on the other, though the latter was 
precluded from exercising any influence on the development either 
of the city-laws or of Roman law by reason of the fact already noted 
that its validity was on principle confined to the ecclesiastical 
courts 5 . Roman law, the statute-laws of the cities, and the Canon 

3 In Upper Italy Roman law was frtdo, Hologna, 1S94 (p. 1.14V 

superseded by Lombard law in every- * Thus Odofredus speaks of the 

thing but in name. The Cartularium ‘ fetidissimum jus I angohanlorutn 1 ; the 

Langobardicum, which was composed plcbeji (he says) who pre>umc to make 

about 1000 A. D. at Pavia, regularly ‘ statuta' are just so many ‘ asini, 1 whose 

recites the provisions of Roman law statutes have therefore ‘ nee latinum nee 

side by side with those of Lombard scutentiam ’ ; Roman law alone b 

i aw, but observes with equal regularity rational law, ‘lex ct ratio.’ Cp. Tn* 

that the provisions of Roman law massia, op. cit. p. 10, n 1 ; p. 133. 

coincide with those of Lombard law. 5 Odolicdus says : ‘ Iliac dccrctales 

Cp. Y '&tr, I or sc hungen, vol.iii. p.460. habent locum in foro clciicorum — vtl 

~Od.>eclus(who lived about 1250 A. u.) intclliguntur— in illis terris in quibus 

says : 1 Citra Padum servatur jus Ro- dona, papa habet utrumque gladium.' 

manornm (this, we may note, was only The decretals were only allowed t» 

true in theory), ultra Padum servatur have secular force within the secular 

jus Lombardorum, et in Tuseia servatur territory of the Pope. Cp. Tamassia, 

jis I.ombardorum.’ Cp. Tamassia, Odo- op. cit . pp, 146, 147. 



THE SUBSEQUENT FATE OF ROMAN LAW 147 


law existed side by side, each going its own way without heeding § 27 
the other. The problem was how to correlate and connect them, 
and it was this problem that the Commentators successfully solved. 

In Italy (including Lombardic Upper Italy) Roman law had 
traditionally been regarded as the lex generalis or common law. 

To the Glossators Roman law represented the jus commune. It 
was the universal law of the world. But it was only in theory that 
Roman law enjoyed universal authority. Its recogniti6n in the 
practical administration of justice was due to the Commentators, 
and it was by insisting on the deeper underlying unity of Roman 
law and the law actually in force in Italy, and thus working the two 
systems into a harmonious whole, that the Commentators were able 
to effect this recognition. In their commentaries on the Corpus 
juris we find constant references to the statute-laws of the cities, and 
the result of their work was to import some Lombard customs into 
Roman law and, conversely, to engraft Roman law to some extent 
on the Lombard customs. Equal importance was assigned to the 
( !anon law. The fact that the Canon law came to be recognized in 
the secular as well as in the ecclesiastical courts was due to the 
way in which the Commentators developed Roman law in accordance 
with the principles of the Canonists. By thus combining Roman 
law with the Canon law and with German law, they produced a kind 
of usus modemus Pandectarum for Italy — a body of law which, 
though never out of touch with the imperishable work of the Roman 
jurists, was still sufficiently modernized to admit of being applied 
in the existing courts. Thus it came about that (in Italy, in the 
first instance) German law was finally driven from the field by Roman 
law, not however by pure Roman law, but by that modernized, 
Italianized Pandect law which owed its existence to the Com- 
mentators. The latter exercised a controlling influence over the 
administration of justice principally through the medium of their 
‘consilia.’ It was under this influence that Lombard law, as 
embodied in the statutes of the cities, sank to the level of a mere 
local law which came to be regarded as a defective law, a law 
which, taken by itself, could not be rightly understood, and which 
had therefore to be supplemented and interpreted by the aid of 

L 2 



148 


THE INSTITUTES 


§ 27. the Pandect law (in other words, Roman law) in that modified form 
which the new jurisprudence had given to it. Italy thus obtained 
for the first time a common law recognized in actual practice, that 
is, a common law supplementary to the statute-laws of the cities, 
which the courts were bound to take into account in the ad- 
ministration of justice. The growth of this common law gradually 
deprived the statute-laws of all their vitality. It is true there was 
a rule that, in case of conflict, statute should override jus commune, 
just as afterwards in Germany territorial law was said to ‘ break the 
common law 6 / Rut there was a further rule— and the fact that 
the statute-laws came to be treated as incomplete laws which required 
supplementing was due to the application of this very rule as a canon 
of interpretation 7 — the rule, namely, that the operation of a statute 
should be rigorously limited by its letter, that is to say, by what 
the statute expressly and in so many words provided for. And 
in interpreting the ‘letter’ of the statutes there was a growing 
tendency, all reservations notwithstanding, to give effect to the ideas 
of the new common law \ The victory of the common law was 

6 Thus Dinus says : ‘ Per poenam common law. The statute-law was. ot 

statuli tollitur in totum poena juris course, originally conceived as a body 

communis. ’ Kngclmann, op. at. p. 23S. of law complete in itself and operating 

7 4 Statuta debent servari ad literam,’ accordingly, hut this, the natural view 

says Tai tagnus. And Albcricus : ‘ Sta- of its effect, was destroyed by the 

tuta sunt stabiliter, firmitcret tenaciter growth of the common law. 

observanda, nec ab eorum verbis cst h Thus (inndinus says: ‘Secundum 
rccedendum, quia sunt stricti juris.’ veriorem intellectum ctopinioncm com- 
But by saying that the statutes are nuincm Doctorum statuta intelleguntm 
stricti juris Albcricus means that they secundum determinationem juris corn 
only apply so far as the letter ot their munis et ejiu interpretationem.* And 
provisions goes, and no further. Ac- Rildus: ‘Stntutuin debet intellegi, prnut 
cordingly Gandinus tells ir that 4 statuta est possibile, secundum jus commune : 
terrarum sunt stricti juris et sterilia statuta restringuntur per rationcm juris 
tamquam mulae, et sic nullnm inter- communis.’ 'Hie saying 4 litcra occidit. 
pretationem et subaudition intellectum spiritus autem vivilicat ’ was applied t«» 
recipiunt, sed secundum eorum verba the letter as well as to the spirit <■! 
juxta grammaticalem intellectum stricte the Statute. Cp. Kngclmann, op. (it. 
et rigide sunt intdligcnda ; ' Kngel- p. 23H ff. In striving to enforce then 
mann, op. at. pp. 236, 237. That is view of the effect of the statute-law- 
to say, where a statute, on the lace of Kngclmann 'op. at.) has thrown some 
it, makes no provision for a case, the very instructive light on this phase ol 
delect cannot be supplied by looking to the development — the Commentator 
the statute it&lf and examining its pur- were practically fighting the battle “I 
port as a whole; for if, on a literal the common law. For the fact that th< 
reading, the statute says nothing about law taught by the Commentators ever 
a case, it is in fact pro tanto defective became the actual common law of the 
and must be supplemented by the country was the outcome of this very 



THE SUBSEQUENT FATE OF ROMAN LAW 149 


thus assured. Its strength lay in the fact that it was founded on § 27. 
scientific principles, and its signal practical triumph was due to 
the special labours of the Commentators. Just as the growth of 
a common national art and literature tended to reduce the differences 
of language and national character in Italy, so the success of the 
new scientific movement tended to reduce the existing differences 
in the law and to bring unity into the legal ideas and habits of the 
people. 

The new common law which had grown up under the hands of 
the Commentators had proved itself capable of serving as a common 
law for Italy. But its importance was not to be confined to Italy. 

It was— as the events proved — strong enough to exercise a dominant 
influence throughout the civilized world. And in this instance 
again it was the Commentators from whose labours the historical 
development of the law received its decisive impulse. For it was 
the Commentators who introduced scholasticism into the science 
of law*'. 

The essence of scholasticism consists in the predominance of the 
deductive method ; in other words, in the predominance of abstract 
conceptions. The schoolman heeded neither experience nor obser- 
vation ; principles founded on pure reason were all he cared about. 

For him speculative philosophy was everything. Science, he held, 
is not concerned with anything but what can be logically deduced 
from the most general conceptions. Only what is rational, is. 
lo om the scholastic point of view even the rules of grammar required 
demonstration and had therefore to be derived by logical conclusions 

theory that the statutes should not be method was first applied to jurispru- 
interpreted in the light of the statute- dencc by French jurists in the second 
law itself, but in the light of the halt of the thirteenth century (Savignv, 
common law. Cp. also J. Kohler, />V/- (ieschiehtc, vol. v. p. 603 fi.b After- 
/y<W s. (ie.u/iic/ite d. row. R.iu Ikut.uh - wards, in the fust half of the fourteenth 
hi mi y Heft 2 p. 33 ff. century, Cinus imported the scholastic 

An adinirahlomccoimt of the nature jurisprudence of the French (or ‘mo- 
and history of scholasticism is to be derm,’ as they were called) into Italy, 
found in tb Kaufmann’s (A dcr dentuhen Cinus woik was continued by the other 
( 'nivcrsitiitni, vol. i. (iSSS) p. 1 If. Italian jurists, more particularly by his 
The victory of the scholastic mode of famous pupil Hartolus, and by Italdus, 
thought was due to Alielard, who died a pupil of Hartolus. Cp. Savignv, 
in 1142 a. i>. Paris became the leading deschichtc, vol. vi. pp. $$. 155; Kngel- 
wntre of scientific scholasticism (Kaut- maun, pp. 1 1, 12. 
roann, pp. 46, 49). The scholastic 



150 THE INSTITUTES 

§ 27 . from general principles 10 . A passion of pure intellectualism seized 
the minds of men, and dialectics dominated everything. The 
world of being was forgotten, and the world of thought reigned 
supreme. 

We are apt nowadays to associate scholasticism principally with 
some of its least favourable features. The schoolmen's way of 
playing with abstract conceptions, their prolix and frequently quite 
barren disputations pro and contra, their obvious lack of sense for 
the realities of life, — all these characteristics repel us. But at the 
time of which we are speaking scholasticism, which then stood at 
the height of its influence, was a source of new light to the 
mediaeval world. Trained in the methods of Aristotle, the great 
master of antiquity, men attained for the first time to a consciousness 
of the power of thought. They had been prone hitherto to view 
things in a sensuous, concrete way, and it was scholasticism that 
first revealed to them the true force of Mind, that force which, out 
of itself, brings forth all that is real. Where scholasticism erred was 
in supposing that logical inferences could take the place of observa- 
tion. But the importance of scholasticism, not only for its own 
time, but for all future ages, consists in the fact that it gave scientific- 
expression to an ever-living impulse of human nature, the impulse, 
namely, to bring the blind mass of matter under the all-compre- 
hending control of mind. In our own times science wears a very 
different aspect: observation of nature, historical enquiry, a con- 
sciousness of the eternal 4 flux of things,’ have changed its character. 
But no science will ever rest content with mere matters of fact : 
what the schoolmen attempted will be attempted again and again 
as long as a science exists, and men will endeavour to grasp the 
world of reality through the universal and the abstract, and, having 
observed the phenomena presented to them, they will seek to bring 
these phenomena under the mastery of an idea.^In its essence 
scholasticism contains a portion of the essential namrc of all science 
whatsoever, including the science of our own times. 

It was from France that scholasticism had found its way to Italy, 
and in the fourteenth century the Italian Commentators applied the 
10 Cp. Kaufmann, op . (it. p. 33 ff. 



THE SUBSEQUENT FATE OF ROMAN LAW 151 

scholastic methods to the science of law. The foundations of § 27. 
modern Continental jurisprudence were thus laid. The Com- 
mentators were no longer satisfied with merely ascertaining and 
elucidating the actual provisions of Roman law as set forth in the 
authorities. Their endeavour was to trace back the rules of law to 
general conceptions. This way of treating the subject-matter of law 
had not occurred to the Roman jurists. Throughout their writings 
they exhibit an astonishing skill in dealing with definite legal con- 
ceptions, but their skill was, to a very considerable extent, the skill 
of the artist who instinctively applies unalterable aesthetic laws 
without being intellectually conscious of them. The saying ‘feeling 
is everything * is true more especially of art, including the particular 
art in which the Roman jurists were pre-eminent above all others, 
the art namely of developing a legal system through the casuistic 
method, by a clear-sighted adjustment of conflicting principles (supra, 
p. 106). Modern jurisprudence is quite different in character. It 
is reflective, its ‘ native strength * is, so to speak, ‘ sicklied o’er with 
the pale cast’ of general conceptions, though, on the other hand, 
it is just these general conceptions that constitute its real power and 
enable it to exert a direct influence on practical life. Jurisprudence 
of this modern type, of which German jurisprudence offers a par- 
ticularly instructive example, owes its origin to the scholastic science 
of the Commentators. The legal science of modern Germany is, 
to a considerable extent, an inheritance from the schoolmen of the 
Middle Ages. 

The jurisprudence expounded by the Commentators in the four- 
teenth and* fifteenth centuries has been described as a ‘juris- 
prudence of abstract conceptions.’ The description is appropriate 
enough, but it must not be taken to imply that the Commentators 
ever sacrificed the realities of life to the fetish of an abstract idea. 

For it was precisely by means of this ‘jurisprudence of abstract 
conceptions ’ tnkt the Commentators were able to build up a body 
of law which obtained practical force throughout the Western 
Continent. 

It would not be difficult to show that the doctrines of the Com- 
mentators are already foreshadowed in the Gloss at every, or at 



*52 


THE INSTITUTES 


§ 27. least almost every, point. It is natural enough that this should 
have been the case, considering that the influence of scholasticism 
had been steadily in the ascendant ever since the early part of the 
twelfth century. In the main, however, the work of the Glossators 
was in its nature rather humanistic than scholastic. Their principal 
achievement was the revival of the spirit of antiquity, and Roman law 
remained, in their hands, to a large extent divorced from practical 
life. It was the Commentators who brought about a complete 
union between jurisprudence and life, and, at the same time, a union 
between jurisprudence and the scholasticism of the Middle Ages, 
for scholasticism was an integral part of mediaeval life. The Com- 
mentators transformed Roman law into a different law, to wit, 
Mediaeval law, and they effected this transformation not merely by 
fusing Roman law with the Canon law and German law in the 
manner we have previously described, but rather, first and foremost, 
by successfully applying the speculative methods of scholastic juris- 
prudence and thereby permeating the whole fabric of the law with 
the spirit of mediaeval scientific thought. 

Written law always tends to fall short of the requirements of 
a growing national life : cases will occur for which the written text 
furnishes no direct decision. Roman law, even with the addition 
of the Glossators’ explanations, formed no exception to this rule. 
An unerring practical instinct had enabled the Roman jurists to 
supply the unavoidable gaps. The Commentators were the first to 
approach the problem by methods which were scientific: in the fullest 
modern sense of the term, ily analysing each rule of law as it 
came before them, they succeeded in evolving those general legal 
conceptions which, when ascertained, are found to dominate the 
whole field of law (supra, p. 34). Definitions and distinctions were 
ti.e principal concern of the Commentators, but with all their 
scholastic c.irnbrousness it was precisely in the distinctions thus 
drawn between general c onceptions that the abstract rules lying at 
the root of all law found expression for the first time. 

Tw o examples may suffice to illustrate the nature and importance 
of the work of the Commentators. The question was discussed as to 
how far a corporation (universitas) was competent to make binding 



THE SUBSEQUENT FATE OF ROMAN LAW 153 


rules. Bartolus was the first to point out that, in dealing with this § 27. 
question, a distinction must be made between a rule purporting to 
regulate the affairs of the civil community in general (statutum per- 
tinens ad causarum decisionem) and a rule which only purports to 
regulate the internal affairs of the corporation (statutum pertinens ad 
administrationem rerum ipsius universitatis). Every corporation as 
such is competent to make rules of the latter kind, but rules of the 
former kind can only be made by such bodies as possess * juris- 
diction that is, political authority. The principle thus insisted on 
by Bartolus is one of the utmost significance : it gives clear ex- 
pression, for the first time, to the distinctive character of the 
political authority of the State, as contrasted with the authority of 
a mere corporation or society, and brings out at the same time the 
essential difference between the power to legislate and the mere 
power to manage one's internal affairs M . The far-reaching im- 
portance of the consequences involved in the principle thus laid 
down is sufficiently obvious v: . Another of the questions discussed 
referred to what is known as the ‘conflict of laws.’ How far does 
the validity of the municipal law of a state and of foreign law 
respectively extend ? In other words, how far should a state give 
effect to foreign law? Here again Bartolus was the first to point 
out that the rules of law on this matter must be classified according 
to their contents, and that regard must lie had more particularly 
to the question whether the rule under consideration is concerned 
•circa rem ' or 4 circa personam ’ or with the ‘sollemnitas actus 13 ' — 
hence the subsequent doctrine of ‘personal,’ ‘real,’ and ‘mixed’ 
statutes — and the distinction thus indicated by Bartolus retains to 
this day its fundamental importance for a large part of that system 
of International Private l«aw which is found alike among all the 
civilized nations of the West. 

11 C j). ( licikc. Jhis ihutu h< Prnssu-n distinction in question ^('.ierke. p. 3^9'. 

•' : hiiftsrtiht) vol. ni. (jSSi) p. 3S7. The whole subsequent development of 

Among such con sequences we may the law was strongly influenced by the 
mention the distinction between the distinctionsofBartoUis((heikoq).4f6ff.y 
power of the Slate to impose taxation 19 Cp. F. Meili, Jhe thcoretischtn 
and the power of a corpoutc body to AbhanMunjcu vsu Bartolus w. Baldus 
levy rates or other payments within the uberdas tnUrtMtiouale 1 'rtvat- u.StraJ- 
limits of its authority. I11 this instance, nJit (1894), especially pp. 17. 21, 2 2, 
aipin, it was Bartolus who diew the 24, 29, 30 dkartolus) and p. 45 (Haldus). 



154 


THE INSTITUTES 


§ 27. The effect of the labours of the Commentators was to import 
into Roman law' (as fused with the Canon law) such a wealth of 
legal ideas as to render it, from an intellectual point of view, 
incontestably superior to any other contemporary system. The 
definitions and distinctions of the Commentators endowed the 
‘common law* with that great inward strength which enabled it to 
drive the rival statute-laws from the field and to assert itself in 
actual practice as a common law for Italy. The common law, rich 
in general conceptions, emerged victorious from the struggle with 
the * particular ’ laws, and its victory was a victory of ideas. 

Now’ there is always some element of universal validity in ideas. 
The conception of (say) a corporation or a ‘ personal ’ statute must 
be equally true everywhere. Just as the scholasticism of the Middle 
Ages was a kind of philosophy, so the doctrines of the Com- 
mentators embodied a kind of philosophic jurisprudence. Their 
jurisprudence was in fact permeated by an idea w r hich dates far back 
into antiquity, the idea, namely, of a I^iw of Nature, that is, an 
eternal, immutable law, equally valid at all times and all places, 
which can be deduced by an act of reason, by a purely intellectual 
process, from ‘the nature of the thing itself 14 / Down to the* 
beginning of the nineteenth century and the advent of Savigny the 
science of law was entirely dominated by the philosophic point ot 
view represented by the advocates of the law of nature. And in 
truth the doctrine of the law of nature contains an indestructible 
dement. The human mind is continually urged, as by an in 
stinctive impulse, to get beyond the necessarily imperfect law of the 
present and to reach out to an ideal type of perfect law. It i^ 
hardly surprising, therefore, that the theory of the law of nature 
should have taken the world by storm, when it presented itself for 


14 The Middle Ages looked on the 
jus natunle as the divine law, the 
‘ lex acterna/ the ‘ ipsa ratio gul>er- 
nationis reium in Deo sicut in principc 
uni versiialts cxUtens/ bo that all positive 
law wai necessarily dominated by it 
and had to be derived from it : 1 omnis 
lex <* lege a-tema dcrivatur ’ (St. Thomas 
Aquinas). Cp. Gierke, op . at. p. 6io; 


Ilinscliius, Kinhcnrt\ /it, vol. iii. ( i S» s .: 
p. 730 ; Bcrgbohm, Jurisprudtnz utu 
Rer h Is ph ilosoph ic % vol. i. ( 1 892) p. 1 S ■ 
— U I pi an in 1. 1 §§ 3. 4 1). de just. ( 1 , * - 
Cajun, 1 . \) cod. — K.iiinundus I.ullu^ 
one of the precursors of the Commenta- 
tors, sought ‘jus podtivum ad 
naturalc reduccrc' (Savigny, tUschu^i 
vol. v. p. 64a). 



THE SUBSEQUENT FATE OF ROMAN LAW 155 


the first time fortified with all the authority that the jurisprudence § 27. 
of the Commentators could confer upon it. 

While in the Eastern Empire Roman law was degenerating into 
a mere provincial law for the Greeks and, as such, was maintaining 
but a precarious existence, in the West it was gathering force for 
a fresh period of power. In the main it was the labours of the 
Commentators that had fitted Roman law for its new career. By 
working out their scientific conceptions in immediate connexion 
with the doctrines of Roman law, they were able to present Roman 
law (in the shape which it assumed under their hands) in the light 
of a natural law founded on scientific principles, a law. therefore, 
which claimed to be recognized as a common law* valid not only 
for Italy, but for all countries. In a word, the Commentators raised 
Roman law for the second time in history to the rank of a universal 
law. 'fhe path was now clear for the reception of Roman law in 
Germany. 

§ 28. The Law of the Pandects in Germany. 

Among the Commentators the most important and influential was § 28. 
Bartolus. Next to him we may rank his pupil Baldus. In almost 
every department the writings of Bartolus mark a decisive stage in 
the evolution of legal conceptions. The central figure in the general 
legal history of the Middle Ages is neither Irnerius nor any one of 
the Glossators, but Bartolus. His commentaries dominated the 
practice of the courts. In Spain and Portugal, where they were 
also received, they actually enjoyed statutory authority \ The 
creation of the common law of Italy was due first and foremost to 
the labours of Bartolus. He is entitled, therefore, to be regarded, 
more than any one else, as the creator of the common law of 
Germany which sprang from the ‘reception/ In France, indeed, 
a reaction set in during the sixteenth century against the juris- 
prudence of Bartolus : the French school of historical jurisprudence, 
which rose into prominence at that time, and whose most distinguished 
representatives were ( ujacius and Donellus, abandoned scholasticism 

1 (*p. Savigny, Cesihn hn t vol. vi. p. 154. 



THE INSTITUTES 


156 

. in favour of pure Roman law, and by devoting its attention rather 
to antiquarian research and philological learning than to practical 
life it paved the way for a revival of the original spirit of the Roman 
jurists in the scientific study of jurisprudence. The movement thus 
initiated by the French jurists was succeeded in the seventeenth and 
eighteenth centuries by the growth of a Dutch school of jurists 
who, like their French predecessors, were more interested in the 
‘ elegancies * of theory than the working of practical law. Among 
the representatives of this school we may name Yoet and Bynkers- 
hoek. In Germany, on the other hand, the Italian jurists remained 
supreme. In the commencement of the sixteenth century, it is true, 
the humanistic and antiquarian school of thought found a German 
representative in Ulrich Zasius, who, however, remained without 
followers. Accordingly it was not the Corpus juris itself that was 
received in Germany as a code in actual force ; in reality it was 
the commentaries of Bartolus and, in a secondary degree, those of 
Baldus that were received as the common law of Germany. 

Roman law, then, was not received in Germany in its pure form, 
but in the modified form which it had assumed in the hands of the 
Glossators and Commentators. The Canon law and the feudal 
law of the Lombards (the 4 libri feodorum,’ p. 142) were received 
simultaneously with Roman law, and, like Roman law, they were 
received in the shape which the Italian jurists had given them. As 
in Italy, so in Germany, the unglossed parts of the Corpus juris 
were not admitted 3 . The Roman law thus adopted was further 
modified and supplemented in the course of a development which 
took place within Germany itself. As received, the common private 
law of Germany was in truth Italianized Pandect law ; it was now 
gradually converted into a modernized, Germanized Pandect law . 
It was strong more particularly on the scientific side, and down to 
the second half of the seventeenth century the study of jurisprudence 

a This led to the development of the 1 Hence the term ' INus modcrni^ 
iu'c which we fuwl recognized from I’andectarum 1 (or ‘ Usus modcmiiN 
the close 01 the seventeenth century simply; as applied to the common 
onwards : ‘Quidquid non agnoscit glossa private law of ( »ermanv from the second 
nec agnoscit curia/ (*p. Landshcrg, half of the ncvcntcenlh century on- 
f :hr di. lintstchung der Rtgtl : < >utd- ward s. 

quid non agtiou it glossa ( 1 8»oj. 



THE SUBSEQUENT FATE OF ROMAN LAW 157 

in Germany was — as far, at any rate, as private law was concerned — § 28. 
practically identical with the study of the Pandects. 

The promulgation, in the year 1495, of the Ordinance regulating 
the administration of justice in the newly constituted Court of the 
Imperial Chamber (Reichskammergericht) was an event of decisive 
importance for the reception of foreign law— that is, of Roman, 
Canon, and Lombard law — in Germany. By this Ordinance the 
Court was instructed to ‘ adjudicate in accordance with the* common 
law of the Empire, and likewise in accordance with such ordinances, 
statutes, and customs of the principalities, seignories, and courts 
as are brought before it and are equitable, proper, and tolerable.’ 

That is to say, the Court was to decide, on principle, according to 
the ‘common law of the Empire,’ i. e. Roman law (in the shape 
* which it had by this time received at the hands of the Commentators), 
and only in exceptional cases according to German law. Such was 
held to be the meaning of the highly significant words, ‘as are 
brought before it.’ The Court was not to take any account of 
local — i. e. German — 1 ordinances, statutes, and customs,’ unless they 
were ‘ brought before it/ unless, that is, their existence were proved 
by evidence. A claim founded on Roman law had — in the language 
of the later times -‘fundatam intentionem ’ ; in other words, the 
validity of Roman law did not require to be proved ; it was taken 
for granted and was legally presumed. Roman law had been 
received in its entirety, ‘ in complexu,’ as the later lawyers phrased 
it — this is clearly implied in the words above cited from the Ordinance 
of 1495— it was in force ns a whole and in every part, except so far 
as the contrary could be proved. On the other hand, if a litigant 
appealed to German law, he had the onus of proving that the rule 
he relied on was actually in existence, that is, he had to satisfy the 
Court affirmatively that such a rule was really in force at the particular 
place in question. The Assessors of the Reichskammergericht were 
not bound to know German law by virtue of their office. They had 
judicial knowledge only of foreign law. How then was German law 
to be proved ? So far as the local laws consisted of ‘ ordinances ' 
or ‘ statutes/ the proof may have been easy enough. But the great 
bulk of German law consisted of ‘customs,’ and the existence of 



THE INSTITUTES 


158 

§ 28 . customary law had to be proved by evidence. Such was the doctrine 
universally accepted in former times; it was indeed the doctrine 
enunciated in the passage already quoted from the Ordinance of 
1495. In effect it meant simply that in Germany itself the existence 
of German law required to be legally proved. It is obvious that 
the proof of local customary laws must have been beset with the 
utmost difficulties. The rule casting the onus of proof on German 
law placed the indigenous law at such an enormous disadvantage 
as to endanger its very existence. But even where the difficulties 
of proving the existence of local law were successfully overcome 
it did not by any means follow that the Court would give effect to 
it. A further question then arose as to whether the law thus proved 
were ‘equitable, proper, and tolerable.’ And there can be no doubt 
that, frequently enough, the lawyers of that age — men trained in 
Roman law— showed a disposition to regard German law as ‘in- 
tolerable’ law,— a disposition which is not unknown even among 
jurists of our own times. The German lawyers took precisely the 
same view of the local laws as the Italian lawyers had once taken 
of the city-statutes (supra, p. 146). To them Roman law was the 
only rational law, a law based on the nature of things, and German 
law was irrational law. 

Thus it happened that, as a rule, only those portions of the 
German local laws survived which were directly covered by the clear 
and explicit words of some statute. German law had to face the 
hostility both of the scientific jurists and of those charged with 
the administration of the law. All the forces of science were 
ranged on the side of Roman law, and Roman law had exclusive 
command of the influence which belongs to ideas and legal principles, 
an influence which — unconsciously perhaps — dominates the practical 
administration of justice. The local laws of Germany were treated 
in exactly the same way as the statute-laws of Italy ; that is to say, 
they were interpreted and applied in accordance with the principles 
of the common law. The result was that, like the statute-laws of 
Italy, they became ‘sterilized’ (supra, p. 148, n. 7). All the broad 
gaps that appeared from time to time were filled by the common law, 
and the local laws only held their own where protected by the plain 



THE SUBSEQUENT FATE OF ROMAN LAW 159 

letter of some statute. The 1 particular * German laws, the laws of § 28 . 
localities and territories, were originally conceived as complete in 
themselves. It was only when their spirit had been killed by the 
process wc are now describing that they came to be regarded as 
defective. The reception of foreign law meant the destruction of 
German law. This destruction was due in the main to the scientific 
jurists and to the powerful influence of the doctrine of the law 
of nature, which pervaded, not the new jurisprudence alone, but 
the entire intellectual revival of the age. 

The period of the reception covers the sixteenth and seventeenth 
centuries. During this time the foreign law was, so to speak, on 
the offensive. Its power manifested itself most conspicuously in 
the progressive transformation of the German courts of law. As 
early as 1495 half the judges, and afterwards all the judges, of the 
< ourt of the Imperial Chamber were trained civilians. The example 
of the Reichskammergericht was followed in the sixteenth century 
by the courts of the German Princes which were established in the 
several German territories and (partly during the sixteenth, partly 
as late as the seventeenth century) Roman law captured even the 
lowest courts in Germany, invariably sweeping away the ancient 
and popularly constituted courts (Schbffengerichte) and replacing 
them by trained officials called ‘AmtmiinnerV Every additional 
(hange in the constitution of the German courts meant a fresh blow 
to the struggling indigenous law. For the men who now’ officiated 
as judges had studied no law but foreign law. 

This state of affairs continued right down to the close of the 
seventeenth century, about which time a new movement com- 
menced. A change came over the attitude of the scientific jurists. 
They began to consider the law of nature in a new light, and to 
appeal to it in support of the view that the present is entitled to 
think for itself, and, if necessary, to disregard the older claims 
of tradition. It was under the guiding influence of this new point 
of view that the territorial laws of Germany grew' steadily in impor- 
tance during the eighteenth and nineteenth centuries, and a strong 

* Cp. A. Stolzcl, J'it Entwickclung des gelchrtcn Kichtertums in deutschcn 
Territorial^ 2 voll., 187 i. 



160 THE INSTITUTES 

§ 28 . reaction set in against the authority of the common Roman law. 
The State legislatures began to play a more active part in the 
shaping of the law, their aim being to clear away whatever appeared 
antiquated. Among the laws thus condemned as antiquated was the 
law of the Pandects. New legal rules, it was urged, were demanded 
by the new requirements. The law of the present sought to shake 
itself free from the trammels of the past. The effect of the new 
doctrine of the law of nature showed itself in the numerous codifi- 
cations of the period, a vigorous beginning being made in this 
direction as early as the eighteenth century (supra, pp. 5, 6). The 
age of ‘ received ’ foreign law was thus gradually coming to a close. 

Simultaneously with the movement here described— that is, from 
the commencement of the eighteenth century onwards — ‘German 
Private Law’ took its place, side by side with the Pandect law, as a 
distinct branch of legal study (supra, p. 4). The jurists began to realize 
the intellectual value of the local laws of Germany, which had sur- 
vived the reception. Thus the general legal conceptions derived from 
the Pandect law were confronted with a rival set of conceptions, 
no less carefully elaborated, but drawn from indigenous sources. 

It was at this juncture, when the law of the Pandects was 
threatened on all sides by powerful foes, that Savigny appeared on 
the scene. Savigny succeeded in rehabilitating the scientific study 
of the Pandects, but his very success proved fatal to the further 
existence of the Pandect law as the positive common law ol 
Germany. The appearance of Savigny was an incident of the great 
‘romantic’ movement which, in the beginning of this century, drove 
the philosophy of ‘enlightenment’ from the field and substituted in 
its place a tendency to regard the present as determined, in the 
main, by given matters of fact, by what is positive, historical, 
inexplicable (and in that sense romantic). 

Savigny was the founder of the so-called historical school of law. 
According to his teaching, law must be regarded as a product of the 
entire history of a people ; it is not, he contends, a thing that can 
be made at will, or ever has been so made ; it is an organic growth, 
which comes into being by virtue of an inward necessity and con- 
tinues to develop in the same way from within by the operation 



THE SUBSEQUENT FATE OF ROMAN LAW 161 


of natural forces \ While therefore the doctrine of the law of § 28. 
nature had given a powerful impetus to the legislative efforts of 
the period, Savigny’s teaching was— to say the very least— calculated 
to raise serious doubts as to whether there was any ‘ call for legisla- 
tion’ in our age at all. Savigny was keenly alive to the defects 
inherent in all statute-law, and gave trenchant expression to his 
views. But when all is said it remains nevertheless a fact that, 
as far as modern nations are concerned, the development of the 
living, growing law must of necessity be carried on, in the main, 
by means of legislation. 

Savigny exercised an immense influence in the field both of 
theory and of practice, in the latter more particularly through his 
classical work on Possession*. This book contained the first 
systematic account of the Roman doctrine of possession which was 
‘based directly on the authorities,’ that is, on the Corpus juris. 

The common law doctrine of possession which had hitherto pre- 
vailed in Germany, the doctrine of the Usus modernus, was totally 
different from the Roman doctrine. The effect of the Canon law — 
the ‘actio spolii’ — on the one hand, and of the theory and practice 
of the Common Law, on the other, had been to create a divergence 
between the two doctrines which extended even to fundamentals. 
Savigny’s treatise brought the claims of the pure Roman doctrine 
prominently before the legal public. : it was a masterly exposition 
bearing splendid testimony both to the authors genius and to the 
wonderful power of Roman jurisprudence. Never before had Roman 
law* been painted in such brilliant colours. The effect of the book 
was extraordinary. Its conclusions were immediately accepted on 
all hands. The traditional doctrine of possession, as contained 
in the Usus modernus, offered little resistance and was discarded 
almost without a struggle. German jurisprudence experienced a 
complete revolution. Casting the Usus modernus on one side, the 
jurists applied themselves with ardour to the pure Roman law of 
the Corpus juris. The noble symmetry of the classical law attracted 

8 Savigny, Vom Btruf unsertr Zeit % Savigny, Das Retht des besitz€s % 
fur Utsetzgebnng utui Rahtswissen - 1st cd., 1803. 

schaft, 1st cd., 1814. 

SOH1I : LB DUE M 



1 62 


THE INSTITUTES 


§ 28 . the enthusiastic admiration of all students. A number of jurists 
of quite exceptional ability succeeded in giving a complete and vivid 
picture of Roman law as it originally existed. A perfect cataclysm 
overtook the Usus modernus : nothing survived of it except what 
was based on the bedrock of ancient classical authority. The 
culminating point in this development is marked by Savigny’s 
‘System of Modern Roman Law,’ followed by Puchta’s classic 
treatise on the Pandects. A reaction subsequently set in, first in 
favour of the Usus modernus— see, for example, Bruns* ‘ Recht des 
Besitzes* (1848) — and in more recent times in favour of modern 
legal requirements and legal ideas (Jhering, Windscheid, Bekker, 
Dernburg). But what Savigny and his historical school had 
destroyed could not be restored, or at any rate could only be 
imperfectly restored. The Usus modernus, in other words, the law 
of the Pandects as altered in accordance with the legal habits and 
ideas first of Italy and then of Germany, was finally superseded. 
Its place was taken by a Pandect law which, apart from a few 
modifications, was pure Roman law. In the field of legal theory 
the successes achieved by the German writers on the Pandects 
were indeed brilliant beyond all expectation, but the return to the 
original sources of Roman law rendered it impossible for the law of 
the Pandects to retain its vitality in practical life. As an effective 
instrument of legal education, this new ‘law of the Pandects* was 
and will always remain unsurpassed, but it was not to be expected 
that a law so intimately associated with the past life of ancient 
Rome should continue for any length of time to dominate the life 
of modern Germany as an actual positive law. The law of the 
Pandects had played a great part in its time. Its role was now 
exhausted, and it had to make way for the law of the German 
Civil Code. 

Such is the position of affairs at the present time. The Corpus 
juris civilis has now ceased to have any force as an actual code 
of law, but »t will continue to hold its own as a subject of scientific 
study. As a piece of legislation the system of Roman private law 
was destined to pass away ; as a work of art it will endure for 
all time. 



PART II 

THE SYSTEM OF ROMAN PRIVATE LAW 

§ 29. The System of Private Law . 

Private law is concerned with rights which are intended, by § 20. 
their very nature, to serve the self-interest of the individual ; in other 
words, it is concerned with rights which assign to the person entitled 
a sphere of unfettered action, an arbitrary power to do as he chooses 
(supra, pp. 25, 26). Private law. in this sense, has its ultimate 
origin in the law of the family, in the rules, namely, which obtained 
in early times within the separate ‘familiae’ or households. In 
modern systems the law of the family, so far as it regulates the 
personal relations of power between the members of a family (viz. 
the marital, parental, and tutorial power), lies on the very border- 
land of private law*. For nowadays the rights of control which 
spring from the law of the family have ceased to have exclusive 
reference to the interests of the person entitled to them, though they 
still retain a certain element of arbitrariness. In modern systems 
the central position in private law is occupied by the rules con- 
cerning the dominion of persons over things, or the equivalents 
of things,— in a word, by the Law of Property. Thus private law 
may be defined, with reference to what w’e now conceive to be its 
primary object, as the sum of binding rules which distribute among 
the individual members of a community, in their own interests, 
a certain power over the outside world and thereby regulate the 
economic conditions of such community. The pith of private law 
lies in the law of property. In other words, private law consists 

M 2 



164 


THE INSTITUTES 


§ 20. first and foremost of the rules regulating ownership and other rights 
of property. Coupled with these rules and intimately connected 
with them, we have the rules regulating family relations. 

It is the business of a systematic exposition of private law to 
unfold and exhibit the essential character of private law as we have 
just described it. 

The exposition of private law opens with the Law of Persons, that 
is, with the legal rules by which the range of the possible subjects of 
private rights is determined. Accordingly the law of persons has to 
deal with the question as to who is capable of having private rights. 
As a department of private law, it is identical with the law of the 
subject of private rights, in other words, it is concerned with pro- 
prietary capacity, the capacity of holding property. 

On the other hand, in private law the thing is always the object 
of a legal right. But it may be subjected to the will of the person 
invested with the right in one of two ways : either directly, the right 
existing over the thing itself (real rights) * ; or indirectly, i. e. through 
the medium of the act of another, the debtor (obligatory rights) \ 
The purpose of real rights (such as ownership) is to enlarge, at once 
and definitively, the scope within which the person entitled may 
exercise his power. Real rights are thus the final end of proprietary 
dealings. On the other hand, the purpose of obligatory rights is to 
make over to the creditor, by means of the act of the debtor, at 
some future time, a thing or that which has the value of a thing. 
Obligatory rights are thus the means of proprietary dealings. In 
accordance with this difference in the nature of proprietary rights 
the Law of Property is divided into the Law of Things (which is 
concerned with real rights) and the Law of Obligations (which is 
concerned with obligatory rights). 

Within the sphere of private law, however, proprietary rights do 
not always appear separately. A person's property is affected in its 
entirety both by the position he occupies in his family, and by its 

• Translator’s Note. The term * real rcchte.’ Ai to the term * obligatory 
righti* will be used throughout in the rights,* see infra, Translator's note to 
*«nse as here defined, i.c. in the distinc- ( 60. 
rive sense of the German term * Sachen- 



THE SYSTEM OF PRIVATE LAW 


165 

devolution on his death. Not only does the family affect the § 20. 
property of the individual during his life, but to the family is due 
the fact that, even after his death, his property continues to exist as 
a living whole (infra, § 108). The rules on these subjects are com- 
prised in the Iaw of the Family and the Law of Inheritance 
respectively. Family Law is concerned with the effects which the 
position of an individual in his family produces on his property. 

The I>aw of Inheritance is concerned with the effect of death on the 
property of the deceased. With the rules relating to the legal effects 
of family relations upon property (‘Applied Family Law 1 ) are con- 
nected the rules on the family relations themselves (‘ Pure Family 
I aw’): it is here we find the point of contact between the rules of 
private law regulating the family and the rules of private law 
regulating property. 

The system of Private law thus consists of three great departments : 

1. the I -aw of Persons, being the law of proprietary capacity; 

2. the I aw of Things and Obligations, being the law of property 
with reference to its constituent parts ; 

3. the I aw of Family and Inheritance, being the law of property 
viewed in the aggregate,— this department being closely bound up 
with the existence and organization of the family. 

The law’ of property in reference to its constituent parts, i. e. the 
law of things and obligations, which is usually called the law of 
property simply (in the narrower sense of the term), should be 
preceded by a general part, dealing with those principles which are 
equally applicable to all proprietary rights. Thus we have the 
following arrangement : 

I. The Iaw of Persons, or the law of the subject of property. 

II . The Iaw of Property, or the law of the constituent parts of 
property. 

1. General part 

2. The Iaw of Things. 

3. The Jaw of Obligations. 

III. The Iaw of Family and Inheritance, or the law of the 
aggregate of property. 



1 66 


THE INSTITUTES 


29. i. The Law of the Family. 

2 . The Law of Inheritance. 

Running through all the details of exposition, we shall find this 
one fundamental idea, that private law is the law of property, but 
that the law of property is, to this day, inextricably bound up with 
the law of the family. 



BOOK I 

THE LA W OF PERSONS 

§ 30 . The Conception of a Person and the Kinds thereof. 

To be a ‘person,’ within the meaning of private law, is to § 30 . 
be capable of holding property, of having claims and liabilities. 

A person, then, in the sense of private law, is a subject' endowed 
with proprietary capacity. 

We distinguish, in the sense of private law, two kinds of persons : 
first, natural, and secondly, juristic persons. A ‘natural person' is 
a human being with proprietary capacity. A ‘juristic person’ is 
a subject other than a human being which is invested with pro- 
prietary capacity (e. g. the state, a municipality). 

This distinction between two kinds of persons means practically 
a distinction between two kinds of property. 

The property of a Jjiatural ’ person — that is, of a single human 
being — serves the purposes of that person : it is the exclusive 
property of a single individual ; in a word, it is private property, 
in the fullest sense of the term ; it exists for this particular person 
alone, and for no one else ; it is ivithdrawn from all other persons. 

It is against property of this kinc^— private property, or the property 
of * natuqr^persons— that the attacks on property are directed, such 
attacks, for example, as find expression in the cry, ‘la propri&e e’est 
le vol.* But it is the greatest of fallacies to imagine that there is 
any real conflict between private property and the common interests 
of all. The effect of private property is, no doubt, to withdraw 
something from the common store : but what private property takes 



i68 


.THE INSTITUTES 


§ 30. away it gives back an hundredfold. Private property is the founda- 
tion upon which every free, self-contained individuality is built up. 
To realize such an individuality in oneself is the aim of every human 
being; to bring forth individualities is the destination of the history 
of mankind. Every nation depends on its free men for the suftply 
of that force which advances and uplifts the national life, carrying 
the whole community along with it. Private property helps to 
create the atmosphere in which liberty thrives, and without liberty 
it is impossible for the individual members of a community to put 
forth to the full their moral, intellectual, and material powers, and 
impossible, consequently, for the community as a whole to bring its 
development to a triumphant issue. Private property does not exist 
solely in the interests of the individual ; it is the strong rock upon 
which the life and the welfare of the whole nation are firmly 
founded. 

With regard to the property of a juristic person, on the other 
hand, if we look at it in its practical bearings, we shall see that, 
from its very inception, it never exhibited that individualistic feature 
which is so characteristic of the property of single persons. The 
juristic person— be it the State, a community, a university, or any 
other— represents a particular form which society assumes in order to 
claim its share of property for the purposes of the common good. 

•In its practical results, the property of a juristic person is social 
property. And being social property its benefits accrue — as a rule, 
at any rate— to all, either directly or indirectly ; as far as its material 
effects r.:e concerned, it is not private projicrty, not, at least, in the 
sense in which the property of a natural person is private proj>crty. 
In its essential nature, the property of juristic persons is public 
property, as opposed to the property of natural jiersons, which is 
private property in the strict sensq^of the term. 

It is not right that individuals should appropriate all this world’s 
goeds to their own exclusive use. Inequality in the distribution of 
economic wealth is an unavoidable incident of any system of private 
property-- though it doer, not follow that the inequality is incapable 
of adjustment -and dark indeed are the shadows which private 
property has consequently cast on the lives of the people. Hut 



THE LAW OF PERSONS 


169 


the evils in question can be mitigated, and one way of mitigating § 30 . 
them is to make a certain proportion of the national property social 
property by vesting its ownership inalienably in the community as 
a whole, in the entire body of its members. What this proportion 
should be is the question on which the long struggle of history 
turns. It is accordingly with a view to softening the evils of private 
property that juristic persons are opposed to natural persons. Society 
revolts against the tyranny of the individual. The principle of indi- 
vidualism requires to be constantly supplemented by the principle of 
socialism, and in the same way private property has to b & supple- 
mented by public property. Natural persons alone cannot satisfy 
the needs of humafl society : it is in juristic persons that they find 
their necessary complement. 



CHAPTER I. 


Natural Persons. 

§31. Introduction . 

§ 31 . The lafo regards a human being as a person — that is, as a subject 
capable of legal rights— from the moment of completed birth only. 
The maxim ‘ nasciturus pro jam nato habetur, quoties de commodo 
ejus agitur,’ merely means that the capacity of a natus to have rights 
is, in certain circumstances, dated back to a moment preceding his 
actual birth and is determined by reference to a time when he was 
still en venire sa mere (nasciturus). This rule is particularly important 
for the law of inheritance. The estate of a deceased person can only 
vest in some one in being at the time when it devolves ; but it is not 
necessary that he should be actually born, it is enough if, at the time 
in question, he has been conceived. In other words, a succession 
cannot devolve on a nasciturus as such, but only on a natus, though 
it may happen that, at the moment when the death occurred, the 
natus was in fact only a nasciturus. Accordingly the estate of 
a father will devolve on his child, even though the child is only 
born after the father’s death. 

L. 7 D. de statu horn. (1, 5) (Paui.vs) : Qui in utero cst, perinde 
ac si in rebus humanis esset, custoditur, quotiens de com 
modis ipsius partus quaeritur, quamquam alii, antequam 
nascatur, nequaquam prosit. 

German Civil Code, § 1 : T he capacity of a human being to have 
rights commences at the moment of completed birth. § 1923 : No 
one can succeed to the estate of a deceased person unless he was 
alive at the time v hen such estate devolved. A person who at the 
time of devolution was not actually born, but was only en ventre sa 
mere, is deemed to have been born prior to the devolution. 



THE LAW OF PERSONS 


171 

The principle of modern law is that every human being is a person ; § 31 
that is to say, every human being as such is capable of legal rights, 
is, in a word, free; and as far as private law is concerned, one 
person's freedom— that is, his capacity of having rights— is prima 
facie as good as another's. But modern law has only reached this 
position after a long previous development. Roman law still occupies 
a much more primitive stage. 

According to Roman law there are human beings who are not free 
(viz. slaves), human beings, that is, whom the law regards as things 
and who, for that reason, cannot be the subjects of rights of their own, 
but can only be the objects of rights of others. And even aH between 
free men, Roman law recognizes different degrees of legal capacity 
which vary according to a person’s civic rights and the position he 
occupies in his family. Among human beings the theory of Roman 
law accordingly distinguishes three kinds of 1 status,' or degrees of 
legal capacity: the status libertatis, according to which men are 
either free or slaves ; the status civitatis, according to which freemen 
are either Roman citizens or aliens ; the status familiae, according 
to which a Roman citizen is either a paterfamilias or a filiusfamilias. 

L. 1 1 D. de cap. min. (4, 5) (Paulus) : Tria sunt quae habemus : 
libertatem, civitatem, familiam. 

§ 32 . Slavery. 

Slavery destroys the dignity of man and places him, in the eye of § 32 . 
the law, on a level with the beasts. A slave, therefore, is a human 
being who is, legally, not a person, but a thing. He is exposed to 
the arbitrary power of his master. His master owns him, has 
dominium over him, in other words, has power over the body 
of the slave. But a slave is none the less the bearer of a 
personality, and was to some extent acknowledged as such by 
Roman law. Thus he is capable of concluding juristic acts, of 
managing, independently, certain property of his master's, called 
‘peculium’ (§ 88), and of committing delicts. According to the 
theory of the classical jurists, he may even incur a contractual 
obligation, though only a ‘natural' one, i.e. the creditor cannot 



172 


THE INSTITUTES 


§ 32 . proceed against him by action (§ 84, initio) \ Thus the slave has 
a will which is allowed to produce certain legal effects in accordance 
with the principles of law just stated. In point of law, however, the 
will of the slave and, in fact, his mental faculties in general, operate, 
on principle, where they operate at all, for the benefit of his master. 
The master does not only own his slave as he does a thing, but he 
has besides a power over his slave similar to that which he possesses 
over his son, namely, the ‘dominica potestas,’ i. e. a power not merely 
over the body, but over the will of his slave. Whatever a slave 
acquires, he acquires for his master. 

During the Empire several laws were enacted subjecting the 
master’s power over the body of his slave to legal restrictions, with 
a view to protecting male slaves from cruel treatment and female 
slaves from prostitution. 

Within the sphere of the jus sacrum a slave was, from the very 
outset, and within certain limits, acknowledged as a person. Thus 
he can validly bind himself to the gods by vow (votum) and oath ; 
the grave of a slave is a ‘locus religiosus' ($ 59, la), and slaves 
appear as members of religious associations 1 2 . 

Caj. Inst. I § 52: In potestate itaque sunt servi dominorum. 
Quae quidem potestas juris gentium cst : nam apud omnes 
peraeque gentes animadvertere possumus, dominis in servos 
vitae nccisque potestatem esse: et quodcumquc per 
servum adquiritur, id domino adquiritur. 

L. 1 § 8 D. de off. praef. urbi (i, 12) (Uu'ian.): Quod autem 
dictum est ut servos de dominis querentes pracfectus audiat, 
sic accipiemus : ... si saevitiam, si duritiam, si famcm, qua 
eos premant, si obscenitatcm in qua cos compulcrint vcl 
compellant, apud praefectum urbi exponant. Hoc quoque 


1 The master is liable to a n< 
action for the delict of his slave (§ 
5) ; but if the slave is manumitted 
may be sued himself. The conlrac 

a slave never renders the slave him 
liable to an action, not even after 
» ““bumifed, but the maste 
liable, if the requirements of an ai 
adject, cia (5 88) have been Zu 
Nevertheless. like other natural oMi 


tions, so tlic naturalis obligatio servi 
may lx? validly secured by sureties or 
discharged by |K»ymcnt ( he. the surety 
may l>e sued on the guaranty, and money 
paid under the contract cannot be re- 
covered. 

" ( A - Per nice, SiHun&btrithtt tit? 
nerlintr Aktidemit dtr Win., vol. li. 
(1886, p. 1173 ft 



THE LAW OF PERSONS 


m 


officium praefecto urbi a d. Severo datum est, ut mancipia § 32 . 
tueantur, ne prostituantur. 

Gaj. Inst. I § S3 : ... ex constitutione imperatoris Antonini qui 
sine causa servum suum occiderit, non minus teneri jubetur 
quam qui alienum servum occiderit. Sed et . . . praecepit 
ut, si intolerabilis videatur dominorum saevitia, cogantur 
servos suos vendere. 

Slavery may originate in the following ways : 

(1) by birth, if the mother is a slave when the child is born. 

But if she were free for any period during gestation, however short, 
it is sufficient to make her issue free ; 

(2) by the fact of a free man becoming a prisoner among a hostile 
people ; 

‘ (3) by condemnation on a criminal charge (a ‘servus poenae’; 
for example, if a man is condemned to the mines or to be killed 
by wild beasts). 

A slave becomes free by manumission, i.e. by a positive grant of 
liberty on the part of his master. The mere abandonment, or 
‘dereliction* of a slave, would not make him free and convert him 
into a ‘person,’ but would only make him an ownerless slave who 
would be treated as a res nullius and, as such, might become the 
property of anybody by ‘ occupatio ’ (cp. § 64). 

Early Roman law developed a variety of forms of manumission : 

(1) Manumissio vindicta, the oldest form, is a form of manu- 
mission by means of in jure cessio (supra, pp. 58, 59). A third party, 
in the presence of the praetor, lays his rod (vindicta) on the slave 
and at the same time claims him as free (vindicatio in libertatem). 
Then the master, also laying his vindicta on the slave, declares his 
intention to enfranchise the slave, and the praetor, by his ‘addictio,* 
confirms the master’s declaration \ Subsequently the forms of an 
action at law were dropped and all that remained was the declara- 
tion by the master, in court, of his intention to enfranchise his 
slave. 

* Cp. Karlowa, Rom . RG„ vol. ii. wissenschaft, revised by Wissowa, 1892, 
p. 133; Wlassak, in Pauly’s Real-En - sub verbo ‘ Addicere.’ 
cyklopiidit dcr klassischen A (tertians- 



I 74 


THE INSTITUTES 


\. Ulp. tit. i § 7 : Vindicta manumittuntur apud magistratum populi 
Romani, velut consulem praetoremve vel proconsulem. 

L. 8 D. de manum. vind. (40, 2) (Ulpian.) : Ego cum in villa 
cum praetore fuissem, passus sum apud eum manumitti, etsi 
lictoris praesentia non esset. 

(2) Manumissio censu : the slave declares in person to the censor 
that he is a civis Romanus sui juris, and the censor, accepting this 
declaration, enters his name on the registers of citizens, and thereby 
makes him free 4 . 

(3) Manumissio testamento, i.e. by means of a direct testamentary 
grant of liberty. The testator himself enfranchises the slave by his 
will at the moment when the latter becomes operative. The slave 
thus becomes free by virtue of a juristic act, viz. the will. He is 
accordingly the freedman of a deceased person, namely the testator, 
and is for this reason called ‘ libertus orcinus.' It is different if the 
bequest of liberty is indirect, i. e. if the master merely imposes a trust 
on his heir to manumit the slave (‘fideicommissaria libertas’). In 
such a case the slave does not become free by virtue of the will, in 
other words, he does not, as in the former case, become free, ipso 
jure, at the moment when the will becomes operative, but only when 
the heir carries out the trust and performs the act of manumission 
(e. g. vindicta). The slave is then the freedman of a living person, 
namely the heir, and has been manumitted, not testamento, but 
vindicta, or censu, or in ecclesia, or by some informal method, as 
the case may be. 

Ulp. tit. 2 § 7: Libertas et direeto potest dari hoc modo: 
LIBER ESTO, LIBER SIT, LIBERUM ESSE JUUEO, Ct per fldei- 

commissum, ut puta: rogo, fidei committo hekeuis mei 
ut Stichum servum manumittat. § 8 : Is qui direeto 


* Cp. Degen kolb, Die Befreiung 
durch Census (in' the Tubinger Festgahe 
fur Jkcring, 1892, Asarulc 

this transaction required the jussus do- 
mini, but ihe jussus did not, in point of 
form, constitute any part of the legal 
act itself. Formally speaking, the slave 
obtained his freedom by his own act, 
viz. by hi s < professio* of citizenship, 
which the censor accepted. As yet 


neither the mnnumi»sio censu nor the 
manumissio vindicta (which took the 
form of an action at law) was regarded 
as a mode of obtaining freedom by 
juristic act - a circumstance which \* 
connected with the fact that 1 originally 
the whole institution of manumission 
was unknown.* Dcgcnkolb, p. 151. Cp. 
supra, p. 58, n. 4. 



THE LAW OF PERSONS 


x 75 


liber esse jussus est, orcinus fit libettus ; * is autem cui per § 32 . 
fideicommissum data est libertas, non testatoris, sed manu- 
missoris fit libertus. 

Constantine’s legislation added a fourtli mode, viz. manumissio in 
ecclesia: the master makes a declaration in the presence qf the 
bishop and congregation of his desire to enfranchise the 'slave, and 
the slave is thereby manumitted. 

Informal manumissions were void by the civil law. If, however, 
a slave had been informally manumitted, the praetor would protect 
him in the enjoyment of his freedom, and would, therefore, in such 
cases, refuse the master the vindicatio in servitutem. The praetor 
bestowed his protection in the same way on those whose manu- 
mission had, indeed, been properly carried out, but whose master 
was only a bonitary owner, i. e. a person whose ownership in the 
slave was only acknowledged by the jus honorarium (§ 62). The lex 
Junia Norbana 6 subsequently provided that all such freedmen as 
enjoyed their liberty tuitione praetoris should be legally free, but 
that their freedom should only be of the kind enjoyed by Latini 
coloniarii. Hence such freedmen were known as Latini Juniani 
(p. 182). Justinian, finally, having done away with the distinction 
between bonitary and quiritary ownership (§ 62), granted to freed- 
men who had been informally manumitted the same kind of freedom 
as that enjoyed by freedmen who had been formally manumitted, 
to wit, the freedom of a Roman citizen, provided only that the 
declaration by the master of his intention to enfranchise— whether 
made in writing (per epistulam) or by word of mouth (inter 
amicos)— were attested by five witnesses, or else that the slave had 
attended his master’s funeral ‘ pileatus,’ i. e. wearing the pileus or 
felt cap which was the badge of the freeman. 

L. un. § 1 C. de lat. lib. toll. (7, 6) (Justinian.): Sancimus 
itaque, si quis per epistulam servum suum in libertatem 
producere maluerit, licere ei hoc facere, quinque testibus 

* The year 19 A.D. is usually given u. Muther’s Jahrbiichtr d. gemeinen A\, 
as the date of this lex, but both its date vol. ii. p. 348 ; Schneider, ZS, d. Sou. 
and name (was it only called lex Junia ?) St,, vol. v. p. 225 AT., vol. vii. p. 31 ff. 
are doubtful. Cp. Mommsen in Bekker’s 



176 


THE INSTITUTES 


32 . * adhibitis, qui post ejus litteras . . . suas litteras supponentes 
fidem perpetuam possint chartulae praebere. Et si hoc 
fecerit . . . libertas servo competat quasi ex imitatione codi- 
cilli delata, ita tanicn ut et ipso patrono vivente et libertatcm 
et civitatem habeat Romanam. § 2 : Sed et si quis inter 
amicos libertatem dare suo servo maluerit, licebit ei, quinque 
similiter testibus adhibitis, suam explanarc voluntatcm: et 
. . . servi ad libertatem producantur Romanam <]uasi ex 
codicillis similiter libertatem adipiscentcs. § 5 : Sed et qui 
domini funus pileati antecedunt ... si hoc ex voluntate fiat 
testatoris vel heredis, fiant ilico rives Romani. 

A person who has been duly manumitted in accordance with the 
law (libertus), becomes a Roman citizen, without, however, obtaining 
the full rights of a citizen. He has indeed the suffrage, but he can 
only exercise it— -during the Republic at least in one of the four 
tribus urbanae (where lie is thrown together with the whole mass of 
the city populace), and is thus debarred from the more select tribus 
rusticae. He is also excluded from the jus honortim, or c apacity for 
office, and is disqualified from entering the senate, the council (curia) 
of a municipium, and the legion. The stigma of his unfree parentage 
still adheres to him. Thus, though in matters of private law he 
shares all the rights of a Roman < iti/en (jus commercii and jus 
connubiij*, nevertheless he is denied lull participation in matters 
of state. 

Manumission is a kind of new birth. The master (patronus) 
therefore stands to his (reedman in a relation analogous to that 
between father and son. The patron, as such, is entitled, as 
against his libertus, to a fathers rights of succession and guardian 
ship. He has the right of moderate chastisement >'le\is coercitiu). 
He lias the same claim to be treated with respect as be has against 
h.s son. He can claim to be supported by the libertus, if be falls 
into poverty. He is, lastly, entitled to certain services on the part 
of tne freed man, which he can, if necessary, enforce by action, 


1 i-c Tulia and the lex Papia 
Poppara, however, forbid intermarriages 
between senators 'and their children) on 
the one h .nd, and freedmen on the other 


[ infra, $ 99 . '1 hr jxidtinn of ficcdmcn 

is discussed by Monuntcn, Kvm. Stoats- 
rtiht i vol. in. p. 4iO ff. 



THE LAW OF PERSONS 


177 


provided only the freedman had promised them after his manu- § 3 
mission and in a manner not derogatory to his liberty. 

On the death of the patron the jura patronatus devolve on his 
children. But the children of a libertus are ingenui. 

A freedman can be declared an ingenuus, or freeborn man, by 
imperial decree (the so-called ‘ natalium restitutio ’). The effect of 
this gift is to extinguish all the other restrictions on his liberty 
together with the relation of patronatus. The bestowal by the 
emperor of the so-called ‘jus aureorum anulorum,’ i.e. the right 
to wear a golden ring, the mark of equestrian rank (which under 
the Empire was worn by all freeborn persons), also confers full 
freedom, but leaves the rights of the patron undisturbed. By 
a general enactment (Nov. 78, cap. 1. 2. 5), Justinian conferred on 
all freedmen the jus aureorum anulorum and the natalium restitutio, 
the latter, however, on condition that the patron waived his patronal 
rights. Under this new law of Justinian, then, every freedman, as 
such, enjoyed complete freedom, l or the public law of the Byzantine 
despotism in which the ancient civic liberty had disappeared was 
indifferent to the stigma of unfree parentage. 

L. 7 § 2 I). de injur. (47, 10) (Ui.piax.): Etenim meminisse 
oportebit, liberto adversus patronum non quidem semper, 
verum interdum injuriarum dari indicium, si atrox sit injuria 
quam passus sit, puta si servilis ; ceterum levem coherci- 
tionem utique patrono adversus libertum dabimus. 

L. 1 § 5 I). quar. rer. act. (44, 5) (Ui.piax.): Quae onerandae 
libertatis causa stipulatus sum, a liberto exigere non 
, possum ; onerandae autem libertatis causa facta bellissime 
ita defmiuntur, quae ita imponuntur ut, si patronum libertus 
offenderit, petantur ab eo, semperque sit metu exactionis ei 
subjectus, propter quern metuni quodvis sustineat patrono 
praccipientc. 

Already towards the close of the Republic the freedmen had 
begun to make’ themselves felt as a large class whose existence 
was not exactly conducive to the interests of the state. For the 
slaves that the masters got rid of by means of manumission were 
not always the best of their class, and, in any case, a large admixture 

N 


SOHM: LEDLIK 



178 


THE INSTITUTES 


§ 32. of foreign blood and many foreign elements were being imported into 
the community of Roman citizens by the crowds of Greek, Syrian, 
Phoenician, Jewish, and African slaves. Hence it was that certain 
measures were resorted to which aimed at restricting the practice 
of manumission. Thus in the year 4 a. n. the lex Aelia Sentia 
enacted, first, that such slaves as had been convicted of a crime 
should, on manumission, become, not Roman citizens, but only 
dediticii, i. e. homeless aliens (p. i8i\ who were forbidden to reside 
within Rome and were for ever debarred from acquiring the civitas. 
The same law enacted, secondly, that no manumission should have 
full validity, unless the master were at least twenty, and the slave at 
least thirty years old ; failing which, a complete legal manumission 
could only he effec ted vindicta (in other words, with the co-operation 
of the magistrate^ anti only after the consilium, i. e. the legal advisers 
of the magistrate 7 , had satisfied themselves that there were special 
reasons why the manumission should be allowed. Thirdly, the lex 
Aelia Sentia enacted that all manumissions carried out by an 
insolvent debtor to the injury of his creditors /in fraudem crcdi 
torum) should be void. Another law. the lex l'ufia ('amnia, which 
fixed the maximum of testamentary manumissions within certain 
limits (ex tribus servis non plures quam duos, usque ad x dimidiam 
partem manumittere concessit. At.), was repealed by Justinian 
(tit. I. 1, 7 : de lege Fufia Caninia sublata). 


Xotk. Relationships akin to Slavery. 

I. ‘Statu liber’ is one whom his master has manumitted by his will, 
subject however to a condition precedent or the lapse of a specified time. 
Till the condition happens or the appointed day arrives, he is, in the eye 
of the law, a slave. Put the fulfilment of the condition or the ariival of 
the day converts him ipso jure into a free man. even though meanwhile 
he may have become the proper ty of another man to whom the heir may 
have alienated or pledged him, or who may have a« quired him by 

7 it vjk, m any case, the usual prac- the same time laying clown rules for the 

tice 1'jr the magistrate to take the advice composition of sue h concilium : Romne 

of a consi .urn, and in regard to this cjuiiicjuc senatores rt quimjue equites 

particular case the lex Aelia Sentia Kotnani, in provinces viginti rccipera- 

marle it compulsory on him to do so, at tores civcs Romani tit. 1 1 1 3)- 



THE LAW OF PERSONS 


179 


usucapio (seu alienetur ab herede seu usu capiatur ab aliquo libertatis § 32 . 
condicionem secum trahit. Ulpian. tit. 2 $ 3). 

2. 1 Bona fide serviens * is the name given to a freeman who lives in the 
bona fide belief that he is the slave of his supposed master. As long as he 
remains in this condition, his juristic acts are governed by the same rules 
as those of slaves. 

3. i Esse in libertate 1 is a term applied to a slave who is in actual 
enjoyment of liberty. As long as he remains in this state, his acts are 
governed by the same rules as those of freemen. 

4. ‘ Clientes* were, in the early law, unfree men who had risen to the 
position of vassals, or dependants, of a patrician gens. They were bound 
to certain payments and services, and also to private attendance on their 
master ipatronus) in war. They were subject to the discipline and family 
power of the patron, and their sole protection lay in the fiduciary nature 
of the relations which subsisted between patron and client (vassal) and 
which operated within the jus sacrum. These clients subsequently 
developed into the Roman plebs (supra, p. 40 ff. ). 

5. 1 Coloni ’ are the villeins of the later Empire. Though personally 
free, they are attached to the soil, glebae ascripti, i.e. they may not quit 
the land and arc part and parcel of the estate. They bear a strong 
resemblance to the serfs of later times. Cp. 1 . 1 § 1 C. de colon. Thra- 
censib. 11, 52 (Thkohos. 11 ) : Licet condidonc videantur ingenui, servi 
tamen terrae ipsius cui nati sunt aestimentur nec recedendi quo veiint 
aut permutandi loca habeant facultatem, sed possessor eorum jure utatur 
et patroni solliciludinc et domini potestate. 


§ 33. Civcs and Percgrini . 

In our own times the importance of citizenship is confined to § 33 . 
matters of public law, such as the franchise, the liability to taxa- 
tion, &C. Private law has separated itself from public law, the 
principle of modern private law being that all men are legally equal. 

In ancient law, however, citizenship was, at the same time, a most 
decisive element in determining the extent of a persons private 
rights. In its older forms private law meant a law that applied 
exclusively to the citizens of a particular state, that is, it was a civil 
law, in the literal sense of the word. Thus the specifically Roman 
law, which was known as the jus civile, was a law, not for everybody, 
but only for Roman citizens. 

A civis is a Roman citizen, i.e. a man who, in the eye of Roman 

N % 



i8o 


THE INSTITUTES 


$ 33. law, has full legal capacity in matters of public law (jus suflragii and 
jus honorum) and who alone has full legal capacity in matters of 
private law (jus commercii and jus connubii). His capacity is 
recognized not merely by the jus gentium, but also by the jus civile. 
He can contract a Roman marriage, make a Roman will, own 
property ex jure Quiritiura, &c. A peregrinus, on the other hand, 
is a person who, though not a citizen of Rome, is nevertheless 
(unless he be a dediticius) a citizen of another community. He is 
completely shut out from the public rights of a Roman citizen, and, 
in regard to private rights, his capacity is acknowledged by the jus 
gentium only unless indeed he has been expressly granted the 
jus commercii and jus connubii by means, say, of an international 
treaty (pp. 68, 69V A peregrinus, as such, cannot therefore acquire 
true Roman ownership (dominium ex jure (Juiritium), nor can he 
have the patria potestas or marital power 1 mantis) or tutela (guardian- 
ship) of a Roman. He cannot acquire property by mancipatio; he 
cannot execute a Roman will; he cannot be made heir, legatee, or 
testamentary guardian under the will of a Roman citizen, nor can he 
even take part as a witness in any such juristic acts of the Roman 
civil law. The jus commercii and jus c onnubii, in other words, full 
legal and commercial capacity in accordance with the Roman jus 
civile (in the narrower sense of the word; is, on principle, exclusively 
reserved for the Roman citizen. 

It would, however, be a mistake to suppose that a peregrinus 
could not make a will or become a guardian at all, in other words, 
that for him all those legal acts and legal effects had simply no 
existence. On the contrary, he is fully qualified to make a will or 
acquire ownership, &c., in accordance with the law of his own 
community. Thus, for instance, if he is an Athenian citizen, he 
may have the parental and marital power of Athenian law, he may 
make an Athenian will, and be appointed lufir in the will of an 


1 T n the oldest times a non-i in/en 
was .egarded as destitute of legal ijgfr-., 
the onlj exception being made in l.tvi.ur 
d 1 W to.,’ ,.e. citizen-. of a -.fate allud 
Vo l.omc by a treaty of friend hip 
(I meant originally a 
Such absolute sightlessness, however, 


never existed except in themy. It wa* 
(Inis that, in conT.jueiue of the develop' 
iiimt derailed almvc { $ iy, the non 
citizen, who at first had no rights at 
nil, came to acquire his legal iMpncitv 
under the jus gentium. 



THE LAW OF PERSONS 181 

Athenian citizen, and so forth. And just as an Athenian citizen is § 33. 
unable to make a Roman will and is shut out from the legal effects 
which such a will produces, so a Roman citizen is unable to make 
an Athenian will and is disqualified from acquiring any rights under 
such a will. This antithesis of mutually exclusive states and com- 
munities is a fundamental principle of ancient life. The citizen of 
each political community is fully qualified only within the confines 
of his own community, and upon his qualification as a citizen 
depends his full capacity in respect, not only of public, but also 
of private rights. It was, however, a natural consequence of the 
preponderance acquired by Roman law throughout the Roman 
empire that, in regard even to private lights, the possession of a 
special legal qualification according, say, to Athenian or Alexandrian 
law, should be deprived of much of its value. The result was that, 
as compared with Roman citizens, the foreigners found themselves 
virtually placed under disabilities in reference not only to public but 
also to private rights. And when the old idea of a local polity and 
a local citizenship came to be gradually superseded by the idea of 
an imperial polity and an imperial citizenship, the continuance of the 
existing state of affairs could not fail to be felt as increasingly harsh 
and unjust. It was here that the Emperor Caracalla took the 
decisive step of conferring the Roman civitas on all such peregrini 
as were members of some political community. The only peregrini 
left were the peregrini dediticii, i.e. aliens whose community had 
been destroyed and who had therefore no place which they could 
claim as their home and where they were entitled to reside. 

Midway between the citizens and non-citizens stand the latins. 
From the oldest times the Latin allies of Rome, i. c. the members of 
the town-communities of Latium, had had the same private law and 
marriage law as the Romans. It was, in fact, Latin private law 
and I .at in marriage law, and Roman law was merely one particular 
manifestation of it. In their capacity, then, as allies of Rome who 
were governed by the same law, the Latins also enjoyed the jus 
commercii and jus connubii in Rome. Rut of course they did not, 
in early times, possess the public rights of a citizen (jus suffragii and 
jus honorum) in regard to the Roman community. The effect of 



1 82 


THE INSTITUTES 


§ 33. the powerful interest, however, which soon came to attach to the 
public privileges of a Roman citizen was that (in consequence of the 
Social War) first the I^atin allies and then all the Italian communities 
were granted the Roman civitas, including, therefore, the public 
rights of a Roman citizen. Henceforward there are no more Latins 
in the old sense of the word, i.e. persons who are horn Latins, but 
only, in the first place, Latin colonists, ‘Latini coloniarii,’ i.e. the 
free inhabitants of a colony founded with the jus Latii, or of a 
country upon which the jus Latii has been conferred (Vespasian, for 
instance, bestowed the Latin franchise on the whole of Spain) 2 ; and, 
in the second place, Latin freedmen, ‘Latini Juniani’ (v. p. 175). 
These two classes of Latins of the new and artificial type persons 
who have been made latins only possess the jus commereii, and 
not the jus connubii, and the Latini Juniani are restricted even with 
regard to the commcrcium : they only have the commercium inter 
vivos, not the commercium mortis causa. A Latinus J unianus can 
neither make a will nor can he take anything under a will. When 
he dies, his property reverts to his master as though he had remained 
his slave all the time. 

The privilege conferred byCaracalla included the Latini coloniarii. 
From the very outset, the grant of the jus Latii was intended to 
prepare the I-atin communities and districts for receiving the full 
Roman civitas. Thus after Caracal la the only Latins left are the 


1 There are two forms of the jus 
I atii, the 1 Latium minus/ which is the 
older and the usual form, and the 
‘ Latium majus/ which probably only 
dates from Hadrian. In the conirnuni- 
ties which have the latium minus, only 
the officials of the community acquire 
the Roman civitas; in the communities 
which have the Latium majus, it is ex- 
tended to the decuriones, or members 
of the communal council . The object of 
introducing the majus latium was to 
encourage applications for the office of 
decur*one«, the heavy expenses and re- 
spomibili’ es connected with which had 

made it difficult— ever since the begin- 
ning of the lecond century— to obtain 
the requisite number of persons ready to 


act. <»AJ. I. «/» ; O. Hirsclifcld, /ur 
(iesihu htc da latinise hen AVi ht> Fest- 
schrift tur d.archaolog. Insmut in Rom, 
Vienna, 187*; . On the other hand, the 
bestowal »>f the jus Italicum on a com- 
munity of civcs ;a colony or a muni 
ripium) means that the community in 
question thereby acquires the privilege* 
of a colonia Italica :i.c. ari old colony 
of Roman citizens endowed with full 
legal fights , that its soil ii therefore 
exempt from the land-tax and capable 
of quiritary ownership, in other words, 
is placed on the same footing as the 
fundus Italicus (cp. $ 64, ii). I leister - 
bergk, Name und B tariff da jus Itali • 
cum (1885;. 



THE LAW OF PERSONS 183 

I^atini Juniani, who, not being members of any political community, § 33 . 
were excluded from the grant of Roman citizenship. 

It was Justinian’s aim to sweep away the entire antithesis between 
jus civile and jus gentium. With a view to this purpose he formally 
abolished the Latina libertas of the Juniani and the peregrina 
libertas of the dediticii —conditions which had long lost all practical 
importance both in private and in public law; in the former, in 
consequence of the fusion of jus civile and jus gentium; in the 
latter, in consequence of the rise of absolutism and the annihilation 
of the political rights incident to citizenship. It must not however 
be supposed that Justinian adopted all at once the modern principle 
that, for purposes of private law, all men enjoy equal capacity. For 
according to the law of the Corpus juris foreigners— that is, persons 
who were not members of the Roman empire -continued, as before, 
to be capable of such rights only as belonged to the jus gentium, 
and even a member of the empire might, if he were sentenced for 
a crime, forfeit his civic rights and find himself restricted to rights 
conferred by the jus gentium 3 . Hut apart from the case of con- 
demned criminals, the old legal distinctions disappeared as between 
subjects of the empire, and were finally displaced by those well- 
marked social distinctions of class by which the population had long 
been divided. On principle, every free subject of the Roman empire 
was now ipso facto a Roman citizen. From a legal point of view’, 
there remained, as between subjects of the empire and apart from 
exceptional cases, but a single antithesis, viz. that between freemen 
and slaves. The principle of the distinction between citizens and 
non-citizens had vanished, as far as the subjects of the empire were 
concerned. Local citizenship made way for imperial citizenship, as 
such. And, at the same time, this new imperial citizenship found 
its legal counterpart in an imperial law, uniform in all its parts. 
Corresponding to the universal citizenship of all within the Roman 
orbis terrarum, a universal law had been developed available for the 
world in general. 

3 L. 17 § 1 D. de poenis (48, 19L — tutionen des rim. Rechts (1894), p. 189, 

Cp. on the above topic Leonhard, Insti- and infra, bottom of p. 187. 



184 THE INSTITUTES 

33. Ulp. tit. 19 § s : Commercium est emendi vendendique in- 
vicem jus. 

Ulp. tit. 5 § 3 : Conubium est uxoris jure ducendae facultas. 

Gaj. Inst. I § 14: Vocantur autem percgrini dediticii hi qui 
quondam adversus populum Romanum armis susceptis pugna- 
verunt, deinde victi se de^iderunt. 

Gaj. eod. § 23 : Non tamen illis (i. e. the Latini Juniani) permittit 
lex Junia vel ipsis testamentum facere, vel ex testamento 
alieno capere, vel tutores testamento dari. 

(Jaj. cod. Ill § 56 : . . . admonendi sumus . . . cos qui nunc 
I^atini Juniani dicuntur, olim ex jure Quiritium servos fuisse, 
sed auxilio praetoris in libertatis forma servari solitos ; unde 
etiam res corum ])eculii jure ad patronos pertinero solita est ; 
postea vero per legem Juniani cos omnes quos praetor in 
libertate tuebatur liberos esse coepisse et appellatos esse 
Latinos Junianos; Latinos ideo, quia lex cos liberos perinde 
esse voluit atque si essent cives Romani ingenui qui ex urhe 
Roma in Latinas colonias dedueti Latini coloniarii esse 
coeperunt.— Leg is ita<jue Juniae latur . . . necessarium existi* 
mavit, lie benelicium istis datum in injuriam patronorum 
convertcretur, cavere ut bona eorum proinde ad manu 
missores pertinerent, ac si lex lata non esset : itaque jure 
quodammodo peculii ad manumissores ea lege pertinent. 


§ 34 . Paterfamilias and T'iliitsfamilias. 

84 . Every Roman citizen is either a paterfamilias or a filiusfamiliu'. 
according as he is free (homo sui juris) or not free from paternal 
power (homo alieni juris). Paterfamilias is the generic name for 
a homo sui juris, whether child or adult, married or unmarried ; 
filiusfamilias is the generic name for a homo alieni juris, whethei 
son or daughter, grandson or granddaughter, and so on. 

As regards public law the distinction between paterfamilias ami 
filiusfamilias is of no importance. A filiusfamilias, provided he ha* 
?U other necessary qualifications* is as much entitled to vole in the 
< ornitia and to be elected consul as a paterfamilias. 

1 he effect of the distinction is confined to private law. True, 



THE LAW OF PERSONS 185 

filiusfamilias is entitled to the jus commercii and jus connubii as § 34. 
much as the paterfamilias, for he is as much a Roman citizen as 
the paterfamilias. By the civil law, therefore, the son can make 
contracts, acquire ownership 1 , be instituted testamentary heir, 
contract a valid marriage, &c. But whatever a filiusfamilias acquires 
he acquires for the paterfamilias. Whatever rights he acquires, be 
they rights of ownership or obligatory rights nay, the very marital 
power over his own wife and the paternal power over his own 
children vest not in him, but in his father. For according to early 
Roman law there exists in every Roman household but one owner- 
ship, one marital and one paternal power, viz. that of the pater- 
familias. It is only the debts of a filiusfamilias which accrue, not 
to his father, but to himself. In other words, a filiusfamilias has 
passive, but no active proprietary capacity. 

But during the Empire the filiusfamilias gradually acquired an 
active proprietary capacity. Soldiers were the first to obtain it. 
Whatever a filiusfamilias miles acquired as a soldier t bona castrensia\ 
he acquired for himself and not for his father. Public officials were 
the next to obtain the same privilege. Whatever a filiusfamilias 
earned in the civil service, or as an advocate, or acquired by gift 
from the emperor (bona quasi castrensia), belonged to himself and 
not to his father. The capacity to acquire property was ultimately 
extended to every filiusfamilias. Whatever a filiusfamilias acquires, 
not from his father, but from his mother or some stranger (bona 
adventieia), belongs to himself as owner, subject however to his 
father’s right to manage it, and subject also to his father’s usufruct 
therein. Thus, according to the law in Justinian’s time, the only 
person from whom the filiusfamilias is unable to acquire anything is 
his father. Whatever a filiusfamilias receives from his father remains 
in the ownership of his father, even though the latter may allow him 
to dispose of the property (pcculium profecticium). Cp. infra, § 101. 

L. 195 § 2 D. de V. S. (50, 16) (Ulpian.): Pater autem familias 

1 Thus, he may use mancipatio, but ouwership 1 in jure/ But according to 
not in jure cessio, because it was part the old law a filiusfamilias, being a homo 
of the procedure of in jure cessio (supra, alieni juris, is incapable of holding 
p. 58) that the party should claim ownership (v. infra). 



1 86 


THE INSTITUTES 


34. appellatur qui in domo dominium habet; recteque hoc 
nomine appellatur, quamvis (ilium non habeat: non enim 
solam personam ejus, sed et jus demonstramus. Denique 
et pupillum patremfamilias appellamus, et cum paterfamilias 
moritur, quotquot capita ei subjecta fuerint, singulas familias 
incipiunt habere; singuli enim patrumfamiliarum notnen 
subeunt. Idemque eveniet et in eo qui emancipate est: 
nam et hie sui juris effectus propriam familiam habet. 

Gaj. Inst. II § 87 : Igitur, quod liberi nostri quos in potestate 
habemus . . . mancipio accipiunt vel ex traditione nancis- 
cuntur, sive quid stipulentur vel cx aliqualibet causa ad- 
quirunt, id nobis adquiritur : ipse enim (jui in potestate 
nostra est nihil suum habere potent. 


§ 33 - Capitis Deminutio . 

35 . Capitis deminutio is the destruction of the * caput ' or legal 
personality. Capitis deminutio, so to speak, wipes out the former 
individual and puts a new one in his place, and between the old 
and the new individual there is, legally speaking, nothing in 
common. A juristic personality may be thus destroyed in one of 
three ways : 

(1) by loss of the status libertatis. This is the capitis deminutio 
maxima ; 

(2) by loss of the status civitatis. This is the capitis deminutio 
media (magna) ; 

(3) by severance from the agnatic family. This entails capita 
deminutio minima. 

Capitis deminutio maxima means the loss of a man s entire juristic 
personality. Capitis deminutio media and minima merely mean the 
loss of the particular juristic: personality which a man has hitherto 
possessed. 

To undergo capitis deminutio maxima is to forfeit one s liberty 
\ Roman civis may, like others, Income a slave, c. g. if he is con- 
demned for a crime, or if he falls 4 in potestatem hostium,’ that is, it 
lie passes into the captivity of a hostile people. If, however, a Roman 



THE LAW OF PERSONS 


187 


citizen returns from his captivity, he becomes, at the moment of his § 85 . 
return, a Roman citizen again and enjoys once more all the rights he 
had lost by his capitis deminutio in just the same manner as though 
he had never in fact lost them. He resumes his position as the 
paterfamilias of his children, the owner of his property, the creditor of 
his debtors, and so on. In short, he becomes the subject of all the 
legal relations which his captivity had extinguished % for him to the 
same extent as though he had never been a prisoner at all. This is 
the nature of the so-called ‘jus postliminii/ Let us suppose, how- 
ever, that the Roman civis in question does not return, but dies in 
captivity. At the time of his death he is clearly not a civis Romanus, 
but a slave. Is then the will which he executed at home, before he 
was taken prisoner, void or not ? And, to go a step further, since 
a slave cannot have any heirs, can he (the piisoner) have heirs or 
not ? All these difficulties were solved by the so-called 4 fictio legis 
Corneliae,' according to which a Roman civis, dying in captivity, was 
assumed never to have been actually taken prisoner at all, but to 
have died at the very moment of being so taken. 

§ 5 I. quib. mod. jus pot. solv. (1, 12): Postliminium tmgit 
eum qui captus est semper in civitate fuisse. 

L. 16 D. de captiv. (49, 15) (Ulpian.): Retro creditur in civitate 
fuisse qui ab hostibus advenit. 

L. 12 D. qui test. fac. (28, 1) (Julian.): Lege Cornelia testa- 
menta eorum qui in hostium potestate decesserint, perinde 
confirmantur ac si hi qui ea fecissent in hostium potestatem 
•non pervenissent ; ct hcreditas ex his eodem niodo ad unum- 
quemque pertinet. 

L. 18 1). de captiv. (49, 15) (Ulpian.): In omnibus partibus 
juris is qui reversus non est ab hostibus quasi tunc decessisse 
videtur, cum captus est. 

Capitis deminutio media (or magna) is loss of citizenship un- 
accompanied by loss of liberty; it occurs e.g. when a Roman 
citizen emigrates to a Latin colony. But in Justinian’s time, since 
every member of the Roman empire who was free was, at the same 
time, a Roman citizen, media capitis deminutio is only possible in 



1 88 


THE INSTITUTES 


§ 35 . the case of banishment, i. e. expulsion from membership of the 
empire \ 

§ 2 I. de cap. min. (i, 16): Minor sive media est capitis demi* 
nutio, cum civitas quidem amittitur, libertas vero retinetur. 
Quod accidit ei cui aqua et igni interdictum fuerit, vel ei 
qui in insulam deportatus est. 

Severance from one's agnatic family also operates as a capitis 
dcminutio (viz. minima), a destruction of ones personality. For it 
is in the family that the essence and force of a legal personality lie. 
To change one s family, therefore, is to change one’s personality ; 
it means the destruction of the old personality and the birth of 
a new one. 

A ‘family/ however, in the legal sense of the word, signifies, 
according to the civil law of Rome, something very different from 
what we are accustomed to associate with the term. by family 
we mean the aggregate of all persons who are connected by ties of 
blood-relationship, the aggregate of all members of one and the 
same stock, but a Roman family, within the meaning of the jus 
civile, consists of the aggregate of all those who belong to one 
and the same household , who are subject to one and the same 
‘domestic power’ (patria potestas), or at any rate would be thus 
subject, if the common ancestor were still living. This is what is 
called ‘agnatio.’ And the civil law recognizes no other kind of 
relationship but agnatio ; it knows nothing of cognatio or blood- 
relationship. Thus the family of the Roman civil law is the 
agnatic family (v. infra, § 91). A peculiar characteristic of thb 
agnatic family is that it can be changed, blood relationship cannot 
be destroyed, and a cognalic family, or family in the modern sense, 
does not admit of change, but a person can separate himself from 
an agnatic family, because he can separate himself from the house 
hold, i.e. from the community of those who stand under the same 
patria potestas. And this is what happens to a daughter who marries 
provided she thereby enters the marital (i. e. domestic) power of 

’ Cp. j . \t. Hartmann, Ik exilic a/ud dir Aar. A/., vol. ix. j». 42 ff. He port ;i 
Ac/uanos, Dissertatioinaufptralis 'Hero- tion is a particular form of banishment ; 
iini, ’887^. lhc same writer in the /S. cp. supra, p. 183. 



THE LAW OF PERSONS 


189 

her husband (‘ in manum conventio ’), or of the person under whose § 35. 
patria potestas her husband stands, though (as we shall see, § 92) 
such a result is by no means the invariable effect of a woman's 
marriage. Having passed from one patria potestas to another, she 
has thereby changed her family (her agnatic family, namely); she 
has changed her entire circle of relations (agnatic relations, namely) ; 
she has changed the household to which she belongs ; in a word, 
she has undergone a complete change of personality. The same 
thing happens to a filiusfamilias, when his father sells him into 
bondage (mancipium, § 101), or gives him in adoption (datio in 
adoptionem); and again to a person sui juris, when he suffers 
himself to be adopted by another (arrogatio) ; or lastly, to a filius- 
familias, when his father emancipates him from the paternal power 
(emancipatio). And it is to be noted that in spite of the fact that 
the emancipatus actually improves his outward position by becoming 
a paterfamilias instead of a filiusfamilias, he nevertheless undergoes 
capitis deminutio, because the rupture of his agnatic ties involves 
the destruction of his previous legal personality and the creation of 
a new one. 

Capitis deminutio minima, then, means the severance from one’s 
agnatic relationship, from one’s household, and it occurs in five 
cases, viz. in the case of ‘ mancipio dare,’ of 1 in manum conventio/ 
of ‘datio in adoptionem/ of ‘arrogatio/ and of ‘ emancipatio/ 

There were two further incidents of capitis deminutio minima 
which flowed as consequences from that destructive effect which it 
had in common with the other forms of capitis deminutio. First, 
it was* a rule of the civil law that capitis deminutio minima ex- 
tinguished the contractual debts of the capite minutus. The praetor, 
however, subsequently restored to the creditors their rights of action 
by means of in integrum restitutio. Secondly, capitis deminutio 
minima extinguished all personal servitudes to which the . capite 
minutus had been entitled, i.e. all such jura in re aliena as had 
belonged to him for life (infra, § 69, I). This latter rule was only 
abolished by Justinian. According to the law as laid down in the 
Corpus juris personal servitudes are only extinguished by capitis 
deminutio maxima and media. 



190 


THE INSTITUTES 


35. Gaj. Inst. I § 162 : Minima est capitis deminutio, cum et civitas 

et libertas retinetur, sed status hominis commutator. Quod 
accidit in his qui adoptantur, item in his quae coemptionem 
faciunt, et in his qui mancipio dantur quique ex mancipa- 
tione manumittuntur : adeo quidem, ut quotiens quisque 
mancipctur aut manumittatur, totiens capite dcminuatur. 

L. 11 D. de cap. min. (4, 5) (Paulus) : Capitis deminutionis tria 
genera sunt : maxima, media, minima ; tria enim sunt quae 
habemus : libcrtatem, civitatem, familiam. Igitur cum omnia 
hacc amittimus, hoc est libcrtatem et civitatem ct familiam, 
maximam esse capitis deminutionem. Cum vero amittimus 
civitatem, libertatem.retinemus, mediam esse capitis deminu- 
tionem ; cum et libertas et civitas retinetur, familia tantum 
mutatur, minimam esse capitis deminutionem constat. 

§ 36. Fxistiwationis Mi initio. 

36 . The term ‘honour’ refers, in the first instance, only to social 
relations. To be ‘ honoured ’ is to be allowed one’s full worth in 
society. Society treats those as entitled to honour who act in 
accordance with its views. The award or denial of honour, in othei 
words, of social worth, is the sanction by means of which society 
enforces on individuals not merely the commands of law and 
morality, but more specifically the decrees of mere usage which may 
conceivably run counter to law and morality. The particular kind 
of conduct which society requires from the individual assumes dif 
ferent forms in reference to the different sec lions into which soviet) 
is divided, and it is in this sense that we speak of the honour of a 
particular class, of military honour, professional honour, and so on. 

The effect which social relations and so< ial views produce upon 
the law finds expression in the legal rules concerning ‘existimatiu 
or ‘ civic honour.’ The law yields, to some extent, to the judgment 
pronounced by society and, in certain circumstances, im|K)ses legal 
debilities on persons whom society has declared to fall short of the 
LUmdard it requires. Civic, honour (in the legal sense) means full 
qualification in the eye of the law. Loss of honour (in the legal 
sense) means partial disqualification in the eye of the law. 



THE LAW OF PERSONS 


191 


The civic honour of a civis Romanus may be destroyed (con- § 38 . 
sumtio existimationis\ viz. by capitis deminutio maxima or media ; 
or it may be merely impaired (minutio existimationis). And it is in 
this last and narrower sense that the expression Moss of civic 
honour ’ is technically applied. Minutio existimationis may be de- 
fined as the impairment of a man’s civic honour which, without 
producing capitis deminutio (in other words, without destroying his 
previous personality), merely operates to diminish his personal 
qualifications in the eye of the law. 

In the Roman civil law, existimationis minutio only occurs: (1) 
in the cases determined by popular enactments 1 ; (2) in consequence 
of a reprimand from the censor. Rut here again the jus honorarium 
outstripped the civil law. Towards the close of the Republic the 
censor ceased to exercise his old functions and the vacancy thus 
created was supplied by the praetor. For the praetorian edict was 
concerned with persons whose civic dignity was impaired in so far 
as their disabilities in regard to judicial proceedings came into 
question. Thus the praetor in his edict enumerated those to whom, 
as persons of tarnished reputation, he would refuse the full jus 
postulandi, i. e. to whom he would deny the right to make applica- 
tions to the court (postulare) otherwise than on behalf of themselves 
or certain close relations. In another part of the edict he specified 
those to whom, as persons of tarnished reputation, he declined to 
grant the right of acting as the agent of another in an action (alieno 
nomine agere) or of being represented by an agent in an action 2 . 

But in thus denying to certain parties full legal capacity in judicial 
proceedings (including, inter alia, the unrestricted jus postulandi) 
the praetor did not directly pronounce them ‘ infames.’ He had 
neither occasion nor power formally to curtail the civic honour 
which a person enjoyed. But, says Gajus, ‘those whom the 
praetor places under such disabilities we call infamous V It was, 


Thus e.g. the Twelve Tables (viii. 
22) declared : qui se sierit testarier libri- 
pensve fuerit, ni testimonium fatiatur, 
improbus intestnbilisque esto. 

2 Karlowa, ZS. fur KG ., vol. ix. 
p. 22 2 ff. ; Lenel, ZS. der Sav. St., 
vol. ii. p. 54 ff. ; Wlassak, Zur Ge • 


sehichte der Cognitur (1893), p. 18, 
n. 3; p. 72, n. 53 ad fin, 

8 Gaj. iv. 182 vStudemund, ed. 2) : 
Nec tamen ulla parte edicti id ipsum 
nominatim exprimitur ut alhjuis igno- 
miniosus sit ; sed qui prohibetur et pro 
alio postulare et cognitorem dare pro- 



192 


THE INSTITUTES 


§ 36. then, in those lists contained in the praetorian edict that the views 
which society took of the cases of existimationis minutio found legal 
expression and were, so to speak, codified ; imperfectly, it is true, 
but nevertheless in such a way as to be decisive of the future 
attitude of the law towards civic honour. And it was from these 
sections of the praetorian edict that Justinian’s compilers took their 
catalogue of cases of existimationis minutio. 

There were, more particularly, two groups of cases which were 
contrasted with one another, the cases of ‘ infamia immediata,’ and 
of ‘infamia mediata.’ Infamy was said to be ‘immediate,’ if it 
attached to a person at once, ipso jure, on the commission of some 
act which deserved to be visited with social disgrace. Thus it 
attached to persons engaged in a disreputable trade, to soldiers 
ignominiously discharged from military service, to persons in the 
relation of a double marriage or double betrothal. On the other 
hand, infamy was siid to be ‘mediate/ if it did not attach directly, 
but only after a court of law had passed judgment on the delinquent 
on the ground of some act which deserved to be visited with social 
disgrace. Such was the effect above all things of every criminal 
sentence touching life, limb or liberty. A similar result however 
followed condemnation in certain civil cases, more especially if 
judgment were given against a person in a civil action on account of 
a dishonourable breach of duty (e. g. as guardian, partner, depositary, 
agent). Those civil actions in which condemnation entails infamy 
are called ‘ actiones famosac/ 

No codification of the law of honour can, in the nature of things, 
be complete. It was necessary, therefore, to allow the Roman 
judges a discretionary power to take account of such c ases of infaim 
as had not been specified in any statute or in the praetorian edict 
Looked at from this point of view, there were two kinds of existima 
tionis minutio, ‘ infamia 1 and ‘ turpitudo.' In the case of ‘infamy’ 
the conditions under which it should attac h were fixed by the law. 
viz by statutes and the praetorian edict. In the case of what was called 
•turpitude:/ the conditions under which it should attac h were fixed, 

■aratoremvc habere, item pro.;unt«>ris venire, ignominious* cssc dicitur. '■ 
an* cogmtons nomine jmliuio inter- infra, note 5. 



THE LAW OF PERSONS 


193 


nc by the law, but by the free discretion of the judge acting, in each § 30 . 
individual case, on the verdict of public opinion, in other words, on 
the verdict of society. 

Both these forms of minutio existimationis (viz. infamia and 
turpitudo) produce this result that the judge, acting on his own 
discretion, may take them into account, wherever the character of 
the person affected is concerned. He may decline, for example, 
to admit such a person as a witness or to allow' him to act as 
a guardian. Or again, if an infamis or turpis is instituted in a will, 
the judge may admit the brothers and sisters of the deceased to 
the querela inofficiosi testamenti (§ 113). The following effects, 
moreover, are peculiar to infamy : it extinguishes the jus suffragii 
and the jus honorum ; it restricts the jus connubii (by disqualifying 
the infamis from marrying any freeborn person, v. § 99) ; and it 
also restricts the right to make applications to the court on behalf 
of others (v. supra). But these special disqualifications incident to 
infamy have ceased to exist in Justinian’s time 4 . As far as a man’s 
personality, as such, is concerned, the only effect, under Justinian’s 
law, both of ‘ infamy ’ and ‘ turpitude ' is that the persons affected 
are liable to be subjected to certain disabilities by the judge in the 
exercise of his judicial discretion. 

L. 5 § 2 1 ). de extr. cogn. (50, 13) (Callistratus) : Minuitur 
existimatio quotiens, manente libertate, circa statum digni- 
tatis poena plectimur, sicuti cum relegatur quis, vel cum 
ordine movetur, vel cum prohibetur honoribus publicis fungi, 
vel cum plebejus fustibus caeditur vel in opus publicum 
datur, vel cum in cam causam quis incidit quae edicto 
perpetuo infamiae causa enumeratur. § 3 : Consumitur vero, 
quotiens magna capitis minutio intervenit. 

L. 1 D. de his qui not. inf. (3, 2) : Tract oris verba dicunt : 
Infamia notatur 8 qui ah exercitu r;nominiae causa 

4 The jus suffragii anil the jus hono- Justinian’s compilers (v. I .end. foe. <*#/.). 
rum had lost all practical meaning, Lenel's conjectures have been brilliantly 

the prohibition on mariiages had been verified by the text of liajus iv. § iSj 

abolished, and the judge was given (v. note 3) which has only now been 

entire discretion as to whether he would definitely ascertained. As* to the re- 

allow a person to make an application storation of the original words and 
to the court or not (§ 11 I. de except, context of the praetorian edict here 
: 4 > 13k under discussion v. Lcnel, JiJictum 

8 These first two words are due to perpetutwi, pp. 62, 63. 

sohm: ledlie 0 



194 


THE INSTITUTES 


§ 36 . AB 1MPERAT0RE EOVE CUI DE EA RE STATUENDI POTESTAS 

FUERIT DIMISSUS ERIT; QUI ARTIS LUDICRAE PRONUNTIAN- 
DIVE CAUSA IN SCAENAM PRODIERIT \ QUI LENOCINIUM 
FECERIT; QUI IN JUDICIO PUBLICO CALUMNIAE PRAEVARICA- 
TIONISVE CAUSA QUID FECISSE JUDICATUS ERIT ; QUI FURTI, 
VI BONORUM RAPTORUM, INJURIARUM, DE DOLO MALO ET 
FRAUDE SUO NOMINE DAMNATUS PACTUSVE ERIT; QUI PRO 
SOCIO, TUTELAE, MANDATI, DEPOSIT! SUO NOMINE NON CON- 
TRARY JUDICIO DAMNATUS ERIT; QUI EAM QUAE IN POTES- 
TATE EJUS ESSET GENERO MORTUO, CUM EUM MORTUUM ESSE 
SCIRET, INTRA ID TEMPUS QUO ELUGERE VIRUM MORIS EST, 
ANTEQUAM VIRUM ELUOERET, IN MATRIMONIUM COLLOCA- 
VERIT, EAMVE SCIENS QUIS UXOREM DUXERIT NON JUSSU EJUS 
IN CUJUS POTESTATE EST J ET QUI EUM QIJEM IN POTESTATE 
HABERET, EAM DE QUA SUPRA COMPREHENSUM EST, UXOREM 
DUCERE PASSUS FUERIT ; QUrVE SUO NOMINE NON JUSSU 
EJUS IN CUJUS POTESTATE ESSET, EJUSVE NOMINE yUEM 
QUAMVE IN POTESTATE HABERET, BIN A SPONSAI.IA BINASVE 
NUPTIAS IN EODEM TEMPORE CONSTITUTAS HABUERII. 



CHAPTER II. 

Juristic Persons. 

§ 37. The Nature of a Juristic Person . 

To affirm the existence of juristic persons is to affirm the exist- § 37 . 
ence, as an economic fact, of a particular kind of property which 
may be described as social property, or property appropriated to the 
purposes of society — property, in other words, which cannot be 
legally employed otherwise than for the purposes of the community 
(or society) as a whole (§ 30). The private property of 4 natural 5 
persons — which is the only ‘ private 1 property in the full sense of 
the term— requires to be supplemented by public property, by pro- 
perty devoted to the common good, and this object is effected 
through the conception of a juristic person. 

A study of history will show us that different legal forms have 
been resorted to at different stages of the evolution of law for the 
purpose of giving shape and effect to this notion of public property. 

The form with which we are familiar nowadays is that of a juristic 
person, and our very familiarity may tempt us to think that it is 
the only possible form and that the idea of a juristic person is a 
self-evident and natural idea which would readily suggest itself to 
primitive peoples. As a matter of fact, however, the conception of 
a juristic person is the product of a very advanced stage of legal 
development. 

The crude view of the matter would be that property intended for 
general public purposes— the property of a political community or the 
State — should be regarded as the common property of all those whose 
interests it is designed to serve, the common property, for example, 
of the members of a community or of the citizens of a State. 

O 2 



196 


THE INSTITUTES 


§ 37. German law consistently adhered to this somewhat primitive point 
of view throughout the Middle Ages. According to mediaeval 
German law property devoted to common purposes was covered by 
the legal conception of collective ownership, collective ownership 
being a species of joint ownership. The property of the com- 
munity— e.g. the 'almende' of the ‘associations of the mark* 
(which were the rural communities of German law)— was the pro- 
perty of all the members of the community, and in the same 
way the property of the State— the so-called ‘ folk-land —was the 
property of all the members of the State, in other words, of the 
people constituting the State. The individual members had no 
power to dispose of property of this class -they could not, for 
example, alienate any portion of it— but still the ownership of the 
property was not deemed to vest in the community as a whole, but 
in the sum-total of the constituent members : in the eye of the law 
they were, collectively, the subjects or bearers of the rights apper- 
taining to the property. According to mediaeval German law pro- 
perty appropriated to the purposes of any body or society was 
simply the common property of all the natural persons who 
constituted that body or society. The conception of a juristic 
person was as yet unknown. 

In the same way the conception of a juristic person was unknown 
to the earlier Roman law. The old jus privatum (the jus civile) was 
throughout a law for the individual (the civis) only, and hence, as far 
as the ancient private law of Rome was concerned, there could be no 
subject of rights and duties other than a natural person, i. e. an 
individual. There were indeed, even in the old times, societies 
(collegia, sodalitates), but none that enjoyed proprietary capacity. 
The property which was designed for the purposes of the society 
had to be formally vested in an individual member and treated 
as though it were his separate property. In other words, the idea 
that a society as such could have property of its own was unknown 
to the ancient private law of Rome, as far at least as private societies 
were concerned. And with regard to property designed for public 
use— the property of the State (i. e. the community of Roman 
burghers) and the property of the national gods— it was treated as 



THE LAW OF PERSONS 


197 


belonging to the category of 1 res extra commercium, * that is, of § 37. 
things standing outside the range of ordinary dealings (infra, § 59 I). 

Now the Roman State was identical with the Roman people: what- 
ever belonged to the State, belonged to the Roman people ; it was 
‘ res publica ’ (‘ populica ’). Res publicae were thus opposed to res 
privatae. They were not, in fact, owned by any private individual 
nor could they, in law, be so owned. The populus Romanus was 
obviously not a private individual. Whatever it possessed, was ‘extra 
commercium,’ i.e. could neither be ow f ned nor in any way dis- 
posed of by private persons. But unlike the Germans, the Romans 
did not regard their State lands (the ager publicus) as the common 
property of the several members of the State ; their view was rather 
that State property was no man’s property, a ‘ res nullius,’ which 
could not be owned by anybody \ For purposes of private law the 
populus Romanus was simply 7 iobody\ which is merely another way 
of saying that the populus Romanus was not a private person, nor 
indeed a person at all— a juristic person namely— within the 
meaning of private law. Private law was a law for cives, and the 
Roman people was not a civis. Roman law, the jus civile, had no 
legal forms which would fit the case of State property and bring it 
within any of the recognized categories of private law. State pro- 
perty was accordingly regarded as lying outside the scope of private 
law altogether, it was ‘ extra commercium ’ and appertained exclu- 
sively to public law. What was true of the property of the Roman 


1 A trace of this view is to be found 
even in Gajus, 1 . 1 pr. I). de div. rer. 
(1, 8): quae publicae sunt, nullius in 
bonis esse credunlur, ipsius cnim uni- 
versitntis esse creduntur : privatae nutem 
sunt, quae singiilorum sunt. In the last 
words Gajus gives expression to the idea 
of the earlier law that only a ‘ singulus* 
can be regarded as a private person. 
The same idea that, as far as private 
law is concerned, there can be no 
persons other than ‘ natural ’ persons, 
and that the rights of a municipium are, 
properly speaking, just the rights of the 
munieipes, recurs even in Ulpian (Fragm. 
23, 5) : Nec nmnicipia ncc munieipes 
hcredes institui possunt, quoninm in- 


certum corpus c>t (because its members 
change), et neque cernere universi neque 
pro heredc gererc possunt, ut heredes 
fiant. In l T lpian‘s words wc have at 
the same time an echo of the crude and 
primitive notion (which re-apj ears in 
German law) that the rights of a col* 
lcctive body are simply the rights of all 
the separate individuals who belong to 
that body. Hut the property of all is. 
from another point of view, the property 
of no one, in so far as no one can claim 
it as his separate, private properly. 
The latter point of view was the one 
which prevailed in the earlier stages of 
Roman law. 



THE INSTITUTES 


198 

§ 37. State (the ager publicus and the aerarium) was equally true of its 
proprietary dealings. The Roman State, the populus Romanus, 
concluded its legal transactions — its sales, its leases, and so forth — 
through its magistrates, but all such transactions were governed, 
not by jus privatum, but by jus publicum. They did not give rise 
to actions in the ordinary civil courts. The law was not available 
against the State as against a private individual. The State pro- 
tected its property— the res publicae— on principle by the adminis- 
trative acts of its magistrates, and if a private individual sought 
redress in respect of a transaction concluded by the State, he could 
not proceed by the ordinary legal procedure, but had to resort to 
administrative proceedings by lodging his complaint at a public 
office. In its proprietary as in its other relations the State always 
remained the State, the bearer of sovereign rights, and as such was 
consistently paramount over the individual citizen ; under no cir- 
cumstances were they treated as co ordinate. The forms of private 
law, which were adapted exclusively to the requirements of private 
personalities, were altogether too narrow for the great populus 
Romanus. That was the reason why the early Roman lawyers never 
thought of regarding the State as a juristic person, or as a subject 
capable of holding property in the sense in which these terms were 
understood in private law. On the ground occupied by the State 
there was no room for private law. The law was thus only giving 
formal expression to the practical character of State property by 
treating it as social or public property, and not as private property. 
Individual property was the only property recognized by the private 
law of ancient Rome. 

The so-called ‘res sacrae,' or tilings consecrated to the gods, 
formed a species of res publicae. Like these they lay outside the 
scope of private law (‘extra connnerciuin ’) and were protected 
by forms of administrative procedure. Thus in regard to res 
sacrae, again, the idea that established itself was not that they 
were the private property of a juristic person, e. g. the gods or 
some religious institution, but rather that they were excluded from 
all private ownership. 

Within the sphere of the jus privatum none but the individual, 



THE LAW OF PERSONS 


199 


the ‘ natural * person, within the sphere of the jus publicum (and § 37 . 
jus sacrum) none but the State could, in early Roman law, be the 
subject of rights. 

The conception of a juristic person was not introduced into the 
private law of Rome till the Empire. During the Empire res 
publicae, that is, property owned by the State — with the exception 
however of res publicae in the narrower sense of things directly 
intended for the common use of all (infra, § 59 I b) — came to be 
regarded as res in commercio and, as such, were brought within 
the range of private law. Thus public property became private 
property in the same way as the property of individual ‘natural’ 
persons was private property. It appears that this result was due, 
first and foremost, to the development of the system of municipal 
government which took place towards the close of the Republic. 

The property of the municipium or town community was brought 
within the rules of private law, the municipium being thus allowed to 
rank as a person capable of private rights and duties. After the 
example of these municipalities, ‘ad exemplum rei publicae ’ (that is, 
after the example of the communities governed by public law), lawful 
societies (collegia, sodalitates, universitates) were also acknowledged 
to have proprietary capacity for purposes of private law. And 
finally, when the property of the emperor, the fiscus Caesaris, 
came to be more and more avowedly identified with the property 
of the State, the Roman State too, in the form of the fiscus, was 
ranged among the private persons, though the numerous fiscal 
privileges it enjoyed remained to testify to its original exemption 
from the rules of private law. 

The conception of a juristic person had thus obtained recognition 
in the Roman law of the Empire. The problem now was to deter- 
mine its precise nature. 

What do we mean by saying that an aggregate of persons, 
a corporate body— such as, for example, a town or village community 
—is a person within the meaning of private law? In what sense can 
a community or a corporation be said to have rights and liabilities ? 
The rule evolved by Roman law during the period of the classical 
jurisprudence may be stated as follows : the property of a corpo- 



200 


THE INSTITUTES 


§ 37. ration is the property, not of several persons, but of a sing/e person, 
to wit, the ‘corpus/ or corporation as such. For purposes of 
private law, the corporation, the collective whole, must be regarded 
as a new, a different person, as an individual distinct from the 
several individuals of whom the corporation consists. A slave may 
not be tortured with a view to extorting information against his 
master, but the slave of a corporation may be compelled, by torture, 
to give information against the members of that corporation : nec 
enim plurium esse videtur sed corporis , i. e. the slave of a corporation 
(corpus) is not the joint property of the separate members, but 
the sole property of another person, an invisible, a * juristic ’ person, 
namely, the ‘corpus.’ Again: si quid universitati debetur, singulis 
non debetur, nec quod debet univer situs, singu/i debent. In other 
words, the rights of a corporation (e. g. of a town community) are 
not the rights of those who belong to the corporation, and the 
liabilities of a corporation are not the liabilities of the members 
of the corporation. The individual members of the corporation 
cannot be made answerable for the debts of the corporation. Rights 
and liabilities of a corporation do not mean joint rights and joint 
liabilities of the members, but sole rights and sole liabilities of 
another person, an invisible, a ‘juristic’ person, namely, the 
‘ corpus.’ 

In Roman law the property of a corporation is the sole projKTty 
of the collective whole ; and the debts of a corporation are the 
sole debts of the collective whole (the corpus). The rights and 
liabilities of a corporation arc not the rights and liabilities of the 
sum total of its individual members, but exclusively the rights and 
liabilities of the collective whole of its members, that is, of the 
corporation as such. This collective whole, this invisible unity 
of members, which is called into existence, and lives, by means 
of the corporate constitution, and which operates, not through the 
medium of another person, but immediately— is a new subject of 
rights and duties, a new person quite distinct from all its members. 
Such is the juristic person of Roman law. It represents a kind 
of ideal private person, an independent subject capable of holding 
property, totally distinct from all previously existing persons, in* 



THE LAW OF PERSONS 


201 


eluding its own members. It possesses, as such, rights and liabilities § 37. 
of its own. It leads its own life, as it were, quite unaffected by 
any change of members. It stands apart as a separate subject 
of proprietary capacity, and, in contemplation of law, as a stranger 
to its own members. The collective whole, as such, can hold 
property; its property, therefore, is, as far as its members are 
concerned, another’s property, its debts another’s debts. 

This sharp line of demarcation between the collective person 
and the separate members expresses the fundamental idea under- 
lying Roman law. From the point of view of private law, the 
collective person and its members have nothing whatever to do 
with one another. As far as the property of the whole is concerned, 
the members are not members, but strangers. The collective person 
is quite a different person, a juristic person, a third person, over 
and above the natural persons who are its members. 

It is at the moment when those corporate bodies of social life 
which stand above the individuals, more especially when such great 
organizations as the State, the Church, the town and village com- 
munity, which are governed by public law, step into the domain 
of the law of property (i. e. of private law) in order to assert their 
claim to be admitted (in the interests of society and consequently 
of all) to share in the goods of this world on equal terms with 
individuals — it is at this moment that the legal rules concerning 
juristic persons come into play. Roman private law had originally 
no room for these huge corporate personalities so vastly exceeding 
the dimensions of the individual personality. Originally, it was 
neither capable nor desirous of supplying the law for any other 
proprietary relations but those of private persons in the strictest 
sense of the term, i.e. individual persons. Nevertheless the Roman 
lawyers succeeded, as we have seen, in securing the recognition 
of corporations within the domain of private law. But it was just 
the very difficulty which Roman law had to solve that made its 
doctrine of juristic persons so conclusive in its lucidity. Roman 
private law— such is the reasoning— endeavours to be a law for 
the individual person. If therefore the corporate collective person 
is to be admitted to private law, it must first, as a matter of form. 



202 


THE INSTITUTES 


§ 37. discard all its social characteristics, it must discard all that power 
by which it transcends the dimensions of an individual person; 
the sovereign State itself must put aside its majesty, before it can 
pass into the humble realms of private law. However public, in 
other respects, the character of a corporation, such as the State 
or a community, may be, the keen analysis of Roman private law 
reduces it to a new kind of private person, viz. a new, ideal 
individual, which takes its place in the ranks of other individuals 
or ‘natural’ persons. Formally, the public property of the State 
is treated as private property, but as the private property of a new 
kind of person, namely, a juristic person. By this means, the 
traditional conceptions of private law, the conception of a person 
as an individual, of individual property and individual liabilities, 
can be applied, without alteration, to these new corporate subjects 
of private rights and duties. In point of law, the collective person, 
the corporate or social body, is a new individual like other individuals. 
Hence the clear line which separates the collective person from 
the persons of its members, and the property of the collective 
person from the property of its members. Roman law contrived 
to accomplish a veritable masterpiece of juristic ingenuity in dis- 
covering the notion of a collective person ; in clearly grasping, and 
distinguishing from its members, the collective whole as the ideal 
unity of the members bound together by the corporate constitution ; 
in raising this whole to the rank of a person (a juristic person, 
namely), and in securing it a place in private law as an independent 
subject of proprietary capacity standing on the same footing as 
other private persons. Herman law never got beyond the notion 
of the natural person visible to the physical eye. True, it succeeded 
in working out the idea of a community of legal rights and duties 
in a larger variety of forms than Roman law, and the practical 
results which it was able to achieve within the Herman communities 
and associations by means of a system of common property (of 
societies), coupled with an organized method of administration, 
were the same as those achieved by Roman law with its conception 
of a juristic person. True also, that in the local laws of German 
towns the beginnings of an attempt to treat the town community 



THE LAW OF PERSONS 


203 


as an independent subject of rights and duties are already dis- § 37. 
cernible. Nevertheless, the simple formula which declares that 
the property of an organized social body is the sole property of 
a new ideal subject, and thus, while introducing the property of the 
collective whole (social property) into the sphere of private law, 
at the same time marks it off clearly and sharply from the property 
of the individual members of the organized body — the formula, 
in other words, of the juristic person, was discovered in the domain 
of Roman law and was adopted in Germany from Roman law by 
means of the ‘reception/ 

A natural person, then, is a visible individual person, a human 
being; a juristic person, within the meaning of private law, is a 
social body with proprietary capacity, which assumes in law the form 
of an ideal individual person created by means of organization 
and capable, like other persons, of holding distinct property of 
its own. The collective whole must, in point of law, be regarded 
as a unit before it can be ranged among jural subjects as a special 
kind of person, independent of other persons and outlasting all 
changes of its members 2 . 

a On the above subject, see Mommsen, 

J)e collegiis et sodalitiis Romanorum 
(1843); Gierke, Das dcutsche Gen os sen- 
sc h aft s re c /it, vol. iii. (1SS1) pp. 34-106 ; 

Gierke, Deutsches Privatrecht . vol. i. 

(1893) p. 456 a.; Karlowa, Rom. RG ., 
vol. ii. pp. 1 ff. and 59 fif. ; Solmi, Die 
dcutsche Genosscnschaft (Festschrift fiir 
Windscheid, 1S88). 

The historical exposition embodied 
in the text shows clearly that the ques- 
tion whether property devoted to com- 
mon social purposes is, in law, the 
property of no one or the property of 
a juristic person, is a question, not of 
logic, but of positive law. As a matter 
of economic fact, no particular person 
has any delined interest in such pro- 
perty; it exists for the common good, 
and it is quite conceivable that the law 
should view it in the same light, that is, 
as ownerless property which can only 
he legally used in accordance with the 
purposes to which it is devoted. But 
the result of this view (which was the 
view of early Roman law) is to make 


social property a res extra commercium, 
thereby placing it outside the range of 
private law altogether. According to 
tlie other view social property is legally 
the property of some definite person or 
persons. As to w’ho such person or 
persons are there are two possible 
alternatives : the law may treat social 
property either as the common property 
of a number of natural persons (as was 
the case with German law or as the 
sole propeitv of a juristic person (as 
was the case with the later Roman law). 
W e are unable, however, to accept the 
contention put forward by Brinz (/’a/i- 
dekten , 3rd ed., vol. i. p. 244 ff.) that 
the conception of property appropriated 
to a particular purpose (‘Zweckver- 
inbgen/ as German jurists now call it) 
mciely represents a formula for describ- 
ing such social property as falls within 
the limits of private law. The exact 
reverse appears to be the truth. Private 
law recognizes no property at all but 
the propei ty of persons . And with 
regard to the much-debated question 



204 


THE INSTITUTES 


87 . L. i § i I). quod cujusque univ. nom. (3, 4) (Gajus) : Quibus 
autem permissum est corpus habere collegii, societatis sive 


whether juristic persons are ‘ fictitious * 
or 1 real 1 persons, history again furnishes 
the answer. According to a theory 
propounded by the civilians (which, up 
to the present at any rate, has been the 
prevalent theory on the subject ' juristic 
persons are fictitious persons ; according 
to the Germanistic theory, which has 
found its leading and most vigorous 
champion in Gierke, they arc ‘rear 
persons. The issue in this dispute 
(which is not always brought out very 
clearly) may be put in this way : Is the 
juristic personality of the organized 
bodies of society something made by 
the law? Is it (to use the somewhat 
inappropriate expression of many 
writers) a fiction of the law? Or is it 
rather something which the law ' finds 
among the phenomena with which it lias 
to deal? Is it one ol the data of positive 
law, and in that sense ‘ real ’ V A defence 
of the latter view will lie found, for 
example, in Gierke’s Deutsches l'rivat - 
rechi, where the learned author maintains 
(vol. i. p. 468) that ‘ from the earliest 
times and among all nations organized 
bodies have been recognized, over and 
above separate individuals, as subjects 
of legal rights and duties/ and that the 
only ‘ changes that have occurred have 
been changes in the form in which the 
personality of these bodies has found 
expression.’ It is difficult to sec how 
this view can be reconciled with the 
evidence furnished by the history of 
both public and private law. liven 
within the domain of public law the 
idea that the great organized body which 
we call 'the State’ or ‘the Kmpire* is 
a single poison, and, as such, the bearer 
of the rights of government (ail idea of 
ivhich no trace is to be found in the 
older German law; was the outcome of 
a very gradual development extending 
over a long period, and was not fully 
worked out till quite modem times. 
Positive law finds among its data but 
one kind of personality, and that is the 
personality of human beings, which 
personality is the postulate and source 
of all legal development. The per- 
sonality of organized bodies, on the 
other hand, is a thing which positive 


law creates for itself at a particular 
stage of its development. That is what 
the term ‘ juristic person * is meant to 
convey, and it would be difficult to find 
a more appropriate expression. The 
creation of juristic persons, in other 
words, the recognition of organized 
bodies as independent subjects of legal 
rights, on a par with, though distinct 
from, the separate individuals who com- 
pose them, is emphatically the work of 
positive law. It does not however 
follow', because juristic persons are the 
creations of positive law, that they are 
therefore fictions. Juristic persons are 
no more fictions than, say, the concep- 
tion of ownership is a fiction. In the 
eye of the law they are, in the fullest 
sense, persons, that is, subjects of legal 
rights and duties, and, to that extent, 
* real,’ as far as modern law is con- 
cerned. Rights can be acquired and 
liabilities incurred in the name of a 
juristic person, and any right so ac- 
quired can only be disposed of in the 
same name. Indeed to have a per- 
sonality really means in law nothing 
more than to have a name , or ins the 
Romans put it', a head (caput), recog- 
nized by the law. In the register ol 
names— that is, of persons— recognized 
by private law', juristic persons arc 
entered in precisely the same way as 
natural persons, lint the two classes 
of persons are not there by the same 
title, so to speak ; nntuial |>ersons aie 
there by virtue of their natural per- 
sonality, the personality with which 
they are born ; juristic persons arc there 
by virtue of the personality w hich posi- 
tive law has conferred upon them. The 
recognition of the rule that property 
devoted to common social purpose'* l* 
private property, and is, moieover, the 
sole projjerty ol a single person — viz., 
the organized body as such - belongs to 
a late period in the historical develop- 
ment of the law. 'Hie outcome of thi** 
development has lieen to constitute 
society, in the form of its different 
organized bodies, a new subject of 
legal rights (for purposes of private law, 
in the first instance), side by side with 
the original, the bom subjects of legal 



THE LAW OF PERSONS 


205 


cujusque alterius eorum nomine, proprium est ad exemplum § 37. 
reipublicae habere res communes, arcam communem et 
actorem sive syndicum, per quern tamquam in republica, 
quod communitcr agi fierique oporteat, agatur, fiat. 

L. 7 § 1 eod. (Ulpian.): Si quid universitati debetur, singulis 
non debetur, nec quod debet universitas, singuli debent. 

L. 1 § 7 D. de quaest. (43, 18) (Ulpian.): Servum municipum 
posse in caput civium torqueri saepissime rescriptum est, 
quia non sit illorum servus sed rei publicae, idemque in 
ceteris servis corporum dicendum est: nec enim plurium 
servus videtur, sed corporis. 

L. 16 D. de verb. sign. (50, 16) (Gajus): Civitates enim priva- 
torum loco habentur. 


§ 38. Societies and Foundations . 

We distinguish two kinds of organized bodies, ‘ corporations * § 38 . 
(Korperschaften) and ‘ institutions ’ (Anstalten). A corporation is 


rights, viz. individual human beings. 
And what, it may be asked, was the 
object of creating these new persons ? 
It was to enable the community as a 
whole to take part in the economic life 
of the nation on the same terms as the 
individual. There is a particular stage 
at which the organized bodies of society 
—such as the State or the municipali- 
ties— are driven to make independent 
provision for the wants of the com- 
munity as a whole (in regard, for 
example, to military matters, education, 
and so forth) ; in other words, they are 
driven to set up separate establishments 
of their own distinct from those of any 
individual member of the community. 
It is at this moment that the creation of 
the juristic j>crsons of private law be- 
comes a matter of practical necessity. 
A separate establishment necessarily 
presupposes separate property. I f there- 
fore the community is to conduct a 
separate establishment of its own, a 
legal form is required to enable it to 
acquire and hold property of its own. 
And it is to meet this very requirement 
that the law creates the conception of 
a juristic person, fti the same way, 
within the sphere of public law, it 


seems pretty clear that the view which 
regards a single organized body— viz. 
the State— as the bearer of the public 
powers of government, merely marks 
a particular stage of legal development, 
and is not the expression of an immut- 
able axiom of natural law. In modern 
times society claims for itself that public 
authority which at one lime belonged 
to the ruler alone and, at a still earlier 
period, to all the members of the com- 
munity jointly. The juristic person is 
accordingly the particular legal form 
(as developed, in its main features, by 
the lawyers of the Roman Empire) 
under which, in modern law, the sepa- 
rate establishments which provide for 
the common wants of the community 
are carried on, and it is, at the same 
time, the legal form in which the 
sovereign authority of the community 
finds expression. The juristic person 
is not rooted in the ‘ personality ’ sup- 
posed to belong, by some law of nature, 
to ‘every organized body as such/ It 
is simply the positive form (based on 
Roman law) in which modern law 
gives expression to the power which 
organized bodies have attained to in 
the gradual evolution of history. 



20 6 


THE INSTITUTES 


38 . an organized body which governs itself ; an institution is an 
organized body which is governed by the intention of its founder. 
The organized bodies created by public law— e. g. the State, munici- 
palities, ecclesiastical corporations and institutions— are the corpo- 
rations and institutions of public law; those created by means 
prescribed by private law are the corporations and institutions of 
private law. We shall call the corporations of private law ‘ socie- 
ties } (Vereine) and the institutions of private law ‘foundations’ 
(Stiftungen). 

The organized bodies of public law derive their corporate capacity 
for legal rights, in other words, their juristic personality, from 
rules of public law. With us, every corporation and institution 
of public law is a juristic person (for purposes both of public and 
private law) by virtue of a general rule of law. A juristic personality 
or corporate capacity need not be expressly conferred on it. 
Indeed, it was to meet this very case of public bodies that juristic 
persons were created, the desire being to clothe the property of 
public corporations and institutions (which is social property de 
signed for the common good) in such a form as would enable the 
objects for which it exists to be most effectively secured. 

The organized bodies of private law— societies and foundations — 
stand on a different footing. The interests which it is sought to 
serve by the incorporation of private societies and by foundations 
are the private interests of individuals. The notion of a juristic 
person was developed in order to meet the requirements of public; 
property. The question arises whether the law shall permit tlu* 
same notion to be utilized in furtherance of private objects ? We 
have seen how by means of the conception of a juristic person 
property designed for general public objects was effectively and 
permanently secured for such objects, the method being to vest 
the title to the property in an ideal person in whose name alone 
it could be validly dealt with. Should the law allow the same 
method to be applied for the purpose of permanently appropriating 
property to a particular object in the interests of private persons? 
Roman law answered this question in a different way from modern 
German law. 



THE LAW OF PERSONS 


207 


Roman law adhered consistently to the rule that to sustain § 38. 
a juristic personality is the privilege of public corporations and 
institutions. 

In the first centuries of the Empire we have several instances 
of charitable foundations established by the emperors for Italy, 
with the object of distributing alms in support of poor children. 

They are State institutions, and are regarded in law as detached 
and independent portions of the c fiscus ’ or property of the State. 

It was not competent for a private individual to create a founda- 
tion with separate property — in other words, with a separate legal 
personality — of its own. A private individual might make over 
property, by way of gift or legacy, to a juristic person already in 
existence (say, a municipal corporation) and might, at the same 
time, prescribe the particular object for which such property was 
to be employed, by directing it, for example, to be spent on 
banquets and entertainments 1 . The effect of such a transaction 
was to create a foundation in the non-technical, the wider sense 
of the term ; that is to say, the dedication of the property merely 
gave rise to an obligation , the recipient corporation being legally 
bound to devote it to the objects prescribed by the donor. But 
a private foundation of this kind was not a foundation in the legal 
sense. The donor did not create a new juristic person capable of 
holding the dedicated property as its own separate property, the 
effect of the dedication (as already stated) being merely obligatory. 

The effect of a foundation proper, on the other hand, is real in the 
sense that it directly affects the title to the property itself : it severs the 
propertv from all other property and vests it in a new owner distinct 
from all other owners, in whose name alone it can be legally 
dealt with 2 . As far then as the Roman law of the earlier Empire 

| On this topic see Pernice, Labeo, person ; it would be the projx'rty of the 

a ir ’ ^ > ' I ^° university, and the effect of the trans- 

lf a person were to found a scholar- action would merely be to bind the 
ship by giving a sum of money to a university to apply this particular por- 
university and directing the scholarship tion of its own property in the manner 
to be paid out of the interest, this would prescribed by the donor. The direction 
be a foundation in the non-technical to use the money in a particular wav 
sense. The money would not be the does not affect the title to the property*: 
property of the foundation, because a all it does is to create a legal dutv to 
foundation of this kind is not a juristic apply the property in a particular 



208 


THE INSTITUTES 


§ 38. was concerned, the only foundations which it recognized were the 
institutions existing in the name of the Emperor, in a word, the 
institutions of the State. 

During the later Empire — from the fifth century onwards— 
foundations created by private individuals came to be recognized 
as foundations in the true legal sense, but only if they took the 
form of a 4 pia causa * (‘ pium corpus ’), i. e. were devoted to ‘ pious 
uses/ only, in short, if they were charitable institutions. Wherever 
a person dedicated property— whether by gift inter vivos or by 
will— in favour of the poor, or the sick, or prisoners, orphans, or 
aged people, he thereby created ipso facto a new subject of legal 
rights— the poor-house, the hospital, and so forth— and the dedi- 
cated property became the sole property of this new subject; it 
became the property of the new juristic person whom the founder 
had called into being. Roman law however took the view that 
the endowments of charitable foundations were a species of Church 
property. Piae causae were subjected to the control of the Church, 
that is, of the bishop or the ecclesiastical administrator, as the 
case might be. A pia causa was regarded as an ecclesiastical, and 
consequently, as a public institution, and as such it shared that 
corporate capacity which belonged to all ecclesiastical institutions 
by virtue of a general rule of law. A pia causa did not require to 
have a juristic personality expressly conferred upon it. According 
to Roman law the act— whether a gift inter vivos or a testa- 
mentary disposition— whereby the founder dedicated property to 
charitable uses was sufficient, without more, to constitute the pia 
causa a foundation in the legal sense, to make it, in other words, 
a new subject of legal rights. But the rule which declared that 
no foundation created by a private person could be a foundation in 
the true legal sense— that is, a juristic person capable of holding 


manner. On the other hand, if the 
founder weie to clothe his foundation 
with an independent personality of its 
own and to make his endowment the 
separate property of the foundation 
itself, we should have a foundation in 
the full legal sense. A foundation in 
the iion-technical sense consists in the 


dedication of property l>y making it 
over to an existing subject of legal 
rights; a foundation in the legal sense 
consists in the dedication of property 
by severing it from all other property 
and vesting it in a new subject of legal 
rights. 



THE LAW OF PERSONS 


209 


separate property of its own— unless it were a pia causa, is really § 38 . 
identical with that other rule of Roman law according to which 
public institutions are the only institutions capable of sustaining 
a juristic personality, the term public institutions including both 
the institutions of the State and (in the Christian era) ecclesiastical 
institutions. 

L. 48 C. de episc. (1,3) (Justinian.) : Si quis— captivos scripserit 
hercdes — sancimus talem institutionem — valere—. § 1 : Sed 
et si pauperes quidam scripserit heredes et non inveniatur 
certum ptochium vel certac ecclesiae pauperes — et hujus- 
modi institutionem valere decern imus. § 2 : Et si quidem 
captivos scripserit heredes, civitatis — episcopus et oeconomus 
hereditatem suscipiant et omnino in redemptione captivorum 
procedat hereditas — nullo penitus ex hoc lucro vel oeconomo 
vel episcopo vel sacrosanctae ecclesiae relinquendo. 

The law of the Roman Empire treated societies in the same 
way as foundations. With but few exceptions all societies were, 
on principle, prohibited. The law recognized no freedom of as- 
sociation 3 . Only those societies were lawful which owed their 
existence to a lex specialis, or ‘privilege.* A lawful society— such 
was the view taken— cannot be the creation of a private individual 
it can only be the creation of the State operating through the 
medium of a statute — the lex collegii, namely, which might be 
an imperial statute or a senatusconsultum. But a society duly 
constituted by public statute must— it was argued— itself form part 
of the organization of the State. Like the corporations of public law 
therefore— ‘ ad cxemplum rcipublicae* (1. 1 § 1 I). 3, 4; and supra, 
p. 204)— lawful societies were entitled to hold corporate property 
by virtue of a general rule of law. In this instance again, there 
was no necessity for any express grant of a juristic personality. 
According to Roman law, indeed, a juristic personality as such 
could not be acquired by express grant at all. The only rule 
known to the law of the Empire w r as the general rule recognizing 
all public corporations and institutions as juristic persons. The 

3 On the above topic cp. Pcrnicc, Labeo % vol. i. p. 289 ff , ; Mommsen, Stoats- 
rccht , vol. ii. p. 886. 

SOHM: LEDLIB 


P 



2X0 


THE INSTITUTES 


$ 38 . conception of a juristic person was a legal form exclusively designed 
for, and applicable to, public property, and the only way in which 
both societies and foundations could acquire a juristic personality 
was by being admitted to the circle of public corporations and 
institutions. 

L. i pr. I). quod cujusque univ. (3, 4) (Gajus): Neque societas 
neque collegium neque hujusmodi corpus passim omnibus 
habere conceditur: nam et legibus et senatusconsultis et 
principalibus constitutionibus ea res coercetur; paucis ad- 
modum in casibus conccssa sunt hujusmodi corpora.- -Cp. 
1 . 3 § 1 D. de colleg. (47, 2 2\ 

L. 20 D. de reb. dub. (34, 5) (Paulus): Cum senatus tempo- 
ribus divi Marci permiserit collcgiis legare, nulla dubitatio 
est quod, si corpori cui licet coire legatum sit, debeatur: cui 
autem non licet si legetur, non valebit nisi singulis legetur : 
hi cnim non quasi collegium, scd quasi certi homines ad- 
mittentur ad legatum. 

The general rule of law according to which private foundations 
and private societies are capable, as such, of acquiring a corporate 
existence, only obtained recognition in the course of that further 
development of the law which took place within Germany itself, 
and even then the rule was only adopted with definite reserva- 
tions. 

The Reformation resulted in the severance of the connexion 
between the Church and charitable institutions. Henceforth even 
foundation as such — even a foundation for ‘pious uses’— -wa* 
regarded as a temporal concern. The State took the control oi 
foundations into its own hands. Charitable foundations ceaM*»! 
to occupy any exceptional legal position, and all foundations came 
to be recognized as equally capable of acquiring a corporate 
existence. Coupled, however, with this recognition a further rule 
was subsequently developed that no private foundation whatever, 
whether charitable or otherwise, could acquire a corporate existence, 
unless a juristic personality were expressly conferred on it by the 
State. In modern Germany there is no general rule of law operating 
ipso vigore to invest any partic ular kind of private foundation 



THE LAW OF PERSONS 


211 


with a juristic personality. In order to constitute a foundation in § 38. 
the legal sense*— that is, a private institution capable of having 
property of its own — two legal acts are requisite: first, the act 
whereby the founder purports to create the foundation (in other 
words, the act whereby he dedicates some property of his to 
a specified purpose) ; and secondly, the grant of a juristic personality 
on the part of the State, in other words, the * assent 9 (to use the 
term of the Civil Code) of the State to the creation of this new 
subject of legal rights. The endowment of a foundation involves 
the permanent appropriation of property to a particular object, and 
this is a matter which requires the approval of the State. It is 
expedient that private foundations should be capable of acquiring 
a corporate existence, but the State claims the right to co-operate 
in such a result, because, as a matter of fact, the right to create 
a legal foundation is equivalent, to this day, to a right to place 
private property on the same level as public property. 

German Civil Coin:, § So: The creation of a foundation with 
corporate rights requires, in addition to the act of the founder 
purporting to establish it, the assent of the Federal State within 
whose territory the foundation is intended to be domiciled. 

The subsequent history of societies was similar to that of founda- 
tions. From the sixteenth century onwards the system of absolute 
government, with its rigorous control of private life, struck root in 
Germany as elsewhere. Such a system was obviously quite as 
hostile to private societies as the Roman monarchy. It refused 
altogether to recognize the principle of free association, and required 
the sanction of the State for the formation of any society whatsoever. 

No society was allowed to have corporate rights without an express 
grant from the State. Within the sphere of public law, indeed, the 
right of free association has been (in principle at least) re-established 
in the course of the present century. In other words, it has come 
to be admitted that, as far as public law is concerned, the sanction 
of the State is not— generally speaking —required for the formation 
of a private society. As regards private law, however, the after- 
effects of the former absolutism are clearly traceable to this very 
day. It is true, the legislation of modern countries, more particularly 

r 2 



212 


THE INSTITUTES 


§ 38 . of the German Empire, has in many instances laid down general 
rules of law which operate, of their own force, to -confer corporate 
rights on certain classes of private societies, such as joint-stock 
companies, societies with limited liability (as regulated by the 
Imperial Statute of April 20, 1892), and registered mutual benefit 
associations. And the German Civil Code has even enlarged the 
range of these privileged societies so as to embrace societies formed 
for some object 1 other than that of carrying on a trade or business,’ 
such societies being permitted— with certain restrictions, however — 
to acquire a corporate existence, for purposes of private law, by being 
entered in the ‘Register of Societies.’ For the rest, however, the 
principle still holds good that private societies can only acquire 
a juristic personality by grant from the State. By forming societies 
private individuals are able to exercise a very considerable influence 
on public affairs, and by vesting private property in societies duly 
qualilied to own it, they are able to endow such private property 
with something of that permanence and that power of indefinite 
accumulation which are the distinguishing features of public property. 
Hence the struggle between the two great powers of modern political 
life, the State and the individual, first, in regard to the lawfulness of 
societies, and afterwards in regard to their juristic personality, their 
corporate capacity. The foundations of private law have been well 
and truly laid, and have shown no signs hitherto of giving way. 
But there are some ominous indications of a coming upheaval. 
This corporate personality is an element full of grave possibilities. 
Like the wonder-working cloak of the ancient legend, it renders it* 
bearer invisible and, at the same time, endows him with a strength 
far exceeding that of any single human being. In the early history 
of law the conception of a juristic person had enabled the State to 
take its place side by side with individuals as a subject of legal 
rights, in order that its property— public property might participate 
in the use of the legal forms applicable to private property. The 
question now- arises whether, conversely, the same conception can 
be, and ought to be, placed at the service of private persons to 
enable them to build up a stock of social property, thereby endowing 
the creations of society with some of that energy and vitality which 



THE LAW OF PERSONS 


213 


characterize the corporate bodies formed by the State for public § 38 
purposes. 

German Civil Code, § 21 : A society not formed for the purpose 
of carrying on any trade or business can acquire corporate 
rights by being entered in the Register of Societies of the 
proper Local Court (Amtsgericht). § 22: A society formed 
for the purpose of carrying on any trade or business and not 
covered by the special provisions of any Imperial Statute * 
can acquire corporate rights by a grant from the State. 

Societies are formed by means of organization : the individual 
members subordinate themselves, in the manner and to the extent 
required by the objects of the society, to the common will of the 
society, in order that the society as a collective body may enjoy 
capacity of action, and may also, if it obtains the requisite corporate 
capacity, hold property of its own. That is the distinctive feature of 
a corporation within the meaning of private law (i. e. an incorporated 
society) as contrasted with a mere partnership (societas). A partner- 
ship is formed by means of an obligation. In Roman law a societas 
was merely a contract like any other contract; the socii mutually 
hind themselves to certain acts with a view to some common object : 
they bind themselves, for instance, to contribute certain sums of 
money to defray the expenses of a dinner (infra, § 82). In Roman 
law the societas is nothing, the socius is everything. Legally 
speaking, the societas, as such, can neither act nor hold property, 
it cannot (to keep to our example) buy the food for the dinner 
nor acquire the ownership of it nor become liable for its price. 

A societas is merely a legal relationship as between the socii 
themselves, and has no existence for anybody else. On the other 
hand, an incorporated society is legally a new subject of rights, 
a collective whole which the law treats as a single unit fully capable, 
as against any third party, of acquiring rights and incurring liabilities, 
fully capable, for example, of concluding a contract or acquiring 
property or becoming answerable for a debt. A corporation, as 
such, has separate property of its own ; a societas, as such, cannot, 


* Cp. supra, § 4, paragraph 2 'p. 7). 



214 


THE INSTITUTES 


§ 38. strictly speaking, have separate property of its own. The rule in 
Roman law was, * tres faciunt collegium ' : in order to create a 
corporate body there must be at least three members, whereas 
a contract of partnership could of course be concluded between 
two persons. The rule referred to epitomizes the whole antithesis 
between these two forms of association. A collegium must act on 
the resolution of the majority, and a majority presupposes at least 
three members 4 . In order, therefore, that a collegium as such— 
the ideal aggregate — may have a will of its own and perform acts 
of its own, distinct from the will and the acts of the individuals, 
there must be at least three members. The moment three persons 
constitute themselves into an incorporated society, there springs into 
being a fourth person, a new subject of legal rights quite distinct 
from the three individuals, viz. the collegium, the corpus as such. 
This invisible fourth person is the juristic person : a corporate 
person, created by means of organization and unaffected by the 
change of its members, a person moreover of far greater strength 
than any single ‘ natural ’ person. 

L. 85 I), de V. S. (50, 16) (Marci:u.c>) : Xeratius Prisms trc!> 
facere existimat collegium, et hoc magis sequendum est. 

German Civic Com:, § 54 : Societies which are not incorporated 
are governed by the rules relating to partnerships \ 

4 iVinicc (/.fj/'e'e?, vol. i. p. 2i): without the lull quorum of thnemem 
point** to this lact as explaining th** hers, 1. 7 § 2 I>. <pio<l cujuMpie unit 
Roman rule. — Hut a corpus once duly a* 4 • 

constituted could continue to exist * German Ci\il Code, §§ 705 40. 



BOOK II 

THE LA W OF PROPERTY 

CHAPTER I 

General Part 

§ 39. Introduction. 

We have defined a person (§ 30) as a subject endowed with § 39. 
proprietary capacity. The Law of Property, which we now proceed 
to discuss, determines the orbit of this proprietary capacity. 

There are certain rules of law which apply, in an equal degree, 
to all rights of property. These are : first, the rules concerning 
juristic acts (by which rights of property may be created, transferred 
or extinguished) ; secondly, the rules concerning the protection of 
rights, i.e. the law of procedure. It is with these rules, which 
constitute the general part of the law of property, that we are, for 
the present, concerned. 


I. JURISTIC ACTS. 

§40. The Conception of a Juristic Act (2nd the Kinds thereof \ 

It is a matter of observation that where a legal result is produced, § 40 . 
such result may cither be independent of the will of the person 
concerned (as when a right of action is barred by lapse of time) or 



216 


THE INSTITUTES 


40. again, it may be determined by the will of the person concerned, 
determined (that is to say) in one of two different senses : either 
in the sense that the law contravenes his will (as in the case of 
delicts), or in the sense that the law conforms with his will (as in the 
case of juristic acts). The juristic acts of private law (e. g. a contract 
of sale, or hire, or loan) are the means employed by a private person 
for the purpose of producing certain legal results affecting his 
proprietary position. In other words, when a private person ex- 
presses his will in such a way that the law annexes to the expression 
the result willed (and it is in this sense that the expression of the 
will is material for private law), we have a juristic act of private 
law. And juristic acts may be either unilateral, or bilateral 
(agreements), according as they give expression and effect to 
the will of one person only, or to the concordant wills of several 
persons. 

A testament, for example, is a unilateral juristic act. 

It follows from what we have said that an agreement, in the legal 
sense of the term, is any expression of consensus which produces 
a legal result. 

The object of the consensus from which the agreement springs may 
be to produce an obligation, in which case we have an obligatory 
agreement or contract ; or it may be to produce any other legal effect, 
e.g. the discharge of a debtor, the creation of a usufruct or a right of 
pledge. Agreements of the latter kind are known among (icrman 
jurists as ‘ real agreements ’ (‘ dingliche Vert rage The term * real 
agreement’ is not confined to agreements by which a real right is 
created, but includes any agreement not covered by the notion of an 
obligatory agreement. An obligatory agreement- e.g. a promise to 
make over property by way of gift — is an agreement which creates 
a liability , the obligor being bound to do some act which, when 
done, will alter the legal position of the parties. A real agreement, 
on the other hand — c. g. an agreement to transfer a claim or release 
a debt — has the effect of a legal disposition : as soon as its require- 
ments arc fulfilled, the agreement, of its own force, alters the legal 
position of the parties— transfers the claim, for example, or ex- 
tinguishes the debt. An obligatory agreement, in short, only 



THE LAW OF PROPERTY (GENERAL PART) 217 


promises the intended change in the legal position of the parties ; § 40 . 
a ‘ real * agreement actually accomplishes it. 

L. 1 § 2 I), dc pactis (2, 14) (Ulpian.) : Et est pactio duorum 
pluriumve in idem placitum et consensus 

According: to another classification juristic acts are divided into 
negotia mortis causa and negotia inter vivos. Negotia mortis causa 
— of which wills and donationes mortis causa are examples — are 
juristic acts which are intended to take effect in the event of death 
only ; in other words, they are dispositions which depend, by their 
very nature, on the death of the disposing party, especially there- 
fore dispositions concerning the property to be left by the dis- 
posing party on his death. Juristic acts of this kind do not take 
absolute effect till the death of the person who performs them, and 
are consequently regarded, on principle, as expressing his last will ; 
that is to say, they are revocable at any moment up to death, be- 
cause they operate, as a rule, by virtue only of the hist will of the 
person who performs them. All juristic acts other than negotia 
mortis causa are negotia inter vivos. 


§ 41. Requisites of a juristic Act. 

Every juristic act (sale, letting, kc.) consists of an expression of $ 41 . 
the will. Thus we always have two elements : (1) the will ; (2) the 
expression. 

1. The Will. 

There can be no juristic act, if the person expressing the will is 
legally incapable of willing (e. g. if he is a lunatic), or if, in any other 


1 In spite of the wording of this 
comprehensive definition, the Roman 
conception of a j 'actum is a compara- 
tively narrow one. It is confined to 
such agreements as appertain to the law 
ot obligations, whether the object t»e to 
create or, as in the case of the pactum 
de non petendo, to discharge an obli- 
gation. The Roman jurists do not 
treat agreements which lie outside the 


range of the law of obligations a* pacta 
at all. v Cp. lVmice. /A. jVr A'«i:\ A7. 
vol. ix. p. ft. The conception of 
an agreement, in the broad modern 
sense of the term ,aml it is in this sense 
that we have used it in the tcxt> is far 
wider than that developed by the Roman 
jurists who were evidently influenced 
by the phraseology of the praetorian 
edict. 



2l8 


THE INSTITUTES 


§ 41 . way, the will is demonstrably absent l . This is what happens, for 
instance, if both parties to an agreement consent to will something 
different from what they express. Their expressions indicate, say, 
a sale, but they are agreed that the transaction shall be understood 
as a gift. And so in all cases, where expressions are used having 
reference to some juristic act, but are used in such a manner (e. g. 
in jest or for purposes of instruction) as clearly to negative the 
existence of any intention to produce a legal result. The same thing 
occurs where a mistake produces a result demonstrably different 
from that intended by the doer. 

Where, however, the outward expression is unambiguous and the 
divergence which actually exists between such expression and the 
inward will is not discoverable, the juristic act may, in some cases, 
be perfectly valid notwithstanding the divergence 2 . The leading 
illustration of such cases is what is known as ‘ mental reservation,’ i. e. 
one party to an agreement intends, without the knowledge of the other, 
to will something different from what he expresses. In the same 
way, too, an unintentional divergence between the will and its ex- 
pression may be immaterial, in the sense that the person concerned 
is legally bound by his expression. Thus, for example, if a man goes 
into a restaurant and has dinner, and subsequently declares (with 
perfect truth perhaps) that he thought the dinner cost less than it 
actually did, such unintentional discrepancy between will and expres- 
sion will be legally immaterial. He will be bound nevertheless to 
pay the price usually charged at the restaurant, because his conduct 
in ordering the things without any reservation— purchasing them, in 
fact — amounted to an unambiguous expression of intention on lib 
part to pay that price. The principle of Roman law then is that 
where an expression of intention can have but one meaning, its 
effect is determined by that meaning, and it is only where the ev 

1 c.g. if the vendor, by mistake, asks /i\cn I’erfnigen, iSSj ; Hartmann, in 

for too low a price, and it ap]>cars at J hiring s Jahrbmher /. Dogmaiik, vol. 

once from the surrounding circumstances xx. p. iff,; also in the Anhiv fur 
that he is acting under the influence d. civ Hi stischc Praxis , vol. lxxii. j>- 

of a mistake. Cp. the Annalm des 161 ff. For a different view, sec Kiseli*. 

hdnigl. Sachs. Oberlandc sgtrichts zu JA (ring's Jahrbuchtr , vol. xxv. p. 4 1 4 ff - 1 
Dresden . vol. ix. (1888) p. 528 ff. finnvcccrus, Das Rerhtsgcschitfi \iHHSJ, 

2 R. Leonhard, Der Irrtum bci nick p. 107 ff. 



THE LAW OF PROPERTY ( GENERAL PART) 219 


pression is ambiguous that the interpretation of the juristic act is § 41 . 
determined by the real underlying intention as such. 

I 2. The Expression. 

By ‘expression,’ ‘manifestation,’ or ‘declaration* we mean the 
notification by one person to a definite other person of his will to 
produce a legal result. Thus it is not every notification that pro- 
duces a juristic act, but only a declaration of intention which is 
addressed to the other party concerned in the juristic act, e. g. to 
a person witnessing a will, or to a person with whom it is intended 
to conclude a contract. In regard to the form in which the will is 
expressed, juristic acts are said to be either formal or informal. 

They are formal, when the law prescribes the form in which the 
expression of the will is to be made, so that the acts in question 
can only be validly constituted in that particular form. A will is an 
instance of a formal juristic act. Informal juristic acts (and most 
juristic acts are informal) are those in which the will may be 
; expressed in any form whatever, by writing or speaking, by mes- 
senger, letter, or otherwise, nay, even without any proper act of 
communication at all {by a ^so-called ‘tacit expression of will*) 
where the act is done in such a way as clearly to imply an intention ’. 

All that is required in informal acts is that the will shall be ex- 
pressed in some manner or other. 

L. 3 I), de reb. dub. (34, 5) (Pauixs) : In ambiguo sermone 
non utrumque dicimus, sed id dumtaxat quod volumus. 
ltaque, qui aliud dicit quam vult neque id dicit quod vox 


' The will can thus Ik? manifested in 
‘>nc of two ways, cither explicitly, by the 
mere act of notification, or tacitly, by 
aurally doing that which is willed. As 
an instance of the latter kind we may 
take the following case: A bookseller 
s cnds me a book * on approval ' ; 1 take 
the book to a bookbinder and tell him 
t<> bind it for me ; this net of mine, by 
which l execute my intention to accept 
! lc bookseller’s offer, constitutes in 
tself an acceptance of the offer. As 
0 , incc » 1° so far ns it can Ik* re- 
garded, under the peculiar circumstances 


of the case, as tantamount to an ex- 
pression of the will at all, it will con- 
stitute, as a rule, not a tacit, but an 
explicit manifestation of the will. The 
practical distinction between the two 
cases is expressed in the rule that where 
the will is manifested by an act of 
notification, such manifestation is not 
legally complete till the notification has 
reached the parly to whom it is ad- 
dressed ; where, however, the will is 
manifested by the act of carrying it out. 
the manifestation is complete at once 
on the doing of the act. 



220 


THE INSTITUTES 


§ 41 . significat, quia non vult, neque id quod vult, quia id non 

loquitur. 

L. 9 pr. I), de her. inst. (28, 5) (Ulpian.): Quotiens volens 
alium heredem scribere alium scripserit in corpore hominis 
errans, veluti 1 frater metis,’ ‘ patronus meus/ placet neque 
eum heredem esse qui scriptus est, quoniam voluntate de- 
ficitur, neque eum quern voluit, quoniam scriptus non est. 

L. 57 D. de O. et A. (44, 7) (Pomponius) : In omnibus 
negotiis contrahendis, sive bona fide sint sivc non sint, si 
error aliquis intervenit, ut aliud sentiat puta qui emit aut 
qui conducit, aliud qui cum his contrahit, nihil valet quod 
acti sit. 

§•42. Motive , as affecting Juristic Acts. 

$ 42 . The general rule is that the motives from which a juristic an 
proceeds are immaterial, as far as the legal effect of the act is con 
cerned. It is therefore, as a rule, a matter of indifference whether 
a person has gained his object by the juristic act or not. If, for 
example, he buys a book, thinking it deals with one thing, whereas 
it really deals with another, the sale is nevertheless perfectly good. 
His motive is immaterial. Falsa causa non norct. 

Such is the general rule. There are nevertheless some exception.]! 
cases where the motive is material in the eye of the law. Thest 
are the four cases of metus, dolus, error in substantia, and donatio. 

I. Metus. 

Metus occurs when a person is forced to a juristic act under the 
influence of fear arising from a threat. The threat is called ‘vc 
compulsiva,’ and is distinguished in this sense from what is called 
‘vis absoluta,’ or sheer physical force. The object of the threat 
is to secure the conclusion of some juristic act, for example, 
a transfer of ownership, a promise to pay money, and so forth. 
Roman civil law, in such cases, upheld the transaction as perfectly 
valid and binding, but the praetor supplied the person intimidated 
with the means of cancelling, by process of law, the effects of the 
act which was thus forced upon him. These means were, first, the 
actio quod metus causa, an action for the recovery of property 



THE LAW OF PROPERTY ( GENERAL PART) 221 


available against any one who was actually the richer, at the time, § 42 . 
by the transaction in question ; secondly, the exceptio quod metus 
causa, i. e. a special defence allowed to a person who was sued on an 
act he had performed \inder the influence of fear. Metus was, thirdly, 
a ‘justa causa * for the granting of ‘ in integrum restitutio* (infra, p. 313). 

L. 1 pr. D. quod met. c. (4, 2): Ait praetor: Quod metus 

CAUSA GESTUM ERIT, RATUM NON HABEBO. 

L. 14 § 3 D. eod. (Ulpian.) : In hac actione non quaeritur 
utrum is qui convenitur an alius metum fecit : sufficit enim 
hoc docere, metum sibi illatum vel vim, et ex hac re eum 
qui convenitur, etsi crimine caret, lucrum tamen sensisse. 

II. Dolus. 

Dolus occurs when one party to an agreement is induced to 
conclude a juristic act by means of the deliberate deception prac- 
tised on him by the other. One party, in short, is defrauded by 
the other. Here again the civil law upheld the transaction as 
perfectly valid and binding, hut the praetor granted certain legal 
remedies against the fraudulent party by means of which the civil 
law effects of the transaction were nullified. These remedies were, 
first, the actio doli and, secondly, the exceptio doli. The object 
of the actio doli (which was merely a subsidiary remedy, applicable 
only if there were no other kind of legal redress) was to obtain in- 
demnification for all loss resulting from the juristic act, involving, in 
some cases, a rescission of the whole transaction. It only lay against 
the defrauding party himself, or his heir, but not against third 
parties who had profited by the transaction. The exceptio doli 
was a special defence to an action brought by the defrauding party, 
or his legal successor, on the transaction in question. There was 
also, thirdly, an ‘ in integrum restitutio propter dolum * (infra, p. 313). 

L. 1 § 1 D. de dolo (4, 3) : Verba autem edicti talia sunt : 
Quae dolo malo facia esse uickmtr, si dk his rebus 
ALIA ACTIO NON ERIT ET JUSTA CAUSA ESSE VIDEIUTUR, 
JUDICIUM DABO. 

III. Error in Substantia. 

‘Error in substantia* is a mistake concerning some essential 
quality of the subject-matter of the agreement, i.e. concerning 



222 


THE INSTITUTES 


42 . some quality which places the article for commercial purposes in a 
different category of merchandise. Thus it would be an error in 
substantia, if I were to mistake a gilt vessel for one of solid gold, 
vinegar for wine, or a female slave for a male one. In all these 
cases the subject-matter of the agreement is specifically indicated. 
Both parties mean precisely the same individual thing. There is, 
in other words, complete ‘consensus in corpore.’ Thus ‘error in 
substantia y is the very opposite of ‘ error in corpore/ for the former 
presupposes complete consensus as to the subject-matter of the 
agreement, whereas in the latter there can be no consensus, because 
each party is thinking of a different subject-matter. In the case 
of an error in substantia, one party can he proved to have believed 
the subject-matter to possess some essential quality which in truth 
it does not possess. There need not be any fraud on the part 
of the other ; he may be labouring under precisely the same mistake. 
The mistake, such as it is, is a mistake of motive, a mistake 
which produces the necessary will, the consensus, in a word, the 
juristic act, in precisely the same manner as metus and dolus in 
the previous instances. The juristic act is complete, and on prin- 
ciple, again, perfectly valid and binding. Falsa causa non nocet. 
In certain exceptional cases however, where there is a bilateral con 
tract, a person who, under the influence of an excusable error in 
substantia, becomes a party to such a contract (e. g. a sale), may 
impeach the transaction on the ground of such error in substantia. 
Thus in the great majority of juristic acts (traditio, pledge, promise 
of bounty, depositum, commodatuni, &c.) Roman law treats an error 
in substantia (like any other motive) as immaterial, so far as tlu- 
legal validity of the act is concerned. Its legal relevancy is con- 
fined to obligatory transactions with promises of mutual considera 
tion, such as sale, letting and hiring, &r. And when we say that 
error in substantia is material in such cases, we do not mean that 
the entire transaction in question is void, nor again that it can he 
impeached by any special legal remedy. What we mean is merely, 
that in virtue of the bona fides which governs all such transactions, 
an error in substantia must necessarily modify the effects which they 
produce, and modify them, not merely according to praetorian law. 



THE LAW OF PROPERTY ( GENERAL PART) 223 


but ipso jure, i. e. according to the civil law. Where I clearly intend § 42 . 
to purchase wine, but through some excusable error purchase poison, 
it would be inconsistent with the requirements of good faith which 
govern the contract of sale, if I were simply condemned to pay the 
price, and were debarred from demanding a rescission of the sale, — 
unless indeed there are particular circumstances which make such 
a treatment of the case unfairly prejudicial to the vendor. For it is 
of the essence of every contract of sale, as well as of all other trans- 
actions which generate bilateral obligations (§ 76), that the parties 
arc not simply bound to perform what they actually promised, but 
are merely obliged to act up to the requirements (the full require- 
ments, however) of good faith and honesty in the mutual dealings 
between man and man '. 

IV. Donatio. 

A gift (donatio) is a transaction whereby one person, from motives 
of liberality, i. e. with a view to enriching another person, makes 
over to that other person— dando, promittendo or liberando — some 
property or benefit. Early Roman law had already subjected the 
power to make gifts to certain restrictions by the lex Cincia 
(204 it. c.), which prohibited gifts exceeding a specified maximum, 
unless they were made to certain exceptac personae. In Justinian's 
law transactions which have for their object the making of a gift are, 
on account of this motive, governed by the following rules : — 

1. Clifts between husband and wife are void (§ 94 ad fin.). 

2. Gifts exceeding a certain maximum (fixed by Justinian at 500 
solidi, about £23 4) arc void to the extent of such excess, unless 
the donor registers the gift in court (insinuatio), thereby formally 
manifesting his intention of bounty. 

3. Gifts are revocable on the ground of gross ingratitude on the 
part of the donee, e.g. if he compasses the donor's death, or scan- 
dalously libels him. 


1 C'p. Zitelmann, Irrtum und Ktikts* 
geschtift p. 560 IT. The view 

embodied in the text differs from the 
prevalent doctrine according to which 
an error in substantia render bilateral 
contracts totally void in Roman law, so 


that, as far ns such contracts are con- 
cerned, there is (on this view 1 no differ- 
ence in law between error in substantia 
^which tregets the con$cn$us> ami error 
in cornorc .which makes consensus im- 
possible). 



224 


THE INSTITUTES 


i 42 . A donatio mortis causa is a gift conditional on the donee 
surviving the donor. In regard to the rules 'just stated as well 
as in some other respects, donationes mortis causa are not governed 
by the law applicable to donationes, but by the law of legacies 
(§ nS)- 

L. i pr. D. de donat. (39, 5) (Julian.): Donationes complures 
sunt. Dat aliquis ca mente, ut statim velit accipientis fieri, 
nec ullo casu ad se reverti, et propter nullam aliam causam 
facit quam ut liberalitatem et munificentiam exerceat : haec 
proprie donatio appellatur. 

§ 1 I. de donat. (2, 7) : Mortis causa donatio est, quae propter 
mortis fit suspicionem : cum quis ita donat ut, si quid 
humanitus ei contigisset, haberet is qui acccpit ; sin autem 
supervixisset qui donavit, recipcret, vel si cum donationis 
poenituisset, aut prior deccsscrit is cui donatum sit. Hae 
mortis causa donationes ad exemplum lcgatorum rcdactae 

sunt per omnia ; a nobis constitutum cst ut per 

omnia fere legatis connumeretur . . . Et in summa, mortis 
causa donatio est, cum magis se quis velit habere quam 
eum cui donatur, magisque cum cui donat quam heredem 
suum. 


§ 43. The Qualifications of a Juristic Act . 

§ 43 . The normal effects of a juristic act may be modified by a col- 
lateral agreement between the parties to the act. The modifications 
which the parties thus agree to engraft on the act are what we call 
the ‘qualifications’ of a juristic act. Of such qualifications three 
are the most important : condicio, dies, modus. 

I. Condicio. 

A ‘condition* is an uncertain future event on the occurrence of 
which the parties agree to make the effect of the transaction de- 
pendent. A condition is ‘suspensive’ when the commencement, 
and ‘resolutive’ when the termination of the operation of the act 
is made to depend on its occurrence. On the fulfilment of a 
suspensive condition, the juristic act produces ipso jure its normal 
legal results, effecting a transfer of ownership, creating a liability, 



THE LAW OF PROPERTY {GENERAL PART) 225 


&c., as the case may be. And, conversely, on the happening 'of § 43 . 
a resolutive condition the normal effects of the act cease ipso 
jure 1 . 

If A makes over property by way of gift to B subject to a 
suspensive condition — subject, for example, to B’s passing an exam- 
ination — B (the donee) becomes owner of the property ipso jure 
the moment the condition is fulfilled; till then, A (the donor) 
remains owner. If the condition was meant to be resolutive, i. e. 
if the intention was that B should be owner, unless he failed in 
his examination, 3 ie 'ownership would vest in B at once, but on 
the fulfilment of the resolutive condition (i.e. on B’s failure to 
pass), it would divest again and revert ipso jure to the donor. 
Until, therefore, the condition is fulfilled, the ownership vests, in 
the former case, in the donor ; in the latter case, in the donee ; 
but in either case it is a mere interim ownership, a defeasible 
ownership (dominium revocabile), that is, an ownership which is 
liable to divest and to revert to another person. If in the mean- 
while the interim owner creates any rights in respect of the property 
—if he, for example, mortgages or alienates it — such rights are 
also defeasible, that is, they cease to exist the moment the condition 
is fulfilled: resoluto jure dantis resolvitur etiam jus accipientis. 

To account for such a result by ascribing it to the ‘retroactive effect* 
of the condition is unsatisfactory. What really happens is simply 
this: the annexing of a condition to a right has what may be 
described as a real effect on the right ; that is to say, it stamps 
the right w'ith a particular character not only as between the 
original parties, but as against any one who acquires it ; the right 
has, as it were, a burden attached to it, and whoever becomes 
j entitled to it, must take it, in that sense, cum one re. 
j The following are not conditions in the true sense of the word : 
‘condicioncs juris* or ‘condicioncs tacitae* (which are only terms 
for describing the requirements necessarily presupposed by the 

1 In the Arc hi v fur burgtrluhcs the resolutive condition in Roman law 
Rccht, vol. xv. (1S9S) |>. 1 fl., there is and shows within what narrow limits 
an important article by A. Kohler its practical application was confined 
(‘Die Kcsolutivbcdingung in which even in the Corpus juris of Justinian, 
the author traces the development of 

soim: ledlik Q 



226 


THE INSTITUTES 


§ 48 . essential nature of a juristic act ; the death of the testator before 
the heir, for example, is a ‘ condicio juris ' of the institution’s taking 
effect); ‘condiciones in praesens vel in praeteritum relatae,’ im- 
possible conditions, and necessary conditions. The peculiar 
characteristic of conditional transactions— viz. that the parties, by 
their own act, make the contemplated legal result dependent on 
an event which is both future and uncertain— is not to be found 
in the case of any of the so-called 1 conditions ’ just mentioned, 
and accordingly the rules relating to conditions (in the true sense) 
have no application. Where, for example, a condicio juris is not 
forthcoming, the rules to be applied are those dealing with the 
failure of an essential requirement of the particular legal relationship 
in question. An impossible condition renders a negotium inter 
vivos void; if annexed to a negotium mortis causa (supra, p. 217V 
it is taken pro non scripto. An immoral condition (condicio turpis) 
is treated like an impossible condition. 

§ 4 I. de V. O. (3, 15): Sub condicione stipulatio fit, cum in 
aliquem casum differtur obligatio, ut, si aliquid factum fuerit 
vel non fuerit, stipulatio committatur, veluti: Si Tims 
CONSUL FUERIT FACTUS, QUINQUE AUREOS DARE SPONDES? 

§ 6 eod. : Condiciones quae ad praeteritum vel ad praesens 
tempus referuntur aut statim infirmant obligationem, aut 
omnino non differunt, veluti : Si Trnus consul fuit— vel : 
SI MaEVIUS VIVIT, DARE SPONDES ? 

L. 9 § 1 D. de novat. (46, 2) (Ulpian.): Qui sub condicione 
stipulatur quae omnimodo exstatura est, pure videtur sti- 
pulari. 

II. Dies. 

1 Dies * is a future event which is certain to happen, and on the 
occurrence of which the operation of the juristic act is cither to 
commence (dies a quo) or to terminate (dies ad quern). 

Dies incertus quando is the term applied when it is uncertain 
at what particular time the dies will occur, as where the liability 
of a surety is to cease on the death of the debtor. If there is 
uncertainty as to whether the dies will ever occur at all— as where 
A promises to give B £10 on the day when he passes his exam- 



THE LAW OF PROPERTY ( GENERAL PART) 227 


ination— this, though called 4 dies incertus an/ is not properly a dies § 43. 
at all, but a condition. 

§ 2 I. de V. O. (3, 15): Id autem quod in diem stipulamur 
statim quidem debetur, sed peti prius quam dies veniat non 
potest. 

IJI. Modus. 

‘Modus’ (in the technical sense) is a qualification added to a 
gift or testamentary disposition, whereby the person benefited is 
required and bound to devote the property he receives, or the value 
thereof, in whole or in part, to a specified purpose 2 . Where 
a right is conveyed sub modo— as where A makes B a gift of 
property, requiring him at the same time to give £10 to C — the 
effect is not the same as in the case of a condition. The modus 
has no 4 real 9 effect on the right conveyed ; that is to say, it does 
not impress the right with a particular character as against any 
one that acquires it ; it does not encumber the right in the sense 
of making it defeasible. The recipient (B) becomes absolute owner 
at once, subject only to a personal obligation to perform the act 
required of him. But even if he does not perform it, his title 
as owner remains unaffected, though the non-performance renders 
him liable to an action in personam. And if he alienates or 
mortgages the property, the alienee or mortgagee will take it free 
from any duty in respect of the modus. The effect of a modus, 
unlike that of a condition, is merely to impose an obligation on 
the person who takes the property sub modo. 

L. 17 § 4 D. de cond. et dem. (35, 1) (Gajus) : Quod si cui in 
hoc legatum sit ut ex eo aliquid faceret, veluti monumentum 
testatori, vel opus, aut epulum municipibus faceret, vel ex eo 
ut partem alii restitucrct, sub modo legatum videtur. 

L. 80 eod. (Scakvoea) : . . . ncc enim parent dicemus eum cui 
ita datum sit : si monumentum fecerit, ct cum cui datum 
est: UT MONUMENTUM FAC I AT. 


1 Cp. Pc mice, Latov, vol. iii. part 1 : Auflagc u. Zwcckbcstimmung (189a}. 



228 


THE INSTITUTES 


§ 44. Capacity of Action. 

§ 44 . ‘ Capacity of action/ in the wider sense, is the capacity to act in 

such a manner as to produce a legal result. As far as the law is 
concerned, only the acts of persons legally capable of acting need be 
taken into account as ‘acts/ i.e. as manifestations of a will % whether 
lawful pr unlawful. 

Capacity of action, in the narrower sense (and it is in this sense 
that the conception is of special importance in private law), means 
the capacity to perform acts of a particular kind, the capacity, 
namely, to conclude juristic acts. In the German Civil Code this 
capacity to conclude juristic acts is called * Geschaftsfahigkcit.* There 
are three degrees of such capacity : total absence of capacity, partial 
absence of capacity, full capacity. 

I. The following persons are incapacitated from all juristic acts : 

(<j) the 1 infans, ’ or child who has not yet completed its seventh 

year; 

( b ) the * furiosus,’ or person of unsound mind. 

II. The following persons are in Roman law' incapacitated from 
some juristic acts, but capable of others : 

(a) the ‘impubes/ or child who has completed its seventh, but 
has not yet completed (if a boy) his fourteenth or (if a girl) 
her twelfth year ; 

(d) the 4 prodigus/ or prodigal who has been placed under the 
control of a curator. 

In the early Roman law women were also capable of some juristic 
acts only (§ 103, ii.). 

The legal position of persons of the second class is as follows. 
They are capable of such juristic acts as result in an improvement of 
their proprietary position, but they arc incapable of juristic acts which 
operate to alienate property or impose a liability. If therefore 
a person of imperfect capacity enters on a transaction which operates 
both to confer a right and to impose an obligation, he acquires the 
right, but cannot himself be sued on the transaction. Thus, if 
he contracts a loan, he becomes owner of the coins given him 



THE LAW OF PROPERTY ( GENERAL PART) 229 

under the loan, but cannot be sued on the loan, as such. All he can § 44 . 
be compelled by action to do — and in this respect he is in just the 
same position as a person who is completely incapacitated — is to 
restore the amount by which he is still the richer in consequence of 
the transaction (§ 83, i.). If the transaction is one involving a per- 
formance on one side and a counter-performance on the other (e. g. 
a sale), he is entitled, according to Roman law, to exact performance 
from the other party without being himself compellable by action to do 
his part. Hence such transactions are called ‘ negotia claudicantia.' 

A guardian may act in place of a person of imperfect capacity. 

Or, if the latter be an impubes, he (the impubes) may conclude acts 
which operate to alienate property or impose a liability himself, 
provided he is assisted by the presence of his guardian (tutoris 
auctoritatis interpositio). Cp. § 103. 

pr. I. deauct.tut. (1, 21): Auctoritas autem tutoris in quibusdam 
causis necessaria pupillis est, in quibusdam non est neces- 
saria : ut ecce, si quid dari sibi stipuletur, non est necessaria 
tutoris auctoritas ; quod si aliis pupilli promittant, necessaria 
est. Namque placuit meliorem quidem suam condicionem 
liccrc cis facerc etiam sine tutoris auctoritate, deteriorem 
vcro non aliter quam tutore auctore. Unde in his causis ex 
quibus mutuae obligationes nascuntur, in emptionibus ven- 
ditionibus, locationibus conductionibus, mandatis, depositis, 
si tutoris auctoritas non interveniat, ipsi quidem qui cum his 
contrahunt, obligantur, at invicem pupilli non obligantur. 

§ 2 eod. : Tutor autem statim in ipso negotio praesens debet 
auctor fieri, si hoc pupillo prodesse existimaverit ; post tempus 
vcro aut per cpistulam interposita auctoritas nihil agit. 

L 6 1 ). dc V. O. (45, 1) (U liman.) : Is cui bonis interdictum est 
stipulando sibi adquirit, tradcre vero non potest vel promit- 
tendo obligari : et idco nec fidejussor pro eo intervenire 
poterit, sicut nec pro furioso. 

HI. All persons not specified in classes (i) and (ii) have full 
legal capacity for all juristic acts, including therefore the capacity to 
incur contractual liabilities of their own. According to Roman law, 
then, minors who are above the age of puberty, but under twenty- 



230 


THE INSTITUTES 


§ 44 . five years (puberes minores xxv annis) enjoy full capacity. Such 
minors are, however, allowed to apply for a curator, and once such 
a curator is appointed, the ‘minor curatorem habens ’ ceases, in 
spite of his full capacity of action, to have any power to dispose of 
his property. He is deprived of the right to manage his own pro- 
perty, because the management of it has been transferred to his 
curator. True, he can, by his own will, conclude juristic acts of any 
kind, including such as effect an alienation of property or impose 
a liability; he does not require any auctoritatis interpositio, any 
present assistance from his guardian. But the difference is this that, 
unless the curator gives his sanction (whether in praesenti, before, or 
after the transaction), all such acts of the minor as purport to alienate 
property or impose a liability, are nugatory as far as any effect on 
his property is concerned. If, instead of procuring the consent of 
the curator, the minor himself ratifies his act after attaining majority, 
the act is also binding. Wherever incapacity of disposition is con 
cerned, it is the effect of the juristic act that comes into question; 
wherever, on the other hand, incapacity of action is concerned, it i> 
the existence of the act that comes into question. 

In the course of the development of German law the notion of 
pubertas as marking a distinctive age for legal purposes wa-* 
abandoned, and the special rules of Roman law concerning minore> 
puberes ceased therefore to be recognized. Accordingly the (Icrman 
Civil Code (§ 106, and cp. § 107, cited below) assigns a limited capacity 
for juristic ac ts to all minors who have completed their seventh yeai 
(infantia majores), and the same limited capacity is assigned by 
§ 1 14 of the Code to persons placed under guardianship by reason 
of imbecility of mind, prodigality, or dipsomania. 

pr. I. de curat. (1, 23): Masculi puberes et feminae viripotentes 
usque ad vicesimum quintum annum complctum curators 
accipiunt. 

Gkrman Civil. Com-,, § 107 : A minor (who has completed ho 
seventh year) cannot make a valid declaration of intention 
without the consent of his statutory representative unless 


A» to 1 statutory representative/ v. infr.i, p. ijj. 



THE LAW OF PROPERTY ( GENERAL PART) 231 


the declaration is of such a nature as to confer exclusively § 44 . 
a right or benefit on the minor. 

From capacity for juristic acts we must distinguish two other 
capacities, viz. (1) ‘proprietary’ capacity; (2) ‘delictual’ capacity. 

(1) ‘Proprietary capacity,’ which, as we have seen (§ 30), is the 
prime characteristic of a person within the meaning of private law, 
is the capacity to hold property, taking the word property in its 
widest sense as including both rights and debts. Proprietary 
capacity, in other words, means both the capacity to acquire rights 
and the capacity to incur liabilities. An infans may, like others, 
acquire rights and incur liabilities, e. g. by the act of his guardian. 

By capacity of action, on the other hand, we mean the capacity to 
acquire rights and incur liabilities by one’s own act, i. e. by a mani- 
festation of one’s own will. An infans has proprietary capacity 
because he is a person, but he has no capacity of action. 

(2) ‘Delictual capacity’ is the capacity to incur a liability for 
unlawful acts. Like the capacity for juristic acts it is a species 
of ‘capacity of action’ in the wider sense of that term, but it is not 
governed by precisely the same rules as the capacity for juristic 
acts. A person who is incapacitated from all acts, such as an 
infans or a furiosus, is also incapable of any delictual liability. But 
a person whose capa<ity for juristic acts is limited may, according 
to Roman law, become liable on delicts, if he appears to be doli 
rapax (e. g. the prodigus, the pubcrtati proximus). Thus delictual 
capacity and complete capacity for juristic acts are independent 
of one another. The essence of the latter capacity consists 
mainly in the ability to incur liabilities by means of juristic acts 
(agreements). 


$ 4f,. Representation. 

There are many juristic acts which a person may be bound or § 45 . 
willing to conclude, but which he is unable to conclude in his own 
person. A lunatic am not buy bread for himself even though he has 
money enough to pay for it. A rule of law prevents his concluding 
dm act. Nor, again, is it practicable for the master to go to market 



232 


THE INSTITUTES 


§ 45 . every day and purchase the daily provisions himself. The conclusion 
of the juristic act is, in this case, prevented by physical reasons. 

If I desire to conclude a juristic act on my own behalf, but am 
prevented by purely physical reasons, I may frequently avail myself 
of the services of a messenger. The messenger serves precisely the 
same purpose as a letter, the purpose, namely, of overcoming the 
external obstacle of distance. He makes the journey instead of me, 
but it is 1 myself who conclude the juristic act. It is I who have 
formed a definite intention, and the messenger is merely the medium 
through which I express that intention ; he is only the instrument by 
which I myself conclude the juristic act. Suppose, however, that 
in employing another to do business for me, I have no intention 
of concluding the transaction myself. In that case, I shall give 
the other person authority to act on my behalf, to act in my name. 
If I own a business, I shall appoint a manager to act for me in 
the shop ; if I am an inn keeper, I shall appoint a waiter to attend 
to the guests in my place. My intention is that the negotiations 
conducted with the person whom I have authorized to act in my 
stead, shall decide the result, and shall be regarded in the same way 
as though they had been carried on by myself on my own behalf. 
The authorized representative is not merely to save me the journey, 
but is to conclude the juristic act for me. He is to weigh all the 
circumstances. The decision, the exertion of the will by virtue of 
which the juristic act is concluded, is his, not mine. Such is the 
true nature of representation. A messenger is merely a conduit-pipe 
for conveying my will ; a representative is a person who wills instead 
of me. Representation, then, is the conclusion of a juristic act 
by one person acting for another; in short, the conclusion of 
a juristic act in the name of another. 

It is obvious that a mere messenger would be of little use to 
a person who is himself legally incapable of com hiding juristic acts 
(e. g. a lunatic, infans, impubes*. Such a person must therefore 
necessarily act through a representative. 

Representation thus occurs in two classes of cases : first, in cases 
where a person is prevented by law from acting himself, so that 
representation becomes a matter of legal necessity ; secondly, in 



THE LAW OF PROPERTY ( GENERAL PART) 233 

cases where a person is prevented merely by physical reasons from § 45 . 
acting himself, where therefore representation is due to the voluntary 
act of the person represented. The former kind of representation 
has its type in the representation of a ward by his guardian and may 
accordingly be called ‘tutorial representation.’ The other kind of 
representation we will call ‘ procuratorial representation/ or ‘agency’ 
simply. The German Civil Code speaks in the first case of repre- 
sentation by a ‘statutory representative’ (‘ gesetzlicher Vertreter ’), in 
the second case of representation by an ‘ authorized agent ’ (‘ Bevoll- 
machtigter’). 

Roman law was very slow to recognize the idea of representation, 
and the sphere within which it was applied remained throughout a 
restricted one. In cases of 1 tutorial ’ and ‘ procuratorial ’ represen- 
tation alike, Roman law adhered to the rule that a juristic act could 
only be concluded by a person in his own name, thus refusing on 
principle to admit the idea of representation at all. If an agent or 
guardian had occasion to act in lieu of his principal or ward, Roman 
law required him to conclude the juristic act say, a contract of sale 

for himself, the person represented remaining undisclosed, so far 
as the other party was concerned (infra, p. 23 4). During the Empire, 
however, a significant exception to this rule came to be recognized. 
Wherever the acquisition of possession and of such other rights — 
more particularly the right of ownership- as are acquired through 
the medium of possession was concerned, the principle of representa- 
tion was admitted Anything acquired by a procurator (i. e. a freely 
chosen representative) in the name of his principal or by a guardian 
in the name of his ward, passed directly into the ownership of the 
principal or ward ’. As regards contracts, however, the rule remained 
unaltered ; that is to say, it continued to lie held that contractual 
rights and liabilities could only accrue to the contracting party him- 
self, and that contracts could not lie validly concluded in the name 
of a third party 11 . This rule constitutes a most important point of 
difference between Roman and modern law. 

1 Cp. Unci, in JhtriHjfs Jahtbuihtr, as much a* it did to a procurator ; cp. 

vol. xxxvi. p. 8«>. 1 . a(> § 3 C. dc adm. tut. (5, 37). (The 

* This rule applied to a guaidian just author has to thank Trolcssoi Kegels- 



2 34 


THE INSTITUTES 


§ 45. In modern systems of law both forms of representation— that which 
is necessitated by the law itself and that which is due to the voluntary 
act of a party — are, on principle, admissible in all transactions of 
private law. The juristic act is, in such cases, concluded by the agent, 
acting on behalf of another ; in other words, as far as its conclusion 
is concerned (i. e. as far as the act of the will is concerned by means 
of which it comes into existence), the juristic act is the act of the 
agent. But as far as its effects are concerned— and in modern law 
this is the universal rule — the act operates not to the advantage or 
disadvantage of the agent, but of the principal, the ‘dominus negotii.’ 
In a word, the act is, in point of legal effect, the act of the principal. 
The relevant provisions of the German Civil Code are, of course, 
based on these modern ideas of representation, the principle adopted 
being that of ‘direct representation,’ according to which the acts 
of the representative operate to confer rights and impose duties 
directly on the principal. 

The principles of representation have no application, unless the cir- 
cumstances are such : ‘ as to enable the party, with whom the agreement 
is made, to know that the other is merely acting in a representative 
capacity. It is therefore only where the representative (whether 
guardian or procurator) acts as such, only, that is, where the represen- 
tative expressly avows himself the agent of a third party who is the 
person really concerned in the transaction (the dominus negotii), or 
else w'here the circumstances themselves show clearly enough that he 
must be acting as an agent, -only then do the rights and liabilities 
under the transaction accrue, not to the representative, but to the 
dominus negotii. The transaction must, in other words, be con 
eluded in such a way as to show clearly that it was intended to be 
concluded in the name of the dominus negotii, as would be the case, 
for example, with a contract made by a waiter in an inn, or by a shop 
assistant in a shop. The principles of representation have, therefore, 

berger for drawing his attention to this (i.j, i); Mittcis, Z.S. d. Sav. .V/.. v«»l. 
|«a-j»agc.) In the extraordinary pro- xix. p. 200. 

fed 11 re of the imperial officials, however 3 So far, of course, ax they open ft* 
(cp. supra, p. 1 12), there are clear indi- at all; in Roman law, therefore, Mil> 
cations of a tendency to extend the pnn- jeet always to the limitations indicated 
ciplc of direct representation to con- above, 
tracts ; see 1. 1 § 18 D. de excrcit. act. 



THE LAW OF PROPERTY ( GENERAL PART) 235 

no application except in those cases where the principal is disclosed , § 45. 
j. e. in those cases where the other party knows, or might reasonably 
know, that the person he is dealing with is merely a representative. 

On the other hand, where a person (whether guardian or another), 
though really acting on behalf of (i.e. on account of) a principal, 
does nothing to show that he is so acting, but purports to be acting 
suo nomine, leaving his principal undisclosed — in such a case there 
is legally no agency at all, and neither in Roman nor in modern law 
would the principles of representation come into play. If an agent 
leaves his principal undisclosed— as where a friend buys stamps 
for me at the post office— the effects of the act he concludes operate 
to the advantage or otherwise of himself, and not of the dominus 
negotii. A second juristic act is necessary for the purpose of 
assigning the effect of the first (e. g. the acquisition of ownership) to 
the dominus negotii. Secret representation is, therefore, no true 
representation at all. 

Again, what is called 4 involuntary representation/ i. e. that form 
of representation under which the acquisitions of the slave or filius- 
familias pass by the necessary operation of law to the dominus and 
paterfamilias respectively it has disappeared from modern systems 
of law- is, strictly speaking, no representation at all (supra, pp. 172, 

1S5). The juristic act concluded by a son or slave operates, on 
principle, to the advantage, and never to the prejudice of the 
Miperior. Thus, on principle, the superior incurs no liability on 
a loan contracted by the son or slave, though he becomes owner ot 
the money received. In other words, there is but a partial opera- 
tion of the principles of representation. It is only on certain other 
specific conditions that the superior becomes subject to the liabilities, 
as he is entitled to the benefits arising from a trail sat lion concluded 
by his son or slave (§ tSS). And it is moreover to be observed that 
acquisitions of a son or slave pass by operation of law to the father 
( »r dominus quite regardless of the fact whether the former were 
acting in their own name or in that of their superior, or again whether 
they were authorized to act or not. The rules on representation can 
have no application to a relationship of this kind. 



236 


THE INSTITUTES 


II. THE PROTECTION OF RIGHTS. 
(LAW OF PROCEDURE.) 


§ 46. Introduction . 

40. No man need submit to being forcibly and without authority 
deprived of what belongs to him. In repelling an unlawful attack on 
his property, he is merely protecting his right by his own force. 
This kind of force, or, as it may be called, self defence is permissible : 
vim vi repellere licet. Self-defence involves, in fact, the exercise of 
a right— a forcible exercise, it is true, but still the exercise of a right 
—and is therefore lawful : qui jure suo utitur, nominem laedit. 

But it is a different matter, if the violation of the right is past and 
complete. It is then not a question of preventing, but of redressing 
the violation of a right which has already taken place, of coercing the 
will of an opponent who is in actual possession ; in a word, it 
a question of executing the law. In this case private force, or self 
hety, is not allowable. To attempt to obtain redress by means of 
your own strength, would be, not as in the first case, to exercise, but 
to transgress, the private right which has been infringed, because 
private law only confers rights of dominion over things, or- in the 
case of family rights — over persons in a condition of partial de- 
pendence (supra, pp. 26, 163), and never confers any direct power 
over the free will of an independent person. To coerce a free 
person offering resistance to the law, in other words, to execute the 
law, is, in classical Roman law as well as in modern law, reserved 
for the state. Once a right has been definitely infringed, there i s 
only one way of securing an execution of the law, and that is by 
invoking the power of the state, in short, by bringing an action 
at law. 

Obligatory rights have this peculiarity that, prior to the fulfilment 
of the obligation, the creditor can never be said to be exercising his 



THE LAW OF PROPERTY (GENERAL PART) 237 


right, and that his right is never, in the first instance, available § 46 . 
against a thing, but always only against the person of his debtor. 

It follows from this that, if a creditor seeks to obtain satisfaction by 
force, his act can never be one of legitimate self-defence, but must 
necessarily be one of self-help. Every person, therefore, who claims 
an obligatory right and desires to obtain satisfaction of his right by 
compulsory means must, on principle, seek his remedy by an action 
at law. 

Self-help, which we may now define as the unauthorized taking of 
the law into one’s own hands, was rendered penal in Roman law by 
a decree of Marcus Aurelius (the ‘decretum divi Marci’). The 
decree applied to self-help as such, and not only to acts of self- 
help which infringed the rights of another and might (as already 
pointed out) be met, if necessary, by force on the part of the person 
aggrieved. The punishment consisted in the delinquent forfeiting the 
right he had sought to assert in a forcible and unauthorized manner ; 
and if he never possessed that right, he was compelled to restore 
double the value of the property he had forcibly appropriated. 

There are, however, some exceptions to the rule forbidding self- 
help. Self-help is considered lawful- and was so considered even 
in Roman law— in cases of emergency where, as a matter of fact, the 
judicial protection is inadequate, and where, consequently, self-help 
supplies the only means of preventing irreparable damage ; for 
instance, as against a debtor who attempts to abscond in order to 
defeat his creditors. 


$47. Roman Civil Procedure'. 


The fundamental characteristic 
classical period is the division of 

1 Killer’s /Yr hr 1 ivilp’ous f 

wui dir Akti.'wn <>th edition, ad- 
mirably revised l>> Waeh, ibS.V con- 
Unucs to hold its place as the standaid 
work 011 Roman civil pmccdun*. In 
qnite recent times a great deal of Irish 
bght has been thrown on the formulary 
procedure in consequence more par- 


of Roman civil procedure in the § 47 . 
all judicial proceedings into two 

ticularlv of the very valuable researches 
ot M. Wla.vak, Kk mist hi J'rxtssgt- 
2 vols. , iSSS, tSqi N ; on the same 
subject, \VUs>ak. lUt 1 iUsicnteHatioH 
im J'crmu.\irfh\(ss . l'estschnlt tur 
W imUchcid . 1SS9 ; / ur iiestkiihtf dtr 
Ccgnilur lSq.V- Ol other modem 
books on civil proccdutc we may 



238 


THE INSTITUTES 


§ 47. sharply distinguished sections, the proceedings ‘ in jure/ and the 
proceedings ‘in judicio.' 

The proceedings ‘in jure* are the proceedings before the magistrate, 
that is to say, before a judicial officer, the organ and representative 
of the sovereign power of the state. And since the introduction of 
the praetorship the * magistrate * means, as a rule, the praetor. The 
object of the proceedings in jure is, first, to ascertain whether the 
plaintiff's claim is admissible at all, i.e. whether there is any form 
of civil procedure by which it is enforceable ; secondly, to determine 
the nature of such claim, and, at the same time, to fix the conditions 
subject to which it can be asserted. In the absence of a ‘confessio 
in jure’ (supra, p. 58), the proceedings in jure culminate in, and 
terminate with, the so-called ‘litis contestation i.e. the formulating 
of the legal issue, the object of which is to supply a foundation for 
the ‘judicium’ and thus to obtain a final decision of the issue. 
The name litis contestatio — the ‘knitting of the issue' — is due to 
the original practice of coupling with this stage of the proceeding 
a solemn appeal addressed by each party to his witnesses*. The 

mention more especially the following : cum filio, ita judicio contrahi). Th»- 

Bekker, Die Adionen des romischen litis contestatio, which commences with 

Privairechts , 2 vols. ^1871, 1873,; the appeal to the witnesses, constitute 

Karlowa, Der rbmische C ivi l process the real 1 litigare/ ‘ ngere/ or ‘ petere ' 

zur Zeit der Legisadionen (187,1); upon the basis of which the judgment 

liar on, Abhandlungen aus dem row . proceeds ; cp. Wlassak, Cognitur, p. 7 !! 

Civiiproccss, 3 vols. ( 1881, 1 882, 1X87^* and infra, § 48, ». i. — best us’ words 
Aug. Schultzc, Privatrecht und Pro • 4 ordinato judicio ’ have hitherto bcei. 

cess in ihrer W'ecfoelbeziehung (18831, taken to mean that the appeal to the 

p. 228 ft. ; O. K. Hartmann, Jkr Onto testes did not take place till after the 

judieiorum tend die Judieia extraor - appointment (ordinare of the judiciun. 

dinaria der Power, er>tcr Tcil : Cher and, consequently, after the formulating 

die row. Ceric h ti verfassung, supple- of the ivme, thus marking the closing 

mented and edited by A. L’bbclohde act of the proceedings * in jure.' It ha> 

(1886). however been very justly objected by 

2 Kestus De l ’erborum Signific.) says : Hartmann-Ubbelohdc 'pp. 448, 449 

Contestari litem dicuntur duo aut plures that to snpposc the ap]>eal to have 

adversarii, quod ordinato judicio utraque followed the act of formulating th< 

pars diccre solet : testes estote. Doth issue is to supj>ose something ineon* 

parties must appeal to witnesses ' con- sistent with the very nature ot the ar- 
tesian). liy this appeal they solemnly cumstanccs. It has moreover been 

bind themselves to abide by the judicium clearly established by Wlassak {/Mr 

on the is-ue thus formulated. Hence the contestation, p. 72 f{.) that the wont 

notion that the carrying out of the litis 1 ordinare ’ is also used in the sense 0! 

contestatio creates a kind of obligation, 4 preparing/ and more especially 4 litem 

1 judicio eontrahitur' (Cic. de Leg. ill. 3 ; ordinare ’ in the sense of 4 preparing the 

lites contract as judicanto : 1 . 3 f 11 IX issue ’ (r.g. in the expression ‘ bonorum 

* 5 » * ’• sicut in stipulationc eontrahitur po&scssio litis ordinandae gratia'), ‘t* 1 ’ 



THE LAW OF PROPERTY ( GENERAL PART) 239 


granting of the litis contestatio by the magistrate is tantamount to § 47. 
a decision (decretum) on his part that the claim of the plaintiff is 
admissible in itself and that he (the plaintiff) is entitled to have 
a judicium appointed forthwith for the purpose of trying such claim 
in due process of law. 

The proceedings in jure however can never lead to a 1 sententia,' 
i. e. a judgment, in the legal sense of the term. The issue having 
been formulated by means of the litis contestatio, it is necessary, for 
the purpose of obtaining judgment, that the action should pass 
out of the hands of the magistrate into those of a private individual, 
or, in some cases, of several private individuals adjudicating as 
a collegiate body 5 . A sententia, in other words, a judgment, in the 


dinato judicio* would accordingly mean 
‘after the judicium has been prepared. 1 
Thus, as soon as it has been determined 
in what manner it is intended to formu- 
late the issue— i.e. as soon as (in the 
older procedure) the kind of legis actio, 
and (in the later procedure' the contents 
of the formula have been decided on — 
the witnesses are apj^ealed to and the 
contemplated act of formulating the issue 
(the litis contestatio) is solemnly per- 
formed in their presence. In the old 
times this was done by pronouncing the 
solemn words of the legis actio. In 
the formulary procedure it was probably 
done i.as Wlassik, ibid., has shown by 
the plaintiff delivering, or dictating, to 
the defendant the written formula 
which the praetor had approved (datin'. 
It appears, then, that in the formulary 
procedure there was also a definite 
act by which, ns in the earlier proce- 
dure, the parties themselves joined in 
formulating the issue in a manner 
agreed upon, the plain tiff, as it were, 
uttering, and the defendant accepting, 
the formula and, with it. the judicium. 
In the formulary procedure this act of 
the parties was also at the outset coupled 
with an appeal to the witnesses i Wlas- 
sak, ibid., p. 70 ff.). The formula how- 
ever being written, such an apjieal would 
obviously not have the same practical 
imjjortance as it had at the time of the 
oral formula of the legis actio, and it 
consequently fell into disuse during the 
Empire. On Wlassak's arguments see 
the observations of Lend, 2S. d, S\w. 


St.j vol. xv. p. 374 ff., and of Trampe- 
dach, ibid., vol. xviii. p. H4ff. 

3 All actions touching the liberty of 
a person were, during the Republic, tried 
by a standing college of ten sworn 
judges decemviri stlitibus judicandis). 
Actions concerning vindicationes, especi- 
ally the hcreditatis vindicatio, were re- 
ferred to the college of centumviri 
consisting of 105, and later of i$o 
members, who were grouped in several 
committees (consilia'. If the praetor 
wished to have a matter speedily de- 
cided, he was able, by virtue of his 
imperium, to appoint an extraordinary 
college of. usually, three or five * rccu- 
^ratoros.* who were directed to find 
a verdict within a specified time. Such 
cases of urgency arose especially in 
actions concerning j>ersonal liberty 
(vindicatio in libcrtatrm , the result 
being that the jurisdiction of the de- 
cemviri (who ceased to officiate in such 
actions since Augustus' was de facto 
displaced by the court of recuperatores. 
Recm>cratorcs were also appointed in 
actions to which aliens were parties. 
Cp. Wlassak, /Com. /'n\ts$gesctzt, vol. 
i. p. 179, n. u, and vol. ii. p. 31S.— 
Like the single judges, the rccupera- 
tores who were always appointed for 
the nonce' and the centumviri were, 
as such, private {Arsons. Although 
three centumviri were selected from 
each of the thirty-five tribes, there is 
nothing to show that thev were chosen 
by the comitia tributa. The decemviri 
however had, towards the clote of the 



240 


THE INSTITUTES 


§ 47. legal sense, can only be pronounced by a private person who is pre- 
cluded from exercising any sovereign discretion, because he in no 
way represents the absolute power of jthe state, being bound, by the 
oath under which he is acting, to adjudicate in strict conformity with 
the law as already established 4 . Thus I 10 one but a private person 
can be a judex in the true sense of the term, i. e. an organ of the 
positive law. For every decision of a magistrate is formally (even in 
civil cases) an assertion of his sovereign imperium, a decretum or an 
interdictum. It is, legally speaking, not a verdict, but an imperative 
order 5 . On the other hand, the decision of a judex, i. e. of a private 
person acting under oath and under an authority based, not on 
imperium, but on officium,— such a decision, and it alone, is a 
judgment, a verdict, a 1 sententia/ as distinguished from an order or 
imperative command. And this is the reason why the law of civil 
procedure in Rome required that the magistrate should abstain from 


Republic, to be elected by the coinitia 
triluta, so that formally they belonged 
to the magistratus (minores populi 
Romani, a tact which however dul not 
alter their position as against the 
litigant parties. All sworn judges 
whatsoever, including the decemviri, 
stand to the parties solely in the posi- 
tion of private individual* judex priva- 
tus. , and not in the position of magis- 
trates ujuip] >ed wi t h compuhor y ers ; 
v. I’d nice, /.S', dcr Sav. .S'/., vul. vy 
!>• 4 s - 

4 Cp. pr. I. de off. jud. 17 : 
Supcrest, ut de officio judicis dispici- 
amus, et quidem in primis illud oh- 
servare debet judex, nc aliter judicct 
quam legibus aut constitutionibus ant 
tnoribus proditum c*t. Unlike the 
magistrate (supra, p. 55. the judex is 
absolutely bound by customary a* well 
as other law. He is only allowed to 
depart from the law on the ex pros in- 
structions of the piaetor except 10, actio 
in factum; &c. , and the rcq*on*ibihty 
for such a departure rests not on Him , 
but on the magistrate alone. In apply- 
ing customary law the judex become*, 
at the same time, an unconscious instru- 
ment for developing it. liekker, l lit 
Aclionen, &c., vol. ii. p. 145 ff., i, right 
in pointing out this fact, but he for in n- 
lfttes his statement in a misleading 


manner, which would lead one to sup- 
I ose, quite erroneously, that the judex 
had a right to develop the positive law 
similar to that exercised by the magis- 
trate. 

3 This is the reason why a magis- 
terial decision, even in civil matters, 
could be annulled by the intercession of 
a co-ordinate or a superior magistrate, 
i. e. bv means of a coiinter-orch r of equal 
imperative finer imperium . One order 
simply annuli' d the other. It was this 
lav t that gave ii-e to the system of 
apjM al as developed in the older Roman 
law, one magistrate being ' appealed to 
to intercede against the other. The 
practice of appealing to the emperor, 
who was authorized to withdraw any 
suit in the tmpire fioin the ordinary 
courts for the purpose of bringing it 
before his own couit, led, during tire 
principatus, to the development of the 
nmdern system of ap|>caU, under whuh 
Ms in the old ‘provocatin' the courts 
are ranged in a series of higher ami 
lower inslame, a high* r couit tningthe 
case over again with a view to pronoun- 
cing a nciv judgment. Cp. |. Meikel. 
Ahhiinditingin au f dan iitbiett If' 
rimiuhtn f\ edits, Heft 2 : fiber ait 
(ieuhuhtc dcr ilasstschai Appellation 



THE LAW OF PROPERTY ( GENERAL PART) 241 


deciding the legal issue himself, and should refer the decision to a § 47. 
private person who was thereby appointed judex for purposes of the 
action e . The principle of the division of all civil procedure into the 
two stages of proceedings in jure and proceedings in judicio is the 
elimination of the magisterial power from the domain of private law. 

The issue, then, having been admitted and formulated in jure 
(litis contestatio), the next step is to pass it on for trial to a private 
judge, or several private judges, acting under oath. The proceedings 
before the judex are called the proceedings 1 in judicio/ The object 
of these proceedings is, as already stated, to obtain a decision of 
the legal issue by means of the judgment (sententia) of the judex. 

The judge's first business will be to ascertain the facts of the case 
and to receive such evidence as he deems necessary, after which he 
will proceed, on his conscience and to the best of his ability (ex 
animi sententia), to pronounce judgment, i.e. to give his verdict on 
the legal relationship submitted to him 7 . 

While the procedure in judicio did not, as far as we can see, 
undergo any material alteration from the time of the Twelve Tables 
down to the end of the classical epoch, an important reform had 
been effected in the procedure in jure towards the close of the 
Republic. The system of legis acliones was superseded by the 
formulary procedure. 


§ 48. The Legis Actio . 

The litis contestatio, with which the proceedings in jure terminated. § 48. 
was, in the early Roman procedure, a solemn act of the parties. 


h As regards this statutory obligation 
"ii the magistrate to refrain from giving 
tlie decision himself and to appoint a 
'Worn judge to dr.nl with the matter, 
it should !*> observed that it only took 
'Meet it both parties to the action were 
Roman citizens and the action was tried 
within the fiist milestone from Rome, 
'• 0. within the city proper: Wlassak, 

I'om. Proffwgfwtzf, vol. ii. pp. 33S 43. 

' Judicium, in the original and literal 
'•en.se of the word, me ans the court ;the 
cum t of the sworn judge, namely) 
which was entrusted with the dttision 
"f the matter at issue : Wlassak, Kctn. 


vol. ii. pp. 53. 54. The 
ti adit tonal practice of describing the 
proceedings More this court- that is, 
More the private individual acting 
under oath— as the proceed. ngs in 
judicio is thus justified, though Wlassak 
ha> shown ( \\ . < it. pp. 2ft IT., 56ft.) 
that in our authorities the term judicium 
means the entire action, including the 

I noccedmgs in jure ami more particu- 
arly the litis contestatio, the idea being 
that, tl and as soon as the litis contes- 
tatio has taken place, the judicium is 
already inexistence (judicium inchoatum, 
judicio actum cst' ; ibid. pp. 29, 3a. 


SOHM: LBDLIB 


R 



242 


THE INSTITUTES 


§ 48 . When the arguments before the magistrate had concluded and the 
latter was about to grant a judicium, both parties, having solemnly 
called upon witnesses to testify to the issue between them, proceeded 
in the presence of these witnesses, to formulate the issue in an 
unequivocal manner by means of their own formal act, using for 
this purpose certain fixed traditional terms f litis contestatio, supra, 
p. 238). The formulae to be pronounced were determined either by 
the wording of a popular statute, the statute namely on which the 
action was based, or by old traditional custom which was regarded as 
possessing the same force as a statute (lex). Hence it was that the 
act of performing the litis contestatio, nay, even the entire procedure 
of which the litis contestatio was the centre and pivot, was called 
a ‘legis actio V i- c. a proceeding according to statute. And by an 
action, in the true, the normal, the proper sense of the term, was 
understood a proceeding which led to a litis contestatio of this kind, 
and, through it, to a judicium and the judgment of a sworn judge, 
as opposed to the decision of a magistrate. But such a procedure 
could be called a ‘ legis actio ' in yet another sense, in the sense 
namely that not only the form of the litis contestatio, but the 
very right of the party to claim a judicium in any particular case 
on the ground of the litis contestatio, was determined by a lex, 
or by custom having the force of lex. The Roman actio, in 
other words, represents a right of the plaintiff not only as against 
the defendant, but also as against the magistrate, a right, namely, 
to have a judicium, i. c. a right to have the judicial, as opposed 
to the administrative machinery, placed at his disposal, in short, 
a right to have a private individual appointed for the purpose <>t 
deciding by his judgment the question at issue between him and lus 
adversary. This right to a judicium, i. e. the actio, rests in early 
times on lex, or custom with the force of lex. And for this reason 
it was called legis actio. 

Of legis actiones we have five— (1) the L. A. sacramcnto, (*’) 


1 The litis contestatio itself is also -the *olrnin raising of the issue and open- 
called actio, as in (iAjcs, iv. § 1 1 : in ing of the legal content in the ordinal} 
actions vites norninarct. And, in a course, coupled with an applicaiion for 
formal sente, it is the real legis actio, a judicium 'supra, p. ^8, note i). 



THE LAW OF PROPERTY ( GENERAL PART) 243 


the L. A. per judicis postulationem, (3) the L. A. per condictionem, § 48 . 
(4) the L. A. per manus injectionem, (5) the L. A. per pignoris 
capionem. 

I. The Legis Actio sacramento. 

The ordinary and most important form of the legis actio procedure 
was the so-called 2 * 4 legis actio sacramento.’ Both parties, with a view 
to the litis contestatio, solemnly affirm their legal claim. The 
plaintiff, for example, declares : * ajo hanc rem meam esse ex jure 
Quiritium,’ &c., and the defendant answers with the same formula. 
Thereupon both deposit a sum by way of wager, the so-called 
4 sacramentum,’ which amounted, according to the matter in dispute, 
either to 50 or 500 asses, and which each party declares shall be 
forfeited, if his contention proves to be false. This wager supplied 
the formal basis for the judicium (i. e. the formulating of the issue) 
and, when once entered upon, may be presumed to have, at the 
same time, formally established the right to a judicium (i. e. 
the actio) as against the magistrate. If a man challenged another 
to a wager (sacramentum) in reference to some legal claim prima 
facie possible, he was thereby enabled not only to compel his 
opponent to lay a counter-wager, but also to require the magistrate 
to appoint a judex. This legis actio was thus, in the truest sense, 
a legis actio sacramento, for the judicial wager was the basis both 
of the decision of the judicium and of the formal title to the 
judicium. The private right secured its actio by means of the 
sacramentum . 


2 It U probable that the compulsory 
force of the sacramentum as against the 
magistrate i* based on the laU that, 
originally, it was a matter not merely 

of money against money, but of oath 
against oath ti.e. sacramentum, in the 
ordinary sense of the word). The 
person tendering the oath pledges, 
lor the truth ot hit oath, either hi* 
own person <i. c. he consecrates himself 
to the gods), or he only pledges some 
portion of his proj'city which he 
thereby consecrates to the gtxls, which 
he, in other words, agrees shall be for- 
feited to the ginls, if the decision gixrs 

against him. In civil proceedings, the 


latter kind of oath, where a man merely 
staked some portion of his property (the 
1 Vich-Kid* of tiernun law), was suffi- 
cient. 1 ven it. moreover, was enough 
to raise a question which required to be 
decided by an objective judgment ; was 
enough, in other words, to deprive the 
magistrate of all power fo reserve the 
matter for his own decision ckcretum , 
and to compel him to let a sworn 
judge (judex), or a college of sworn 
judges \t. g. the ccntumvin', decide it 
bv means of a verdict, or sententia. The 
oath, in a word, establishes the actio, 
i.c. thcclaim to a judicium. Subsequently 
the oath was dropped, and the conse- 





244 


THE INSTITUTES 


§ 48. II. Legis Actio per judicis postulationem. 

There were, however, some particular cases where the law 
annexed to the existence of certain facts, facts, namely, constituting 
contracts and delicts of a specified kind, an immediate actio or right 
to a judicium. There was no need to lay a wager (sacramentum) and 
incur the perils involved in such a proceeding. In order to compel 
the magistrate to direct a judicium, all that was required was that 
the plaintiff should affirm in jure the existence of the facts consti- 
tuting the particular contract or delict in question, and should, on 
the ground of such facts, claim in solemn words to have a judex 
appointed. But it was indispensable that the facts of the case 
should tally precisely with those indicated by the verba legis, and 
that therefore, in setting forth these facts, the exact verba legis should 
be employed. Inasmuch then as, in these cases, the application for 
a judex immediately bound the magistrate to grant the judicium, 
this legis actio was called the L. A. per judicis postulationem 5 . 

III. Legis Actio per condictionem. 

The L. A. per judicis postulationem had been designed for the 
enforcement of claims in personam. Actions for the enforcement 


ciated sum of money (sacramentum, in 
this sense) alone remained, though, as a 
matter of fact, the actual depositing was, 
in later times dispensed with, the money 
being merely promised. —As to the 
theory that the legis actio Sacramento 
had its origin in the practice of tender- 
ing oath and counter-oath, see II. II. 
Pfliigcr, Die left's actio sacramento 
(1898). 

J In my opinion the ‘ legis actio de 
arboribus succisis/ instanced by Gajus 
bk. iv. § 11, refers to this legis actio 
per judicis postulationem. There seems 
to be no doubt that the original action, 
as based on the Twelve Tables, really 
only lay for cutting trees and nothing 
else. The extension of the action to 
other cases, especially to the case of 
sites succisae, was due to the interpre- 
tatio of a later time; but even whin 
thus applied, the words used in the litis 
contestatio had still to be those pre- 
scribed by the statute, viz., ’de arboribus 
succisis/ This was the source of the 
formalism of which Gajus speaks. For 


it is of course out of the question that, in 
speaking ‘ de arboribus succisis/ the 
Twelve Tables intended, from the out- 
set, to include vites as well. The rule 
then that an action should only lie dc 
arboribus succisis, meant originally that 
an actio should really only lie on facts 
precisely corresponding to the words of 
the statute In the course of the subse- 
quent development this rule, though vir- 
tually abandoned by the admission of the 
actio de vitibus succisis, was nevertheless 
maintained bv a fiction, the action luring 
still formally brought dc arboribus suc- 
cisis only. The absurdities of the for- 
malism noted by Gajus must, therefoie, 
he considered the result of a subsequent 
development. The legis actio fiduciac 
supplies another example of the L. A. 
per jud.cis postulationem (supra, p. 64, 
note 12'. For further ca^cs v. Voigt, 
Die zwolf Tafeln, vol. i. p. 586 ff. On 
the Ij. A. per judicis postulationem, cp. 
A. Schmidt, /.S’. dcr Sav. St . vol. »i- 
(1881) p. *55 ff. 



THE LAW OF PROPERTY ( GENERAL PART) 245 

of such claims received a further development by means of the § 48 . 
L. A. per condictionem, which was first introduced by the lex Silia 
for the recovery of a fixed sum of money (certa pecunia), and after- 
wards extended by the lex Calpurnia to claims for a certa res 4 . 
Whenever the plaintiff in an action in personam undertook to fix , 
his claim against the defendant precisely at some liquidated amount 
(certam pecuniam dare), or to specify a particular object the ownership 
of which should be conveyed to him (certam rem dare), he could, 
as in the L. A. per judicis postulationem, claim from the magistrate 
the immediate appointment of a judex. This condictio had its 
danger as well as its advantage. Its danger was that the plaintiff, 
though entitled to something, was nevertheless cast in his suit, if 
he did not claim the precise amount due to him. Its advantage 
lay in this that it applied also to cases the facts of which did 
not in themselves entitle a person to the judicis postulatio; nay 
even to cases where, possibly, there was no indisputable legal claim 
at all, as, for example, when the only feature of the case was that 
A had been enriched at the expense of B. In the L. A. per judicis 
postulationem the litis rontestatio merely formulated the facts of the 
case without in any way indicating the nature of the claim deduced 
therefrom (legis actio in factum concepta) ; conversely, in the 
L A. per condictionem the litis rontestatio merely formulated 
the legal claim without mentioning the facts from which it was 
deduced actio in jus concepta). It was an abstract action 

where the concrete facts, on which the claim rested, were not 
referred to in the litis contestatio, or solemn act of formulating 
the issue \ 

For cases falling under this new legis actio, the law required 
that the judicis postulatio should be made in a manner differing 
from the practice traditionally observed in the case of the L. A. 
per judicis postulationem. For in this latter action, the magistrate, 
in accordance with ancient usage, appointed the judex at once . 

4 (> AJ. iv. 18-ao. I'crnice, /.af*o, vol. iii. part I (1892), 

5 J. Karon, Abhaftdluttgfn tini dew pp. 228-34. 

* omisehtn Civilprmss, vol. i. : Pit • Gajvs iv. § 15 : Ut nutem [die] x«. 
Condi it iotten (1881).— Some doubts judex daictur, perlegcm Pinariam factum 
have been raised on this subject by cst ; ante earn autem legem [siatjim 



246 


THE INSTITUTES 


§ 48 . The L. A. per condictionem had this characteristic of the later 
procedure — a characteristic which was connected with the general 
arrangements of a later period for the appointment of judges 7 — that, 
instead of a judex being appointed at once, the parties agreed to 
reappear in jure before the praetor in thirty days for the purpose 
of selecting and appointing a judex (ad judicem capessendum). 
The plaintiff at the same time gave the defendant formal notice to 
reappear within thirty dqys before the magisterial tribunal for the 
purpose of appointing the judicium H . This notice was called 
‘condictio/ which means literally an * agreement * or ‘convention,' 
and hence the name legis actio per condictionem. It is to be ob- 
served that the force of the qualifying words 1 per condictionem * is 
precisely analogous to that of the words ‘ per judicis postulationcm * 
in the other legis actio. In either case the plaintiff s application 
for a judex is directly binding on the magistrate. 

IV. Legis Actio per manus injectionem. 

In certain extraordinary cases the actio arises from a completed 
act of execution, in the same way as, in the L. A. Sacramento, it 
arises from an act of affirmation. 

The normal form of execution is judicial execution, i. e. the act 
of laying hands on ones adversary in jure in the presence of the 
magistrate (manus injectio) 9 . It means the attachment of the 


dabatur judex. What Gajus here says 
about the former practice of immedi- 
ately appointing the judex 111 the L. A. 
Sacramento, may reasonably be assumed 
to have been equally applicable to the 
L. A. per judicis postulationcm. Quite 
apart from the evidence of Studemund, 
the reading ‘ nondum dabatur judex * 
ought, I think, to be rejected on practical 
grounds. It is scarcely credible that the 
L. A. Sacramento was ever a procedure 
without any judicium at all, i.c. solely in 
jure (as e.g. A. Schmidt assumes, lot. (it. 
p. 160, n. 3 ; , and the contrary is clcady 
proved both by the nature of the 4 actio’ 
(supra, p. 242) and the ceremonies inci- 
dent to the L. A. satin men to, which had 
no other purpose but the obtaining of 
a judicium. 

T Cp. on this point, Karlowa, Ciriipro - 
cas zurZeildtr l.cgisactionen, p. 252 ff. 


• The stay of thirty days might have 
served the additional purpose ot giving 
time to the defendant, and thcichy 
affording him an opportunity of volun- 
tarily satisfying the plaintiffs demands 
in the interval. It was obvious that the 
plaintiff would get a judicium The 
praetor had. in fact, acknowledged his 
claim to be such as to entitle him to a 
judicium. This circumstance (it wa^ 
thought would oiler the defendant a 
strong inducement to settle volunlatily 
with the plaintiff within the thiity days’ 
interval allowed him. Baron, toe. (it, 
p. 211. 

* Lx tra -judicial manus injectiois never 
a genuine act of execution. It means 
cither the taking possession of an unfice 
person (thus, in Livy iii. 44, Claudius 
applies the mantis inject io to Virginia, 
with a view to taking her to his home 



THE LAW OF PROPERTY (GENERAL PART) 247 


defendant for the purpose of making him the bondsman of his § 48 . 
creditor. The party attached is disqualified from making any 
defence himself, because the effect of the manus injectio is to place 
him ipso jure in the position of a slave (servi loco) 10 . A third 
party, however, may intervene as a vindex and counteract the 
effect of the ‘manum injicere' by means of a ‘manum depellere.’ 

The manum depellere operates to annul the preceding manus 
injectio, so that the debtor is free once more and cannot be 
attached again for the same cause. But, on the other hand, the 
vindex is now bound to indemnify the creditor whose act of execu- 
tion he has nullified. He must give immediate satisfaction for the 
debt to recover which manus injectio had been resorted to". If, 
however, he refuses to pay the debt on the ground that he challenges 
the legality of the manus injectio, the law-suit commences and the 
vindex, if defeated, is cast in double damages. The suit has to 

as a slave), or it is an act of summons. which springs from the judicial manus 

If the defendant disregarded the in jus injectio or act of execution, 

vocatio, i. e. the solemn oral summons 10 The fact that the manus injectio 

addressed to him by the plaintiff, the ipso jure debarred the person attached 

latter could always lay hands on him from making any defence confirms the 
(manus injectio), with a view to bringing supposition that, in the early law, the 
him lwforc the court (Twelve Tables, i. efficacy of judicial manus injectio was 

2). In some cases the plaintiff could independent of any addictio on the part 

proceed to manus injectio at once with- of the praetor; cp. Jhering, Grist des 
out any previous in jus vocatio. He rom. K, vol. i. p. 152; Wlassak, 

could thus arrest e. g. a judgment- Korn. /Voces sgesette, vol. i. p. 96, n. 

debtor (judicatus), in order to take him 27. 

before the praetor for the puipose of 11 Cp. Livirs, vi. 14 : V M. Manlius) 
there carrying out the judicial manus ceuturiomm nobilem militaribus factis 

injectio ; or again a ' fur manifestus,' or judientum pecuniae cum duci vidi^set, 

other person who had committed a delict medio foro cum caterva sua accurrit et 

partaking of a criminal nature (Peine- manum injccit, vociferatus^juc de super - 

lius, ZS.fur A'G. vol. i. p. ,y > 2 ff.\ Hut bia I’atrum ac crudelitate foeneratorum 

extra-judicial manus injectio of this kind, . . . rem creditori palam populo solvit, 

though it serves the puipose of intro- libratjuc et acre lilieratum emittit. It 

ducing legal proceedings, is, in itself, should be observed that the term manum 

totally immaterial as far ns the course injicere is here also applied to manum 

of proccdute itself is concerned ; it is dc|>cllere. Thus we have manus injectio 

always merely preliminary to, never against manus injectio, ju*t as in other 

productive of, an action at law. judicial cases we have sacramentum against 

manus injectio. and it alone, can beget sacramentum. In the Twelve Tables 

an action. Thus, though there are (iii. 3) the vindex, in acting as described, 

several forms of manus injectio— judicial is said * vimlicare’; it is a case of 

or extra-judicial manus injectio, and of force ^manum depellere) against force 

the latter again several kinds— there is % manum injioeie). Cp. Pcmclius, Die 

nevertheless but one legis actio per Confcssio, p. 56, and infra, note 15. 

manus inject ionem, that actio namely 



248 


THE INSTITUTES 


§ 48 . be decided by the ordinary procedure, a judex being appointed for 
the purpose. It is in this, sense that manus injcctio begets an 
actio 12 , viz. the I„ A. per manus injectionem. Judicial manus in- 
jectio (i. e. the act of execution) implies a right to have any issue 
that may arise in the event of the claim being. challenged, tried by 
a judicium. 

Judicial manus injectio can only be used in the case of an 
indisputable money claim. The regular instance of such a claim 
is the judgment-debt, i. c. a fixed sum which a person has been 
condemned to pay by the sententia of a sworn judge ‘ in judicio.* 
An { aeris confessus,’ i. e. a person who had admitted a money debt 
in jure before the magistrate, was regarded as occupying the same 
position as a judgment-debtor, and was thus liable to ‘manus in- 
jectio pro judicato/ It is probable that originally a debt incurred by 
nexum, the formal obligation of the early civil law (supra, p. 52', 
was treated in the same way as a judgment-debt. Several later 
statutes assimilated other debts to judgment debts, the harsh effects 
of the manus injectio, however, being in most cases mitigated in 
such a manner as to allow the debtor to be his own vindex and 
‘ manum sibi dcpellere ' himself, so that he (the debtor) became the 
defendant in the resulting action (if any » and was himself liable in 
dupliim in case of condemnation. Thus there were two species of 
this form of actio, first, the I.. A. per manus injectionem pro judi 
cato (where the debtor could only defend himself through a vindex). 
and, secondly, the L. A. per manus injectionem pura (where the 
debtor might defend himself in person*. Hut in any case the manus 
injectio which had been carried out in jure remained the formal 
subject of the law suit and of the judgment, because in point ot 
form the actio, or claim to a judicium, dirl not spring directly from 
private law, but from the manus injectio. 

V. Leg is Actio per pignoris rapionem. 

I’ignoris capio is a process akin to manus injectio. The h* 
invested debts of a particular kind with special privileges by allowing 
the creditor to obtain satisfaction for them by an extra-judicial 


1 { J>. Jhcring, (/fist <i. r,>m. h'dhts, vul. i. |> 152 ff. 



THE LAW OF PROPERTY (GENERAL PART) 249 

seizure of portions of the debtor’s property. Every such authorized § 48. 
pign.oris capio was characterized by the use of certain prescribed 
words (ccrta verba) which had to accompany its execution. The 
distrainee was bound to redeem the property seized within a pre- 
scribed interval, and was, probably, bound to pay a penalty besides : 
in default of which we may presume that the ownership in the goods 
distrained passed to the distrainor. The latter generally exercised 
his right of ownership by destroying the things (pignora caedere), 
because the primary object of the distraint was not to satisfy the 
creditor, but to punish the refractory debtor. 

The distrainee must have had the right, in some form or other, 
of protesting before the magistrate in jure against the distraint 
which had taken place. Just as, in the preceding instances, the 
proffering of an oath (sacramentum) by one party compelled the 
other to tender a counter-oath, and a manum injicerc on the part of 
one necessitated a manum dcpellere on the part of the other, so here 
the pignoris capio compelled the distrainee, if he wished to make any 
defence, to enter a protest. Here, then, was another special issue 
which the magistrate had no power to reserve for his own decision, 
but was bound to send for trial before a judex. It was in this way 
that pignoris capio begot an ac tion, viz. the L. A. per pignoris 
rapionem 

The cases in whic h pignoris capio was available, were not, as far 
as we can see, suffic ient in themselves to give rise to ordinary civil 
proceedings. They were partly claims of a public nature— e. g. a 
soldier's claim for his pay, for money to buy a horse, or for barley 
to feed his horse, or again the claims of farmers of the public 
revenue for arrears of taxes due to the stale-- partly matters 
of private liability, which we may describe as not having given 
rise to any legal obligation in the early limes. Thus if a victim 
had been sold for sacrificial purposes by means of an informal 
contract of sale, or again, if a beast of burden had been let out 
under an informal contract of letting with a view to investing the 

” Cp. <;aj. iv. ; Jhcring, OVA/. (3rd cd.\ vol. i. p. 177, 

&c. vol. i p. 1 59 rf.; Karlovs a, / f iN A- note 1 ; Wlassak, /W.^Tfc/v, vol. 1. 
“•fiown. p. 20 1 IT. ; Mommse n, A p. 0 . 



250 


THE INSTITUTES 


§ 48. consideration money in the purchase of a lamb to sacrifice to Jupiter, 
the guardian deity of harvests — in neither case did the purchaser 
or hirer respectively incur any legal liability. It is possible also that 
pignoris capio was resorted to in the case of * damnum infectum ’ ; 
that is to say, where a man’s property was in danger of being injured, 
though it was not yet actually injured, by the state of his neigh- 
bour’s property (e. g. by the dilapidated condition of his house), 
he was perhaps allowed to seize some of the neighbour’s land by 
way of pignoris capio u . 

In none of these cases was there any action at law. Nor was the 
legis actio sacramento available, because in an action on a debt 
the sacramentum had to affirm a ‘ dare or facere oportere,’ in other 
w'ords, the existence of a liability fully enforceable by the civil law. 
Rut by the circuitous method of pignoris capio the creditor’s claim 
w'as either satisfied in such a way as to put a penalty on the dis- 
trainee, if he submitted to the pignoris capio, or else was brought 
to trial (actio), if he (the distrainee) protested. 

The right of pignoris capio was said to have ‘instar actionis,’ 
i. e. to grant a right of distraint was virtually to grant a right ol 
action. 

VI. Recapitulation. 

To sum up. Private law f grants a legis actio either directly (L. A. 
per judicis postulationem, per condictionem), or indirectly. The 
means by which a private right, which is not directly enforceable 
by the ordinary civil procedure, can nevertheless secure a trial oi 
actio, are either a solemn affirmation (sacramentum) or a solemn 
act of execution, which latter can be either personal (manus injectio’ 
or real (pignoris capio). 

The legis actio sacramento is the general form of action; the 


14 This is von Hethmann-IIollweg’s 
conjecture Civilprocess, vol. i. (1864) 
p. 204, note 13), which has been en- 
dorsed by several learned writers, e. g. 
K&TXovi^I.egisaetionen, p. 2 16 flf.; Wach, 
in his edition ol Keller, Rom. Civil - 
process , 6th ed. $ 20, note 267 a. It 
has however been disapproved, more 
particularly by Burckhard in Gluck’s 


Commentar zu den I\uidekten % bool 
39 '1875), p. 7711*. and quite re 
cently by Wlassak, Z'roeessgesetze, vol 
i. p. 259 ff. Pignoris capio was cor 
tainly applicable to land, the practica 
effect being that the land was laid wash 
and the house levelled to the groum 
(pignus caedere) ; Mommsen, Staatsr 
vol. i. (3rd ed.) p. 160. 



THE LAW OF PROPERTY ( GENERAL PART) 251 


remaining legis actiones are restricted to such cases as are deter- § 48. 
mined by statute (lex) or ancient custom with statutory force. 

These special legis actiones are, each and all, modes of enforcing 
obligatory rights ; in other words, they are forms of so-called actions 
in personam (infra, § 52). Thus we have an abundance of actions 
whose object it is to protect the rights of creditors. A creditor, 
however, might also proceed by legis actio Sacramento, not only when 
his claim was for a ‘ certum,’ but also where it was for an 1 incertum 1 
(e. g. pro fure damnum decidere oportere), provided only the exist- 
ence of his claim was disputed, and the peculiar form of trial by 
wager, which required two mutually exclusive allegations, thereby 
became practically applicable. But whenever the claim was not 
personal, but real, i. e. whenever it sprang from some relation of 
power, whether a power over things (ownership, inheritance, servitude) 
or over persons (marital, paternal, tutorial power), in all such cases 
the legis actio Sacramento was the sole form available. Having seized 
the object in dispute both parties had solemnly to affirm their 
title to it sacramento (vindicatio and contravindicatio). In this 
way the litis contestatio was arrived at and the foundation for the 
judicium laid. Pending the judicium, the praetor, acting on his 
own discretion, regulated the interim possession (vindicias dare). 

We have thus, on the one hand, only one form for actions of 
ownership, in fact, only one form for real actions of any kind ; on 


15 Corresponding to the ‘ anefang’ in 
the German form of vindicatio. Cp. 
Gajcs, iv. 16. The seizing of the ob- 
ject was coupled with the ceremony of 
festucam imponere, the staff being the 
symbol of power. We observe, then, 
that in the early law a person could 
only ‘vindicate’ a thing of which he 
had possession. It was his business to 
bring the thing before the court, and 
in order to do so he might, if other 
means failed, resoit to force, for ancient 
law afforded no protection lo possession 
as such, lfis object in bringing the 
thing before the court uns to justify 
his possession by formally asserting 
himself to be owner. While making 
this assertion he, at the same time, laid 
hold of the thing anew, and it was this 
latter act of possession that constituted 


the vindicatio proper. If no one ap- 
peared to challenge his assertion, ad- 
dictio followed, i. e. the thing was 
awarded to him as his own. It was 
only where an opponent appeared and 
raised a counter-vindicatio (by laying 
hold of the thing in the same way as 
the original vindicant) that the bilateral 
procedure sacramento came into play. 
The vindicatio of the later and fully 
matured law was a ‘petitory’ remedy 
(mlra, § 67 ad/in.' whereby a person who 
was not in possession of the thing claimed 
sued the person in possession. But it 
was not till the law had developed a 
system for protecting possession as such 
that vindicatio assumed this form. Bcch- 
mnnn, St u die irn Cebicte dtr legis actio 
sacramento in rent (^Festschrift lur 
Windschcid, 1888). 



252 THE INSTITUTES 

§ 48 . the other, a profusion of actions for the enforcement of obligations. 
From the very outset the productive genius of the Roman law of 
procedure, like that of other departments of Roman law, character- 
istically exhibits itself within the sphere of the law of obligations 

Gaj. Inst. IV § n : Actiones quas in usu veteres habuerunt 
legis actiones appellabantur, vel ideo quod legibus proditae 
erant (quippe tunc edicta praetoris, quibus complures actiones 
introductae sunt, nondum in usu habebantur), vel ideo quia 
ipsarum legum verbis accommodatae erant, et ideo immuta- 
biles proinde atque leges observabantur : unde cum qui de 
vitibus succisis ita egisset ut in actione vites nominaret, 
responsum est rem perdidisse, cum debuisset arbores nomi- 
nare, eo quod lex XII tabularum, ex qua de vitibus succisis 
actio conpeteret, generaliter de arboribus succisis loqueretur. 


§ 49. The Formulary Procedure . 

§ 49. The solemn act by which the parties themselves, at the con 
elusion of the proceedings in jure, formulate the legal issue (litb 


11 From an historical point of view, 
the legis actiones are divided into two 
group's, those of an older and those of 
a later type. The legis actiones of 
the first group, which are antique 
in character, are marked by the pro- 
minence in their procedure of the ele- 
ment of private force, which is the 
source and fountain-head of all actions 
whatever. To this class belong the 
L. A. per manus injectioncm and the 
L. A. per pignoris capionem. The 
ancient civil procedure both of the 
Romans and Germans is nothing more 
than a form of self-help sanctioned by 
the law. And even the vindicatio Sacra- 
mento bears clear traces of a similar 
character (cp. note 15). In the pro- 
ceedings in jure both parties are seen 
exercising force (vindicatio) ; they are 
struggling for the possession of the 
object in dispute, they both lay hands 
on it. At this moment the judge steps 
in and commands peace : mittite ambo 
hominem ! Both parties roust let go 
the object (e. g. the slave who is * vin- 
dicated*). The judge alone has now 
power to deal with it ; he is free to 


act as he pleases in awarding possessioi 
(vindicias dnre». A wager is then lau 
with regard to the preceding act o 
force, and the judge is required to decide 
which of the parties was acting in the 
exercise of legitimate force, of justifiable 
self-help. The second group of m 
tiones, on the other hand, the L. A 
per judicis postulationcm and the L. A 
per condictioncm, bear the impress of : 
later age. Everything is done peace 
ably. The par tie* only ask to ha\< 
a judex. The action is no longer ; 
mere disguise thinly veiling what 1 
really a bold exercise of sell-help ; tin 
state itself dominates the legal sy-ten 
and the execution of the law, and th< 
entire proceeding in jure merely ^pre- 
sents an application by the parties fo 
a court (judicium) to try the case. C p 
Bekker, Actionen, vol. i. p. i8ff. 
Rcchmnnn, op . cit. in note 15; Grade 
witz, Zwangsvollstreckung «. Urteih 
sirherung ( licrl i ncr Festschrift f. Gneist) 
1 888 ; Matthiass, Pit Entwicklung <f? 
romischen Schieihgeruhts ( Rostock e 
Festgabc f. Windschciel), 1 888, pp. 5 1 « s 



THE LAW OF PROPERTY (GENERAL PART) 253 


contestatio), constitutes the pith and climax of the legis actio pro- § 49. 
cedure which we have just described. The oral formula of the 
parties, framed in strict adherence to, and operating by virtue of, 
the letter of the law, begets the ‘actio/ i. e. the concrete, formal 
right to a judicium, and, at the same time, supplies the foundation 
upon which the judicium proceeds. 

This solemn act of procedure cannot be repeated \ It necessarily 
follows, therefore, in the first instance, that the solemn litis con- 
testatio of the legis actio procedure operates ipso jure to destroy 
the right of action. That is to say, at the very moment when 
the litis contestatio gives birth to the actio in the formal sense 
of the term (i. e. to the right to claim a judex for the dispute 
in question), the actio in its material sense (i. e. the right to the 
litis contestatio) is annihilated. The litis contestatio can only be 
carried out once and no more. Its effect is to consume the right of 
action. 

It follows, moreover, in the second place, from the same rule that, 
if a mistake has been made in the formula, there is no way of 
correcting it and saying the formula over again in an amended 
shape. A faulty formula entails the loss of the action, for the oral 
formula admits neither of repetition nor amendment 1 2 . The* use 
of the oral formula is attended with the risks incident to an action, 
because it is itself an act which operates to consume a right of 
action. 

It was, however, inevitable that the oral formula should soon 
prove inadequate for the purpose for which it was designed, the 
purpose namely of formulating the dispute for the decision of the 
judex. The oral formulae were immutable, because the wording of 
the statutes on which they were founded was immutable. But the 
law* which was developing on the basis of these words was none 
the less changeable. True, the letter of the law f frequently received, 

1 Precisely the same i»loa is to be found * Gaji'S, iv. 108: Alia causa fuit 
111 the old German procedure where the olim legis actionum ; nam qua de re 
rule 'a man a word' was applied, i. c. actum semel erat, dc ea postea ipso 
every man has only one word which, once jure agi non poterat ; nec omnino ita ut 
uttered, can neither he retracted nor re- nunc usus erat illis temporibus exeep- 

|>cated nor amended. tionum. Cp. G AJ. iv. 11 , supra, p. 25 2. 



2 54 


THE INSTITUTES 


49. in practice, a sufficiently liberal interpretation. On the strength of 
a section of the Twelve Tables dealing ‘de arboribus succisis/ the 
practice of the courts subsequently admitted an action ‘de vitibus 
succisis.* But the wording of the Twelve Tables, and consequently 
also the wording of the oral formula, remained the same. In 
the litis contestatio the plaintiff had to speak de arboribus succisis, 
even when, as a matter of fact, he intended to sue de vitibus 
succisis 8 . But how was the judex to find out the real meaning of 
the parties from a litis contestatio framed in that manner? The 
result, inevitable in such circumstances, was, that the litis contestatio 
became a mere mask for covering a variety of cases of a widely 
different character. Thus it happened, often enough, that the 
formulating of the legal issue, as carried out in the litis contestatio, 
was little more than a pretence. In order therefore to pierce the 
mask and discover the true nature of the issue before him, the 
judge had to resort to other expedients. 

To all this must be added one other circumstance. The legis 
actio procedure was, so to speak, cut down and restricted to a 
definite number of statutable claims. It was a difficult matter (as 
we see in the case of the arbores and vites) to force a new law into 
the old moulds. But from about the middle of the third century 
b. c. onwards, as the inroads of the jus gentium became stronger 
and stronger, a large number of fresh claims arose (such as the bonae 
fidei judicia, claims on informal sales, informal lettings and hirings, 
and others), not based on, nor recognized by, 'any Roman statute, and 
lacking therefore the necessary credentials without which the pro- 
cedure by legis actio remained closed to them. A new law for 
which there was no room within the narrow confines of the old 
legis actio was pushing its way into the Roman system. New skins 
were needed for the new wine. 

And so it happened that at the same time when the forms of legal 
redress supplied by the legis actio began to fall short of the material 
requirements of the law, the necessity for a reform in Roman civil 
procedure (the legis actio procedure) became more pronounced. 

It is characteristic of the tendency which marks the development 
* Cp. supra, p. 244, note 3. 



THE LAW OF PROPERTY (GENERAL PART) 255 

of Roman law that a remedy by means of legislative enactment § 49. 
was not resorted to. It was time enough to invoke the interference 
of so inelastic an agency, when the aim and method of the desired 
reform had been clearly ascertained. Meanwhile the judicature was 
left to its own resources. The task of reforming Roman law thus 
naturally devolved on the praetor. 

There was no need for the praetor to cast about for an idea 
upon which the requisite reforms might proceed : such an idea had 
already been found. 

The legis actio was the form of action prescribed by the jus civile, 
that is, by the law peculiar to Roman citizens, the law of the Roman 
people. Such a form of action was only available as between Roman 
citizens. Neither the law nor the procedure of Roman citizens — 
in other words, neither ‘civil’ law nor ‘civil’ procedure— could have 
any application where a non-citizen, a peregrinus, was a party, for 
peregrini were excluded from the jus civile. As far as foreigners 
were concerned, the legis actio simply did not exist. In course 
of time, however, a form of procedure was developed in which aliens 
were competent to appear as litigant parties. As early as 242 b.c. 
a special praetor— the praetor peregrinus — had been appointed to 
deal with actions in which one or both of the parties were aliens 
(supra, p. 76). A regular procedure for actions of this kind could 
only be worked out by the aid of the jus honorarium. The new 
procedure, therefore, which the praetor, in the free exercise of his 
imperium as the supreme judicial officer, created in order to meet 
the requirements of alien litigants, was a procedure based on the 
jus honorarium, and as such was opposed to the procedure for 
citizens which was based on the jus civile. Rut in shaping the 
procedure for aliens the praetor was of course guided by the practice 
which obtained as between citizens. 

In actions to which foreigners were parties, there was nothing in 
law to prevent the praetor— since 242 b.c. the praetor peregrinus— 
from deciding the issue himself by virtue of his sovereign imperium. 
Nevertheless, it became the standing rule in such cases to follow 
the practice of the city court, by referring the decision of the issue 
to one or more private individuals acting under oath— the rule of 



256 


THE INSTITUTES 


§ 49. the foreign praetor being to appoint several persons (called * recu- 
peratores *) for that purpose 4 . The Roman state was growing strong 
and could afford to be liberal in its treatment of foreigners 8 . 
Notwithstanding the fact that the official authority of the magistrate 
was formally unrestricted, the Romans preferred that the law should 
be dispensed to foreigners in such a way that they themselves 
should be obliged to acknowledge it as law. Hence the practice 
of nominating several sworn judges, the intention being that each 
party should be represented by at least one man in whom he 
had confidence 6 . Hence also the principle that the judgment 
of the recuperatores, like that of the judex in the legis actio 
procedure, must derive its legal force, not alone from the official 
authority of the magistrate, but also, in an equal measure, from 
a formal agreement whereby the parties voluntarily submitted 
themselves to the court. 

Whenever the foreign praetor referred a matter for decision to 
a court of recuperatores, there was obviously the same necessity 
for a litis contestatio, a formulation of the issue on the basis of 
which the decision of the court was to proceed, as existed in the 
case of the legis actio procedure. Here again the magistrate came 
to the assistance of the parties. It was the business of the praetor 
to constitute the court of sworn judges; it was he who appointed 
the recuperatores. In drawing up his decree of appointment it was 
essential that he should indicate the nature of the duty he required 
the judges to perform. But in this instance there was no lex to 
which reference could be made. In default of a lex, the praetor 
resorted to his imperium and simply ordered the judges, under 
certain conditions, to condemn or to acquit the defendant, as the 
case might be. Thus the task of formulating the issue was carried 
out by the praetor himself in the written decree which he drew 
up in appointing the recuperatores. This decree was called the 
'formula/ because it soon became the practice for the praetor to 
frame it after the model of certain ‘forms* or ‘formulae* set out 

* Cp. supra, p. 239, n. 3. parties there was an umpire, so that 

5 Cp. Mommsen, Abriss d. torn, the number of recuperatores was usually 

Staatsrechts (1893), pp. 62, 63. three or five. 

* Besides the representatives of the 



THE LAW OF PROPERTY ( GENERAL PART) 257 

in the praetorian album. The drawing up of the formula was not, § 49. 
however, an autocratic act of the praetor, performed without reference 
to the parties. It was essential that the parties themselves should 
accept the formula in due legal form. The plaintiff accordingly 
gave it to the defendant, and this giving and taking of the formula 
by the parties, carried out under the supervision and sanction of 
the magistrate, constituted the specific agreement — the * processual * 
agreement — which bound the parties to abide by the decision of 
the sworn judges on the issue as formulated (cp. p. 238, n. 2). The 
effect of these proceedings, like that of the corresponding proceed- 
ings in the legis actio, was a judicium inchoatum ; that is to say, 
they marked the commencement of a regular procedure, analogous 
to the procedure in the city court, under which the issue was tried 
and decided by a court of sworn judges — a procedure not originating 
in an actio in the sense of the jus civile, nor resting on any 
popular statute for its foundation, but called into operation by 
a formal agreement between the parties to which the praetor lent 
the sanction of his magisterial imperium. 

Such was the process by which the ‘formulary procedure * estab- 
lished itself in the court of the foreign praetor. There were now 
two distinct forms of procedure, in each of which the issue was tried 
and decided by a court of one or more sworn judges, the judicium 
of the legis actio procedure being founded on the jus civile, while 
that of the formulary procedure was a ‘judicium imperio continens.’ 

The only practical difference between the two procedures was in 
the manner in which the formulation of the issue (the litis contestatio) 
was effected ; in other words, in the manner in which the parties 
obtained their judicium. In the civil procedure — the legis actio — 
the issue was formulated by means of an oral formula based on 
a popular statute ; in the formulary procedure by means of a written 
formula drawn up by the magistrate and accepted by agreement 
between the parties. The oral formula was rigorously confined to 
a limited number of claims ; the written formula was in its nature 
capable of being adapted to the greatest variety of claims. It is 
obvious at once that as between the two rival forms of procedure, 
all the advantages were on the side of the formulary procedure. 

S 


SO KM ! LBDLIB 



258 


THE INSTITUTES 


§ 49 . The formulary procedure was, at one and the same time, the 
procedure required by the jus honorarium and the procedure 
required by the law which governed the relations of foreigners, the 
jus gentium. The very same antitheses that dominate the history 
of Roman private law are reflected in the history of Roman pro- 
cedure. And it is just at this point that we are enabled to obtain 
a deeper insight into the workings of that process of development 
which ultimately produced the Roman jus gentium. It would be 
natural enough to suppose that the formulary procedure was borrowed 
from some foreign system, say, Greek or even Phoenician law. 
But such was not the case. It was an absolutely original creation 
of the Roman praetors, produced without any outside help what- 
ever-— a striking example of the peculiar technical genius of the 
Romans. The decisive impulses that determined the shape of the 
new procedure are not to be found in any foreign system of law : 
they sprang from the Roman jus civile itself. The procedure 
applied to foreigners was a copy of the procedure which obtained 
among citizens, with its sharp division of jus and judicium. The 
jus gentium was the offspring of the jus civile. As the result of 
a steady process of development from within — a process guided 
by the strong hand of the praetor and moulded by the powerful 
exigencies of an ever-widening commerce— the jus civile, of its 
own strength, brought forth the jus gentium 7 . In the earliest 
stages of its growth— whether in the field of substantive law or 

1 Cp. Pegenkolb, Rechtseinkdt u. in the manner in which the Romans 
Rechtsnationalitat im altromischcn subjected whatever element* they im- 

Reich (Rectorial Address, 1884), pp. ijj, ported from (I reek law -whether these 

16 : 1 * * 4 From the outset Roman law wcie numerous or few we need not now 
showed a remarkable capacity for re- inquire— to a process of what jurists 
forming itself spontaneously from within call “specification”; in the manner, 
— a capacity which had its seat in the that is, in which they worked up the im- 
constiiution of the 1-toman judicature ported matter into a new form and prr- 
and, still more, in that quality of orderly sented it virtually as new law. In 
precision which from the earliest times substance, no doubt, the rules on man- 
characterized the Roman treatment of time loans, jettison of goods, and hypo- 
legal science. It is this capacity that thcc are dciivcd from Greek law, but 
lits at the foundation of the develop* as fitted and worked into the orderly 
ment of the Roman law of ownership, system of Roman actions, they partake 
the Roman system of contracts, and of that specifically Roman character 
also of the Roman law of succession. . . . which belongs to the actio.* 

But its effects appear most strikingly 



THE LAW OF PROPERTY (GENERAL PART) 259 

of procedure— the jus gentium invariably appears in the form of § 49, 
jus honorarium, that is, of law existing only by virtue of the 
magisterial imperium and applicable only to foreigners. But we 
soon observe a change. Slowly, but irresistibly the jus gentium 
invades the domain of the jus civile itself ; praetorian rules, designed 
at first only for foreigners, come to be recognized as between 
Roman citizens, and are thus clothed with the character of law 
in the strictest sense of the term. And this triumphant advance 
of the jus gentium was rendered all the more easy by the fact 
that, in its essence, the Roman law for foreigners was simply 
a younger form of civil law, an embodiment, in fact, of the civil 
law of the future. In its infancy the jus gentium was jus hono- 
rarium ; having undergone a period of probation and attained to 
manhood— it was tested more particularly in its application to 
foreign trade— it took its place definitively as part of the civil law 
of Rome. 

The development of Roman procedure moved on exactly the 
same lines. What was originally a procedure for foreigners, became 
a procedure as between Roman citizens : the formulary procedure 
passed into a civil procedure. 

It has been pointed out that the necessity for a reform of 
Roman civil procedure had become urgent. The iegis actio, with 
its narrow formalism, fell far short of the requirements of the times. 

On the other hand, people were growing familiar with the formula 
which was not fettered by the letter of any statute and could be 
readily adapted to any legal claim deserving of protection. It was 
natural enough, therefore, that the idea should suggest itself of 
extending the use of the formula (the force and value of which 
had been clearly perceived in proceedings before the foreign praetor) 
to disputes between citizens themselves. The praetor urbanus took 
the decisive step for giving effect to this idea. By a bold exercise 
of his imperium juris civilis corrigendi gratia he allowed the issue in 
actions between cives to be formulated by formula instead of by 
legis actio. 

The result of this proceeding on the part of the praetor was 
to create a conflict (as far as the procedure in the city court 

S % 



a6o 


THE INSTITUTES 


$ 49 . was concerned) between the civil law (which required legis actio) 
and the praetorian law (which gave the formula), a conflict, the 
sharpness of which mu$t have been all the more noticeable, because 
at that time the praetorian power was as yet in the earliest stages 
of its development, and the legis actio was associated with the 
powerful influence of the pontifices. It was the pontifices who 
created, developed and interpreted the legis actio. To assail the 
legis actio was to assail the influence which the pontifical juris- 
prudence exercised over civil procedure and consequently over the 
interpretation of the civil law itself. By giving preference to the 
formula, the praetor thus came into collision with that influential 
college which till then had been the sole depositary of the civil 
law. It was at this moment that interference by legislative enactment 
became necessary. 

The popular enactment which struck in at this point was the 
lex Aebutia (about 150 r.c.). This enactment was followed at 
a considerable interval by the lex Julia judiciorum privatorum, 
wh» \ was probably the work of Augustus. The lex Aebutia 
confined itself to proceedings in the city court, the court of the 
praetor urbanus, which was, as already explained, the home of 
the legis actio procedure. It provided that in actions instituted 
in that court (where both parties were necessarily Roman citizens) 
it should be lawful to proceed by formula only, without legis 
actio ; that a litis contestatio effected by formula should constitute 
a ‘processual* agreement with statutory validity and that, con- 
sequently, the judgment of the sworn judex on the issue as framed 
in the formula should hav& the force of a judgment founded on 
statute, should, in other words, be a valid judgment according to 
the jus civile. The great controversy was thereby settled. Within 
the court of the praetor urbanus the formulary procedure h^l been 
declared a civil law modus agendi. Formula and legis actio were 
thus, as far as the civil law was concerned, placed on a footing 
of equality. A judicium instituted in the city court by means of 
a formula only, was now just as much a judicium / 'egitimum as 
one instituted by legis actio— provided of course that the ancien 
traditional requirements of a valid judicium for Roman citizens 



THE LAW OF PROPERTY ( GENERAL PART) 261 

were, in other respects, satisfied 8 . Henceforth it was only in the § 40 . 
court of the praetor peregrinus and in courts held outside Rome 
that the formulary procedure, as such, was a ‘ judicium imperio 
continens' (‘judicium quod imperio continetur ’). In these courts 
the procedure remained untouched. Here the magisterial imperium 
did not need any assistance from popular legislation, because its 
authority was unquestioned. The city court of the praetor urbanus, 
on the other hand, was, so to speak, the stronghold of the civil 
law and of the legis actio, the specifically Roman form of civil pro- 
cedure. The power of the praetor urbanus was, in truth, unequal 
to the task of ousting the legis actio from its strongest position. 

The assistance of the legislature was needed, and the method 
employed was to depreciate the legis actio — at once the product, 
and the source of power, of the pontifical jurisprudence — by investing 
the formula, for purposes of the city court, with a legal character. 

Thus the formulary procedure became legally available even in 
civil law causes ; it became, in short, a civil procedure. The 
legis actio procedure was not yet actually abolished. An •. ition 
was left to the parties whether they would proceed by legis actio 
in the old way, or would avail themselves of the formula according 
to the new method. The formula had, however, secured free 
scope for itself. It had now an opportunity of putting forth 
all its inherent capabilities. And in the competition between 
the two forms of procedure, there was, from the outset, no doubt 
w'hieh would win. In the legis actio procedure the formulating of 
the issue was an act full of pitfalls for the parties, inelastic and 
rigidly formal ; in the formulary procedure the same act, stripped as 
it was of all the old formalism, had acquired elasticity, a capability 
of indefinite expansion, and a ready adaptability to claims of all 
kinds. Through being tied to the verba legis the legis actio was, 
in many cases, reduced to absolute unreality and hollowness. In 

* That is to say, the judicium must standing, the foreign praetor used to 
l>c appointed within the fust milestone nominate several judges (recupcratores) ; 
from Home ; the parties ami the judex in actions between citizens, on the other 

must all lie fully qualified citizens, and hand, it had been the rule from the 
there must be * unus judex ’ only. In earliest times to have only one judge, 
accordance with a practice of very old 



262* 


THE INSTITUTES 


49. the formula, on the other hand, the issue could be formulated 
without any restrictions ; it set out the real matter in dispute and 
was not a mere empty form beneath which the truth lay concealed. 
Everything, in short, was in favour of the formula. The natural 
result was that, in the practice of the courts, the formulary procedure 
came, by universal consent, to be substituted for the legis actio 
procedure in the vast majority of cases. The culminating point 
was marked by the lex Julia already referred to, which, like the lex 
Aebutia, was concerned with the procedure of the court of the 
praetor urbanus, and provided that henceforth the appointment of 
sworn judges should only be effected by means of a formula, and 
not on the ground of a preceding legis actio 9 . The effect was, 
practically, and with a few exceptions presently to be mentioned, 
to abolish the legis actio. The formulary procedure had now 
become the civil procedure of Roman law. The object of the 
proceedings in jure had been definitely changed. The place of 
the old litis contestatio was taken by the processual agreement 
embodied in the formula, and this agreement now constituted the 
principal and also the concluding act of the proceedings in jure. 
Henceforth it was the question contained in the formula and no 
other which the judex was required to decide in judicio. 

The so-called ‘introduction’ of the formulary procedure by 
means of the above-mentioned enactments was, if our view be the 
true one, a process of the kind we have just detailed 10 . It was not, 
as we see, a sudden reform, a revolution, but merely the consum- 
mation of what had been gradually preparing itself. These laws 


• A second lex Julia— Gajus (iv. 30, 
mentions *duas Julias’— probably re- 
ferred to legal procedure in the Roman 
country towns (the municipia /f its object 
being to do for the municipia what the 
other lex Julia had done for Rome, viz. 
to replace the legis actio by the written 
formula. Wlassak, J'roccss^aetze, vol. i. 
p. U)i ff. ; vol. ii. p. sax ft. 

10 In dealing with this portion of my 
subject 1 have availed in \ self of the 
results obtained by the researches of 
VVlassak, as set forth more particularly 
in his Romische /'voces sge seize (supra, 


p. 237, n. 1;— as to which see some 
recent observations in Griinhut’s /.V. 
fur offentliehes u. Ttivatrccht , vol. six. 
p. 729 tf. The idea that the formulary 
procedure had its origin in the pro- 
cedure applied to foreign litigants was 
first broached by Huschkc. The result 
of the labouts of Wlassak has l>eeti to 
place our views on this important 
process on a sound basis of textual 
authority and, at the same time, to 
show that in many rcs|>ects they needed 
correction. 



THE LAW OF PROPERTY ( GENERAL PART) 263 


were not the first to introduce the written formula ; what they § 49. 
did was merely to emphasize its victory over the oral formula, 
which till then had existed side by side with it, a victory which 
itself was due to the logical necessities of the progressive evolution 
of the law. 

There are two further facts which tend to corroborate and, at the 
same time, to illustrate the view concerning the nature of the develop- 
ment of the formulary procedure which we have just endeavoured 
to render plausible. 

The first of these facts is this, that whenever an action was to be 
decided in judicio by the judges of the so-called ‘centumviral court,* 
a written formula was not used, the proceedings being conducted 
in accordance with the forms of the ancient legis actio procedure 
(L. A. sacramento)— a practice which continued without break 
throughout the whole classical period of the Empire, at least as late 
as Diocletian. Actions concerning inheritances therefore (which in 
later times were certainly the most important matters falling within 
the jurisdiction of the centumviral court) were still conducted 
according to the old traditional forms of the legis actio sacramento. 

And the reason was simply this, that the centumviral court already 
constituted a standing college of judges which did not require to be 
called into existence in each separate instance by the written decree 
of the praetor. In such cases there was accordingly no possibility 
of instituting a judicium, because a competent judicium, viz. the 
centumviral judicium, was already forthcoming. And inasmuch as 
this judicium was not called into existence by a praetorian decree 
of appointment, it followed, on the one hand, that the praetor had 
no means of binding the centumviri by instructions as to the con- 
ditions under which they should condemn or acquit, and, on the 
other hand, that the parties were debarred from concluding a 
‘processual* agreement through the medium, and subject to the 
limitations, of the praetorian decree. The absence of the praetorian 
decree of appointment thus explains everything ; it explains why, in 
these cases, the formula did not come into use concurrently with 
the legis actio, and why the ancient litis contestatio was preserved ; 
why, in short, in causes coming before the centumviral court the 



264 


THE INSTITUTES 


40 . legis actio (sacramento) was not superseded by the formulary pro- 
cedure. In the judicia privata, where a private individual had each 
time to be appointed judex for the nonce, the ancient ceremony of 
litis contestatio had found a rival in the praetorian decree of 
appointment ; no such rivalry could spring up where there was no 
judex to appoint n . 

The second fact has reference to the so-called ‘ voluntary juris- 
diction,’ i. e. that kind of judicial procedure which serves the purpose, 
not of determining rights which are in dispute, but of establishing 
new rights. An example of this jurisdiction occurs in the case 
of in jure cessio, i. e. the transfer of a right by means of a con- 
fessio in jure (supra, p. 5S). Inasmuch as, in this case, the allegation 
of title put forward by the fictitious plaintiff (the transferee of the 
right) is immediately followed in jure, before the magistrate, by 
the jural confession of the fictitious defendant (the transferor), no 
necessity, of course, arises for proceeding to a judicium, simply 
because there is no legal issue to decide. Kor the very same reason 
there is also no occasion for a formula, because there is no judex 
to appoint. The result was that in jure cessio, as long as it existed 
(i. e. throughout the whole classical period and even longer), re- 
tained the forms of the legis actio procedure, the particular legis 
actio employed being again the L. A. sacramento. 

Both these facts signify one and the same thing, namely that 
wherever there is no occasion for instituting a judicium in any 
particular case by means of a decree of appointment, there neither 
formula nor formulary procedure comes into use, and the ancient 
legis actio procedure holds its own l? . 


11 The decern viral court was dissolved 
by Augustus ; otherwise it is certain ^as 
is very happily pointed out by Mornirscn, 
Staafsr. vol. ii. 3rd ed. p. 6oH, n. 1 that 
the old legis actio sacramento w ould have 
been preserved in cases coming before it, 
i. e. in actions relating to personal free- 
dom. Of course there was no more occa- 
sion for the use of a formula or decree of 
appointment in the case of the dcccm- 
viral court than there was in the case of 
the centumviral court. 

M According to Gajus, iv. 31, lege 


agere was Mill possible in later times in 
cases of damnum infect 11 m supra, p. 350). 
The proceedings in connexion with 
* apprehended damage' do not, in the 
fir.*>t instance, constitute an action at law 
at all, but arc merely designed for the 
protection of the threatened party, a pro- 
tection which, in the old law, was appar- 
ently secured by means of pignoris capio. 
In place of the latter procedure the prae- 
torian law substituted, not the formulary 
procedure, but a proceeding extra ordi* 
nem, under which the praetor, in the 



THE LAW OF PROPERTY (GENERAL PART) 265 


The lex Aebutia and the leges Juliae did not entirely abolish § 49. 
the legis actio procedure and establish the formulary procedure as 
the only recognized legal procedure. What they did was rather 
this: wherever, as a matter of fact, the formulary procedure was 
already in practical use, in other words, wherever, as a matter 
of fact, the parties were in the habit of employing, not the old 
oral formula, but the written formula, as the medium for carrying 
out their processual agreement, and the sententia of the judex 
accordingly proceeded on the basis of that formula — in those cases 
alone (and they formed, it is true, the great majority) the above- 
mentioned laws confirmed the formulary procedure, and at the same 
time swept away the fossilized relics of the concurrent legis actio 
procedure. But where the formulary procedure was not in use — 
as in the cases falling under the jurisdiction of the centumviral 
court and the cases of ‘voluntary jurisdiction,’ and damnum 
infectum (note 12)— the laws referred to did not introduce the 
formulary procedure. 

Thus in matters coming before the centumviral court the old legis 
actio sacramento remained, but in all cases of judicia privata, that 
is, wherever private individuals were appointed for the nonce to 
act as sworn judges, the formulary procedure henceforth prevailed. 

The change meant simply this, that henceforward the judex, in 
order to find an authoritative statement of the issue upon which 
he was to deliver his sententia, would have to look to the decree 
of appointment as drawn up by the magistrate and accepted in 
due form by the parties, in other words, to the communication 
which the praetor’s written formula conveyed to him in reference 
to the legal issue submitted to him for decision. In other respects 
everything remained as before. The severance of jus and judicium 

exercise of his official power, exacted from granted a formula on a fiction that the 
the defendant a stipulatio, or promise of pignoris capio had actually taken place 
indemnity, for the purpose of saving the (Gajus, iv. 32), i.e. he instructed the 
threatened party harmless. The result judex to decide the case just as though 
was that, in this instance too, the legis the pignoris capio had actually been 
actio remained in use, because in such carried out, and in this way the legis 
cases, according to the praetorian law, actio was superseded. It is only where 
no judex was appointed and consequently there is no formula, no decree of appoint- 
no formula was granted. In other cases ment, that the legis actio survives, 
of the ancient pignoris capio the praetor 



266 


THE INSTITUTES 


40. remained, nor was there any change in the rule which confined 
the magistrate’s duties to the introductory stages of the suit (the 
admission of the claim and the formulating of the issue), and 
reserved the final decision for the judex. The magisterial appoint- 
ment of the judex continued, as before, to be coupled with a formal 
processual agreement between the parties. Nothing was changed 
except that the formal foundation of the judicium had been shifted. 
The processual agreement between the parties, which determined 
the task of the judex, was now concluded through the medium of 
the written formula ‘ granted ' by the praetor, and no longer through 
the medium of the oral formula founded on popular statute. In 
effecting such a reform by means of the lex Aebutia and the leges 
Juliae, it is quite possible that men merely imagined they were 
ridding themselves of some futile and antiquated formalities, and 
perhaps also (at the time of the lex Aebutia) of the predominant 
influence of the pontifices over the legal procedure of the city of 
Rome. The reform, such as it was, was probably not regarded as 
possessing any unusual significance, and we can hardly suppose that 
the Romans were conscious of having accomplished anything great, 
in view more especially of the fact that the idea of a fundamental 
reform of civil procedure never occurred to their minds— a fact 
proved clearly enough by the way in which they treated matters 
appertaining to the centumviral court. 

In real truth, however, the reform which had thus been carried to 
its conclusion, was one of the utmost importance in its far-reaching 
practical results. 

Gaj. Inst. IV § 30 : Sed istae omnes legis actioncs paulatim 
in odium venerunt. Namque ex niinia subtilitate veterum 
qu tunc jura condiderunt eo res penlucta est, ut vcl qui 
minimum errasset, litem perderet ; itaque jnir legem Aebutiam 
et duas Julias sublatae sunt istae legis ac tioncs effcctumquc 
est, ut per concepta verba, id est |>er formulas litigemus. 
§ 31 : Tantum ex duabus causis permissum est lege agere, 
damni infecti et si ccntumvirale judicium futurum est. Sane 
quidem cum ad ccntumviros itur, ante lege agitur sacramento 
apud praetorem urbanum vel peregrinum practorem ; damni 



THE LAW OF PROPERTY {GENERAL PART) 267 


vero infecti nemo vult lege agere, sed potlus stipulatione § 49 . 
quae in edicto proposita est obligat adversarium suum, idque 
et commodius jus et plenius est. 

§ 50 . The Formula . 

The formula (i. e. the decree appointing the judex or the several § 50 . 
recuperatores) had now become the medium through which the litis 
contestatio was effected, through which, in other words, the pro- 
cessual agreement was concluded whereby the legal issue was 
formulated for the purpose of a decision in judicio 1 . The written 
formula of the magistrate superseded the oral formula of the 
parties. 

In point of legal force this new kind of litis contestatio was 
theoretically inferior to the solemn act of the parties in the legis 
actio procedure. An act of writing was, in the eye of the early law, 
an informal act devoid of all solemnity, and was therefore in itself, 
in the legal sense of the jus civile, no actio at all, i. e. it was not an 
act by which a person’s statutory right of action was, at the same 
time, exercised and exhausted (supra, p. 253). There was nothing 
in the nature of the formula itself or in law (ipso jure civili) to 
prevent the formula from being retracted, repeated, or amended, if 
the decree of the praetor so directed. Being a mere creation of 
the jus honorarium, it did not, according to the civil law, operate 
as a litis contestatio at all, so that there was legally speaking (ipso 
jure) no reason why the identical claim should not be brought 
before the praetor by action and carried to a judicium twice over. 

The lex Aebutia and the Julian legislation made the judicium 
legitimum (p. 260) the only exception ; that is to say, the civil law 
had given its recognition to the formulary procedure only in cases of 
actions instituted between Roman citizens within the first milestone 
from Rome. If the plaintiff in a judicium legitimum sued by actio 
in personam (§ 52) with an intentio juris civilis (§ 51), the effect of 
the formula, like that <of the old legis actio, was ipso jure to consume 

1 As to the form of the litis con- by the praetor was either handed to, or 
testatio in the formulary procedure, v. occasionally dictated to, the defendant 
supra, p. 238, n. 2. The formula granted by the plaintiff. 



268 


THE INSTITUTES 


$ 50. the right of auction and render any repetition of the proceedings 
impossible. In all other cases however— and they formed the 
great majority— the praetor was obliged, in each separate instance, 
to insert an explicit instruction, in the shape of an express ‘ex- 
ceptio rei judicatae vel in judicium deductae,’ in order to prevent 
a matter which, under the formulary procedure, had already led to 
the institution of a judicium and had perhaps even been carried 
to final judgment, from passing through every stage of an action 
a second time 2 . From this it appears that it was not the action as 
such (neither the institution of the judicium nor the sententia of the 
judex) which operated to consume the right of action in the early 
law of procedure, but solely that solemn legal act by means of which 
the party himself brought about the appointment of a judex, in other 
words, the legis actio in the strict sense of the term, the old formal 
litis contestatio. And this very act had been dropped in the formu- 
lary procedure. In contemplation of law, the operative force of the 
processual agreement as embodied in the formula was— apart 
from the exception adverted to— inferior to that of the old litis 
contestatio. 

Nevertheless this modest formula, this written notice so bald and 
succinct, which the praetor conveyed to the judex, contained 
potentially the entire future development not only of the law of 
Roman civil procedure, but also of Roman private law and, with it, 
of Roman law in general. 

The ancient legis actio procedure, with its litis contestatio tied to 
set traditional words, offered but an extremely limited choice of ways 


3 Gaj. Inst. IV §5 106, 107: Kt si 
quidem imperio continent judicio actum 
fiierit, sive in rem, sive in iK.*rsonain, 
sive ca formula quae in factum conccpta 
est, sive ea quae in jus hab«t intentio- 
nem, postea nihilominus ipso jure de 
eadem re agi potest ; et idco nccessaria 
est exceptio rei judicatae vel in judicium 
deductae. Si vero legitimo judicio in 
personam actum sit ea formula quae 
juris civilis habet intentionem, postea 
ipso jure de eadem re ngi non potest, et 
ob id exceptio supervacua est ; si vero 
vel in rem vel in factum actum fuerit, 
ipso jure nihilominus postea agi potest, 


ct ob id exceptio neccssaria est rei judi- 
catae vel in judicium deductae. In the 
case of a judicium legitiimnn however 
(if the plaintiff sued by actio in rem or 
in factum the praetor was, ex officio, 
under a statutory obligation to grant 
the exceptio (x\hich belonged in this 
instance to the class known as ‘civil’ 
exceptiones, infra, p. 293), whereas in an 
action brought im|>crio contincnti judicio 
it was within the discretion of the 
praetor whether he would grant the 
exceptio or not. C'p. Wlnssak, Cos;- 
niter, , p. 67 ; Trocessgcsetzc , vol. ii. 
P- 35 <>- 



THE LAW OF PROPERTY (GENERAL PART) 269 

in which to formulate the legal issue. If none of these traditional k 50 . 
forms was strictly appropriate, the only remedy supplied by the civil 
law was to have recourse to the so-called ‘procedure by sponsio* 
(agere per sponsionem). A made a formal promise (sponsio) to his 
opponent B that, if the allegation of fact or law put forward by B 
were true, he (A) would pay a sum of money. This sponsio could be 
enforced by a legis actio sacramento in personam (supra, p. 251), and 
the judicium on the sponsio would involve a judicium and sententia 
on the question of law or fact which formed the basis of the promise. 

The amount of the sponsio was never actually paid, because a 
sponsio of this kind (a so-called ‘sponsio praejudicialis *) was not 
designed for the recovery of a sum of money, but was merely 
intended to bring on an action, being simply a device for forcing 
on legal proceedings 3 . 

On the other hand, there was no tradition to fetter the formula of 
the praetor. In the old litis contestatio the issue was formulated in 
narrowly prescribed terms ; in the new formula the terms used were 
informal and freely chosen by the magistrate. Through the medium 
ol the formula, therefore, any question, or complex of questions, 
which the praetor deemed actionable, could, by virtue of the pro- 
< essual agreement of the parties, be directly submitted to a judex 
for decision in judicio. The praetor himself was now in a position, 
while formulating the legal issue, to give the judex at the same time 
direct instructions in reference to the decision of such issue. For 
whether the judge condemned or acquitted depended now solely on 
the manner in which the praetor formulated the question in dispute 
for purposes of the processual agreement between the parties. 

The formula was bound to become, and did in fact become, the 
instrument by means of which not only the wording, but also the 
decision of the legal issue was emancipated from the trammels of 
the ancient statute-law and the exclusive influence of the civil law. 

* It was different with the so-called to reply with a ‘ repromissio,’ i.e. a 
* sponsio pocnalis,’ which was a sponsio promise to pay the same amount if 
as to the result of an action, the parties defeated in the action. No repromissio 
themselves contemplating the payment was required in the case of a sponsio 
of the money. On the defendant tender- praejudicialis. Gaj. IV. §§ 1^ 04 171 . 
ing a sponsio poenalis, the plaintiff had Bekker, Actionen , vol. i. p. 346 ff’ * 



270 


THE INSTITUTES 


§ 50 . The formula, in a word, was the weapon by which the praetor and 
his jus honorarium were enabled to assert their dominant influence 
over the whole development of Roman law. 

The praetor had had no control over the legis actio. Its 
development and interpretation were entirely in the hands of the 
pontifices. In the legis actio procedure the judex was independent 
of praetorian instructions. Officially he was only bound to abide by 
such instructions regarding his judicium as were contained in the 
solemn litis contestatio of the parties, and in giving his decision on 
the issue thus joined, he was obliged to act in accordance with the 
civil law, and more especially in -accordance with the pontifical inter- 
pretation. In jure the magisterial power was paramount ; in judicio, 
however, the old civil law, preserved and handed down by statute 
and pontifical tradition, and operating through the judex as its organ, 
held absolute sway. But now the relation between praetor and 
judex and with it the relation between the jus praetorium and jus 
civile was altered. The praetorian decree of appointment (formula) 
had come to be binding even in civil law matters. That is to say, 
even in civil law cases, it was now not enough that the judex should 
simply decide in accordance with the civil law ; he was obliged, in 
the first instance, to decide on the basis of the formula as drawn up 
by the praetor and accepted in due form by the parties, having regard 
always to such limitations and instructions as were conveyed in that 
formula. Thus within the domain of the civil as well as the prae- 
torian law the judex became dependent on the praetor. He was 
bound by the instructions (formula) of the praetor to acquit the 
defendant even where, according to the civil law, he ought to have 
condemned him. In other cases he was bound conversely, in virtue 
of the praetor's instructions again, to condemn the defendant where 
the civil law would have required an acquittal (§§ 51, 53). At 
one stroke the judex had been converted from an organ of the civil 
law into an organ, in the first instance, of the praetorian law. 

Through the medium of the formula the praetor now controlled 
the processual agreement between the parties, and, through it, the 
entire procedure even in civil law matters. The edict began hence- 
forth to dominate legal procedure and the general development of 



THE LAW OF PROPERTY ( GENERAL PART) 271 


the law. Apart from the centumviral causes, the enforcement, in the § 60 . 
courts, of the civil law was now entirely subject to the limitations 
which the praetor by his edict thought fit to impose on it. 

The lines are thus marked out upon which Roman law in the 
whole course of its subsequent development proceeded. It is certain 
that the formulary procedure obliterated, beyond recovery, the sharp 
distinction which had hitherto existed between jus and judicium. 

The judex ceases to be, even for the jus civile, an independent 
private individual, bound by nothing but the positive law. He 
becomes an organ of the magisterial power and is already beginning 
to assume the character of a subordinate official. Thus the develop- 
ment of the formulary procedure was a decisive element in paving 
the way for the subsequent elimination of the antithesis between 
jus and judicium (§ 57). And while thus securing control over 
the judex, the praetor at the same time definitively appropriated to 
himself a predominant influence over the whole evolution of Roman 
law. The formulary procedure marks the beginning of that vigorous 
development of the jus honorarium, so momentous in its con- 
sequences, which resulted in the metamorphosis of the jus civile 
and the birth of classical Roman law. A reform of procedure was 
followed by a reform of the law itself. 

§ 51. Intentio and Actio . 

Every formula commences with the appointment of the judge § 61 
(Titius judex esto) or college of judges (Titius, Maevius et Lucius 
recuperatores sunto). This appointment— itself the origin of the 
formula — now only serves the purpose of an introduction to the real 
substance of the formula. 

The formula is generally framed as an order to condemn, and con- 
sists accordingly, as a rule, of two main parts : the ‘ intentio f and 
the 1 condemnation The form is, in outline, as follows: If you 
(judex) are satisfied that such and such a right exists, or such and 
such a fact is true (intentio), condemn the defendant (condemnatio) ; 
if not, acquit him: si paret, condemna; si non paret, absolve. 

The intentio specifies the condition on which the condemnatio is to 



272 


THE INSTITUTES 


§ 51. take place. It formulates the question at issue, i. e. the question 
which, if answered affirmatively (si paret\ carries with it a verdict 
in favour of the plaintiff. The nature of this question and con- 
sequently the contents of the intentio determine the nature of the 
action. There are as many different kinds of actions as there are 
different kinds of intentiones. 

Now the question at issue may be one either of law or of fact. 
Whether a thing belongs by the civil law to the plaintiff, or whether 
the defendant is under a civil obligation to do something, is a 
question of law. In such cases the intentio is framed to include 
the words ‘ . . . ejus esse ex jure Quiritium ’ or ‘ dare oportere/ and 
the actio is said to be an actio * in jus concepta.* 

But the question at issue may be merely one of fact. Civil owner- 
ship is not alleged nor civil liability. All that is alleged is some 
particular fact, or group of facts, to which the praetor, and he alone, 
has annexed a right of action. For example, it is a question of fact 
whether A has pledged a thing by way of hypothec to B, and if B can 
prove his case, he is entitled to bring a real action on the pledge, but 
it is only the praetor, not the civil law, that gives him such a right. 
Again, it is a question of fact whether a freedman has summoned 
his patron before the court without previous leave from the praetor, 
but it is a fact to which, if true, the praetor, and he alone, annexes 
a penal action in favour of the patron against the libertus. In 
these cases the intentio does not affirm any right, but simply states 
certain facts the truth or untruth of which determines the result 
of the action. An actio where the intentio is framed in this manner 
is called an actio c in factum concepta ’ \ 

The actio in factum concepta is the instrument by which the 


1 There is also an actio in factum 
civilis , i. e. an actio in factum with an 
intentio in jus concepta. An actio in 
factum of this kind was an action for 
which the edict contained, as yet, no 
form, so that the formula had to be 
framed independently in each separate 
case (in factum). In the introductory 
part (the demonstratio) the actual con- 
crete facts of the case weTc set out, and 
on the ground of these facts an intentio 


was granted in the following form : quid- 
quid ob cam rem dare faccre oportet 
(ex bona fide). The actio in factuin 
civilis is identical with the actio prae- 
scriptis verbis ($ 79 . Thus an actio 
in factum, simply, is an actio with an 
intentio in factum concepta, but an 
actio in factum civilis is an actio with 
a demonstratio in factum concepta. Cp. 
1. 6 § 1 C. dc transact, a, 4. 



THE LAW OF PROPERTY (GENERAL PART) 273 


praetor actually creates new rights unknown to the civil law, such as § 61 . 
the rights adverted to above (the right of hypothec, the right of the 
patron to demand the punishment of a disrespectful freedman) and 
others. 

But there are other means by which the praetor achieves the same 
result. He may retain the intentio juris civilis, i. e. the intentio in 
jus concepta, but, at the same time, modify and supplement it in 
a manner unknown to the civil law. He may instruct the judex to 
accept as a fact the existence of the civil law claim conveyed in the 
words ‘ejus esse ex jure Quiritium’ and ‘dare oportere,’ but to accept 
it subject to such conditions, as he (the praetor) thinks fit to formulate 
on his own responsibility. To take an instance. In Roman civil law 
an obligation can never be assigned. Even if the creditor sells and 
assigns his right to another, the right to sue does not thereby, 
according to the civil law, pass to the assignee, but continues to 
reside in the creditor (the assignor). The praetor, however, gives 
the assignee the assignor’s right of action, the right, that is to say, to 
contend ‘dare oportere’ (with an intentio in jus concepta), but for 
this purpose he modifies the intentio in such a way as to instruct the 
judex to treat the assignee as the real creditor, and to decide accord- 
ingly. It is thus we get the so-called ‘actio utilis.' An actio utilis 
is an action with a modified intentio, an action that can be adapted 
to, or * utilized ’ for, new cases. It is opposed to the ‘ actio directa,’ 
in which the intentio appears in its original form, the form namely 
on which the intentio of the actio utilis is modelled. Thus in the 
example chosen the creditor or assignor has the actio directa, the 
assignee the actio utilis. 

There is one particular form of actio utilis which is specially 
important, and that is the so-called ‘ actio ficticia.’ An actio ficticia 
is an actio utilis where the modification of the intentio consists in 
the insertion of a fiction. The judex. is told to assume that a re- 
quirement of the civil law upon which the truth of the intentio 
depends is satisfied, in other words, he is told to disregard the 
fact that, in reality, such requirement is not satisfied. The actio 
Publiciana in rem may serve as an illustration. It is a utilis rei 
vindicatio, i.e. a rei vindicatio, or action in which ownership is 

SOHM : LEDLIB X 



274 


THE INSTITUTES 


61 . claimed (with an intentio : ejus esso oportere ex jure Quiritium), 
but a rei vindicatio with a modified intentio. If I receive a thing 
by purchase and delivery from a person who is not the owner of it, 
I do not, to begin with, become owner of the thing, but I may 
become owner ex jure Quiritium by means of ‘usucapio’ (infra, 
p. 336 ff), if I remain in possession of the thing thus bona fide 
acquired for a certain definite period. If this period of usucapio has 
expired, I have the true, the directa rei vindicatio, because I am owner 
according to the civil law. But until the period has expired I cannot 
have a true rei vindicatio according to the civil law, because I am 
not yet owner. Nevertheless, in such circumstances, the praetor 
is prepared, for good reasons, to grant a rei vindicatio even before 
the period of usucapio has run its full course, except, indeed, as 
against the true owner himself. And he proceeds in this way. He 
modifies the intentio of the rei vindicatio by inserting a fiction : the 
judex is told to assume (by a fiction) that the period of prescription 
has already expired, in other words, he is told to disregard the fact 
that, in reality, it has not yet expired. In short, the praetor gives to 
the person whose period of usucapio is still incomplete a ficticia rei 
vindicatio, the so-called actio Publiciana in rem (§ 66), the intentio of 
which runs as follows : * Si quem hominem Aulus Agerius emit et is 
ei traditus est, anno possedisset ', turn si eum hominem quo de agitur 
ex jure Quiritium ejus esse oporteret. . . . ’ We observe then that it 
is an actio in jus concepta. The question at issue (intentio) is one 
of civil law (ejus esse oportere ex jure Quiritium), but modified in 
such a manner that, in spite of the civil law, the usucapio possessor 
is protected by means of the action in precisely the same manner 
as if the period of prescription had run its full course. The 
usucapio possessor then has also a rei vindicatio, but it is a utilis 
rei vindicatio (the actio Publiciana). It is probable that the actio 
ficticia was the oldest form of the actio utilis. For in the actiones 
ficticiae the praetor, though really developing the civil law, neverthe- 
less adhered to it as closely as he possibly could. 

But the antithesis between actio directa and actio utilis is not only 
applicable to actiones in jus conceptae. It applies in an equal 
degree to actiones in factum conceptae, although in dealing with the 



THE LAW OF PROPERTY {( GENERAL PART) 275 


latter the praetor was, from the outset, acting within the limits of his § 51. 
special sphere of power. The praetor has (let us suppose) annexed 
a right of action to a particular state of facts. It subsequently 
appears to him desirable, in the interests of justice, to annex the 
same right of action to another state of facts, not indeed identical 
with, but closely analogous to, the former one. What the praetor 
did was this : taking the action which was designed for the state 
of facts originally contemplated, he adapted it to the new state of 
facts by introducing a modification into the intentio in which, in 
such cases, the facts were set out. The former action was the 
actio directa, the latter the actio utilis. A good illustration is 
furnished by the actio hypothecaria. The only case in which, 
in the first instance, a pledgee was given a real action against the 
pledgor who was in possession of the thing pledged, occurred when 
a tenant farmer of a praedium rusticum pledged his farming stock, 
his ‘ invecta and illata,’ to his landlord as security for his rent. In 
such a case the landlord’s right of pledge was protected by the ‘actio 
Serviana,’ which was an actio in factum concepta. It soon appeared 
however that it was desirable, in the interests of equity, to extend the 
advantages of an action of this kind from landlords to pledgees of every 
description. Hence pledgees other than landlords were given the actio 
Serviana utilis or actio quasi-Serviana ; in other words, they acquired 
the same right as landlords to sue on pledges, the only difference being 
that in their case the intentio appeared of course in a modified form. 

Thus the actio directa is the original on which another action is 
modelled, and this other action— the actio utilis— is the copy. 

Actiones utiles, like actiones in factum, are always praetorian 
actions (actiones honorariae), i. e. they are based on the jus hono- 
rarium. On the other hand, an actio directa may be either an actio 
civilis (viz. when it is based on the civil law) or an actio honoraria 
(as e. g. in cases where an actio in factum is the model on which 
an actio utilis is framed). 

The actio utilis, like the actio in factum concepta, is always symp- 
tomatic of legal progress, whether the law affected be the civil or the 
praetorian law*. 

9 Cp. Wlassak, * Actio utilis,* in Pauly’s RealencyklopaJie d. klassischen Alter - 
tumswisscnschaftt columns 19, 20. 

T 2 



276 


THE INSTITUTES 


51. Both these forms of action, the actio utilis and actio in factum 
concepta, are illustrative of the power which the praetor exercised, in 
the first instance, over the judex and, through him, over the develop- 
ment of the law in general. The subordination of the judex to the 
praetor binds him to abide by the instructions he has received and 
to condemn the defendant in an actio in factum or an actio utilis, 
in spite of the fact that the requirements of the civil law have not 
been fulfilled. 

The contrasts with which we have hitherto been dealing— actio 
civilis and honoraria, actio in jus and in factum concepta, actio 
directa and utilis — are contrasts of a purely formal kind. They are 
based on the external relation in which the intentio stands to the 
civil law, on the one hand, and to the praetorian edict on the other ; 
in other words, on the external relation between the intentio and the 
positive law. 

But the intentio possesses a much greater interest when viewed in 
reference to its matter, i. e. when viewed in reference to the rights 
which claim to be realized through the medium of the intentio. 
When regarded from this point of view, the various classes of inten- 
tiones are found to exhibit the whole system of actions, a system 
which is, itself, but a reflex of the system of private law. 

Gaj. Inst. IV § 41 : Intentio est ea pars formulae qua actor 
desiderium suum concludit, velut haec pars formulae: si 
PARET N. NeGIDIUM A. AGKRIO SESTKRTIUM X MIMA DARE 

oportere; item haec: quidquid paret N. Negidium A. 
Agerio dare facere oportere; item haec: si paret 
hominem ex jure Quiritium A. Agerii esse. 

§ 45 eod. : Sed eas quidem formulas in quibus de jure quaeritur 
in jus conceptas vocamus, quales sunt quibus intendimus 
nostrum esse aliquid ex jure Quiritium, aut nojus dari 
oportere, aut pro pure damnum decidi oportere: in 
quibus juris civilis intentio est. § 46 : Ceteras vero in factum 
conceptas vocamus, id est, in quibus nulla talis intentio con- 
cepta est, sed initio formulae, nominato eo quod factum est, 
adjiciuntur ea verba per quae judici damnandi absolvendive 
potestas datur; qualis est formula qua utitur patronus contra 



THE LAW OF PROPERTY ( GENERAL PART) 277 

libertum qui eum contra edictum praetoris in jus vocavit, § 51 . 
nam in ea ita est : recuperatores sunto. si paret illum 

PATRONUM AB ILLO LIBERTO CONTRA EDICTUM ILLIUS PRAE- 
TORIS IN JUS VOCATUM ESSE, RECUPERATORES ILLUM LIBERTUM 
ILLI PATRONO SESTERTIUM X MILIA CONDEMNATE : SI NON 

paret, absolvite et denique innumerabiles ejusmodi 

aliae formulae in albo proponuntur. § 47 : Sed ex quibusdam 
causis praetor et in jus et in factum conceptas formulas pro- 
ponit, veluti depositi et commodati : ilia enim formula quae 
ita concepta est : judex esto. quod A. Agerius apud N. 
Negidium mensam argenteam deposuit, qua de re 
AGITUR, QUIDQUID OB EAM REM N. NEGIDIUM A. AGERIO 
dare facere oportet ex fide bona, ejus judex N. 
Negidium A. Agerio condemnato, nisi restituat; si 
non paret, absolvito, in jus concepta est; at ilia formula 
quae ita concepta est : judex esto. si paret A. Agerium 
apud N. Negidium mensam argenteam deposuisse eamque 
dolo malo N. Negidii A. Agerio redditam non esse, 
quanti ea res erit, tantam pecuniam judex N. Negidium 
A. Agerio condemnato; si non paret, absolvito, in 
factum concepta est. Similes etiam commodati formulae 
sunt. 


§ 52. The System of Actions. 

I. Actiones in personam and Actiones in rem. § 62 

Every intentio is so framed as to be either personal (in personam) 
or impersonal (in rem). An intentio in personam names the person 
of the defendant (who is to be condemned on certain conditions), 
an intentio in rem does not name the person of the defendant, but 
only the person of the plaintiff, in other words, the person who claims 
the right. Upon this antithesis is based the supreme division of all 
actions into actiones in personam, where the intentio is in personam, 
and actiones in rem, where the intentio is in rem. 

The antithesis is not merely an external one, but is grounded 
on a fundamental difference in the nature of private rights them- 
selves. The rights we have called * obligatory rights/ which form one 
class of private rights, are cq-extensive with the liability of a single 



278 


THE INSTITUTES 


\ 52 . person, viz. the debtor, and it is impossible to specify the particular 
obligatory right which is meant without, at the same time, naming 
this particular person. The person of the opponent (the debtor), 
and therewith the person of the defendant, is pointed to and 
marked out, as it were, by the very nature of the plaintiff’s right. 
The intentio, whether in jus or in factum concepta, must specify 
the person of the debtor, because he (the debtor) in a sense indi- 
vidualizes the right. Where there is a different debtor, the right itself 
is different. The intentio thus runs, e.g. si paret N um . N um . A 0 . A°. 
dare oportere. On the other hand, what distinguishes all the 
remaining rights (more especially, though not exclusively, real rights 
like ownership) from obligatory rights is the fact that they do not 
correspond to the liability of one definite person, but are rights which 
not only subsist, but can, if necessary, be enforced against everybody. 
Rights of this kind are never, as such, available against any particular 
person. It is only when the plaintiff’s right is violated, but not till 
then, that the person against whom his right is available, in other 
words, the person of the defendant, is determined. And the plaintiff 
has the same right of action, on the ground of the same right, every 
time this right of his is violated. The right remains the same, 
however different the parties against whom it is enforceable. In 
such cases the intentio is impersonal (e. g. si paret .hominem quo 
de agitur A*. A 1 ’, esse ex jure Quiritium), i.e. it does not specify 
the defendant, whose name does not appear till the condemnatio. 

Thus the nature of the intentio determines the nature of the actio. 

An action arising from an obligatory right is an actio in personam, 
an action arising from any other right (ownership, right of pledge, 
paternal power, right of succession, &c.) is an actio in rem. Or, to 
put it in terms of private law : an obligatory right is a right the 
content of which is relative as against a definite person, the remain- 
ing rights are rights the contents of which are absolute. 

II. Actiones in rem. 

Real actions (actiones in rem) arise either from real rights (infra, 
§ 60 ff.), such as ownership (rei vindicatio, actio negatoria), or from 
family rights, such as the power of the paterfamilias over his children 
(vindicatio filii in potestatem), or from rights of succession (hereditatis 



THE LAW OF PROPERTY (GENERAL PART) 279 


petitio, interdictum quorum bonorum), or from rights of ‘ status/ § 52 . 
i.e. rights to a recognition of one’s personal standing (e.g. of one’s 
ingenuitas, parentage, freedom from patria potestas). The actions 
on questions of status belong to the class known as * praejudicia,’ 
i. e. to those actions of Roman law the object of which was to obtain, 
not the condemnation of the defendant, but merely a judicial 
acknowledgment of a legal relation, such as liberty \ 

The so-called ‘actio in rem scripta ’ is not an actio in rem, but an 
actio in personam, springing from an obligation and available, 
therefore, against an existing defendant, but with this peculiarity 
that the debtor is not specifically determined, but is only charac- 
terized by a general description to which different persons may 
answer at different times. It is therefore an actio in personam 
where the person of the debtor varies from time to time. An 
example would be the actio quod metus causa (p. 220), by which 
a man who has concluded a juristic act under the influence of fear, 
claims to recover the property he has involuntarily parted with from 
any one who is now, for the time being, in actual enjoyment of the 
benefits accruing from the act in question, e. g. the person who is 
now, for the time being, owner of the thing which was alienated 
metus causa. The effect of the action is real (i.e. it is ‘in rem 
scripta ’), in so far as it is directed not only against the author of the 
metus, but also against any third party to whom the former may have 
transferred ownership in the thing ; but on the other hand the action 
is not a real action, because the plaintiff cannot rest his claim 
against the third party on his ownership (the defendant himself 
being owner), but must rest it on an obligation, springing from 
the metus and aiming at the retransfer to the plaintiff of the 
ownership he had involuntarily given up. Another example occurs 
in the case of a partition suit where one co-owner of property 
claims the partition of the joint property from any one who is, for 
the time being, co-owner of the same property. 

III. Actiones in personam. 

Obligations arise either from contracts (or facts analogous to 
contracts), or from delicts (or facts analogous to delicts). Hence 

1 For more details oa the praejudicia v. Bekker, Aitioncn, vol. i. p. 283 ff. 



280 THE INSTITUTES 

§ 52 . all actions in personam are either contractual (or quasi-contractual) * 
or delictual (or quasi-delictual) (§ 77). 

IV. Actiones stricti juris and Actiones bonae fidei. 

Contracts are either stricti juris negotia or bonae fidei negotia 
according as the liability involved is precisely determined or not 
(§ 76). Hence all contractual actions are either actiones stricti 
juris (actions on loans, stipulationes, &c.) or actiones bonae fidei 
(actions on sales, lettings, bailments, &c.). An actio stricti juris is 
called a condictio if the formula does not state the ground on which 
the action is based (§ 80, n. 6). 

The intentio in an actio bonae fidei is always incerta (quidquid 
N um . N um . A°. A°. dare facere oportet ex bona fide), the intentio of 
an actio stricti juris is only incerta when the express object of the 
negotium stricti juris is an incertum. In cases of an incerta intentio 
(i. e. in all cases of bonae fidei actions) the intentio opens with a 
so-called 1 demonstration i.e. with a clause naming the contract from 
which the claim for the incertum (the quidquid) arises. For 
example: quod A ua . A u *. apud N ll,n . N“ m . hominem deposuit, 
quidquid, &c. 

V. Actiones ex delicto. 

A delict may render the delinquent liable to pay either compen- 
sation or a penalty or both, and in the last case the same action may 
be available for the double purpose of claiming compensation and 
exacting the penalty, or again, the delict (e. g. theft) may give rise to 
two independent actions: one for the recovery of compensation 
(e. g. the condictio furtiva), the other for the recovery of a penalty 
(e. g. the actio furti). Hence all delictual actions are either rei per- 
sequendae causa comparatae (reparatory), or poenac persequendae 
causa comparatae (penal), or mixtae (reparatory and penal). 

The right to sue for the penalty consequent on the commission of 
a delict may either be confined to the person injured or may be 
open to everybody (cuivis ex populo). Hence all penal actions 
(actiones poenae persequendae causa comparatae, actiones pocnales) 
are either private (open only to the injured party), or ‘ popularcs.* 

§ 1 I. de actionibus (4, 6) : Omnium autem actionum quibus 
inter aliquos apud judices arbitrosve de quaque re quaeritur 



THE LAW OF PROPERTY (GENERAL PART) 281 


summa divisio in dua genera deducitur : aut enim in rem § 52 . 
sunt aut in personam. Namque agit unusquisque aut cum 
eo qui ei obligatus est vel ex contractu vel ex maleficio : quo 
casu proditae sunt actiones in personam per quas intendit 
adversarium ei dare aut dare facere oportere, et aliis qui- 
busdam rnodis ; aut cum eo agit qui nullo jure ei obligatus 
est, movet tamen alicui de aliqua re controversiam : quo casu 
proditae actiones in rem sunt, veluti si rem corporalem possi- 
deat quis quam Titius suam esse affirmet, et possessor domi- 
num se esse dicat : nam si Titius suam esse intendat, in rem 
actio est. 

§ 13 eod. : Praejudiciales actiones in rem esse videntur : quales 
sunt, per quas quaeritur, an aliquis liber vel an libertus sit, 
vel de partu agnoscendo. 

§ 20 eod. : Quaedam actiones mixtam causam optinere videntur, 
tarn in rem quam in personam : qualis est familiae erciscundae 
actio, quae competit coheredibus de dividenda hereditate. 

Item communi dividundo, quae inter eos redditur inter quos 
aliquid commune est, ut id dividatur ; item finium regun- 
dorum, quae inter eos agitur qui confines agros habent. 


§ 53 * Condemnatio and Exccptio. 

I. Condemnatio. § 53 . 

The condemnatio is the clause in the formula by which the praetor 
orders the judex to condemn the defendant. The condition on 
which the condemnatio is to take place is contained in the intentio. 

If the intentio is true, the judex is to condemn. It is only in the 
actiones prejudiciales (p. 279) that the formula consists of nothing but 
an intentio, a condemnatio not being needed in such cases, because 
the sole purpose of the formula is to require the judex to pronounce 
upon the specific question (say, of status) submitted to him (pro- 
nuntiatio). 

The condemnatio, as ordered by the praetor, invariably consists in 
a direction to the judex to condemn the defendant in a sum of 
money (pecuniaria condemnatio), even in cases where the plaintiff 



282 


THE INSTITUTES 


§ 53. has established a claim to the restitution (restituere) or production 
(exhibere) of a definite object which is in the possession of the 
defendant. 

Not only in the earlier but also in the classical period of Roman 
law, direct judicial execution was only possible in the case of indis- 
putable money debts. Hence it was the business of the judex, 
while conclusively establishing the plaintiff’s right by means of his 
judgment, to convert this right at the same time into a right to 
a pecuniary sum. 

But the pecuniaria condemnatio frequently operates unfairly, more 
especially in such cases as those just adverted to, viz. suits where 
the plaintiff claims the restitution or production of property. The 
plaintiff may, for example, have successfully proved that he is owner 
of some object which the defendant withholds from him. Never- 
theless, inasmuch as the defendant is merely condemned in a sum 
of money, he (the plaintiff), though he has clearly established his 
title as owner (rei vindicatio), does not recover the object which 
belongs to him, but merely the pecuniary damages paid him by the 
defendant. The result is that the defendant, though defeated in 
the suit, nevertheless remains in possession of the object. Nay, 
what is more, the moment he pays the plaintiff the damages — 
the litis aestimatio (quanti ea res est) — he becomes, by the prae- 
torian law, owner of the thing. The upshot of the action in 
which the plaintiff successfully establishes his ownership is that he 
(the plaintiff) is expropriated and loses his ownership. And there 
are numerous other instances where the same rule produces the 
same unsatisfactory result. Thus a usufructuary who (by the actio 
confessoria) has established his right to the restoration of the object 
of the usufruct; a pledgee who (by the actio in rent hypothecaria) 
has made good his claim to the delivery-up of the object pledged ; a 
lessor who (by the actio locati) lias proved his right, after the expiration 
of the term of letting, to have the object he let out returned to him ; 
a commodator who (by the actio commodati directa), or a depositor 
who (by the actio depositi directa) claims the restitution of the object 
he lent or deposited for safe custody respectively ; a pledgor who, 
after discharging the debt for which he gave the pledge, claims (by 



THE LAW OF PROPERTY ( GENERAL PART) 283 

the actio pignoraticia directa) that the pledgee should return him the § 53. 
object pledged ; a person who having parted with property under the 
influence of dolus or metus, claims (by the actio de dolo or the actio 
quod metus causa, respectively) to have the property thus wrongfully 
obtained restored to him ; an heir who claims (by hereditatis petitio) 
that the merely supposititious heir shall make over to him (the real 
heir) the inheritance of which he has taken possession ; an owner who 
with a view to bringing a rei vindicatio sues by the actio ad exhibendum 
for the production of the object which the defendant has in his 
possession, in order to be able to establish its identity with the 
object which he himself is missing — in every one of these and in 
other cases, the plaintiff, though successful, finds himself in the same 
unsatisfactory position. In all the instances given the claim is for 
the restitution or, in the last case, for the production of property \ 
but even if the action is successfully carried through, the result of 
the principle of a mere pecuniary condemnatio is that the plaintiff’s 
claim is, in effect, not satisfied, but merely settled. 

The same unsatisfactory result ensues where a purchaser claims by 
the actio redhibitoria to have a contract of sale rescinded, on the 
ground, say, of latent defects in the article purchased. The money 
condemnation only gives him a sum representing his interest in the 
rescission of the contract (quanti ea res erit), but not what he is 
really entitled to demand, viz. the rescission itself, which would 
involve, on the part of the purchaser, the return of the article 
purchased, and, on the part of the vendor, the refunding of the price 
paid, or else a discharge from all obligations under the sale. Thus, 
in spite of the condemnation of the defendant, he (the plaintiff ) is 
forced, say, to keep the animal purchased, which he has, perhaps, 
found to have some infectious disease. 

Even in the case of a noxal action, it is quite conceivable that the 
condemnatio might not do justice to the interests of the plaintiff. 

If a slave commits a delict, the master becomes liable, he being 

1 In the case of an actio de dolo or fraud or the threats, the claim would 

actio quod metus causa the relief claimed be, not merely for a re-transfer of 

by the plaintiff might go further than possession (i.e. a restitutio in the 

what we have indicated in the text. If, narrower sense of the word), but for 

for example, a transfer of ownership a re-transfer of ownership, a rz-traJitio. 

had taken place in consequence of the 



284 


THE INSTITUTES 


53. given the option either of taking the consequences of the delict on 
his own shoulders (paying a fine and damages), or else of surrender- 
ing the slave to the party injured by the delict (noxae deditio). But 
take the case of an ‘ injuria.' A slave has used abusive language to 
the plaintiff. The condemnatio directs the master either to surrender 
the slave or to pay a small sum of money. The master will naturally 
adopt the second course. But such a form of redress gives the 
plaintiff but scant satisfaction. The money is of no use to him. 
The requirements of the case would be far more adequately met, if 
instead of money being paid, the slave were ordered to be flogged by 
way of punishment. 

The common feature in all these cases is this, that the pecuniary 
condemnatio is incapable of really satisfying the just demands of the 
plaintiff. 

A difficulty of a different kind arose in regard to stricti juris 
negotia, i. e. in regard to transactions (such as stipulatio, § So) in 
dealing with which a strict and literal interpretation was always 
adopted. If, for example, the promisor in a stricti juris negotium had 
undertaken to do something at a certain place (if e. g. he had bound 
himself by stipulatio : Ephesi centum dare), the performance of the 
promise could only be demanded at that particular place, nor could 
the defendant be condemned at any other place. For the defendant 
had never promised to perform anywhere else, and if the creditor 
sued him elsewhere, he (the creditor) was demanding something 
different from what he had been promised (plus petitio), and was 
bound to lose his action. On the other hand, it was perhaps prac- 
tically impossible for the plaintiff to prosecute his suit at the place in 
question (say, Ephesus), because the defendant persistently avoided 
going there, and legal proceedings against a defendant who was 
absent were unknown in the older law. Here was a case where 
the creditor might reasonably ask for some redress. The interests 
of justice required that he should have the right to sue at a different 
place, provided of course that he did not in that case demand 
the literal performance of what had been promised him, but only 
an amount representing his interest in such performance, the 
advantages or disadvantages of the specified locality being taken 



THE LAW OF PROPERTY ( GENERAL PART) 285 


into consideration in assessing such amount. To attain this end, § 53 . 
however, the form of the condemnatio had to be modified. For, in 
an actio stricti juris, the defendant was never condemned to pay an 
amount representing the plaintiff’s interest in the performance of 
the act, but simply the absolute value of the act as expressed 
in a pecuniary sum. Thus, if the plaintiff in an actio stricti juris 
(condictio certi) sued for a specified amount, the sum laid in the 
condemnatio was not a sum equivalent to the special value to the 
plaintiff of the amount in question, but precisely the specified 
amount itself, neither more nor less 2 . It was the same where the 
plaintiff sued, not for a sum of money, but for the delivery of a 
definite thing or for any other act which had been promised by 
a stricti juris negotium. All the successful plaintiff, proceeding by an 
actio stricti juris, could have awarded to him was the objective value 
of the particular thing or act, and not his own peculiar interest in 
one or the other. And this objective value he could recover no- 
where but at the very place at which the act had been promised. 

If he sued at any other place, he would be suing for something 
which was not due to him, and would consequently be defeated in 
his action. 

We see, then, that in the first class of actions mentioned above 
(where restituere or exhibere is claimed), and in the same way in the 
actio rcdhibitoria, and practically also in the specified instance of 
the noxal action, the injustice consisted in the fact that the defen- 
dant could only be condemned in a pecuniary sum representing 
the plaintiff’s interest, and could not be condemned to give the 
plaintiff specific satisfaction, whereas, conversely, in the actiones 
stricti juris the injustice consisted in the fact that the defendant 
could not be condemned to pay a sum representing the interest 
of the plaintiff, but only a sum representing the objective value of 
the act. 

These cases embraced elements of the greatest variety, but in 

a When, for instance, performance was amount payable by the defendant. For 
delayed, the plaintiff was not entitled to the same reason the benefit or detriment 
have the loss he suffered in consequence accruing from performance at a par- 
of such delay (e.g. the loss of interest ticular place could not be taken into 
on money) considered in assessing the account. 



286 


THE INSTITUTES 


§ 63. every one of them the evil, such as it was, had its origin in the 
narrowness of the condemnatio— the narrowness consisting either in 
the fact that the condemnatio was a mere money condemnatio and 
nothing else, or (in the case of the actiones stricti juris) in the fact 
that the money condemnatio was rigidly confined within certain 
narrow limits. The praetor was consequently in a position to apply 
the same remedy to all such cases alike, the remedy namely of 
modifying the condemnatio. He gave the judex the power to 
pronounce not merely a condemnatio, but also, if he saw fit, an 
‘arbitrium,’ i. e. a decision determined by the particular circum- 
stances of the case. An arbitrium is a judgment enlarged in scope 
and freed from the trammels besetting a condemnatio proper. 

Thus, for example, in actions relating to ownership and other 
similar actions, where a restituere or exhibere is asked for, the justice 
of the case will be best consulted, if the defendant is required to give 
the plaintiff specific satisfaction. As soon, therefore, as the plain- 
tiff’s ownership or other right has been established by a pronuntiatio, 
an arbitratus (jussus) de restituendo or de exhibendo is addressed to 
the defendant. If he disregards it, execution, it is true, docs not 
issue. For neither in the early nor in classical Roman law was 
execution possible for any but a money debt — which is just the 
very reason why a money condemnatio is the only true condemnatio. 
Instead of execution, however, condemnatio follows, and, if the 
defendant deliberately fails to comply with the order, the judge 
calls upon the plaintiff to affirm on oath (jusjurandum in litem) 
the value to him of the thing in question. If the defendant has 
acted in wilful contempt of the arbitratus de restituendo, it is most 
probable that the judge, on the strength of the plaintiff’s oath, 
will condemn the defendant in a sum far in excess of the actual 
value of the thing. In other words, a money condemnatio, when 
preceded by an arbitratus de restituendo, becomes an instrument for 
punishing a contumacious defendant, by this means a mode of 
execution was secured for the arbitrium de restituendo, which, 
though only indirect, was none the less effective, and, as far as the 
vast majority of cases was concerned, undoubtedly removed the 
injustice of the pecuniaria condemnatio. 



THE LAW OF PROPERTY ( GENERAL PART) 287 


The actio redhibitoria was treated in the same way. Before § 53. 
proceeding to the condemnatio the judge would pronounce an 
arbitrium to the effect that the purchaser should restore the object 
purchased, together with its accessions, and that the vendor should 
refund the purchase money he had received or discharge the 
purchaser from his liability under the sale, as the case might be. 

If the vendor, without good cause, failed to obey the arbitrium, the 
judex proceeded to condemn him to pay double the value (1. 45 
D. 21, 1). And, on the same principle, where a noxal action was 
brought on the ground of an insult by a slave (actio injuriarum 
noxalis), the judex, before condemning the master, called upon him 
by arbitratus to surrender his slave with a view to the infliction of 
corporal punishment to an extent determined by the judex. If he 
failed to comply, the judex would (most probably) increase the fine 
he imposed 5 *. 

In cases of actiones stricti juris, where the object was to obtain 
a condemnatio of the defendant at a different place, the matter was 
simpler still. The praetor empowered the judex to pronounce an 
arbitrium, by which he condemned the defendant to pay a sum repre- 
senting the plaintiff’s interest in the performance, the locality being 
thus taken into consideration. In this instance the arbitrium was 
substituted for the condemnatio. The defendant was not simply 
condemned to do what he had bound himself to do, but was ordered 
by arbitratus to satisfy the interest of the plaintiff, the judex being 
authorized to take into account the advantages and disadvantages 
accruing to the plaintiff and defendant respectively from the par- 
ticular place in question. Thus, if the performance at some place 
other than the place promised was more advantageous to the plaintiff 
than performance at the place promised, the defendant might 
conceivably be condemned to pay less at this other place than he 
had actually promised. In this case the arbitrium was followed, not 

8 On both these cases v. Lenel, simplum (scil. pretium). That such is 
Edictum , pp. 438, 324. If the de- the meaning of l. 45 I). 21, 1 is shown 
fendant complied with the arbitrium, he by Bechmann, Dcr Eauf % vol. i. p. 403, 
was not condemned, so that, in the case and lick, Das /,iel dcr actio redhibitoria 
of the actio redhibitoria, he escaped all {Jurist i sc he Abhandlungenfur Bestlcr , 
further consequences by refunding the 1885). 



288 


THE INSTITUTES 


§ 53. by the condemnatio, but by execution. An arbitrium of this kind 
admitted of execution, because it directly ordered the payment 
of money 4 . 

We have now determined the conception of an actio arbitraria. 
It is an action in which the order to condemn is framed in terms of 
considerable latitude. The position of the judex is less fettered, 
because he is authorized to pronounce an arbitratus. It is in this 
sense that the actions referred to are actiones arbitrariae, viz. the 
actions claiming restituere and exhibere, the actio redhibitoria, the 
noxal action for an insult by a slave, as well as the action on 
a negotium stricti juris where the plaintiff asks for the amount of his 
interest (the locality being taken into account). In all these cases 
the remedy resorted to for obviating an injustice is the same, to wit, 
a modification of the condemnatio. 

Thus, in the formula for an action claiming the restitution or 
production of property, the direction to condemn was preceded by a 
clause authorizing the judex to pronounce an arbitratus de restituendo 
or de exhibendo. The instructions did not run simply : condemna, 
but : neque (nisi) arbitratu tuo restituetur (exhibebitur), condemna. 
The defendant could only be condemned (in a money payment) 
after the order to restore (the ‘ arbitrium ’) had been issued and 
disregarded 5 . Similarly in the actio redhibitoria the condemnatio 
was preceded by a clause : si arbitratu tuo is homo (viz. the 
purchased slave) redhibebitur (by the purchaser) . . . et . . . pecunia 
non reddetur (by the vendor) ; and in the noxal action above 
referred to it was preceded by a clause : nisi arbitratu tuo servum 
verberandum exhibebit (or some such words). 

An action where the plaintiff, suing on the ground of a stricti juris 
negotium in which the place of performance is specified, claims the 


* Cp. Lenel, Edict urn, p. 193 IT. 

’ The term restituere covers a variety 
of acts differing in different actions. 
Thus it may include the delivery-up of 
the ‘ fructus * produced by the object in 
question, the assignment of rights of ac- 
tion which have arisen in reference to it, 
&e. When the possessor of an inherit- 
ance, after being defeated in ahereditatis 
petitio, is ordered to ‘ restore * the in- 


heritance, such an order may involve the 
payment, by such possessor to the real 
heir, of a debt which he: (the possessor) 
owed to the deceased, or it may involve 
the surrender ‘ noxac causa ' of a slave 
who has coinmitti d a delict (e. g. an 
act of damage or a theft j against some 
property belonging to the inheritance 
(cp. 1 . 40 § 4 D. 5, 3). Cp. also note 7. 



THE LAW OF PROPERTY ( GENERAL PART) 289 

amount of his interest in such performance, is called by modern § 63 . 
civilians the * arbitraria actio de eo quod certo loco/ The Romans 
called it the ‘actio arbitraria ’ simply, applying the term, not, as in 
the case of the other actiones arbitrariae, in a generic sense, but as 
a specific name®. It was the actio arbitraria, because, as already 
stated, it always resulted in an arbitrium and never in a condem- 
natio, in the technical sense of the term. The formula merely 
instructed the judex to decide according to his own arbitratus, i. e. 
his own equitable discretion, and to award either the amount actually 
promised, or a larger or a smaller sum, according as he saw fit. 

Thus in the actiones arbitrariae greater latitude was allowed to the 
judex in the same way as in the actiones bonae fidei. But there 
was this distinction that, in the actiones bonae fidei, the judex 
exercised a wider discretion in virtue of the intentio, in the actiones 
arbitrariae in virtue of the condemnatio. In other words, in the 
case of an actio bonae fidei the necessity for an exercise of discretion 
on the part of the judex arose from the very nature of the plaintiffs 
right which formed the subject-matter of the suit ; in the case of an 
actio arbitraria it arose (quite independently of the nature of the 
plaintiff’s right) from the command of the praetor, from the particular 
form, namely, in which in such cases he framed his order to condemn. 

It is quite possible that one and the same action may be both bonae 
fidei and arbitraria, but, if so, it is the intentio that makes it bonae 
fidei, the condemnatio that makes it arbitraria. 

Gaj. Inst. IV § 48 : Omnium autem formularum quae condem- 
nationem habent ad pecuniariam aestimationem condemnatio 
concepta est. 

§ 31 I. de act. (4, 6): Praeterea quasdam actiones arbitrarias, id 
est ex arbitrio judicis pendentes, appellamus, in quibus, nisi 
arbitrio judicis is cum quo agitur actori satisfaciat, veluti 
rem restituat vel exhibeat vel sol vat vel ex noxali causa 
servum dedat 7 , condemnari debeat. Sed istae actiones tam 

6 Cp. Lenel, Edictum , p. 195. aut in noxam dedere. It was only in 

1 For an explanation of these words the exceptional case mentioned in the 
v. note 5. — The noxal action as such is text (pp. 284, 288) that the condemnatio 
not an actio arbitraria. It does not was preceded by an arbitratus de ver- 
contain an arbitrium, and the con- berando. 
demnalio runs: aut tantam pecuniam 

U 


SOHM: LBDLIE 



290 


THE INSTITUTES 


53. in rem quam in personam inveniuntur. In rem, veluti 

Publiciana, Serviana de rebus coloni, quasi Serviana, quae 
etiam hypothecaria vocatur. In personam, veluti quibus de 
eo agitur quod aut metus causa aut dolo malo factum est. 
Item qua id quod certo loco promissum est petitur. Ad 
exhibcndum quoque actio ex arbitrio judicis pendet. In his 
enim actionibus et ceteris similibus permittitur judici ex bono 
et aequo secundum cujusque rei de qua actum est naturam 
aestimare, quemadmodum actori satisfieri oporteat. 

II. Exceptio. 

In the case of an actio arbitraria we have a modification of the 
condemnatio the effect of which is to enlarge the powers of the judex 
in regard to the condemnatio ; in the case of an exceptio, on the 
other hand, we have (as the word implies) an exception to the con- 
demnatio the effect of which is to restrict the powers of the judex in 
regard to the condemnatio. 

The normal state of the case is this : if the intentio is true, the 
judge must condemn. The effect of an exceptio is that, contrary to 
the general rule, the judge does not condemn notwithstanding the 
truth of the intentio. The praetor forbids him to condemn, if the 
exceptio is proved, in spite of the fact that, in itself, the truth of 
the intentio would require a condemnatio. The materiality of the 
facts pleaded by means of the exceptio is thus invariably determined 
by the praetor in the express instructions which he conveys to the 
judex. Hence the opposition between a defence operating ‘ope 
cxceptionis,’ and a defence operating ‘ipso jure.’ Whenever the 
defendant claims a verdict on the ground of the wording of the 
intentio, he is relying on a defence which operates ipso jure ; when- 
ever he claims a verdict on the ground of the wording of the 
condemnatio, on the ground, that is to say, of an exception expressly 
inserted in the instructions to condemn, he is relying on a defence 
which operates ope cxceptionis. This is the reason why a defence 
operating ope cxceptionis must be pleaded in jure, in the first 
stage of the proceedings, before the magistrate, in other words, why 
a defendant who relies on such a defence must apply to have an 
exceptio expressly inserted in the formula. On the other hand, a 



THE LAW OF PROPERTY (GENERAL PART) 291 


defence which operates ipso jure (by virtue of the intentio itself), § 53. 
may be set up in judicio before the appointed judge, even where the 
defendant has omitted to plead it in jure. 

The essence of the exceptio lies in the expression which it gives 
to the opposition between the praetorian and the civil law. For 
example: the plaintiff has been promised 100 aurei in some stricti 
juris negotium (say, a stipulatio), in a transaction, that is to say, the 
obligations arising from which are rigorously and literally interpreted . 

He has, however, subsequently released the debtor by an informal 
act, a ‘pactum de non petendo.’ In such a case the pactum de non 
petendo is void by the civil law ; by the praetorian law, however, it is 
valid. The plaintiff now brings his action, an actio stricti juris (con* 
dictio certi). The intentio runs: ‘Si paret N um . N um . (the debtor) 

A°. A°. (the creditor) C dare oportere.’ The intentio is true, for by the 
civil law (dare oportere) the debtor still owes the creditor 100 aurei, 
notwithstanding the pactum de non petendo. The defendant therefore 
would have to be condemned. The praetor, however, inserts in his 
order to condemn an exception to this effect : si inter A um . A um . et 
N UTn . N mn . non convenit, ne ea pccunia peteretur (the so-called 
‘exceptio pacti de non petendo ’). If therefore the debtor can prove 
the pactum de non petendo, the judex is bound, after all, by the 
praetorian instructions to find a verdict for the defendant. In much 
the same way a person who is sued on a civil law claim may, by 
means of an exceptio, plead fraud (exceptio doli) or intimidation 
(exceptio metus) on the part of the plaintiff, or may plead a com- 
promise (exceptio transaction^), or an oath sworn by him to the 
effect that the plaintiff has no claim (exceptio jurisjurandi). The 
civil law, on principle, excludes the consideration of all such circum- 
stances. If the defendant were to plead that he had paid his debt, 
he would be entitled to a verdict ipso jure and would not need any 
exceptio at all; the intentio itself would require his acquittal, for 
the 1 dare oportere ’ would no longer be true. But according to the 
principles of the civil law the obligation conveyed in the words ‘ dare 
oportere * is not affected by fraud, intimidation, &c. (cp. § 42). The 
truth of the intentio is not touched, and the defendant would have 
to be condemned. The praetor, however, helps him by inserting an 

U 2 



292 


THE INSTITUTES 


§ 53. exceptio, and thereby ordering the judge not to condemn, although, 
according to the civil law, he ought to condemn. In the same way 
therefore as the actio in factum and the actio utilis are instruments 
by means of which a condemnation is secured in contravention of 
the civil law, so the exceptio is an instrument by means of which an 
acquittal is secured in contravention of the civil law. The exceptio 
is, in short, the medium through which effect is given to the equitable 
defences of the jus honorarium. 

The same point of view is equally applicable to other cases which 
seem, at first sight, to present a somewhat different aspect. 

The civil law, namely, while prohibiting certain juristic acts, did 
not always, at the same time, declare that every act concluded in 
spite of the prohibition should be null and void. For example, 
the lex Cincia (204 r.c.) forbid certain kinds of gifts (supra, p. 223). 
A gift, however, which was made in contravention of the statute, 
was nevertheless valid by the civil law. It was the praetor who gave 
effect to the prohibition contained in the lex Cincia by granting an 
exceptio legis Cinciae. Again the SC. Vellcjanum (46 a.d.), while 
prohibiting the ‘ intercessio ' of women (i.e. while prohibiting women 
from taking upon themselves the debt of a third party), did not 
declare any such intercessio void, but merely directed the magistrate 
to give effect to the prohibition in the exercise of his jurisdiction \ 
The praetor carried out the direction by granting to a woman who was 
sued in respect of her intercessio (e. g. in respect of a suretyship) the 
exceptio SC'. Vellejani. In the same way we have an exceptio legis 
Plaetoriae (infra, pp. 31 1, 312), an exceptio SC'. Maccdoniani (§ 79), 
&c. In all cases of this kind the praetor acted on the specific in- 
structions laid down by an authoritative organ of the civil law in 
regard to the particular form which his jus honorarium should assume 
(supra, p. 88). But the organ itself had done nothing more than lay 
down a rule of public law (in precisely the same manner as in the case 
adverted to above, p. 89, n. 4), i. c. it had not enunciated a legal rule 
operating directly on private law, but had merely bound the magistrate, 

8 The words of the scnatusconsultum re senatus voluntas scrvvtur. — A similar 
ran : arbitrari senalum rcctc atr|uc or- method was followed in the SC. T're- 
dine facturos, ad quos de ea re in jure bellianum and 1’cgasianum, infra, § 117. 
aditum erit, si dederint operam ut in ea 



THE LAW OF PROPERTY (GENERAL' PART) 293 

who was charged with the administration of justice, to observe a § 53. 
definite course in the exercise of his imperium. Exceptiones of this 
kind are called by modern writers ‘ civil ’ exceptiones. By a civil 
exceptio, then, we mean an exceptio which is intended to give effect to 
a rule of the public civil law, an exceptio, therefore, which the praetor 
is bound by the civil law to grant. Nevertheless, even in the case of 
a civil exceptio the acquittal of the debtor is due, as far as private 
law is concerned, not to the jus civile, but to the jus honorarium. 

For according to the private civil law, the transactions referred to (the 
gift, the woman’s suretyship, &c.) are perfectly valid, and it is only 
through the medium of the praetorian law that the civil law principle 
operates to acquit the debtor. This is the reason why in such cases 
the praetor is bound to give the judex explicit instructions not to 
condemn, why, in other words, the existence of an exceptio must 
be expressly stated, for in default of such instructions the civil law 
would compel the judex to condemn. Like other exceptiones, then, 
a so-called civil exceptio is a legal plea on the ground of which the 
defendant claims to be acquitted, and which operates as a ground of 
acquittal in virtue of the jus honorarium alone. 

So far we have always taken the formula in jus concepta as our 
starting-point, the formula, that is to say, where a claim grounded 
on the civil law is stated as the condition on which the condemnatio 
is to take place, and where the relation subsisting between the 
intentio and condemnatio affords an illustration of the relation of the 
praetor to the civil law. For where the condemnatio is unqualified, 
i.e. where there is no exceptio, there the praetor is in harmony with 
the civil law 9 ; where the condemnatio is qualified by an exceptio, 
there the praetor is in conflict with the civil law. 

Matters stood differently where the formula was in factum con- 
cepta, that is to say, where the condemnatio was made conditional 
on a mere question of fact stated in the intentio, e. g. on the 

* As far (that is to say) as the con- But even in an actio utiiis, when it is 
demnatio is concerned. The intentio an actio in jus concepta, the law referred 
juris civilis itself, however, may have to is the civil law (though in a modified 
already undergone a modification, and form), so that, in such cases, an un- 
the action may have been thereby con- qualified condemnatio always indicates 
verted from a civil law action into the agreement of the praetor with the 
a praetorian actio utiiis (p. 273 ff )• civil law to which he makes reference. 



294 THE INSTITUTES 

§ 53. question whether a patron had been summoned before the court by 
his frcedman without the consent of the praetor. In such cases the 
effect of an unqualified order to condemn is always to estop the 
defendant from making any defence— unless, of course, it be a denial 
of the fact itself. Even though he may have actually paid his 
adversary and thus, beyond all doubt, extinguished every claim 
which the latter may have had against him, nevertheless, if the 
condemnatio is unqualified, judgment is bound to go against him, 
provided only the truth of the fact with which the suit is concerned 
is established. If therefore the defendant wishes to plead payment, 
he must have an ‘exceptio solutionis* inserted, which would be 
impossible, if the intentio were juris civilis. In the case of an actio 
in factum, whatever the ground may be on which the defendant claims 
a verdict, he must, in order to be able to plead such ground of 
defence, reserve his right to do so by means of an express exceptio. 
Thus, where the intentio is in factum concepta, every defence must 
be pleaded by exceptio, and the necessity for thus inserting an 
exceptio arises, not from the material nature of the law (in other 
words, not from the legal force of the defence as such), but solely 
from the formal narrowness of an intentio in factum concepta. 
Where the issue is purely one of fact, where, that is, the question 
whether the defendant is to be condemned turns entirely on matters 
of fact, there the formula supplies the judex with no legal principles 
to guide him in arriving at a judgment. In the absence of such 
principles, all the legal rules which, in any concrete case, govern 
the relation between the fact— as the condition— and the condem- 
natio— as the thing conditioned— must be expressly laid before the 
judex in the form of an exceptio. In a formula in factum concepta 
the exceptio embodies all the reservations which the meagreness of 
the intentio entitles the judex to have set out for him by the praetor. 

In its material sense— and it is only when coupled with an intentio 
in jus concepta that we can speak of an exceptio having a material 
sense— an exceptio signifies a plea which is good by the praetorian 
law, but bad by the civil law. 

Of all the exccptiones the exceptio doli played the most important 
part in the development of Roman law. It had received the general 



THE LAW OF PROPERTY (GENERAL PART) 295 


form : si in ea re nihil dolo malo A 1 . A*, factum sit neque fiat (Gajus § 53 . 
iv. § 119) 10 . The exceptio, as thus worded, required the judge, in 
the first place, to take account of the dolus of which the plaintiff had 
been previously guilty, at the time, namely, when he concluded the 
juristic act. (This is the force of the perfect tense : factum sit.) So 
far, the exceptio doli was the same as the plea of fraud which we 
have already discussed (p. 221), a plea by which, as in the exceptio 
metus, pacti de non petendo, &c., the defendant alleged a single 
definite fact for the purpose of repelling the plaintiff. Hence the 
exceptio doli, when used in this manner, is usually called by modern 
writers the exceptio doli specialis. In the second place, however, 
the judge was also required, by the form of the exceptio doli, to 
take account of the dolus of which the plaintiff was now guilty, by 
the very fact namely of his bringing the action. (This is the force of 
the present tense : fiat.) And dolus of this kind occurs wherever 
a person institutes legal proceedings, knowing full well that for some 
reason or other his suit is inconsistent with good faith, wherever, in 
other words, the very act of commencing a suit constitutes a deliberate 
violation of the requirements of bona fides. Such would be the case, 
for example, if a person were to sue on a transaction which he had 
obtained from the defendant by intimidation, or if he were to sue the 
defendant in breach of an informal agreement not to sue (pactum de 
non petendo). In this way the exceptio doli may sometimes serve 
the purposes of an exceptio metus or exceptio pacti. But Roman 
jurisprudence did not stop here. An exceptio doli was declared to 
be available, not only where the plaintiff by taking legal proceedings 
was acting maliciously, but also wherever, as it was said, 4 ipsa res in 
se dolum habet ’ (1. 36 1). de verb. obi. 45, 1), i.e. wherever the 
raising of the action constituted objectively a breach of good faith. 

The insertion of the exceptio doli in the formula was considered as 
empowering the judge to take account of every single circumstance 
which would render the condemnation of the defendant substantially 

10 In this form the exceptio dates at doli by Hugo Kriiger, Beitrtigc zur 
least from the time of Labco; v. A. Lchrc von d. exceptio doli ^1 892), as to 
l’ernice, Labco, vol. ii. p. 1 13.- Among which sec Krman, ZS. d. Sav. St., vol. 
recent works mention should be made of xiv. p. 237. 
a most valuable treatise on the exceptio 



296 


THE INSTITUTES 


§ 53. unjust. Hence modern writers usually call the exceptio doli, when 
employed in this manner, the exceptio doli generalis. The Romans 
(it should be observed) did not make any distinction between an 
exceptio doli generalis and an exceptio doli specialis, but used the 
term exceptio doli indiscriminately in either sense. As a result of 
this development the exceptio doli came to be available in place 
of all other special exceptiones, operating as a kind of general 
reserve clause, which, without specifying the defence, enabled the 
defendant to set up in judicio any fact which, for any reason what- 
ever, might seem calculated to secure his acquittal. It was this 
breadth of scope that fitted the exceptio doli for becoming, above 
all things, the instrument which was used, both in the theory and 
the practice of Roman law, for effecting such modifications of the 
material law as equity seemed to require. The exceptio doli was 
accordingly employed for the purpose of mitigating the harshness of 
the jus strictum which governed all those transactions where the 
resulting obligation was strictly and literally interpreted (§ 76); for 
the purpose, in other words, of protecting the real meaning of a 
formal promise from the consequences of a mere literal interpreta- 
tion, and of thereby saving the underlying economic relation from 
the strict legal operation of a formal contract (as, for example, wiiere 
a man had given a promise on the erroneous supposition that he 
was under a legal liability). And in the same way it was employed 
for the purpose of giving effect to counter-claims either by means of 
a lien (‘retention — where claim and counter-claim are not ejusdem 
generis (as e.g. when the defendant is called upon to deliver up some 
object, but claims compensation for moneys expended on such object) 
-—or by means of a set-off (* compensatio ’) where claim and counter- 
claim are ejusdem generis. Thus the exceptio doli came to be the 
exceptio of all exceptiones, which in the hands of the Roman jurists 
became a weapon by the aid of which the jus aequum was enabled 
to defeat the old jus strictum at every point 11 . Such was the rich 
and vigorous development the possibilities of which lay hidden in 
the meagre, briefly-worded clause inserted by the praetor as an 
exception to the order by which he directed the judex to condemn. 

11 On the above subject v. A. Pernicc, l.abeo % vol. ii. p. in ff. 



THE LAW OF PROPERTY ( GENERAL PART) 297 


The exceptio by which the condemnatio is qualified may, in its § 53 . 
turn, be qualified by a * replication or exception in favour of the 
plaintiff; and the replicatio again may be qualified by a 1 duplication 
or exception in favour of the defendant ; the duplicatio again may be 
followed by a ‘ triplication and so on. 

Exceptiones are in their nature either peremptory (‘ peremtoriae/ 
‘perpetuae’) or dilatory (‘ dilatoriae ’). Peremptory exceptiones — 
which constitute the majority— are based on facts which absolutely 
debar the plaintiff from bringing his action. Such exceptiones are 
exemplified by those mentioned above (pp. 291, 292). Dilatory 
exceptiones are exceptiones which do not absolutely prevent the 
plaintiff from suing, but only debar him from suing at this particular 
time (his claim being premature), or in this particular form (e.g. if he 
sues through an unqualified representative). In pleading an exceptio 
peremtoria, the defendant demurs to the action itself, in pleading an 
exceptio dilatoria he merely demurs to the particular manner in 
which the action is brought 12 . In the classical law, however, the 
effect of an exceptio is the same in either case. Even where the 
exceptio is merely dilatory, its effect, if proved, is to discharge the 
defendant not merely from the action as brought at that particular 
time or in that particular manner, but to discharge him absolutely. 

The consumption of the right of action (pp. 267, 268) which resulted 
from the litis contestatio estopped the plaintiff from ever bringing the 
same action again. 

pr. I. de except. (4, 13): Comparatae sunt autem exceptiones 
defendendoruni eorum gratia cum quibus agitur. Saepe enim 
accidit, ut licet ipsa persecutio qua actor experitur justa sit, 
tamcn iniqua sit adversus eum cum quo agitur. § 1 : Yerbi 
gratia si mctu coactus aut dolo inductus . . . stipulanti Titio 
proniisisti, . . . palam est jure civili te obligatum esse; et 
actio, qua intenditur dare te oportere, efficax est: sed 
iniquum est te condemnari. Ideoque datur tibi exceptio 
metus causa, aut doli mali, ... ad impugnandam actionem. 

§ 9 eod. : Perpetuae et peremptoriae (exceptiones) sunt, quae 
semper agentibus obstant et semper rem de qua agitur 

12 Cj>. Schultze, Privatrecht u. Process t p. 320. 



298 


THE INSTITUTES 


§ 53 . peremunt : qualis est exceptio doli mali, et quod metus causa 

factum est, et pacti conventi, cum ita convenerit, ne omnino 
pecunia peteretur. § 10 : Temporales atque dilatoriae sunt, 
quae ad tempus nocent et temporis dilationem tribuunt : 
qualis est pacti conventi, cum convenerit, ne intra certum 
tempus ageretur, veluti intra quinquennium; nam finito eo 

tempore non impeditur actor rem exsequi §11: Prae- 

terea etiam ex persona dilatoriae sunt exceptiones: quales 
sunt procuratoriae, veluti si per militem aut mulierem agere 
quis velit. 

pr. I. de replicationibus (4, 14): Interdum cvenit, ut exceptio, 
quae prima facie justa videatur, inique noceat. Quod cum 
accidit, alia allegatione opus est adjuvandi actoris gratia, 
quae replicatio vocatur, quia per cam replicatur atque re- 
solvitur vis exceptionis. Veluti cum pactus est aliquis cum 
debitore suo, ne ab eo pecuniam petal, deinde postea in 
contrarium pacti sunt, id est, ut petere creditori liceat. Si 
agat creditor, et excipiat debitor, ut ita demum condemnetur : 
si non convenerit ne cam pecuniam creditor petat — nocet ei 
exceptio, convenit cnim ita : namque nihilominus hoc verum 
manet, licet postea in contrarium pacti sunt ; sed quia iniquum 
est creditorem excludi, replicatio ei dabitur ex posteriore 
pacto convento. 

§ 54. Actio Pcrpctua and Actio Temporalis. 

Tempus Utile. 

54. There were a number of actiones honorariae which the magistrate 
only granted within a prescribed period. The praetor would thus 
more especially decline to grant any penal praetorian action after 
the lapse of an ‘annus utilis/ i. e. any action where the claim to 
a penalty was based, not on the civil law, but solely on the 
praetorian edict. Actions which had to be brought within a pre- 
scribed period of limitation were known as ‘actiones temporales.’ 
Such a limitation of the right of action implied at the same time 
a limitation of the right itself, because in all actiones honorariae the 
sole foundation of the plaintiff’s right was the ‘judicium dabo’ of 
the edict, that is, the praetor’s promise to grant an action, or rather 
(to put it more accurately) the praetor’s promise to grant a formula 



THE LAW OF PROPERTY « GENERAL PART) 299 


and thereby set the ordinary legal procedure in motion. If the § 54 . 
praetor expressly limited his promise to one year (intra annum 
judicium dabo), he thereby imposed the same limitation on the 
plaintiff's right. The expiration of the period extinguished the 
actio temporalis, and, with it, the right (say, to recover a penalty). 

On the other hand, limitations of actions were on principle 
unknown to the civil law. Actiones civiles, as well as those actiones 
honorariae which the praetor had not limited within any definite 
period, were called * actiones perpetual It was only in quite ex- 
ceptional cases that civil law actions were barred after a certain time 1 . 

The Emperors Honorius and Theodosius, however, moved by 
obvious considerations of convenience, enacted in 424 a. d. that 
all actions should be barred within a certain period. This period 
was fixed at thirty years in ordinary, at forty in some exceptional 
cases. If the plaintiff brings an action after the lapse of this period, 
he may be met with the plea of limitation (praescriptio temporis). 

The former rules as to limitation of actions remained in force. 
Thus actiones perpetuae are henceforth actions which are barred 
within thirty or forty years ; actiones temporales are actions which 
are barred within shorter periods. 

A civil law right is founded, not on any promise to grant an action, 
but simply on the positive law, the granting of the action by the 
magistrate being merely the consequence of the right conferred 
by the positive law. Here the legal right begets the legal remedy. 
Thus though the limitation of civil law actions which Theodosius II 
introduced operated to bar the action, it did not operate to bar the 
right itself. 

It was in this sense that the later Roman law took the limitation 
of actions, even as applied to actiones temporales, and it was in the 
same sense that a uniform system of limitations of actions was 
developed in the law of the Corpus juris which has been received 
in Germany — a system in which the periods of limitation vary in 
length and operate, in all cases, to extinguish, not the right, but 
only the remedy. 

. 1 Thus the action <lc statu dcfuncti ami the querela inofficiosi testamenti (§ 113 
iii) had to be brought within live viais. 



3 °° 


THE INSTITUTES 


§ 54 . The year fixed by the praetor for cases falling under his rules of 
limitation was the so-called * annus util is,’ i. e. a year in which only 
those days were counted on which legal proceedings could actually 
be commenced, in other words, those days on which the courts sat, 
and on which the intended defendant was known and could be 
actually sued, &c. The term ‘tempus utile* is thus explained. 
Tempus utile means time in the judicial sense, in the sense namely 
in which only those days are counted which are open to judicial 
acts, i. e. in the classical period, to acts performed in the presence 
of the praetor 2 . The opposite of tempus utile is ‘tempus con- 
tinuum,* i. e. time in which, on principle, every day is counted. In 
the above-mentioned limitations of actions to thirty (or forty) years, 
time is counted as ‘continuum,’ in the sense we have just defined. 

L. 35 pr. D. de O. et A. (44, 7) (Paulus): In honorariis 
actionibus sic esse definiendum Cassius ait: ut, quae rei 
persecutionem habeant, hae etiam post annum darentur ; 
ceterae intra annum. 

L. 1 D. de div. temp, praescr. (44, 3) (Ulpian.) : Quia tractatus 
de utilibus diebus frequens est, videamus quid sit experiundi 
potestatem habere. Et quidem inprimis exigendum est, ut 
sit facultas agendi : neque sufficit reo experiundi secum 
facere potestatem, vel habere eum qui se idonce defendat. 
nisi actor quoque nulla idonea causa impediatur experiri. 
Proinde sive apud hostes sit, sive reipublicae causa absit, 
sive in vinculis sit, aut si tempestate in loco aliquo vel in 
regione detineatur, ut neque experiri neque mandare possit, 
experiundi potestatem non habet. Plane is qui valetudine 
impeditur, ut mandare possit, in ca causa est, ut experiundi 
habeat potestatem. Illud utique neminem fugit, experiundi 


2 Tempus utile occurs, in virtue of 
a rule of law, only where judicial acts 
(the commencement of an action, an ap- 
plication for bonorum possessio, $110) 
come into question. In applying for 
bonorum possessio the petitioner in- 
vokes the aid of the praetor in his 
judicial capacity, though it was the 
invariable rule, as early as the classical 
period, that such an application could be 
addressed to the praetor anywhere (de 


piano) without any formal sitting of the 
court. In calculating the period in 
which application for bonorum pos- 
scssio had to be made, it was con- 
st qucntly the rule ;in the absence of 
other obstacles of a social kind) to 
count not only court days but all days, 
commencing with the day on which the 
fact of the inheritance having fallen in 
became known to the applicant. * 



THE LAW OF PROPERTY ( GENERAL PART) 301 


potestatem non habere eum qui praetoris copiam non habuit; § 54. 
proinde hi dies cedunt quibus jus praetor reddit. 

§ 55 • The Effect of an Action at Law . 

In every lawsuit there are two principal acts: first, the ‘litis §55. 
contestation the formulating of the legal issue (pp. 238, 267); 
secondly, the ‘judgment/ the decision of the legal issue. 

I. Litis Contestatio. 

The effect peculiar to the litis contestatio is that it results in the 
deductio rei in judicium, i.e. in the pendency of the matter in dispute. 

That is to say, once the issue has been formulated, the matter in 
dispute cannot be brought to trial a second time, but must be carried 
to a final decision on the basis of the issue as formulated in this 
particular suit. The litis contestatio marks the decisive exercise by 
the plaintiff of his right of action. Hence it follows, first, that the 
period of limitation of the right of action is not interrupted till the 
litis contestatio has taken place ; secondly, that the litis contestatio 
consumes the right of action. The action cannot be brought over 
again : bis de eadem re ne sit actio. Any attempt to obtain a judicial 
re hearing of the same question (eadem quacstio) would be met by the 
exceptio rei judicatae vel in judicium deductac 1 . Thirdly, it follows 
that the litis contestatio forms the basis of the judgment. The judg- 
ment refers back to the date of the litis contestatio. The plaintiff 
must have possessed the right he claims at the moment of the litis 
contestatio. On the other hand, if the plaintiff is successful, the 
judgment is to place him retrospectively in the same position as 
though it had been given in his favour at once at the time of the 
litis contestatio. This is why the judgment directs the restitution of 
mesne profits, the payment of damages, and so forth. 

It was this peculiar effect of litis contestatio that suggested to the 
Romans a comparison between it and the so-called ‘ novatio* or 

1 Cp. p. 268, note 2. Tilt' so-called the same exceptio may also be used — 

negative function of the exceptio rei and this is called the positive function 

judicatae— its function, namely, to give of the exceptio rei judicatae — for the 
cficcl to the consuming power of an purpose of giving effect to the contcuts 
action at law — is its principal function. of the judgment, 
hut, as is observed in the text under 11, 



302 


THE INSTITUTES 


§ 55. transformation of a liability (infra, § 80 II). Once the issue has been 
joined, it is no longer the performance of the act originally due that 
the plaintiff can claim from the defendant by means of his action— 
for to allow that would be to allow a repetition of the same action 
— but merely the continuation of the proceedings that have been 
commenced : ante litem contestatam dare reum oportere, post litem 
contestatam condemnari oportere (Gajus III § 180). In conse- 
quence, moreover, of the principle of a money condemnatio (p. 281 
ad fin.) the original claim of the plaintiff is, in the classical law, 
transformed into a money claim. Finally, litis contestatio has the 
effect of converting a claim which, in itself, is not transmissible to 
the heir (e.g. the actio injuriarum) into a transmissible claim. The 
pendency of the cause, which is the result of the litis contestatio, has 
therefore this effect in regard to legal procedure that it consumes 
and, at the same time, resuscitates the right which the plaintiff 
is seeking to enforce. 

II. Judgment. 

The peculiar effect of a judgment consists in its legal force. When 
no longer subject to a revision on appeal, it operates like a statutory 
rule for the particular case adjudged upon \ A defendant, by pleading 
a previous judgment, is able not merely to frustrate the repetition of 
the same action, but also — by means of what is called the * positive ’ 
function of the exceptio rei judicatae — to rebut any subsequent claim 
directly conflicting with the decision contained in such judgment. If 
the judgment condemns the defendant to pay, or if the defendant 
makes a formal confessio in jure (supra, p. 58), such judgment, or 
confessio in jure— provided the latter is followed, where necessary, 
by a litis aestimatio (cp. 1. 6 § 2 I). 42, 2) — entitles the plaintiff to 
proceed against the defendant by actio judicati. The actio judicati 
involves a condemnation ( in duplum ’ as against a defendant who 
denies liability, and it results in execution, i.e. in the compulsory 
enforcement of the plaintiff’s right. 

III. Execution. 

In the ancient law every execution was on principle personal 

* Cp. Dcgenkolb, Einlassungstwang und UrUihnorm (1877 ), p. 80 ff. ; 0 . 
Biilow, 6 reset* u. Richly amt (1885). 



THE LAW OF PROPERTY ( GENERAL PART) 303 

(manus injectio, supra, p. 246), and resulted in the bondage of the § 66. 
debtor and a right in the creditor to sell his debtor (trans Tiberim), 
or to kill him (p. 53). The creditor’s right to sell or kill his 
debtor was abolished by the lex Poetelia (313 b.c.). Nevertheless 
bondage for debt (operating, however, as a matter of fact, only in 
the form of imprisonment for debt) continued to be the principal 
civil law method of execution. When the person of the debtor 
(whom execution placed in the position of a slave in regard to his 
creditor) passed into the power of the creditor, the same fate befell 
his whole estate and probably also his whole family, i. e. the aggre- 
gate of those who were subject to his potestas. Thus every personal 
execution necessarily — though only indirectly— involved an execution 
against the debtor’s property, because it went, in all cases, against the 
debtor’s entire person and estate, quite regardless of the actual 
amount due. In executing his debt, the creditor was merely enforcing 
that self-pledge which was of the essence of every contract of debt 
of the ancient type (pp. 52, 65). But the idea underlying such 
a self-pledge was that it constituted a conventional penalty: the 
debtor voluntarily consented to surrender his person and property to 
the creditor in case he failed to redeem his obligation. Thus the 
aim of execution in the old times was not, as it is nowadays, 
primarily to satisfy the creditor, but rather to punish the debtor by 
allowing the creditor to attach what the debtor himself had pledged for 
the debt, viz. his own personality with everything appertaining to it. 

The praetor was the first to grant direct execution against the 
property of the debtor. He did so by means of a so-called ‘missio 
in bona,’ that is, by means of an order empowering such of the 
creditors as had applied to him for that purpose to take possession 
of the entire estate of the debtor. After the lapse of a definite 
interval, during which it was open to other creditors to join the 
number of those who had obtained the missio in bona, the latter 
proceeded to elect from among themselves a 1 magister,’ or manager 
of the estate, who in due course sold the property en bloc (venditio 
bonorum) 3 . In consideration of his acquiring the assets, the 

1 The effect of the praetorian missio who obtained it a private right to sell 
in bona was to confer on the creditors the entire estate oi the debtor, and the 



304 


The institutes 


§ 65 . purchaser of the estate (bonorum emtor) paid the creditors in 
possession certain percentages on their claims, The execution 
was therefore uniformly directed against the entire estate of the 
execution-debtor, and it made no difference whether the missio in 
bona had been obtained by all the creditors, or only by some of 
them, or even by a single creditor. Both in this circumstance and 
in the infamy which attached to the debtor in consequence of the 
missio in bona, we Can trace the associations of the old personal 
execution, the debtor being regarded as having pledged to every one 
of his creditors not only his entire property, but also his honour. 

Thus the creditors had the option proceeding either by personal 
execution, according to the civil law, or by real execution, according 
to the praetorian law. In consequence of a lex Julia (probably not 


magister was one of the creditors in 
question whom his co-creditors elected 
as their ‘ master’ to exercise this right 
on their behalf. If after the election of 
the magister, but before the sale had 
been actually carried out, another 
creditor also obtained missio in bona, 
this other creditor (who of course had 
taken no part in electing the magister) 
ranked independently side by side with 
the magister, and had the same rights. 
The magister was merely the agent of 
the particular creditors who had elected 
him ; he was in no sense a public officer 
entrusted by the praetor with the con- 
duct of the bankrupt’s affairs. The 
case was different if the praetor, instead 
of putting the creditors into possession, 
committed the management of the 
debtor’s estate to a ‘ curator bonorum,* 
whose duty it was to realize the estate 
in separate lots and pay the creditors 
pro rata out of the proceeds. Under 
this system of selling the estate piece- 
meal the bankrupt was at no time dis- 
possessed of his whole proj>erty, and 
he consequently escaped infamy. The 
creditors, again, were paid, not by the 
bonorum emtor, but— as was only fit 
and proper— by the debtor himself 
(through the medium, namely, of his 
curator), and if there was any surplus, 
the debtor got the benefit of it. This 
proceduie, which was considered less 
dishonouring than venditio bonorum, 
was at first only employed in favour of 


senators in embarrassed circumstances, 
but afterwards its use became general. 
The modern idea of bankruptcy pro- 
cedure as a compulsory procedure in 
execution, directed against the entire 
estate of the debtor and operating on 
principle in favour of the whole body of 
creditors, has no place in the venditio 
bonorum, but is realized, to some extent, 
in the duties assigned to the curator 
bonorum. For the old magister was 
never anything more than a creditor 
acting exclusively in the selfish interests 
of himself and his electors, whereas the 
curator appointed by the praetor repre- 
sented the principle of the public interest 
which requires that bankruptcy pro- 
ceedings shall be conducted on a uni- 
form plan and that all the creditors 
shall obtain an equitable satisfaction of 
their claims, while at the same time no 
unnecessary damage is inflicted on the 
debtor. The Romans do not, however, 
seem to have carried the development 
of this principle to a complete con- 
clusion; in other words, the curator 
never seems to have attained to the 
position of a public officer charged with 
the conduct of a state-regulated pro- 
cedure in bankruptcy. Mention is made . 
of a ‘curator’ elected by the creditors, 
but it is not clear what his legal position 
was. Dcgcnkolb, Mounter und ( unitor 
itn alt ro mi sc hen Concurs (Decanal 
Thesis, Leipzig, 1897;. 



THE LAW OF PROPERTY (GENERAL PART) 305 

promulgated till Augustus) the debtor was enabled to exclude this § 65 . 
option of the creditors by making a voluntary assignment of his 
property (cessio bonorum), in other words, by voluntarily bringing 
about an execution against his entire estate. If he adopted this 
course, the creditors had to rest satisfied with real execution of 
the praetorian type, while on the other hand the debtor escaped 
infamy, and acquired the ‘beneficium Competentiae,’ i.e. the right, 
on execution, to retain so much of his property as was necessary 
for his bare subsistence (ne egeat), he being only condemned ‘in 
quantum facere potest/ 

In addition to this general execution against the debtor’s estate, 
which the plaintiff could bring about by an actio judicati, the praetor 
also developed a ‘special’ form of execution, under which portions of 
the debtor’s property were seized by way of pledge (the so-called 
‘pignus in causa judicati captum’) — a procedure which was resorted 
to in certain cases on the postulatio of the plaintiff according as the 
praetor, acting extra ordinem, judged fit. If the magistrate had 
decided, in a proceeding extra ordinem (§ 56), that the defendant 
was bound to restore or deliver up some definite object, a com- 
pulsory process which aimed directly at the surrender of this 
particular object was similarly available, the defaulting debtor being 
threatened with a pecuniary mulct or, if necessary, with compulsion 
manu militari. In the later Empire the extraordinary procedure 
became the ordinary form of procedure, and it was consequently 
this direct and special kind of execution that was resorted to, on 
principle, in the generality of cases (§ 57). The penal effects of 
the old law of execution, viz. the infamy of the debtor and the 
destruction or, at any rate, the depreciation of the debtors per- 
sonality which resulted from his being each time dispossessed of his 
entire estate, had completely disappeared. Henceforth execution in 
civil proceedings became what it is now, a procedure the sole aim of 
which is the satisfaction of the person entitled to sue. 


SOHM : LKDI.IB 


X 



306 


THE INSTITUTES 


§ 56. The Procedure Extra Ordinem . Interdicta . 

In Integrum Restitutio. 

66 . I. The Procedure extra ordinem. 

The procedure extra ordinem (scil. judiciorum privatorum) 1 is 
the procedure in which no judex is appointed, in which there is, 
therefore, neither litis contestatio (supra, p. 238), nor judgment (sen- 
tentia, supra, p. 239) in the technical sense of the term. The entire 
proceedings are conducted before the magistrate in jure who, after 
investigating the matter in person (‘causae cognitio*), pronounces 
the decision himself (decretum, interdictum). The procedure extra 
ordinem — a procedure not per formulam, but per cognitionem— is 
the form of procedure in which the magistrate has occasion to give 
free play to his official power (imperium), and it signifies formally 
an administrative procedure as opposed to the regular judicial 
procedure with its concomitant appointment of a judex. In the 
ordinary procedure the coercive power of the magistrate is, on 
principle, put out of sight, and the whole matter ends with the 
verdict of a sworn judge, the effect of which is merely to declare 
the right of the plaintiff in an unequivocal form, in the form, namely, 
of an indisputable money claim, so that, if the plaintiff wishes to 
obtain execution, he must bring a second action, the actio judicati. 
On the other hand, the whole machinery of the extraordinary pro- 
cedure is calculated from the very outset to exhibit the coercive- 
power of the magistrate (the imperium), and to ensure the en- 
forcement of the magisterial will by multac dictio, pignoris capio. 
missio in possessionem, the physical interference of the magistrate’s 
subordinate officers (manus militaris), and other means. In the 
ordinary procedure it is the power of the law, in the extraordinary 
procedure it is the sovereign power of the magistrate to which effect 
and expression arc given a . 


1 Procedure extra ordinem means 
literally a procedure ' out of the ( regu- 
lar) order.' Matters tried extra ordinem 
were not tied to the time appointed for 
the provincial assizes the time of the 
convcntus, the rerum actus;, nor again 


to the order in which ordinary causes 
had to beenterrd for hearing .the'ordo 
judiciorum’;. Cp. Hartmann- Ublx-Iohdr. 
\of>. dt. % supra, p. 2/, 8, note i), p. 418 fT, 
* Cp. A. 1 ‘trnioe, /.S’, d. Sav. A 
vol. v. p. 2 (j flf. 



THE LAW OF, PROPERTY ( GENERAL PART) 307 

The decision of the magistrate in the procedure extra ordinem is, § 60 . 
as we have already observed, called ‘decretum’ or * interdictum.’ 

The interdict procedure is therefore originally identical with the 
administrative procedure, and the interdict with the administrative 
decision of the magistrate. 

Among the matters which the praetor was in the habit of settling 
by administrative means (i. e. by his interdict) we may instance the 
following: questions concerning public property, such as public 
roads, rivers, & c. ; questions concerning property consecrated to the 
gods (res sacrae), such as temples, altars, &c. ; questions concerning 
burial grounds (res religiosae); disputes between neighbours; claims 
for maintenance ; claims for the restitution of children or members 
of a household who were wrongfully withheld ^ disputes in building 
matters; disputes between landlords and outgoing tenants, and so 
forth, — all matters, in short, where the interests of public order were 
predominant. It was with a view to the same interests that disputes 
concerning possession were dealt with by interdict : disputes, that is 
to say, not concerning the right to possess, but the actual possession 
itself, the disturbance or withholding of possession. The public 
interests required that the peace should be kept 3 , which was im- 
possible if persons actually in possession were disturbed or ousted 
by sheer physical force. The praetor, therefore, interfered by ad- 
ministrative means (extra ordinem) and decided such disputes by his 
interdict. 

II. The Interdict Procedure proper. 

The decision of the magistrate acting extra ordinem soon ceased, 
in many cases, to constitute any real decision of the matter in 
dispute. It was often impossible for the praetor to investigate the 
actual facts of a case. Pie therefore contented himself with a 
statement of the principle on which the case should be settled ; in 
other words, with a pronouncement, addressed to the parties, of the 
administrative rule which he (the praetor) approved. 

To take an instance. A has granted B permissive possession 
(‘precario’) of some object, say, a piece of land, i.e. he has granted 
B possession on terms that B shall redeliver on demand. If B (the 
3 A. Pcmice, ZS. d. Sav. St. t vol. xvii. p. 195 ff, 

X % 



THE INSTITUTES 


3°8 

§ 56 . ‘precario habens’), after demand made, refused to restore the 
property, A (the ‘precario dans’) could apply to the praetor in his 
administrative capacity as the guardian of public order, and claim 
that he (the praetor), acting extra ordinem, should, by his interdict, 
provisionally re-establish Ate previous possession, without prejudice to 
any question of law involved in the dispute, as to who was owner, 
and so on. It is probable that originally the praetor enquised into 
the facts of the case himself and pronounced his decision accord- 
ingly : Whereas you, B, have received such and such a thing precario 
from A (the plaintiff), you must restore it to A. But it had 
gradually become impossible for the praetor each time actually to 
determine the facts of the case himself. Hence the material differ- 
ence in the nature of his decision at a later time : Whatever you, B, 
have received precario from A (the plaintiff), you must restore to A 
(quod precario ab illo habes aut dolo malo fecisti ut desineres 
habere, qua de re agitur, id illi restituas ; cp. 1. 2 pr. D. de precario 
43, 26). A decision of that kind may be pronounced by the praetor 
at once without any enquiry; nay, he may even formulate and 
publish it in advance in his album. The praetor’s decision, there- 
fore, which was formerly unconditional, is now merely conditional, 
and the interdict of the old type has become simply an abstract 
rule which, without determining the particular case in question, 
merely enunciates the general principle on which it ought to be 
decided and by which the parties must therefore be guided. The 
pronouncement which the praetor addresses to the parties is not 
a judgment, but a direction . 

Such a direction published, at the instance of a party, by the 
praetor in his administrative capacity, for the express purpose that 
the parties concerned shall abide by it, is known as an inter- 
dictum, in the narrower and technical sense of the term. Interdict 
procedure, therefore, now means that particular kind of extraordinary 
procedure which results in the pronouncement by the praetor, not of 
a decision, but of a direction \ 

4 T he direction may require the re- again it may require an abstention (in- 

storation (inteidicta restitutoria), or terdicta prohibitum). Prohibitory in- 

merely the production of some object, tcrdictsarc dealt with by Pfersche in his 

e.g. a will (jnterdicta exhibitoria), or work, Die lnterdtcU dcs r'omischcn 



THE LAW OF PROPERTY ( GENERAL PART) 309 

The parties, however, are naturally anxious to have their dispute § 50 . 
decided. For this purpose the interdict procedure will have to be 
followed up by further proceedings. As a rule the parties have 
recourse to a sponsio and restipulatio (cp. p. 269). That is to say, 
at the instance of the praetor they mutually promise one another 
a penal sum to be forfeited by the promisor if, on the one hand, he 
has contravened, or shall at any future time contravene, the direction 
expressly addressed to the parties by the praetor (i.e. the interdict), 
and if, on the other hand, the adversary has been challenged to 
a sponsio without just cause. The sponsio and restipulatio thus 
give rise to an action which is conducted in accordance with 
the ordinary civil procedure. The judgment in this action con- 
stitutes, at the same time, the judgment in the interdict proceed- 
ings, so that, when judgment has been given with regard to 
the penal wager, the winner is entitled not only to recover the 
penalty, but also to have the claim he put forward in the inter- 
dict proceedings satisfied by means of an arbitrium. Sometimes, 
however — viz. in cases of interdicta restitutoria or exhibitoria— an 
action is brought at once without any sponsio and restipulatio, 
the plaintiff, by formula arbitraria, demanding satisfaction of his 
claim (to a restitution or production) on the basis of the interdict 
itself. It is only in cases of prohibitory interdicts, that is, where the 
adversary is not called upon to do any positive act (restituere or 
exhibere), but solely to abstain from doing something (e. g. from 
disturbing the plaintiff’s possession), where therefore nothing but a 
penalty can be claimed for the violation of the order to abstain— it 
is in such cases alone that the procedure cum sponsione (and, con- 
sequently, cum poena) is, of course, the only available method. 

Thus the interdict procedure now only serves the purpose of 
introducing the ordinary procedure with a judicium. It means a 
procedure in which the decision is based, not on a rule of law, but 
on an administrative rule laid down by the praetor, a procedure, 
therefore, which requires that, in each separate case, the administra- 

Civilprocesses (1888). The author there other interdicts, because, like the latter, 
points out that, on principle, prohibitory they are conditional decisions, 
iaterdicts are the same in kind os the 



3 10 


THE INSTITUTES 


§ 50 . tive rule in question (in other words, the interdict, in the formal 
sense of the term) shall be expressly made known to the parties 
concerned. In reality, however, the interdict procedure in this its 
later form is nothing more than an actio, differing from an ordinary 
actio only in regard to the conduct of the proceedings in jure, the 
first step being in such cases the publication of the direction to the 
parties. By the time of Justinian all peculiarities of the interdict 
procedure have fallen into desuetude. The interdict has ceased to 
be a direction published, in each separate instance, for the guidance 
of the parties, and has come to be regarded simply as a rule of law 
of general validity giving rise to an actio ex interdicto— an action 
commenced in the ordinary way, but conducted in accordance with 
the procedure extra ordinem (§ 57). 

Gaj. Inst. IV § 139 : Certis igitur ex causis praetor aut proconsul 
principaliter auctoritatem suam finiendis controversiis inter- 
ponit; quod turn maxime facit, cum de possessione aut 
quasi possessione inter aliquos contenditur ; et in summa 
aut jubet aliquid fieri, aut fieri prohibet ; formulae autem 
et verborum conceptiones quibus in ea re utitur interdicta 
vocantur vel accuratius interdicta decretaque. 

L. 2 pr. D. de precario (43, 26) : Ait Praetor : Quod precario 

AB ILLO HABES, AUT DO IX) MALO FKCISTI UT DKSINKRES 
HABERE, QUA DE RE AGITUR, ID ILL! RESTITUAS. 

L. i pr. D. uti possid. (43, 17): Ait Praetor: Uti eas akdes 

QUIBUS DE AGITUK NEC VI NEC CLAM NEC PRECARIO ALTER 
AB ALTERO POSSIDETIS: QUOMINUS ITA POSSIDEATIS VIM 
FIERI VETO. 

L. i pr. D. de liberis exhib. (43, 30) : Ait Praetor : Qui quaeve 

IN POTESTATE LUCII TlTII EST, SI IS EAVE APUI) TE EST, 
DOLOVE MALO TUO FACTUM EST QUOMINUS APUD TE ESSET, 
ITA RUM EAMVE EXIIIBEAS. 


III. In Integrum Restitutio. 

Where a person has suffered a legal prejudice by the operation of 
the law, and the magistrate, in the exercise of his imperium, rescinds 
such prejudice by re-establishing the original legal position, in other 
words, by replacing the person injured in his previous condition,— 



THE LAW OF PROPERTY (GENERAL PART) 311 


such rescission is called In Integrum Restitutio. Thus, whereas § 50 . 
an action supplies a remedy against a wrong, in integrum restitutio 
supplies a remedy against the law itself, a remedy which is rendered 
necessary by the inability of the law to provide prospectively for the 
particular circumstances of every case. To a certain extent the law 
must always generalize, i. e. it must always, in some measure, leave the 
particular circumstances out of sight. The law, for example, declares 
that if I have made an agreement in a form which is legally binding, 

I must abide by such agreement and cannot withdraw. True, the 
law itself may create exceptions to such a rule by providing that 
certain special circumstances, which would render the application of 
the rule inequitable, shall be taken into consideration. Thus, the 
Roman civil law (the lex Plaetoria, about 186 b. c.) declared that, in 
exceptional cases, an agreement, though validly concluded, should 
nevertheless not be binding, if namely such agreement had been the 
means of fraudulently overreaching (circumscribere) a person of less 
than 25 years. Or again, the praetor, generalizing the exception 
created by the lex Plaetoria, announces in his edict that he will 
relieve any person (be he minor or major XXV annis), who has been 
fraudulently overreached, from the legal consequences of his juristic 
act (supra, p. 221). It is in this manner that a ‘jus singulare,’ a law 
which is an exception to the ordinary law (supra, p. 29), comes into 
existence, the particular circumstances being taken into account and 
the law, so to speak, rectifying itself. 

But in order to avoid all injustice, it is not sufficient that the law 
should in this manner rectify itself. It is not enough for legislation, 
or quasi-legislation like the praetorian edict, to modify one general 
rule by another of an equally general character. It is thus that 
occasion arises for the praetor to use his imperium with a view to 
rectifying the law in given individual cases by virtue of his absolute 
sovereign power. This is what we mean by in integrum restitutio. 

The operation of the law has resulted in a legal prejudice, and the 
praetor, having personally enquired into the matter (causae cognitio), 
and acting on his own magisterial discretion, which enables him to 
consider all the actual facts of the case, issues his decree cancelling 
this prejudice. If the prejudice consists in the loss of a right of 



312 


THE INSTITUTES 


§ 50 . action (e. g. by limitation), the proceeding effecting the restitution 
ends with the granting of the actio, in other words, of the formula. 
The restitution thus granted by the praetor in jure is then followed 
by a judicium, the so-called ‘judicium rescissorium,’ i. e. the trial 
and decision of the actio which has thus been restored (actio 
restitutoria or rescissoria). The ‘judicium rescindens’ itself, i.e. the 
proceeding which results in the restitution, is invariably conducted 
and concluded by the praetor himself. 

There were two classes of cases in which restitution was 
granted, first, the restitutio minorum; secondly, the restitutio 
majorum. 

(i) Restitutio Minorum (XXV annis). 

The above-mentioned lex Plaetoria was the first to fix the limit of 
age at 25 years, and to clothe this limit with certain effects. Hence 
the description of majority as ‘ legitima' aetas. The lex Plaetoria 
itself gave the minor circumscriptus relief from any juristic act which 
he had concluded under the influence of fraud \ The praetor, then, 
through his edict on dolus, extended the same protection against 
fraud to persons of full age (p. 221). But while thus practically doing 
away with the importance of the limit of twenty-five years, the 
praetorian edict, in a different sense, re-established it. The praetor 
namely proceeded to give minors a general promise of relief which 
was not confined to cases of fraud. He announced in his edict 
that he was prepared to examine any transaction concluded with 
a minor with a view to ascertaining whether it should be upheld or 
not. It was thus not only in cases of fraud, but in any case what- 
ever where the practical result of a transaction was prejudicial to 
him, that a minor could hope to have it cancelled by the help of the 
praetor (in integrum restitutio). The upshot of this practice was 
the development of the general rule that wherever a minor had, in 
any manner whatever, whether by a juristic act or otherwise, suffered 
a prejudice in consequence of his minority, he was entitled to in 
integrum restitutio. 

B It would seem that the lex Plaetoria Cp. Pfaff and Hofmann, Fragmmtum 
(sometimes called the lex Laetoria) de formula Fabian a (Vienna, 1888), 
gave a private action ex delicto for p. 38 ff. ; also Kruger, ZS. d. Sav. St. 9 
lraud practised on a minor xxv annis. vol. ix. p. 149, note 5. 



THE LAW OF PROPERTY (GENERAL PART) 313 
L. 1 § 1 D. de minor. (4, 4) : Praetor edicit : Quod cum minore § 56 « 

QUAM V 1 GINTI QUINQUE ANNIS NATU GESTUM ESSE DICETUR, 

UTI QUAEQUE RES ERIT, ANIMADVERTAM. 

(2) Restitutio Majorum (XXV annis). 

There are circumstances in which a person of full age has as 
good an equitable claim to in integrum restitutio as a minor. This 
is especially the case when he suffers a prejudice through absence 
from home (restitutio propter absentiam). In consequence of his 
absence he may, for example, have lost a right of action by limita- 
tion, or some property through usucapio on the part of a third person. 

The first case dealt with from this point of view was the case of 
a person being detained in captivity among a hostile people. Other 
cases of absence (e. g. rei publicae causa) were then treated in the 
same manner, and finally relief was afforded, on the same principle, 
in all cases where a person was, in any way, reasonably prevented 
from protecting his right ". Besides absentia, there are other grounds 
which entitle a person of age to in integrum restitutio, to wit: 
intimidation (metus), fraud (dolus), and error. 

Thus in the case of minors the promise to grant restitution is 
a general one ; the minor has only to appeal to his minority and to 
prove that he has been prejudiced in consequence of this minority. 

A person of full age, however, can only hope to obtain restitution in 
particular cases (absentia, metus, dolus, error), and he will have to 
prove each time that in his individual case the conditions necessary 
for a grant of restitutio are forthcoming. 

§ 57* Th e Procedure of the Later Empire . 

The ancient division of ordinary actions into jus and judicium had § 67. 
already lost part of its original significance in consequence of the 
development of the formulary procedure, since the effect of the 
formula had been to convert the judex into an organ and instrument 
not only of the civil law, but also of the law laid down by the praetor 
(p. 270). The judicium was now regulated by the same authority 
that controlled the proceedings in jure. On the other hand, the 

8 For the edict on the in integrum restitutio propter absentiam, v. supra, p. 91. 



THE INSTITUTES 


3H 

§ 57. final consolidation of the edict by Hadrian (supra, p. 89 ) deprived the 
praetor and the praesides provinciarum (who exercised the ordinary 
jurisdiction in the provinces) of the jus edicendi in the old sense of 
the term. The praetor and the praeses were henceforth bound by 
the existing civil law and by the edict (as fixed by the will of the 
emperor) in the same way as the judex. The publication of the 
edict by the praetor had sunk to a mere form. The praetor was, 
in fact, stripped of his ancient imperium. Like the judex he became 
a mere instrument for applying the law, and his duties became more 
and more ministerial in proportion as, on the one hand, scientific- 
jurisprudence developed and defined the contents of the existing 
law and, on the other hand, the imperial power, superseding all 
other agencies, appropriated to itself the function of developing 
the law \ 

Thus the judex gradually became an official whose duty it was 
to assist the praetor, and, in the same way, the praetor became 
practically an ofticial whose duty it was to assist the emperor. 
This change found formal expression from the reign of Diocletian 
onwards, the administration of the law in Rome being trans- 
ferred from the praetor to an imperial functionary, the praefectus 
urbi. In the provinces the old distinction between senatorial and 
imperial provinces was abolished, and the praesides provinciarum 
were at the same time turned into imperial governors. Over them 
stood the praefecti praetorio with their substitutes, all of whom 
likewise exercised jurisdiction in the name of the emperor. The 
republican forms and magistracies were thus finally displaced by the 
monarchy with its system of dependent officials. The foundations 
of the old procedure had disappeared. The new procedure which 
was now gradually taking shape was modelled on the forms in which, 
till then, proceedings before the emperor had been conducted. 

Ever since the establishment of the principals it had been 
allowable to bring legal matters of any kind from any part of the 
empire before the emperor for the purpose of obtaining his decision 
thereon. But whenever the emperor took upon himself to decide 
a case, he proceeded without a judex (privatus), and determined 

Schultzc, Prwatrccht tt. Process, p, 533 flf. 



THE LAW OF PROPERTY ( GENERAL PART) 315 


the matter either in person or through a delegate nominated by § 57 . 
him for the purpose (e.g. the praetor urbanus or a praeses pro- 
vinciae) 2 . The necessity of appointing a judicium (a judex privatus) 
imposed a certain restriction on the discretion of the magistrate 
which did not exist in the case of the imperial power. The form 
of procedure which the emperor adopted was then imitated by the 
imperial officials. We observe that, towards the end of the third 
century, the praesides provinciarum were in the habit of proceeding 
extra ordinem in civil actions, i. e. they were in the habit of either 
giving judgment themselves or of delegating the whole cause to 
a deputy judge, a ‘judex pedaneus.’ This deputy judge (who is also 
called ‘ judex datus ’ or ‘ judex delegatus ’) is now in form, as well as 
in substance, an official whp acts in lieu of the magistrate ; he is not 
merely entrusted, like the old judex privatus, with the conduct of the 
proceedings in judicio, but is deputed — and this is the reason why 
no formula is used— to hear and determine the whole cause, in- 
cluding the proceedings in jure. Like the proceedings before the 
praeses himself, the proceedings before this subordinate judge are 
extra ordinem, in other words, they constitute a procedure per 
cognitionem (p. 306), a procedure, that is, in which the entire action 


2 Thus Octavian delegated every year 
the ‘ appellationes * of litigant parties in 
the capital to the praetor urbanus ; cp. 
Suetonius Octav. c. 33, and on the same 
point J. Merkel, Abhandlungen { supra, 
p. 240, note 5), I left ii. p. 46 ff. — In 
delegating the hearing of a cause the 
emperor often addressed to the judex 
delegatus a rescript containing a pro- 
visional decision of the legal question 
(,si pieces veritate nitnntur). Hence the 
name ‘action by rescript.’ The appli- 
cation for the rescript (supplicatio, 
pieces, libcllus principi datus) produced 
the same effects as the litis eonkstatio. 
The rescript may thus be icgarded as 
a kind of counterpart to the formula 
in the extraordinary procedure. Hut 
whereas it is the essence of the formula 
primarily to formulate the legal issue, 
it is the essence of the rescript primarily 
to decide it. And further, the judg- 
ment of the judex delegatus acting on 
the imperial rescript is the judgment of 


the emperor himself ; the judgment 
of the judex acting on the praetorian 
formula is the judgment, not of the 
praetor, but of the appointed judex, 
however much the substance of his 
judgment may be determined by the 
praetor through the medium of his 
formula. An action by rescript there- 
fore is an extiaordinary action, and 
a judex delegatus, as such, is not 
a private individual, but the official 
repicsentative of the imperial sove- 
reignty.— -A plea on the part of the 
delendant that the plaintiff, in applying 
for the rescript, has suppressed certain 
facts, is called a * prac script io sub- 
reptionis’; a plea that the plaintiff, in 
applying for the rescript, has alleged 
certain facts which aie not true, is 
called a * praesciiptio obreptionis.’ As 
to the practical importance of the pro- 
cedure by rescript for the development 
of Roman law, cp. supra, p. 112 ff. 



316 


THE INSTITUTES 


§ 57 . is dominated by the magisterial causae cognitio. Diocletian, while 
sanctioning this form of procedure, insisted that, as a matter of 
principle, the provincial governors should decide disputes themselves, 
and should not depute the hearing of any cause to a judex pedaneus, 
unless they were actually prevented from trying it themselves 3 . 
A law of the Emperor Julian a.d. 362 ( 1 . 5 C. de ped. jud. 3, 3) 
positively restricted the governors’ powers of delegation to * negotia 
humiliora.’ It is obvious that the success which attended these 
proceedings on the part of the imperial officials was due, not to 
mere arbitrary power, but to a change in the legal views of the 
people in general. The officials were bound by the existing law, 
because they had ceased to enjoy the old imperium, and this fact 
stripped the original view, according to which a magisterial decision 
was not a judgment in the legal sense of the term, of all foundation, 
and definitely deprived the old division into jus and judicium of 
the meaning which originally attached to it. The difference between 
a decretum and a sententia no longer existed. The decision of 
the magistrate (i. e. of the official) was now, like the decision of the 
judex privatus, a verdict, a sententia, and owed its force, not to the 
imperium, but to the law. The formula was granted in the classical 
procedure on the petition of the plaintiff, who applied to the magis- 
trate for some particular formula (impetrare actionem). But with 
the development of the new point of view, the necessity of applying 
for a formula, and consequently for a judicium, ceased to present 
itself. The tendencies of officialism were thus furthered by the 
practice of the parties themselves. The impetratio actionis was 
dispensed with, and the entire proceedings were conducted before 
the functionary before whom the matter had been brought— a 
practice which offered this additional advantage to the plaintiff that 

3 This is the meaning of 1. 2 C. rle magistrate sometimes followed the ex- 
pedaneis judic., 3, 3. Cp. A. Pcmice ample of the older procedure by ad- 
in the Berliner Eestgaben (supra, p. 96, dressing a formula, or (at any rate, 
note 8), p. 77, and in the ZS. d. Sav . instructions in the nature of a formula. 
St., vol. vii. p. 103 ff. ; Mommsen, Rom. to the judex delegatus ; cp. Gradenwit/. 
Staatsreclu voL ii. part 2 (3rd ed.), in the Hermes , vol. xxviii. p. 333; 
p.978. Where a case was delegated to Mittcis, ibid. vol. xxx. p. 580; vol. 
a subordinate judge in the procedure xxxiv. i>v>. 100. 1 01. 
per cogmtionem, it appears that the 



THE LAW OF PROPERTY ( GENERAL PART) 317 

it avoided the danger involved in every application for a definite § 57 . 
formula, the danger, namely, of applying for the wrong formula, or 
of falling into some error in fixing the wording of the formula. It 
was not, however, till the fourth and fifth centuries respectively that 
this whole course of development was definitely brought to a close 
by means of two imperial constitutiones, one of which forbade the 
use of the ^ hair-splitting juris formulae* ( 1 . 1 C. de formulis sublatis 
2, 57; a.d. 342), while the other, following up the first, provided 
that the defendant in an action should not be allowed to plead in 
defence that the plaintiff had failed to apply for an actio, i. e. for 
a formula ( 1 . 2 C. eod. ; a. d. 428). The abolition of the formulary 
procedure was thus brought about by a process as gradual and as 
spontaneously progressive as that which had once resulted in its 
growth and adoption. 

The upshot of this course of development was that, in point of 
form, every action became, in its entirety, a proceeding in jure, con- 
ducted before the magistrate or his deputy (in other words, a pro- 
ceeding ‘per cognitionem ’), and that, in point of form, the extra- 
ordinary procedure became the ordinary procedure. In its material 
aspect, however, the new procedure was nothing more than a 
machinery for applying the law, and retained therefore, to this 
extent, the features of the ancient judicium. 

The formula ceased to be granted, and the place of the litis con- 
testatio was taken by the act by which both parties submitted their 
case to the magistrate (l. un. C. de lit. cont. 3, 9). The disappear- 
ance of the formula removed the necessity for a money condemnation 
and, with it, that peculiar narrowness which, as we have seen (supra, 
p. 282 ff.), continued to characterize even the classical procedure. 

The magistrate could now decree specific satisfaction, and since his 
judgment was the judgment of an official, his decree could be 
followed by specific execution supported by the power of the state. 

The practice of decreeing specific execution led to the development, 
on a general scale, of that system of ‘ special * execution by pignoris 
capio which enabled an individual creditor to obtain satisfaction, 
without having to resort each time to the circuitous method of first 
attaching his debtor’s entire estate supra, p. 303). On the other hand, 



3 i 8 


THE INSTITUTES 


57. the fact that the judgment was the judgment of an official resulted in 
the full development of that system of appeals the aim of which was 
to substitute, in place of the decision of the lower official, the 
decision of a higher one, and, in the last instance, the decision of the 
emperor himself as representing the highest court of appeal (p. 240, 
note 5). 

The later procedure is thus characterized by greater freedom and 
elasticity, more especially in regard to the proceedings on judgment 
and execution. At the same time we observe a tendency to utilize 
the practice of appealing to the imperial power for the purpose of 
establishing a uniform system of jurisdiction throughout the whole 
vast empire 4 . 

The disappearance of the formula marked the disappearance of 
the last formal element of the old type and, with it, the disappearance 
of the last trace of the ancient magisterial sovereignty. Every judge 
was now a public officer in the modern sense of the term ; every 
judgment was a judgment in the emperor’s name, subservient to, 
and controlled by, the imperial authority. In a word, the procedure 
of the later empire marks the first stage in the development of the 
modern action at law \ 


4 For further details on the procedure 
of the later Empire v. Jktlimann-IIoll- 
wesj, Per Civil proses* tie* gi meinen 
K cc hts in gt'schiihtlichcr /wi/ivitl'c/ung, 
vol. iii. 1 f)66 . h or some recent contri- 
butions on points of detail v. A. I’ernice, 


7 .S. d. Sav. .V/.. vol. vii. part 2, p. 1 29 ff. ; 
Kipp, Pic hti>dnunitixition 1 SNj* ; 
Hnron, Abhandiuu^cn aits dem row. 
Civi/prot ess i w»l. in.: Per Pcnuntia 
t ions pros ess 1SS7 . 

1 C'p. Schultre, !ot\ lit. p. 562 ff. 



CHAPTER II. 

The Law of Things. 

§ 58. The Conception of a Thing. 

Thk Romans applied the term ‘res’ to anything that can form § 58. 
part of a person's property, and divided res, in this sense, into ‘res 
corporales,’ or corporeal property (i.e. ‘things’ in our sense of the 
term), and ‘res incorporates,’ or incorporeal property, such as a 
right of inheritance, jura in re aliena, rights and liabilities under 
an obligation. With 11s the term ‘thing’ is generally only used in 
the narrower and technical meaning of a res corporalis, a thing, 
in the legal sense, being a material object which is capable of human 
dominion and is intended for human dominion, intended, that is, for 
the satisfaction of the economic needs of men. The sphere of real 
rights* is thus determined. Things must necessarily be the objects 
of private rights. There can be no real right in respect of that 
which is not a thing, in respect, for example, of a mere fraction of 
a thing. 

pr. I de reb. corp. (2, 2) : Quacdam . . . res corporales sunt, 
quaedam incorporales. § 1 : Corporales eae sunt quae tangi 
possunt, veluti fundus, homo, vestis, aurum, argentum, et 
denique aliae res innumerabiles. § 2 : Incorporales autem 
sunt quae tangi non possunt, qualia sunt ea quae in jure 
consistunt : sicut hereditas, ususfruetus, obligationes quoquo 
modo contractae. 


* v. supra, p. 164, note. 



320 


THE INSTITUTES 


§ 59. The Different Kinds of Things. 

§ 59. I. Certain things are prevented by a rule of law from being the 
objects of private rights. Such things are called ‘ res extra commer- 
cium.’ Of res extra commercium we have three classes : res divini 
juris, res publicac, res omnium communes. 

(a) Res divini juris include ‘res sacrae,’ or things dedicated to the 
gods, such as temples and altars ; ‘ res sanctae/ or things enjoying 
the special protection of the gods, such as the walls of Rome ; ‘ res 
religiosae,’ or things dedicated to the dii Manes, i.e. burial grounds. 
(Cp. supra, p. 19S.) 

(fi) The term ‘res publicac,’ or public property, originally embraced 
everything owned by the populus Romanus (state property). What- 
ever belonged to the Roman people lay outside the pale of private 
law (pp. 197, 198). It was not till, in the first instance, commu- 
nities, and then the state, had come to be regarded as (private) 
juristic persons, that things used for the purpose of carrying on the 
separate establishments of the state or community— e.g. things used 
for the maintenance of schools or for the paving and lighting of 
streets (cp. p. 205, note), things, therefore, by which the individual 
members of the state or community were only indirectly benefited— 
were admitted to rank with res privatae, and were, as such, treated as 
fit objects of ownership and commercial dealings in accordance with 
the rules of private law. Thus we find that, in Justinian’s law, the 
term res publicac denotes, technically, only such public things as are 
‘ publico usui destinatae,’ things, that is, which are devoted to the 
common use of all, things -such as public roads, public places, 
public rivers — which directly benefit all individuals alike, and are 
never, therefore, on principle, the objects of exclusive individual 
rights after the manner of private rights. Things of this kind 
continued even in Justinian’s law to be classed as res extra com- 
mercium, i. e. they continued to be withdrawn from the domain of 
private law. 

(c) Res omnium communes are the open air, the water of a natural 
stream, the sea, and the bed of the sea. Res communes are not, 



THE LAW OF THINGS 


321 


properly speaking, ‘things' in the legal sense of the term, just as§ 59. 
little as the sun, the moon, and the stars, or the atoms and ultimate 
particles of the naturalists, are ‘things.’ For the atmosphere of the 
earth, the ocean, and the flowing water of a natural stream (aqua 
profluens) are not, as such, susceptible of human dominion. 

Gaj. Inst. II § 3 : Divini juris sunt veluti res sacrae et religiosae. 

§4: Sacrae sunt quae diis superis consecratae sunt ; religiosae, 
quae diis Manibus relictae sunt. § 5 : Sed sacrum quidem 
hoc solum existimatur quod ex auctoritate populi Romani 
consecratum est, veluti lege de ea re lata aut senatusconsulto 
facto. § 6 : Religiosum vero nostra voluntate facimus, mor- 
tuum inferentes in locum nostrum, si modo ejus mortui funus 
ad nos pertineat. § 8 : Sanctae quoque res, velut muri et 
portae, quodammodo divini juris sunt. § 9: Quod autem 
divini juris est, id nullius in bonis est. 

§ 1 I. de rer. div. (2, 1) : Et quidem naturali jure communia sunt 
omnium haec: aer et aqua profluens et mare et per hoc 
litora maris. Nemo igitur ad litus maris accedere prohibetur: 
dum tamen a villis et monu mentis et aedificiis abstineat. . . . 

§ 2 : Flumina autem omnia et portus publica sunt, idepque 
jus piscandi omnibus commune est in portu fluminibusque. 

§ 3 : Est autem litus maris, quatenus hibernus fluctus maxi- 
mus excurrit. § 4 : Riparum quoque usus publicus est juris 
gentium, sicut ipsius fluminis ; itaque navem ad eas appellerc, 
funes ex arboribus ibi natis religare, onus aliquid in his repo- 
nere cuilibet liberum est, sicuti per ipsum flumen navigare; 
sed proprietas earum illorum est quorum praediis haerent : 
qua de causa arbores quoque in isdem natae eorundem 
sunt. 

II. Res in commcrcio are all equally capable of being objects of 
private ownership. Among them the following distinctions are 
legally of importance : 

{a) ‘Res nullius,’ or ownerless things, are things which, as a 
matter of fact, belong to nobody, e. g. wild animals in a state of 
freedom. Ownership in them can be acquired by occiqTatio (infra, 

P- 335 >- 

(^) ‘Consumable things’ (res quae usu minuuntur vel consu- 

SOHM : LRDLIK V 



3 22 


THE INSTITUTES 


§ 59 . muntur) are things which are extinguished, and are intended to be 
extinguished, by use, e. g. food, money. Of such things there can 
be no usufruct (infra, p. 360), because a usufructuary is only allowed 
to use the thing which is the object of his usufruct ‘salva rei sub- 
stantia/ i. e. so long as he keeps its substance intact. 

Money is ‘consumed’ by being spent, or by being mixed with 
other money in a manner which renders it impossible to determine 
to whom the separate coins respectively belong. Thus, if I use 
another person’s money to pay a debt or give a loan, the receiver of 
the money becomes the owner of it, not however in virtue of the 
delivery (traditio), but in virtue of the subsequent mixing of the 
money. Si nummi mixti essent— scil. with other money belonging to 
the receiver— ita ut discerni non possent, ejus fieri qui accepit (1. 78 
D. de solut. 46, 3). After the mixture the ‘ pecun ia aliena/ as such, 
has disappeared. It has ceased to exist, as far as the former owner 
is concerned. It has been, economically speaking, appropriated by 
the receiver in just the same way as though it were food which had 
been consumed. But the circumstances attending the consumption 
may be such as to impose an obligation on the receiver to refund 
the money he received (infra, p. 425). 

(c) ‘Res fungibiles’ (res quae pondere, numero mensurave con- 
stant) are things which in ordinary dealings do not usually occur 
individually, but only in certain quantities and qualities. Such 
things are e. g. money, wine, grain, eggs, apples, cigars, &c., as 
opposed to, say, horses, books, plots of land. Where a person owes 
res fungibiles, he is bound, in case of doubt, to supply, not a fixed 
species of individually determined things, hut only a certain quantity 
and quality of gcnerically determined things. For the rule con- 
cerning res fungibiles is : tantundem ejusdem generis est idem '. 
It is the characteristic of a contract of loan that it can only arise 
on the transfer of res fungibiles (infra, p. 395). Res fungibiles might 

1 In a transfer of res fungibiles, as this that constitutes the essence, legally 

e.g. in a sale of grapes, apples, or eggs, speaking, of * adnumerare *), and the 

the separate things are treated, without like principle applies to cases of weigh- 

dwtinaion, as equal, even when they ing out (adpenderc') and measuring out 

aW not, as a matter of fact, precisely (admetiri). Cp. Karlowa, in (Jriinhut’i 

identical. Thus things which * numero ZS. fur Privat- u. bffentliches R., vol. 

constant are all counted as equal (it is xvi. (1889) p. 41 1. 



THE LAW OF THINGS 


323 


therefore be better described as things which can be the objects of § 59 . 
\ contract of loan. 

( d ) A ‘ divisible thing’ is a thing which can be divided into 
several things without thereby suffering any diminution in value. 

In this sense the following things are, as a rule, divisible : land, 
a given quantity of wine, a piece of cloth (as contrasted e. g. with 
a coat), and others. In Roman law, where the subject-matter of 
a partition suit is a divisible thing, the judge actually divides the 
thing, i.e. he separates it into several things ; where it is indivisible, 
the joint interest must be severed by a different process (v. infra, 

p- 33.3)- 

The division of a thing into what are called ‘ideal’ parts — such as 
occurs, for example, in the case of common ownership — is not a real 
division at all. What it means is that several persons have common 
rights in one and the same thing, the rights being divided, but not 
the thing itself. 

III. Res mancipi and Res nec mancipi. 

The Roman division of things into res mancipi (mancipii) and res 
nec mancipi (mancipii), i.e. (literally) into things which could, and 
things which could not, be ‘ taken with the hand,’ was of considerable 
importance from an historical point of view. In primitive times the 
hand (manus ; Old German : ‘ munt ’) was the symbol of the separate 
power of the individual, the symbol, in short, of separate ownership. 

The res mancipii of the earliest times were the things that could be 
held in separate ownership (p. 38). During the historical period the 
expression ‘mancipium’ came to be applied to the formal legal act 
of ‘taking with the hand,’ in a word, to the mancipatio, or solemn 
sale of the early law (p. 50). Henceforth res mancipi (mancipii) 
were the things that admitted of mancipatio (the ‘purchasable things 
of value’ in the sense of the jus civile), and res nec mancipi 
(mancipii) were the things that did not admit of mancipatio. 

It was only res mancipi that could be alienated by a mancipatio, 
or formal sale (§ 11), and it was only therefore in the case of res 
mancipi that the peculiar effects incident to mancipatio came into 
P^y. In other words, it was only where res mancipi were 
concerned that the alienee acquired the so-called quiritary, or full 

Y 2 



3 2 4 


THE INSTITUTES 


50 . Roman ownership, and the alienor, the mancipio dans, was bound 
by a warranty of authority rendering him liable to an actio auctori- 
tatis. And, conversely, res mancipi could only be acquired by 
a solemn juristic act of the civil law, such as mancipatio or 
its equivalents (infra, § 62), and never by a mere formless act of 
the jus gentium without any accompanying solemnities. The res 
mancipi represented, in the historical period, the privileged things 
of early Roman law, the things which were regarded as consti- 
tuting the staple of the farmers’, and, at the same time, of the 
nation’s property, whose alienation and acquisition therefore, being 
a matter of public interest, could not be effected without publicity 
and the sanction of the community as represented either by the five 
witnesses or by the magistrate. And this same view of res mancipi 
being national property necessarily entailed what was perhaps, for 
the oldest times, the most important consequence of ail, namely, the 
inability of aliens to acquire ownership in such things. Every alien 
(peregrinus), as such, was shut out from the use of the juristic acts 
of the specifically Roman civil law, including, therefore, mancipatio. 
Consequently no alien could become owner of a res mancipi, unless 
indeed he belonged to the privileged class to whom the jus com- 
mercii had been granted (supra, pp. 68, 180). As for the movable 
res mancipi, the practical effect of their being ranked as res mancipi 
was to prohibit their removal beyond the confines of the Roman 
state. And the fact that the ‘ fundus Italicus ’ (which was originally, 
doubtless, only land actually within Roman territory) was a res 
mancipi, meant that, on principle, no one but a Roman citizen 
could own landed property in Rome (and afterwards in Italy). Res 
mancipi, then, were things the alienation of which was hampered 
with certain restrictions on account of the public interests. 

The following things were res mancipi according to classical 
Roman law: (1) the fundus Italicus. The provincial soil, on 
the other hand, was owned by the Roman people; in the eye of 
the law, therefore, it was ager publicus and as such inc apable of 
genuine private ownership (cp. pp. 197, 198); (2) rural servitudes, 
i.e. rights annexed to a landed estate in Italy (§ 69); (3) slaves; 
(4) four-footed beasts of draught and burden. The list of res 



THE LAW OF THINGS 


325 


mancipi thus comprises the principal appendages, movable and § 59 . 
immovable, of an old Italian farm 2 . 

Gaj. Inst. II § 19: Res nec mancipii ipsa traditione pleno jure 
alterius hunt. § 22 : Mancipii vero res sunt quae per manci- 
pationem ad alium transferuntur ; unde etiam mancipii res 
sunt dictae. 

Ulp. tit. 19 § 1 : Omnes res aut mancipii sunt aut nec mancipii. 
Mancipii res sunt praedia in Italico solo, tarn rustica, qualis 
est fundus, quam urbana, qualis domus; item jura praedi- 
orum rusticorum, velut via, iter, actus, aquaeductus ; item 
servi et quadrupedes quae dorso collove domantur, velut 
boves, muli, equi, asini. Ceterae res nec mancipii sunt; 
elefanti et cameli, quamvis cello dorsove domentur, nec 
mancipii sunt, quoniam bestiarum numero sunt. § 3 : Man- 
cipatio propria species alienationis est rerum mancipii. 


§ 60. Real Rights . 

Real rights are those private rights which confer an immediate § 80 . 
power of control over a thing. A person who has a real right is 
entitled, by virtue of that right, to deal with a particular thing him- 
self. Real rights belong to the category of ‘absolute* rights, or 
rights available as against everybody, because their effect is simply 
to empower the person in whom they vest to act in a particular 
manner 1 . Every one is accordingly bound to respect my right in 
the thing such as it is, whether it be ownership or some other 
right. My right excludes every one from the use and disposition 
of the thing who has not, himself, some special right available as 
against me, for example, a right as lessee or usufructuary. 

Opposed to real rights are the rights we have called (supra, p. 164) 


2 Jhering thinks it probable (sec his 
Jahrbiahcr fur Pogmatik, vol. xxiii. 
P- 204, note 1) that in the early law, 
wherever res nec mancipi were con- 
cerned, a simple ‘ meum esse * was pos- 
sible, without the addition of * ex jure 
Quiritium,* and that rights over res nec 
mancipi were protected, not by means 
of vindicatio (which presupposed quin- 
ary ownership), but solely by means of 


actiones furti. 

1 Any right which entitles a person 
to act himsilf—Q. g. a right of control 
based on family law, a patent right, 
a copyright— is an absolute right, and 
absolute rights form, as such, the anti- 
thesis to ‘ obligatory * rights. A real 
right is an absolute right over a material 
thing 



THE INSTITUTES 


326 

§ 00 . 1 obligatory rights' (§ 73 *). Whereas a real right entitles me to act 
myself, an obligatory right— e. g. a right under a contract of hire- 
only entitles me to require a particular other person to act, viz. the 
debtor (in our example the lessor). An obligatory right as such is 
accordingly only available as against a single person, namely, the 
debtor. If I am entitled (by virtue, say, of a right of usufruct) to 
use a particular piece of land, if, that is, I am entitled to appropriate 
the fruits of the land, and so forth, by my own act — I have a real 
right in the land, a right of immediate control over a material thing. 
But if (as would be the case with a lease of land in Roman law) 
I am only entitled to require a particular other person (the lessor) to 
alloiv me to use the land, if, that is, my right is merely a right to an 
act on the part of this other person — in that case I have only 
an obligatory right. In the former case I have a right in the thing , 
a power over the thing which holds good as against every one; in 
the latter case I have only a right to require a particular person to 
act. A general right to go across the land of another (a right of 
way) would be a real right ; a right to require some particular owner 
of the land to let me go across would be an obligatory right. An 
obligatory right only enables me to exercise a control over a thing 
through the medium of another person's act (the act, namely, of the 
debtor); a real right entitles me to act myself, and thereby effects an 
immediate enlargement of my powers as against everybody. The 
essence of a real right lies in the fact that it confers a free power to 
deal with a thing by one’s own acts. 

The fullest of all real rights is Ownership. 

Opposed to ownership we have the rights over the things of 
others (jura in re). 


* Translators Note, The term 
‘obligatory right* is used throughout 
as an equivalent for the German • For- 
derungsrecht’ (‘obligatorischcs Kecht*). 
V orderungsiechtc are a paiticular kind 
of rights in personam, such namely as 
arise under an obligation, whether under 
a contract, a quasi-contract, a delict, or 
a quasi-delict. Fordcrungsrechte and 
rights in personam are therefore by no 
means co-extensive. There are a great 


many rights in personam that are not 
Fordcrungsrechte. For example, rights 
in personam which arc based on family 
relations (such as the right of a husband 
to require his wife to give up the custody 
of a child) are not Forderungsrechte. 
In the absence of any recognized Fnglish 
equivalent the term ‘obligatory right,’ 
though open to obvious objections, must 
serve. 



THE LAW OF THINGS 


3*7 


I. Ownership. 

§ 61. The Conception of Oivnerskip. 

Ownership is a right, unlimited in respect of its contents, to exer- § 01. 
cise control over a thing. The difference, in point of conception, 
between ownership and the jura in re aliena is this, that ownership, 
however susceptible of legal limitations (e. g. through rights of others 
in the same thing), is nevertheless absolutely unlimited, as far as its 
own contents are concerned. As soon therefore as the legal limita- 
tions imposed upon ownership— whether by the rights of others or 
by rules of public law — disappear, ownership at once, and of its own 
accord, re-establishes itself as a plenary control. This is what is 
sometimes described as the ‘ elasticity * of ownership. 

§ 62. The Acquisition of Ownership . 

Historical Introduction. 

The pre-Justinian law on the acquisition of ownership distinguished § 82. 
between acquisitiones civiles and acquisitiones naturales. 

The acquisitiones civiles were the modes of acquisition recognized 
by the jus civile ; in other words, the modes of acquisition peculiar 
to Roman law. The common elements in all these modes were 
publicity and solemnity. The solemnity consisted in the use of 
certain prescribed words and ceremonies ; publicity was obtained by 
the participation, in some form, of the community, whether it was 
through the medium of five witnesses, representing the five classes 
of the Roman people, or through the medium of the magistrate. 

The acquisitiones civiles were as follows : 

(1) The Mancipatio, or formal sale, carried out in the presence 
of five witnesses and a libripens (supra, pp. 50, 51), and— closely 
connected with mancipatio— the Legatum, or solemn legacy in a 
mancipatory will (infra, § 112). 

(2) A magisterial Addictio, or award. Such an addictio might 
be pronounced either on the ground of a confession on the part of 
the defendant in an in jure cessio (i. e. in a fictitious vindicatio 



328 


THE INSTITUTES 


§ 02. brought for the purpose of effecting a transfer of ownership, supra, 
p. 59), or on the ground of a sale by public auction (e. g. of booty of 
war; ‘venditio sub hasta’), or, again, it might be pronounced for 
purposes of an * assignation or magisterial grant of ager publicus, or, 
finally, it might take the form of an adjudicatio, i. e. the form of an 
award made by the judex in a judicium legitimum for the purpose of 
deciding a partition suit (infra, pp. 333, 334). 

The acquisitiones naturales were the modes of acquisition recog- 
nized by the jus gentium. They had no element of solemnity or 
publicity, and the legal right (whatever it might be) was acquired, as 
a rule, through the medium of possession. The most important 
forms of natural acquisition were Traditio and Occupatio. 

These different modes of acquisition were supplemented by 
Usucapio, or prescription, which was itself a form of civil acquisition, 
because its development was shaped by rules peculiar to Roman 
law (infra, p. 336 ff.). 

The difference in the modes of acquisition was connected with the 
difference in the things themselves. The rule was that res mancipi 
(supra, pp. 323, 324) could only be acquired in full Roman ownership 
(dominium ex jure Quiritium) by civil modes of acquisition. Accord- 
ing to the civil law ownership could not be acquired in a res mancipi 
by mere traditio or occupatio. But towards the close of the Republic 
the praetor intervened to reform the civil law in this respect. He 
declared that, even where a res mancipi had been informally sold (or 
otherwise alienated) and delivered, he would nevertheless protect the 
alienee and present possessor by means of an cxceptio rei venditae et 
traditae, if the alienor (whose dominium ex jure Quiritium was not, of 
course, affected by the transaction according to the formal civil law) 
brought an action to enforce his ownership. The effect of the 
praetor’s intervention was to render the dominium ex jure Quiritium 
(which on an informal alienation remained in the alienor) worthless 
as against the alienee. And, conversely, if a person, who had acquired 
a res mancipi in an informal manner, lost possession of the thing, the 
civil law would not allow him to sue for its recovery by vindicatio. 
For having acquired it informally, he was not owner. The praetor, 
however, granted him the so-called actio Publiciana in rem (infra, 



THE LAW OF THINGS 


329 


§ 66), and thereby virtually gave him a remedy for the assertion of § 62. 
his right which was, in all essentials, as effective as though he had 
really been the owner of the thing. The praetor, in short, set aside 
the ownership of the civil law (quiritary ownership), and opposed to it 
what was practically a different kind of ownership, namely praetorian 
ownership, and though the praetorian title did not make the alienee 
formal owner, nevertheless it operated, by means of the exceptio and 
actio just mentioned, to make the thing, for all practical purposes, 
part of the alienee’s property. Hence property which was held in 
praetorian ownership was said to be ‘in bonis’ (‘bonitary owner- 
ship ’). Bonitary ownership may also be acquired in res mancipi by 
natural modes of acquisition. 

Thus, by means of his edict, the praetor converted the ownership 
of the old civil law into a bare form, the ‘nudum jus Quiritium.’ 

As far as the praetorian law was concerned, the division of things 
into res mancipi and nec mancipi and, in the same way, the division 
of modes of acquisition into civil and natural, had ceased to exist. 

The civil law, however, retained the old distinctions, and the 
classical law still rests on the assumption of an antithesis between 
dominium ex jure Quiritium and in bonis esse. The development 
of this branch of the law was not brought to a final close till Justinian, 
who abolished quiritary ownership, and declared that praetorian 
ownership (which was, in reality, the only ownership in practical 
existence) should be deemed formally, as it was in fact, the only 
kind of ownership — the natural modes of acquisition being, of course, 
alone of importance in regard to such ownership. There was now 
but one kind of ownership and one system of modes of acquisition, 
the system not of the old jus civile, but of the jus gentium. In 
the law of Justinian concerning the acquisition of ownership the 
formal antithesis has lost all significance, and the only antithesis of 
importance is one based on the nature of the acquisition itself, 
the antithesis, namely, between ‘derivative* and ‘original* modes 
of acquisition. 



33° 


THE INSTITUTES 


§ 63 . The Acquisition of Ownership . 

A. Derivative Acquisition. 

§ 63. When the material goods of the world have been distributed, the 
normal mode of acquiring ownership will be that I acquire owner- 
ship from another person . This other person is my 1 auctor/ my 
predecessor in title, my ‘warrantor/ I succeed to his ownership. 
I only acquire ownership if my auctor was really owner himself. 
It is in this that the essence of a ‘ derivative 1 acquisition of owner- 
ship consists : it is a form of ‘singular succession/ i.e. of succession 
to the right of another. 

A derivative acquisition of a right is an acquisition which depends 
on the existence of the right of a certain other person, to wit, the 
auctor. Of derivative modes of acquisition there are three in 
Justinian’s law : Traditio, Legatum, Adjudicatio. 

I. Traditio. 

Traditio consists in a transfer of possession accompanied by an 
intention to transfer ownership. In Roman law ownership— 
whether in movables or immovables— is never acquired by mere 
consensus (e. g. by a contract of sale or a promise of a gift), but only 
by an actual transfer of possession. It is sufficient if the possession 
transferred is ‘juristic’ possession, but it must not be less than 
juristic possession. Juristic possession, however (as we shall see 
presently, § 67 ), does not necessarily mean immediate control over 
the thing possessed. Ownership can pass without any transfer of 
what is called ‘ detention,’ i. e. of immediate physical control of 
the thing; it is not necessary, in other words, that the change of 
possession should be outwardly visible. The Roman traditio does not 
require corporeal delivery. It can sometimes be effected by a simple 
declaration. Thus in the case of what is called ‘constitutum 
possessorium,’ where one person (A), with the intention of transferring 
his ownership in a thing to another (B), declares that he will hold 
the thing for B— under a contract of hire from B, for example— A’s 
declaration is sufficient to effect a traditio. And in the converse case 
of a ‘ brevi manu traditio,’ if it is agreed that B shall purchase from 



THE LAW OF THINGS 


33* 


A a thing which he (B) already has in his actual control — under § 63. 
a contract of hire, for example — a corresponding declaration by A 
that B shall henceforth hold the thing (which is already under his 
control) as his own, is enough to constitute a traditio 

Both in the case of a constitutum possessorium and of a brevi 
manu traditio a change of ownership is seemingly brought about by 
a mere declaration of consensus. But the explanation is that this 
declaration does not merely state that the intended transferee shall 
henceforth be owner, but also, at the same time, effects a change in 
the control of the thing, a change, that is to say, in the actual posses- 
sion of the thing, in a word, a change in the juristic possession ; and 
it is only through the medium of this change of possession that the 
transfer of ownership is accomplished. The hirer, by purchasing the 
thing he had hired (brevi manu traditio), acquires a different power 
over the thing from that which he had before. Conversely, the 
vendor who hires the thing he has sold (constitutum possessorium), 
loses the power he previously had over the thing in favour of the 
purchaser. There is no exception to the rule that traditio can never 
pass ownership, unless there be both an agreement concerning the 
transfer of ownership, and an execution of such agreement by 
means of a transfer of the (juristic) possession. 

On the other hand, it is of course also a rule that ownership can 
never pass by the bare delivery of a thing— as where a thing is 
delivered for safe custody or by way of loan for use— a bare delivery 
being, legally speaking, no traditio at all. In order to be a traditio 
in the legal sense, the delivery must be accompanied by an intention 
to transfer ownership, which intention is expressed in the so-called 
‘causa traditionis,’ i. e. a juristic act concluded either before or 


1 Constitutum possessorium and brevi 
manu traditio aic the two cases where 
a traditio is effected by a change of 
juristic possession without any change 
of detention. Constitutum possessorium 
13 a traditio by a person who continues 
to have detention even after the traditio, 
in other words, by a person who sells 
°r otherwise alienates a thing, but 
retains the immediate control of it by 
virtue, say, of a contract of hire or as 


a usufructuary or mandatary or deposi- 
tary, or what not Brevi manu traditio 
is the traditio of a thing to a person 
who already has detention of it, in other 
words, to a person who already has 
immediate control of the thing by virtue, 
say, of a contract of hire or depositum. 
In either case there is a change of animus 
(§67) and, with it, a change of juristic 
possession. 



332 


THE INSTITUTES 


§ 68 . simultaneously with the traditio : a contract of sale, for example, or 
a promise of a gift. In the case of a sale, however (where, as usual, 
ownership did not pass by virtue of the contract as such, but only by 
the delivery of the thing sold), it was a rule of Roman law that 
traditio should only pass ownership, if the price were paid or credit 
were given. 

L. 20 pr. D. de A. R. D. (41, 1) (Ulpian.): Traditio nihil 
amplius transferre debet vel potest ad eum qui accipit quam 
est apud eum qui tradit. Si igitur quis dominium in fundo 
habuit, id tradendo transfert, si non habuit, ad eum qui 
accipit nihil transfert. 

L. 20 C. de pact. (2, 3) (Diocletian.) : Traditionibus et usuca- 
pionibus dominia rerum, non nudis pactis transferuntur. 

L. 31 pr. D. de A. R. D. (41, 1) (Paulus) : Nunquam nuda 
traditio transfert dominium, sed ita si venditio aut aliqua 
justa causa praecesserit propter quam traditio sequcretur. 
Cp. § 41 I. de rer. div. (2, 1), cited supra, p. 51, n. 2. 

There was something informal about the traditio of Roman law, 
especially as it could be carried out without any corporeal delivery. 
It was well adapted to meet the requirements of the traffic in 
movables, the requirements, in other words, of ordinary commercial 
intercourse where simple, easy modes of transfer are a matter ol 
practical necessity. As might have been expected, it was a product 
of the jus gentium— the old jus civile having made the farm oi 
a Roman burgher (with its necessary appendages) a res mancipi and 
as such, incapable of traditio— and the victory of traditio ovei 
mancipatio meant that henceforth immovable property should, foi 
purposes of the law of things, be treated as though it were movable 
The more recent development of the law (which has now beer 
completed for the whole German Empire by the new Civil Code 
has given effect to the ideas of the older German law by reverting tc 
the principle of a separate treatment of land, the rule being tha 
ownership in land can only be transferred with certain solemnities 
viz. by a formal agreement (Auflassung) followed by an entry in tht 
land register (Grundbuch). At present therefore ownership passe: 
by simple delivery only in the case of movables, and in this sensi 



THE LAW OF THINGS 


333 


modern law may be said to have raised land once more to the rank § 63. 
of a res mancipi. 

II. Legacy. 

A legacy is a derivative mode of acquiring ownership in so far as, 
according to Roman law, a testator is able, by his last will, directly 
to convey his property in ownership to another person in the form 
of a legacy. The legatee need not actually take possession of the 
thing, for as soon as his right to the legacy becomes enforceable 
(dies legati venit), he becomes at once, ipso jure, without any act on 
the part of the heir, owner of the thing which the testator has 
directly bequeathed to him in ownership, provided only — and this is 
the reason why the acquisition is derivative— that the testator him- 
self was the owner or, at any rate, had power to dispose of the 
ownership. Infra, § 115. 

III. Adjudicatio. 

Adjudicatio is the award of a judge in a partition suit. The 
common use of common property — as where several children are 
co-heirs of their father— does not always suit the interests of the 
co-owners. A partition may be effected amicably, by agreement. 
Failing this, a suit for partition becomes necessary. The object of 
partition proceedings is to convert co-ownership into sole ownership 
for the purpose of separating the co-owners. This may be done 
either by physically dividing the thing, i. e. by dividing it into 
several things, and awarding to each of the previous co-owners 
sole ownership in one of the new things 2 ; or it may be done by 
awarding to one of the co-owners the whole thing in sole ownership, 
subject to a duty on his part *to pay pecuniary compensation to the 
other co-owners \ In both cases the object is to effect a transfer of 
ownership, a transfer, namely, of the co-ownership to which the 
other condomini were entitled in the same thing. This transfer, 
which converts the person in whose favour it is effected into a sole 
owner, may, as we said, take place without any judicial proceedings, 
if the co-owners come to an agreement with one another on the 
matter. In that case traditio is required, i. e. the co-owners must 

2 This can only be done with ‘ di- 3 This is what happens in the case of 
visible ’ things, supra, p. 323. * indivisible 1 things. 



334 


THE INSTITUTES 


§ 08 . mutually transfer possession to one another. But if an amicable 
arrangement fails, the transfer can be brought about by legal 
proceedings, viz. by a partition suit. In that case it is accomplished 
by the verdict of the judge (judex), the award or ‘ adjudication which 
operates to change ownership without transferring possession, pro- 
vided only that the other party to the suit was really a co-owner. 
The judicial adjudicatio transfers the co-ownership of one litigant 
to the other. My adversary in the suit, whose right of ownership 
the judge awards to me, is my * auctor.’ Thus, like the preceding 
modes of acquisition, adjudicatio is derivative, because it depends 
on the auctor’s right of ownership 4 . 

It is hardly necessary to point out that an adjudicatio, or judicial 
award in a partition suit, must not be confounded with a judgment 
in an action claiming ownership. The result of the judgment in 
such an action is that the plaintiff is acknowledged to be owner 
as against the defendant— the non-owner — who had been with- 
holding the property from the plaintiff. The force of a judgment in 
a rei vindicatio is purely declaratory, declaratory, namely, of a pre- 
existing right, and its only effect is to debar the defendant— by 
means of the exceptio rei judicatae (supra, p. 301) — from further 
disputing the plaintiff’s right by legal proceedings. But the force of 
an adjudicatio in a partition suit is (in Roman law) to constitute 
a right. Its effect is to invest me with a right of ownership which 
I had not before, viz. the co-ownership of my adversary, the con- 
dominus ; the result being that I, who was only co-owner before, am 
now converted into a sole owner. The adjudicatio of Roman law 
was accordingly a mode of acquiring' ovmzrsb\]> } like traditio, &c. ; 
a judgment in a rei vindicatio, on the other hand, was not a mode 


4 In the German Civil Code neither 
legacy nor judicial award in a partition 
suit (adjudicatio) find any place as 
modes of acquiring ownership. Accord- 
ing to § 2174 of the Code the effect of 
a legacy is merely to impose an obliga- 
tion on the person charged with it ; it 
never operates of its own force to 
transfer ownership in a thing. And 
according to §$ 752 and 753 joint 


ownership must always be severed by 
the act of the joint owners themselves 
(whether by actual partition or sale); 
that is to say, the judge in a partition 
suit orders the joint owners by his judg- 
ment to carry out the partition them- 
selves, but he does not (as in Roman 
law) himself effect the severance of the 
joint rights by means of his award. 



THE LAW OF THINGS 


335 


of acquiring ownership, but only a mode of protecting a right of § 63, 
ownership previously acquired from a different source. 

§ 7 I. de off. jud. ( 4 , 17 ): Quod autem istis judiciis (divisoriis) 
alicui adjudicatum sit, id statim ejus fit cui adjudicatum est. 


§ 64 . The Acquisition of Ownership . 

B. Original Acquisition. 

An * original * acquisition of ownership is a mode of acquisition § 04. 
which operates, of its own force, to create a new right of ownership, 
which new right is accordingly independent of the ownership of 
any definite third person. A person who acquires by an original 
mode has no auctor. 

I. Occupatio. 

Occupatio is the most primitive of all modes of acquisition. It 
consists in the taking possession of a thing which belongs to nobody, 
with the intention of becoming owner of it. Res nullius occupanti 
cedit. The following may be objects of occupatio : wild animals, 
shells or stones on the sea-shore, derelicts, and so forth. 

Derelictio is the opposite of occupatio. It occurs where a person 
abandons the possession of a thing with the intention of abandoning 
the ownership of it, as where he throws away the peel of an orange 
after eating the orange. The effect is to make the thing a res 
nullius the moment the abandonment of possession is physically 
complete. Any one may therefore * occupy/ and acquire ownership 
in, res derelictae. 

There is of course a difference between derelict property and lost 
property. When we lose property, we part with it involuntarily. 

It is only the actual control of the thing that we lose, not the owner- 
ship of it. The thing is not a res nullius, but a res alicujus, and 
does not therefore admit of occupatio. The finder, so far from 
becoming owner of the thing, is bound, not only to keep and 
preserve it, but also to do what in him lies (e. g. by reporting his 
find to the police) to have the thing restored to its owner. 

On the other hand, however, treasure trove (‘thesaurus 1 ) is 



33 ^ 


THE INSTITUTES 


§ 64 . treated as a res nullius. Thesaurus, in the legal sense, is an object 
of value, which has been hidden for a very long time, so that the 
owner is at present unknown. Half the treasure goes to the finder 
(the 1 occupans ’), the other half to the owner of the land in which it 
was found. 

As to hostile property, the rule in Roman law was that it admitted 
of occupatio, as soon as it came within Roman territory, but that, 
when it returned to the enemy’s country, it reverted at once by the 
jus postliminii to its former owner. And, conversely, Roman 
property which returned from the hands of the enemy to Roman 
territory reverted at once to its Roman owner. 

§ 12 I. de rer. div. (2, 1) : Ferae igitur bestiae et volucres et 
pisces, id est omnia animalia quae in terra, mari, caelo na- 
scuntur, simulatque ab aliquo capta fuerint, jure gentium 
statim illius esse incipiunt. Quod enim ante nullius est, id 
naturali ratione occupanti conceditur. Nec interest feras 
bestias et volucres utrum in suo fundo quisque capiat an in 
alieno. Plane, qui in alienum fundum ingreditur venandi aut 
aucupandi gratia, potest a domino, si is providerit, prohiberi 
ne ingrediatur. 

§ 18 eod. : Item lapilli, gemmae, et cetera quae in litore in- 
veniuntur jure naturali statim inventoris hunt. 

II. Usucapio. 

By usucapio, or prescription, we mean the acquisition of owner- 
ship by continuous possession. 

Usucapio constitutes one of those limitations which ownership is 
compelled to impose on itself in the interests of its own safety. 

All security would cease, if a right of ownership could be asserted, 
without any limitation, for all time to come. There must be some 
moment at which the previous owner ceases to be owner, as against 
the present bona fide holder, and at which the bona fide holder 
becomes legally as well as practically the owner. According to 
Roman law this moment is determined by the rules of usucapio. 

There is yet another element to be considered. An owner who is 
forced to assert his title as against a third party by an action at law, 
will be called on to prove his ownership. He himself may have 



THE LAW OF THINGS 


337 


acquired his property by traditio from the person previously in pos- § 84 . 
session. That, however, is not sufficient to prove that he is owner. 

For traditio is a derivative mode of acquisition, and his predecessor, 
or 1 auctor,’ could only make him owner, if he (the auctor) was owner 
himself. The plaintiff would accordingly be obliged to prove the 
title of his predecessor as well. But the title of the latter may 
also be merely derivative ; he may also have acquired his property 
(say, a house) by sale and traditio. This would carry us back to the 
predecessor’s predecessor, and so forth— a process which might be 
continued ad infinitum . It is therefore simply impossible to prove 

a right of ownership on the strength of a derivative title alone. 
Hence the necessity for supplementing the derivative title by an 
original one. This original title is usucapio. There is no need for 
me to trace back the titles of all my predecessors. It is enough if I 
can prove that I acquired the thing bona fide, that I possessed it for 
a certain period, and that consequently I should, in any case, have 
acquired it by usucapio, even supposing the traditio itself had not 
been sufficient to make me owner. The purpose of the rules 
concerning usucapio is to make derivative titles (such as traditio)* 
indefeasible after a certain time, and to render them independent 
of all previous titles. 

Thus the necessity for a title by prescription, the necessity, in 
other words, for providing that, in certain circumstances, possession, 
even though in itself unauthorized, shall, after the lapse of a 
particular time, ripen into ownership, arises from the fact that, but 
for such a title, rights of ownership would neither be safe nor capable 
of proof. 

Early Roman law had not failed to observe this fact, and 
accordingly it recognized a mode of acquiring ownership by means 
of a possession — a possession animo domini, or 1 usus ’ — continued, 
in the case of immovables, over a period of two years and, in the 
case of all other things (ceterae res), over a period of one year. This 
usucapio of the Twelve Tables, however, being an institution of the 
jus civile, was confined to Roman citizens, and was moreover 
objectively applicable to such things only as admitted of quiritary 
ownership. Thus all provincial soil was excluded from the operation 

SOHIf : LEDLIE Z 



33 8 


THE INSTITUTES 


§ 64 . of the civil usucapio, for according to Roman law the fundus 
provincialis could never be the object of private ownership (dominium 
ex jure Quiritium), but could only be owned by the populus 
Romanus. In reality, however, land could, of course, be dealt with 
in the provinces by sales and purchases, by inheritances and legacies, 
in a manner and to an extent which virtually made houses, gardens, 
farms, &c., the objects of private ownership. But the titles, such 
as they were, received no legal protection from the Roman jus civile. 
The provincial governors (praesides), however, introduced, by means 
of their edict, a form of legal protection called c praescriptio longi 
temporis.’ If a person, having come into possession of land on 
some lawful ground (justo titulo) and in good faith (bona fide), and 
having continued in the possession of such land for ‘a long time, 
were sued by the person claiming to be owner of the land, he (the 
defendant) had a good defence to the action, and was protected by 
what was called a 1 praescriptio,’ i. e. by a reservation made in his 
favour, differing in point of form from an cxceptio by being placed at 
the head of the formula. A ‘ long time ’ was declared to mean ten 
„years ‘ inter praesentes ’ (i. e. if both parties were domiciled in the 
same province) and twenty years ‘inter absentes ’ (i.e. if they were 
domiciled in different provinces). Subsequently he was allowed 
to bring a real action (in rem actio) against any third party, when the 
same conditions were forthcoming. 

Justinian fused the usucapio of the civil law and the longi 
temporis possessio of the magisterial law into a single system. 
Longi temporis possessio was adopted as the period of prescription 
for land, whether the land were a fundus Italicus or a fundus 
provincialis being now immaterial. In addition to this he retained 
the usucapio of movables, extending the term of prescription, 
however, from one year (as it was in the old law) to three years. 
In Justinian’s law, therefore, ownership in land is acquired by 
usucapio in ten years inter praesentes, and in twenty years inter 
absentes; ownership in movables is acquired in three years. It is 
not necessary, for purposes of usucapio, that I should have been in 
actual possession myself during the whole period ; for in calculating 
my term of possession I am allowed to reckon the possession of my 



THE LAW OF THINGS 


339 


redecessor from whom I acquired the property justo titulo. This § 04 . 
; what is called * accessio possession^.’ In the case of a pledge, the 
ledgor is even entitled to the benefit of his pledgee’s ‘ derivative ’ 
,ossession ; that is to say, his usucapio of the thing pledged continues 
) run, notwithstanding the fact that his possession has ceased 
Itogether (infra, p. 352, n. 2). In addition to the requirements as to 
ength of possession, it is necessary that the possession should have* 
originated in a lawful ground, a so-called ‘justus titulus’ (such 
s traditio or legacy), and that there should be what is called 
bona Tides,’ i.e. that there should be good faith on my part, that 
should, in other words, be convinced of the legality of my 
possession 1 . Res extra commercium /supra, p. 320) are of course 
ncapable of usucapio, because they cannot be objects of ownership 
t all. There are other things— the so-called 1 res inhabiles ’ — which, 
hough in commercio, were nevertheless withdrawn from usucapio 
)y positive enactment. Thus the Twelve Tables and the lex Atinia 
‘xenipted res furtivae, the Lex Julia et Plautia res vi possessae. 
Connected with these exemptions is the rule of what is called 
extraordinary usucapio or prescription (‘longissimi temporis prae- 
;criptio ’) which was introduced by J ustinian. According to this rule, 

1 The jurists had already required bona on usucapio by the Twelve Tables them- 
ides in the usucapio of the early law. selves was that the thing should not 
hit there was also a usucapio without have been stolen. — The usurcceptio ex 
jona tides, especially the so-called ‘usu- fitlucia, like the usucapio pro heredc, 

:apio pro heredc ’ (§ no) and the ‘usu- was completed in one year even in the 

cceptio ex liducia.’ The latter occurred case of land. The Miducia ’ (i.e. the 
■vlicre a debtor, after inancipating a thing mancipated fiduciae causa) was, 
liiiig fiduciae causa (§ 72 , 1. 1) to his like a res hereditaria, counted among 
creditor, retained, or recovered, posses- the ‘cetcrac res’ for which the Twelve 

don of it free of defect, i.e. without hire Tables fixed a usucapio of one year. — 

:>r precarium. The debtor could, in There are cases in which usucapio origin- 
'iich a case, recover ownership in the ates in what is called a ‘titulus putativus,’ 

tiling by usucapio even without bona i. e. a merely supposititious title which is 

tales. If he had paid his debt, he could really no title at all. In such cases the 

iccover ownership in spite even of hire usucapio is based, as a matter of fact, on 

or precarium, because, in that case, the bona tides alone. Usucapio of this kind 
^editor’s ownership was merely formal occurs, when the facts are such as to jus- 

(v. p. 65, n. 13) and the debtor was, tor tify the belief in the existence of a title, 

all practical purposes, already the owner. For example : On my birthday a cask of 
Since the requirement of bona tides was wine is sent to inc under circumstances 
based, not on express statute, but merely which make it reasonable to suppose 

on the ‘ interpretatio/ it was within the that it came as a present from my friend 

power of this same interpretatio to fix X. In reality, it was only delivered at 

the limits of the principle it had estab- my house bv mistake. In such a case 

lished. . The only requirement imposed usucapio would be possible. 

Z % 



340 


THE INSTITUTES 


§ 04 . if a thing is a res inhabilis (i. e. is withdrawn from usucapio by 
positive enactment), or if the possessor either has no title at all, or 
(though he has a title) is perhaps no longer in a position to prove 
it— in such cases ownership can nevertheless be acquired by con- 
tinuous possession extending over thirty or forty years, provided 
only that such possession was acquired bona fide. Assuming, then, 
that there is bona fides, it is sufficient for the purposes of this 
usucapio, if the conditions required for the limitation of an action 
(supra, p. 299) are satisfied. If a person, having acquired bona fide 
possession of a thing, remains in possession so long that an action 
claiming ownership in the thing is, as against him, barred by limitation, 
he not only has the benefit of the plea of limitation, but is positively 
entitled to be regarded as owner, and is consequently entitled, if he 
loses possession of the thing, to enforce his ownership by action 
against every other person. A thief or a wrongful ejector is there- 
fore absolutely precluded from acquiring property himself even by 
longissimi temporis praescriptio, because he is ‘in mala fide/ but 
a third party who acquires the property in good faith from the one 
or the other is under no such disqualification. 

In classical Roman law usucapio performed a twofold function. 
In the first place, it served the purpose of transforming bonitary into 
quiritary ownership, in other words, of perfecting a legal title in 
cases where a thing was acquired from its owner. For the right of 
a person in a res mancipi which had been informally conveyed to 
him, only passed into quiritary ownership, when supplemented by a 
usucapio extending over one or two years. In the second place, 
usucapio was used for the purpose of protecting the title of a person 
who had acquired a thing bona fide from one who was not the 
owner. For example : A’s heir sells and delivers to B a thing which 
he has found among the property left by A and which he erroneously 
supposes to have belonged to A. The necessity for usucapio arose, 
in the first case, from a defect in the form of the transfer; in the 
second case, from a defect in the right of the auctor. In Justinian’s 
law the antithesis between modes of acquisition which arc free from 
formal elements (the modes of the jus gentium), and modes of 
acquisition which require formalities (the modes of the jus civile), 



THE LAW OF THINGS 


341 


has disappeared. Every mode of acquisition confers full ownership, § 64 . 
provided always that, in the case of derivative titles, the auctor was 
really owner/ Thus usucapio ceases to have any application where 
a thing is acquired from its owner, and only the second function of 
usucapio remains : the function, namely, of making a person, after 
a certain time, owner of a thing he had acquired from one who was 
not its owner. 

pr. I. de usuc. (2, 6 ) : Jure civili constitutum fuerat ut, qui bona 
fide ab eo qui dominus non crat, cum crediderit eum domi- 
num esse, rem cmerit, vel ex donatione aliave qua justa causa 
acceperit, is earn rem, si mobilis erat, anno ubique, si immo- 
bilis, biennio tantum in Italico solo 11 su capiat, ne rerum 
dominia in incerto essent. Et cum hoc placitum erat, putanti- 
bus antiquioribus dominis sufficere ad inquirendas res suas 
praefata tempora, nobis melior sententia resedit, ne domini 
maturius suis rebus defraudentur neque certo loco beneficium 
hoc concludatur. Et ideo constitutionem super hoc pro- 
mulgavimus qua cautum est ut res quidem mobiles per 
triennium usucapiantur, immobiles vero per longi temporis 
possessionem, id est inter praesentes decennio, inter absentes 
viginti annis usucapiantur : et his modis non solum in Italia, 
sed in omni terra quae nostro imperio gubernatur dominium 
rcrum, justa causa possessionis praecedente, adquiratur. 

§ 1 eod. : Sed aliquando etiam si maxime quis bona fide rem 
possederit, non tamen illi usucapio ullo tempore procedit: 
veluti si quis liberum hominem vel rem sacram vel religiosam 
vel servum fugitivum possideat. 

§ 2 eod. : Eurtivae quoque res et quae vi possessae sunt, nec si 
praedicto longo tempore bona fide possessae fuerint, usucapi 
possunt: nam furtivarum rerum lex duodecim tabularum et 
lex Atinia inhibct usucapionem ; vi possessarum lex Julia et 
Plautia. 

III. Accession. 

1 Accession ’ is the name given to a thing which, having previously 
existed as an independent thing, has passed into an integral part of 
another thing, e.g. a plant which I plant in my land. A thing 
which becomes an accession ceases to have an independent exist* 



342 


THE INSTITUTES 


§ 04 . ence. But we have seen that there can only be ownership in 
independent things, not in parts of things (supra, p. 319). As soon, 
therefore, as a thing becomes an accession, all former rights of 
ownership in it are destroyed, because its existence as an inde 
pendent thing is destroyed. If I am the owner of the principal thing 
(i.e. the thing in which the other is merged), I also become, beyond 
doubt, the owner of the accession (e.g. the plant), even though it 
(the accession) belonged to somebody else before. For the accession, 
by becoming an indistinguishable ingredient of my thing, passes, by 
the necessary operation of law, under my right of ownership in 
the thing, without prejudice, however, to the right of the previous 
owner to recover compensation from me. It is in this sense that 
accession is a mode of acquiring ownership, and it is an original 
mode, because it is a matter of indifference who the owner was 
before the union took place. 

The following are examples of accession : * implantatio * ; ‘ inaediil 
catio,’ a term applied to the process by which a house, as a whole, 
becomes an accession of the land on which it stands ; ‘ alluvio,’ i. e. 
the accretion by which a public river, in an imperceptible manner, 
enlarges a plot of land; ‘avulsio,’ i.e. the accretion by which 
a public river enlarges a plot of land in a perceptible manner (vi/. 
by carrying away a large portion of the land higher up the river and 
adding it to mine \ as soon as this addition is firmly attached to 
land, it is an accession, and as such becomes my property) ; * alveus 
derelictus,’ i. e. the derelict bed of a public river which has changed 
its channel (the bed, which thus becomes free, follows the ownership 
of the riparian owners on each side as an accession, the middle of the 
bed forming the boundary) ; ‘ insula nata,’ a term applied when part 
of the bed of a public river becomes free, the rule in such a case- 
being the same as with an alveus derelictus. 

§ 20 I. de rer. div. (2, 1) : Praeterea quod per alluvioncm agro 
tuo flumen adjecit, jure gentium tibi adquiritur. Est an ten 1 
alluvio incrementum latcns. Per alluvioncm autem id videtur 
adjici quod ita paulatim adjicitur, ut intcllegerc non possis 
quantum quoquo momento temporis adjiciatur. § 21 : Quod 
si vis fluminis partem aliquam ex tuo praedio detraxcrit ct 



THE LAW OF THINGS 


343 


vicini praedio appulerit, palam est earn tuam permanere. § 84. 
Plane si longiore tempore fundo vicini haeserit, arboresque 
quas secum traxerit in eum fundum radices egerint, ex eo 
tempore videntur vicini fundo adquisitae esse. 

§ 22 eod. : Insula quae in mari nata est (quod raro accidit) 
occupantis fit, nullius enim esse creditur ; at in flumine nata 
(quod frequenter accidit) si quidem mediam partem fluminis 
teneat, communis est eorum qui ab utraque parte fluminis . 
prope ripam praedia possident, pro modo latitudinis cujusque 
fundi quae latitudo prope ripam sit. Quod si alteri parti 
proximior sit, eorum est tantum qui ab ea parte prope ripam 
praedia possident. 

IV. Specification. 

‘Specification’ is the working up of a thing into a new product. 

The baker, the carpenter, the wine-presser, the manufacturer, &c., 
convert the raw material into a product of labour which invariably 
possesses a higher economic value than the raw material. The 
labour results in the creation of a new form. This economic power 
of production is held to confer on the person who supplies the 
labour a right to claim the product as his own. That is to say, the 
manufacturer (specificans) who creates the new product — whether by 
his own labour, or, if he is an employer of fabour, by that of others 
-becomes owner of the thing he has manufactured, his title being 
independent of that of any previous owner, and for that reason 
original, provided that he was acting bona fide and that (in accord- 
ance with a positive enactment of Justinian) the thing can no longer 
be restored to its previous shape. These limitations do not apply, if 
the specificans was owner of part of the materials. 

§ 25 I. de rer. div. (2, 1) : Cum ex aliena materia species aliqua 
facta sit ab aliquo, quaeri solet, quis eorum naturali ratione 
dominus sit, utrum is qui fecerit an ille potius qui materiae 
dominus fuerit : ut ecce, si quis ex alienis uvis, aut olivis, aut 
spicis vinum, aut oleum, aut frumentum fecerit aut ex alieno 
auro vel argento vel aere vas aliquod fecerit. . . . Et post 
multas Sabinianorum et Proculianorum ambiguitates placuit 
media scntentia existimantium, si ea species ad materiam 



344 


THE INSTITUTES 


64. reduci possit, eum videri dominum esse qui materiae dominus 
fuerit; si non possit reduci, eum potius intellegi dominum 
qui fecerit. Ut ecce vas conflatum potest ad rudem massam 
aeris vel argenti vcl auri reduci, vinum autem aut oleum 
aut frumentum ad uvas et olivas et spicas reverti non 
potest. . . . Quodsi partim ex sua materia, partim ex aliena 
speciem aliquam fecerit quisque, veluti ex suo vino et alicno 
melle mulsum, aut ex suis et alienis medicamentis emplastrum 
aut collyrium, aut ex sua et aliena lana vestimentum fecerit, 
dubitandum non est hoc casu eum esse dominum qui fecerit, 
cum non solum operam suam dedit, sed et partem ejusdem 
materiae praestavit. 

V. Fructus. 

‘ Fructus 1 are the products which give to the thing that produces 
them its special value, e. g. the milk of a cow, the offspring of 
animals, the produce of fields and gardens. In certain cases a 
person other than the owner of the principal thing becomes owner 
of the fruits, for example, a tenant, a usufructuary, also a bonae fidei 
possessor. A person who possesses another man’s property in good 
faith acquires ownership in the fruits, though he is only bonae fidei 
possessor of the property itself; and if subsequently the owner 
brings an action against him, he (the bonae fidei possessor) is not 
required to restore the fruits he has consumed in good faith, but is 
only bound to restore the principal thing, together with such fruits 
as were extant at the moment of the action being brought. But as 
soon as the action has commenced, he must know that, possibly, he 
is in possession of another man’s property. From the moment of 
litis contestatio therefore, he is bound to apply the utmost care 
(omnis diligentia) in the cultivation of the fruits. If the plaintiff 
succeeds in proving his ownership, he can claim the restoration of 
all the fruits gathered during the action (fructus perccpti), and can 
also claim damages for such fruits as the defendant could have 
gathered by the exercise of due care (fructus percipiendi). 



THE LAW OF THINGS 


345 


NOTE. 

The Different Unions of Things . 

The union of two or more things into one— as when I mix the § 64. 
contents of two bottles of wine — is one of those processes which, by 
the necessary operation of law, effect a change of ownership. The 
question arises, who shall be considered owner of the new thing? 
Different cases are determined by different rules of law. Some of these 
cases have already been discussed. The purpose of this note is to bring 
out clearly the broad principle which governs them all. 

The following rules supply an answer to the question concerning the 
legal effect of a union of things as such, quite apart from the intention 
of the owners. 

The union of several things into one is either (i) a union in the 
narrower sense of the term, or (2) an accession, or (3) a specification. 

A * union,* in the narrower sense, occurs when the new thing is the 
same in kind as both the pre-existing things, e. g. when water is mixed 
with water, wine with wine, or when silver is fused with silver or gold 
with gold. Both the former things continue, in this sense, to exist in 
the new thing. The rule applying to such cases is this : if the several 
things belonged to different owners, the effect of the union is to make 
the former owners joint owners of the new thing in the proportion in 
which their things contributed to the production of the new thing. 

If, however, the new thing is identical in kind with only one of the 
pre-existing things, we have a case of ‘ accession.* This happens, for 
example, when an arm is joined to a statue by ferruminatio (cp. 
Dernburg, Pandektcn, § 209, note 6) in such a way as to make the whole 
thing one— the new thing is a statue, which the arm was not— or again, 
when a new' leg is put on a table, or when a rose is planted in my land. 

In the latter case, as soon as the rose has struck root, only one thing 
exists, viz. the land ; the rose has ceased to exist as an independent 
thing. In all these instances one of the things maintains its identity in 
spite of the union. It determines the character of the new thing. It 
has, so to speak, absorbed, or consumed, the other. Hence it is called 
the principal thing in contradistinction to the accessory, i.e. the thing (in 
the above cases the arm, the rose) which continues to exist only as a 
modification or enlargement of the other by which it is absorbed. The 
rule of law here is that the owner of the principal thing, by which the 
accessory has been absorbed, becomes the owmer of the accessory. The 
former owner of the accessory is limited to a claim for compensation. 

The owner of the principal thing thus becomes the sole owner of the 
new thing. 



34 « 


THE INSTITUTES 


§ 04 . Specification, lastly, may very well occur without any union at all (as 
when a dress is made out of a piece of cloth), but it may frequently be 
the result of a union of several things, as in the case of a picture. 
A union amounts to a specification, if the new thing is different in kind 
from each of the former things ; in other words if, economically speaking, 
none of the former things continue to exist in the new thing. In such 
cases the rule already set forth applies : the ownership in the materials 
is destroyed and the owners of the former things are, all of them, limited 
to a claim for compensation. The new thing becomes the property 
of the specificans, provided always that the conditions for acquiring 
ownership as stated above (under IV) are satisfied. 

If we keep the principle here laid down steadily in view, we shall find 
no difficulty in distinguishing between cases of specification and accession. 
If I paint a picture, using, for the purpose, in all good faith, another man’s 
colours and canvas, whose is the picture ? That will depend on circum- 
stances. If the result of the painting is merely painted canvas, we have an 
instance of accession, because one of the things outlasts the union. This 
would happen, e.g., in the case of a painted drop-curtain or of a so-called 
painting which is really nothing more than a daub. The owner of the 
canvas (tabula) therefore becomes the owner of the paint. But if the 
result of the painting is a picture, we have a case of specification, 
because the product is a third thing which is neither paint nor canvas, 
the material being merged in the work of art. Fresco painting is 
necessarily a case of accession and not of specification, because the 
building continues as before and the immovable property outlasts the 
union. The same distinction may be applied to writing. If the result 
of the writing is merely paper that is written on, we have a case of 
accession; if it is a piece of writing (e.g. a deed), we have a case of 
specification. 

Even the Roman jurists show some uncertainty in deciding the 
several cases (e.g. in regard to pictura and scriptura, cp. 1. 23 § 3 D. 6, 1, 
where the question is argued entirely as a case of accession). Never- 
theless the fundamental idea is clear. The question will always be 
whether both the former things, or one of them, or neither of them, can 
be regarded as, economically speaking, continuing to exist. The owner- 
ship of the thing follows the changes in its economic condition. 

§ 65 . The Protection of Oivnersliip . 

§05. There are two actions by which an owner may protect his owner 
ship : the rei vindicatio and the actio negatoria. 

I. Rei Vindicatio. 

Rei vindicatio is the action which an owner employs whenever 



THE LAW OF THINGS 


347 


a third person is in possession of his property : ubi rem meam § 85. 
invenio, ibi vindico. It is therefore the action by which an owner 
who is not in possession sues a non-owner who is in possession. 

If the defendant has some right in respect of the thing which entitles 
him to withhold it from the owner (e. g. a right of pledge, a usufruct, 
a right as hirer), such right is protected by means of an exceptio. 

In the absence of any such right however, he must restore to the 
successful plaintiff (the owner) the thing itself with all its accessions 
(cum omni causa) *. 

II. Actio Negatoria. 

The actio negatoria is the action by which an owner protects 
himself against a mere disturbance of his possession. It is therefore, 
as a rule, the action by which an owner who is in possession secures 
the integrity of his possession. The defendant is the person who 
has disturbed the possession of the owner. He is compelled to 
discontinue the disturbance and to pay the owner full compensa- 
tion for damage. 


§ 66. The Protection of Usitcapio Possession. 

If a person is in usucapio possession of a thing belonging to § 06. 
another, and continues in such possession till the usucapio is 
complete, he acquires, of course, together with the ownership of 
the thing, the remedies incident to ownership, viz. the rei vindicatio 
and the actio negatoria. In certain cases, however, the praetor 
deemed it desirable to protect a usucapions even before his usucapio 
was complete. It was with a view to this purpose that he introduced 
the actio Publiciana in rem. The actio Publiciana in rem was an 
action for the protection of ownership which was granted by the 
praetor on a fiction that the plaintiff’s period of usucapio was already 
complete — granted, in other words, to a possessor who needed 


1 Hence the above-mentioned liability 
of the bonae fidei possessor to restore 
(or pay compensation for) the fruits as 
well as the principal thing (supra, p. 
344). The liability of the malae fidei 
possessor is still more rigorous ; for since 


he knows he is in possession of another 
man’s property, he is responsible for 
fructus peroipiendi during the whole 
period of his possession, including there- 
fore the time prior to the litis contestatio. 
Cp. supra, p. 288, n. 5. 



348 


THE INSTITUTES 


§ 66. nothing but the lapse of a certain time in order to become full 
owner (supra, p. 274). The practical result accordingly was that 
the usucapiens obtained a rei vindicatio (in the form, namely, of an 
actio Publiciana) even before he had acquired full ownership. In 
the same way he was allowed to avail himself of the actio negatoria. 
But inasmuch as the plaintiff, in such cases, was not yet the real 
owner, the actio Publiciana was weaker in two respects than the 
action of a genuine owner. For, in the first place, if at the time of 
the action the true owner was either in possession himself, or was 
disturbing the possession of the usucapiens, he could meet the actio 
Publiciana with an exceptio dominii and could not therefore be 
condemned. In the second place, if the defendant had usucapio 
possession of the same thing which the plaintiff formerly held in 
usucapio possession, but subsequently lost — in such a case the 
plaintiff could only succeed if both he and the defendant derived 
their title from the same auctor, and his (the plaintiff’s) title was 
prior to that of the defendant. If, on the other hand, the defendant’s 
title was derived from &. different auctor, or if, though derived from 
the same auctor, it was prior to that of the plaintiff, the defendant 
was likewise protected by an exceptio and was accordingly entitled 
to judgment. 

In other respects, however, the result of the actio Publiciana was 
the same as that of a genuine action of ownership. Thus where 
possession was withheld, the actio Publiciana in rem took the place 
of a rei vindicatio ; where possession was merely disturbed, it served 
the purposes of an actio negatoria. When we speak of the actio 
Publiciana, simply, we usually think of it as used for the former 
purpose, in lieu, namely, of a rei vindicatio ; when used for purposes 
of an actio negatoria, it is known as the * actio Publiciana negatoria.’ 

The object of the actio Publiciana was not to enable a usucapio 
possessor to deprive the owner of that which belonged to him— it 
was for this very reason that the owner had the exceptio dominii— 
but rather to protect a. usucapio possessor against any person whose 
title was weaker than his own. The protection afforded by the 
actio Publiciana was only relative. But the actio could also be 
employed for yet another purpose. The owner himself might resort 



THE LAW OF THINGS 


349 


to it, if he had occasion to take legal proceedings on account of the § 60 . 
withholding or disturbing of possession. And for this reason : he 
might urge that, quite apart from the question of his ownership, 
the requirements of usucapio possession were certainly satisfied in 
his case. Like a usucapio possessor he had purchased the* thing, or 
acquired it on some other lawful ground. His possession was like- 
wise accompanied by bona fides. That was quite sufficient to 
entitle him to the actio Publiciana, and to enable him to defeat an 
adversary who had no right in the thing. There was no need for 
him to proceed by a formal rei vindicatio and to prove that he had 
already acquired full ownership. 

This last remark leads us to what was really the chief practical 
function of the actio Publiciana in the common German Pandect 
law. In actual practice — in the vast majority of cases, that is— the 
actio Publiciana was brought by the owner , not however in his 
capacity of owner, but in his capacity of usucapio possessor. The 
practical object of the legal rules concerning the protection of usu- 
capio possession was to supply ownership with a second group of 
remedies available under easier conditions than those required in the 
formal and genuine actions of ownership. That such was the 
ultimate purpose of the actio Publiciana is clearly shown in Roman 
law itself. The action was open not only to a usucapio possessor 
who had acquired a thing a non domino, but also to a bonitary 
owner who had acquired a thing (a res mancipi, namely, by simple 
traditio) a domino — a bonitary owner being also a usucapio possessor 
in regard to quiritary ownership (cp. supra, p. 340). In classical 
Roman law therefore the actio Publiciana was employed, even 
formally, as an action of ownership, for the purpose, namely, of 
protecting bonitary ownership. 

Gaj. Inst. IV § 36 : Datur autem haec actio (Publiciana) ei qui 
ex justa causa traditam sibi rem nondum usucepit eamque 
amissa possessione petit. Nam quia non potest earn ex jure 
quiritium suam esse intendere, fingitur rem usucepisse, et 
ita, quasi ex jure Quiritium dominus factus esset, intendit 
veluti hoc modo: judex esto. si quem hominem A. 
Agerius emit, et is ei traditus est, anno possedisset, 



35° 


THE INSTITUTES 


66. TUM SI EUM HOMINEM DE QUO AGITUR EX JURE QUIRITIUM 
ejus esse oporteret, et reliqua. 

L. 17 D. de Publ. act. ( 6 , 2) (Neratius) : Publiciana actio non 
ideo comparata est ut res domino auferatur (ejusque rei 
argumentum est primo aequitas, deinde exceptio si ea res 
possessoris non sit), sed ut is qui bona fide emit posses- 
sionemque ejus ex ea causa nactus est potius rem habeat. 

§ 67 . The Protection of Juristic Possession . 

Possession and Ownership. 

67. From ownership we must distinguish possession. Ownership is 
the legal, possession, as such, merely the physical, control over a 
thing. To possess is to exercise ownership, and, generally speaking, 
the law intends the owner to be at the same time the possessor. 
Hence in ordinary language ownership and possession are often 
used as convertible terms. Nevertheless the conceptions of owner 
ship and possession ought to be clearly distinguished. I may be 
owner without having possession and, conversely, I may have posses- 
sion— as in the case of theft, for example — without being owner. 
The conception of possession is opposed to that of ownership in 
the same sense in which the conception of factum is opposed to 
that of jus. 

Now it is obvious that there may be a great many different kinds 
of possession, or actual control over things. 

In the first place, I may hold a thing in my hands, and may 
perhaps hold it in my own interests (e. g. a book which I have 
borrowed), but may nevertheless acknowledge another person (in 
this case the lender of the book) to be the real dominus of the 
thing, so that, in taking care of it, or in otherwise dealing with it, 
it is my intention to preserve it, not only for myself, but primarily for 
the other person. In this instance I have merely the corpus, i.c. 
the external element, of possession. I am without the animus of 
possession, i.e. the will coinciding with the physical relationship. 
Though I hold the thing in my hands, I do not wish to hold it for 
myself alone, but, in the last resort, for some one else. The holder 



THE LAW OF THINGS 


35* 


in this case lacks the animus rem sibi habendi. What he has is § 67. 
rather the animus rem alteri habendi. Such a relationship is described 
as mere ‘detention. 1 A person who has detention (e.g. a borrower, 
hirer, lessee, depositary, mandatary) possesses the thing in subordina- 
tion to another person. In possessing, he represents another person. 

This other person (viz. the lender, lessor, &c.) possesses through the 
person who has detention. 

In the second place, however, I may hold a thing in my hands 
and may intend, at the same time, to hold it for myself alone, either 
because, say, I am the owner, or at least believe myself to be the 
owner, or, perhaps, in spite of my knowledge that I am not the 
owner, it being my decided intention to keep the thing for myself 
alone, notwithstanding my knowledge of its ownership. An example 
of the latter alternative occurs in the case of a thief (whose actual 
relation to the thing he holds is indistinguishable from that of an 
owner), and also in the case of a pledgee, whose position is like that of 
a thief in so far as it is his intention, qua pledgee, to shut out every- 
body, including the owner, from the possession of the thing 1 . In all 
such cases I have not merely the corpus, but also the animus of 
possession, i. e. I have the will coinciding with the physical relation- 
ship. I not only hold the thing in my hands, but intend to hold it 
for myself alone. This is the animus rem sibi habendi or, as it is 
called by modern writers, the ‘ animus domini.’ It is my intention 
to exclude every one else from the thing. So far as the exclusion of 
others is concerned, I hold the thing in just the same way as if 1 

1 According to Roman law the rela- — to be acting, in each case, on a per- 

tion of a pledgee to the tiling pledged mission granted him by the lessor; that 

R different from that of 'sav') a hirer or is to say, he may be said, in each case, 

commodatarius to the thing hired or to be realizing the lessors right to con- 

borrowed. The hirer does not intend trol the thing. The hirer only excludes 

to exclude his lessor from the thing ; on strangers from the thing, but in so doing, 

the contrary, he intends, in dealing with he is acting— legally speaking— in the 

the thing, to act as the intermediary of service of, or as the instrument of, the 

the lessor, so that, legally speaking, the possession of the lessor. To eject the 

latter possesses through him. For the hirer is, in the eye of the law, to eject 

right which the hirer claims to exercise the lessor. The hirer has not the will 

is not a real light, but only an ohliga- to possess (the animus domini), the 

toiv right— the right, namely, to rcquiic pledgee has. The pledgee does not in- 

his lessor to allow him to use the thing tend to serve the possession of the 

(cp. p. 326). Whenever the hirer makes pledgor; on the contrary, he intends to 

use of the thing, he may be said — in law exclude it. 



352 THE INSTITUTES 

§ 67. were the actual owner (i. e. as if I had legally sole control over it 2 ), 
whether I am really the owner or not, and whether again, in the latter 
case, I know I am not the owner (as in the case of a thief or pledgee) 
or believe myself to be the owner (as in the case of a bonae fidei 
possessor or usucapio possessor). 

This second kind of possession is technically known as ‘juristic 
possession/ Two elements therefore go to make up juristic posses- 
sion according to Roman law : (i) corpus (detention), the physical 
control over a thing, whether I have the corpus myself, or whether 
I have it through the medium of a person who has detention (e. g. a 
borrower, lessee, &c.) ; (2) the animus (scil. domini), or the intention 
to hold the thing for oneself alone ; i. e. the intention to exclude 
every one else from the possession of the thing. If A hands over 
a thing to B for purposes of mere detention (as in a loan, a lease, 
a mandatum, &c.), in order, namely, that B may possess it not only 
for himself, but also for A, the direct holder of the corpus (the 


a According to the prevalent theory, 
as first expounded by Savigny, * animus 
domini* means the will to possess a 
thing as one’s own. This theory fails 
to account for the juristic possession of 
a pledgee who only intends to hold the 
thing pledged as a pledge . The posses- 
sion of a pledgee is accordingly treated 
as an anomalous form of juristic posses- 
sion and is described as ‘derivative 
juristic possession.* This is not, in my 
opinion, the correct view of the case. 
It is true that the pledgee only intends 
to hold the thing as a pledge, but as 
far as the possession is concerned, his 
intention, so far from differing from that 
of an owner, is identical with it. The 
essence of possession as such is not the 
enjoyment of a thing, but merely the 
exclusion of others from the thing. Even 
a miser possesses his hoard. As far as 
the possession of a thing goes, any one 
who intends to exclude everybody else 
has the ‘ animus domini/ the ‘ will of 
an owner,’ just as much as the owner 
himself. The distinction as to whether 
I hold a thing as my own or as a pledge 
is only material in reference to the will 
to enjoy the thing, not in reference to 
the will to possess it. The will to enjoy 


a thing is not sufficient in Roman law 
to constitute juristic possession, for a 
hirer and a lessee, though they have the 
will to enjoy, have not, according to 
Roman law, the animus domini, the will 
to possess (v. note 1). The position of 
a person holding prccario (infra, note 5) 
and a ‘sequester’ (i.c. a person who 
takes charge of some object in dispute 
as stakeholder till the dispute is de- 
cided) is the same as that of a pledgee, 
and the prevalent doctrine accordingly 
classes their possession as ‘derivative 
juristic possession/ --The same funda- 
mental ideas on possession as are em- 
bodied in the text will be found set forth 
by W. Stintzing (quite independently of 
the present author) in his treatises, Der 
Besitz I, 1, 1 (1889), p. 121 (and see 
ibid. p. 8 ff., as to the position of a 
hirer, lessee, &c.), Zur Besitzlehre 
(1892), p. 5 ff., and in Der Besitz I, 1, 
11 (1895), p. 8 ff. Stintzing, however, 
holds that even the objective element of 
possession consists, not in an actual 
control over the thing, but in an actual 
control over other persons, viz. in the 
actual— though not necessarily physical 
— exclusion of any interference on the 
part of other persons. 



THE LAW OF THINGS 


353 - 


borrower, &c.) has only detention, whereas the indirect holder (the § 07. 
lender, lessor, mandans, &c.) has juristic possession. 

Juristic possession— and it is to this fact that its name is due — 
gives rise to certain legal remedies whidi are' granted for the purpose 
of protecting it. These remedies are the so-called 1 possessory inter- 
dicts* of which, in Justinian’s law, there are the following: 

i. The Interdictum uti possidetis. 

The interdictum uti possidetis is an interdictum ‘ retinendae pos- 
session^,’ because it is designed to preserve, or * retain/ an existing 
juristic possession. It is employed in cases of a mere disturbance 
of possession, but only where the disturbance is of such a character 
as to interfere permanently with the possession. Thus it would be 
available if my neighbour were to erect buildings on his land inter- 
fering with my possession, but not if a person were merely to disturb 
me by tapping at my windows at night. In claiming an interdict, the 
juristic possessor claims, at the same time, a declaration recognizing 
his juristic possession, discontinuance of the disturbance, and damages 
or the disturbance which has already taken place. No one, however, 
s deemed a juristic possessor for purposes of this interdict, unless 
lis juristic possession was acquired nec vi nec clam nec precario ab 
idversario 3 . A person who has acquired juristic possession from 
tis adversary in the suit either vi (i. e. by force), or clam (i. e. clan- 


3 Before Justinian the interdictum uti 
possidetis only applied to immovables, 
novablcs being dealt with by another 
nterdictum retinendae possessionis, 
lamely the interdictum utrubi. In the 
:ase of the interdict uti possidetis (con- 
:erning immovables) the winner was 
the party who was in possession at the 
time (scil. of the granting of the inter- 
dict by the praetor), provided he had 
obtained his possession nec vi nec clam 
nec precario ab adversario. In the case 
of the inteidict utrubi (concerning 
movables) the winner was the party 
who had been in possession the greater 
portion of the year immediately pre- 
ceding (scil. the granting of the inter- 
act), provided he had obtained his 
possession nec vi nec clam nec precario 
*b adversario ; and in calculating the 
time he was allowed to reckon in the 


time during which his auctor had been 
in possession (‘ accessio possession^/ 
cp. p. 339). But the practice of the 
Eastern Empire extended the principles 
of Uti possidetis to Utrubi (utriusque 
interdicti potestas exaequata est), and 
this extension was confirmed by the 
Corpus juris of Justinian (§ 4 I. 4, 15 ; 
1 . 1 § 1 D. 43, 31). The interdict uti 
possidetis was thus, in substance, made 
applicable to movables as well, so that, 
in the case of movables and immov- 
ables alike, disputes concerning posses- 
sion were decided entirely by reference 
to the question as to who was in 
possession at the time of the suit, i. e. 
at the moment .of the litis contestatio 
(the granting of the interdict in the old 
way having fallen into disuse, p. 310). 
Cp. Fitting, ZS.f KG. t \ ol. xi. p. 441. 


SOIIM : LEI) LIB 



354 


THE INSTITUTES 


§ 67. destinely, anticipating the opposition of his adversary and secretly 
evading it), or precario (i. e. on terms of revocation at will, no binding 
transaction being concluded with the grantor), is not held to have 
juristic possession for purposes of the possessory suit, the juristic pos- 
session being deemed, on the contrary, to vest in the adversary from 
whom the thing was acquired vi, clam, or precario. To the latter 
therefore the possession of the thing must be delivered up. Thus if 
the plaintiff, being in possession, sues the person from whom he 
had acquired juristic possession vi, clam, or precario, by interdict 
uti possidetis for disturbance of possession, the result may be 
that he, the plaintiff J is condemned to deliver up possession to the 
defendant. It is in this sense that the interdict uti possidetis is 
described as an interdictum 1 duplex ’ — the command of the praetor 
being addressed to both parties — and that the action ex interdicto 
uti possidetis (formal interdicts having ceased to exist in Justinian’s 
time, p. 310) is reckoned among the ‘judicia duplicia,’ or ‘double- 
edged ’ actions, the peculiarity of which is that both parties sustain 
at the same time the role of plaintiff and defendant, so that not only 
the defendant, but also the plaintiff may be condemned \ 

2. The Interdictum unde vi and Interdictum de precario. 

The interdicta unde vi and de precario are both interdicta ‘ recu- 
perandae possession^/ They are employed for the purpose of 
recovering a juristic possession which has been lost. The interdict 
unde vi is used in cases of violent dispossession, in Cases, that is, of 
dispossession by physical force (‘ejectment’).. The interdict de 
precario is used where A seeks to recover from B the possession of 
a thing which he (A) had allowed B to use, without however intend- 
ing thereby to create any legal rights or liabilities as between himself 
and B, in other words, without concluding any juristic act with B *. 

* Partition suits (infra, § 83 v) are the intended to have any legally binding 
other judicia duplicia. force. Precarium always means per- 

9 This fact, viz. the absence of any missive possession till farther notice, 
agreement between the parties, consti- and nothing more — a possession, there- 
tutes the difference between precarium, fore, which is revocable at any moment; 
on the one hand, and the contracts of whereas, in the case of locatio condustio 
locatio conductio and commodatum, on and commodatum, the right to use the 

the other. Even if, in the case of thing can only be revoked after the 

precarium, certain terms are agreed on expiration of the period agreed upon, 

between the parties, such terms are not The precario dans does not intend to be 



THE LAW OF THINGS 


355 


The interdict unde vi is directed against the ejector as such, and § 87. 
takes no account of the question whether he (the ejector) is still in 
possession or not, whether he carried out the ejectment himself or 
through others, or lastly whether the plaintiff himself had acquired 
the thing from the ejector vi, clam, precario, or otherwise. Thus, 
whereas in the case of an interdictum uti possidetis the defendant 
can plead that the plaintiff acquired the thing from him vi, clam or 
precario (the so-called * exceptio vitiosae possessions ’) — the result 
being, as just explained, that the plaintiff himself may be condemned 
—in the case of the interdict unde vi such an exceptio vitiosae pos- 
sessions is inadmissible. In the same way the interdictum de pre- 
cario is directed against the precario habens as such, i. e. against the 
person who precario habet from the plaintiff or 1 dolo malo fecit, ut 
desineret habere/ The interdictum unde vi, however, applies only 
to immovables, the interdictum de precario also to movables. Both 
the interdictum unde vi and the interdictum uti possidetis are barred 
intra annum (utilem); post annum there is only an action for the 

legally bound in any way. That is why no legal relation such as would make 
he is at liberty to revoke at will and is his possession subordinate to the pre- 

never liable to pay damages to the cario dans in the sense in which the 

precario habens (except indeed in cases possession of the conductor is sub- 

of dolus), or to compensate the latter ordinate. The precario habens has 

for expenses incurred, not even for im- accordingly juristic possession (cp. note 

pensae necessariae, in respect of which 2). lie possesses — formally speaking — 

the precario habens had at most a jus on his own account, and as soon as the 

tollendi. The same principle applies thing itself has been handed over to him 

conversely to the precario habens : he — it is different where he only gets * in 

is not bound to show diligentia, and if possessione esse/ a mere licence * to be 

he has agreed to pay a rent (which was on the thing * — he excludes even the 

frequently the case in the classical times, owner (the precario dans) from the 

though it would seem that, originally, thing. The precario dans has not pos- 

precariumwas a gratuitous permission session of the thing granted precario. 

to use a thing), such rent was neverthe- Hut the juristic possession of the pre- 

less irrecoverable by action. Precarium cario habens has a * flaw/ a * vitium 

signifies a relation which is purely one possession^ * : as soon as the owner 

of fact, without any mutual concession revokes, the * precarious’ possession, 

of rights, and even the right of the having been obtained with a ‘flaw/ must 

precario dans to have the thing which be restored to him and he can sue for 

he gave precario restored to him, is that purpose by a possessory action, 

based, not on any ’promise, not (as in The possessory relation is imperfect: it 

the cases of locatio conductio and com- is ‘vitiated’ by the duty to restore. — The 

modatum) on an obligation, but solely Koman precarium originated perhaps 

on the fact that the other party precario in that permissive possession of land 

habet . The possession ot the precario which was granted by patrons to their 

habens is therefore formally independent, clients for the purpose of enabling the 

Between him and his grantor there exists latter to obtain a livelihood. 

Aa 2 



THE INSTITUTES 


35<S 

§ 07 , recovery of the amount by which the defendant has been enriched. 
The interdictum de precario, on the other hand, is only barred within 
the ordinary period of limitation, i. e. thirty or forty years, as the case 
may be. 

The above-mentioned possessory interdicts (retinendae and re- 
cuperandae possessionis) can be claimed by the juristic possessor 
as such, quite apart from the question, whether he really has any 
right in the thing or not. His possession entitles him to a legal 
remedy— and it is for this reason that interdicts are called 
‘possessory* remedies — quite irrespectively of his right. Nay, the 
question of right is positively excluded. It is no defence for the 
defendant to appeal to his right in the thing. 

Nevertheless in their practical result, these possessory remedies, 
while formally only protecting possession, uniformly serve the 
purpose of protecting ownership. In the great majority of cases it 
is the owner who, together with his ownership, has, or has had, the 
juristic possession. The owner, consequently, has, as a rule, the 
choice of the following remedies : 

(1) He may proceed by ‘petitory* action (i. e. on the ground of 
his right in the thing itself) and prove his title as owner (§ 65). 

(2) He may proceed by ‘ petitory * action— viz. by actio Publiciana 
— and content himself with proving his title as usucapio possessor ; 
that is to say, leaving his title as owner out of the question, he may 
contend that, in his case, the requirements of usucapio possession are 
fulfilled (§ 66). 

(3) He may proceed by a possessory remedy and confine himself 
to proving his juristic possession ; that is to say, leaving his title, not 
merely as owner, but also as usucapio possessor out of the question, 
he may simply contend that, in his case, the requirements of juristic 
possession (viz. actual control over the thing accompanied by the 
animus domini) are fulfilled and take effect \ 

Nothing proves more strikingly the vast economic importance of 
ownership than the abundance of legal remedies which were de- 
veloped for its protection. 

6 Cp. Jhering, Jahrbiichcr /. Dogmatik des heutigen tom . Rechts, vol. ix. 

p. 44 



THE LAW OF THINGS 


357 


L. 12 § i D. de adq. poss. (41, 2) (Ulpian.): Nihil commune § 07 . 
habet proprietas cum possessione. 

L. 1 § 2 D. uti possid. (43, 17) (Ulpian.): Separata esse debet 
possessio a proprietate ; fieri etenim potest ut alter possessor 
sit, dominus non sit, alter dominus quidem sit, possessor 
vero non sit; fieri potest ut et possessor idem et dominus 
sit. 

L. 3 § 1 1 ). de adq. poss. (41, 2) (Paulus): Et apiscimur 
possessionem corpore at animo, neque per se animo aut per 
se corpore. 


II. Jura in re aliena. 

§ 68. Jura in re aliena in general . 

The exigencies of human intercourse cannot be permanently § 08 . 
satisfied by ownership alone. It must be possible for a person to 
deal in a manner authorized by law with things which belong to 
others. 

The need we thus experience in the conduct of our affairs for 
supplementing our own property by the property of others, without 
being compelled to acquire ownership in the latter, may be satisfied, to 
some extent, by the aid of obligatory transactions concluded with the 
owner, such as agreements to let or to lease. But inasmuch as the 
rights acquired by transactions of that kind are merely obligatory 
rights (cp. § 73), they are necessarily only available against the person 
of the obligor. If, for example, a lessee is disturbed in the possession 
and enjoyment of his land by a person other than the lessor, his 
rights as lessee do not, in Roman law, entitle him to sue the dis- 
turber ; he must address himself first to the lessor, so that the latter 
may interfere to prevent the disturbance and, if necessary, take legal 
proceedings 

Thus the rights wc acquire in respect of the property of others by 
means of obligatory transactions are but incomplete, because their 
effect is merely personal. The need we are here discussing is there- 

1 The lessee, in Roman law, can only claim that the lessor should allow him to 
use the land (supra, pp. 326 and 351, n. 1). 



35® 


THE INSTITUTES 


§ 08 . fore not adequately met by transactions of this description. There 
must be rights in respect of the property of others which enjoy a more 
effectual protection. 

It was for the purpose of satisfying the need in question that the 
real rights in re aliena were developed. The rights they confer in 
respect of the thing are stronger, because they are absolute, i. e. they 
are rights which operate and are enforceable as against any third 
party (cp. p. 325). It is with these real rights in re aliena, which the 
Romans call ‘jura in re ’ simply, that we have to deal in the following 
sections. The common characteristic, legally speaking, of all these 
rights, and that which distinguishes them from ownership, is this, that 
the rights of control over things which they confer are limited in 
regard to their contents, although, like ownership, they are directly 
operative as against any third party who interferes with them. In 
other respects the several jura in re differ essentially from one another 
in regard to the nature and extent of the control which they confer. 

The jura in re developed in Roman law are comparatively few, to 
wit: (1) Servitudes; (2) Emphyteusis; (3) Superficies; (4) Pledge. 

§ 69. Servitudes . 

§ 69 . The object of Servitudes is to enable persons other than the 
owner of a thing to share in the benefits derivable from the use of 
that thing, while preserving the interests of the owner as fully as 
possible. The ownership is said to ‘ serve * (‘ servit ’), i. e. it is cur- 
tailed, it is not absolutely free, though, at the same time, its effect 
(economically speaking) is not done away with. On the contrary, as 
against the servitude, ownership is the dominant right. The old 
civil law of the Romans very characteristically, therefore, refused to 
tolerate and admit any jura in re side by side with ownership except 
servitudes. It insisted that, on principle, ownership should be free, 
and it consequently declined to acknowledge jura in re otherwise 
than in the restricted form of servitudes. All the other jura in re 
were developed at a later period, the right of pledge (§ 72) and 
superficies (§ 71) by the praetor, emphyteusis (§ 70) by the legislation 
of the later Empire. 



THE LAW OF THINGS 


359 


The restrictions imposed upon servitudes in the interests of owner- § 69 . 
ship are twofold. In the first place, servitudes only confer on the 
person entitled certain specific and clearly defined rights of user; 
they do not confer a right of possession, in the technical sense (a 
right, that is, to exclude every one else from the thing), but only 
a real right of enjoyment, that is, a right to perform particular acts of 
user in regard to the thing. In the second place, servitudes are 
inalienable and non-transmissible, being annexed to a definite subject 
whose destruction entails the destruction of the right. Servitudes 
may accordingly be defined as real rights of user (i.e. of enjoyment) 
in respect of a res aliena, limited in their nature and annexed to 
a definite given subject. 

The subject of a servitude is determined in one of two different 
ways. In the case of a 4 personal * servitude, the subject is a definite 
person ; in the case of a 4 real ’ or 4 praedial ’ servitude, the subject is 
determined by reference to a thing, the owner for the time being of 
the land (the ‘praedium ’) being the person entitled to the servitude. 

Personal servitudes are extinguished by the death of the person 
entitled, so that, at most, they are rights enjoyed for a life-time. 

And in Roman law capitis deminutio — in the classical period even 
capitis deminutio minima (supra, p. 189) — has the same effect as 
death. On the other hand, praedial servitudes are not (in the 
absence of other reasons) extinguished till the land itself is destroyed. 
Personal servitudes which, in respect of the rights they confer, are 
uniformly wider in scope than praedial servitudes, are all the more 
restricted in point of duration ; praedial servitudes, on. the other 
hand, which may last for ever, are all the more decidedly restricted 
in respect of their contents. 

I. Personal Servitudes. 

The most important personal servitudes are: ususfructus, usus, 
habitatio, operae servorum. 

(a) Ususfructus. 

A Usufruct confers a real right — for life, at most — to enjoy to the 
full, and to take the fruits of, a thing not one’s own 4 salva rei sub- 
stantia/ A usufructuary is not allowed to alter the substance of the 
thing ; in the case of land, for example, he is not allowed to change 



THE INSTITUTES 


3^0 

§ 69 . the mode of cultivation. If the thing undergoes an essential trans- 
formation— if, for example, a usufructuary converts a yineyard into 
a mine— the effect is rather to extinguish the usufruct. The usu- 
fructuary is only entitled to enjoy the thing in the particular form in 
which he receives it j^he is not entitled to enjoy it in any form he 
likes. 

*The usufructuary may either have the use and fruits as they are, 
or, if he choose, he may take them in the shape of a sum of money, 
viz. by selling or letting the exercise of the usufruct to a third party. 
After the termination of the usufruct, the thing must be restored. 
Hence res consumtibiles (p. 322) do not admit of a usufruct. Where 
a person is given what is called a * quasi ususfructus ' in con- 
sumable things (as where he is bequeathed the usufruct of 1,000 
bottles of wine or of a certain amount of capital), the right he 
acquires in the consumable things really ownership, but ownership 
qualified by a duty— which, of course, falls on his heir— to restore, 
after death, the same quantity and quality of consumable things (or 
their value in money) as he himself had received. Practically, there- 
fore,* the result is the same as with a verus ususfructus, but the legal 
form which the transaction assumes is not that of a usufruct, but of 
ownership encumbered with an obligation. Every usufructuary with 
a verus ususfructus must give security that, after the termination of 
the usufruct, he will return the thing and compensate the owner for 
any damage done to it through his (the usufructuary’s) fault (‘cautio 
usufructuaria ’). And in the same way, a quasi-usufructuary is 
required to give security that he will restore the same quality and 
quantity as he received. The fact that the quasi-usufructuary is 
thus bound to give a cautio usufructuaria reduces the ownership 
he acquires in the res consumtibiles, in some degree, to the level of 
the rights of a mere usufructuary. 

( b ) Usus. 

A Usus confers on the usuary a real right— for life, at most— to 
enjoy, and take the fruits of, a thing not his own, but only so far as 
the enjoyment and fruits are necessary for the satisfaction of his 
personal* requirements. A usuary is therefore debarred, on prin- 
ciple, from letting or selling. Like the usufructuary he must give 



THE LAW OF THINGS 


361 


security (‘cautio usuaria ’) that he will restore the thing after the § 69 . 
termination of the usus, and that he will exercise care in using' the 
thing, or pay compensation for damage. 

. (c) Habitatio. 

Habitatio is a real right— for life, at most— to live in a house not 
one's own, but to li ye there after the manner of a person entitled to 
maintenance. That is to say, whereas not only a usufructuary, but 
also a usuary of a house, has the right to determine for himself in 
what manner, and in what part of the house, he will live, in the case 
of habitatio it is the owner of the house who determines in what 
manner, and in what part of the house, the habitator shall live. The 
habitator, however, is entitled to let out to others the rooms assigned 
to him for habitation instead of occupying them himself. The object 
of the habitatio being to enable the habitator to support himself, he 
(the habitator) is entitled to enjoy the benefit thus intended to be 
conferred on him in the shape of a sum of money. 

(d) Operae Servorum. 

By the term ‘operae servorum’ is meant a limited right to the 
use of another person’s slave. It is a real right— for life, at most — 

( to make use of the working powers of another man’s slave, either by 
accepting his services oneself, or by letting them out to others. 
Neither habitatio nor operae servorum (the latter of which seem, 
like habitatio, to have been granted for purposes of maintenance) 
are extinguished — even in the classical law— by capitis deminutio 
minima. 

pr. I. de usufr. (2, 4) : Ususfructus est jus alienis rebus utendi 
fruendi salva rerum substantia. 

§ 1 I. de usu et hab. (2, 5) : Minus autem scilicet juris in usu 
est quam in usufructu. Namque is qui fundi nudum usum 
habet, nihil ulterius habere intellegitur quam ut oleribus, 
pomis, floribus, feno, stramentis, lignis ad usum cottidianum 
utatur; in eoque fundo hactenus ei morari licet, ut neque 
domino fundi molestus sit, neque his per quos opera rustica 
fiunt impedimento sit : nec ulli alii jus quod habet aut 
vendere aut locare aut gratis concedere potest, cum is qui 
usumfructum habet potest haec omnia facere. 

L. 1 pr. D. usufructuarius quemadmodum caveat (7, 9 )(Ulpian.) : 



3^2 


THE INSTITUTES 


69. Si cujus rei ususfructus legatus sit, aequissimum praetori 
visum est de utroque legatarium cavere : et usurum se boni 
viri arbitratu, et, cum ususfructus ad eum pertinere desinet, 
restituturum quod inde extabit. 

II. Praedial Servitudes. 

Praedial servitudes are either 1 servitutes praediorum rusticorum,’ 
i.e. servitudes which usually occur in favour of a plot of agricultural 
land (rural servitudes), or * servitutes praediorum urbanorum,’ i.e. ser-' 
vitudes which usually occur in favour of buildings (urban servitudes). 

(a) Rural Servitudes. 

The most important rural servitudes are: the several rights of 
way (servitus itineris, actus, viae); the right of conducting water 
over another’s land (servitus aquaeductus) ; the right of drawing 
water on another’s land (servitus aquae hauriendae). 

( b ) Urban Servitudes. 

The most important urban servitudes are: the servitus altius 
non tollendi, i.e. the right to prevent buildings being raised above 
a certain height on the adjoining land ; the servitus tigni immittendi, 
i. e. the right of placing the beam, on which my story rests, in my 
neighbour’s wall; the servitus oneris ferendi, i.e. the right to use 
my neighbour’s wall to support my own ; the servitus stillicidii, i. e. 
the right to let my rain-water drop on to my neighbour’s premises. 

In all these cases one piece of land ‘ serves ’ another. Hence the 
land on which the servitude is imposed is called the ‘praedium 
serviens,’ and the land which has the benefit of the servitude, the 
‘ praedium dominant’ The two praedia must be ‘ vicina,’ i. e. they 
must be so situated that one can be of use to the other. It is 
further required that the advantage which the praedium dominans 
derives from the praedium serviens shall arise from the permanent 
character of the latter (causa perpetua), and, conversely, that the 
benefits of the servitude shall exist, not only for this or that owner, 
but for every owner of the praedium dominans. It is in this sense 
that the one piece of land is said to serve the other land. There 
can be no praedial servitude, where the object is merely to satisfy 
the wants of the present owner. 

III. A servitude enables the person entitled to it to do any act that 



THE LAW OF THINGS 


363 


may be necessary for the purpose of giving effect to the servitude. § 69. 
In the case of a praedial servitude the limits of the right are deter- 
mined by the requirements of the land to which it is annexed, as 
e.g. in the case of a right of pasture. On the other hand, the duty 
of the owner of the res serviens is, on principle, confined to suffering 
the other party’s act of user (pati, non facere) 5 he is never bound to 
do any positive act in favour of the person entitled to the servitude : 
servitus in faciendo consistere nequit. That is to say, a servitude, 
being a real right, cannot consist in the doing of something by 
another — in faciendo — it can only consist in a power enabling the 
person entitled to act himself. As with all real rights, so with 
servitudes, the other party may incur a liability in consequence of the 
servitude, if, namely, he acts in contravention of the real right ; but a 
personal liability of that kind can never constitute the real right itself. 

pr. I. de serv. praed. (2, 3) : Rusticorum praediorum jura sunt 
haec: iter, actus, via, aquaeductus. Iter est jus eundi, 
ambulandi hominis, non etiam jumentum agendi vel vehi- 
culum. Actus est jus agendi vel jumentum vel vehiculum. 
Itaque, qui iter habet, actum non habet ; qui actum habet, et 
iter habet, eoque uti potest etiam sine jumento. Via est jus 
eundi et agendi et ambulandi ; nam et iter et actum in se via 
continet. Aquaeductus est jus aquae dticendae per fundum 
alienum. 

§ 1 eod. : Praediorum urbanorum sunt servitutes quae aedificiis 
inhaerent, ideo urbanorum praediorum dictae, quoniam aedi- 
ficia omnia urbana praedia appellantur, etsi in villa aedificata 
sunt. Item praediorum urbanorum servitutes sunt hae: ut 
vicinus onera vicini sustineat: ut in parietem ejus liceat 
vicino tignum innnittere : ut stillicidium vel flumen recipiat 
quis in aedes suas vel in aream, vel non recipiat : et ne altius 
tollat quis aedes suas, ne luminibus vicini officiatur. 

IV. Acquisition of Servitudes. 

By the Roman civil law there is only one way in which a genuine 
servitude (ex jure Quiritium) can be validly created by agreement, 
viz. by in jure cessio, in other words, by a fictitious vindicatio of the 
servitude followed by a confession on the part of the fictitious 
defendant and an addictio of the praetor in favour of the fictitious 



364 


THE INSTITUTES 


§ 80 . plaintiff. Rural servitudes in Italy, however, were regarded as res 
inancipi, and could therefore be created not only by means of in jure 
cessio, but also by means of the juristic act which was employed for 
the purpose of acquiring things^ viz. mancipatio (supra, pp. 50, 324) \ 

According to the praetorian law no such formal juristic act was 
required. It was sufficient, if the servitude were actually granted by 
one party and exercised by the other (quasi traditio servitutis). 

The forms of the civil law were not available for the creation of 
servitudes in respect of provincial soil. Provincial soil admitted 
neither of genuine private ownership (supra, pp. 324, 338) nor of jura 
in re in the civil law sense of the word. But the praetorian form of 
creating servitudes (by quasi traditio) was as applicable to provincial 
as it was to Italian soil. With a view to giving due legal effect to 
the grant of the servitude on the one hand, and the taking possession 
(in other words, the first exercise) of the servitude, on the other, it 

1 A servitude might also originate in acquisitive, though it is true that, since 

a so-called * deductio servitutis," that is, his ownership was encumbered, the 

in a reservation made by an owner on effect of the right he acquired was 

conveying his property by means of in curtailed. This is a matter of import- 

jure cessio or mancipatio. Thus land ance for those cases where the law 

could, for example, be mancipated, or allows a person to conclude transactions 

(in the case of in jure cessio') vindicated which benefit him, but prohibits him 

(and accordingly * addicted *) 1 deducto from concluding transactions which pre- 

usufructu. 1 Where this was done, the judice him (p. 228). Although a con- 

servitude originated in the lex mancipa- stitutio servitutis by a person of that 

tioni, or in jure cessioni dicta (uti lingua class would be void, the effect of a 

nuncupassit, ita jus esto, p. 60), but it transfer to him with deductio would be 

was based, formally, not on an agree- to create a servitude valid not only as 

ment to create a servitude, but on the against others, but also as against him- 

agreement to transfer ownership. It self. It is a different matter where 

was not a case of two juristic acts being ownership is transferred by mere tra- 

concluded, one for the transfer of owner- ditio. Traditio being an informal act, 

ship, the other for the creation of a ser- there can be no lex traditioni dicta, 

vitude; there was but one juristic act, according to the civil law ( 1.6 D. comm, 

the act, namely, by which ownership pracd. 8, 4, is an interpolation). Con- 

was transferred with a reservation, sequently, just as there is no such thing 

Thus, the deductio servitutis was ac- as a fiducia by traditio (supra, p. 65, note 

tually and formally a deductio , and not 13), so there is no such thing as a de- 

a constitutio servitutis. The person ductio servitutis or pignoris in the case 

who became owner did not conclude of a traditio. The reservation of a ser- 

first one transaction, by which he ac- vitude or right of pledge in the CAse of 

quired a right, and then another trails- a traditio would amount to a second 

action, by which he encumbered his agreement (operating to impose a bur- 

right ; he did not, in other words, first den) over and above the agreement ol 

take a transfer of ownership, and then traditio. This is the explanation of the 

restrict his ownership by creating a ser- decision in 1 . 1 § 4, 1 . 2 D. de reb. cor. 

vitude over the property. The trans- (27, 9). 

action concluded by him was entirely 



THE LAW OF THINGS 


365 


was usual, in the case of provincial soil, to conclude an agreement $ 69 . 
(pactio) in regard to the grant, and to provide, in regard to the 
exercise of the servitude, that the grantor of the servitude (i. e. the 
holder of the praedium serviens) should promise the grantee by 
stipulatio that, if he (the grantor) interfered with the servitude, he 
would pay a specified penalty. The effect of this formal undertaking 
to pay a specified penalty was to place the grantee in immediate 
possession of the servitude. That is to say, the fact that the party 
who bound himself to permit the servitude, acquiesced in the other 
party’s determination to exercise the servitude— a fact which found 
expression in his promise to pay the penalty— constituted, in itself, 
the quasi traditio servitutis. In the provinces, therefore, servitudes 
were created pactionibus et stipulationibus a . And this form of 
agreement for the creation of servitudes, which had been developed 
on the provincial estates, was the only form employed for the purpose 
in Justinian’s law. In jure cessio and mancipatio of servitudes have 
disappeared. We have thus arrived substantially at the rule that 
a servitude can be created by a simple agreement— a rule which was 
‘received’ in Germany as part of the ‘common law.’ 

In addition to agreements, we have the following modes of 
acquiring servitudes : 

(1) Legacy — the civil law requiring in this case that the form of 
legatum per vindicationem should be employed (cp. § 115, I 1); 

(2) Adjudicatio in a partition suit; as, for example, where the 
judge, for purposes of the partition, awarded ownership to one party 
and a usufruct to the other, or awarded mutual praediai servitudes 
to the respective owners in cases where the land was actually 
divided. If the adjudicatio was to have quiritary effect, it was 
necessary, according to the civil law, that the partition suit should be 
carried through in the judicium legitimum (v. supra, p. 260) ; 

(3) Usucapio. The old usucapio servitutis (within a period of 
one or two years) was, it is true, abolished by the lex Scribonia, but, 
in its place, the magisterial law extended the application of longi 

a Cp. Karlowa, Das Recktsgeschaft , Hellwig, Vertrage auf Leistung an 

P- *23 ft. ; Lend, in Jhcring’s Jahr - Drittc (1899), p. 41, note 75. 

I'ucherf. Dogmatik % vol xix. p. 183 ff. ; 



366 THE INSTITUTES 

§ 89 . temporis possessio (supra, p. 338) to servitudes. Accordingly a 
servitude was acquired by being exercised for ten years inter 
praesentes, or for twenty years inter absentes, nec vi nec clam nec 
precario. 

V. Extinction of Servitudes. 

A servitude is extinguished : 

(1) by the death, or capitis deminutio of the person entitled, 
where the servitude is personal; by the destruction of the land, 
where the servitude is praedial (supra, p. 359) ; 

(2) by confusio, where the person entitled to the servitude acquires 
the ownership of the thing, or where the owner acquires the servitude ; 

(3) by release to the owner of the servient thing ; 

(4) by bequest of the exemption from the servitude ; 

(5) by non usus, i.e. by non-exercise of the right per longum 
tempus (ten years inter praesentes, twenty years inter absentes). 
Servitutes praediorum urbanorum however are not extinguished, 
unless, in addition to non usus on the part of the owner of the 
praedium dominans, there is also what is called 1 usucapio libertatis,’ 
i. e. some positive alteration in the praedium serviens by which its 
freedom from the servitude is actually accomplished, as where 
a house is raised in spite of a servitus altius non tollendi. The 
personal servitudes of habitatio and operae servorum are not ex- 
tinguished by non usus, nor, even in classical Roman law, by 
capitis deminutio minima. The law does not allow the purposes of 
maintenance, which habitatio and operae servorum are intended to 
serve, to be frustrated by a temporary non-exercise of the right or 
a mere change of family relationship. 

L. 6 D. de S. P. U. (8, 2) (Gajus) : Haec autem jura (praediorum 
urbanorum) similiter ut rusticorum quoque praediorum certo 
tempore non utendo pereunt; nisi quod haec dissimilitudo 
est, quod non omnino pereunt non utendo, sed ita si vicinus 
simul libertatem usucapiat. Veluti si aedes tuae aedibus 
meis serviant ne altius tollantur, ne luminibus mearum 
aedium officiatur, et ego per statutum tempus fenestras meas 
praefixas habuero vel obstruxero, ita demum jus meum 
amitto, si tu per hoc tempus aedes tuas altius sublatas 



THE LAW OF THINGS 


367 


habueris ; alioquin, si nihil novi feceris, retineo servitutem. § 69 . 
Item, si tigni immissi aedes tuae servitutem debent, et ego 
exemero tignum, ita demum amitto jus meum, si tu foramen, 
unde exemptum est tignum, obturaveris et per constitutum 
tempus ita habueris. Alioquin, si nihil novi feceris, integrum 
permanet. 

VI. Protection of Servitudes. 

Servitudes are protected by means of the actio confessoria in rem. 

The plaintiff in this action is bound to allege and prove his right 
to the servitude. The disturber is condemned to pay damages, to 
recognize the servitude, and to discontinue all further acts of 
disturbance. The actio confessoria is thus the counterpart of the 
owner’s actio negatoria (p. 347). The actio negatoria is employed 
by the owner in order to stop an unwarranted attempt to exercise 
a servitude, as he would use it to stop any other disturbance of 
his ownership. The actio confessoria is employed by the person 
entitled to a servitude to assert his servitude as against the owner or 
any third party, and to obtain, at the same time, an actual recognition 
of his right. The actio confessoria is a juris vindicatio, the plaintiff 
claiming ‘jus sibi esse utendi fruendi’ (eundi, agendi, &c.). Just as 
the owner claims the thing for himself by rei vindicatio, so the 
person entitled to a servitude claims his right for himself (his jus 
in re aliena, namely, his right to enjoy the thing, not the thing itself) 
by juris vindicatio. 

Corresponding to the actio Publiciana which was granted in lieu 
of a rei vindicatio, there was an actio Publiciana confessoria in rem 
which, like the actio Publiciana, was granted in two cases : 

(1) where a servitude was acquired a domino (from the owner of 
the praedium servicns), but not in a form which the civil law 
regarded as sufficient, not, that is, by in jure cessio or mancipatio, 
but only by pactio and quasi traditio. This case would correspond 
to the case of bonitary ownership discussed above (p. 328) ; 

(2) where a servitude was acquired bona fide a non domino and 
the acquisition was supplemented by quasi traditio, i. e. by actual 
possession obtained through the exercise of the servitude. Here 
the plaintiff forbore from offering, or was unable to offer, any 



368 


THE INSTITUTES 


§ 69 . evidence to show that the grantor of the servitude was really the 
owner of the praedium serviens. This case would correspond to 
the case of usucapio possession, and the force of the actio Publiciana 
confessoria, like that of the actio Publiciana in rem as employed by 
the usucapio possessor, was merely relative) the action being only 
available against persons whose title was weaker than that of the 
plaintiff (p. 348), and being, more particularly, liable to be repelled 
by the true owner of the praedium serviens by means of an exceptio 
dominii. 

Particular servitudes were also protected by possessory remedies, 
i.e. by interdicts, granted, without proof of legal title, on the ground 
of the juristic possession of the servitude alone (‘quasi possessio’ or 
‘juris possessio’); that is to say, on the ground of an actual exercise 
of the servitude (corpus) coupled with an intention of acting as a 
person entitled to such servitude (animus). Possessory remedies of 
this kind were given to a usufructuary and a usuary, the possessory- 
interdicts (pp. 353-355) being applied to their cases in the form of 
interdicta utilia. Further, a person who was in actual enjoyment 
of a right of way was protected by the interdictum de itinere actuque 
privato, provided he exercised such right for thirty days in the 
preceding year nec vi nec clam nec precario ab adversario. A person 
who possessed a right to convey water over his neighbour’s land was 
protected by the interdictum de aqua, provided he exercised such 
right at least once within the last year of user bona fide nec vi nec 
clam nec precario. A person who enjoyed a right to draw water on 
his neighbour’s land was protected by the interdictum de fonte under 
the same conditions as were required in the interdictum de aqua. 

§ 70 . Emphyteusis . 

§ 70 . Emphyteusis is the long lease of Roman law. It originated in 
a system adopted by the governing bodies of towns under which the 
town communities let out land, more especially rural estates (praedia 
rustica), for an indefinite term of years, subject to the payment of 
an annual rent (vectigal). Such land was called ‘ager vectigalis* 
(though there were also aedes vectigales ; v. Degenkolb, Platzrecht^ 



THE LAW OF THINGS 


369 


&c., pp* 5 if 84* ad /«.). This system was then extended to the § 70 . 
demesnes of the emperor, whenever it was desired to have un- 
cultivated lands made arable (emphyteusis) 1 . The doubts 'which 
existed among the Roman jurists as to whether emphyteusis was 
a sale, or merely a hire of the land, were settled by an enactment of 
the Emperor Zeno which declared that the agreement between the 
emphyteuta and the dominus was a special kind of juristic act, viz. 
a ‘contractus emphyteuticarius,’ and that the legal relationship 
created by emphyteusis was sui generis, and was governed by rules 
of its own. 

The rights of an emphyteuta are as follows : 

Though not the owneF of the land, he is nevertheless entitled to 
exercise all the rights of an owner, so that, practically, he’ stands to 
the land, as long as his right lasts, in the same relation as though he 
were actually the owner. He has the full right to take, not only the 
fruits, but all the produce of the land, and consequently also the 
right — which a usufructuary, or a mere lessee for a short term 
of years, has not — to make improvements and change the mode 
of cultivation. Like the owner he acquires the fruits by mere 
separation; he need not take actual possession of them (perceptio). 


1 Emphyteusis (literally ‘in-planting’) 
was thus originally the name applied to 
waste land belonging to the emperor 
which was let out on perpetual leases 
for the purpose of securing its cultiva- 
tion. It was opposed, on the one hand, 
to * ager vectigalis, 1 i.e. to the common 
land belonging to towns which was let 
out on perpetual leases and which con- 
sisted, as a rule, of plots already in 
a state of cultivation. On the other 
hand, it was opposed to the so-called 
‘conductio perpetua/ i.e. to the system 
under which imperial estates already in 
a state of cultivation were let out on 
perpetual leases— a system which first 
came into use towards the close of the 
fourth century and was subsequently 
extended to the common lands belonging 
to towns. From the time of Constantine 
the ager vectigalis disappears, owing (it 
would seem) to the extensive process 
of confiscation to which the property 
owned by the communities was sub- 
jected for the benefit partly of the State, 

SOHII : LEDLIft B b 


partly of the Church. When part of 
the land was subsequently restored to 
the communities (c.g. by Julian, and 
afterwards by Theodosius II), it was 
administered after the manner of the 
imperial demesnes (emphyteusis, con- 
ductio perpetua), and, at the same time, 
the word emphyteusis w r as applied, as 
a general term, to perpetual leases of 
any kind. The rubric of title 6, 3 in 
the Digest: ‘si ager vectigalis id est 
emphyteuticarius petatur* (cp. 1. 15 
§ 1 D. 2, 8; and Lenel, Edictum , 
p. 146), shows clearly that in speaking 
of 1 ager emphyteuticarius/ the com- 
pilers intended the term to cover any 
land let out on a perpetual lease. The 
praetor had already granted the posses- 
sors of agri vectigales a real action, viz. 
a utilis rei vindicatio ; the same remedy 
was subsequently extended to every 
holder of a perpetual lease as such. — 
On the history of emphyteusis cp. 
Brunner, ZS. der Sav, St., vol. v. (ger- 
man. Abt.) p. 76 ff. 



370 


THE INSTITUTES 


§ 70 . He is protected by the same remedies as the owner, viz. the rei 
vindicatio (utilis), the actio negatoria (utilis), and, when the fundus 
emphyteuticarius is entitled to a praedial servitude, the actio con- 
fessoria (utilis). Moreover, if he is in the actual enjoyment of his 
right, he can, like the owner, claim to have his possession protected 
by means of the possessory interdicts (supra, pp. 353-355). In point 
of actual strength, his possession is equal to that of the owner. He 
has the animus domini, i. e. he intends, without any qualification, to 
hold the thing in his own interest, to be, for all practical purposes, 
the owner himself. 

On the other hand, the duties of an emphyteuta are as follows : 

(1) he must pay his annual rent (vectigal, canon) ; (2) he must not 
deteriorate the property ; (3) he must give his landlord notice of his 
intention to dispose of his rights as perpetual lessee so that the 
landlord may, if he choose, exercise his right of pre-emption (jus 
protimiseos). If the emphyteuta fail in any of these duties, e. g. if 
his rent be three years in arrear, the landlord (dominus emphy- 
teuseos) has the right of eviction, i. e. he may deprive the emphyteuta 
of his rights as perpetual lessee. 

As compared with servitudes, there are three points which distin- 
guish emphyteusis : (1) the emphyteuta stands, not only practically, 
but, in the main, also legally in the position of an owner ; emphy- 
teusis therefore confers a considerably wider range of rights than any 
of the servitudes : it is intended to take the place of ownership ; 
(2) emphyteusis is heritable and alienable ; (3) an emphyteuta who 
actually exercises his right has (according to the true view) juristic 
possession of the land ; a person who exercises a servitude has only 
juristic possession of the right, i. e. quasi possessio (p. 368) : what 
he possesses is not the land, but the servitude, e. g. the right of way. 
An emphyteuta excludes the owner from the land; the exercise 
of a servitude by another does not affect the owner’s possession of the 
land \ 

9 Emphyteusis creates a right to has the animus possidendi, the 1 will to 
possess (rei vindicatio), a servitude possess,’ even as against the dominus ; 
only creates a right to enjoy (juris a person who intends to exercise a ser- 
vindicatio). A person who intends to vitude has only the will to enjoy (cp. 
exercise the right of an emphyteuta p. 352, n. 2). 



THE LAW OF THINGS 


37i 


As distinguished from a lessee for a short term of years, who has § 70 . 
merely an obligatory right against the lessor, the emphyteuta has 
a real right in his land available against everybody. 

§ 3 I. de 'loc. et conduct. (3, 24) : Adeo autem familiaritatem 
aliquam inter se habere videntur emptio et venditio, item 
locatio et conductio, ut in quibusdam causis quaeri soleat 
utrum emptio et venditio contrahatur, an locatio et conductio ? 

Ut ecce de praediis quae perpetuo quibusdam fruenda 
traduntur, id est, ut quamdiu pensio sive reditus pro his 
domino praestetur, neque ipsi conductori neque heredi 
ejus cuive Conductor heresve ejus id praedium vendiderit, 
aut donaverit, aut dotis nomine dederit, aliove quo modo 
alienaverit, auferre liceat. Sed talis contractus, quia inter 
veteres dubitabatur, et a quibusdam locatio, a quibusdam 
venditio existimabatur, lex Zenoniana lata est quae emphy- 
teuseos contractui propriam statuit naturam, neque ad loca- 
tionem neque ad venditionem inclinantem, sed suis pac- 
tionibus fulciendam. 


§ 71. Superficies . 

Superficies stands to houses in the same relation as emphyteusis § 71 . 
to agricultural land. Superficies, in Roman law, is a perpetual 
lease of building land, subject to the payment of an annual rent 
(solarium). On the land thus leased the superficiary erects a house. 

He builds it with his own materials. By the rules of accession, 
therefore, the ownership of the house vests in the owner of the soil : 
superficies solo cedit. A superficiary, however, has a real right, 
for himself and his heirs, to live in the house and to exercise the 
rights of an owner therein for the specified term of years (say, ninety- 
nine years) or for ever, as the case may be. Hence the legal position 
of the superficiary is the same as that of the emphyteuta. Like the 
emphyteuta he has the same remedies as an owner (in the form of 
actioncs utiles), and his possession is expressly protected by the 
interdictum de superficie. He is entitled to execute repairs and 
alterations in the house, provided he docs not deteriorate the 

li b 2 



372 


THE INSTITUTES 


§ 7 L property. The house is under his control, and accordingly he has, 
together with the essential rights of an owner, the juristic possession 
of the house (corpus and animus) in the same way as though he 
were actually the owner \ 

The remarks made at the end of the last section in reference 
to emphyteusis are equally applicable to the differences between 
superficies and servitudes, on the one hand, and between superficies 
and letting and hiring, on the other hand. 

The legal recognition of superficies is based on the praetorian 
law. 

L. i pr. D. de sup. (43, 18): Ait praetor: Uti ex lege 

LOCATION IS SIVE CONDUCTIONS SUPERFICIE, QUA DE AGITUR, 
NEC VI NEC CLAM NEC PRECARIO ALTER AB ALTERO FRUEMINI, 
QUOMINUS FRUAMINI, VIM FIERI VETO. Si QUA ALIA ACTIO 
DE SUPERFICIE POSTULABITUR, CAUSA COGNITA DABO. 

§ 3 eod. : Quod ait praetor : si actio de superficie postula- 
bitur, causa cognita dabo, sic intellegendum est ut, si ad 
tempus quis superficiem conduxerit, negetur ei in rem actio. 
Et sane causa cognita ei qui non ad modicum tempus con- 
duxit superficiem in rem actio competet. 

§ 72. Pledge . 

§ 72 . A right of pledge is a real right which enables the person entitled 
to it to secure payment of a claim through the medium of a thing. 
A creditor, as such, has only an obligatory right, i. c. a right to obtain 
satisfaction of his claim through the act of the debtor ; a right of 
pledge gives him, in addition to his obligatory right, a real right, 
i. e. a right to obtain satisfaction of his claim through his own act, 
through the act, namely, of selling the thing pledged. Practically 
speaking, the creditor’s right of pledge and his personal claim against 
the debtor lead to the same result, but in point of legal form they 
are different, the one being a real right, the other an obligatory 
right. 

I. History pf Pledges. 

1 Degenkolb, Platzrecht u. Miete (1867) ; A. Schmidt, ZS. d, Sav . St., vol. 
p. 121 ff. 



THE LAW OF THINGS 


373 


In early Roman law, a right of pledge, in the proper sense of the § 72 
term, i. e. in the sense as we have just defined it, was unknown. 

It is true there were certain juristic acts the practical result of which 
was the creation of a pledge, in other words, the securing of a claim 
by means of a thing. But there was no juristic act whose formal 
object it was to create a right of pledge over a thing. 

i. Fiducia. 

A person who wished to obtain credit by giving the creditor 
security for his claim, might transfer the ownership of a thing to 
the creditor by means of mancipatio or in jure cessio — which did 
not necessarily involve a transfer of possession (p. 84) — subject to 
an understanding that as soon as the debt was paid, the owner- 
ship should be retransferred. A mancipatio or in jure cessio of 
this kind operated as a conveyance on trust ; it was in fact the 
‘fiducia’ which we have already described (§ 12). In such a 
transaction, however, neither party got what he was fairly entitled 
to. As for the creditor, his position was indeed safe enough, in 
point of form. He was the owner of the thing, and was therefore, 
in strict law, entitled to deal with it as he liked: he might, for 
instance, sell it in satisfaction of his claim. But his hands were 
tied by the pactum fiduciae. His fiduciary position bound him 
as an honourable man not to make any use of his legal right to 
dispose of the thing, and to hold himself in readiness to reconvey 
the ownership in the event of the debtor paying his debt. Thus 
though the fiducia afforded the creditor security for his claim by 
withdrawing the ownership of the property from the debtor till 
payment, it did not give him satisfaction. A special pactum de 
vendendo was required in order to release the creditor from his 
fiduciary obligation to the extent of leaving him free to obtain 
satisfaction by selling the thing. On the other hand, the position 
of the debtor was worse still. Even though he duly paid his debt, 
he could never be sure of recovering the property he had parted 
with as a security for his debt. The creditor might, meanwhile, 
have alienated it, given it away, sold it, or exchanged it In such 
Cases, it is true, the creditor could b.e compelled by actio fiduciae 
(in which condemnation entailed infamy, p. 64, n. 10) to compensate 



374 


THE INSTITUTES 


$ 72. the debtor, but as against the third party to whom the property had 
passed, the debtor had no remedy, for the third party was full and 
lawful owner. Thus the debtor could only obtain compensation, 
but not the thing itself. What he wanted was a real right entitling 
him to claim his property back from any third party into whose 
possession it might come 1 . But the drawback of the fiducia, as 
regards the debtor, lay precisely in the fact that he had parted with 
the ownership which would have given him the real right he required. 
These various disadvantages led to the adoption of a second method 
of giving creditors security for their claims, viz. pignus. 

2 . Pignus. 

Instead of making the creditor owner of the thing which was 
to serve as his security, the debtor might merely transfer possession 
by simple traditio— complete (juristic) 'possession, it is true, but 
still only possession. Such a relationship was called ‘pignus.’ 
Here the debtor’s position was satisfactory enough. He retained his 
ownership and, with it, a real right to recover his property from any 
one who obtained possession of it. As soon as he paid his debt, 
no one had a right to withhold the thing from him. The creditor, 
on the other hand, was placed all the more decidedly at a dis- 
advantage by this arrangement. True, he had actual possession 
of the thing, and the praetor protected his possession by means 
of the possessory interdicts. But he had no real right in the thing, 
and could not, therefore, make use of the ordinary in rem actio 
against third parties. And, worst of all, he had prima facie no 
right to dispose of the thing in any manner whatever. Even though 
his debtor were in default, he could not sell the thing and recoup 
himself out of the proceeds. And if the debtor preferred leaving 
the thing with the creditor to paying his debt, the pignus was of 
no use to the creditor at all 2 . The problem therefore was how to 

1 The possibility of usureceptio (p. 339, pass to the creditor. A similar proviso 

n. i), which presupposed possession on then came to be used in cases of fiducia, 

the part of the debtor, afforded but where the effect of the lex commissoria 

scant protection. was to make the fiduciary creditor 

* Hence it was sometimes agreed— absolute owner of the thing (free from 

by a so-called lex commissoria— that, any trust) as soon as the default oc- 

in default of payment, the ownership in curred. The pactum de vendendo, on 

the pignus should (by way of penalty) the other hand, which apparently first 



THE LAW OF THINGS 


375 


devise a transaction which should leave to the debtor his ownership § 72. 
and, with it, a real right to recover the thing from third parties, and 
yet should, at the same time, confer on the creditor a right in 
the thing , the right, namely, in case of necessity, to realize the value 
of the thing for the purpose of satisfying his claim, in a word, 
a right of pledge, in the true sense of the term. This problem was 
solved with the aid of the praetorian edict. 

3. Hypotheca. 

The debtor could enter into a simple agreement with the creditor 
(without either mancipatio or traditio) that certain things belonging 
to him (the debtor) should serve the creditor as a ‘hypotheca/ 
i.e. should serve as a means of satisfying the creditor’s claim, 
if he (the debtor) failed to pay. Such a relation was called 
‘hypotheca.’ Both the name and the nature of hypotheca were 
derived from Greek law. Under the old Roman law an agreement 
of this kind was totally void. The praetor, however, made it valid — 
in the first instance, in cases where tenant-farmers had ‘ hypothecated * 
their farming-stock (invecta et illata) to their landlords. In such 
cases the praetor enabled the creditor (the landlord) to obtain 
possession of the things pledged by granting him the so-called ‘ in- 
terdictum Salvianum/ as well as an ordinary legal remedy called the 
c actio Serviana.’ The same protection was afterwards extended (by 
means of an ‘actio quasi Serviana’ or ‘actio in rem hypothecaria’) 
to any person to whom property had been hypothecated by another. 
Thus, according to the praetorian law, a hypotheca gave the creditor, 
in the first place, a real right of action, which enabled him, on 
non-payment of the debt, to obtain possession of the thing hypo- 
thecated ; and, in the second place, it gave him a right of sale, i. e. 
a right to realize the value of the thing for the purpose of satisfying 
his claim. The creditor therefore had all the rights he required, 
and, conversely, the interests of the debtor were protected by the 

came into use in connexion with fiducia, the debtor) ; the pactum de vendendo, 
was, in its turn, extended during the on the other hand, points to the future : 
Empire to pignus. Cp. A. Pemice, ZS. its object is the satisfaction of the 
d. Sav, St, vol. v. p. 134. The lex com- creditor, and it anticipates, to that 
missoria bears the impress of the past; extent, the idea which afterwards took 
its purpose is ‘ entirely penal (for the shape in the hypotheca. 
effect of the foreclosure is not to release 



376 


THE INSTITUTES 


§ 72. fact that he retained his ownership and, with it, a real right to 
recover his property from any third party into whose hands it might 
come. 

A genuine right of pledge had thus been developed. The hy- 
pothecary agreement yras now an agreement which had for its formal 
as well as its practical object the creation of a right to dispose of 
a thing not one’s own, in a word, the creation of a right of pledge. 
Of course the hypotheca might be coupled with a traditio of the 
thing into the possession of the creditor as in the case of pignus, but 
such a traditio was not necessary. What was essential for giving rise 
to a right of pledge, was not the transfer of possession as such, but 
merely the agreement to hypothecate: ut res hypothecae sit. It 
was under the influence of the requirements of Greek trade that 
the development of Roman law thus passed from the earlier forms 
of pledges— pledges effected through a transfer of ownership (by 
means of mancipatio) and a transfer of possession (by means of 
traditio)— to a new form of pledge more in keeping with the 
capitalistic character of the time, a pledge created by a simple 
agreement under which the pledgee obtained, on principle, a right of 
sale, and the thing pledged was simply regarded as representing so 
much money’s worth. 

L. 9 § 2 D. de pign. act. (13, 7) (Ulpian.): Proprie pignus 
dicimus, quod ad creditorem transit, hypothecam, cum non 
transit, nec possessio, ad creditorem. 

L. 5 § 1 D. de pign. (20, 1) (Marcian.): Inter pignus autem et 
hypothecam tantum nominis sonus differt. 

II. The Rules of Law concerning Pledges. 

A right of pledge originates : 

(1) in ordinary cases, either in an agreement (pignus conventionale), 
or in a testamentary disposition (pignus testamentarium) ; 

(2) in extraordinary cases, either in a statute— like the hypotheca 
in favour of the claims of the fiscus over the entire estate of persons 
indebted to it, or the hypotheca in favour of the claims of persons 
letting houses over the invecta et illata (i. e. the furniture) of their 
tenants (pignus taciturn or legale)— or in the seizure of a debtor’s 
property in the course of a judicial execution (pignus judiciale). 



THE LAW OF THINGS 


377 


A case of pledge (pignus) of the old type, where the creditor § 72. 
obtains actual control, or mere detention, of a thing by way of 
security for his claim, without any right of sale or real right of action, 
occurs, when the praetor, with a view to giving a creditor pro- 
visional security for his claims, grants him * missio in possessionem * 
in respect of the property in which he (the creditor) is interested 
(pignus praetorium). 

A right of pledge entitles the pledgee (i) to possess the thing 
pledged ; (2) to realize its value (by sale, as a rule) for the purpose of 
satisfying his claim. As regards the right to possess (which is pro- 
tected either by a petitory action, viz. the actio in rem hypothecaria, 
or by possessory remedies, viz. the possessory interdicts), where the 
thing is actually delivered to the pledgee in pledge, it arises at once 
on the delivery ; in cases of a mere hypotheca, however, the right 
to possess does not arise until it becomes necessary for the creditor 
to assert his other right, his right, namely, to realize the value of the 
thing pledged. As to this latter right (the right of sale), it never 
arises till the claim is due, and the debtor, in spite of notice, or 
judgment, remains in default. Having carried out the sale, the 
creditor pays himself out of the proceeds. If the amount realized is 
in excess of his claim, he must restore the surplus (hyperocha) to 
the debtor (§ 79 I. d). The so-called ‘ lex commissoria,’ or foreclosure 
clause, by which it was agreed that in case of non-payment the 
pledgee should become ipso jure owner (v. note 2), was declared 
void by a law of the Emperor Constantine. In case of necessity, 
however, where a sale was impracticable, the court could, on the 
petition of the pledgee— the c impetratio dominii ’—adjudge him the 
ownership of the thing at a certain valuation with a view to satisfying 
his claim. The hyperocha in such a case would be the excess of the 
assessed value over the amount of the debt secured by the pledge. 
‘Antichresis* is the name given to an arrangement between the 
pledgor and the pledgee by which the latter not only obtains 
possession together with a right of sale, but also the right to take 
all the fruits and profits yielded by the thing, such fruits and profits 
to be accepted by him in lieu of interest. 

The owner of the pledge may transfer his ownership to a third 



378 


THE INSTITUTES 


§ 72. party, but of course the right of pledge already created in favour of 
the creditor continues to hold good as against the new owner. In the 
same way the owner may pledge the identical thing to several persons 
in succession. Successive rights of pledge of this kind may also 
arise by virtue of a statute. No one of several successive pledgees is 
entitled to exercise his right of pledge till the prior pledgee has been 
satisfied. Priority is determined, on principle, by reference to 
the time when the rights were respectively created (prior tempore 
potior est jure)— a principle which was not however adhered to 
by Roman law in cases of so-called * privileged 9 rights of pledge, 
such as existed, for instance, in favour of the claims of the fiscus for 
public dues. 

A right of pledge is extinguished, as soon as the debt is settled, or 
the creditor obtains satisfaction by realizing the value of the pledge 
(by sale). But it is a rule that till the entire debt has been dis- 
charged, the whole pledge remains liable for the unpaid balance: 
pignoris causa est individua. If a prior pledgee exercises his right 
of sale, subsequent rights of pledge are thereby destroyed. The 
object to which these subsequent rights related having thus been 
done away with, the pledgees are entitled, in lieu of it, to claim 
the hyperocha, which the prior pledgee is accordingly bound to 
hand over. 

L. i C. si antiquior creditor (8, 20 ) (Alexander) : Si vendidit is 
qui ante pignus accepit, persecutio tibi hypothecaria superesse 
non potest. 



CHAPTER III. 

The Law of Obligations. 

I. The Conception and Contents of an Obligation. 

§ 73 . The Conception of an Obligation ( Obligatory Right). 

An obligatory right *, within the meaning of the Roman private § 73. 
law of the classical period, is a right to require another person to do 
some act which is reducible to a money value. It is invariably 
directed against a determinate person, viz. the ‘ debitor/ or debtor. 
Ownership may be asserted against all the world, but an obligation 
can only be asserted against, say, the vendor, if it arises from a sale, 
the lessor, if it arises from a contract of letting and hiring, and 
so forth. Obligatory rights are rights which only operate relatively, 
viz. as against the person of the debtor. The main point to be 
observed is that an obligatory right consists , as such, in the fact 
that a definite other person (the debtor) is Bound to do something. 
Where a real right of mine gives rise to a duty on the part of my 
opponent— as where my right as owner entitles me to require him 
to deliver up a thing— such duty can only be regarded as the 
consequence of my right, whereas in the case of an obligatory 
right the duty, or obligation, of the debtor constitutes the whole 
of my right. An obligatory right is simply and solely a right to 
require a definite other person (the debtor) to act in a particular 
way. 

* As to this term, see supra, p. 3 a6 » Translator’s note. 



380 


THE INSTITUTES 


§ 73. The right of the creditor manifests itself in the obligation of the 
debtor, but this obligation does not imply subordination. Therein 
lies the difference between obligations, on the one hand, and family 
rights and the rights of public officials, on the other. Family rights 
and public rights produce subordination, personal subjection, a 
power of one will to coerce another will. An obligation leaves the 
debtor free as against his creditor. The debtor is the equal of the 
creditor. The latter cannot force the debtor, by any private act 
of his own, to fulfil the obligation. Force can only be applied for 
that purpose by the state at the suit of the creditor. 

Inasmuch as an obligation neither implies, nor is intended to 
imply, subordination, it is confined, according to Roman law, to acts 
which are reducible to a money value. Obligations are not designed 
to create any general right of control over all the acts of the debtor. 
A debtor can, in the last resort, rid himself of every obligation 
by sacrificing a corresponding portion of his property for the purpose 
of indemnifying his adversary. An obligation means a deduction, 
not from a man’s liberty, but only from his property. 

L. 3 pr. D.deO.et A. (44, 7)(Paulus) : Obligationum substantia 
non in eo consistit ut aliquod corpus nostrum aut servitutem 
nostram faciat, sed ut alium nobis adstringat ad dandum 
aliquid vel faciendum vel praestandum. 

L. 9 § 2 D. de statu lib. (40, 7) (Ulpian.): Ea enim in obliga- 
tion consistere quae pecunia lui praestarique possunt. 


§ 74. Plurality of Debtors and Creditors . 

§ 74. Just as several persons may be co-owners in respect of the same 
thing (p. 323), so several persons may be co-debtors or co-creditors 
in respect of the same obligation. We have then a case of what 
is called ‘correal obligation.’ Where there are several co-debtors— 
plures rei promittendi— the correal obligation is said to be 
‘ passive’; where there are several co-creditors— plures rei stipulandi— 
the correal obligation is said, to be ‘active.’ And just as co-owner- 
ship means the common ownership of several persons in the same 



THE LAW OF OBLIGATIONS 


381 


undivided thing, so correal obligation means the common liability § 74 . 
or right of several persons in respect of the same undivided act. 

Suretyship (fidejussio, § 80 I. 3) is an example of a correal obliga- 
tion. The surety and the principal debtor are both liable — the 
former, however, only as accessory debtor — for the whole of the same 
debt. Besides suretyship, the most important source of correal 
obligations are joint agreements in which the joint liability or right 
of all is expressly provided for \ For example : A and B jointly 
hire a room, or jointly accept a loan or a commodatum, & c., and 
agree, at the same time, that they shall both be liable for the 
whole debt, liable, that is, for the whole rent, the whole loan, the 
restoration of the whole commodatum, &c. The result is a passive 
correal obligation. Or again : A and B, being co-owners of a house, 
let their house jointly (or give a loan jointly, &c.), and agree, at the 
same time, that each of them shall be entitled to recover the whole 
of what is due under the obligation. The result is an active correal 
obligation 1 2 . In all these cases the intention is not to enable the 


1 A joint agreement as such (e.g. the 
joint hire of a room, a joint loan, &c.) 
only operates in Roman law to make 
each of the joint parties liable, or en- 
titled, pro parte. The result, therefore, 
is the creation of a series of rights or 
liabilities, each of which exists in 
respect of part of the obligation only, 
and 1ms nothing in common with the 
others. A joint agreement does not 
give rise to a correal obligation, unless 
it expressly provides that all the joint 
parties shall be liable for, or entitled to, 
the whole. The usual means of creating 
a correal obligation among the Romans 
was a joint stipulatio by two or more 
persons in respect of the same act, the 
act, namely, which was the object of 
the obligation. Cp. the passage cited 
infra, p. 386, pr. I. de duobus reis 3, 16. 
It is for this reason that correal debtors 
were called duo pluresve rci promit- 
tendi, and correal creditors duo pluresve 
rei stipulandi. 

2 The following arc further instances 
of correal obligation. Argentarii socii 
(i.e. the ostensible partners in a banking 
business) are correal debtors or creditors 
in respect of contracts concluded by each 
individual socius. Co-owners of a slave, 


or of an animal that has done damage, 
are correally liable in respect of the 
noxal action, or actio de pauperie (§ S6, 
5). A correal obligation also arises 
where a testator charges a legacy in the 
alternative, e.g. heres meus aut Titio 
aut Maevio decern dato, or: Lucius 
heres metis aut Maevius heres meus 
Sejo decern dato. Cp. e.g. 1 . S § 1 D. 
de legat. I (30). The implication here 
is that the alternative legacy shall be 
treated as joint, that ‘aut’ therefore 
shall be taken = et, as is expressly stated 
in 1. 9 pr. D. de duob. reis (45, 2) and 
in 1 . 4 C. de verb. sign. (6, 38). Cor- 
reality does not mean an alternative 
right, or liability, but a joint right, or 
liability. This fact, if borne in mind, 
may serve perhaps to explain the two 
passages from the authorities which we 
have just quoted and whose correctness 
has often been strongly impugned. — The 
idea of a correal obligation seeing to 
have originated within the domain of the 
jus sacrum. The earliest correi are the 
convoventes, conjurantes, conspondentes 
(v. Leist, Griico-italische KG. p. 231), 
persons who have jointly pledged them- 
selves to the gods to fulfil the same 
vow. 



382 


THE INSTITUTES 


§ 74. creditor to recover the whole of the same debt several times over. 
The object of a passive correal obligation is merely to render the 
position of the creditor more secure by making several debtors liable 
to him for the same debt. The object of an active correal 
obligation is to make it easier for the creditor to recover his 
debt by legal proceedings, a single action by a single creditor being 
sufficient for the purpose. Each correal creditor (e. g. an argentarius 
socius; v. riote 2 ) may sue for the whole amount of the debt, 
without having to show that his co-creditor has given him authority 
to do so. A correal obligation is a plurality of obligations* where 
JsconQmically speakings only onq obliga tion. And a correa l 
obligation i s nnly ornnnmiV Q iiy t afon leg a lly, virtue 

nam ely of th e f act that, lega lly speaking, the plural ity ofjobligations 
constit utes o ne co mrx^i^obl jg^t^ijon 0 f_the seve ral p arties concerned. 
As in joint ownership the same thing has several owners, so in the 
case of a joint obligatory right, or liability, the same obligation has 
several creditors or debtors. In joint ownership, however, the 
principle applied by the Romans was that of proportional shares, i. e. 
each person sharing the ownership could only assert such ownership 
to the extent of his proportional share; whereas in the case of 
several persons sharing an obligatory right or liability, the principle 
of correality was applied, i. e. each of the persons sharing the obliga- 
tion was entitled or bound in respect of the whole ; each of them, 
in other words, represented by himself the entire debt or the entire 
claim. In both cases the underlying idea was that of a community 
of right or liability 3 . Hence the Romans described a correal 


* The principle of proportional shares 
is not, by any means, the only principle 
applicable to cases of common rights 
and duties. The ‘correal 1 principle 
(‘ Emhandsprincip’) and the 1 collective* 
principle Gesamthandsprincip *) are 
equally applicable. The correal prin- 
ciple means that each of the sharers is 
entitled, or bound, to represent the 
whole legal relationship in his own 
person alone. The collective principle, 
on the other hand, means that the rights 
or duties in question are only exer- 
cisable by, or demandable from, all 
the sharers collectively. In correality 


each correus is materially (though not 
formally) a representative of the other 
correi (unius loco habentur), and the 
correal principle, in its turn, admits of 
various modifications, because the posi- 
tion of the separate correi need not 
always be exactly the same. Thus it is 
said in the German law concerning the 
common property of husband and wife 
that, as regards the movable common 
property, either husband or wife can 
validly dispose of it by his or her 
separate act, the husband however abso- 
lutely, the wife only so far as the dis- 
position is necessary for the manage- 



THE LAW OF OBLIGATIONS 


383 


obligation as * una obligatio 9 (communis obligatio), and the parties § 74. 
to a correal obligation as persons who * unius loco habentur * 
(ejusdem obligationis participes, ejusdem obligationis socii). A 
correal obligation means a plurality of obligations based on a 
community of obligation ; a joint liability in respect of the whole 
of the same debt or a joint right in respect of the whole of the 
same claim. 

From a correal obligation we have to distinguish a solidary 
obligation. A solidary obligation, means . the separate liability, of 
several persons in respect of one and the same object. The 
commonest example of a solidary obligation is the case of a joint 
delict, as when two or more persons, acting jointly, do damage to 
property or commit a theft 4 . So far as the obligation creates a duty 
to pay damages, it is solidary. Each of the co-delinquents is liable 
to make good the whole of the same damage 8 . Each of them 
has caused the entire damage. The facts supply a complete basis 
for the liability of each in respect of the whole, a liability which 
is quite independent of any intention on the part of each delinquent 
to render himself jointly liable with his co-delinquents. Hence 
though the object is one, the obligations are independent and 
separate. A solidary obligation means a plurality of obligations 
in respect of one and the same object without any community of 
obligation 6 . 


ment of kitchen and cellar (the principle 
applied being therefore the principle of 
correal ity) ; as regards the immovable 
common property, the collective prin- 
ciple is usually applied, i.e. husband 
and wife must concur in any disposition 
of land belonging to them both. Cp. 
A. Heusler, Institutionen des deutschen 
Privatrechts , vol. i. p. 226. 

4 And, generally speaking, where 
several persons are jointly answerable 
for a wrong done, the obligation is 
solidary. Thus where there are several 
guardians for the same guardianship, or 
several officials for the administration 
of the same property, they are solidarily 
liable for all damage caused by the act 
or default -of any one of them, because 
each participates in the wrong done by 
the other. The examples given are all 


cases of passive solidary obligation. 
But there are also cases of active 
solidary obligation. Cp. Jhering, in 
his Jahrbiicher f Dogmatik , vol. xxiv. 
p. 129#. 

8 So far, however, as the obligation 
ex delicto creates a duty to pay a pen- 
alty (as in the case of furtum to pay 
duplum or quadruplum, § 85), the 
result is not a solidary obligation, but a 
number of independent obligations, the 
object of which, though equal in amount 
(e.g. duplum), is not identical. Hence 
each joint perpetrator of a theft has to 
pay his penalty in full (the object being 
to ensure the punishment of all), whereas 
the payment of damages by one of the 
parties liable releases die rest. 

* In the text I have adopted the 
argument contained in Unger’s able and 



38 + 


THE INSTITUTES 


§ 74 . The difference between a correal and a solidary obligation receives 
its best practical illustration from the rules concerning the extinction 
of the respective relations. The extinction of a solidary obligatio n 
as against all the parties conc erned can only be brought about b v 
p^Tbrmance, or something e^mvalent to performance; in Qther 
words, by the material satisfaction of the creditor. The object 
ofthe obirgation'being one, t Re performance of this object by one 
solidary debtor will necessarily release the others. If A has been 
compensated by one person for the damage he has suffered, he 
cannot claim damages over again from the other persons, for the 
simple reason that there is no longer any damage to compensate 
him for. A correal^ obligation^ howeye^ as against 

all the parties conc^ only ,by ^perfioirnianney^hiU Jjguany 

mode of extinction what^erj[ey^ frq p purely formal npp) 

/j which affects the existence of the common obligati o n, as, fnr pYaippl^ 
t 'by acceptilatio or litis contestation If a surety has been released 
from his liability by acceptilatio, i. e. by a formal contract of release 
(infra, § 89 I. 1), the principal debtor is thereby released from all 
further claims. If one of two correal creditors under a loan brings an 
action in respect of such loan, his litis contestatio (supra, pp. 301, 302) 
operates to consume not only his own, but also the other correal 
creditor’s right of action, and if judgment is given against him, 
such judgment entitles the successful defendant to meet the other 
correus with an exceptio rei judicatae. It follows from the com- 
munity of obligation that the correal principle (the principle of 
representation) is as applicable to the extinction of the obligation 
as it is to the rights and liabilities to which the obligation gives rise ; 
in other words, every party to a correal obligation represents the 
whole obligation, every party to a solidary obligation only represents 
his own obligation. 


ingenious essay on Passive Correality 
and Solidarity in Jhering’s Jahrbucher 
fur Dogtnatik, vol. xxii. (1884) p. 207 ff. 
His view is opposed by Hold&iZwei Ab- 
handlungen aus dent romischen Heckle , 
Festschrift fUr Scheurl, 1884, p. 31 ff.; 
and see Unger’s reply in Jhering’s/a^r- 
biichcr, vol. xxiii. p. 106 ff.), and also 


by Waldner, Die correale Solidarity 
(1885). According to Holder a correal 
obligation means a plurality of obliga- 
tions which are regarded, by a fiction, 
as being one and identical ; that is to 
say, the several debtors, or creditors, 
are treated by the law as mutually 
identical in respect of this obligation. 



THE LAW OF OBLIGATIONS 


385 


In the course of the development of Roman law the principle of § 74. 
correality was broken in upon. Thus Hadrian gave several co- 


sureties the exce ptio divisionis, i. e. the right to be sued for a 
pro portion al share only (infra, § 80, i. 3). Justinian extended this 
ri ght (the so-calle d * beneficium diyi sionjs ’J by his QQth Novel to 
persons who. 



matenally speaking, only interested in part of the obj^ct ^pf Jthe 
ofligation, for example, to persons who had hired a. room jointly 
or adcepTeS" a loan jointly . The effect of these changes was to 
subst itute pro tanto^t hfi^pripciple^L^PQrtiQnal shares (as applied 


in the case of joint ownership) in place of the principle of cor- 
r eaTffy T^A^ordingly by 1 . 28 C. de fidejussoribus (8, 40) Justinian 
abolished the consuming force of litis contestatio as regards passive 
correal obligation, i.e. he provided in effect that an action brought 
against on e correal debtor should, not henceforth operate^ tcT con- 
sume the right of ac{iQn_agajnst the other. Nevertheless tfrerule 
that a judgment obtained in an action to which one correus was 
a party was legally operative in regard to the other correi (so that 
the exceptio rei judicatae could be pleaded for, or against, the other 
correi), as also the rule that, where the period of limitation for a right 
of action was interrupted as against one correus, the interruption took 
effect as against the other correi, remained unaltered in the case 
both of active and passive correality. As far, then, as the law of 
Justinian is concerned, a correal obligation may still be defined as 
a number of obligations bound up into one T and a so lid ary obliga- 
tion as a number of independent , obligations existing concurrentl y. 
In every correal obligation the liability of one correus is exposed to 
the effects produced by the acts of the others. Thus if one correal 
creditor waives his claim against the debtor, or unsuccessfully sues 
the debtor, the other correal creditor loses his right. A correal 
debtor is moreover primd facie responsible for culpa imputable to 
his co-debtor. On the other hand, a solidary obligation is not 
affected by the acts of others ; the liability of one solidary debtor, 
for example, is not affected by an action brought against the other. 
It is only where the object of the obligation disappears (viz. by pay- 
ment, by material satisfaction) that the solidary obligation ceases by 


C c 


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386 


THE INSTITUTES 


§ 74 . virtue of its own contents to exist. In the law of Justinian the rule 
continues to hold good that correal obligation — joint agreement — 
means joint liability, and solidary obligation — joint delict — separate 
liability in respect of one and the same act 7 . 

L. 3 § i D. de duob. reis (45, 2) (Ulpian.) : Ubi duo rei facti 
sunt, potest vel ab uno eorum solidum peti; hoc est enim 
duorum reorum, ut unusquisque eorum in solidum sit obliga- 
tus possitque ab alterutro peti; et partes autem a singulis 
peti posse nequaquam dubium est ; quemadmodum et a reo 
et fidejussore petere possumus. Utique enim cum una 
sit obligatio, una et summa est; ut, sive unus solvat, 
omnes liberentur, sive solvatur uni, ab altero liberatio con- 
tingat. 

pr. I. de duob. reis (3, 16) : Et stipulandi et promittendi duo 
pluresve rei fieri possunt. Stipulandi ita, si post omnium 
interrogationem promissor respondeat spondeo, ut puta 
cum duobus separatim stipulantibus ita promissor respon- 
deat: UTRIQUE VESTRUM DARE SPONDEO. Nam si prius 

Titio spoponderit, deinde alio interrogante spondeat, alia 
atque alia erit obligatio nec creduntur duo rei stipulandi 
esse. Duo pluresve rei promittendi ita hunt : Maevi, 
QUINQUE AUREOS DARE SPONDES ? SEI, EOSDEM QUINQUE 
aureos dare spondes ? respondeant singuli separatim 
SPONDEO. 

§ 75. The Contents of an Obligation . 

§ 76 . Every obligation has for its object either dare or facere . By ‘dare’ 
is meant the procuring of owner