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liable for loss occasioned by bad management. He could sell movable
property when expedient, but not real estate, without judicial
authority. The tutor named by the father was preferred to all others.

[Sidenote: Real rights.]

The Institutes of Justinian pass from persons to things, or the law
relating to real rights; in other words, that which pertains to
property. Some things, common to all, like air, light, the ocean, and
things sacred, like temples and churches, are not classed as property.
Originally, the Romans divided things into _res mancipi_, and
_res nec mancipi_. The former comprehended houses, lands, slaves,
and beasts of burden, and could only be acquired by certain solemn
forms, which, if not observed, the property was not legally transferred.
The latter included all other things, and admitted of being transferred
by simple tradition.

[Sidenote: Occupancy.]

Occupancy, one of the original modes of acquiring property, was applied
to goods and persons taken in war; to things lost by negligence, or
chance, or thrown away by necessity; to pearls, shells, and precious
stones found on the sea-shore; to wild animals, to fish, to hidden

Acquisition, by accession, pertained to the natural and industrial
fruits of the land, the rents of houses, interest on money, the increase
of animals, lands gained from the sea, and movables.

[Sidenote: Transfer of property.]

[Sidenote: Testaments and legacies.]

[Sidenote: Laws of succession.]

[Sidenote: The laws in inheritance.]

Two things were required for the transfer of property, for it is the
essence of property that the owner of a thing should have the right to
transfer it, - first, the consent of the former owner to transfer the
thing upon some just ground; and secondly, the actual delivery of the
thing to the person who is to acquire it. Movables were presumed to be
the property of the possessors, until positive evidence was produced to
the contrary. A prescriptive title to movables was acquired by
possession for one year, and to immovables by possession for two years.
Undisturbed possession for thirty years constituted in general a valid
title. When a Roman died, his heirs succeeded to all his property, by
hereditary right. If he left no will, his estate devolved upon his
relations in a certain order prescribed by law. The power of making a
testament only belonged to citizens above puberty. Children under the
paternal power could not make a will. Males above fourteen, and females
above twelve, when not under power, could make wills without the
authority of their guardian; but pupils, lunatics, prisoners of war,
criminals, and various other persons, were incapable of making a
testament. The testator could divide his property among his heirs in
such proportions as he saw fit; but if there was no distribution, all
the heirs participated equally. A man could disinherit either of his
children by declaring his intentions in his will, but only for grave
reasons, such as grievously injuring his person or character or
feelings, or attempting his life. No will was effectual unless one or
more persons were appointed heirs to represent the deceased. Wills were
required to be signed by the testator, or some person for him, in the
presence of seven witnesses who were Roman citizens. If a will was made
by a parent for distributing his property solely among his children, no
witnesses were required, and the ordinary formalities were dispensed
with among soldiers in actual service, and during the prevalence of
pestilence. The testament was opened in the presence of the witnesses,
or a majority of them; and after they had acknowledged their seals, a
copy was made, and the original was deposited in the public archives.
According to the Twelve Tables, the powers of a testator in disposing of
his property were unlimited, but in process of time laws were enacted to
restrain immoderate or unnatural bequests. By the Falcidian law, in the
time of Augustus, no one could leave in legacies more than three fourths
of his estate, so that the heirs could inherit at least one fourth.
Again a law was passed, by which the descendants were entitled to one
third of the succession, and to one half if there were more than four.
In France if a man die leaving one lawful child, he can only dispose of
half of his estate by will; if he leaves two children, the third; if he
leaves three or more, the fourth. [Footnote: _Code Civil_, Art.
913.] In England a man can cut off both his wife and children.
[Footnote: Williams, _Exec._, p. 3.] The Romans recognized bequests
in trust, besides testaments, by which property descended directly to
the heir. The person charged with a trust was bound to restore the
subject at the time appointed by the testator. The trustee could not
alienate an estate without the consent of all the parties interested,
except for the payment of debts. All persons capable of making a will
could leave legacies, real or personal, but these were not due if the
testator died insolvent. When a man died intestate, the succession
devolved on the descendants of the deceased; but, these failing, the
nearest ascendants were called; if there were brothers and sisters, they
were entitled to succeed together along with the ascendants in the same
class. Children succeeded to property, if their father died intestate,
in equal portions, without distinction of sex, and if there was only one
child he took the whole estate. A descendant of either sex, or any
degree, was preferred to all ascendants and collaterals. The descendants
of a son or daughter, who had predeceased, took the same share of the
succession that their parent would have done had he been alive. In
England, if all the children are dead, and only grandchildren exist,
they all take, not by families, but _per capita_, equal shares in
their own right as next of kin, and Mackenzie thinks this arrangement is
more equitable than the Roman. [Footnote: Mackenzie, p. 288] If there
were no descendants, the Roman father and mother, and other ascendants,
excluded all collaterals from the succession except brothers and sisters
of the whole blood, and the children of deceased brothers and sisters.
When ascendants stood alone, the father and mother succeeded in equal
portions, and if only one survived, he or she succeeded to the whole, so
that grandparents were excluded. If there were brothers and sisters of
the whole blood, the estate was divided among them _in capita_,
according to the number of persons, including the father and mother. The
children of a deceased brother were not admitted to the succession along
with ascendants and surviving brothers and sisters. [Footnote:
_Ibid._ 290] If a person died leaving neither ascendants nor
descendants, his brothers and sisters succeeded to his estate in equal
shares. And if the intestate left also nephews and nieces by a deceased
brother or sister, these succeeded, along with their uncles and aunts,
to the share their parent would have taken. On the failure of brothers
and sisters by the whole blood, the brother and sisters by the half
blood succeeded, and if any of these brothers and sisters have died
leaving children, the right of representation was extended to them also,
just as in the case of children of brothers-german. When husband or wife
died, without leaving relations, the survivor was called to the
succession. A widow who was poor and unprovided for had a right to share
in the succession of her deceased husband. When he left more than three
descendants, she was entitled to participate with them equally. If there
were only three or fewer, she was entitled to one fourth of the estate.
If she had children by the deceased, she had only the usufruct of her
portion during her life, and was bound to preserve it for them. If a man
had no legitimate children, he could leave his whole inheritance to his
natural children, or to their mother; but if he had lawful children, he
could leave only one twelfth to the natural children and their mother.
If the father died intestate, without leaving a lawful wife or issue,
his natural children and their mother were entitled to one sixth of the
succession, and the rest was divided among the lawful heirs.

[Sidenote: Contracts.]

In the matter of contracts, the Roman law was especially comprehensive,
and the laws of France and Scotland are substantially based upon the
Roman system. The Institutes of Gaius and Justinian distinguish
four sorts of obligation, - aut _re_, aut _verbis_, aut _literis_,
aut _consenser_. Gibbon, in his learned chapter, prefers to consider
the specific obligations of men to each other under promises, benefits,
and injuries. Lord Mackenzie treats the subject in the order of the

"Obligations contracted _re_ - by the intervention of things - are
called by the moderns real contracts, because they are not perfected
till something has passed from one party to another. Of this description
are the contracts of loan, deposit, and pledge. Till the subject is
actually lent, deposited, or pledged, it does not form the special
contract of loan, deposit, or pledge." [Footnote: Mackenzie.]

[Sidenote: Loans.]

In regard to loans, the borrower was obliged to take care of it as if it
were his own. _In rebus commodatis tails diligentia proestanda est,
qualem quisque diligentissimus paterfamilias suis rebus adhibet_.
[Footnote: D. 13, 6, 1 pr.] He could only use a thing for the purpose for
which it was lent; he could not keep it beyond the time agreed upon, nor
detain it as a set-off against any debt. He was bound to restore the
article in the same condition as received, subject only to the
deterioration arising from reasonable use, whether a horse, a house, or
a carriage. And he was required to make good all injuries caused by his
own fault or negligence. If the article perished, without any blame or
neglect, the loss fell on the owner. If the loan was for consumption,
which was called _mutuum_, like corn, or oil, or wine, the borrower
was required to return as much of the same kind and quality, whether the
price of the commodity had risen or fallen. In a loan of money, under
_mutuum_, the borrower was not required to pay interest. Interest
was only due _ex lege_, or by agreement. The rate varied at
different times; generally, it was eight and one third per cent., and
even more than this in the latter years of the republic. Justinian
introduced a scale which varied with different classes of society.
Persons of illustrious rank could lend money at four per cent., ordinary
people at six, and for maritime risks twelve; but it was unlawful to
charge interest upon interest. [Footnote: C. 4, 32, 26, Section 1.]
Property would double, at eight and one third, in twelve years, not so
rapidly as by our system of compound interest, especially at the rate of
seven per cent. In England the usury laws of different monarchs limited
interest from ten per cent, to five; but these were repealed in 1854.
Only five per cent. can now be recovered upon any contract.

[Sidenote: Deposits.]

A deposit differed from a loan in this, - that the depositary was not
entitled to any use of a thing deposited, and was bound to preserve it
with reasonable care, and restore it on demand. As he derived no
advantage, he was entitled to be reimbursed for all necessary charges.
Ship-masters, innkeepers, and stablers, were responsible for the luggage
and effects of travellers intrusted to their care, which policy is now
adopted in both Europe and America, on the ground that if they were not
held strictly to their charge, being not a very reputable class of men
in ancient times, they might be in league with thieves. An innkeeper was
therefore held responsible for loss, or damage, or theft, to secure the
protection of travellers, whose patronage was a compensation. In case of
robbery, when goods were taken by superior force, he was not
responsible, nor was he for loss occasioned by inevitable accident.

[Sidenote: Pledges and securities.]

At Rome, pledges were customary, as a security for money due, on
condition of their restoration after the payment of a debt. Real
property, like houses and lands, as well as movables, were the subject
of pledge. [Footnote: D. 20, 1.] The creditor was bound to bestow
ordinary care and diligence in the preservation of the subject, but he
could not use it, or take the profits of it, without a special contract.
By the _pactum antichresis_, the creditor was allowed to take the
profits in lieu of the interest on his debt; by the _lex
commissoria_, the thing pledged became the absolute property of the
creditor if the debt was not paid at the time agreed on. But as this
condition was found to be a source of oppression, it was prohibited by a
law of Constantine. [Footnote: C, 7, 35.] When the debt, interest, and
all necessary expenses were paid, the debtor was entitled to have his
pledge restored to him. After the time of payment was passed, the
creditor had a right to sell the pledge, and retain his debt out of the
produce of the sale; if there was a deficiency, the balance could be
recovered by an action; if there was a surplus, the debtor was entitled
to it. The Roman pledge was of the nature of the modern business of
pawnbroking and of a mortgage.

[Sidenote: Verbal Contracts.]

Next to the perfection of contracts by the intervention of things
_re_, were obligations contracted by _verbis_ - solemn words -
and by _literis_ or writing. The _verborum obligatio_ was contracted
by uttering certain formal words of style, an interrogation
being put by one party and an answer given by the other. These
stipulations were binding. In England all guarantees must be in writing.

[Sidenote: Written obligations.]

The _obligatio literis_ was a written acknowledgment of debt
chiefly employed when money was borrowed, but the creditor could not sue
upon the note within two years from its date, without being called upon
also to prove that the money was in fact paid to the debtor.

[Sidenote: Sales.]

Contracts perfected by consent - _consenses_ - had reference to sale,
hiring, partnership, and mandate. All contracts of sale were good
without writing. When an article was sold and delivered, the market
price, as fixed by custom, determined the price, if nothing had been
said about it. The seller was bound to warrant that the thing sold was
free from defects, and when the subject did not answer this implied
warranty, the sale might be set aside. But the seller could stipulate
that he should not be held to warrant against defects. Property was not
transferred without actual delivery. When the sale was completed, all
the risks of the thing sold passed to the purchaser. In the case of
commodities sold by weight, number, or measure, the contract was not
completed until the goods were weighed, counted, or measured, which
sometimes caused considerable difficulty. After delivery, the seller was
bound to warrant the title to the buyer, and to indemnify him for any
loss. [Footnote: D. 22, 2. C. 8, 45.]

[Sidenote: Leases.]

[Sidenote: Agents and Partners.]

In regard to hiring, all sorts of things, which were the subject of
commerce, may be let for hire. Leases of land and houses come under this
head. They were generally given for five years, and unless there was an
express stipulation, the lessee might sublet to another. The lessor was
required to deliver the subject in a good state of repair, and maintain
it in that condition, and to guarantee its peaceable enjoyment; the
lessee was bound to use the subject well, to put it to no use except
that for which it was let, to preserve it in good condition, and restore
it at the end of the term. He was bound also to pay the rent at the
stipulated period, and when two years' rent were in arrear, the tenant
could be ejected. The tenant of a farm was entitled to a remission of
his rent if his crop was destroyed by an unforeseen accident or
calamity. A contractor who agreed to undertake a piece of work was
required to finish it in a proper manner, and if from negligence or
ignorance the work was defective, he was liable to damages. In a
partnership, if there were no express agreement, the shares of profit
and loss were divided equally. Each partner was bound to exercise the
same care for the joint concern as if it were his own. The acts of one
partner were not binding on another, if he acted beyond the scope of the
partnership. If one of the partners advanced money on account of the
partnership, each of the partners were bound to contribute to the
indemnity in proportion to his share of the concern; and if any of them
became insolvent, the solvent shareholders were obliged to make up the
deficiency. [Footnote: D. 17, 2, 67.] An agent could be employed to
transact business for another, but was required to act strictly
according to his orders, and the mandant, who gave the orders, was bound
to ratify what was done by the mandatary, and to reimburse him for all
advances and expenses incurred in executing the commission. By the Roman
law agents were not remunerated. Donations could not be made beyond a
certain maximum. Justinian ordered that when gifts exceeded five hundred
solidi, a formal act stating the particulars of the donation should be
inscribed in a public register.

When a person spontaneously assumed the management of the affairs of
another in his absence, and without any mandate, this was called
_negotiorum gestio_, and the person was bound to perform any act
which he had begun, as if he held a proper mandate, and strictly account
for his management, while the principal was bound to indemnify him for
all advances and expenses.

When money was paid through error it could be recovered, under certain
circumstances. But this point is a matter concerning which the jurists

[Sidenote: Libels.]

[Sidenote: Damages.]

Acts which caused damage to another obliged the wrongdoer to make
reparation, and this responsibility extended to damages arising not only
from positive acts, but from negligence or imprudence. In an action of
libel or slander, the truth of the allegation might be pleaded in
justification. [Footnote: D. 47, 10, 18.] In all cases it was necessary
to show that an injury had been committed maliciously. But if damage
arose in the exercise of a right, as killing a slave in self-defense, no
claim for reparation could be maintained. If any one exercised a
profession or trade for which he was not qualified, he was liable to all
the damage his want of skill or knowledge might occasion. When any
damage was done by a slave or an animal, the owner of the same was
liable for the loss, though the mischief was done without his knowledge
and against his will. If any thing was thrown from a window of a house
near the public thoroughfare, so as to injure any one by the fall, the
occupier was bound to repair the damage, though done by a stranger.
Claims arising under obligations might be transferred to a third person,
by sale, exchange, or donation; but to prevent speculators from
purchasing debts at low prices, it was ordered that the assignee should
not be entitled to exact from the debtor more than he himself had paid
to acquire the debt with interest, - a wise and just regulation which it
would be well for us to copy. In regard to the extinction of obligations
the creditor is not bound to accept of payments by instalments, or any
thing short of proper payment at the time and place agreed upon. When
several debts were due, the debtor, in making payment, could appropriate
it to any one he pleased. [Footnote: D. 46, 3, 1.] When performance
became impossible, without any fault of the debtor, such as when the
specific subject had perished by unavoidable accident, the obligation
was extinguished; but if the impossibility was caused by the fault of
the debtor, he was still liable. This was a great modification of the
severity of the ancient code, when a debtor could be sold into slavery
for his debt. As certain contracts are formed by consent alone, so they
could be extinguished by the mutual consent of the contracting parties,
without performance on either side. In some cases the mere lapse of time
extinguished an obligation, as in accordance with the modern system of

[Sidenote: Law of actions.]

The next great department of Roman jurisprudence pertained to actions
and procedure. The state conferred on a magistrate or judge jurisdiction
to determine questions according to law. Civil jurisdiction pertains to
questions of private right; criminal jurisdiction takes cognizance of
crimes. When jurisdiction was conferred on a Roman magistrate, he
acquired all the powers necessary to exercise it. The _imperium
merum_ gave the power to inflict punishment; the _imperium
mixtum_ was the power to carry civil decrees into execution. A
_real action_ was directed against a person in the territory where
the subject in dispute was located.

By the ancient constitution, the king had the prerogative of determining
civil causes. The right then devolved on the consuls, afterwards on the
praetor, and in certain cases on the curule and plebeian ediles, who
were charged with the internal police of the city.

[Sidenote: The Praetors.]

The praetor, a magistrate next in dignity to the consuls, acted as
supreme judge of the civil courts, assisted by a council of
jurisconsults to determine questions in law. At first one praetor was
sufficient, but as the limits of the city and empire extended, he was
joined by a colleague. After the conquest of Sicily, Sardinia, and the
two Spains, new praetors were appointed to administer justice in the
provinces. The praetor held his court in the comitium, wore a robe
bordered with purple, sat in a curule chair, and was attended by

[Sidenote: Other judges.]

The praetor delegated his power to judges, called Judex, Arbiter, and
Recuperatores. When parties were at issue about facts, it was the custom
for the praetor to fix the question of law upon which the action turned,
and then to remit to a delegate to inquire into the facts and pronounce
judgment according to them. In the time of Augustus there were four
thousand judices, who were merely private citizens, generally senators
or men of consideration. The judex was invested by the magistrate with a
judicial commission for a single case only. After being sworn to duty,
he received from the praetor a formula containing a summary of all the
points under litigation, from which he was not allowed to depart. He was
required not merely to investigate facts, but to give sentence. And as
law questions were more or less mixed up with the case, he was allowed
to consult one or more jurisconsults. If the case was beyond his power
to decide, he could decline to give judgment. The arbiter, like the
judex, received a formula from the praetor, and seemed to have more
extensive power. The recuperatores heard and determined cases, but the
number appointed for each case was usually three or five.

[Sidenote: The centumvirs.]

The centumvirs constituted a permanent tribunal composed of members
annually elected, in equal numbers, from each tribe, and this tribunal
was presided over by the praetor, and divided into four chambers, which,
under the republic, was placed under the ancient quaestors. The
centumvirs decided questions of property, embracing a wide range of
subjects. [Footnote: _Cicero de Orat_., i. 38.] The Romans had no
class of men like the judges of modern times. The superior magistrates
were changed annually, and political duties were mixed with judicial.
The evil was partially remedied by the institution of legal assessors,
selected from the most learned jurisconsults. Under the empire, the
praetors were greatly increased. Under Tiberius, there were sixteen who
administered justice, beside the consuls, six ediles, and ten tribunes
of the people. The emperor himself became the supreme judge, and he was
assisted in the discharge of his judicial duties by a council composed
of the consuls, a magistrate of each grade, and fifteen senators. The
Praetorian prefects, although, at first, their duties were purely
military, finally discharged important judicial functions. The prefect
of the city, in the time of the emperors, was a great judicial
personage, who heard appeals from the praetors themselves.

[Sidenote: Witnesses.]

In all cases brought before the courts, the burden of proof was with the
party asserting an affirmative fact. Proof by writing was generally
considered most certain, but proof by witnesses was also admitted.
Pupils, lunatics, infamous persons, interested parties, near relations,

Online LibraryJohn LordThe Old Roman World, : the Grandeur and Failure of Its Civilization → online text (page 20 of 50)