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John Norton Pomeroy.

An introduction to municipal law : designed for general readers and for students in colleges and higher schools online

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severe restraints upon wife and children, but which confer-
red none of the special privileges belonging to the citizens.

§ 511. When a daughter married, she passed out from
under the power of the head of her own family, into the ma-
nus of the chief of her husband's family. The extent of the
marital power oii\\Q paterfamilias was the same as that which
he possessed over his children. His wife was to him legally
as a daughter ; she was in the place of sister to her own chil-
dren, and inherited from her husband as one of them. The
paterfamilias was her lord, her master, her judge, her law-
giver ; her liberty and life were in his hands ; her dignity
as materfamilias was an empty show.

§ 512. 3d. Mancipium. — This species of power was ac-
quired by the solemn sale of a freeman. It was used for
the purpose of emancipating a son from the paternal power
of \m paterfamilias. The father made a solemn public sale



AGNATS — TUTORS. 306

of his son to a third person, who immediately emancipated
his purchased chattel, and the latter fell again under the
domestic yoke. When this process had been repeated three
times, the law declared the last act of emancipation valid,
and the child was free from the family tie.

§ 513. 4th. Agnation, or Family Relationship. (Agna-
tic, agnati.) The persons thus under the power of a living
paterfamilias^ including wife and descendants, or who would
have been under his power w^ere he still living, were bound
together in a close family relationship termed agnation.
Among these relations or agnats, were confined all the priv-
ileges of the Ro'.nan family as a domestic institution, and
as an important civil element in the state. Among the
rights pertaining to the agnats was that of inheritance from
the family head, or from each other, and that of guardian-
ship over minor children, and over the women, when the
paterfamilias was dead.

§ 514. 5th. This leads me to describe another species of
persons alieni juris^ those subjected to the control of tutors
or guardians, and of curators. When th.c paterfamilias died
leaving children of either sex under the age of puberty, or
unmarried daughters of any age, or a wife, these were all
placed under the control of a tutor or guardian. Thus the
early Roman law did not recognize the ability of a woman
in any condition of life to manage her own aifairs. The
daughter was under the paternal power during the lifetime
of i\\e paterfamilias until her marriage. Upon that event she
passed under the manus of her husband, or of her husband's
father. At the death of the one whose dependent she was,
whether father or husband, she was not freed, but was
transferred to the care of a tutor, who was chosen from the
agnats, or family relations of the family to which she then
belonged. Thus the unmarried sister might fall under the
control of her own brother, and the widowed mother under
that of her son.

Tlie power of the tutor extended to the persons and
20



306 THE SOMAN LAW.

property of the wards, but was not so unlimited as that
lodged in the hands of the paterfamilias. The tator was
appointed by the last will of i\xe paterfajnilias, or, in default
of such an appointment, the right devolved upon one of the
agnats. Curators were a species of guardians placed over
the insane, idiots, or spendthrifts.

§ 515. 1 cannot better close this detail of the primitive
Roman family relations, than by quoting M. Troplong's
graphic and picturesque description. " What was the
Roman family ? Was it founded upon blood and nature ?
No. It was the civil bond of power (potestas, manus)
which united its members and maintained their segregation.
One was not a member of a family simply by being a son,
or a wife, or a relation, but by being a son under power, a
wife under power, a relation by submitting to an actual
common power, or which would have been such had tlie
chief remained alive. In a word, the Roman family, the
singular creation of a people born for power, was simply an
assemblage of individuals recognizing the power of a single
chief. Whoever recognizes this power is in the family ;
whoever was freed therefrom, although child or descendant,
was not in the family. Simple mamage was an insufficient
bond to bring the wife into the family of her husband ; she
yet remained in her own family, under the name of matron ;
she was a stranger to that of her children. But if the nup-
tials were followed by a year of possession of the wife by
the husband (usns), or if they had been consecrated by the
religious and patrician ceremonies of confarration, or had
been accompanied by the civil forms of sale (coemptio),
then the wife passed under the power of her husband. She
became matcrfajnilias, and this power completely breaks
lier spirit by its character of austere severity ; for the hus-
band was judge of the wife ; he was able alone, in the older
times, later by aid of a family council, to condemn her to
death ; he is master of her person and of her goods, almost
as if he had obtained her by conquest. And since the power



IDEA OF THE EOMAN FAMILY. 307

made the family, tlie wife quitted her own, to enter that of
her husband. There she was received as a daughter ; she
had only the rank of sister in blood to the children whom
she had given to her husband. Outwardly, without doubt,
she will participate in the honors of her husband ; she will '
be surrounded by an official respect. But in the bosom of
her family she bows before the majesty of her lord. She
has not the right of property while her husband lives, and
she will inherit from him only as the adopted daughter of
this civil father. The death of her husband will not cause
her to pass again into her own family ; a sacred bond re-
tains her in that which she has adopted ; she will find there
a legal tutor among her own agnats, or a testamentary tutor
of her husband's choice.

§ 516. " By the side of this power was another, enjoyed
by no one except a Roman citizen, — the paternal power.
"What shall I say of this terrible power, which was one of
the bases of the Roman constitution ? It absorbed in the
paterfamilias the persons of the son, and of the wife in the
power of the son, and of his children, and all the property
which he had acquired. The father is in this sanctuary
judge supreme ; he exercises over his children a legislation
invested with the right of life and death. But it was not
nature which gave this power ; it did not proceed from nat-
ural filiation. It was a creature of the civil law, and ex-
tended as well over children adopted from strangers, as
those bom in the wedlock.

§ 517. " Wherever the power of the father extended,
the family also extended its branches. All those who were
bound by these rigorous ties, or who would have been
bound if the common author had not been dead, had among
themselves a civil relationship called agnatio^ which alone
gave the rights of the family and of succession to property.
The aggregation of agnate alone formed the Roman family,
and had the right to be counted in forming the political
family, the gens. It is in the bosom of this civil family



308 THE KOMAN LAW.

that the father will find heirs to perpetuate his name ; it ia
there that the rights of inheritance and of tutorship are de-
posited."

II. OF THINGS, WHICH MAY BE THE OBJECTS OF RIGHTS.

§ 518. The arbitrary character of the ancient Koinan law
was not confined to the domestic relations and the rights of
persons. Contrary to equity and natural justice as were its
rules in reference to these subjects, its provisions regarding
the rights of property were equally rude and national. They
reflected the stem Roman spirit everywhere, struggling to
aggrandize the state, to regard the individual merely as an
unit in the commonwealth.

§ 519. 1. Classes of Things. — The divisions which the
ancient Koman law made, were not those adopted by the
English and American jurisj)rudence, lands and chattels.
The same rights, the same kinds of property, the same
naethods of acquisition and transfer, applied to each of these
two species of possessions, between which the feudal spirit
has left so broad a line of demarkation in modem legislation.
Yet there were classes of things, having their origin in the
national manners and history.

§ 520. 1st. There were things of a superior character
over all others, such as were the objects of desire among
the primitive Romans, and appeared most precious to the
military and agricultural simplicity of the people. This di-
vision included the fanns, and the houses of the city and
country about the city, the slaves, and the beasts of burden
and industry, the ox, the horse, and the ass. Such were the
articles whose possession excited the ardor of the first sim-
ple Romans. The state, which had obtained them in war
and divided them among the citizens, was considered as the
sacred source of this patrimony. Hence the property in
these things was regulated by the intervention of the state,
whenever they were transferred from one to another. These
things were known as lies Mancipi.



THE ROMAN PEOPEKTY. 309

§ 521. 2d. All other things, however rare and costly,
were considered as inferior, and. were included in the class
res nee mancijpi. The early civil law passed them by as of
little moment, and. so far as rights of property in them were
concerned, left them to the operation of the laws of nature.

§ 522. 2. Kinds of Property which might he had in
Things. — Corresponding to the two classes of things, were
two kinds of property or species of ownership, which might
be had in them.

1st. The fii'st of these was the true Roman or Quiritary
property (property ex jure quiritum), which was the espe-
cial creation of the civil law. This species of ownership
could only be enjoyed by a E-oman citizen. A stranger
might possess the objects of this kind of property during
any extent of time, the ownership still would, not appertain
to him. The class of things which might thus be subjected
to the peculiar dominion of the Roman citizen, were the res
raancijpi — the farms and houses, the slaves, the beasts of bur-
den and industry.

§ 523. The peculiar and arbitrary characteristic of this
purely Roman property was that it could not be lost or
parted with except by the observance of certain well-defined
forms of sale. If these forms had not been followed, any
transfer of an article belonging to the favored class was ab-
solutely void, and the original owner might retake it from
the hands of any possessor, even from one claiming it in
good faith, and who had paid for it a full price.

§ 524. The methods of acquiring and transferring the
Roman property, or dominium ex jure quiritum from one
citizen to another, were three.

1st. Mancipation. This method transferred the property
at once. It i-ecognized the original proprietorship of the
state, and called it in to preside over each sale from one
owner to another. In the earlier stages of Roman ciWliza-
tion, this was the common mode of purchase and sale. The
two parties, the seller and the buyer, mu.st both be citizens,



310 THE KOMAN LAW.

and in each other's presence ; there should also be a weigher
to measure out the price, who must be a public person, and
five otlier citizens as witnesses. The thing to be sold, if
movable, must be present, within the touch of both parties.
The price was then weighed out, and certain indispensable
formulas said over, and the Koman property was trans-
ferred.

2d. Another method by which a citizen might acquire
this dominion or right of ownership, was prescription (usus,
usucaptio). This consisted of a constant possession of land
for two years, or a chattel for one year, and at the expira-
tion of that time the mere occupancy was changed into the
Roman property.

3d. The third method consisted in a fictitious action be-
fore a magistrate. The new proprietor demanded the thing,
the old owner did not object, and the officer decreed that
the claim should be allowed.

§ 525. Such was the exalted Roman right of property,
carefully guarded by the earlier civil law, sternly refused to
a stranger, the birthright of the citizen, entirely opposed to
the milder and equitable jus gentium. The course of time
and the progress of civilization, acting through the praetorian
legislation, gradually relaxed the sternness of this species
of ownership, and finally caused it to disappear from the
national jurisprudence.

§ 526; 2d. The second kind of property was that in
things of the class res nee mancipi, and might be enjoyed
by citizens or strangers. The characteristics of this owner-
ship, and the methods of acquiring and transfer, were sim-
ple and equitable. The things subjected to it were consid-
ered unworthy to participate in the sacramental solemnities
of mancipation ; they had no civil method of alienation ;
mere delivery sufficed to convey a right of ownership ; they
were governed by the natural law.

§ 527. 3. Succession to the Estats of a deceased Person. —
The ancient Koman law provided two methods of succession



SUCCESSION TO THE ESTATES OF THE DEAD. 811

to the estate of a deceased person ; by last will, and by the
disposition made of the property when there was no will.

1st. By Will. For a person to be able to make a will,
he must be a master of his own property, not under pater-
nal power, or nnder a tutor or curator. The ancient wills
were of three kinds. One, used in time of peace, consisted
of a declaration made by the testator before a special as-
sembly of the people. Another was used by soldiers in
time of war. The third or most common form consisted of
a fictitious sale, made by the testator to the persons intend-
ed as heirs, attested by witnesses, and reduced to writing.
The simple form of will resembling that now in use w^as in-
troduced at a later period by the prsetors.

§ 528, The essential feature of the will was that it must
contain some person or persons as heirs. The heir thus
designated took all of the property, and was subjected to all
of the debts and obligations of the testator. Thus the de-
ceased was perpetuated in his heir. Subsequent modifica-
tions of the law relieved the heir from this absolute liability
to pay the debts of the decedent, and gave him a time to
examine and decide whether he would accept the inherit-
ance, and at a still later period he was compelled to pay the
debts only to the amount of the property which he received,

§ 529. 2d. Succession in Case of Intestacy. When no
will was made, the law regulated the inheritance. Those to
whom the property primarily descended w^ere the persons
who, at the time of the death, were in the actual power or
manus of the deceased, including the wife, sons, and unmar-
ried daughters. The property was equally divided among
them, but the widow and unmarried daughters, and all
children under the age of puberty, were put in the care of a
tutor. These heirs inherited, not so much because they
were of the same blood as the decedent, but because they
had been under liis common power. In case there were
none of these heirs, the estate was divided among the agnats
or family relations of the deceased, those who with him had



312 • THE EOilAN LAW.

been under the power of a common 'paterfamilias. These
failing, the members of the gcTis or house succeeded to the
inheritance. Thus the Roman law, at its foundation, disre-
garded the tie of blood, which the English legislation as-
sumes as the foundation of the rules of succession and in-
heritance, and substituted in its place the purely civil bond
of the Roman family, united under the arbitrary and im-
placable nexus of the power of the paterfamilias.

III. OF OBLIGATIONS.

§ 530. The term obligation was not used until a later
period of the Koman law, but in the most ancient times
there existed those rights to which this name was afterwards
applied. In this primitive state of the jurisprudence, obliga-
tions were intimately connected with the technical forms
of action which have been described in a former chapter ;
indeed the law laid no duty upon an individual, unless it
was such as could be enforced by some known judicial pro-
ceeding.

These rights inhering in one person, and corresponding
duties in another, were entirely the creatures of the civil
law ; natural obligations were not recognized by the Ro-
man citizen or the old Roman legislation, but were after-
wards introduced and enforced by the prsetors, who finally
built up so splendid a structure of equitable rules upon this
rigid foundation of the early national law.

§ 531. A legal obligation then, during the epoch we
are considering, was that by which an individual (reus,
creditor) had the right to force another by a judicial action
to fulfil his engagements, even at the sacrifice of his liberty
and property. Of these there were two general classes :
those arising from a contract (ex contractu), and those arising
from a fault (ex delicto).

§ 532. 1. Of obligations arising from a contract. Con-
tracts were of two kinds : those which were based upon a
prior delivery of something by the demander to the defend-



CLASSES OF CONTEACTS. ' 313

ant, from wliich a duty arose to return either the very thing
or its value, or to do some service ; and those which were
perfected by a verbal promise in which all of the formali-
ties prescribed by the law had been strictly observed.

§ 533. 1st. Contracts based upon the prior delivery of
something could be made in two modes, viz. : when the
intention was that the thing itself or one of the same kind
should be returned ; or when it was to be exchanged for a
different thing or for some service. Of the former class
there were four contracts, afterwards known as Mutuum^
Commodatum, Dejpositum, and Pigmis. Jfutuum corre-
sponded to our loan of money or other thing when the bor-
rower contracted to return the same kind of thing as he
received. Commodatum was the gratuitous loan of some
article, and the obligation was to restore the identical thing.
Depositum was the gratuitous deposit or entrusting of an
article by its owner to the care of another for safe keeping,
with the understanding that it should be redelivered when
called for. Pignus or pledge was the delivery of a thing
by a debtor to his creditor as security, and the duty rested
upon the latter to return the chattel when the debt was paid.
The law gave a special action to enforce the obligation
arising from each of these contracts.

Contracts of the second class were those in which a per-
son gives or does something, that another may give or do
something else in return, and were well expressed by the
pithy Latin formulas, do ut des, do id facias, facio ut dts,
SLiidyacio ut facias.

§ 534. 2d. Contracts perfected by words. All contracts
containing a reciprocal obligation could be the foundation
of an action, w^here they were composed of a verbal ques-
tion proposed by the creditor, and a reply to this demand
from the other party. The form of solemn question and
answer was common among the Romans. In this species
of obligation it was not conscience, nor a notion of justice
or injustice whicli bound the party, it was simply the word,



814 THE KOMAN LAW.

the outward literal form in wliich the agreement was cast.
The Twelve Tables enacted, Uhi lingua nvncvj/asset, ita
jus esio. I^othing was considered as promised, but that in-
cl iided in the very formula, in the question and answer. For
example, if the seller should conceal a hidden defect in the
tldng sold, he was not held bj any obligation to make res-
titution to the buyer for the fraud, for he had engaged
nothing in regard to this thing by his words.

This entire absence of good faith in the contracts recog-
nized by the primitive law, was gradually remedied by the
])retorian judicial legislation, and the equitable obligations
introduced by tliese magistrates were extensive enough to
embrace all of the transactions of a great and busy people.

§ 535. 2. The obligations arising from faults (ex delicto),
which the old law noticed, were few. Certain acts which
modern legislation regards as crimes were treated by the
Komans as the foundation of a legal duty to make repara-
tion, which could be enforced by a civil action. Among
these the principal were theft, damage to the property of
another by carelessness or other unlawful means, and inju-
ries to the person of another (furtum, damnum, injuria).

§ 536. Such were the principal features of the ancient
private law of the Romans, as it affected persons, things,
and obligations. It was certainly rude, arbitrary, unnatu-
ral. But at the same time it was a comprehensive system,
embracing all the topics found in the legislation of a later
age. How superior is it in all respects, as a system, to the
early codes of the Franks and Saxons. The rules thus
stated remained the basis of the jurisprudence through its
whole progress, and gave form to the new growth built upon
this foundation.



THE PHILOSOPHIC AND CHRISTIAN PERIOD.

§ 537. From the severe, arbitrary, aristocratic civil \9,yT
of ancient Rome, the progress was steady through the pe-



SLAVES AND FEEEMEIir.



315



nod of tlic republic and the earlier empire, towards a com-
plete agreement with natural law and equity. Of the
means, methods, instruments, and spirit of this development ;
of the praetors, and their moulding power over the national
jurispradence ; of the jurisconsults during the empire, and
their enlightened and philosophic discussion of legal prin-
ciples, and their systematizing labors and suggestions to the
magistrates ; and of the imperial constitutions, I have suffi-
ciently treated in Part First. I now propose only to give
a sketch of the result of these centuries of improvement, as
it is summed up in the Institutes of Justinian. The com-
mencement and close of this national jurisprudence thus
brought into contrast, will enable us to judge of the im-
mense power of courts animated by the spirit of an advanc-
ing civilization, in building up a system of municipal law.

I shall treat in order, I. Of Persons ; 11. Of Things or
Property ; III. Of Obligations.

First. Of Persons.

§ 538. 1. The general division still existed of slaves and
freemen. Slaves were those born of slave mothers, those
taken captive in war, or those who suffered themselves to be
sold into sei-vitude. Tlie legal condition of all slaves was
the same, but the master's ancient irresponsible power had
been taken away since the prevalence of Christianity.

Those not slaves, were either freemen (ingenui), who
were bom of free parents, or even of a free mother, and
freedmen (libertini), who had been manumitted from servi-
tude. After the empire became Christian, increased facili-
ties were given for manumitting slaves, and freedmen came
to hold all the rights of Roman citizens. When a slave was
made his master's heir by will, he became free thereby.
Yet it was unlawful for an insolvent master to set his slaves
at liberty in fraud of his creditors. Unless the actual inten-
tion to defraud existed, however, the freedmen retained their



316 THE EOMAII LAW.

liberty, altliough the owner's property was insujffiL'ieut to
pay his debts.

§ 539. 2. The Domestic Relatioxs. — Husband and
Wife. — The basis of marriage was the consent of the parties,
which must be accompanied by that of the parents if either
party were under the paternal power. A parent who un-
justly withheld his consent could be compelled by a magis-
trate to agree to the marriage and to give the requisite
dowry. The consent must be free and unconstrained.
Marriage contracts were common in the later periods of the
empire. It was the duty of the father to give his daughter
a marriage portion or dowry, according to the amount of his
property, but not so much as to defraud his creditors. On
her death this dowry returned to the father. The wife's
dowry might also be taken from her own property, and if
she were of full age, and not under the paternal power, she
might herself set apart a portion of her property for this
purpose. The husband also added a share of his property,
to be used with the dowry for the benefit of himself and
wife. During the marriage he had the full control of the
whole of this, and was entitled to the rents and profits for
the support of the family. "Whatever the ^vife owned in
addition to her dowry, was called her jparajpJirena^ and was
absolutely her own, entirely beyond the husband's control.

§ 540. MaiTiages were prohibited between all persons
related in the direct ascending and descending lines, be-



Online LibraryJohn Norton PomeroyAn introduction to municipal law : designed for general readers and for students in colleges and higher schools → online text (page 29 of 50)