Roman Law Jus Gentium And Jus Honorarium
time action latter edict vendor sale contract money citizens obligation
ROMAN LAW JUS GENTIUM AND JUS HONORARIUM - Growth of Commerce and Influx of Foreigners. - While it may be admitted that commerc,e was beginning to take 0 root in Rome in the 5th century, yet it was not until the e 6th that it really became of importance. The campaigns in which Rome was engaged until the end of the First Punic War absorbed all its energies. But after that time the influx of strangers, and tbeir settlement in the city for purposes of trade, became very rapid, - first Latins and other allies, and afterwards Greeks, Carthaginians, and Asiatics. For them and the regulation of their affairs the jus civile - the law peculiar to Rome and its citizens - was applicable only if they were members of allied states to which commercium and recuperatio were guaranteed by treaty. But multitudes were not in this favoured posi-tion ; and even those who were soon found the range of Roman modes of acquiring property and contmcting obligations too narrow for their requirements. Hence a jus gentium was gradually developed 2 which very early in its history drove treaty covenants for recuperatio out of use ; its application may for a time have been limited to tmnsactions between non-citizens or between citizens and non-citizens, but it was eventually accepted in the deal-ings of citizens inter se and became part and parcel of the jus Romanorum. Gaius and Justinian speak of it as " the common law of mankind," " the law in use among all nations " ; but the language must not be taken too literally. The Rornan jus gentium was not built up by the adoption of one doctrine or institution after another that was found to be generally current elsewhere. In the earliest stages of its recognition it was " an inde-pendent international private law, which, as such, re-gulated intercourse between peregrins or between peregrins and citizens on the basis of their common liberta,3";3 during the republic it was purely empirical and free from the influence of scientific theory, .but its extensions in the early empire were a creation of the jurists, - a com-bination of comparative jurisprudence and rational specu-lation. To say that it was de facto in observance every-where is inaccurate ; on the contrary, it was Roman law, built up by Roman jurists, though called into existence through the necessities of intercourse with and among non-Romans.
It may be a little difficult for a modern jurist to say t were the doctrines and institu-distinguished from the just chile. have been very familiar to the mild not have had the statement of Mercian in reference to the arroA.r8es, - that they en-joyed all the rights competent to a man under the former, but none of those competent to him under the latter.
Institution of the Peregrin. Prxtorship. - The prxtorship was an outcome of the Licinian laws of the year 387 u.c. Down to the end of the 5th century the prxtor then ap-pointed superintended single-handed the administration of justice, alike between citizens and foreigners. But with the altered condition of things in the beginning of the 6th century, and the influx of strangers which has already been alluded to, the work seems to have been found too onerous for a single magistrate, and a second prxtor was appointed. The date is not absolutely certain, although generally assumed to have been about the year 612 u.c. ; but Pomponius says distinctly that the creation of the new office was rendered necessary by the increase of the peregrin population of Rome, and that the new magistrate got the name of praetor peregrinus because his principal duty was to dispense justice to this foreign element. After the submission of Sicily and Sardinia the number of the prwtors was increased to four and after the conquest of Spain to six ; Sulla raised the number to eight, and Cwsar eventu-ally to sixteen. But all the later creations were for special purposes ; the ordinary administration of justice within the city was left with the representatives for the time of the two earliest, who came to be distinguished as praetor urbanus (qui jus inter cives dicit) and praetor peregrinta. It would be going too far to speak of the latter as the prin-cipal author of the jus gentium ; for a large proportion of the actions for enforcing jus gentium rights were civil, not honorary, - a fact which proves that the rights they were meant to protect and enforce had their origin in the jus civile, although moulded to meet new requirements by tacit consuetude and the agency of the jurists. But even in this view the peregrin pmtor must have had a powerful influ-ence in giving shape and consistency to the rising juris-prudence, by means of the formulae he adjusted for giving it practical effect.
Simplification of Procedure and Introduction of New Remedies under the 'Mullein Law. - The Lex Aebutia is only twice mentioned by ancient writers, and we know neither its precise date nor its specific provisions. And yet, to judge by its effects, it must have been one of the most important pieces of cornitial legislation in the latter half of the republic ; for Gellius speaks of it as having given the deathblow to many of the institutions of the XII. Tables, and Gains couples it with two Julian laws as the statutory instru-ments whereby the formular system of procedure was substituted for thatper legis actiones. The probability is that it was enacted immediately or soon after the institution of the peregrin prwtor-ship. Its purpose, whatever may have been its terrns, seems to have been to empower the prwtors to adapt existing remedies to altered circumstances, and to fashion new actions on the jus chile for the use of the peregrins to whom the procedure of the legis actions was incompetent ; while it may possibly at the same time have expressly authorized the insertion in the styles to be devised by them of clauses that would give protection when required against claims that in law were well founded but in fact inequitable. But, whatever rnay have been the actual provisions of the statute, the result was the introduction of a procedure which gradually sup-planted that by the "actions of the law," which was mita] more pliant than the latter, and whose characteristic was this, - that, instead of the issue being declared by word of mouth by the parties, and requiring in many cases to embody with perfect accuracy the statutory provision upon which it was based, it was now formulated in renting by the praetor, in the shape of an instruction to the judge to inquire and consider, with power to condemn or acquit according to his finding (see infra, p. 707).
Provincial Conquests. - The growth of commerce and the enormous increase of wealth, which made great capitalists and enabled them through the agency of freedmen and slaves to carry on trade on a scale hitherto unknown and which thus helped to foster the jus gentium, was no doubt due to a large extent to provincial conquests. But these operated also in other directions. The authorities who proceeded to the conquered provinces as governors found themselves face to face with laws and institutions in many respects differing from those of Rome. Political considerations dictated how far these were to be respected, how far subverted. In some provinces, more especially the Eastern ones, it was thought unnecessary to do more than supplement the existing system by the importation of doctrines of the jus gentium and the procedure of the prwtor's edicts • while in others in which it was deemed expedient to destroy AS rapidly as possible national feeling and every national rally-ing point, a Rornanizing of all their institutions was resorted to, even to the extent of introducing some of the formal transactions which previously had been confined to citizens. But in either case there was a. reflex action. The native institution had to be studied, its advantages and disadvantages balanced, the means considered of adapting it to the prwtorian procedure, and the new ideas so presented as to make them harmonize as far as possible with the old. All this was a training of no small value for those who, on their return to Rome, were to exercise an influence on legislation and the administration of the law. They brought back with them not merely an experience they could not have obtained at home, but sometimes a familiarity with foreign institutions that they were very willing to acclimatize in Italy. Rome thus enriched its law from the provinces, deriving from them its emphyteutie tenure of land, its hypothee, its Rhodian law of general average, and a variety of other features that were altogether novel. Some of them were sanctioned by tacit recognition others by. edicts of the prwtors ; but, in whatever way received, 'they were indirectly fruits of provincial conquest.
Spread of Literature and Philosophy. - The effect on Roman civilization of the addiction of educated men iu the later republic to literature and philosophy is a matter for consideration in con-nexion with Rome's general history. It is not proposed to consider here the question how far specific doctrines of Roman law bear the impress of the influence of the schools, especially that of the Stoics; it is a subject much too larg,e to be disposed of in a few lines.2 The matter is mentioned simply for the sake of noting that the spirit of critical inquiry aroused and fostered by literary and philosophical study, seriously and conscientiously undertaken, contributed greatly to prornote a new departure in jurisprudence that became very marked in the time of Cicero - the desire to subordinate form to substance, the word spoken to the will it was meant to manifest, the abstract rule to the individual case to which it was proposed to apply it. This was the first effort of hat then was called equity to temper and keep within bounds the rigour of the jug strictuirt. The prwtors, the judges, and the jurisconsults all had their share in it. Although modern jurists are prone to speak of prxtorian equity as if it were a thing apart, yet the same spirit was leavening the law in all directions and in the hands of all who had to deal with it, the difference being that the form and publicity of the edict gave to its applications by the prwtors a more pro-minent and enduring record than was found in the decisions of private judiees or the opinions of counselling jurisconsults.
Decline of Religion and Norals. - It would be equally out of place to enlarge here on the causes and manifesta-tions of that decline in religions sentiment and public and private virtue which was fraught with such disastrous results in the later days of the republic. The private law was influenced by it to a considerable extent, alike in those branches which regulated the domestic relations and those which dealt with property and contract.
The ever-increasing disregard of the sanctity of the marriage tie is one of those features in the history of the period which strikes even the most unobservant. While from the first the law had denounced causeless separation and visited it with penalties, in principle it maintained the perfect freedom of divorce, - that it was improper to force persons to continue in the bonds of matrimony between whom matrimonial affection no longer existed. With the simple and frugal habits of the first five centuries of Rome, and the surveillance of the eonsilium domestieum, the recognition of this principle produced no evil results ; family misunderstandings were easily smoothed over, and divorces were of rare occurrence. But from the time of the enactment of the Mmnian law in 586 there seems to have been a 'change for the worse. It inter alia displaced the family council as a divorce court and transferred its functions in that matter to a judicium, de moribus,--a court of inquiry nominated by the preetor, and having as its duty to decide to what extent there should be forfeiture of the nuptial provisions in case of separation or repudiation. The motives of the statute may have been of the best ; but its tendency was injurious, for not only did it indirectly facilitate divorce, but it rendered the idea of it familiar, and overthrew that respect for the domestic council which had hitherto been a check upon it. What wonder that with increasing luxury and licentiousness divorce became so common !
This looseness of the marriage bond, as VMS naturally to be expected, had its effect on the other family relations. The obligation of a father to provide for his children began to be lightly esteemed. The law - possibly only the inter-pretation put upon the uti legassit of the XII. Tables - had empowered him testamentarily to disinherit them, or in instituting them to limit their right to a mere fraction of the inheritance ; but it was assumed that this power would be exercised with discretion and only when justified by circumstances. But in the latter days of the republic, amid the slackened ties of domestic life, paternal as well as conjugal duty seems to have often been lost sight of, and children disinherited or cut off with a nominal share of the inheritance in order that a stranger might be enriched. This led to the introduction by the centumviral court, without any legislative enactment or pmtor's edict to warrant it, of what was called the querela inquieiosi testamenti, - challenge of a testament by a child whose natural claims had been capriciously and causelessly dis-regarded. While the practice may for a time have been hesitating and uncertain, yet before long, through means of this querela, the rule came to be established that every child was entitled, notwithstanding the terms of his father's testament, to at least a fourth (portio quarta legi-tima, the legitim of the law of Scotland and various Con-tinental countries) of what would have come to him had his parent die,d intestate, unless it appeared that the latter had had adequate grounds for excluding him or limiting him to a smaller share. A parent might in like manner chal-lenge an undutiful testament made by his child to his pre-judice ; and in certain cases so might brothers and sisters inter se.
The decline of morals had an equally marked effect on the transactions of daily life, calling for precautions and remedies that had not been found requisite in the hey-day of the rio-Tts Tco,ucthav. Men no longer relied on each other's good faith unless backed by stipulations, cautions (cautiones), and guarantees. The Rutilian bankruptcy arrangements and the actio Paulian,a for setting aside alienations in fraud of creditors indicate a laxity in mer-cantile dealings that was perhaps an inevitable consequence of the growth of trade and commerce. But, that such remedies as, for example, the exceptio rei venditae et traditae or the exceptio non nunteratae pecuniae should have been found necessary - the one an answer to a vendor (with the price in his pocket) who attempted to dispossess his vendee because some of the formalities of conveyance had been neglected, the other an answer to an action on a bond for repayment of money that by some accident had never been advancal - proves that the law had now to encounter fraud in all directions, and that Graeca fides had to a great extent displaced the old Roman probity.
II. FACTORS OF THE LAW.
Legislation. - it cannot be said that during the period of nearly : two centuries and a half embraced within the present chapter the; private law owed much to legislation. The vast majority of the enactments of the time referred to by tbe historians dealt with constitutional questions, municipal and colonial government, agrarian arrangements, fiscal policy, sumptuary prohibitions, criminal and police regulations, and other matters that affected the public law rather than the private. Those of the latter class men-tioned by Gains and Ulpian in their institutional works barely exceed a score in number ; and of these not above half a dozen can be said to have exercised a permanent influence on the principles (as distinguished from the details) of the law. Most of them were enactments of the eoncilium plebis or of the comitia of the tribes, to which ordinary legislation had passed as more readily convened and more easily worked than the comitia of the centuries.
Edicts of the Magistrates.1 - The practice of propounding edicts was very ancient, and had been followed by kings and consuls long I before the institution of the praetorship. It was one of the most obvious ways of exercising the imperium with which the supreme maoistrate was invested, - to lay an injunction upon a citizen and enfborce his obedience, or to confer upon him some advantage and maintain him in its enjoyment. It was one of the ways in which public order was protected where there had been no invasion of what the law regarded as a right, and where, consequently, there was no remedy by action. That the earlier edicts of the pmtors were of this character - issued, that is to say, with reference to particular cases, and what afterwards came to be called edieta re-pentina or prout res ineidit posita - there is little reason to doubt. In time a new class of edicts appeared which got the name of edicta perpetua (or perpetuae jurisdietionis eausa proposita), - announce-ments by the prwtor, published on his album (as the white boards displayed for the purpose in the forum were called), of the relief he would be prepared to grant on the application of any one alleg-ing that the state of facts contemplated had arisen. The next year's prxtor was free to adopt the edicts of his predecessor or not ; but it was usual for him to do so if they had been found beneficial in practice, he adding to them new provisions suggested by de-mands made upon past prTtors for eclieta repentina but which they had not generalized, or even proposing for acceptance some remedy entirely of his own devising. As each new prxtor entered upon office he announced his jurisdictional programme, - his lex annua, as it was called from this particular point of view, by far the greater part of it tralaticium, i.e., transmitted from his predecessors, and only a few paragraphs, diminishing in number as time pro-gressed, representing his own contribution. And so it went on in the first years of the empire, until the pmtorian function was eclipsed by the imperial ; and at last, after having by instruction of Hadrian, been subjected to revision, and consolidated with the edicts of the peregriu prxtors and provincial governors, it was sanctioned as statute law for the empire through the medium of a senatusconsult.
There is some reason for supposing that the edict attained con-siderable proportions in the time of Cicero ; for he mentions that, whereas in his youth the XII. Tables had been taught to the boys in school, in his later years these were neglected, and young men directed instead. to the prxtor's edicts for their first lessons in law. Of a few of them the date and authorship are known with tolerable precision ; but of the history of the majority, including some of the most important, such as those introducing restitzttio in integrunz on the ground of lesion through error, absence, minority, and the like, and those revolutionizing the law of succession, we are to a great extent in the dark. It is not necessary to assume either that the Julian consolidation exhibits all the provisions that from first to last appeared on the album, or that those preserved in it were originally in the shape in which they are there presented. It is much more likely that we have in it only those that had stood the test of generations, and that many of them are the result of the combined wisdom and experience of a series of prmtors. It was one of the great advantages the edicts had over legislative enact-ments that they might be dropped, resumed, or amended by a new pra4or according to his judgment of public requirements. For the edict was viva vox juris eivilis, - intended to aid, supplement, and correct it in accordance with the ever-changing estimate of public necessities ; and this would have heen impossible had its provisions from the first been as stereotyped as they became by the consolida-tion in the time of Hadrian.
The Edict seems to have contained two parts, - the first what may be called the edict or edicts proper, and the second an appendix of styles of actions, &c., whether derived from the jus chile or from the jus praxtorium. The contents of the edict proper were in de-tail very various, but all devoted to an exposition of the ways in which the prwtor meant to exercise his jurisdiction during his year of office. They were not didactic or dogmatic formulations of law, but rather announcements or advertisements of what remedy lie would grant in such and such circumstances, or direct orders to do or prohibitions against doing certain things. A party claiming an action or whatever else it might be under any of them did so not of right, as he would have done had his claim had a statutory or customary foundation, but of grace, - ou the strength of the pnetor's promise to grant him what he claimed and make the grant effectual. That was why originally such an action had to be raised and concluded within the particular printer's year of oflice, - a rule which in time, by abuse, was converted into the somewhat different one that a purely prmtorian action (i.e., not originally of the jus civile, even though remodelled and regulated by the prxtor) had to be raised within a year of the occurrence to which it referred.
As already observed, the prietors' edicts proceeded to a greater extent than the earlier legislation of the comitia upon lines of equity ; that is to say, they set themselves against the strictness and formalism of the jurisprudence of the XII. Tables. Such may be said to have been the general tendency of the edicts as a whole. But it was the tendency of the whole jurisprudence of the time, and by no means peculiar to the prietorian creation. Nowhere in the texts are the pnetors spoken of as the mouthpieces of equity as distinguished from law. Such a distinction recurs frequently in Cicero ; he identifies aeguitas with the spirit of a law or agreement, and jus with its letter, but it is in order to sina„a the praises not of the prmtors but of the pleaders who maintained the former as against the latter, and of the judges who were persuaded by their arguments. Much of what was contained in the _Edict might quite as well have been embodied in statute, and we know that in time statute came to its aid ; witness a very remarkable provision of it, - " I will give bonorum posscssio as may be enjoined by statute, whether comnial enactrnent or senatusconsult."
Of the edicts of the peregrin prmtor and their relation to that of his urban colleague little is known. That they differed in some respects there can be no doubt, for in the Lex Rubria (of 706 9) for settling the government of Cisalpine Gaul the magistrates are directed, with reference to a certain action, to formulate it in the way prescribed in the edict of the peregrin prmtor. The latter, therefore, must to some extent have been in advance of that of the urban prmtor, probably in this respect, that, being prepared primarily for the regulation of questions affecting non-citizens, it more thoroughly than the other avoided formalities that were com-petent only to citizens, and thus to a greater extent simplified pro-cedure. The edicts of the provincial governors must have varied according to circumstances, being in all cases composites of pro-visions, more or less numerous, borrowed from the edicts of the prmtors and additions suggested by the peculiar wants of the different provinces for which they were framed (provincialc genus edicendi). As for those of the curnle diles, who amongst other duties were charged with the supervision of markets, their range was very limited, their most important provisions having reference to open sales of slaves, horses, and cattle, and containing regula-tions about the duties of vendors exposing them, and their responsi-bility for latent faults and vices.
Consuetude, Professional Jurisprudence, and Res Judicatae. - Great r as may be the difficulty experienced by philosophical jurists in de-fining the ground of the authority of consuetudinary law, there is no room to dispute the importance of its contributions to every system of jurisprudence ancient and modern. The men who first drew, accepted, and endorsed a bill of exchange did as much for the law as any lawg,iver has ever accomplished. They may or may not have acted on the advice of jurists ; but, whether or not, they began a practice which g-rew into custom, and as such was recog-nized by the tribunals as a law-creating one, - one conferring rights and imposing obligations. There is much of this - far more probably than is commonly imagined - in the history of every system of law.
In Rome the process WaS sometimes wonderfully expeditious ; witness what Justinian narrates of the introduction and recognition of testamentary trusts and of codicils to last wills, both in the time of Augustus. It can hardly be doubted that the literal contract per expensilation.ent orig,inated in the same way, probably in the end of the 5th or the beginning of the 6th century. The keeping of domestic account-books may have been enjoined and enforced by the censors ; but it was custom, and neither statute nor prtetor's edict, that made an entry in them to another person's debit creative of a claim against the latter for eerta pecunia credita, that might be made effectual by an action under the Silian law. It must have been in exactly the sarne way that mutuum, formless loan of money, came to be regarded as the third variety of certa eredita pecunia, and to be held recoverable under the same action. True, this could not have been attained without the co-operation of the courts. But then those courts were composed each of a single private citizen, whose office ended with his judgment in the particular case remitted to him, and who was untrammelled by the authority of any series rerurn juclica,tarum.1 He had simply to decide whether in his view It was not until the empire that a "series rerum perpetuo similiter Judica-taram," a uniform series of precedents, Wag held to be law. During the repubexpensilation or formless loan created such an obligation as was covered b3r the words pecuniam dari oportere. There may for a time have been a divergent practice, contradictory findings, as Cicero says there were in his day upon the question whether aqui-tas or jus strictuni was to be applied to the determination of certain matters ; but the gradual ascendency and eventual unanimit3r of judicial opinion in the affirt»ative was but the expression of the general sentiment of the citizens, of whom the Indices were the representatives.
These are but examples of the way in which consuetudinary law was constructed. It required the combined action of the laity and the judiees, both at times acting under professional advice ; in some eases even that of the prwtors was necessary. It would have been impossible for instance, to have introduced the consensual contracts into t'lle Roman system and determined what were the obligations they imposed on either side, without magisterial co-operation in framing the formulae that were to be submitted to the judges. Taking the action on sale as an illustration, the formula substantially was this : - " It bein.,,a averred that the defendant sold such or such a thing to the plaintiff, whatever, judge, it shall ap-pear that the defendant ought in good faith to give to or do for the plaintiff in respect thereof, in the money equivalent thereof condemn the defendant ; otherwise, acquit him." It is very mani-fest that the free hand here given to the judge must immensely have facilitated the reception of custoinary doctrine into the law. The judge was to a great extent the spokesman of the forum ; his judgment was formed in accordance with current public opinion, which he had ample opportunity of gauging ; it was the reflexion of that general sentiment of right, which, phrase it how 1% e may, is the real basis of all customary law. And so in an action for establishing a right of property in a res ne,c mancipi. The formula was very simple : - " If it appear that such or such a thing belongs to the plaintiff in quiritary right, then, judge, whatever be its value for the plaintiff, in that condemn the defendant ; should it appear otherwise, acquit hini." The primary duty of a judge on such a remit was to determine whether the title on which the plaintiff founded his pretensions gave him a right that came up to property; and it can hardly be disputed that it was by the decisions of a series of judges, in a series of such actions, that the long list of natural modes of acquiring property given by Justinian under technical names was gradually brought into view. Those decisions, whether upon the obligations of a vendor, direct or indirect, or upon the sufficiency of a title founded on by a party averring a right of property by natural acquisition, may in many cases have been anived at under professional advice, and were in all cases embodied in judgments. But that does not in the least deprive the doctrine deduced from them of its character of customary law. It was not until the empire that the opinions of the jurists sub-niitted to a judge (responsa prudentium, see p. 705) were invested with quasi-legislative authority. During the republic, if a judge deferred to them, it WaS simply because he regarded them as in consonance with well-qualified public opinion ; and what a series of consistent judgments of th.is sort built up was in the strictest sense a law based on consuetude.2 As regards the professional jurists in particular it has already been observed that, according to the testimony of the historians, the law was a monopoly of the patricians down at least to the middle of the 5th century of the city. Livy goes so far as to speak of it as in penetralibus pontificum repositum, - among the secrets of the pontifical college. It was so to a very great extent in the regal period. But after the publication of the XII. Tables this could be the case only in a qualified sense, the pontiffs becom-ing the official interpreters of that which in the letter was patent to the world. The Jus Flavianum, with its formulary of actions, in the year 450, the practice of giving advice in law in public adopted by Tib. Coruneanius in the beginning of the 6th century, and the Jus aElianum, embodying the current interpretatio, some fifty years later, put an end not only to pontifical but to patrician monopoly. From this time onwards there was a series of jurists (prudentes), gradually increasing in number and eminence, of whom a list is given by Pomponius, and many of whom aro signalized by Cicero, particularly in his Orator and Brutus. They occupied themselves in giving advice to clients (see PATRON AND CLIENT, Vol. xviii. p. 412), teaching, pleading at the bar, framing styles of contracts, testaments, and various other deeds of a legal character, or writing cornrnentaries or shorter treatises on different branches of the law.3 III. SUBSTANTIVE CHASGES IN TUE LAW DURING TIIE PERIOD.
The Publician Edict. - There were necessarily many changes during the period in the law of property and of minor real rights, several of them of no mean importance. But the greatest of all was that effected by the Publician edict,' indirectly recognizing the validity (1) of what Theophilus calls dominiunt bonitarium as an actual though inferior ownership of res mancipi, and (2) of what got the name of bonae fidei possessio as a fictitious ownership of either res rnancipi or res mancipi, valid against all the world except the true dominos. The accounts we possess of this edict are somewhat inconsistent and even contradictory ; the explanation may be that it went through a process of amendment and expansion at the hands of successive prmtors, and that eventually it may have had more than one section, without our always being able to say to which of them the criticism of a particular commentator is directed. But there is no doubt of its general tendency, - of the defects it was meant to correct and of the way in which the correction was accomplished.
One of the defects was this : if a man bad taken a transfer of • a res ntancipi from its rightful owner, but simply by tradition instead of by mancipation or cession in court, he did not acquire dominium ex jure Quiritiont, and the transferrer remained undi-vested. The result was that the latter was in law entitled to raise a rei rindicatio and oust the transferee whose money he might have in his pocket, while if a third party had obtained possession of the thing, but in such a way as not to be amenable to an interdict, the transferee could have no effectual vindication acsiinst him, as he was not in a position to prove dominion ex jureQuiritium. The first difficulty was overcome by the exceptio rei venclitae et traditae, also a prretonan remedy, and probably older than the Publician ; to the transferrer's vindication on the strength of his unextin-gnished quiritary right the transferee pleaded sale and delivery as an effectual prEetorian defence. But, when a third party was in possession, and the transferee by simple delivery had to take the initiative, the position was more complicated. Such third party might be in perfect good faith ; he might even have acquired from the original transferrer and fortified his acquisition with a formal conveyance. But that was no sufficient reason in equity why he should be allowed to defeat tho prior right of the original trans-feree, who, if he had possessed for the requisite period of usucapion before the third party dune upon the scene, would have cured the defect of the informal delivery and acquired an unassailable quid-tary right. So the prxtor announced in his edict that, if a man came to him and represeuted that he had bought arcs mann-pi from its owner, and had had it delivered to him, but had lost posses-sion within the period of usucapion, he (the prxtor) ivould allow him a vindication embodying a fiction of completed usucapion (infra, p. 708), with which he might proceed either against the transferrer or any third party withholding the thing in question.
The publication of such an edict and the formula of the action based upon it--which, though of prietorian origin, was in many respects dealt with as an actio Anis civilis and just a variety of the rei vindicatio--hatt the same effect as if the legislature had directly enacted that in future delivery of a res mancipi in pursuance of a sale or other good cause would confer a right of ownership in it even before ustica,pion had been completed. Till completed, how-ever, the transferee WU not quiritary owner : the thing in question was only in bonis, " of his belongings," and the legal title, though a very empty one - oucturn jus Quiritium - remained in the trans-ferrer ; it was only with the completion of the usucapion that it became the transferee's pleno jure. The inevitable result of the re-coguition of this tenure in bonis was that mancipation came to be regarded in many cases as an unnecessary formality; and the marvel is that it continued to hold its ground at all. The explanation may be that it afforded a substratum for and gave force of law to the eerba nuncupata that accompanied the negotium per aes et librana ; and, although many of these might quite well be thrown into the form of stipulations, yet there were others that it may have been thought safer to leave to take effect under the provisions of the earlier law.
The second case that was met by the Publician edict - whether as originally published or by an amendment of it cannot be deter-mined - was that of the bona fide transferee of a thing by purchase or other sufficient title who, having lost possession of it before usucapion, found to his cost that the transferrer had not been its owner, that no ownership therefore had been transmitted to him (the transferee), and that consequently he was not in a position to raise a vindication with its averment of dominion ex jure Quiri-tium.2 As against the true owner, whose property had been disposed of by a stranger behind his back, there would have been no equity in giving him an action ; but as against all the world except the true owner his " better right " was recognized by the prmtor, who accorded to him also a vindication proceeding on a fiction of completed usucapion, for usucapion cured the defect of his title, just as it did that of the bonitarian owner. In this way the praztors introduced that bonae fidei possessio which was worked out with much skill by the jurists of the early- empire, and which assumed very lar,ge proportions in the Justinianian law when the term of prescription had been.greatly extended, and the difficulty of proving property (as distin,nushed from bona fide possession) consequently very much increased.
Development of the Law of Contract.3 - It is in:possible within C the limits of an article such as this to indicate a tithe of the amend- h ments that were effected on the law of obligations during the period o whose distinguishing features were the nse of a 2.2C8 gentium and t the construction of the prEetor's edict. In every branch of it there was an advance not by st,eps but by strides, - in that of obligations arising from contract, of those arising from delict, and of those arising from facts and circumstances, such as unjustifiable enrich-ment at another person's cost.4 The law of suretyship, in its three forms of sponsio, fidepromissio, and fitisiussio, received-considerable attention, and formed the subject of a series of leg,islative enact-ments for limiting a surety's liability ; while that of agency, which was sparingly admitted in Rome, had a valuable contribution from the praatonan edict in the recognition of a roan's liability, more or less qualified, for the contractual debts of his filiifamilias and slaves, as also, and without qualification, for the debts properly contracted of persons, whether domestically subject to him or not, who wore managing a business on his account, or whom hc had placed in command. of a ship belonging to him. The development of the law in the matter of obligations generally was greatly fadlitated by the pratorian simplification of procedure and the introduction of new forms of actions, - the instruction to a judge, 'Whatever in respect thereof the defendant ought to give to or do for the plaintiffi in that condemn him," preceded by a statement of the cause of action, giving wide scope for the recognition of new sources of liability.
The origin of the verbal contract of stipulation and its action- S ability under the Silian and Calpurnian laws have already been explained (pp. 694, 684). It was theoretically a formal contract, i.e., creEitive of obligation on the strength of the formal question and answer interchanged by the parties, even though no substantial ground of debt might underlie it ; but in time it became the prac-tice to introduce words - the single word reete was enough--exclud-lug liability in case of malpractice (dausula doli); and finally even that became unnecessary when the prEetors had introduced the general exeeptio doli, pleadable as an equitable defence to any personal action. And it was essentially productive only of uni-lateral obligation, i.e., the respondent in the interrogatory alone incurred liability ; if mutual obligations were intended it was necessary that each should promise for his own part, with the result that two contracts were executed which were perfectly inde-pendent. Originally the ouly words that could be employed were spondes? on the one side, spondeo on the other ; and in this form the contract was juris drills and competent only to citizens (and non-citizens enjoying commerciont?). In time the w ords promittie promitto, came to be used alternatively. They seem, eventually at least, to have been competent to peregrins as well as to citizens, although that may not have been until the stipulation bad become of daily use among,st the former in the still simpler phraseology dabis dabo, facies faciam. Originally competent only for the creation of an obligation to pay a definite sum of money, and after-wards one for delivery of a specific thing other than money, the contract came in time, by the simplification of the words of inter-rogatory and response - the substitution of the condictions of the formular system for the legis actiones of the Silian and Calpurnian laws, and the introduction of the actio ex stipulatu to meet cases of indefinite promise - to be adaptable t,o any sort of unilateral engagement, whether initiated by it or only confirmed. It was of immense service too outside the ordinary range of contract in what were called necessary (in _contradistinction to voluntary) stipula-tions, of which a variety of illustrations are given p. 709. In all directions advantage wag taken of it to bind a man by formal contract either to do or to refrain from doing what in many cases he might already be bound ipso jure to do or to abstain from doing, and that because of the simplicity of the remedy - an action on his stipulation - that would lie against him in the event of his failure.
A second form of contract that came into use to a considerable extent in the latter half of the republic is what is commonly called o the literal contract, or, as Gaius phrases it with greater accuracy, the nomen transscripticium.1 Notwithstanding the prolific litera-ture of which it has been the subject, it must be admitted that in many points our knowledge of it is incomplete and uncertain. The prevalent opinion formed before the discovery of the Verona MS. had made known baius's description of it, and almost univer-sally adhered to ever since is that such contracts were created by entries in the account-boOks which the censors insisted that all citizens of any means should keep with scrupulous regularity. They are often alluded t,o by the lay writers ; but the text princi-pally relied on is what remains of Cicero's speech for the player Roscius. From the tenor of the argutnent in that case, and inci-dental remarks elsewhere, the conclusion has been formed that a citizen who made an entry in his codex - whether of the nature of a cash-book or a ledger is much disputed - to the debit of another, thereby made the latter his debtor for a sum recoverable by an actio certae creclitae pecunicte. Gaius in his description of the con-tract does not mention the codices ; but his account is not incon-sistent with the notion that the entries (nomina) of which Ile speaks were made in thern. He says that those entries were of two sorts, nomina arcaria and nomina transscripticia. The former were entries of cash advances ; and of them be observes that they did not create obligation, but only served as evidence of one already created by payment to and receipt of the money by the borrower. Of the latter he says that there were two varieties the entry tran-scribed from thing to person and that transcribeefrom one person to another, and that both of them were not probative merely but creative of obligation. The first was effected by a creditor (A) entering to the debit of his debtor (B) the liquidated amount of what the latter Nvas already owing as the price of sornething pur-chased, the rent of a house leased, the value of work done, or the like. The second was effected by A transeiibing B's debt to the debit of a third party (C), hitherto a debtor of B's, and who con-sented to the transaction, - A at the same time crediting B with the sum thus booked against C, and B in his books both crediting C with it (acceptilatio) and debiting A (expcnsilatio).
All this at first sight seenis just a series of bookkeeping opera-tions. But it was much more than that for the Roman citizens who first had recourse to it. There was a time when sale, and lease, and the like, so long as they stood on their own merits, created no obligation enforcible at law, however much it might be binding as a duty to Fides or (as moderns would say) in the forum of conscience ; to found an action it required to be clothed in some form approved by the jus civile. The nexum may have been one of those forms, the vendee or tenant being fictitiously dealt with as borrower of the price or rent due under his purchase or lease ; the stipulation was another;the obligation to pay the price or rent being made legally binding by its embodiment in formal question and answer. But stipulation was competent only between persons who were face to face, whereas expensilation was competent also as between persons at a, distance from each other. This of itself gave expensilation - which, originally at least, was as much a nego-tium furls civilis as the sponsio - an advantage in some cases over stipulation. But it had also a further advantage which was not affected by the subsequent recognition of the real and consensual contracts as productive of legal obligation on their own merits: it paved the way for subsequent transcription from one person to another. This last must have been of infinite convenience in com-merce, not only by enabling traders- to dispense with a reserve of coin, but by obviating the risks attending the transit of money over long distances. It was this that led, as Theophilus says was the case, to the conversion even of stipulatory obligations into book-debts ; it was not that thereby the creditor obtained a tighter hold over his debtor, but that an obligation was obtained from him which in a sense was negotiable and therefore more valuable.
The evolution of the four purely consensual contracts - sale, loca-' tion, partnership, and mandate - supplies matter for one of the . most interesting chapters in the whole history of the law. But, as it is impossible in such an article as this to attempt to mark the successive stages in the progress of all of them, we shall confine ourselves to sale. The others did not and couId not follow identi-cally the same course : location ran most nearly parallel with sale ; but partnership and mandate, from their nature, not only started at a different poiut from the other two, but reached the same goal with them - that of becoming productive of obligation simply on the strength of consent interchanged by the parties - by paths that were sometimes far apart. Nevertheless a sketch of the history of the origin of the contract of sale may be sufficient to indicate generally some of the milestones that were successively passed by all four.2 Going back as far as history carrie,s us we meet with it under the names of cmptio and vcaditio, but meaning no more than barter ; for cmere miginally signified simply " to take" or " acquire." Sheep and cattle (pecus, hence pccuttut) may for a. time have been a very usual article of exchange on one side, and then came raw metal weighed in the scales. But it was still exchange, instant delivery of goods on oue side against simultaneous delivery of so many pounds weight of copper on the other. With the reforms of Servius Tullius came the distinction between res nutncipi and res nec mancipi, and with it a regulated mancipation for sale and conveyance of the former. It was still barter ; but along with it arose an obligation on the part of the transferrer of the res manciyi to warrant the transferee against eviction, - a warranty that was irriplied in the mancipation. Whether this rule obtained from the first or was the growth of custom it is impossible to say ; but it is in the highest degree probable that it was the XII. Tables which fixed that the measure of the transferrer's liability to the transferee in the event of eviction should be double the amount of the price. Equally impossible is it to say when the practice arose of embody-ing declarations, assurances, and so forth in the mancipation (legcs mancipit), which were held binding on the strength of the negotiunt furls civilis in which they were clothed. They received statutory sanction in the Tables, in the words already referred to more than once - "cum nexum faciet mancipiumqne, uti lingua nuncupassit, ita kis esto," substantially " whatever shall by word of mouth be declared by the parties in the course of a transaction per acs et libram in definition of its terms shall be law as between thetn."
The substitution by the decemvirs of coined money, that was to be counted for rough metal that had been weighed, converted the contribution on one side into price (prctium), as distinguished from article of purchase (mcrx) on the other ; and sale thus became distinct from barter. In contemplation of the separation of the mancipa-tion and the price-paying, and the degeneration of the former into a merely imaginary sale, they enacted that, mancipation notwith-standing, the property of what was sold should not pass to the purchaser until the price had been paid or security by sureties (vaoles) given for it to the vendor; and it was probably by the interpretation of the pontiffs that this was added to the rule, - that until the price was paid. no liability for eviction should attach to the transferrer (or auctor). The reason of the provision in the XII. Tables was that a vendor who had mancipated or delivered a thing sold by him before receiving the price had no action to enforce payment of the latter ; and in such circumstances it was thought but right to give him the opportunity of getting back the thing itself by a real action. It might be, however, that the price had been paid, and yet the vendor refused to mancipate. It was long, apparently, before the purchaser could in such a case compel him to do so. With the introduction of the legis actio per condic-tionent he (the purchaser) had undoubtedly the power to recover the money on the ground of the vendor's unjustifiable enrichment, - that the latter had got it for a consideration which had failed (causa data, causa non sccuta) • and it is possible that before that he had a similar remedy per judicis postulationem.
Down to this point, therefore, say the beginning of the 6th century, there were several obligations conseqnent on sale of a rcs mancipi ; but not one of them arose directly out of the sale itself, or could be enforced simply on the ground that it had taken place. The vendor was hound to support the purchaser in any action by a third party disputing his right, and to repay him the price two-fold in the event of that third party's success ; and he was bound, moreover, to make good to him any loss he had sustained through a deficiency of acreage he had guaranteed, non-existence of servi-tudes he had declared the lands enjoyed, existence of others from which he had stated they were free,3 incapability of a slave for labour for which he was vouched fit, and so on. But these obliga-tions were binding, not in virtue of the sale per se, but of the transaction per aes et libram superinduced upon it ; and, if the vendor had at any time to return the price on failure to maneipate what he had sold, it was not because he had committed a breach of contract, but because he bad unjustly einiched himself at tho purchaser's expense.
In sales of res 7LCC mancipi, just as in those of res rnancipi, vendor who had been incautious enough to deliver his wares befoi he had been paid, or had got stipulatory security for the price, or ha I converted it into a book-debt, might recover them by a real action if payment was unduly delayed ; while the purchaser who had paid in advance but failed to get delivery might also get back his money from the vendor on the plea of unwarrantable enrichment. But, as mancipation was unnecessary for carrying the property (and, as some think, incompetent), some other inachineu had to be resorted to than that of the copper and the scales for imposing upon the vendor an obligation of warranty against eviction, defects, and so forth. It may be that, until trade began to assume considerable proportions, and when a transaction was between citizens, a pur-chaser was content to rely partly on the honesty of his vendor, partly on the latter's knowledge that he ran the risk of an action for theft if whit he sold belonged to another,1 and partly on the maxim common in all ages and climes, caveat emptor. When it was one between a citizen and a peregnn, a different set of rules niay have come into play ; for between them disputes were settled by recuperators Whose decisions were arrived at very much on con-siderations of natural equity. It was the popularization of the stipulation tbat facilitated a further advance, rendered all the more necessary by the expansion of intercourse with foreig-ners and the cessation of recuperation.
We read of a satisdatio secundum maneipium, a stipulatio habere licere, and a stipulatio duplcce. The nature of the first is obscure ; it seems to have been connected with mancipatory sales, and prob-ably to have been the guarantee of a sponsor for the liabilities im-posed upon the vendor by the transaction per aes ct libram and the rerba nuncupata that were covered by it. The stipulation habcre licere occurs in Varro, in a collection of sty-les of sales of sheep, cattle, &c., some of which he says were abridg:aients of those of M. Manilius, who was consul in the year 605. It was the guarantee of the vendor of a res nec mancipi, or even of a reS mann:pi sold without mancipation, that the purchaser should be maintained in possession of what he had bought ; it entitled him to reparation on eviction, measured not by any fixed standard but according to tbe loss he had sustained. It cannot have been introduced, there-fore, until after the Lex Jlebutia and the formulation by the prwtor of the actio cx stipulatu. The idea of the stipnlatio duplae may have been borrowed from the duplum incurred by a vendor on the eviction of a purchaser acquiring a thing by mancipation ; for one of its earliest manifestations was in the edict of the curule who insisted on it from persons selling slaves, probably because the dealers were for the most part foreigners, and therefore unable to complete their sales per acs et libram. Judging from Varro, it was a form of stipulation against eviction that in his time was used only in sales of slaves, although he adds that by agreement of parties it might be limited to a simplam.
We learn from the same writer - what is also indicated in various passages of Plautus - that the vendor at the samc time and in the body of the same stipulation guaranteed that the sheep or cattle be was selling were healthy and of a healthy stock and free from faults, and tbat the latter had not done any mischief for which their owner could be held liable in a noxal action ; and similarly that a slave sold was healthy and not chargeable for any theft or other offence for which the purchaser might have to answer. If any of these guarantees turned out fallacious the purchaser had an actio ex stipulatu a,gainst the vendor : " Whereas the plaintiff got from the defendant a stipulation that certain sheep he bought from him were healthy, &c. [repeating the words of guarantee], and that he, the plaintiff, should be free to hold them (habcrc lie,cre), whatever it shall appear that the defendant ought in respect thereof to give to or do for the plaintiff, in the value thereof, judge, con-demn him ; otherwise, acquit It is an observation of Bekker's 2 If that the actio empti in its original shape was just a simplification of the actio ex stipulatu on a vendor's guarantees ; the stipulations to which we have been alluding had become such unfailing accom-paniments of a sale as to be matters of legal presumption, the result being that the words " whereas the plaintiff bought from the defendant the sheep about which this action has arisen " were substituted in the demonstratio (as the introductory clause of the formula was called) for the detailed recital of what had been stipu-lated. Bekker justifies this by reference to the language of Varro, who seems to include under the words emptio, venditio not merely the agreement to buy and sell bnt also the stipulations that usually went with it.
The introduction of an actio empti in this shape, however, was far from the recognition of sale as a purely consensual contract. If the price was not paid at once, the purchaser gave his stipulatory promise for it, or got some one on whom the vendor placed more reliance to do so for him, or else made a book-debt of it ; and, if it had to be sued for, it was in all these cases by a condictio ccrti and not by an action on the sale. If the price was paid but the thing purchased not delivered, the only remedy open to the purchaser was to get back his money by the same condiction, unless, indeed, the guarantee habere licerc was held to cover delivery, in which case the purchaser might obtain damages in an actio ex stipulatu under the name of actio empti. But this actio empti, whether in-sisted on on the ground of non-delivery, eviction, or breach of some other warranty, was really an action on the verbal contracts Very little was required to convert the stricti juris actio cmpti, really nothing more than an actio ex stipulatu, into a bonae fidei one, - simply the addition by the prxtor of the words " on con-siderations of good faith " (ex fide bona) to the " whatever the defendant ought to give to or do for the plaintiff." The effect, however, was immeasurable, - not that it did away with the prac-tice of stipulatory guarantees, for Vano wrote after the time of Q. Mucius (who speaks of the action on sale as a bonae fiolei one), and references to them are abundant in the pages of the classical jurists ; but it rendered them in law unnecessary. It made sale a purely consensual contract in whith, in virtue of the simple agreement to buy and sell, all the obligations on either side that usually attended it were held embodied without express formulation or (still less) stipulatory. or literal enga,gement. And, in instructing the judges to decide in every case between buyer and seller suing cx empto or ex vendito on principles of good faith, it really empowered them to go far beyond " general custom and practice, and to take cogniz-ance of everything that in fairness and equity and common sense ought to influence their judgment, so as to enable them freely to do justice between the parties in any and every question that might directly or indirectly arise out of their relation as seller and buyer.
The history of the four nominate real contracts - mtainon (Lc., l loan of money or other things returnable geneiically), commo- t date (i.e., loan of things that had to be returned specifically), deposit, and pledge - is more obscure than that of the consensual ones.4 Down to the Hine of the Pcetilian law loan of money, corn, &c., was usually contracted per aes et libram ; and it is probable that after the abolition of the nexum the obligation on a borrower to repay the money or corn advanced to him was made actionable, under the Silian and Calpurnian laws respectively, by a stipulation contemporaneous with the loan. With the rise of the jus gentium loan became actionable on its own merits, - that is to say, the advance and receipt of money as a loan of itself laid the borrower under obligation to repay it, even though no stipu-latory engagement had intervened ; the res (in this case the giving and receiving mutui mum) completed the contract. The obliga-tion that arose from it was purely unilateral, and enforcible, where the loan was of money, by- the same action as stipulation and literal contract ; and so strictly was it construed that interest on the loan was not claimable along with it, the res given and received being the full measure of the obligation of repayment. The other three - commodate, deposit, and pledge - became independent real contracts very much later than mutuum, possibly not all at the same time, and none of them apparently until very late in the re.public. All of them, of course, had been long known as transactions of daily life ; the difficulty is to say when they first became actionable, and under what guise.
It is impossible within the space at our command to criticize the various theories entertained of their vicissitudes, for they neces-sarily vary to some extent in regard to each. We must content ourselves, therefore, with the simple stateinent that eventually, and within the penod with which we are no* dealing, they came to be recognized as independent real contracts, the re,s by which they were completed being the delivery of a thing by one person to another for a particular purpose, on the understanding that it was to be returned when that purpose was served. And it is to be noted tbat, while mutuum transferred the property of the money lent, the borrower being bound to return not the identical coins but only an equal amount,- in pledge it was only the possession that passed, while in commodate and deposit the lender or depositor retained both property and (legal) possession, the borrower or de-positary having nothing more than the natural detention. In all but MItt2CUM, therefore, there was trust ; the holder was bound, to an extent varying according to circumstances, to care for what he held as if it were his own, and entitled to be reimbursed for outlay on its maintenance, - bound to return it, yet excused if his failure to do so was due to a cause for which in fairness he could not be held responsible. Consequently the actions on these three con-tracts, differing from that on mutuum, were all bonae fidei, the judge being vested with full discretion to determine what was fair and equitable in each individual case.
Prxtorian Amendments on th-e Law of Succession. - The most im-portant change in the law of succession during the latter half of the - republic was due to the prmtors. They introduced, under the name of bonorum posscssio,1 what was really beneficial enjoyment of the estate of a deceased person without the leg,a1 title of inheritance. There is much to lead to the conclusion that the series of provisions in regard to it which we find in the Julian conaolidation of the Eclid were the work of a succession of prietors, some of them prob-ably not under the republic but under the empire ; but it will be convenient to give here a general view of the subject as a whole, disregarding the consideration that some of its features rnay not have been given to it within the period now under notice.
Justinian, speaking of the origin of banorum possessio, observes that in promising it to a petitioner the prietors were not always actuated by the same motives ; in some cases their object was to facilitate the application of the rules of the jus chile, in some to ainend their application according to what they believed to be the spirit of the XII. Tables, in others, again, to set them aside as in-equitable. It is not unreasonable to assume that it was with the purpose of aiding the jus civi/e that the first step was taken in what gradually became a momentous reform ; and it is extremely prob-able that this first step was the announcement by some prietor that, where there was dispute as to an inheritance, and a testament was presented to him bearing not fewer seals than were required by law, he would give possession of the goods of the defunct to the heir named in it.2 In this as it stands there is nothing but a regulation of possession of the bona of the inheritance pending the question of legal right. Just as between two parties contending about the 01711er-shi p of a specific thing in a rei vindicatio the prmtor first settled the question of interim possession, so did he promise to do here when a question was about to be tried about the right to an inheritance (8i de hereditate ambigitur). It was a provisional arrangement merely, and very necessary in view of the state of the law which permitted a third party, apart from any pretence of title, to step in and com-plete a usucapio pro herede by a year's possession of the effects of the inheritance (supra, p. 692). Even at the time when the Edict was closed it was not necessarily more than a provisional grant ; for, if heirs-at-law of the deceased appeared and proved that, although the testament bore on the outside the requisite number of seals, yet in fact some solemnity of execution, such as the familiae venditio or testamenti nuncupatio, had been omitted, the grantee had to yield them up the possession that had been given him pending inquiry. It was only by a rescript of Marcus Aurelius's t'hat it was declared that a plea by the heir-at-law of invalidity of a testament on the ground of defect of formalities of execution might be defeated by an exceptio doli, on the principle that it was contrary to good faith to set aside the wishes of a testator on a technical objection that was purely formal. Thus was the bonorum possessio secundum tabulas, i.e., in accordance with a testament, from being originally one in aid of the jus eivile, in conrse of time converted into one in contra-diction of it. That the motives and purposes of the series of prxtors ivho built up the law of bonorum possessio must have varied in progress of years is obvious ; and, once the machinery had been invented, nothing was easier than to apply it to new ideas. The prxtor could not make a man heir - that he always disclaimed ; but he could eive a man, whether heir or not, the substantial ad-vantages of inheritance, and protect him in their enjoyment by prxtorian remedies. He gave him possession of the goods of the deceased, with summary remedies for ingathering them, which, once in his hands, would become his in quiritarian right on the expiry of the period of usucapion • and, by interpolation into the formula of a fiction of heirship, 'he gave him effectual personal actions against debtors of the deceased, rendering him liable in the same way to the deceased's creditors.
Another variety of the bonorum possessio was that contra tabulas, - in opposition to the terms of a testament. If a testator had neither instituted nor expressly disinherited a son who was one of his sui heredes, then his testament was a nullity, and the child passed over had no need of a pnetorian remedy. 'Where sui h-credes other than sons were passed over the jus civile allowed them to par-ticipate with the instituted heirs by a sort of accrual. But the Edict went further • for, if the institute was a stranger, ie., not brother or sister of 'the child passed over, then, on the petition of the latter, the pnetor gave him and any other sui concurring with hira possession of the whole estate of the deceased, the institute being left with nothing more than the empty name of heir. Another application of the bonorum possessio contra tabillas was to the case of emancipated children of the testator's. By the jus civile he was not required to institute or disinherit them ; for by their emanci-pation they had ceased to be sui herales, and had lost that interest in the family estate which was put forward as the reason why they had to be mentioued in the testament of their paterfamilias. The prcetors - although probably not until the empire, and when the doctrines of thejus naturale were being more freely recognized - put them on the same footing as unemancipated children, requiring that they also should be either instituted or disinherited, and giving them honor:on possessio if they were not. It was contra tabulas in the sense that it displaced the instituted heirs either wholly or partially, - wholly when the institutes were not children of the deceased, partially when they were. In the latter case, at least when sui were affected by it, the grant of bonorum possessio was under the very equitable condition that the grantees should col-late or tiling into partition all their own acquisitions since their emancipatinn.
The third variety of bmwruni possessio was that granted ab intes-tato. As has been shown on a previous page (p. 692), the rules of the jus civile in reference to succession on intestacy were extremely strict and artificial. They admitted neither emancipated children nor agnates who had undergone capitis &minutia ; they admitted no female agnate except a sister ; if the nearest agnate or agnates declined, the right (lid not pass to those of the next degree ; mere cognates, kinsmen of the deceased who were not agnates, c. g ., grand-children or others related to him through females and agnates eapite minuti, were not admitted at all ; while a wife had no share unless she had been in ntanu of the deceased and therefore filiae loco. All these matters the prietors amended, and so far paved the way for the revolution in the law of intestate succession which was accom-plished by Justinian.
The classes they established were four. (1) Displacing the SIli heredes of the jus eivi/e, they gave the first place to descendants (liberi), including in the term all those whom the deceased would o have been bonnd either by the jus eivile or the Edict to institute t or disinherit bad he made a will, i.e., his wife in, manu, his natural c (as distinguished from adopted) sons and daughters whether in polestate at his death or emancipated, the representatives of sons who had predeceased hini, and adopted children in his pdestas when he died. (2) On failure of liberi the right to petition for bonorum pos.sessio opened to the nearest collateral agnates of the intestate, under their old name of legitimi heredes. (3) Under the jus civile, on failure of agnates (and of the gots where there was one), the succession was vacant and fell to the fise, unless perchance it was usucapted by a stranger possessing pro herede. The frequency of such vacancies was much diminished by the recognition by the prietors of the right of cognates to claim bonorum possessio in the third place. 'Who they had primarily in view under the name of "cognates " it is impossible to say. The epithet is most frequently applied by modern writers to kinsmen related through females ; but in its widest sense it included all kinsmen without exception, and in a more limited sense all kinsmen not entitled to claim as agnates. There were included amongst them therefore - although it is very probable that the list was not made up at once, but from time to time by the action of a series of prietors - not merely kins-men related through females (who were not agnates), but also ag,nates of a remoter degree who were excluded as such because the nearest agnates in existence had declined, persons who had been agnates but by reason of eapitis minutia) had lost that character, female agnates more distantly related than sisters, and children of the intestate's who at the time of his death were in an adoptive family. All these took according to proximity. (4) Filially, the claim passed to the survivor of husband and wife, assuming always that their marriage had not involved meatus. This list constituted the pra!torian order of succession on intestacy.
All these bonorum possessiones had to be formally petitioned for. In that ab intestato descendants were allowed a year for doing so, while other persons were limited to 100 days, the period for those entitled in the second place beginning when that of those entitled in the first had expired, and so on. The grant was always made at the risk of the petitioner ; nothing was assured him by it ; it might turn out real and substantial (cum re) or merely nominal (sine re), according as the grantee could or could not maintain it against the heir of the,jus civile. For the latter was entitled to stand on his statutory or testamentary right, without applying for honor= possessio, although in fact he often did so for the sake of the summary procedure it supplied hiin for ingathering the effects of the deceased.
The Law of Procedure. - The substitution of the formular system L of procedure for that by the "actions of the law " commenced long p before the end of the period now under consideration ; and we have ci had occasion more than once to observe how greatly it facilitated the development of the institutions of property and contractual obliaation. But as the change was only completed in the early empire it will be more convenient to defer explanation of the nature of the new procedure in the meantime. (See infra, p. 707 sq.)