Henry Goudy

“ Regard for the third was nothing new in the jurisprudence of the period; the Republic had already admitted it as a principle that a man was not to be unjustifiably enriched at another's cost; the jurists of the empire, however, gave it a wider application than before, and used it as a key to the solution of many a difficult question in the domain of the law of contract. As for the fourth, it was one that had to be applied with delicacy; for the voluntas could not in equity be preferred to its manifestation to the prejudice of other parties who in good faith had acted upon the latter. ”

“ It is true that a patrician family with a good establishment of clients and slaves had within itself ample machinery for supplying its ordinary wants, and was thus to a great extent independent of outside aid. But there were not many such families. There must therefore have been contracts and some customary rules to regulate them, though these were presumably very imperfect. In many cases, such as those alluded to, one of the parties at least must have trusted to the good faith of the other. What was his guarantee, and what remedy had he for breach of engagement? ”

“ Primitive communities are slow to realize the conception of private testaments, and the plebeians could not at this period make a public one either calatis comitiis or in procinctu. But not long after their admission to citizenship there is reason to conjecture that mancipation was employed by them, not indeed to make a testament instituting an heir and taking effect only on the testator's death, but to make a conveyance of a whole patrimony mortis causa. ”

“ Manus, the power in a husband over his wife and her belongings, was a thing of the past; both stood now on a footing of equality before the law; perhaps it might be more accurate to say, at least with reference to the Justinianian legislation, that the wife was the more privileged of the two in respect both of the protection and the indulgence the law accorded her. With manus the old confarreation and coemption had ceased, marriage needing nothing more than simple interchange of consent, except as between persons of rank (illustres) or when the intention was to legitimate previous issue ”

“ It would be a bold thing to say that, had Christianity never gained its predominance, that spirit of natural right would not have continued to animate the course of legislation, and to evoke, as years progressed, most of those amendments in the law of the family and the law of succession that were amongst the most valuable contributions of the imperial constitutions to the private law. ”

“ But in the later 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 were disinherited or cut off with a nominal share of the inheritance in order that a stranger might be enriched. This led to the recognition by the centumviral court, without apparently any legislative enactment or praetor's edict to warrant it, of what was called the querela inofficiosi testamenti—challenge of a testament by a child whose natural claims had been capriciously and causelessly disregarded. ”

“ A man who had acquired a res mancipi on a good title, but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it. ”

“ They may or may not have acted on the advice of jurists; but, whether or not, they began a practice which grew into custom, and as such was recognized 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. ”

“ But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue—according to patrician notions his duty then was to perpetuate his family by adopting a son—as for partitioning the succession when he had more children than one. ”

“ Modern historical jurists are pretty well agreed that not only the real contracts of loan (mutuum and commodatum) , deposit, and pledge, but also the consensual ones of sale, location, partnership, and mandate, and the verbal one of suretyship, were as yet barely recognized by law. The law recognized conveyance but hardly contract. Sale was the offspring of barter—of instant exchange of one thing for another. With such instant exchange there was no room for obligation to deliver on either side. ”

“ At this stage breach of contract, as such, does not seem to have founded any action for damages or reparation before the tribunals; but it is not improbable that, where actual loss had been sustained, the injured party was permitted to resort immediately to self-redress by seizure of the wrong-doer or his goods. Self-help was according to the spirit of the time—not self-defence merely in presence of imminent danger, but active measures for redress of wrongs already completed. ”

“ Contrary to the maxim that no man could dispense with the institution of an heir or die partly testate and partly intestate, a soldier might dispose of part of his estate by testament with or without nomination of an heir, and, leave the rest to descend to his heirs ab intestato. ”

“ Personal actions, however, do not appear ever to have fallen within its cognizance: they were usually sent to a single judge—a private citizen—selected by the parties, but appointed by the magistrate, and to whom the latter administered an oath of office. But, in a few cases in which an action involved not so much a disputed question of right as the exercise of skill and discretion in determining the nature and extent of a right that in the abstract was not denied, the remit was to a plurality of private judges or arbiters, usually three. ”

“ As Baron has demonstrated, it was not the usual practice to introduce any words explanatory of the ground of indebtedness when the action was either for money (other than pecunia credita) or for a thing or quantity of things. It might be loan, or bequest, or sale, or purchase, or delict, or unjustifiable enrichment, or any of a hundred causae; it would have to be stated of course before the judge; but in the initial stage before the praetor and in the issue all that was necessary was the averment that the defendant was owing such a sum of money or such a thing. ”

“ But the decemviral code, as is now generally admitted, contained no such requirements; any citizen occupying immovable or holding movables as his own, provided they were usucaptible and he had not taken them theftuously, acquired a quiritary right in two years or one, as the case might be, simply on the strength of his possession. Originally, therefore, it was simply the conversion of de facto possession, no matter how acquired so long as not by theft, into legal ownership when prolonged for the statutory period,—too often the maintenance of might at the cost of right. ”

“ Poena capitis always implies either death, slavery or deprivation of citizenship; there is nothing more astonishing in a creditor's right to kill his debtor than in a father's right to kill his child; and comparative law gives many instances, of a parallel kind, of the harshness of primitive law to defaulting debtors. The partir secanto was probably a relic of earlier times, and Gellius admits that he never heard or read of a dissection having taken place. ”

“ The term “Roman law” is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Juris Civilis, which is the name that has been given since the 16th century to Justinian's legislative works as a whole, and distinguishes them from the Corpus Juris Canonici. ”

“ Justinian in his Institutes reproduces the boast of Gaius that nowhere else had a father such power over his children as was exercised by a Roman paterfamilias. True it is that the patria potestas in name still held a prominent place in the Justinianian collections; but it had been shorn of most of the prerogatives that had characterized it in earlier periods. To expose a newborn child was forbidden under penalties. To take the life of a grownup one—unless it was a daughter slain with her paramour in the act of adultery—was murder ”

“ All this is simple enough. But we find the same word nexus employed by the historians as almost synonymous with vinctus—to denote the condition of a debtor put in fetters by his creditor. That might be the condition either of a nexal borrower or of an ordinary judgment-debtor. The former in such a case was doubly nexus; he was at once in the bonds of legal obligation and in those of physical constraint. In many passages in which Livy and others speak of the nexi it is extremely difficult, sometimes impossible, to be sure in which sense they use the word. ”

“ Very little was required to convert the stricti juris actio empti, really nothing more than an actio ex stipulatu, into a bonae fidei one—simply the addition by the praetor of the words “on considerations 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 practice of stipulatory guarantees, for Varro wrote after the time of Q. Mucius (who speaks of the action on sale as a bonae fidei one) , and references to them are abundant in the pages of the classical jurists ”

“ In the next place, the intercourse that evokes contract was as yet very limited. Agriculture was the occupation of the great majority; of trade and commerce there was little; coined money had hardly begun to be used as a circulating medium. Lastly, the safeguards of engagement then lay to a great extent in the sworn oath or the plighted faith, of which the law (jus) hardly yet took cognisance, but which found a protection quite as potent in the religious and moral sentiments that had so firm a hold on the people. ”

“ But there was this important difference: that, while a natural mode of acquisition sufficed in the case of res nec mancipi, some civil one was necessary for the derivative acquisition, at all events, of res mancipi. The most important were mancipation, surrender in court, usucapion and bequest as singular modes, and inheritance, in manum conventio, adrogation and purchase of a confiscated estate, as universal ones. All of these, with the exception of mancipation, applied equally to res mancipi and res nec mancipi. ”

“ Those formed a family who were all subject to the power—originally manus, [21] later potestas or jus—of the same head (paterfamilias) . The paterfamilias was himself a member of the family only in the sense in which a king is a member of the community over which he rules. He might have a whole host dependent on him, wife and sons and daughters, and daughters-in-law and grandchildren by his sons, and possibly remoter descendants related through males; so long as they remained subject to him they constituted but one family, that was split up only on his death or loss of citizenship. ”

“ Without some sort of alliance with Rome a stranger had no right to claim protection against maltreatment of his person or attempt to deprive him of his property; and even then, unless he belonged to a state entitled by treaty to the international judicial remedy of recuperatio, it was by an appeal to the good offices of the supreme magistrate, or through the intervention of a citizen to whom he was allied by the (frequently hereditary) bond of hospitium, and not by means of any action of the jus civile set in motion by himself. ”

“ A single case of hardship may have been sufficient to induce it, such as the defeat of a claim for damages for eviction on the ground that the stipulatory guarantee had been accidentally overlooked. Ulpian says: “As the stipulatio duplae is a thing of universal observance, action on the ground of eviction will lie ex empto if perchance the vendor of a slave have failed to give his stipulatory guarantee, for everything that is of general custom and practice ought to be in view of the judge in a bonae fidei judicium.” ”