The characteristic of the earlier Roman law was its extreme formalism. From its first secret administration
as the law of the privileged classes it expanded until it became the basis of all civilized legal systems. The Roman law in
its maturity recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law, and repudiated
the concept that justice is the creature of positive law. Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque
opinione sed natura constitutum esse jus" (i. e. Justice is natural, not the effect of opinion). Justice was conformity with
perfect laws, and jurisprudence was the appreciation of things human and divine — the science of the just and the unjust,
but always the science of law with its just application to practical cases. Law was natural or positive (man-made); it was
natural strictly speaking (instinctive), or it was natural under the Roman concept of the jus gentium (law of nations)
— natural in itself or so universally recognized by all men that a presumption arose by reason of universality. The
Romans attributed slavery to the jus gentium because it was universally practised, and therefore implied the consent
of all men, yet the definition of slavery expressly states that it is contra naturam, "against nature". The precepts
of the law were these: to live honestly; not to injure another; to give unto each one his due. Positive law was the jus
civile, or municipal law, of a particular state.
Gaius says that all law pertains to persons, to things, or to actions.
Man and person were not equivalent terms. A slave was not a person, but a thing; a person
was a human being endowed with civil status. In other than human beings personality might exist by a fiction. Status was natural
or civil. Natural status existed by reason of natural incidents, such as posthumous or already born (jam nati), sane
and insane, male and female, infancy and majority. Civil status had to do with liberty, citizenship, and family. If one had
no civil status whatever, he had no personality and was a mere thing. Men were either free or slaves: if free they were either
free born or freedmen. Slaves were born such or became slaves either by the law of nations or by civil law. By the law of
nations they became slaves by reason of captivity; by civil law, by the status of their parents or in the occasional case
where they permitted themselves to be sold in order to participate in the price, if they were over twenty years of age. An
ungrateful freedman, again, might become a slave, as might one condemned to involuntary servitude in punishment for crime.
Freeborn, in the later law, were such as were born of a mother who was free at conception, at birth, or at any time between
conception and birth. Freedmen were former slaves who had been emancipated under one of several forms. They owed obsequium
— i. e., respect and reverence — to their former masters. The Lex Ælia Sentia placed restrictions on emancipation
by minors and in fraud of creditors. The Lex Fusia Caninia restricted the right of manumission proportionately to the number
of slaves owned.
Men were either citizens or foreigners (peregrini), perhaps more accurately "denizens". Assuming
that one had civil status, he might be either sui juris (his own master) or alieni juris (subject to another).
The power to which he was subject was termed a potestas: slaves were under the dominical power, and children were under
the patria potestas exercised by a male ascendant; the marital power was termed manus (i. e., "the hand", signifying
Slaves were at first insecure in their lives, but later the master's power of life and death was taken
away. They were in commerce and might be sold, donated, bequeathed by legacy, alienated by testament, or manumitted. They
had nothing of their own, and whatever was acquired through them accrued to the masters. Only very rarely could they bring
their masters into legal relations with third persons.
The paternal power over children (descendants) was a close patriarchal relationship, dating from remote
antiquity and at first extending to life and death. Between paterfamilias and filius familias (father and son),
no obligation was legally enforceable (see Prejudicial action below). During his lifetime the paterfamilias
was the owner of accessions made by the filius familias. The later law, however, recognized a quasi-partnership of
blood and conceded an inchoate ownership in the paternal goods, which was given expression in the system of successions. A
child under power might have the administration of separate goods called his peculium. The paterfamilias did
not part with the ownership. The military and quasi-military peculium became a distinct, separate property. Even the
slave at his master's sufferance might enjoy a peculium. The paternal power was stripped of the power of life and death,
the right of punishment was moderated, and the sale of children was restricted to cases of extreme necessity. In the earlier
law, it had been permitted to the father to give over his child (as he might give over a slave) to some person injured through
the act of the child, and thus escape liability. With the growth of humane sentiment, the noxal action in the case of children
was abolished. Between parents and children, only affirmative or negative actions on the question of filiation or the existence
of the paternal power were permitted. The paternal power was held only by males, and extended indefinitely downward during
the lifetime of the patriarch: i. e., father and son were under the patria potestas of the grandfather. The potestas
was in no wise influenced by infancy or majority. In the case given, upon the death of the grandfather the paternal power
would fall upon the father. The patria potestas was acquired over children born in lawful wedlock, by legitimation,
and by adoption.
Marriage (nuptiœ or connubium) was the association or community of life between
man and woman, for the procreation and rearing of offspring, validly entered into between Roman citizens. It was wont to be
preceded by sponsalia (betrothal), defined as an agreement of future marriage. Sponsalia might be verbally entered
into, and required no solemnities. The mutual consent of the spouses was requisite, and the object of marriage was kept in
mind so that marriage with an impotent person (castratus) was invalid: the parties must have attained puberty, and
there could be but one husband and one wife. It is true that more or less continuous extra-matrimonial relations between the
same man and woman in the absence of any other marriage were considered as a kind of marriage, under the jus gentium,
by the jurists of the second and third centuries. The connubium, or Roman marriage, was for Roman citizens: matrimonium
existed among other free persons, and contubernium was the marital relation of slaves. The latter was a status of fact,
not a juridical status. Marriage might be incestuous, indecorous, or noxal: incestuous, e. g., between blood relations or
persons between whom affinity existed; indecorous, e. g., between a freeman and a lewd woman or actress; noxal, e. g., between
Christian and Jew, tutor or curator and ward, etc.
Cognation or blood relationship is indicated by degrees and lines; the degree measures the distance
between cognates, and the line shows the series, either direct (ascending or descending) or collateral; the collateral line
is either equal or unequal in the descent from the common ancestor. In the direct line, in both civil and canon law, there
are as many degrees as there are generations. In the collateral line there is a difference: by civil law, brother and sister
are in the second degree, although each is only one degree removed from the common ancestor, the father; by canon law, they
are in the first degree. The civil law counts each degree up to the common ancestor and then down to the other collateral.
The canon law measures the cognation of collaterals by the distance in degrees of the collateral farthest removed from the
common ancestor. Uncle and niece are three degrees distant by civil law; by canon law they are only two degrees removed. Affinity
is the artificial relationship which exists between one spouse and the cognates of the other. Affinity has no degrees. By
Roman law, marriage in the direct line was prohibited; in the collateral line it was prohibited in the second degree.
Marriage was usually accompanied by the dowry, created on behalf of the wife, and by donations propter
nuptias, on behalf of the husband. The dowry (dos) was what the wife brought or what some other person on her behalf
supplied towards the expenses of the married state. Property of the wife in excess of the dowry was called her paraphernalia.
The dowry was profective, if it came from the father; adventitious, if from the wife or from any other source. The husband
enjoyed its administration and control, and all of its fruits accrued to him. Upon the dissolution of the marriage the profective
dowry might be reclaimed by the wife's father, and the adventitious by the wife or her heirs. Special actions existed for
the enforcement of dotal agreements.
The offspring of incest or adultery could not be legitimated. Adoption, which imitates nature, was
a means of acquiring the paternal power. Only such persons as in nature might have been parents could adopt, and hence a difference
of eighteen years was necessary in the ages of the parties. Adoption was of a minor, and could not be for a time only. Similar
to adoption was adrogation, whereby one sui juris subjected himself to the patria potestas of another.
The paternal power was dissolved by the death of the ancestor, in which case each descendant in the
first degree became sui juris; those in remoter degrees fell under the paternal power of the next ascendant: Upon the
death of the grandfather, his children became sui juris, and the grandchildren came under the power of their respective
fathers. Loss of status (capitis diminutio, media or maxima), involving loss of liberty or citizenship,
destroyed the paternal power. Emancipation and adoption had a similar effect.
One might be sui juris and yet subject to tutorship or curatorship. Pupillary tutorship was
a personal public office consisting in the education and in the administration of the goods of a person sui juris,
but who had not yet attained puberty. Tutorship was testamentary, statutory, or dative: testamentary when validly exercised
in the will of the paterfamilias with respect to a child about to become sui juris, but under puberty. A testamentary
tutor could not be appointed by the mother nor by a maternal ascendant. The agnates, who were an important class of kinsmen,
in the early Roman law were cognates connected through males either by blood relationship or by the artificial tie of agnation.
Statutory tutorship was that which the law immediately conferred, as the tutorship of agnates, of patrons, etc. The first
statutory tutors were the agnates and gentiles called to tutorship by the Twelve Tables. Justinian abolished the distinction
in this respect between agnates and cognates, and called them promiscuously to the statutory tutorship.
Similar to tutorship, although distinct in its incidents, was curatorship. In tutorship the office
terminated with the puberty of the ward. The interposition of the tutor's auctoritas in every juridical act was required
to be concurrent, both in time and place. He had no power of ratification, nor could he supply the auctoritas by letter
or through an agent. Curators were given to persons sui juris after puberty and before they had reached the necessary
maturity for the conduct of their own affairs. Curators were appointed also for the deaf and dumb, for the insane and for
prodigals. The curator of a minor was given rather to the goods than to the person of his ward; the curator's consent was
necessary to any valid disposition of the latter's goods. Tutors and curators were required to give security for the faithful
performance of their duties and were liable on the quasi-contractual relationship existing between them and their wards. In
certain cases the law excused persons from these duties, and provision was made for the removal of persons who had become
In the law of persons, status depended upon liberty, citizenship, and family; and the corresponding
losses of status were known respectively as capitis diminutio maxima, media, and minima. The minima,
by a fiction at least, was involved even when one became sui juris, although this is disputed.
Things were divini vel humani juris (i. e., governed by divine or by human law). Things sacrœ
were publicly consecrated to the gods; places of burial were things religiosœ; things sanctœ were
so called because protected by a penal sanction — thus the city walls, gates, ditch, etc. were sanctœ. None
of these could be part of an individual's patrimony, because they were considered as not in commerce.
Things humani juris were the things with which the private law concerned itself. Things are
common when the ownership is in no one, and the enjoyment open to all. In an analogous way, things are public when the ownership
is in the people, and the use in individuals. The air, flowing water, the sea, etc. were things common to all, and therefore
the property of none. The seashore, rivers, gates, etc., were public. Private things were such as were capable of private
ownership and could form part of the patrimony of individuals. Again, things were collective or singular. The once important
distinction between res mancipi and nec mancipi was suppressed by Justinian. Res mancipi were those things
which the Romans most highly prized: Italian soil, rural servitudes, slaves, etc. These required formal mancipation.
Things were either corporeal or incorporeal: corporeal were those quœ tangi possunt (which
can be touched — tangible). Detention or naked possession of a thing was the mere physical faculty of disposing of it.
Possession was the detention of a corporeal thing coupled with the animus dominii, or intent of ownership. It might
be in good faith or in bad: if there was a just title, the possession was just: if not, unjust. A true possession was possible
of a corporeal thing only; quasi-possession was the term employed in reference to an incorporeal thing, as a right. The jus
possessionis was the entirety of rights which accrued to the possession as such. The advantages of possession as independent
of ownership were as follows: the possessor had not the burden of producing and proving title; sometimes he enjoyed the fruits
of the thing; he retained the thing until the claimant made proof; he stood in a better position in law than the claimant,
and received the decision where the claim was not fully established; the possessor might retain the thing by virtue of the
jus retertionis, until reimbursed for charges and outlays; the possessor in good faith was not liable for culpa
(fault). One might not recover possession by violence or self-help.
A right in re was a real right, valid against all the world; a right ad rem was an obligation
or personal right against a particular person or persons. Rights in re were ownership, inheritance, servitudes, pledge,
etc. Ownership was quiritarian or bonitarian: quiritarian, when acquired by the jus civile only available to Roman
citizens; bonitarian, when acquired by any natural, as distinguished from civil, means. This distinction was removed by Justinian.
There could be co-ownership or sole ownership.
The modes of acquiring ownership were of two genera, arising from natural law and from civil law. One
acquired, by natural law, in occupation, accession, perception of fruits, and by tradition (delivery). Occupation occurred
in acquisition by hunting, fishing, capture in war, etc. The right of post-liminium was the recovery of rights lost
through capture in war, and in proper cases applied to immoveables, moveables, and to the status of persons. Finding was also
a means of occupation, since a thing completely lost or abandoned was res nullius, and therefore belonged to the first
Accession was natural, industrial, or mixed. The birth of a child to a slave woman was an instance
of natural accession; so also, was the formation of an island in a stream. This accrued to the riparian owners proportionately
to their frontage along the side of the river towards which the island was formed. Alluvion was the slow increment added to
one's riparian property by the current. Industrial accession required human intervention and occurred by adjunctio,
specificatio, or commixtio, or by a species of the latter, confusio. Mixed accession took place by reason
of the maxim: Whatever is planted on the soil, or connected with it, belongs to the soil.
In perception of fruits the severance or taking of revenue might be by the owner or by another, as
by the usufructuary, the lessee (in locatio-conductio), by the creditor (in antichresis), and by the possessor
in good faith.
Tradition was the transfer of possession and was a corporeal act, where the nature of the object permitted.
Corporeal things were moveables or immoveables. In modern civil law, incorporeal things are moveables or immoveables, depending
upon the nature of the property to which the rights or obligations attach. In Roman law obligations, rights, and actions were
not embraced in the terms moveables and immoveables.
The vindicatory action (rei vindicatio) went to the direct question of ownership, and ownership
was required to be conclusively proved. Complete proof of ownership was often extremely difficult, or impossible, and the
Prætor Publicius devised the actio publiciana available to an acquirer by just title and in good faith, but who could
not establish the ownership of his author. It was available to such an acquirer against a claimant who possessed infirmiore
Ownership (dominium) is an absolute right in re. A servitude (sometimes called a dismemberment
of ownership) was a constituted right in the property of another, whereby the owner was bound to suffer something, or abstain
from doing something, with respect to his property, for the utility of some other person or thing. A servitude was not a service
of a person, but of a thing, and to adjoining land or to a person. Servitudes due to land were real (predial), while servitudes
due to a person as such were personal. There were servitudes which might be considered as either real or personal, and others,
again, which could only be personal, such as usufruct, use, habitation, and the labour of slaves. A real servitude existed
when land was servient to land. Such a servitude was either urban or rural, depending not so much on whether the servitude
was exercised in the city or country as upon its relation to buildings. Servitudes consisted in something essentially passive,
in patiendo vel in non faciendo; never in faciendo. Servitudes which consisted in patiendo were affirmative
and those in non faciendo were negative. Servitudes could arise by agreement, last will, or prescription.
There were numerous urban predial servitudes: as onus ferendi, by which one's construction was
bound to sustain the columns of another or the weight of his wall; tigni immittendi, the right to seat one's timbers
in his neighbour's wall; projiciendi, the right to overhang one's timbers over the land of another, although in no
way resting on the other's soil; protegendi, a similar right of projecting one's roof over another's soil. The servitudes
stillicidii and fluminis recipiendi, were similar: stillicidium was the right to drip; and fluminis
recipiendi, the right to discharge rainwater collected in canals or gutters. The servitude altius non tollendi
was a restriction on the height of a neighbour's construction while altius tollendi was an affirmative right to carry
one's construction higher than otherwise permitted. Servitudes of light and prospect were of similar nature.
Rural predial servitudes were iter, actus, via, aquœductus, and the
like. The servitude of iter (way) was an eight-foot roadway in the stretches, with accommodation at the turns. It included
the right of driving vehicles and cattle, and the lesser right of foot-passage. Actus was a right of trail of four
feet in which cattle or suitable narrow vehicles might be driven. Iter was a mere right of path. In these servitudes
the lesser was included in the greater. The nature of the right of aquœductus is obvious, as well as the various
servitudes of drawing water, of driving cattle to water, of pasturage, of burning lime, of digging sand or gravel, and the
like. Servitudes of this character could be extinguished by the consolidation of ownership of both servient and dominant estate
in the same owner, and by remission or release; by nonuser for the prescriptive period, and by the destruction of the dominant
or servient estate.
Usufruct was the greatest of personal servitudes; yet, as its measure was not the strict personal needs
of its subject, it exceeded a personal servitude. During the period of enjoyment it was almost ownership, and was described
as a personal servitude consisting in the use and enjoyment of the corporeal things of another without change in their substance.
Ususfructus was the right utendi, fruendi, salva substantia. In a strict sense it applied only
to corporeal things which were neither consumed nor diminished by such use. After Tiberius a quasi-usufruct (as of money) was recognized. 1Ioney, although not consumable naturaliter, was
consumable civiliter. Usufruct could arise by operation of law, by judicial decision (as in partition), by convention,
by last will, and even by prescription. The natural or civil death of the usufructuary extinguished the right, as did non-user
and the complete loss of the thing.
Use and habitation were lesser rights of the same general nature. Usus was the right to use
the things of another, but only to the extent of the usee's necessities, and always salva substantia. Habitation was
the right of dwelling in another's building in those apartments which were intended for habitation, salva substantia
(i. e., without substantial modification). The personal servitude operœ servorum embraced every utility from the
labour of another's slave or slaves. The actions from servitudes were confessoria or negatoria, in assertion
of the servitude or in denial of it.
Ownership might further be acquired by usucaption (usucapio) and prescription for a long period.
Prescription (a slight modification of the older usucaption) is the dispensing with evidence of title, and is acquisitive
when it is the means of acquiring Ownership and extinctive (divestitive) when it bars a right of action. Acquisitive prescription
- (1) a thing subject to prescription,
- (2) good faith,
- (3) continuous possession, and
- (4) the lapse of the prescribed time.
Again, ownership could be acquired by donation, the gratuitous transfer of a thing to another person.
Donations were mortis causa or inter vivos, and the former was in reality a conditional testamentary disposition
and very similar to a legacy, while the latter did not require the death of the donor for its perfection. A species of donation
inter vivos was the donatio propter nuptias from the husband.
The juridical consequence of ownership is the power of alienation, and yet the law limited certain
owners in this respect. The husband owned the dowry, but was subject to restrictions; the pupil under tutorship was owner,
but without power to alienate, except probably in the single case of a sister's dowry. Even where one was owner without these
specific limitations, if he had conceded rights in re to another, he could not alienate prejudicially to such other:
thus, the pledge debtor could not prejudice the rights in re of the pledge creditor.
Acquisition could be made, not only personally, but through children and slaves; and, in the later
law, through a mandatory or procurator. Acquisition could be made of possession, of ownership, and of the right of pledge.
Succession to a deceased person was either testate or intestate: particular things were acquired by
legacies or by trust-bequests (fidei-commissa). A universal succession was an inheritance. The Twelve Tables recognized
the right of testation, and the civil law later conceived of a partnership of blood in both testate and intestate successions.
The præetor's intervention was frequent in testamentary matters; and in equitable cases he softened the rigour of the law
and gave the possessio bonorum. A testament was the legally declared last will in which an heir was instituted. Some
departure from the strict formalities was permitted in the case of soldiers' wills. The right of testament was active and
passive. Persons generally who were under no incapacity could make a will; those prohibited were such as had some defect of
status, some vice or defect of mind, or even some sufficient defect of body, and those guilty of crime or improbity. The passive
right of testament was the right to take under a will. Heirs were voluntary or necessary (forced). In the early freedom of
the law, Romans might disinherit without cause; later, this liberty was restricted to disherison for just cause, and a legitima,
or statutory provision, was prescribed. Disherison was the express exclusion from the whole inheritance of one who was entitled
to the legitima. One was prœteritus who was neither instituted an heir nor disinherited. Since disherison
was required to be express, one conditionally instituted was only pretermitted. Further, disherison required exclusion from
all heirs and from every degree. Under the early law, Sons were required to be excluded by name; daughters and grandchildren
could be excluded by class. The later law required that all children should be deprived by name. Justinian enumerated the
"just" causes of disherison in Novel cxv; they are substantially the same in the modern civil codes.
The instituted heir, as successor to the universal rights of the decedent, was required to have passive
testamentary capacity at the time of the will and at the time of the death; the intervening period was of no consequence.
It was, however, requisite that he should retain capacity from the time of the death until the taking of the inheritance.
In a conditional institution of the heir, capacity was necessary at the time of the will, at the time of the death, and at
the time of the happening of the condition. Slaves as well as freemen could be instituted heirs, and, in the case of a slave
the gift of liberty was implied. Uncertain and indeterminate persons might be instituted if they could be rendered certain;
such were the poor, the municipalities, and licit corporations. Where coheirs were instituted without definite shares, they
took equally. The heir might be instituted absolutely or conditionally, but not merely for a time. A physically impossible
condition, negatively added, left the institution absolute; in general, the conditions annexed were various and quite similar
to the classes of conditions known to the modern civil law. Where one of several co-heirs failed to take, his portion accrued
to the others as a matter of law, without their knowledge and even against their will: this was called the jus accrescendi.
As already intimated, the testator might institute one or several heirs; if all were instituted at
the same time, they were direct heirs; but one might be direct and the other substituted by way of fidei-commissum. Again,
the testator could substitute an heir, in case the first should not take. Direct substitution, therefore, was the institution
of a second heir, in case the first failed to take: with respect to the person making the substitution, it was either military
or non-military. The case in which the substitution was intended to take place classed it as vulgar, pupilary, or quasi-pupilary:
vulgar was the ordinary substitution in which one was named to take, in case the first heir defaulted or died; pupillary,
was where an heir was instituted to succeed a child under puberty (since such child could not make a will, the parent in a
sense made two wills, one for himself to the child and one for the child in case the latter should die before puberty).
Testaments were vitiated in several ways: nullum, void from the beginning, where there was a
defect in the institution of the heir or incapacity in the testator; injustum, not legally executed and hence void;
ruptum, by revocation or by the agnation of a posthumous child, either natural or civil; irruptum, where the
testator had lost the civil status necessary for testation; destitutum, where the heir defaulted because dead or unwilling,
or upon failure of the condition; recissum, as the consequence of a legal attack upon an undutiful will.
It has been said that heirs were either necessary or voluntary: necessary heirs were either such as
could not be pretermitted or such as were forced to accept. These were again sui et necessarii or necessarii
only. The former were children under the patria potestas, and they were sui because one's own, and necessarii,
because the civil law made them forced heirs, although the prætor gave to such the beneficium abstinendi. Voluntary
heirs were strangers who had a perfect right of election to accept or reject the inheritance. The prætor conceded to the heir
a period of time in which to balance the advantages and disadvantages of the inheritance, called the jus deliberandi.
Justinian added to this the benefit of inventory.
Aside from the inheritance proper, a will could contain legacies whereby things were bequeathed by
a single title and by express words; they could be imperative or precative. Legacies were by vindication, where the express
words justified a direct legal claim by the legatee; by condemnation, where the language condemned or ordered the heir to
transmit the legacy; by prœceptio, where a legacy was left to one only of several co-heirs; and sinendi modo,
by permissive words. As in the case of joint-heirs, the jus accrescendi existed also among joint-legatees.
By reason of the ambulatory character (as Heineccius terms it) of man's will, legacies and trust-bequests
(fidei-commissa) were subject to ademption and transfer to another legatee. The Lex Falcidia, which created the statutory
fourth portion, applied to legacies as well as to other testamentary provisions. Fidei-commissa were created by precative
words addressed to the conscience of the heir, and were at first not legally enforceable. Trust-bequests were later given
legal sanction; and they were universal or of single things. The modern civil law is hostile to trusts of any kind.
If a last will contained the institution of an heir, it was a testament; if it contained less, it was
a codicii. Originally, codicils were only letters; later, they began to have testamentary force, containing, however, nothing
which pertained to the direct institution of the heir. There could be several nonrepugnant codicils. Not only could they contain
no institution of an heir, but they could not provide for disherison or substitution. They were made either in connexion with
a will or, in some cases, with a view to the intestate succession of the heir.
If there was an invalid will or no will at all, the succession was intestate: in. the ancient law the
basis of intestate succession was the peculiarly Roman artificial family made up of the agnates. Emancipated children and
non-agnatic cognates did not succeed, since they were no part of the family. In the first rank, the heirs were the decedent's
children (natural or adoptive) who took per capita, in the nearest degree and per stirpes, or by representation,
in remoter degrees. Emancipated children had no claim until later, when they were aided by the prætor's edict, "Unde liberi".
The Twelve Tables provided that, in the absence of children, the nearest agnate should be called: this was known as the statutory
succession of the agnates. Those only were called who were bound in agnation to the deceased through males; hence females
beyond sisters were not called. The prætor, however, provided for the more remote in the edict, "Unde cognati". Agnates by
adoption enjoyed the same rights as agnates by nature. The nearest agnate took, and there was no right of representation,
although here again the prætor made innovations which were supplemented by the legislation of Justinian. The father did not
succeed to the son, consistently with the idea that the son could have nothing of his own, and, where the father took, it
was by right of resumption. The father succeeded to his emancipated child, not as an agnate, but as a manumissor. The mother
was not an agnate, and did not succeed to her children, nor did they succeed to her. Here, again, changes were effected by
the edict, "Unde cognati", and by the Senatus-consulta Tertullianum and Orphitianum. The former senatus-consultum provided
that, if a free mother gave birth to three children, or a freedwoman to four, there should be a right of succession, and this
legislation was modified by Justinian even more favourably to the mother. The Senatus-consultum Orphitianum was the complement
of the other, and provided that the right of succession between mother and children should be reciprocal. These rights were
extended by imperial constitution to grandchildren.
If agnates were wanting, the Twelve Tables called the gentiles in the next rank, and not the
cognates: the prætor, however, in the edict "Unde cognati", called the cognates in this rank.
Servile cognation (that contracted in slavery) had been an impediment of marriage; but the slave woman,
manumitted with her children, could not avail herself either of the Senatus-consultum Tertullianum or of the possession of
goods derived from the edict "Unde cognati". Justinian created rights of succession to remedy this defect.
The former master or, by assignment of freedmen, his children, stood in loco parentis to the
freedman, and succeeded to his patrimony. Even the predeceased patron, through his nearest children (representation being
excluded) succeeded to the goods of his former slave. Libertini, freedmen, were restricted. in their capacity to make
a will. The prætor considered it no more than equitable that the libertinus should leave one-half his property to his former
master. A higher equity arose where the freedman left children of his own, and in this case the patron might be excluded,
the whole patrimony going to the freedman's children. In all other cases, and even contra tabulas, the patron took
one half: later, in special circumstances depending upon the freedman's wealth, Justinian, developing the principles of the
Lex Papia Poppæa, increased the patron's portion.
The prætor's intervention in succession matters did not directly overturn the provisions of the jus
civile, but he devised the possessio bonorum, applicable to both testate and intestate successions. Justinian recognized
and gave sanction to three kinds of possessio: first, contra tabulas (contrary to the will), where persons had
been inequitably pretermitted; second, secundum tabulas; third, possession of an intestate's estate. The bonorum
possessor was not an heir in accordance with jus civile, yet he enjoyed all of the privileges of an heir. Justinian
placed the right of succession upon a basis of cognation, or blood relationship, and succession by right of blood occurred
in four orders which may be indicated as follows:
- (a) the sui heredes, or natural heirs, who succeeded in virtue of the con-dominium in
- (b) those whose strict legal right had been barred (as by emancipation), but whom the prætor called
to the inheritance;
- (c) emancipated sons to whom Justinian's constitution restored natural rights.
- (a) statutory heirs, agnates;
- (b) persons entitled under the Senatus-consultum Tertullianum;
- (c) those entitled under the Senatus-consultum Orphitianum.
- the cognates. (Heineccius gives tables of descent both before and after Justinian's legislation).
None of these orders being entitled to take, the estate escheated to the fiscus, or public treasury.
The adjective law (below, under C. Actions) supplied various forms for the hereditas petitio. Collatio, or the
return of advancements, was required in order that there might be a fair distribution. This is the collation of the modern
Another means for the acquisition of ownership was adrogation, whereby a person sui juris was
adopted into the paternal power of another. Originally the obligations of the adrogatus were strictly and logically
extinguished, but the injustice to creditors was the subject of remedial legislation.
Again, one might acquire the goods of another by sectio or venditio bonorum, a sale at
auction for the benefit of creditors.
The rights growing out of pledge were also a means for the acquisition of property. This institution
was, in its inception, only a fiduciary pact without means of enforcement, and the title passed to the pledge creditor; later,
it took the form of pignus, or pledge proper, whereby the creditor was placed in possession of a moveable with certain
duties towards the debtor; a form of the same contract was extended to immoveables, and this was known as antichresis.
In antichresis the creditor was placed in possession of the immoveables and obliged to pay, first, his interests and
charges, and then to deduct from the principal debt whatever he received as revenue. Hypotheca, or mortgage, was a
development and in scientific theory is the substructure of the modern law of mortgage. Privileges were akin to modern civil-law
rights of the same name and to the liens of the common law; but possession was not of prime importance.
Pledge was extinguished by the extinction of the principal debt, by express release, by expiration
of the time, by destruction of the thing pledged, etc. The actions growing out of it were the Servian and general hypothecary,
or quasi-Servian action.
Real rights (in re) differ essentially from personal rights (ad rem), or obligations,
which have persons as their immediate objects. Even these have things as their remote objects, since they tend to the attainment
of a thing through a particular person and by reason of their being usually convertible into a money value. Obligations (dismissing
at once those which were purely natural and hence unenforceable) were broader than either contract or tort, and included liability
arising from both. They were civil or prætorian, and could arise from contract, quasi-contract, delict, and quasi-delict.
In conventional obligations some things were essential, others accidental. Contractual obligations arose through delivery
of a thing, through words, through writing, or merely through the consent of the parties; and were, accordingly, contracts
re, verbis, littens, or consensu.
Contracts re were the bailments, loan for use, loan for consumption, deposit, and pledge.
Contracts verbis were entered into by a formal stipulation consisting of a direct question and
an adequately responsive answer. They could take immediate effect, could commence in futuro, or could be conditional.
Stipulations were prætorian, judicial, common, and Aquilian: the prætorian and judicial were scarcely voluntary. The common
stipulation was used in the ordinary affairs of men and by persons in fiduciary relationships (e. g., in this form the tutor
gave security for the faithful discharge of his duties). The Aquilian stipulation, in connexion with acceptilatio,
was a means of general release for the dissolution of any obligation. Stipulations required the same consensual elements that
were necessary in other agreements, in addition to their own peculiar formalism. If a conditional response were made to a
direct question, the stipulation was void; so also, if made by letter or messenger. The relation of suretyship could be created
by stipulation: suretyship was an accessory contract, and the surety was known as the fidei-jussor. Sureties had the
beneficium divisionis, which was conceded by Hadrian. They enjoyed also the beneficium ordinis, invented by
Justinian, and the beneficium cedendarum actionum, or subrogation to the right of action of the creditor against the
principal debtor, or pro rata against the co-sureties.
Contracts litteris took their juridical efficacy from writings, which evidenced the fact that
an obligation subsisted or that it had been extinguished. The latter were called apochœ. Writings evidencing a
subsisting obligation were syngraphic or chirographic respectively, as they expressed a mutual or a unilateral obligation.
A writing in the book of the debtor which supported the creditor's entry was conclusive, and even he creditor's entry created
a strong presumption.
Contracts consensu were not peculiar in that they required consent, which was requisite in all
contracts. Their peculiarity was in the fact that consent alone sufficed. They were five in number: buying and selling (emptio-venditio);
letting and hiring (locatio-conductio); the emphyteuticary contract; partnership (societas); and mandate (gratuitous
agency). In sale, there was necessary the consent of the parties, an object and an agreed price. Letting and hiring might
be considered a temporary sale, and the essential incidents of a valid contract were the same as in sale. Emphyteusis strictly
was neither a sale nor a letting; it was rather a quit-rent lease dependent in its duration upon the payment of the agreed
canon. Its special incidents were a quasi-ownership in the tenant and a right of pre-emption in the dominus.
Similar to emphyteusis was the right of superficies; but as it applied only to the surface — that is, to buildings —
it was less permanent. Partnership was general or universal; particular or special; and, finally, singular. As consent was
of its essence, withdrawal of consent worked its dissolution. Partnership was an entity distinct from the individual partners;
it gave rise to the actio pro socio. The leonine partnership (societas leonina) was illegal. Mandate was a consensual
contract whereby one undertook gratuitously to attend to an affair for another; it was commissioned agency and was an actual
contract; it was distinguishable from negotiorum gestio (uncommissioned agency) in that the latter belonged to quasi-contract.
It gave rise to the actio mandati, directa, or contraria.
The contracts which had a definite name and form of action for their enforcement were nominate contracts.
There were others termed innominate because they had no special names: these were summed up in the four formula: Do, ut
des; Do, ut facias; Facio, ut des; and Facio, ut facias. They were enforced by the general action in factum
or by the action prœscriptis verbis.
All of the foregoing contracts, nominate and innominate, were contracts in the true sense of the word,
but there was another class of relations in which the law imposed duties and obligations as if the parties had actually contracted.
These were the so-called quasi-contracts, and the forms were negotiorum gestio, tutorship, inheritance, administration
in common, hereditatis aditio, indebiti solutio (payment under mistake of fact), and a few others of similar nature.
Obligations could be acquired through the paternal and dominical powers and through mandataries. A
civil obligation once constituted could be extinguished by an exception (plea in bar) or by its own terms. Pleas in bar were
divers and could arise from a will, a contract or pact, a judicial decision, etc.
The means of extinction common to all obligations were: solutio (payment); compensatio
(set-off); confusio (merging of the character of debtor and creditor) oblatio et consignatio (tender); rei
interitus (loss of the thing); novatio (substitution of obligations as to person or thing); prœscriptio
(lapse of time); and further, in proper cases, by acceptilatio (release) and by mutuus dissensus (mutual change
The prætorian restitutio in integrum was an equitable restoration of the parties to their former
situation, and could be invoked for metus (duress), dolus (fraud), minority, and generally by all who had suffered
hardship through no fault of their own.
Obligations and rights of action arose also out of delictum, which was the voluntary penal violation
of human law. Delicts were either actual or quasi-delicts — the former deliberate, the latter negligent. When public,
they were crimes; when private, torts. Instances were: furtum (theft), either manifest or concealed; rapina
(robbery with violence); damnum injuria datum (injury to property); and injuria (a kind of outrage, or defamatory
wrong by word or action). In furtum, the thief could be prosecuted either civilly or criminally, and in the civil action
the thing or the penalty could be recovered. The Roman criminal law imposed a fine to the fiscus and corporal or capital
punishment. Justinian abolished mutilation and capital punishment for theft and substituted fines and exile. Rapina,
like furtum, required a criminal intent. Where the putative owner, in the belief of ownership, sought to recover his
property by violence, this was not robbery, but the offence against public order was punished by the loss of the property
without, however, any fine to the fiscus. Damage to the property of another injuria datum was the subject matter of
the Aquilian Law, and the damage must have been inflicted by a freedman; if by a slave, it was a noxal tort; if by a quadruped,
the tort and liability were designated pauperies. The measure of damages in injuria depended upon the atrocity
of the wrong and the status of the parties; the right of action accrued to the father for injuria to the son; to the
husband, for the wife; to the master, for the slave, etc. Quasi-delictual obligations were torts or wrongs based on culpa
(fault or negligence), and not upon dolus (evil intent). An instance was where anything was negligently or carelessly
thrown from a house (dejecta vel effusa). Quasi-delictual, also, were the obligations of persons employed in a public
calling, such as shipmasters and innkeepers, for the wrongful acts of their servants.
An action was the legal means for the enforcement of a right, and the Roman law included in the term
actio both the right of action and the action itself. Actions were petitory, when they sought to recover the very thing
in controversy, or possessory, where the right of possession only was in issue. Specific nominate actions were provided in
most of the relations between men, and where the relations were innominate there were actiones in factum, prœscriptis
verbis, and condictiones ex lege.
According to their origin, actions were civil or honorary, the latter emanating either from the prætor
or from the ædiles. Civil actions were either directœ or utiles: directœ, if brought in the express
words of the law or by the logical parties; utiles, if brought upon equitable facts not within the strict letter, and
possibly, in the case of a ceded action, by the nominal plaintiff for the use of the real plaintiff. Actions aiming to establish
personal status were called prejudicial. Real actions were vindicationes; personal were condictiones.
Rei vindicatio and the Publician action went to the question of ownership. Succession gave rise
to the hereditas petitio and to the querela inofficiosi. Servitudes were affirmed or denied by an actio confessoria
or negatoria. In pledge, there was the Servian or quasi-Servian action. The prætor or the ædile granted equitable actions,
such as the actio ad exhibendum for the production of moveables; the actio in factum de edendo, an action of
account against bankers; and the redhibitoria and quanti minoris, actions for redhibition and abatement of the
price. The actions based on duress, fraud, and minority were purely equitable, and there was a condictio sine causa
in cases of failure of consideration. This may be considered as equitable or as growing out of quasi-contract. Indeed, all
of the quasi-contractual relations had their appropriate actions. Private wrongs, too, were redressed in suitable forms of
action. In delicts the recovery might be simply the value, as in the persecutory actions; or double the value, as in the actio
furti nec manifesti and in the action for corrupting a slave. In some instances, a triple, or even quadruple recovery
might be had.
Actions founded on the consensual contracts of sale, hire, emphyteusis, partnership, and mandate, and
on the real contracts of commodatum, depositum, and pignus were actions bonœ fidei: so also, the
actio prœscriptis verbis for innominate contracts and the quasi-contractual actions negotiorum gestorum, funeraria,
tutelœ, etc., as well as the personal action hereditas petitio.
The actio ex stipulatu and the condictio ex chirographo were actions of strict law (stricti
An arbitrary action was one in which a non-compliant party was forced to comply or be held liable in
a larger discretionary sum.
Certain exemptions to judgment debtors were favoured by the Roman law; among these was the beneficium
Ordinarily the foundation of liability was personal, yet one might incur liability through the act
of another — as a son, a slave, or even a stranger. The actio quod jussu was properly brought against father
or master for an act done by his order. The master of a ship, whether freeman or slave, by a sort of necessary agency could
incur liability for the ship-owner and the right of action was enforced by the actio exercitoria. Similar in theory
was the actio institoria which was the proper form in which to bring an action against one who had placed another in
charge of a shop for the buying and selling of wares. The age and condition of the institor were immaterial. The prætor gave
an actio de peculio to persons who contracted with son or slave in respect to the peculium, and this action
was effective against the father or master to the extent of the peculium.
Aside from the specific remedies sought in particular cases, actions were perpetual or temporary, depending
upon the lapse of time. Perpetual actions were ordinarily such as were barred by thirty years' prescription, while temporary
actions were barred by shorter periods.
Exceptions or pleas to actions, like actions themselves, were civil or prætorian; and in general were
perpetuœ and peremptoriœ (complete pleas in bar); or temporariœ (only dilatory).
The developed written altercations, or pleadings, of the parties were as follows: the actor
(plaintiff) brought his actio, which the reus (defendant) met with his exceptio (plea). To this the plaintiff
could reply with a replicatio, which in turn might be met with a duplicatio, and in exceptional cases the pleadings
might advance to a triplicatio and a quadruplicatio.
The interdicts were formulæ, or conceptions of words, whereby the prætor, in an urgent cause or in one affecting the
public interest, ordered or forbade something to be done. They were, in effect, prohibitory or mandatory injunctions; they
were prohibitoria, as against violence to possession, obstructing a public place, etc.; they were restitutoria,
to restore possession, etc.; and, finally, exhibitoria, as for the production of a free man or for the production of
a will. The object to be attained by a possessory interdict was to receive, to retain, or to recover possession. The interdicts quorum bonorum and quod legatorum had to do with successions. The Salvian and quasi-Salvian
interdicts were used for foreclosure in pledge obligations.
(The subject of Roman criminal law is beyond the scope of this article; its most concise arrangement
is to be found in Pothier's "Pandectæ: de pœnis.")
SOME ARTICLES of DISCUSSION
"The signification in Our Jurisprudence .... The word ‘Person,’ in its
natural sense, signifies the mask with which actors, who
played dramatic pieces in Rome and Greece, covered their
pieces were played in public places. and afterwards in Such vast
amphitheaters that it was impossible
for a man to make himself heard
by all the spectators. Recourse was had to art; the head of each actor
with a mask, the figure of which represented the Part
he was to play, and it was so contrived that the opening for
emission of his voice made the sounds clearer and more resounding, vox
personabat, when the name persona was given
to the instrument or mask
which facilitated the resounding of his voice. The name persona was
to the part itself which the actor had undertaken
to play, because the face of the mask was adapted to the age and
of him who was considered as speaking, and sometimes it was
his own portrait. It is in this last sense of personage,
or of the
part which an individual plays, that the word persona is employed in
jurisprudence, in opposition to
the word man, homo. When we speak of a
person, we only consider the state of the man, the part he plays in
abstractly, without considering the individual". 1
Bouvier’s Institutes, note 1.
Confirmed by operative
A place of worship, be it a mosque, temple, church or gurdwara, is a "person" in law.
The offerings and donation made there are meant for the utilisation of the followers. These are not expected to be utilised
for the personal use of the "juristic person". If the place of worship, or even a charitable institution, is not properly
managed and suffers from the allegations of misappropriation and pilferation at the cost of its "guardian", the natural course
lies in judicial interference. This happened in the past when the judiciary has had to set a house of worship in order so
that the sacredness of the holy place was protected.
The recent Supreme Court judgment that Guru Granth Sahib is a "juristic person"
is the reiteration of its earlier viewpoint. A juristic person, like any other person, can own property, can sue and be sued.
But every copy of the holy book cannot be given the status of a "juristic person". The holy book becomes a person in the
eyes of the law when it is installed at a place (Gurdwara) through a proper ceremony.
There are inherent compulsions in the status of a juristic person. Its interests have
to be guarded by a guardian, as is the case with a minor child. Similarly, as the child cannot speak or express himself, a
juristic person also suffers from the same drawback. Such a "person" connotes recognition in law of a legal entity which otherwise
is not available to him.
It’s an "artificially created" person which is recognised as "human person" in
law. History shows that even human beings were not treated as a "person" by different civilisations. Under the Roman law,
a slave was not a person. He had no right to have a family. His legal status was that of a slave or a chattel. In French
colonies, until slavery was abolished, slaves were not treated as legal persons. In the US, the African-Americans had no legal
rights though they were not treated as chattels.
Maybe, when humanity’s tryst with inhumanity started and slowly shook the conscious
of the men in power that the term "person" became important for everyone.
Now when the status of the juristic person has been conferred on humanly created beings
which are revered across the globe, it would be not be a far-fetched scenario when the human rights of the juristic persons
are also sought to be protected through the various commissions engaged in such a task and the courts which are constitutionally
bound to uphold a person’s dignity be enforcing the right to life through a mandate.
Hurting one’s religious sentiments, or depriving a person of the right to practice
a particular faith, is necessarily a denial of the basic right. It is also violation of the right which a "juristic person"
is entitled to, being a person who is as good a any citizen of the country.